Constitution

Secrecy Bill less about media freedom, more about national security state

Jan 31st, 2012

Not enough South Africans understand that the Protection of State Information Bill (also popularly known as the Secrecy Bill) now being considered by the National Council of Provinces (NCOP) is not primarily aimed at muzzling the media. Although in its current form the Bill will have a chilling effect on the media and would probably stop many whistleblowers from leaking sensitive or embarrassing information to the media, the Bill is primarily aimed at shielding the various intelligence agencies and structures from too much scrutiny and at ensuring that the ordinary constitutional checks and balances that apply to other organs of state that exercise public power would not apply to the intelligence services.

Because we get most of our information about the Secrecy Bill from the media, it is not surprising that members of the media have focused on their own short-term interests and have argued (not entirely correctly) that the Bill was primarily aimed at muzzling the press and at hiding corruption. But this view fails to consider the broader context within which the Secrecy Bill is being discussed.

One must recall that this Bill originated with (and was drafted by) members of the intelligence services and is primarily aimed at creating a legal regime that would provide a veil of secrecy behind which our spies would be able to hide. As long as our intelligence services do what they are constitutionally mandated to do and do not abuse their powers, the Bill will, in my opinion, not have as dramatic an effect on the media landscape in South Africa as some commentators have argued.

(Of course, if the Minister of State Security misused this Bill and extended the power of classification to many of the more than 1000 organs of state — as he is empowered to do in terms of the current draft — the Bill may well be used to hide corruption and maladministration on a vast scale, but that was not the primary objective of the Bill.)

Section 199 of the Constitution contains several provisions that signal an understanding on the part of the drafters of the Constitution that security services could easily be misused by the government of the day. Thus it states that the security services must act, and must teach and require their members to act, in accordance with the constitution and the law; that national security must be pursued in compliance with the law, including international law; and that no member of any security service may obey a manifestly illegal order. The security services are obliged to respect constitutional rights and they are prohibited from prejudicing or furthering the interests of political parties.

Dr Laurie Nathan, who has written extensively on the South African Intelligence Services and was also a member of the Ministerial Review Commission on Intelligence (along with Joe Matthews, a former Deputy Minister of Safety and Security, who chaired the body, and Dr Frene Ginwala, the first Speaker of our democratic Parliament), has warned that:

There is ample historical evidence that politicians and intelligence officers can abuse these powers [of intelligence agencies] to infringe rights without good cause, interfere in politics and favour or prejudice a political party or leader, thereby subverting democracy. They can intimidate the government’s opponents, create a climate of fear and manipulate intelligence in order to influence state decision-making and public opinion. Given these dangers, democratic societies are confronted by the challenge of constructing rules and controls that prevent misconduct by the intelligence services without constraining the services to such an extent that they are unable to fulfil their duties. In short, the challenge is to ensure that the intelligence agencies pursue a legitimate mandate in a legitimate manner.

The Review Commission (which reviewed the National Intelligence Agency (NIA); the South African Secret Service (SASS); the National Intelligence Coordinating Committee (NICOC); the National Communications Centre (NCC); the Office for Interception Centres (OIC); and Electronic Communications Security (Pty) Ltd)) reported that the intelligence agencies in South Africa have not fully embraced the constitutional system with its requirements for openness, transparency and accountability and have not always adhered to the letter and spirit of the Constitution and the law.

Although South Africa’s intelligence legislation and governance arrangements have undergone dramatic transformation since the end of apartheid in 1994 and now compare favourably with those in established democracies, there seems to be a disconnect between what the law requires and what happens in practice.

For example the Review Commission found that the Minister of Intelligence has issued secret regulations that are known only to the intelligence community. The intelligence legislation permits the Minister to do this despite the constitution’s clear statement that regulations must be accessible to the public. Similarly, the Constitution provides that the Auditor General’s reports must be submitted to the relevant legislature and must be made public. Nevertheless, the audit reports on the intelligence services are presented only to the parliamentary Joint Standing Committee on Intelligence (JSCI) and are classified.

As the Report points out (and as Dr Nathan has pointed out elsewhere), despite the fact that the Constitution states that national budgets and budgetary processes must promote transparency and accountability, the annual budgets of the intelligence services are secret; they are reviewed by the JSCI but are not presented to Parliament.

By executive decision the members of the intelligence services are excluded from the labour rights in the Bill of Rights, but this limitation of rights is not covered by legislation as required by the constitution. The Review Commission argued that these deviations from the Constitution are unsound and impermissible. This view was shared by the National Treasury with respect to the intelligence budgets; by the Auditor General with respect to the audit reports on the intelligence services; by the Inspector General and the State Law Adviser with respect to labour rights; and by the Inspector General with respect to the use of intrusive measures.

Most seriously, the Review Commission found that intelligence services regularly infringed on the right to privacy through intrusive methods that are unconstitutional. For example, it found that the NCC, which intercepts electronic signals such as cell phone conversations, is engaged in eavesdropping that is unconstitutional and unlawful. This is because the centre fails to comply with the requirements of the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002, which prohibits the interception of communication without judicial authorisation.

It is in this context that the Secrecy Bill must be evaluated. It may be that the Review Commission Report was acted upon decisively and that the culture of secrecy and lawlessness reported on in the Commissions finding have been addressed in a bold and decisive manner. But, given the fact that it is always difficult to change a culture of secrecy that is deeply entrenched, it will not be surprising if the serious problems with the Intelligence Services (which threaten the health of our constitutional democracy) have persisted or have even become worse.

Imagine what would happen if the Intelligence Services tapped your phone (or the phone of any other person considered — rightly or wrongly — to be an “enemy of the state”), if they abducted you (or any other person considered — rightly or wrongly — to be an enemy of the state”) and “rendered you to Pakistan, the USA or Syria to be tortured and maybe killed. What would happen if these institutions with access to mountains of information and the technology and manpower to run disinformation campaigns and terrorise people, embarked on secret projects to destabilise civil society groups, social movements, labour movements or opposition parties who they perceive to be threatening the stability of the state?

If the state were then to be conflated with the government of the day, what will emerge is a national security state in which the normal laws of the country may not apply as strictly to the intelligence community, while its abuse of power and flouting of the law would be difficult if not impossible to expose without facing arrest and eventual imprisonment for between 2 and 25 years. The Secrecy Bill will then become a powerful weapon to protect this national security state and will protect its agents and the institutions who act in such illegal ways from exposure in the media.

When Moloto Mothapo, from the Office of the ANC Chief Whip, wrote late last year that the Secrecy Bill was essentially a security Bill, not a media Bill, “aimed at protecting the national security of the Republic of South Africa”, this reassurance might have been more illusory than most people might have realised.

It is in this context that claims of the security establishment that the Bill is firmly in line with best international practice must be interrogated. During a National Assembly debate on the Bill late last year, State Security Minister Siyabonga Cwele said: “We have looked at international best practices and there is no country which practises such reckless practice.” He said that even Britain’s Official Secrets Act did not include a public interest defence.

Putting aside the fact that — unlike Britain – South Africa has a written Constitution that contains a set of fundamental human rights which can be enforced by our courts, these claims are not as plausible as one might at first believe them to be. For example, those who claim the Bill contains international best practice, might either be unfamiliar with (or might deliberately be misleading the public about) the fact that in 1995 a group of experts in international law, national security, and human rights, the International Centre Against Censorship, in collaboration with the Centre for Applied Legal Studies of the University of the Witwatersrand, adopted the Johannesburg Principles on National Security, Freedom of Expression and Access to Information in Johannesburg and that the Bill in no way measure up to these principles.

