After all, they had a right to express their views, no matter how repugnant, bigoted, bizarre and superstitious I might have found these views — just as I had the right to demonstrate my love and affection to the person dearest to me. That is one of the advantages of living in a constitutional democracy. As long as one does not break the constitutionally valid laws of the country, one is free to do and say what one wants.

Section 17 of the South African Constitution states that: “Everyone has the right peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” This right forms part of the bouquet of rights aimed at securing a democratic space in which individuals can express their views, can demonstrate in support of those views, can listen to others and consider changing their minds. If these rights are not vigilantly protected, democracy itself is diminished.

If one is intolerant of the views of others to the extent that one would take action to prevent others from expressing these views or trying to spread their views by holding marches or handing over petitions, one is intolerant of democracy itself. If one disagrees with a view expressed by others and promoted via a peaceful march, then one should counter that view with better arguments and holding another, larger, peaceful march. Not by trying to deny others their democratic rights.

That is why the actions by the Cosatu leadership as well as Cosatu members today must be condemned in the strongest terms. First Patrick Craven of Cosatu (and the ANC) called on the DA not to exercise their democratic right to demonstrate. Then the National Union of Metalworkers of SA (Numsa) and its affiliates vowed to “swamp the streets outside Cosatu House”.

Numsa spokesman Castro Ngobese complained that: “This mass gathering is informed by the provocative, deceitful and cheap political blackmail from the chief representatives of white monopoly capital and apartheid apologists the DA.” Ngobese said the DA was trying to coerce the ANC-led government, particularly its ally Cosatu, to agree to the neo-liberal proposal of a youth wage subsidy.

(Ironically the march was aimed at promoting a youth wage subsidy, a policy supported by the ANC government.)

Then this morning Cosatu members intimidated DA marchers and threw stones at them (with some reports of the DA marchers retaliating) and at journalists, injuring several people.  Patrick Craven incredibly justified this action by stating: “We showed [the DA] we would not be intimidated.” Mouthing platitudes about supporting the right to peaceful protest (as Vavi did in a tweet) after you have called on your supporters to stop a DA march from getting close to your headquarters, merely illustrates than one is a hypocrite, not that  one is a man of principle.

There is no place in our democracy for such anti-democratic intolerance. The argument that the marchers “provoked” Cosatu members who were by implication justified in using violence to stop the march, does not hold water. No one has a right to bring a violent end to a march because they believe the message of the marchers is wrong or that the marchers have no right to demonstrate close to where they work. If they had, the rights protected in section 17 of the Constitution would be illusory. Leaders have a special duty to ensure that their followers do not deny the rights of fellow citizens and they must not instigate unlawful and undemocratic action by their followers.

It is deeply disappointing that Cosatu leaders like Zwelenzima Vavi, somebody I have always held in high regard, would stoop to such a low.

Some commentators have argued that the DA was irresponsible to march on the Cosatu headquarters and that it was strategically wrongheaded. But this is a red-herring. One might well believe that it was unwise for the DA to march on Cosatu headquarters (or that they will not win any votes in this way), but there is no law in South Africa prohibiting one from being unwise. In fact, the Constitution requires the Police to protect even those who we believe are acting unwisely from the intolerant and undemocratic attacks by fellow citizens.

The Police also has a duty to protect marchers from intimidation and attack. There might be cases where intolerant citizens spontaneously begin to threaten marchers and the Police must then step in to protect the marchers. If they cannot do so, they may try to defuse the situation by diverting the march. But where leaders in effect call on supporters to deny other citizens their democratic rights, the Police has a positive duty to deploy the necessary resources to protect such marchers. The Police did not (or could not) stop Cosatu members from massing and attacking the DA marchers, suggesting that the Police is partly to blame for the ensuing bloodshed.

Lastly, I am not an economist so I do not have a strong view about whether the youth wage subsidy is a good thing or a bad thing. But if Cosatu wants to convince people like myself that it is a bad idea, they will have to present arguments to that effect. They sure as hell will not convince me of their view by stopping others from expressing the contrary view.

In fact, responding to a peaceful protest march with violence would suggest that Cosatu does not have a sound and convincing argument that it thinks will convince the millions of unemployed youth that a policy aimed at creating youth employment is a bad thing. Maybe there are such arguments, but in the absence of a cogent and sound response from Cosatu, many people will be left with the perception that Cosatu is protecting the interests of its members and do not care much about the unemployed who, after all, are not constituents of Cosatu because they are unemployed and cannot join a union.

Tribalism has bedevilled politics in many parts of Africa, referring as it does to the possession of a strong cultural or ethnic identity that separates one member of a group from the members of another group, an identity often deployed to facilitate political mobilisation of that tribe against perceived enemies and threats. Often tribalism goes hand in hand with chauvinism, the notion that one’s own tribe is culturally, spiritually and morally superior to those who do not belong to ones tribe. Tribalism is thus obviously divisive and exclusionary and Nelson Mandela, preaching unity in diversity, warned of the dangers of tribalism in our democratic state.

Tribalism is also, on a personal level, stifling and oppressive and not easily squared with the notion of the protection of human dignity, which assumes that we all have some agency to decide for ourselves who we are and how we want to live. It assumes that because one shares certain characteristics, cultural attributes, a language or a particular kinship bond with others, one should think and behave like the group and associate with it. It demands loyalty to the group and conformity to its beliefs and its political project – no matter how obnoxious, oppressive or downright murderous that political project might be.

This kind of identity politics is by its very nature conservative and intolerant of difference (differences within the group as well as differences between the group and those who do not belong to it). Tribalists usually do not embrace the full spectrum of human possibilities as it sees identity primarily or – in extreme cases exclusively – in tribal terms. But in order to live meaningful lives it is important to embrace and celebrate the multiplicity of overlapping identities that make us who we are.

That is why I am not a great fan of “Afrikaners” (or Zulu’s for that matter) organising around their tribal identity, as if the architects of apartheid were correct and as if there are only minority groups in South Africa – all members of different tribes – who must therefore organise around their tribal identities to protect or advance their own financial and political interests.