The Principles have been endorsed by Mr. Abid Hussain, the UN Special Rapporteur on Freedom of Opinion and Expression, in his reports to the 1996, 1998, 1999 and 2001 sessions of the United Nations Commission on Human Rights, and referred to by the Commission in their annual resolutions on freedom of expression every year since 1996.

Principle 15 state that:

No person may be punished on national security grounds for disclosure of information if (1) the disclosure does not actually harm and is not likely to harm a legitimate national security interest, or (2) the public interest in knowing the information outweighs the harm from disclosure.

This principle thus captures the so called public interest defence, something that our politicians say is foreign to international law. This claim clearly is not sustainable. This principle is further supported by a whistle blowers provision in principle 16 which states that “[n]o person may be subjected to any detriment on national security grounds for disclosing information that he or she learned by virtue of government service if the public interest in knowing the information outweighs the harm from disclosure”.

Furthermore, principle 18 states that the “[p]rotection of national security may not be used as a reason to compel a journalist to reveal a confidential source”.

If one reads the Johannesburg Principles and one evaluates the provisions of the Secrecy Bill against these principles then it is clear that the Secrecy Bill does not, as our Minister of Secrecy and other officials claim, comply with international best practice (best practice captured in the Johannesburg Principles).

Even if we had no worries about the possible abuse of the Intelligence Services (which would be naive, even in the most progressive state), the Secrecy Bill should therefore raise serious concerns about the power and influence of the security services and the corruption of the state by the various spy agencies whose job it is to obfuscate, lie and hide information (sometimes for a worthy cause and often for a nefarious cause).

But given the content of the Intelligence Review Report (a report authored by a credible expert and two people intimately connected with the ANC and the government it leads), the fact that our Minister of State Security is so adamant on passing a piece of legislation that almost certainly infringes on the right of access to information and the right of freedom of expression protected in the Constitution, must be truly worrying. And the worry stems less from the narrow concerns raised by the media and more from a broader concern about the securitisation of South Africa’s democracy and the potential devastating effect this may have on social movements and other grassroots democratic forces who might pose a challenge to the entrenched interests of a certain faction of the governing party who controls the state.

Why a ten year old agreement cannot authorise deployment of soldiers in our cities

Jan 19th, 2012

by Pierre De Vos.

52 comments

The South African National Defence Force, the Presidency and the DA Provincial government in the Western Cape do not seem to be bothered by the increased militarisation of South Africa, nor by the dangers posed by unleashing heavily armed soldiers not trained for that purpose on ordinary citizens. They apparently see nothing wrong with undermining the oversight and accountability functions of Parliament either — as long as they can project an image to voters that they are tough on criminals. Neither do they apparently see anything wrong with the routine deployment of soldiers, armed with semi-automatic guns, in residential areas.

What will happen when those soldiers open fire on citizens and ultimately kill scores of citizens (much like soldiers used to kill scores of citizens in the last ten years of apartheid in townships across South Africa)? Who will be blamed for such a massacre? Will soldiers be charged with murder and sentenced to jail for killing innocent civilians? Because mark my words, if the routine deployment of heavily armed soldiers to combat crime and intimidate protestors or ordinary citizens going about their business is not stopped, a massacre will occur at some point. It always does in a state where the government of the day conflates the role of the police with that of the military and routinely uses the military to assist the police with ordinary safety and security work inside the country.

In terms of section 205(3) of the Constitution the police service (NOT the military) is tasked with preventing, combating and investigating crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law. Because we are a constitutional democracy and not a military dictatorship, the military should only assist the police service in exceptional circumstances and, as I pointed out earlier this week, only in accordance with strict procedures.

Last week soldiers were involved in a law enforcement exercise in Johannesburg and reportedly assaulted a businessman by slapping him and throwing him to the ground. With a boot on his chest the soldier then allegedly questioned his nationality. (See picture below, taken by Ihsaan Haffejee.) As a South African of Indian descent, they probably assumed he was an immigrant from Asia. Luckily they did not shoot or kill anyone with their heavy weapons while they were out there supposedly searching for counterfeit goods.

Curious onlookers to this operation in the bustling CBD of Johannesburg reportedly had stun grenades thrown at them when they gathered to see what was happening. Other onlookers got their faces full of pepper-spray. The Star newspaper reported that one man had his camera confiscated by soldiers after he took pictures of one of them beating a man with the butt of his assault rifle. Do we really want to live in a state where heavily armed soldiers get involved in the assault and intimidation of fellow citizens?

Responding to queries about the legality of the involvement of heavily armed soldiers (allegedly aimed at searching for counterfeit goods, but in reality aimed at intimidating ordinary citizens to prevent them from engaging in political protests), General Ndivhuwo Mabaya stated that the police and the SANDF have a cooperation agreement which covers all their joint operations, that this was approved in 2001 “or so”, and that this blanket agreement allows the deployment of soldiers to assist the Police whenever and wherever.

“The President is not a person,” he said, but “an office”, (albeit an office with several wives, a blue light brigade and a mean singing and dancing routine) “so the agreement and authorisation of cooperation of the two institution signed in 2001 or 2002 is still valid”. He conceded that the President needed to sign an order to deploy soldiers, but argued that the 2001 agreement covers all eventualities. Helen Zille must agree with this argument because her government has requested the deployment of soldiers in several hotspots around Cape Town (in places where poor black people live or which they frequent, of course — I have never seen heavily armed soldiers in Bishopscourt or Bantry Bay).

This is dead wrong — and dangerous to boot. Here is why.

It is a well-established principle of South African constitutional interpretation, that the provisions of the Constitution have to be read together, as the various provisions may relate to one another and often “talk” to each other and has meaning only in relation to other provisions in the Constitution. One cannot determine the purpose of a sub-clause of the Constitution if one does not read that sub-clause in conjunction with surrounding sub-clauses and other related clauses. And as any constitutional lawyer will tell you, constitutional interpretation relies heavily on a “purposive” interpretation of the provisions of the Constitution: one must ask what the purpose of a relevant provision of the Constitution is and then interpret it accordingly to give effect to this purpose.

That is why we must ask what the purpose of section 201 of the Constitution is. That is also why sub-sections 2 and 3 of section 201 of the Constitution must be read together. The purpose is clear: the drafters of the Constitution wanted to avoid a situation in which an unaccountable President (the person, not the office) sent soldiers to fight in foreign wars (without having to declare war on that country). Furthermore they wanted to Prevent an unaccountable President from sending soldiers into the suburbs of South Africa to intimidate protestors and to instil fear in the hearts of citizens in a desperate attempt to cling to power.

The apartheid government did both of these things and no one was ever held accountable for it. The drafters of our Constitution knew better and included section 102 to ensure Presidential accountability for the deployment of troops inside and outside South Africa. Thus, section 102 of the Constitution states:

2. Only the President, as head of the national executive, may authorise the employment of the defence force (a) in co-operation with the police service; (b)in defence of the Republic; or (c) in fulfilment of an international obligation.

3. When the defence force is employed for any purpose mentioned in subsection (2), the President must inform Parliament, promptly and in appropriate detail, of (a) the reasons for the employment of the defence force; (b) any place where the force is being employed; (c) the number of people involved; and (d) the period for which the force is expected to be employed.

4. If Parliament does not sit during the first seven days after the defence force is employed as envisaged in subsection (2), the President must provide the information required in subsection (3) to the appropriate oversight committee.

The President has a duty to authorise deployment of soldiers and when he does authorise such a grave step, to inform Parliament in detail about any deployment of the soldiers, the reasons for the deployment and how many soldiers are deployed in this manner. Reading these sub-sections in isolation, as if the President can provide a blanket authorisation for the deployment of South African soldiers which would cover every possible eventuality, on the condition that he or she provided details of each deployment to Parliament, would completely negate the purpose, meaning and effect of section 201.