I am a white, Afrikaans speaking South African. But I am also a gay, HIV positive, constitutional law professor; a citizen of the world who travels widely and reads the poetry of Wislawa Szymborska and Wally Serote; a rugby supporter who listens to Zahara and Ntando in my spare time; a loving brother of four sisters; an atheist who would never dream of joining the ATKV and would laugh out loud if I were ever to be confronted by the bizarre exhortations of the local NG Kerk dominee.

Although I am proudly Afrikaans speaking, I am decidedly not an “Afrikaner”. In my eyes an “Afrikaner” is a highly political concept and a problematic one at that; it is an exclusionary identity as it refers to a group of white Afrikaans speaking people who more or less share a political orientation, cultural habits and assumptions, religious beliefs and a persecution complex that would even make Judge President John Hlophe blush. By saying that I am not an Afrikaner, I am not trying to pretend that my forefathers did not enthusiastically enforce apartheid and that I am still benefiting from it as a result. But I am saying that I reject the political label of Afrikaner because it says nothing about who I am, what I think, how I behave, who I am friends with and what makes me comfortable.

So when I read in the papers that the ANC has met with a group of “Afrikaners”, purportedly conveying to the ANC the views of “Afrikaners” about what is wrong with current day South Africa, I wonder who these people are speaking for and I wonder why the ANC is humouring them. It does not help that Afrikaans groups at the meeting included all the usual suspects, the very institutions which developed and implemented and championed apartheid: the Afrikanerbond, the NG Kerk, the Voortrekker Monument, the Afrikaanse Taal en Kultuurvereniging, the Afrikaanse Taalraad and the Federation of Governing Bodies of SA Schools.

Maybe it says something about the rightward turn inside the ANC under Jacob Zuma that the ANC has deemed it important enough to meet with this tribal group and is, in effect, endorsing this kind of tribalism. Maybe it says something about the racism embedded in our society. Why is it that when rich white Afrikaans speakers complain, the ANC is prepared to send a high-powered delegation to speak to them, but when social movements like Khulumani, the Landless People’s Movement or Abahlali baseMjondolo complain, they are mostly ignored.

Maybe it says something about the power of money and the economic power of white Afrikaans speaking South Africans that the ANC jumps when the so called “Afrikaners” complain, but will never bend over backwards like this if the complaints emanate from powerless and economically vulnerable groups.

There are lots to complain about in South Africa and, goodness knows, the ANC has a lot of explaining to do. But I would prefer a non-tribalist engagement with the ANC, one that would not be made possible only because the ANC is able to neatly put me in a box as somebody who fits the political description of an “Afrikaner”. The kind of engagement I am talking about is the engagement by NGO’s and social movements, academics and civil society interest groups – and of course, by all people who know that our Constitution allows them to be active citizens (as citizens, not as members of a tribal group), to protest and engage and argue and ridicule the arrogant and the cynical holders of political power.

Given the fact that section 1 of the Constitution states unequivocally that the Republic of South Africa is one, sovereign, democratic state founded, inter alia, on the values of non-sexism, universal adult suffrage, and a multi-party system of democratic government to ensure accountability, responsiveness and openness, section 211 guarantees no more than a symbolic or ceremonial role for traditional leaders. This is because traditional leadership is by its nature undemocratic and not accountable, responsive or open and hence not compatible with democracy if such leadership is going to be given a governance role.

As Prof Christina Murray pointed out, the fact that traditional leadership has survived at all in the democratic era is quite remarkable. This is because – as in most other parts of Africa – South Africa’s traditional leaders were co-opted by the colonial powers to help it govern rural areas. Ugandan academic Mahmood Mamdani famously described colonial tribal rule as “rule by decentralised despots”. This was also the case in South Africa. In particular, from the early 1950s under the apartheid government, the development of legislative and administrative structures in the Bantustans saw traditional leadership used to enforce apartheid and to act as local government rulers in Bantustans and retain control over black South Africans living in rural areas.

The central government’s power of patronage (which remains to this day in the form of the payment of large “salaries” to traditional leaders) was encapsulated in the apartheid government’s power to depose and install chiefs, making the chiefs an effective tool in implementing apartheid policies. Under the corrupt apartheid system the rewards for compliance could be great. As Maloka and Gordon relate, in the Transkei, where 30 chiefs were deposed between 1955 and 1958 for resistance to the demands of the apartheid government, Kaiser Matanzima of the lesser Thembu royal house won the favour of the apartheid authorities and later became president of the Bantustan.

Murray again:

Colonial and then apartheid structures also meant that chiefs increasingly turned to the government rather than their subjects for support. Van Kessel and Van Oomen say: ‘[S]tate recognition [became] more vital for the chieftaincy than popular support. Chiefs had become civil servants, to be hired, fired, paid and, if necessary, created by the government’. Expected to deliver services with no real sources of income, they used some of apartheid’s most vicious laws to support their enterprise. For instance, under apartheid’s system of migrant labour, African men recruited from rural areas to work on the mines had to have their ‘passes’ and permits renewed annually in their home village. Chiefs administered the pass book system and ran the labour bureaux where permits were renewed – and they received a ‘registration fee’ for their efforts.

Given these facts it is surprising that traditional leaders have managed to ingratiate themselves with the African National Congress in the post-apartheid era. It did so by forming the Congress of Traditional Leaders of South Africa (CONTRALESA) in 1987, just as the uprising against the apartheid state was reaching a new intensity. Chiefs saw the writing on the wall for the apartheid system (and was also being impoverished because of the collapse of the pass law system which generated much of the Chiefs’ income) and turned to the ANC. Nevertheless, during the constitutional negotiations, gender activists and “modernists” completely outwitted and outvoted the Chiefs.

Thus the tepid endorsement of traditional leaders in Chapter 12 of the Constitution as well as several provisions in the Bill of Rights which made clear that cultural rights as well as customary law would henceforth be subject to the discipline of the other provisions of the Bill of Rights – including section 9 which prohibits unfair discrimination on any ground – including sex, gender and sexual orientation.