Instead of ensuring that the President is accountable to Parliament for what may be life and death decisions, such a reading would require a President (either as a person or as an office) never to have to take responsibility for such a decision and never having to defend it to the democratically elected members of Parliament.

Why this reading is absurd and wrong can easily be illustrated with an example. Recall that section 201 covers situations like the deployment of soldiers as part of an international peace keeping effort or as part of a military campaign that does not involve a declaration of war by South Africa. In the reading of General Mabaya, the President (who, is not a person after all), may in general terms, authorise the deployment of South African troops abroad to fight in wars in which they might well be killed.

When, several years or even decades after such general authorisation, the USA then wishes to invade Iran and asks South Africa to contribute troops to a coalition of the willing or Uganda wishes to invade the DRC and asks South Africa to contribute troops to a coalition of the righteous, this prior “authorisation” (even if given in general terms ten years ago by another administration) would comply with the requirements of section 201(2).

This would render section 201(2) utterly meaningless and would negate its purpose and effect. Section 102(2) requires authorisation by the President because this will hold the President and his or her administration accountable for what would often be highly charged and politically contentious decisions, decisions that might lead to the loss of life of large numbers of South African soldiers. Because a decision of this kind may be politically highly contentious, a President will have to consider all relevant factors — including the possible opposition of voters to sending South African soldiers to die on foreign soil for a cause they do not believe in — before authorising such a drastic step.

Sending troops to Iran, for example, to assist the United States of America (who might be invading a foreign country in order to placate the far-right wing government of Israel or to secure oil supplies for the USA) would probably be opposed by the vast majority of South Africans and by a majority of ANC voters. But if General Mabaya is to be believed, in a case like this our Constitution would only require that a previous President had agreed (in general terms and more than 10 years ago) that South African troops could be deployed abroad, for section 201(2) to be complied with.

Moreover, this absurd interpretation would also negate the purpose and effect of section 201(3). Why would a President be required to answer to Parliament for a specific deployment after the deployment had already taken place, if that President was never required actually to authorise the specific deployment at all? And would this mean that a junior Defence Official would be able to decide to send troops to Iran because a President had authorised — in general terms — the deployment of South African troops abroad 10 years previously? This would clearly be absurd, yet General Mabaya wants to convince us dat perdedrolle eintlike vye is (that horse manure droppings are really figs).

Read holistically, section 201 requires the President to take political responsibility for each decision to deploy soldiers inside and outside South Africa and then to account to Parliament for this decision by reporting to it on the reasons for the decision as well as on the number of troops to be deployed. Parliament has (at least on paper) the power to stop such a decision as it can threaten to fire the President if he or she authorises the sending of troops to Iran or the sending of troops into townships where citizens have taken to the streets to protest against corruption and service delivery failures. If Section 102 allowed for a blanket authorisation for this kind of thing into the future, Parliament would have no such power and no role to play in holding the President to account, and the reporting obligations would become utterly meaningless.

Generals or military bureaucrats may then make individual decisions about the deployment of soldiers inside and outside South Africa and this will undermine the principle that soldiers are subject to civilian control and that the President, as Commander in Chief , is accountable to the only truly democratically elected national body, namely the National Assembly, for his or her actions.

No, General Mabaya, you are dead wrong. You are also exposing our soldiers to criminal sanction.

Every time heavily armed soldiers appear on our streets and assault and intimidate ordinary citizens, they are doing so unlawfully. Ordering a soldier to take part in such an operation against fellow citizens is thus, arguably, manifestly unlawful. This means that soldiers may well have a legal duty to disobey orders to take part in policing operations inside South Africa, as section 199(6) of the Constitution states that no member of any security service may obey a manifestly illegal order.

If they do not and they are involved in the killing of a civilian during such an unlawful operation which they had agreed to be part of, an individual soldier might well expose him or herself to prosecution for murder. If I was a member of one of the Defence Force Unions, I would be very worried about such a possibility indeed and I would seek clarity on it. Surely Defence Force Unions have a duty to protect their members from possible criminal prosecution? Why are they not taking this up with the leadership of the Defence Force and, if she would deem to talk to them, with the Minister of Defence?

Lest we forget

Dec 8th, 2011

by Pierre De Vos.

177 comments

This Saturday South Africa’s Constitution celebrates its fifteenth birthday. The Constitution was signed by then President Nelson Mandela on 10 December 1996 in Sharpeville. This was only one and a half years after the Constitutional Court started its work in terms of the interim Constitution.

By December 1996 that Court had already declared invalid the death penalty as well as action taken by then President Nelson Mandela. It had confirmed the constitutional validity of the amnesty provisions in the Truth and Reconciliation Commission Act and had sent the final Constitution back for redrafting because the draft had failed to conform to the 34 Constitutional Principles agreed to by negotiators before the 1994 election.

In short, by the time the final Constitution was signed by President Mandela 15 years ago, the Constitutional Court had demonstrated a clear intention to do its job properly by declaring invalid acts of Parliament and actions of the executive which did not conform to the provisions of the supreme Constitution.

President Mandela might well have had reason to be miffed by the Constitutional Court because in the Executive Council of the Western Cape Legislature case it had found that the Parliament had unconstitutionally tried to delegate law making power to President Mandela and that his exercise of powers in terms of this delegation was thus unconstitutional. (This judgment was one of the judgments relied upon by those who challenged the unconstitutional attempts by President Jacob Zuma to extend the term of office of the former Chief Justice Sandile Ngcobo.)

President Mandela might therefore have expressed concerns about the “intrusion” of the Constitutional Court into the realm of “policy making” and might have warned that the work of the Constitutional Court will be assessed to determine whether that court is acting in a way that questions the power of the democratically elected legislature and the executive. Yet, in his speech at Sharpeville 15 years ago President Mandela did no such thing. Instead he said the following.

Friends and compatriots;

By our presence here today, we solemnly honour the pledge we made to ourselves and to the world, that South Africa shall redeem herself and thereby widen the frontiers of human freedom.

As we close a chapter of exclusion and a chapter of heroic struggle, we reaffirm our determination to build a society of which each of us can be proud, as South Africans, as Africans, and as citizens of the world.

As your first democratically elected President I feel honoured and humbled by the responsibility of signing into law a text that embodies our nation`s highest aspirations.

In writing the words which today become South Africa’s fundamental law, our elected representatives have faithfully heard the voice of the people. To the Constitutional Assembly, and to its Chairperson and Deputy Chairperson who guided it through a complex and arduous process, we owe thanks.

We owe thanks to the Constitutional Court which has proved a true and fearless custodian of our constitutional agreements.

In centuries of struggle against racial domination, South Africans of all colours and backgrounds proclaimed freedom and justice as their unquenchable aspiration. They pledged loyalty to a country which belongs to all who live in it.

Those who sought their own freedom in the domination of others were doomed in time to ignominious failure.

Out of such experience was born the understanding that there could be no lasting peace, no lasting security, no prosperity in this land unless all enjoyed freedom and justice as equals.

Out of such experience was born the vision of a free South Africa, of a nation united in diversity and working together to build a better life for all.

Out of the many Sharpevilles which haunt our history was born the unshakeable determination that respect for human life, liberty and well-being must be enshrined as rights beyond the power of any force to diminish.

These principles were proclaimed wherever people resisted dispossession; defied unjust laws or protested against inequality. They were shared by all who hated oppression, from whomsoever it came and to whomsoever it was meted.

They guided the negotiations in which our nation turned its back on conflict and division.

They were affirmed by our people in all their millions in our country’s first democratic elections.