These provisions were unsuccessfully challenged by CONTRALESA during the certification of the 1996 Constitution by the Constitutional Court. In that judgment the Court made the following statement about the difficulties of marrying a system of traditional leadership with democracy:

In a purely republican democracy, in which no differentiation of status on grounds of birth is recognised, no constitutional space exists for the official recognition of any traditional leaders, let alone a monarch. Similarly, absent an express authorisation for the recognition of indigenous law, the principle of equality before the law … could be read as presupposing a single and undifferentiated legal regime for all South Africans with no scope for the application of customary law – hence the need for expressly articulated CPs [Constitutional Principles] recognising a degree of cultural pluralism with legal and cultural, but not necessarily governmental, consequences.

But despite the incompatibility of undemocratic traditional leadership with a constitutional democracy, some elements of traditional leadership and customary law were retained. This attempt to accommodate the chieftaincy – despite its tainted past as enforcers of apartheid – was animated by both emotional as well as a practical considerations.

Given the colonial encounter and the devastation it wrought on Africans, traditional leaders have been able – despite their dark, collaborationist past – to promote themselves as symbols of the dignity of African communities and cultures – supposedly untainted by colonialism. Although it is, of course, not possible to return to a pre-colonial era in which traditional leaders, applying customary law untainted by the ravages of capitalism and the greed and dishonesty that always accompanies it, there is a strong yearning – sometimes expressed and sometimes unspoken and unexamined – for such a symbolic return to a different way of life which would signal some kind of rejection of colonialism and European imposed structures and legal regimes.

Second, millions of South Africans still live under a system of customary law, which often provides an easy and cheap mechanism to resolve disputes. Given the fact that many rural citizens are not able to gain access to magistrates courts because such courts are far away from where they live and because they lack resources to make effective use of such courts, and given the fact that, culturally, the common law or the legislation passed by Parliament do not always speak to the ways they live, organise their lives or their attitudes towards those in their community, customary law still thrives in some parts of South Africa.

It is against this background that traditional leaders (who are the main interpreters and enforcers of customary law) are making a political comeback. But because many aspects of customary law are incompatible with the Constitution, given that traditional leaders are not democratically chosen and are in no way independent (as they are paid and can be removed by the government) and given, further, the fact that many traditional leaders have been corrupted by money and greed, there are serious problems with the system relied on by so many people living in rural areas. While the system works relatively well in some places, in others it has been abandoned.

It is therefore curious that with the Traditional Courts Bill, the government is seeking to re-impose a fundamentally undemocratic system that is incompatible with the separation of powers and an independent judiciary – even on those communities who have rejected it. Why our democratic government would propose to pass a law that would potentially bolster the autocratic powers of unelected Chiefs remains difficult to fathom.

Perhaps the answer lies in naked electoral politics. The move therefore might have much to do with the perception among some ANC leaders (which might not be true) that by cosying up to Chiefs the ANC will be gaining more votes in rural areas. It presupposes that Chiefs are universally popular – which they are not – and that rural people by and large will not or cannot think for themselves and will allow themselves to be told how to vote by their respective Chiefs.

Where Chiefs are wise and benevolent and where loyalty to a Chiefs is strong, a Chief might well have an important influence on his “subjects”, but in other areas it is far from clear that support for the ANC by corrupted and unpopular Chiefs will translate into a mass vote for the ANC.

In any event, the Traditional Courts Bill in its current form is clearly incompatible with the Constitution and even if it is passed it will never stand the test of constitutionality. Why some in the ANC therefore seem to be hell-bent on passing this law – despite the dubious gains – remains a mystery.

However, perusing their website, one cannot help but wonder whether Contralesa (pictured below) is not also spurred on by the far less noble goal of self-enrichment. Contralesa thus complains that traditional leaders are being discriminated against:

Traditional leaders of all ranks, i.e. kings, inkosi (chiefs) and inkosana (headmen), are, like politicians in government, public office bearers.  They are entitled to be remunerated in a manner commensurate with their responsibilities and status. The truth, however, is that in this regard traditional  leaders are discriminated against. The best that they receive is a basic salary without the concomitant allowances such as medical aid, motor vehicle  allowances, pension benefits, etc. Due to lack of uniformity in the manner in which provincial governments treat the institution, some traditional  leaders have been provided with motor vehicles, while others have not. Needless to say, this gives rise to resentment and annoyance on the part of  those who do not get this form of support.

Kings and Queens currently earn over R900 000 a year, while other traditional leaders earn between R180 00 and R650 000 a year. Not being provided with a free vehicle at taxpayers expense must therefore cause serious financial hardship for traditional leaders, but not to the extent that they are not prepared to engage in robust engagement about important issues of the day (other than the salaries and benefits paid to them by the taxpayer).

Last year The House of Traditional Leaders, packed with the members of Contralesa, submitted a proposal to the Constitutional Review Committee of the National Assembly to amend section 9 of the Constitution. This Committee, set up in terms of section 45 of the Constitution, has to review the Constitution annually, but in the past 17 years they have rejected every single proposal made to it for the amendment of the Constitution out of hand. The Committee is chaired by Nkosi Sango Patekile Holomisa, who also happens to be the President of Contralesa.

At this year’s committee sittings, most proposals were again dismissed, but not the proposals to change the property clauses and those concerning the abolition of the prohibition to discriminate against gay men and lesbians. The House of Traditional Leaders suggested a redrafting of the Bill of Rights so that it would in future be legal to discriminate unfairly against gay men, lesbians and other sexual minorities, and the Review Committee decided to refer this matter (along with the proposed amendments to the property clause) the political parties represented in the National Assembly for discussion and consideration.

This means that the various Parliamentary caucuses of political parties represented in Parliament will soon have to decide whether they support unfair discrimination against people they might believe are not like them, or whether they will affirm their commitment to non-discrimination and the respect for the human dignity of all South Africans, the very bedrock on which the Bill of Rights in the South African Constitution is founded.