Now, at last, they are embodied in the highest law of our rainbow nation.

This we owe to many who suffered and sacrificed for justice and freedom.

Today we cross a critical threshold.

Let us now, drawing strength from the unity which we have forged, together grasp the opportunities and realise the vision enshrined in this constitution.

Let us give practical recognition to the injustices of the past, by building a future based on equality and social justice.

Let us nurture our national unity by recognising, with respect and joy, the languages, cultures and religions of South Africa in all their diversity.

Let tolerance for one another’s views create the peaceful conditions which give space for the best in all of us to find expression and to flourish.

Above all, let us work together in striving to banish homelessness; illiteracy; hunger and disease.

In all sectors of our society – workers and employers; government and civil society;
People of all religions; teachers and students; in our cities, towns and rural areas, from north to south and east to west – let us join hands for peace and prosperity.

In so doing we will redeem the faith which fired those whose blood drenched the soil of Sharpeville and elsewhere in our country and beyond.

Today we humbly pay tribute to them in a special way. This is a monument to their heroism.

Today, together as South Africans from all walks of life and from virtually every school of political thought, we reclaim the unity that the Vereeniging of nine decades ago sought to deny.

We give life to our nation`s prayer for freedom regained and continent reborn;

God bless South Africa;
Nkosi Sikelel’ i Afrika;
Morena boloka sechaba sa heso;
God seen Suid-Afrika.

I quote President Mandela’s full speech above to remind us all – on this fifteenth anniversary of our Constitution - of President Mandela’s commitment to the Constitution and the supremacy of the Constitution enforced by a fearless Constitutional Court. Lest we forget.

Why the taalbulle will destroy Afrikaans

Nov 8th, 2011

by Pierre De Vos.

187 comments

I am a bit nervous to raise the topic. People get very, very cross when one says the “wrong” thing about it. A bit like Gareth Van Onselen when one criticises Helen Zille. (Remember Gareth, that self-righteous guy from the DA who now writes a self-righteous column in Business Day chock full of his own pedestrian prejudices? Sadly, I have not had a call from him for ages. He must be too busy crafting his 150 word gems for the newspaper to engage in friendly little chats in which he tries to convince me that white is black and black is white and that I am lying by insisting on the opposite.)

In any case, they phone you and (without knowing you from a bar of soap) start insulting you and tell you what a useless excuse for a human being you are. They might even pour a cup of tea over your head or assault you — but only if you are lucky. If you are unlucky, well, you guessed it, they will force you to watch recordings of Steve Hofmeyer performing at Huisgenoot Skouspel, or some such event. They complain bitterly about how they have been persecuted since 1994 (usually calling from next to the swimming pool at their house or from a brand new top of the range car masquerading as a truck). They call you a self-hating Afrikaner and a communist (or, worse, an ANC lackey) and a useful idiot (not knowing that they are quoting Joseph Stalin).

And all this because you might have suggested that the Afrikaans taalstryders making a living out of whipping up anxiety and fear about the demise of the Afrikaans language are at best opportunistic exploiters making a fast buck out of the fear and misery of others and at worst just pining for the good old days of apartheid when they were in power and could stuff up the country all by themselves.

But here goes. On Sunday, the main headline in Rapport (the Afrikaans version of the Sunday Times - only far more, you know, white, and with more headlines about Rugby and about NG Kerk infighting about the existence of the devil and whether dominees should be allowed to exorcise said devil) screamed: “GEE TERUG ONS TAAL!” (Give us back our language!) It told the story of some “brave” Afrikaners who are taking on the University of Stellenbosch, allegedly because that University is not ensuring that lectures are predominantly or exclusively conducted in Afrikaans (with sign language interpreters at hand to accommodate black students).

Some lecturers want to attract the best students of all races to study at Stellenbosch (something that is not happening at the moment) and want to appoint the best lecturers to teach at the institution (as it recently did when it appointed the brilliant Prof Achille Mbembe in the Sociology Department), but this would not be possible if everyone was required to speak and lecture most of their courses in Afrikaans. They are called the verraaiers or hensoppers or bootlickers of the new elite (in private they are said to lick other parts of the anatomy of the new elite too).

Others wish to ensure that the University remains dominantly and proudly Afrikaans, which would relegate it to the status of a second or third tier parochial institution for the children of whites (including, ironically, many English speaking whites whose children attend Stellenbosch University because it remains overwhelmingly white) and a few coloured students from the platteland. They claim the University does not need to attract black students (and it is sometimes implied that attracting black students would lower standards) because the Constitution protects language rights.

Afrikaners, they argue, have a right to their own Volkstaat-like University in pretty Stellenbosch where their children could study (and drink lots of red wine), free from the evils of affirmative action that would open up the university to black students and staff. In the eyes of this group, only Afrikaners (they are still debating whether Afrikaans speaking coloureds are Afrikaners or not) should continue to benefit from affirmative action — just as they have benefited from affirmative action for many decades after the rise of the National Party. Standards would be maintained by forging links with some of the better Universities in the Netherlands and Belgium, and embarking on joint projects about multilingualism and how to run a country without a government.

Well, at first it might appear as if this second group have a point. After all, section 6(1) of the South African Constitution states that there are eleven official languages in South Africa, namely Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu. However, because the ANC negotiators were much better at their job than the old National Party negotiators, this section says much less than the Volkstaters would like to think.

Section 6(2) recognises the “historically diminished use and status of the indigenous languages of our people”, and places a duty on the state to take practical and positive measures to elevate the status and advance the use of these languages (somthing the state has not done at all over the past 18 years). Because Afrikaans has not been historically diminished (it was relentlessly promoted during the apartheid years and is therefore still one the most understood and spoken languages in South Africa – along with English and isiZulu – and hence does not fall within the ambit of this provision.

Moreover section 6(3) states that the national government and provincial governments may use any particular official languages for the purposes of government, taking into account usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as a whole or in the province concerned; but the national government and each provincial government must use at least two official languages. All official languages must enjoy “parity of esteem and must be treated equitably”.

This does not mean that languages should be treated equally — the term “parity of esteem”, borrowed from the Irish Constitution with a little help from Kader Asmal, means far less than equal treatment. It means that they must be treated fairly, given the economic, political and social context. Given the systematic promotion of Afrikaans during apartheid, given the dominance of English as a world language (for the time being at least) and given the neglect of other indigenous languages over the years, these sections might well mean that other indigenous languages had to be promoted vis-a-vis Afrikaans.

If Parliament adopts the National Language Bill now before Parliament and the national government finally formulates a national language policy regarding the use of official languages for government purposes (as required by section 4 of that Bill), the taalstryders might get a shock. Other indigenous languages might well — very legitimately — be preferred above Afrikaans in this language policy, the latter being a language who had been very much affirmed and promoted for 50 years during the apartheid rule.

Referring to Stellenbosch particularly, taalbulle argues that the right to receive education in the official language or languages of one’s choice in public educational institutions is guaranteed in section 29 of the Constitution. They fail to note that section 29(2) also states that this will only happen “where that education is reasonably practicable”.

In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account: equity; practicability; and the need to redress the results of past racially discriminatory laws and practices.

Section 30 underscores this point by stating that while everyone has the right to use the language and to participate in the cultural life of their choice, these rights may not be exercised in a manner inconsistent with any provision of the Bill of Rights – including the provisions of the non-discrimination clause. Using a language policy that would exclude many black South Africans from accessing the excellent education at Stellenbosch is therefore not permitted by the Constitution as it infirnges on section 9(3) of the Constitution, read with section 30.