The decision of the Committee not to reject this dehumanising and insulting proposal out of hand (as it has done with all other proposals over the past 17 years) suggest that Holomisa believes that it is completely reasonable to ask political parties to consider whether they support unfair discrimination against fellow South Africans and whether they believe that it is necessary to endorse the denial of the human dignity of fellow South Africans.

Given South Africa’s history, this is a shocking move. The apartheid government believed that some people were sub-human because they were black or female or gay, lesbian, transgendered or intersexed and enforced a dehumanising set of laws to give effect to this belief and to try and affirm their supposed superiority as white men. But in the very act of enforcing this kind of discrimination, they affirmed the opposite, namely their own moral inferiority.

As a direct response to this history of dehumanisation the drafters of the Constitution, endorsing the view that all human beings possess an inherent human dignity and are therefore of equal moral worth, prohibited unfair discrimination against individuals regardless of their race, sex, gender or sexual orientation.

The House of Traditional Leaders, on the other hand, seems to believe that some of us are not fully human and that it is therefore imperative that the state should be allowed unfairly to discriminate against us merely because we happen to be emotionally and erotically attracted to members of the same sex and because we do not conform to a specific notion of “normality” created and perpetuated by white, colonial missionaries, a norm ironically and tragically adopted by traditional leaders infected with the ideas of South Africa’s colonisers.

It might well be that traditional leaders are not aware that their support for unfair discriminatory measures against gay men, lesbians and other sexual minorities stem from the colonial encounter and that their fear of (and disgust towards) us stem from their internalisation of the values of the colonial master. It might also be that they are not aware that such fear and disgust often stem from an unacknowledged or unwitting anxiety about their own sexual identity.

But the drafters of our Constitution knew that equality is indivisible and that one cannot truly affirm the human dignity of all if one endorses unfair discrimination against a marginalised and oppressed minority merely because such a minority is viewed as different from oneself (or from who one believes or pretends one is).

The fact that the Committee has decided not to reject this deeply reactionary proposal out of hand, suggests that some of its members endorse inequality and prejudice and support an imposition of uniformity and the concomitant suppression of all difference. It suggests an intolerance of those who do not conform to gender or sexual stereotypes or to some other non-existing or ephemeral norm, created and perpetuated to enforce the continued dominance of patriarchy. Either that or the members of the Committee are prepared to flirt with these notions so roundly rejected by the drafters of our Constitution and by the ANC in its constitutional proposals for short term political gain.

In Minister of Justice v Coalition for Lesbian and Gay Equality Justice Albie Sachs noted that: “the success of the whole constitutional endeavour in South Africa will depend in large measure on how successfully sameness and difference are reconciled.” He continued by warning:

Equality means equal concern and respect across difference. It does not pre-suppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a levelling or homogenisation of behaviour but an acknowledgment and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalisation, stigma and punishment. At best, it celebrates the vitality that difference brings to any society.

The acknowledgment and acceptance of difference is particularly important in a society like South Africa where perceived racial differences were used to oppress the majority of citizens. As Sachs pointed out:

The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognising and accepting people as they are. The concept of sexual deviance needs to be reviewed. A heterosexual norm was established, gays were labelled deviant from the norm and difference was located in them.163 What the Constitution requires is that the law and public institutions acknowledge the variability of human beings and affirm the equal respect and concern that should be shown to all as they are. At the very least, what is statistically normal ceases to be the basis for establishing what is legally normative. More broadly speaking, the scope of what is constitutionally normal is expanded to include the widest range of perspectives and to acknowledge, accommodate and accept the largest spread of difference. What becomes normal in an open society, then, is not an imposed and standardised form of behaviour that refuses to acknowledge difference, but the acceptance of the principle of difference itself, which accepts the variability of human behaviour.

Those who believe that it is reasonable to debate whether some South Africans should be afforded equal concern and respect, are likely also those who believe that the state has a right to impose a standardised form of behaviour on all of us in order to eradicate all forms of behaviour which do not conform with what a small group of pampered patriarchs believe is acceptable (or in their financial interest). This is a small group of powerful men who might well believe that all outward manifestations of love and emotional affection that do not conform to what  they believe is in their interest must be suppressed in order  to retain and expand their power over what they believe to be their subjects: younger men; all women; and homosexuals.

The proposals must still be debated, but the very fact that it will be debated is dehumanising to those of us who must now wonder whether people like Holomisa believe that we are subhuman and therefore deserve to be unfairly discriminated against, vilified and (followed to its logical extreme) eventually raped and killed. Ironically, some of us will recall the depraved immorality of the patriarchal enforcers of apartheid and will know in our hearts that by the very act of raising this issue, the members of the Committee and the House of Traditional Leaders are merely affirming their own moral inferiority.

Today, 18 years later, many South Africans are not free — at least not in the sense that they have access to the necessary financial and human resources to make the kind of life choices that could help them to live meaningful and dignified lives.  But it is important to remember how bad things were for most citizens during the apartheid era, not to excuse or justify the excesses and arrogance of some in government today, but to remind ourselves that the glass is at least (still) half full.

I am always amused when I read some of the most outrageous and angry posts on Blogs which accuse our government of almost everything from genocide to Nazism (the latter insult is usually hurled at anyone supporting redress measures based on race, sex or disability).  If these posters had written the same kind of thing during the apartheid era they would soon have received a visit from the Security Branch. They may even have been arrested or, worse, would have disappeared, never to be heard of again (or their charred bodies found in shallow graves years later).

During the various states of emergency one would never have known what was happening in the country if one only read the newspapers or — god forbid — watched the propaganda on the SABC news programmes. These were all heavily censored and the SABC actively spread false propaganda as part of its total strategy against what the Nats called the “Total Onslaught”. (How quaint and far removed from reality this kind of fascist language sounds today.)

It was only through whispered conversations and by experiencing the disconnect between what was happening around one and what the papers said was happening, that one could get a sense at all of how vicious and brutal the apartheid state was acting in order to try and repress an ever spreading revolt against the state.