Where a University teaches some courses exclusively in Afrikaans, the effect of this policy would be to exclude many black South Africans from studying there and from teaching at this institution. Ironically, as long as Stellenbosch remains a University where quality education is provided and quality research is conducted (as it presently still is), the effective exclusion of black South Africans form the University through any language policy would contravene the non-discrimination clause in the Constitution. This is because the policy deprives many black South Africans from accessing a very high standard of education they might not receive at many other Universities and this disadvantages black students and staff.

This fight is only going to end one way and that is with the so called verraaiers winning the argument and the fight. If the taalbulle wanted to have a shot at retaining their white privileges at Stellenbosch they should have ensured many years ago that slightly less dim-witted people negotiated on their behalf at the Constitutional Assembly.

This is not to say that ons taal will disappear. On my iPod I have music from the early days of the Afrikaans music revival (Bernoldus Niemand, Koos Kombius, Johannes Kerkorrel), from avant-garde bands like Buckfever Underground and Die Antwoord, from Jan Blohm and Karen Zoid. On my bookshelf I look at books by Marlene van Niekerk, Ingrid Winterbach, Antjie Krog, Johann de Lange, Loftus Marais and Deon Meyer. When I want to express my anger in a colourful way, I choose one of the wonderfully expressive Afrikaans phrases available to me (but is unfortunately not polite enough to repeat here).

Ag, if only the taalbulle would stop fighting for the taal things might still turn out well for Afrikaans. Because with friends like them, who needs enemies?

As things stand, they are giving Afrikaans a bad name with their selfish and jingoistic crusade. By painting themselves as victims (“met ‘n wit brood onder elke arm vasgeklem” – “with a white bread clutched under each arm” - as my mother would have said), they are creating the impression that Afrikaans is being used as a proxy to try and retain the dominant white status of Stellenbosch University. Down that road lies permanent ruin for our taal.

If you want to save ons taal, why not write a poem, a short story or even an email in beautiful Afrikaans? Teach your children to use the language well. Engage in real debates – in Afrikaans, English or another indigenous language – about the real issues that face our nation: poverty, crime, corruption, racism, discrimination, homophobia, homelessness, hunger. Stop protecting the ill-gotten privileges of the apartheid years and stop acting in ways that will give the appearance of wanting to protect these privileges. Become an ambassador for the language through words and deeds – including words and deeds that demonstrate an understanding of the horrors of our past and its effect on the lingering injustices in our country. But please, spare me the moans and groans about the need to “save” the language at Stellenbosch University.

Why no human rights culture in the Police Service?

Nov 7th, 2011

by Pierre De Vos.

21 comments

The Zimbabwean citizens reportedly detained by the Hawks and members of the SA National Defence Force and handed over to Zimbabwean Police, who then allegedly murdered the “deportees”, seem to have little in common with Mr Khalfan Khamis Mohamed, a Tanzanian man convicted of terrorism in a New York Court in 2001.

Yet, as Minister Jeff Radebe pointed out this weekend in the Sunday Times, the precedent set by the Constitutional Court in the Mohamed case makes it illegal for the Hawks and the SANDF knowingly to send people to their possible death – even if the immigration law had been followed, which allegedly was not done in these rendition cases to Zimbabwe. A paper trail was published in the Sunday Times, confirming that a number of individuals were arrested as “illegal immigrants” by the Hawks and taken over the border at Beit Bridge, where they were handed to Zimbabwean police, and then killed.

In a move that is said to put him on a collision course with his cabinet colleague Nathi Mthethwa, the Minister of Police, Minister Radebe said the renditions “fly in the face of our constitution and its values”. Radebe said the rendition claims were “very worrying” – particularly as the allegations “were levelled not only against organs of state, but ones responsible for law enforcement and security”.

The actions flout the Immigration Act and also breach a government moratorium on deportations to Zimbabwe and the United Nations Convention Against Torture, which South Africa ratified in 1998. However, Mthethwa on Friday told the Sunday Times “there is nothing in front of [me]” to warrant an investigation. He said the rendition claims involving the Hawks were “baseless and imaginative”. It would not be the first time that the political leadership of Police turn a blind eye to unlawful and unconstitutional actions of members of the law enforcement agencies.

After all, there is often a huge gap between the legal and constitutional protections afforded individuals in South Africa and how individuals are actually treated in real life. While the Constitution prohibits unfair discrimination against anybody because of his or her race, against women and against gay men and lesbians and while the Equality Act similarly prohibits private institutions and individuals from discriminating, discrimination is still rife – also inside the Police Service and in the way it deals with complaints.

Over the years I have fielded several calls from young men and women who had been raped and then tried to get the police to investigate these crimes. In each case the complainant was not successful in getting the Police interested in his or her case – and the only reason for this was that the rape survivors happened to be gay or lesbian. In one case I was told that a Police officer from Atlantis had laughed at a young man who wanted to report a rape because he was “‘n moffie” and hence deserved to be raped. I have also had long and fruitless arguments with members of the Harare police station in Khayelitsha to try and get them to investigate the rape of a lesbianwoman by a man known to the rape victim and the police.

It appears that the position of undocumented Zimbabweans in South Africa is often no different, something that Minister Radebe – to his credit – seems very concerned about. It may be helpful to remind the law enforcement officials in South Africa that apart from the Immigration Act (which they are supposedly bound by) the Constitution itself makes this kind of thing unlawful.

It was an early spring day in Cape Town back in 1999 when South African government agents illegally handed Mr Mohamed over to agents of the FBI. The agents rushed Mr Mohammed onto a FBI aeroplane and the next day he was brought before the Federal District Court in New York on charges relating to the horrific bombings of the US embassy in Dar es Salaam the previous year. Mr Mohammed faced the death penalty if convicted of the charges brought against him.

While his trial was proceeding in New York, his lawyers approached the South African Constitutional Court, who declared that his handing over to US agents had been unlawful, in part because the South African government had handed him over to the US without a guarantee that he would not face the death penalty if convicted in the US.

The Constitutional Court pointed out that our Constitution outlaws the death penalty and found that the South African government had acted contrary to the underlying values of the Constitution. Although it had a duty to protect the right to life and the right against cruel inhuman and degrading treatment and punishment of everyone in South Africa, it had failed “to lead by example” in this case.

According to the Court, this unlawful action was particularly serious because the government had a special duty in our young democracy to foster the values entrenched in the Constitution.

In Mr Mohamed’s case, the US Federal Court found that it was not bound the judgement of the South African Constitutional Court. After all, the judge pointed out, the United States was a sovereign state and a South African Court could not order a US court how it should deal with its accused. Although Mr Mohamed was eventually sentenced to life imprisonment, this was only because of a technicality which allowed the South African judgment to be tendered as mitigating evidence. But this does not mean that the South African can “render” suspects to a foreign government if they might be tortured or killed. They cannot.

Even if the Immigration Act is followed to the letter (which it seldom is), South Africa is therefore constitutionally prohibited from sending any Zimbabwean who is illegally in South Africa and is suspected of committing a very serious crime back to Zimbabwe if there is any well-founded fear that the Zimbabwean government or its formal or informal agents will murder or torture the suspect. I suspect that this is why these renditions occur without following the requirements of the Immigration Act.

Ordinary South Africans, whose views might sometimes be clouded by more than a tinge of xenophobia might think that this has nothing to do with them. But if we allow our law enforcement agencies to continue to act in such a lawless manner when dealing with Zimbabweans, cases where they deal with South African citizens in a lawless manner will also increase. As things stand, many of us who used to fear and loath the South African Police Force during the apartheid years but gave them a chance when they were supposedly turned in to a Police Service who was tasked with protecting and not terrorising the population, are having second thoughts.

In my dealings with the police I have been shocked by the attitude of some (but not yet all) police officers. Once I was asked the most racist questions by a police officer who seemed to assume that all black people are by definition criminally inclined. On another occasion there was an attempt to extract money from me, something, I am told, that is quite common in some parts of South Africa. While some police officers have dealt with me in a helpful and professional manner, others have made my hair stand on end with the prejudices and their lack of respect for the basic provisions of the law or the Constitution. I could only surmise that they were not taught much about respect for human rights or if they had, they had not internalsied those lessons.

Maybe Minister Radebe should raise this issue in the cabinet in order to ensure that cabinet instructs the Minister of Police to implement measures that would try and instill a human rights culture in the Police. When ordinary citizens fear, instead of trust, the Police, they will not co-operate with the Police. And if there is no co-operation the Police will not be able to do their job properly.

About family fights and transformative constitutionalism

Oct 13th, 2011

by Pierre De Vos.

67 comments

When a relatively wealthy man is involved in an acrimonious divorce and subsequently marries another woman, when friction then arise between the new wife and her children on the one hand and the children of her new husband on the other, and when the husband then dies at a relatively young age, it is one of those sad facts that there is a more than even chance that the remaining family members will start fighting with one another — especially about money — and that soon enough they will find themselves on opposite sides of a legal battle that will end up in the Supreme Court of Appeal (SCA) in Bloemfontein.

I was therefore not surprised to read the recent SCA judgment in the case of Potgieter and Another v Potgieter and Others. This case stems from a dispute about money held in trust. A father had created the trust to benefit his two children from his first marriage. (When the trust was created they were still minor children but they are both grown up now.) But after divorcing his wife (after an acrimonious fight) and marrying another woman, he purported to amend the provisions of the trust so that his new wife and her two children might also potentially benefit from the trust.

His two birth children challenged the validity of this amendment to the trust — made a few years before his death — and both the High Court and the SCA agreed that for various technical reasons the variation of the trust deed was invalid. Normally this finding would have resulted in the implementation of the trust deed in its original, unamended form, leaving the new wife and her two children with no benefit from the trust. As the husband had changed his will at the same time that he purported to change the provisions of the trust, his intention to provide for his new wife and her two children would have been thwarted by the nullification of the amendments to the trust. However, the High Court (in a judgment authored by Bertelsmann J) found this result in the circumstances, unpalatable, contrary to public policy and constitutionally unsound.

Relying on the majority judgment of the Constitutional Court in Barkhuizen v Napier, the judge argued that it was now part of our contract law that, as a matter of public policy, our courts can refuse to give effect to the implementation of contractual provisions which it regards as unreasonable and unfair; and the same principle should be applied in other spheres of private law like the law of trusts.

In consequence the High Court granted an order which effectively awarded one-fifth of the trust assets to each of the two appellants as their exclusive property, while the other potential beneficiaries retained their rights in terms of the amended trust deed in respect of the remaining three-fifths of the trust assets.

The SCA, in a judgment authored by judge Brand (the same judge who, as an acting judge on the Constitutional Court, made such a hash of the case in which a deputy headmaster sued three school boys for defamation), seemed rather horrified by this line of reasoning by the High Court. How could a court possibly deviate from common law principles usually applicable to trusts by invoking the provisions of the Bill of Rights – all merely because it might result in a more fair and reasonable outcome for everyone?

This attitude of the SCA regarding the application of so called “abstract values” like reasonableness and fairness to aspects of the private law is telling. I would argue that it demonstrates a lack of appreciation for the unique nature of our Bill of Rights and the transformative vision it embodies.

The South African Constitution is often said to be a transformative Constitution, something which have been confirmed by the Constitutional Court and in extra-curial writing by various Constitutional Court judges. Minister Blade Nzimande is correct when he points out that our Constitution does not (only) serve to check the excesses of the executive. It is supposed to do much more than that. It should be used by our courts to assist with the transformation of — amongst other things — the legal system itself, including the rules developed over time by judges as part of the common law.

Rules of our common law have often been based on the assumption that we are all born free and equal, that we all have absolute agency and are empowered to make rational choices for our own benefit (even when others we contract or legally engage with are rich and powerful and we are poor or otherwise disempowered), that we are only to blame ourselves if legal rules treat us unfairly or lead to injustice. But these assumptions and the legal rules which were produced in their wake cannot be squared with the egalitarian values contained in our Bill of Rights and the concern with dignity, equality and fairness that runs like a golden thread through that document.

Moreover, section 39(2) of the Constitution states that ”when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights”. It is true that some academics have argued that this means no more than that our courts should promote the values in the Constitution once (and only once) it has decided (for some reason unrelated to the provisions in the Bill of Rights) that it was necessary to develop the comm0n law. According to this view, section 39(2) places no general injunction on our courts to ask in each case where they apply a common law rule whether a particular rule should not be developed to infuse it with the values contained in the Constitution.

In my opinion this view is politically deeply conservative and also, quite frankly, dead wrong. If followed, it would limit the transformative power of the Constitution and would largely insulate the common law rules from the salutary influence of the Constitution. Basic assumptions about freedom of choice and the essential equal power of people in society, which underlie many common law rules but are in fact fictions propagated by the rich and powerful to ensure that legal rules remain rigged in their favour, would largely remain untouched.

The anti-transformative attitude towards the common law has long been said to stem from South Africa’s conservative legal culture and the resistance of many lawyers — even seemingly progressive lawyers — from acknowledging the fact that legal rules are not without political consequences, are not free from ideological assumptions and effects, and are partly determined by the values and ideological commitments of the judges who interpret, develop and apply these legal rules. In the past it has often been said that this attitude about the sanctity of the common law and the supposed a-political and “neutral” nature of legal rules finds its greatest champion and defender amongst some judges of the SCA.

It is against this background that the arguments in the judgment in the Potgieter case should be evaluated. The judgment seeks to distinguish between the application of what it calls abstract values like reasonableness and fairness (which are supposedly vague, lead to legal uncertainty, and are therefore really bad) and the application of so called legal rules that can be distinguished from values (which are supposedly capable of predictable application and thus leads to legal certainty).

In this view, whether a set of traditional common law legal rules favour the rich over the poor or the powerful over the disempowered, and whether the application of the legal rules lead to consequences that are unfair or unreasonable are never relevant. Who cares about injustice when legal certainty is at stake? After all, the law is not political at all and we should ensure that it stays that way by preventing judges from applying abstract values instead of the precise legal rules that produce predictable results in every properly decided case.

To be fair, the judgment merely relied on a distinction between abstract values and legal rules which have long been cherished by judges and many legal academics in South Africa. It confirmed a principle set out in previous judgments of the SCA, namely that reasonableness and fairness are not freestanding requirements for the exercise of a contractual right in South Africa. Thus, the SCA quoted the following passage from one of its previous judgements:

[A]lthough abstract values such as good faith, reasonableness and fairness are fundamental to our law of contract, they do not constitute independent substantive rules that courts can employ to intervene in contractual relations. These abstract values perform creative, informative and controlling functions through established rules of the law of contract. They cannot be acted upon by the courts directly. Acceptance of the notion that judges can refuse to enforce a contractual provision merely because it offends their personal sense of fairness and equity will give rise to legal and commercial uncertainty.

The SCA interpreted the Barkhuizen decision of the Constitutional Court as meaning that it is not yet part of our contract law that, as a matter of public policy, our courts can refuse to give effect to the implementation of contractual provisions which it regards as unreasonable and unfair. Perhaps forgetting that it has a duty under section 39(2) of the Constitution to develop the common law to bring it in line with the spirit, purport and object of the Bill of Rights, Brand J then continued that ”[u]nless and until the Constitutional Court holds otherwise, the law is therefore as stated.” As I read this statement, the SCA is saying that it will only change its rigid and seemingly anti-transformative approach to our common law if it is forced to do so by those rogue judges of the Constitutional Court.