Today it would be unthinkable that our government would announce a State of Emergency, that it would send in the army to suburbs around the country to terrorise the majority of citizens and that it would close down newspapers critical of the government. Goodness knows, for those of us who somehow thought South Africa is a special nation (why I can’t for the life of me remember), our government has been a huge disappointment. We expected so much, only to be confronted by a government run by ordinary politicians. After a few years in power, our government started behaving like people in power in many other parts of the world, instead of like the paragons of virtue and the champions of the poor and the marginalised like they promised us they would.

We are just another developing country struggling with the demons of colonialism — albeit one with lots of potential.

But perhaps, as we celebrate Freedom Day, it is important to remember that living in a fairly normal country where politicians lie and cheat and steal, where most citizens try to make a better life for themselves despite the venality of some of their neighbours and many of the politicians, is not that bad — especially for those of us with jobs and access to food and health care. Although many of us — rather naively, perhaps — hoped for better, the working poor and middle classes — including all the white people moaning and complaining about the country “going to the dogs” — are far better off than we were in 1994 (both economically and in terms of our freedom to live our lives as we please). It is the unemployed who have real gripes with our government, but for the moment there has been no sustained and organised revolt against the revolting greed of the politicians and the business class.

But our Constitution is one of the most magnificent legal documents ever created. The judgments of our Constitutional Court are read and studied across the world and have made a real impact on the lives of many (if not enough) citizens. Civil society seems to be emerging from its post-1994 slumber and is stirring, challenging absurd moves by the governing party like the proposed Secrecy Bill and Traditional Courts Bill.

Despite our giggling President who never did answer the corruption charges against him, despite the racisms and sexism and homophobia that still haunt our land, despite the cesspit of corruption seemingly engulfing our Police Service, many South Africans are getting along with life as best they can. More and more of us are realising that our government is not that special, and that we cannot rely on our government alone to improve our lives, that we have to do it for ourselves.

Siyazenzela!

Happy Freedom Day.

Minister Nathi Mthethwa, who mislead the public last week about the use of a secret police fund to pay for a “security fence” around his home and has not yet apologised for misleading us, and President Jacob Zuma, who has been linked to Mdluli but has not made any statements about his reinstatement and the order by his Police Minister to stop an investigation into Mdluli’s alleged corrupt activities, owe citizens an explanation. In the absence of such an explanation all reasonable people will be hard pressed not to conclude that the Minister and the President – if not themselves implicated in this web of alleged corruption – is condoning it for purely short term political purposes.

]]> http://constitutionallyspeaking.co.za/corruption-and-political-expediency-an-illustrated-guide/feed/ 71 http://constitutionallyspeaking.co.za/how-to-make-an-asa-of-yourself/ http://constitutionallyspeaking.co.za/how-to-make-an-asa-of-yourself/#comments Fri, 20 Apr 2012 07:05:38 +0000 Pierre De Vos http://constitutionallyspeaking.co.za/?p=5818 The Advertising Standards Authority of South Africa (ASA) has made several highly controversial rulings in recent times, appearing hell bent on making an ASA of itself. Last year it ruled that an advertisement for Axe deodorant which showed a winged creature falling from the sky, ostensibly attracted to a man who has used Axe, was in breach of its code because the commercial set out to communicate that the new Axe fragrance is so irresistible that even angels will be enticed by it. The problem for ASA was that the angels were seen to “forfeit their heavenly status” (perhaps because it is well known that angels exist and live in heaven).

Now it has ruled that it cannot make any ruling on whether completely misleading and dishonest government adverts promoting the Secrecy Bill contravenes the Code. The Right2Know campaign had complained about these ads, invoking section 4.2.1 of the Code. This section states that:

Advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer.

In refusing to consider the merits of the case, ASA invoked section 2.4 of part I of the Code which states that:

To the extent that any advertisement:

· Expresses an opinion on a matter which is the subject of controversy; and
· That controversy involves issues within the areas, broadly defined, of public policy and practice, then that opinion shall not be subject to the provisions of the Code relating to misleading claims.

This exclusion is obviously aimed at those ads in which a controversial opinion is expressed about matters of public policy to the extent that such opinions are expressed. Thus, if an add expresses the opinion that etolling is a bad thing, that motorists should oppose the introduction of etolls and that etolls are being imposed by a government with no respect for citizens, it will not be possible for the government to complain about the add on the basis that the opinions expressed in the ads are incorrect. This is because opinions, by its very nature, are not easily verifiable as either true or untrue.

But surely the Secrecy ads are fundamentally different. If the adds promoted the Secrecy Bill by expressing the opinion that South Africa needed this law to protect the national security of the state, ASA would have been prevented from considering whether the ads are misleading or not, because the adds would express an opinion about whether the Bill is needed or not. Reasonable people may well differ about whether this is indeed the case.

But this is not what the ads do. They do not purport to express an opinion only, but also purport to inform the public about facts, namely what the Secrecy Bill is in fact aiming to achieve. They make what appear to be factual assertions about the scope and nature of the Bill. One of the television adverts presents a seven year old child (see below) saying that: “My government knows who I am because my government protected my birth certificate.” It then continues that the “Protection of State Information Bill is about getting serious, serious about protecting your information.”

The advertisement therefore states as fact – both in words and through visual presentation – that the Secrecy Bill is about protecting information relating to birth certificates. This is a factual claim which is untrue. To put it differently, this is a blatant lie. The exclusionary rule explicitly states that the exclusion only applies to the extent that it expresses an opinion. Where an advert contains both opinion and assertions of fact, the assertions of fact remain to be considered by ASA in terms of its rules. But What ASA has done is to refuse to adjudicate on the fal;se assertions because the advert also contains opinion. That is a blatant and obvious misreading of its own Code.

In fact the Secrecy Bill says absolutely nothing about Birth Certificates. Another law, the Births and Deaths Registration Act 51 of 1992, deals with this matter. Section 29 of this Act protects the secrecy of our Birth Certificates, prohibiting any person from publishing or communicating to any other person any information obtained from a birth certificate.

Section 31 of this Act states that it is a criminal offense for any person who has custody of a birth certificate to damage it or destroy it; to make false copies of a birth certificate or a reproduction. The Secrecy Bill does no such thing. The factual claim made in this advertisement is therefore false and is in contravention of section 4.2.1 of the Code. Because the advert purports to make true factual statements, ASA could not plausibly argue that the adverts merely deal with the expression of controversial opinions.

I will give an example to illustrate the distinction I am making but which ASA seemed unwilling or incapable of making. If someone produces an advert stating that President Jacob Zuma is a bad President because he is soft on corruption, that advert would be expressing an opinion and ASA would not be able to make a finding about the advert on the basis that it is misleading. Whether President Zuma is soft on corruption or not is itself a matter of opinion.

However, if that advert stated instead that President Zuma is a bad President because he has been convicted of rape, then the advert would include an assertion of fact that is demonstrably false and ASA would then not be able to invoke section 2.4 in order not to make a ruling on the advert. President Zuma has never been convicted of rape and the advert would therefore be false and misleading.

Similarly, the Secrecy Bill adverts state as fact that the Secrecy Bill is about matters with which the Secrecy Bill does not deal at all. It is therefore not a matter of opinion about whether these adverts are false and misleading. It is a matter of fact.

I guess one should not expect any semblance of logic to emanate from a body who seems to be prepared to believe that angels exists, but it is rather troubling that ASA has been too cowardly or subservient to make a ruling on these false and misleading adverts merely because this would have been politically awkward.

Which brings us to the subject of this post, Police Minister Nathi Mthethwa, and his alleged abuse of a crime intelligence slush fund to fund a R200 000 security wall around his private property. Last week City Press alleged that almost R200 000 from the slush fund was used for renovations to Mthethwa’s house in KwaMbonambi, northern KwaZulu-Natal. City Press pointed out that these payments were illegal as the secret fund can only be utilised to finance secret covert crime intelligence operations. Security renovations at the homes of Cabinet ministers are done by the department of public works and have to be declared to Parliament.

But the problem for Mthetwa was more acute than the allegations of the unlawful use of a slush fund. The problem is that the slush fund is controlled by General Richard Mdluli, the head of crime intelligence, who was facing charges of murder, fraud and corruption.  Hawks spokesman McIntosh Polela astonishingly conceded last week that acting police commissioner Lieutenant-General Nhlanhla Mkhwanazi had, on the orders of Mthethwa, instructed the Hawks to halt all investigations involving the crime intelligence department. If this is all true, then it would mean that Mthethwa had ordered an end to a criminal investigation which might well have implicated him.

In any event, the Minister is not legally entitled to instruct the Hawks to halt any investigation. It is true that section 17I(2) of the now unconstitutionally declared section of the Police Service Act states that a Ministerial Committee may determine: (a) policy guidelines in respect of the functioning of the Directorate; (b) policy guidelines for the selection of national priority offences by the Head of the Directorate; (c) policy guidelines for the referral to the Directorate by the National Commissioner of any offence or category of offences for investigation by the Directorate; (d) procedures to coordinate the activities of the Directorate and other relevant Government departments or institutions. The Ministerial Committee is authorised to “oversee the functioning of the Directorate”.

This means, first, that the Minister cannot issue any instructions to halt an investigation. Second, that if meddling were to take place, it had to be done not by the MInister but by the Ministerial Committee in the form of “policy guidelines”. If Minister Mthethwa did indeed give the instruction as claimed by Polela, this was therefore not legal.

If the Ministerial Committee issued policy guidelines aimed at halting the investigation, it would demonstrate the correctness of the Glenister judgment. The current situation also seems to illustrate better than any abstract or academic exercise why the current draft legislation purporting to give effect to the Glennister judgment to create an independent corruption fighting unit, does not in fact comply with that judgment.

The draft legislation allows the very Minister who is alleged to have instructed that the investigation implicating him in corruption should be stoppped to oversee the new corruption fighting unit. A newly proposed insertion of section 17DA provides wide discretion for the Minister to suspend and ultimately to remove the Head of the Directorate from office. In terms of the proposed amendment, the Minister is empowered in terms of section 17DA(2)(a) provisionally to suspend the Head of the Directorate, pending an “enquiry into his or her fitness to hold office as the Minister deems fit” and may then remove him or her from office for misconduct; on account of ill-health; on account of incapacity to carry out his or her duties of office efficiently; or on account thereof that he or she is no longer a fit and proper person to hold the office concerned.

This means if the Minister had given an unlawful instruction to stop an investigation into corruption in which he is allegedly involved, and the head of the Hawks had refused to obey this, in terms of the draft legislation the Minister would have been able to suspend the head of the Hawks without any pay and ultimately to have the head of the Hawks fired on the vague ground that he was inefficient.

That is why the Glenister judgment insisted that any corruption fighting unit had to be free from political influence and interference (something clearly not the case at present) so that it can do its job effectively, on the one hand, while remaining financially and politically accountable, on the other hand. As the judgment emphasised, it was essential for the body to be sufficiently independent so as to enable the anti-corruption agency to function effectively without being exposed to undue political influence.

Legal mechanisms must be established that limit the possibility of abuse of the chain of command and that will protect the agency against interference in operational decisions about starting, continuing and ending criminal investigations and prosecutions involving corruption. An effective corruption-fighting unit thus needed to meet two basic interrelated requirements. It needed to be both structurally and operationally independent — in accordance with the fundamental principles of the South African legal system and in line with South Africa’s international law obligations — to enable it to carry out its functions effectively and free from any undue political influence or undue intervention.

If anything illustrates the wisdom of this finding, it is the facts surrounding the implication of the political boss of the Hawks in corruption and the attempted cover up of the corruption by allegedly ordering a halt to the investigation.

I would guess that this is why, when confronted by these allegations last week, Mthethwa asserted: “The minister wishes to put on record that neither his house in KwaZulu-Natal nor those of his immediate relatives were built, refurbished and paid for with any source of public funds or taxpayers’ coffers.” Tellingly, so it seems to me, the denial seemed forthright and categorical, yet it did not state that funds were not used for the security upgrade involving the building of a security wall, leaving open a tiny gap for the Minister to wiggle through if caught out in a lie.