The SCA also argued that our law cannot endorse the notion that judges may decide cases “on the basis of what they regard as reasonable and fair”, as this ”will give rise to intolerable legal uncertainty”.

That much has been illustrated by past experience. Reasonable people, including judges, may often differ on what is equitable and fair. The outcome in any particular case will thus depend on the personal idiosyncrasies of the individual judge. Or, as Van den Heever JA put it in Preller v Jordaan 1956 (1) SA 483 (A) at 500, if judges are allowed to decide cases on the basis of what they regard as reasonable and fair, the criterion will no longer be the law but the judge.

The SCA thus also contended that the decision of the High Court to apply reasonableness and fairness criteria to this case offended the principle of legality, which must be regarded as part of the rule of law. ”Making rules of law discretionary or subject to value judgments may be destructive of the rule of law,” said the court.

The problem with this line of reasoning is of course that it is based on the untenable fiction that legal rules do not have to be interpreted at all, that such rules just have an obvious and single meaning that suggests itself to a judge who never has to revert to value judgements when he or she interprets a legal rule. This view also loses sight of the blindingly obvious fact that when these legal rules are applied by judges, value judgments must inevitably be made. Different judges will not always interpret the same legal rule in the same way and neither will they apply that rule to the same set of facts in exactly the same way.

As any practicing lawyer (or anyone who has read some writing by legal realists) will tell you, this kind of reasoning is not easy to square with reality. After all, often the first thing a lawyer asks when he or she has to appear in court, is who the judge is before whom he or she is going to appear. And why would anyone have been upset about the values and beliefs of our new Chief Justice if they did not think that the value of a judge played a role in adjudication — even when a judge is called upon to apply so called rigid legal rules?

The notion that legal rules provide almost absolute legal certainty is an obvious fiction that cannot bear scrutiny. If rules provided such certainty, why would anyone ever approach a court and ask a court to interpret or apply a legal rule in any dispute? All parties in a legal dispute would ask their lawyers to tell them what the outcome of their case would be and the party who is told that she will lose the case will then be persuaded not to waste her money on legal bills by pursuing the case in court. However, this does not happen in real life because real human beings apply the law.

When I read the reasoning of the SCA in the Potgieter case I was reminded of the Constitutional Court judgment in Van der Walt v Metcash. In that case the court dealt with an appeal from the SCA. The appeal stemmed from a strange situation in which the SCA had handed down two judgments on successive days in August 2001 but made contrary orders in the two cases which were materially identical. They were made in response to petitions addressed to the Chief Justice for leave to appeal against orders of the High Court in summary judgment applications. In the first order, Mr J van der Walt, the applicant, was refused leave to appeal. In the second, a Mr Kgatle, who is not a party to these proceedings, was granted leave to appeal.

The Constitutional Court, quoting from its judgment in Dawood and Another v Minister of Home Affairs and Others, noted that “[discretion] plays a crucial role in any legal system. It permits abstract and general rules to be applied to specific and particular circumstances in a fair manner.” The Court stated that it “would seriously diminish the efficacy of this role of discretion if a decision made pursuant to its exercise bound other judicial officers in a court at the same level in the later exercise of their discretion in subsequent cases”.

The truth is that there will always be an interplay between legal rules and the values that underpin them on the one hand, and the duty of individual judges (who have their own values, life experience, and acknowledged or unacknowledged beliefs) to exercise a discretion and to treat the parties before them fairly and justly. The notion that legal rules provide absolute certainty is a fiction perpetrated by judges in order to avoid responsibility for the fact that their own values and beliefs play a role in how they interpret legal rules and how they apply those rules to a certain set of facts.

Take the Potgieter case as an example. The High Court relied on so called abstract values like reasonableness and fairness and chose not to apply the normal rules that apply to the enforcement of trusts. The SCA relied on so called abstract values (influenced by what might be perceived as the demands of the capitalist system) like legal certainty to hold the opposite. Both judgments reflect the broader ideological and policy choices the judges made when they were applying the common law. The former judgment just happens to be more just and fair than the latter and also more in line with the letter and the spirit of our Constitution.

Another legal lesson for the JSC

Oct 3rd, 2011

by Pierre De Vos.

7 comments

One may well argue about whether it was politically astute or strategically wise of the Cape Bar Council to take the Judicial Service Commission (JSC) to court about its failure to fill two posts on the Western Cape High Court bench and for making a decision about this non-appointment in the absence of the President of the Supreme Court of Appeal who, in terms of the Constitution, must take part in the decision.

The Cape Bar is, arguably, the least “transformed” Bar in the country. There is also a widespread perception that many members of the Cape Bar is less than enthusiastic about the appointment of judges who happen not to be white and male and members of the old boys club. (Whether this perception is based on fact and hence justified, is not relevant for the present discussion.) Its challenge to the JSC decision was therefore always going to be portrayed by some as another anti-transformation move aimed at retaining the influence of white Bar Council members over the appointment of judges.

Political perceptions aside, the resulting judgment in the case of The Cape Bar Council v The Judicial Service Commission and Another makes for interesting reading and reminds us that the JSC is not above the law — despite the attitude of some of its members. Unfortunately the JSC has not always covered itself in glory and has often acted in a manner not compatible with the Constitution.

The judgment is thus helpful as it sets out the manner in which the members of the JSC ought to — but does not always — arrive at decisions.

The judgment, authored by Koen J (Mokgohloa J concurring), reminds us that the JSC exercises a public power and is hence controlled by what is prescribed in the Constitution and the law. Although decisions by the JSC relating to the selection, nomination and appointment of judges do not constitute administrative action in terms of the Promotion of Administrative Justice Act (PAJA), such decisions could nevertheless be reviewed in terms of the principle of legality.

In this regard, the court reminded the JSC that it is bound by the requirements of the Rule of Law. An incident of the Rule of Law is the principle of legality and this entails that a body like the JSC exercising a public power “may exercise no power and perform no function beyond that conferred upon them by the law”. The exercise of such a power may also not be arbitrary and must be rational. In other words, there must be a rational objective basis justifying the connection made by the decision maker between the material available to her on which she made the decision and the conclusion she eventually reaches.

The judgment also confirmed that the JSC – as a public body — must perform its functions openly and transparently as this is required to give effect to two of the founding values of our Constitution that is foundational for our democracy, namely accountability and transparency. This is also why a public body like the JSC should normally be required to provide reasons for its decisions. Unless a person affected by a decision can discover the reason behind the decision, she may be unable to tell whether the decision is reviewable or not. Providing reasons also assures an affected person that her case was considered properly and forces the decision maker to formulate reasons that would withstand scrutiny, thus forcing it to evaluate all the relevant considerations correctly and carefully.

In the past, in the absence of consensus, the members of the JSC would be required to vote for each nominee. As the court pointed out, it is unclear from the JSC submission whether each member had as many votes as there were vacancies (three votes, say, if there were three vacancies in a division) or whether a member could vote for as many candidates as she wished. The court assumed that the former process was used. What was clear was that a member of the JSC could vote for fewer candidates than there were vacancies in a division.

Only those nominees who obtained a majority of the votes (thirteen) would be selected for appointment to the bench. (The JSC selects High Court judges for appointment and thus “nominates” them, after which the President must appoint those selected. This means that, in effect, the JSC appoints the judges to the High Court.)

Whatever process was actually used, it was clearly flawed. The majority of members of the JSC could in effect veto the appointment of even the most brilliant and progressive lawyer committed to the values enshrined in the Constitution by abstaining from voting for that candidate or from abstaining from voting for ANY candidates. This the members could do without providing any rational basis for their decision.