City Press reported this week that City Press it has in its possession the following hard evidence proving that the MInister had misled the public:

» The risk assessment that was done at Mthethwa’s property by Brigadier T Tshika of the counterintelligence division on Mdluli’s instruction in June 2010;

» A secret services account claim form, dated September 14 2010, on which a Lieutenant Colonel DG Naidoo requested R70 738.60 “to carry out security upgrades at the minister’s official residence”. The claim was approved by then chief financial officer of crime intelligence Major General Solly Lazarus;

» A second secret services account claim form, dated December 13 2010, on which Naidoo requested R57 146.30 “to purchase building material and hardware . . . to carry out security upgrades at the minister’s official residence”, which was approved
by Lazarus;

» A third secret services account claim form, dated January 31 2011, on which Naidoo requested R67 696.55 “to purchase building materials and hardware . . . to carry out security upgrades at the residence of the minister of police”, approved by Lazarus.

This is rather damning of the MInister, who appears to have misled the public with his denial. But what happens now? Obviously, if it turns out that the Minister did lie about the slush fund and then did order the suspension of the investigation into his alleged involvement in corruption, he needs to be fired. Meanwhile the Public Protector may well be able to investigate the Minister for breaches of the Executive Members Ethics Act, read with the Ethics Code.

In terms of section 2.1 of this Code, Members of the Executive must to the satisfaction of the President or the Premier, as the case may be: (a) perform their duties and exercise their powers diligently and honestly; (b) fulfil all the obligations imposed upon them by the Constitution and law; and (c) act in good faith and in the best interest of good governance; and (d) act in all respects in a manner that is consistent with the integrity of their office or the government.

Section 2.3 of the Code states that Members of the Executive may not, amongst others, (c) act in a way that is inconsistent with their position; (d) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person; (f) expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests.

If the allegations are true that the Minister had relied on the crime intelligence slush fund to build a wall around his private home and had then misled the public about it, he would be in clear breach of these provisions. In terms of the ACT, the Public Protector is empowered to investigate breaches of the Code on the receipt of a complaint. The President is then supposed to act on the complaint. If the Public Protector finds the Minister guilty, the President would be expected to fire the Minister as happened with the Minister of Public Works, but in this case this is less likely to happen because the Minister is a political ally of the President and the elective conference is only a few months away.

But President Zuma may be put in a very tight spot. After all, if, after a guilty finding, the President fails to act, this will further cement the public perception that President Zuma is more intent on securing his own future than in dealing with corruption and maladministration. This may, ironically, be used by President Zuma’s political opponents to question his probity and to diminish his standing before the elective conference in December. Whether he will then fire the Minister or not may well depend on whether the Minister was privy to any incriminating knowledge regarding the President himself.

Lurking at the heart of these missives, it seems, is a narrow, completely diminished, understanding of democracy. Minister Nzimande seems unaware of (or he is ideologically opposed to) the fact that our Constitution establishes more than a representative form of democracy in which passive voters are given the opportunity every five years to vote for the party of their choice (which the state broadcaster tells them should be the ANC). In his latest missive, he has the following to say about a supposed liberal ideological third force:

As part of the ideological armoury of the anti-majoritarian liberal offensive are attempts to assemble elite voices in society that appear to be either neutral or authoritative to try and discredit the ANC. The mainstream liberal media, some liberal NGOs, and of late business voices like Reuel Khoza, are all part of an ‘ideological third force’, decrying the ‘threats’ to our constitution and ‘lack’ of leadership in the ANC and society. Similarly, all of our institutions supporting democracy are either affirmed or condemned in the media, purely on the basis of whether they find positively or negatively against the ANC or government, often irrespective of the issues at hand.

That, according to Nzimande, is why the masses should be mobilised behind the ANC/SACP programme of action (as if anyone belonging to the masses are not capable of thinking for themselves and having a view that contradicts that of the movement) and why cadres should not believe a word they read in the print media (the SABC being ideologically less problematic and therefore more believable – unless they report on Julius Malema).

It has not occurred to Minister Nzimande that there might be reasons why the print media are criticising the movement and why NGO’s are taking the government to court. There might be very good reasons for protesting when our government does something reactionary, venal, corrupt or undemocratic. Whether the criticism is provided by an 84 year old granny who voted for the ANC or a newspaper editor – it remains valid no matter what Nzimande thinks. He has not considered the possibility that many of the ANC critics are fighting for a better life for themselves or the communities they serve, something the government is not doing so well because many of its leaders are fighting with each other for positions, which will bring with them the status that a blue light convoy and stays at the Mount Nelson can bestow, along with immense wealth that flows from access to government tenders and bribes by others who wish to access these tenders.

When the President tells an interviewer of The Sowetan: “We don’t want to review the Constitutional Court, we want to review its powers,” a few days before his own case which might revive corruption charges against him is heard by the Supreme Court of Appeal (SCA), one need not have a special ideological hatred for the ANC to worry about a threat to the Constitution. When the President appoints the least qualified and most right-wing member of the Constitutional Court as Chief Justice, and is lauded by the social conservatives and by Blade Nzimande for doing so (Blade saying those who pointed out Mogoeng’s conservative anti-women and anti-gay credentials did so only to spite the President!), then one should surely be aware that liberal and conservative, progressive and reactionary has stopped meaning what it used to mean and that Blade’s rant about an ideological third force is utterly meaningless.

And when North West Human Settlements MEC, Desbo Mohono, says that municipalities need to create stringent by-laws to prevent the “mushrooming” of informal settlements, in effect declaring war on the poor and sounding remarkably like an apartheid era Minister, then any thinking person would surely take Blade Nzimande’s attack against NGO’s and liberals with a pinch of salt. How can one not and begin to think that he is hiding behind his revolutionary language to try and pull the wool over our eyes about the movements true ideology (and ideology that has more to do with wealth accumulation and demonization of the poor than with providing a better life for all)? By the way, the MEC seems to have given the game away on Saturday when he made the following statement:

I would like to urge all local municipalities, to come up with rigid by-laws that would ensure that we do not see another informal settlement mushrooming in our land… We cannot win this battle if we continue to be held to ransom by our people, who continue to occupy land illegally and continue to add numbers to the ever emerging informal settlements.