The JSC stated in its defence that this procedure was indeed rational and that it complied with the principle of legality because that was the procedure it had chosen (finish en klaar, so to speak) and because reasons could not be given for selecting or not selecting a candidate for appointment because the voting was done by secret ballot and the reasons of individual members for voting or not voting for a candidate were thus unknown. The JSC nevertheless contended that when members of the JSC exercise their vote, they take cognisance of their constitutional mandate (and do not consider other irrational or impermissible factors). The court did not buy this argument, stating that:

It is difficult to follow how that statement can be made. The deponent clearly would not know what the individual members of the JSC took into account, nor does he refer to the deliberations that took place or indicate the sources of his knowledge, such as that members of the JSC informed them of their reasoning. No other members of the JSC has deposed to an affidavit confirming this account insofar as it concerns them, as being correct.

The court found that there was no reason why the JSC could not furnish reasons for its decisions. Reasons are provided for recommending candidates for appointment to the Constitutional Court, and these reasons are then forwarded to the President for his consideration. The court thus asked why reasons could not similarly be provided by the JSC for its decisions to recommend or not to recommend candidates for appointment to the High Court.

The question of whether reasons should be provided for appointment or non-appointment of judges is a difficult one. On the one hand, the judgment must surely be correct when it points out that the provision of reasons for a decision to recommend or not to recommend the appointment of a candidate would possibly infuse more predictability and rationality into the process of appointment. On the other hand, providing reasons for the non-appointment of a candidate could be highly embarrassing for such a candidate and might dissuade talented candidates from putting their names forward.

Perhaps the best way to proceed would be to require the JSC to formulate reasons for the appointment or non-appointment of candidates but to have to furnish those reasons only to the relevant candidates on request. This would mean that the JSC would normally not be required to announce their reasons to the public at large. Nominees could then be protected and the integrity and legitimacy of the bench safeguarded while the JSC would remain accountable.

The judgment was also highly critical of other aspects of the manner in which the JSC arrives at decisions about the nomination of High Court judges. Although the JSC provided contradictory information to the court about the voting procedure (do members get as many votes as there are vacancies or can they vote for as many candidates as they wished?), it was assumed that each member could only vote for as many nominees as there were vacancies in a division.

As the court points out, this process would be arbitrary and irrational as a candidate would have a far better chance of being selected where there was a small number of shortlisted candidates than where there were large number of candidates. It is therefore conceivable that the same candidate would not be selected for appointment in one round because she might be competing against several candidates, yet would be selected during the next round because there were fewer candidates competing for the same post. A post could therefore remain unfilled merely because “too many” candidates were nominated for positions in a single round.

As those candidates achieving the lowest support were not eliminated and votes for them were not transferred to other more popular candidates, this meant that the votes of members of the JSC who voted for unpopular candidates are currently “wasted”. There was seemingly no opportunity for these votes to be transferred to other candidates, which left open the possibility that no vacancies would be filled in any given round (even where imminently suitable candidates had applied for the positions available) as no candidate might achieve the thirteen votes required for appointment.

What the court did not mention was that this procedure invited members of the JSC to engage in political lobbying before interviews are conducted. If one had a strong preference for candidate X, one might try to lobby for that candidate to ensure that other like-minded members of the JSC would not split their vote. One might also be tempted to “trade” votes by telling other members of the JSC that one would support “their” candidate if they supported “your” candidate.

The court was careful not to prescribe which voting system should be used by the JSC but it did find that the JSC was required to settle on a clear and less arbitrary system of voting than the one it seemed to have employed in the past. The court also declined to make a finding advanced by the amicus curiae that the JSC could not refuse to appoint a candidate because of broader concerns for equity. What was required was for these reasons to be clearly articulated when reasons are provided for leaving vacancies unfilled.

The most perplexing and perhaps embarrassing aspect of the events that led to this court case, was that the JSC was not properly constituted when it had to consider appointments to the Cape High Court bench.

Relying on the wording of section 178 of the Constitution as well as on precedent first set in the Premier of the Western Cape v Acting Chairperson, JSC the court found that the absence of the President of the SCA from the deliberations, turned valid proceedings into invalid proceedings. These proceedings were thus not in accordance with the dictates of the Constitution and hence unlawful and constitutionally invalid.

Given the fact that section 178(7) of the Constitution explicitly provides for the Deputy President of that court to act as an alternate on the JSC in the absence of its President, and given the precedent set in the Premier of the Western Cape case, it is hard to understand how the JSC could have continued with its meeting while its members should have known that it was no longer properly constituted.

The members of the JSC must either have been completely ignorant of the law as set out by our courts or it must have decided deliberately not to adhere to the law and the Constitution. Either way, the decision by the JSC to continue with its deliberations even when it stopped being properly constituted must rank as one of the least explicable decisions ever taken by that body. I say this, knowing very well that it has not excelled in the past in making legally plausible and vaguely justifiable decisions and that it has been successfully sued by a wide array of individuals as diverse as Judge President John Hlophe and Premier of the Western Cape Hellen Zille.

The process through which judges are selected for appointment by the JSC will always be fraught with controversy. Only the most naive or gullible person would contend that politics play no role in this selection of judges. In a constitutional democracy judges have enormous power. They can declare invalid acts of Parliament and members of the executive and can develop the common law to soften the effects of the often harsh consequences that old common law rules still have on the interests of the less powerful, the marginalised and oppressed.

There is no consensus about what a truly independent judge infused with the values enshrined in our Constitution would look like. Depending one one’s political affiliations one might have different criteria for a good judge. It is often said that the JSC should appoint only independent-minded judges. But if one asks what this means, one soon realises that “independence” is not viewed in the same light by everyone. A DA MP might well believe that an independent judge is one whose views is not too dissimilar from her own, while an ANC MP might believe an independent judge is one whose views are more or less in accordance with her own views.

This does not mean that the process of selecting judges cannot be improved by stating more clearly what the criteria for appointment should be. The credibility of judicial selection by the JSC would surely be enhanced if the process was more transparent and logical and if the JSC felt that it was more accountable for its decisions. This balanced judgment of the High Court might go some way to infuse some transparency and rationality into the process and to limit the political excesses that the process invites.

The plot to spite our President

Sep 8th, 2011

by Pierre De Vos.

51 comments

I have been wondering whether Blade Nzimande and Gwede Mantashe might be fans of Nirvana, the rock band headed by Kurt Cobain (until Cobain tragically killed himself in 1994). On their Nevermind album — perhaps channelling the cult writer William Burroughs who famously remarked that “sometimes paranoia is just having all the facts” — they sing that: ”Just because you’r paranoid, don’t mean they’re not after you”.

Even when people sound paranoid and express paranoid thoughts this does not mean that they have nothing to be paranoid about. So maybe we should take the recent mutterings of these two gentlemen seriously and explore the possibility that there has been a plot to discredit the President and the nominee for the highest judicial post in the land.

Consider the charges.

First, ANC secretary-general Gwede Mantashe told the Food and Allied Workers Union conference on Tuesday that criticism over justice Mogoeng Mogoeng’s “nomination” as Chief Justice “is a proxy war on the President… It doesn’t matter who would have been appointed, the decision would have been opposed by an alliance of forces seeking to defeat the ANC”.

Then SACP General Secretary Blade Nzimande said in a statement on Wednesday that there was a “liberal agenda” to unfairly criticise the liberation movement and the government.

The most concerted expression of this offensive has been around the president’s [Jacob Zuma] nomination of Justice Mogoeng Mogoeng to be the Chief