In this view, it is the people – especially the poor that comrade Blade claims to fight for – who have become the enemy and who is holding the government to ransom by having the cheek of existing and actually wanting to have some kind of roof over their heads every night when they go to sleep. I mean, these people must be part of the liberal ideological third force, cunningly relying on the Constitution which states that everyone has a right of access to housing and placing a positive obligation on the state to take reasonable steps progressively to provide such access to those who need it.

Now, the supposedly liberal NGO’s are the ones who often assist the homeless and those who live in informal settlements and help them to take the government to court when the government that Blade is part of heartlessly evicts the marginalised and vulnerable poor from their often makeshift homes or the dilapidated inner city buildings where they live, often in desperate conditions. The supposedly revolutionary movement of which comrade Blade is a member is often the one who demonises these same people (as the MEC did on the weekend) and who takes steps to try and get them out of sight. (I guess it must be distressing to have to see these informal settlements flash past as one is chauffeur driven in a blue light convoyed R1 million car to another party where one will sip champagne on hehalf of the masses to celebrate the 100 year birthday of the ANC – staying in the Mount Nelson far away from these horrible poor people who dare to want to get a roof over their heads must be so much more soothing and fun.)

In any case, at the heart of all this is a deeply undemocratic attitude to the “masses of our people”, to debate and to criticism of any kind. Citizens are seen as passive voting fodder who must be galvanized every five years to vote for the movement and otherwise must shut up. In the Doctors for Life case, Justice Ngcobo made it clear that this is not the kind of democracy established by our Constitution. The commitment to principles of accountability, responsiveness and openness, wrote Ngcobo, shows that our constitutional democracy is not only representative but also contains participatory elements. This is a defining feature of the democracy that is contemplated. This means that all citizens (even the liberal ones) have a right to have their say and to participate in the discussion. Not even Minister Nzimande can try and shut up anyone who raises concerns about the manner in which the government is “governing” the country.

When the 84 year old granny, Ntombentsha Phama, who welcomed a TV news camera crew into her home and spoke about her plight, and was then berated by a delegation of ruling party councillors sent by Mbhashe Local Municipality Mayor Nonceba Mfecane, they are showing the same kind of lack of understanding or respect for democracy as Blade Nzimande. During a second visit, this time with Mfecane in tow, Phama was again scolded, given two blankets and a business card, and told to call the mayor – not the media – when she had problems.

Like Nzimande the mayor and his cronies never stopped to think that Phama had a RIGHT to invite the TV cameras into her home and that instead of berating her, they might have done something about the criticism. They never thought that the embarrassment to the ANC came not from the granny, but from the way in which the council had behaved. Similarly, Nzimande does not seem to understand that the criticism of the ANC in the media might – at least sometimes – be based on the fact that the ANC is stuffing up. I guess it is far easier to launch a tirade against the granny or against a so called ideological third force, than actually to governing responsibly and effectively and to deal with the criticism. I find that even those evil liberals in the media will praise the government when it does something well. The only problem is that there is not often that much to praise – unless we set our sights so low that anything the government does better than the apartheid state is seen as worthy of praise.

President Zuma was also a respondent in this case and may still decide to appeal the judgment. If he decides not to appeal, the NPA will have to provide the Registrar of the court with the “reduced record” which the NPA relied on to make its original decision. After looking at this record the DA will then have to decide whether it is worth pursuing this case and whether there is merit in having the decision reviewed by the High Court.

The SCA made the following order regarding the production of this “reduced record”:

the first respondent [NPA] is directed to produce and lodge with the Registrar of this Court the record of the decision [to drop charges against Zuma]. Such record shall exclude the written representations made on behalf of the third respondent [Zuma] and any consequent memorandum or report prepared in response thereto or oral representations if the production thereof would breach any confidentiality attaching to the representations (the reduced record). The reduced record shall consist of the documents and materials relevant to the review, including the documents before the first respondent when making the decision and any documents informing such decision.

When the former acting National Director of Public Prosecutions, Mokotedi Mpshe, announced that the NPA was dropping the charges against President Zuma, he indicated that the representations submitted by the legal representatives of Mr Zuma (as he then was) pertained to the following issues: the substantive merits of the case against Zuma; the argument that Zuma would not receive a fair trial; the practical implications and considerations of continued prosecution; and policy aspects militating against prosecution.

Mpshe made it clear that the NPA “could not find anything with regard to the first three grounds that militate against a continuation of the prosecution”, meaning that the NPA believed it had a winnable case against Zuma and that Zuma would be able to receive a fair trial. The NPA will have to produce the record and the documents which led it to this conclusion.

This means that the documents setting out the strength of the corruption case against Zuma will have to be produced along with legal memorandums dealing with allegations that Zuma would not be able to receive a fair trail because of the way in which the then Scorpions conducted the case. These documents, if made public, could be extremely embarrassing to the President as it might remind South Africans of the fact that a strong prima facie case of corruption exists against President Zuma, a case which he has never answered despite claims at the time that he wanted to clear his name.

But the NPA will also have to furnish other documents which might embarrass former President Mbeki and others who might have plotted against Zuma. This is because the reasons given for the dropping of the criminal charges against Mr Zuma (as he then was), centred on the alleged abuse of the process and as Mpshe’s statement made clear this turned on allegations that there was some manipulation inside the NPA regarding the timing of bringing charges against Zuma.

The NPA decided to drop the charges against Zuma after listening to the recordings of various phone conversations between the head of the Scorpions and other role players. Although Mpshe’s statement is coy on this issue, it appears as if Zuma’s lawyers provided the NPA with these recordings. However, crucially, it appears from Mpshe’s statement that it was not these recordings provided by Zuma’s lawyers on which it relied to drop the charges against Zuma. The following extract from Mpshe’s statement is pivotal: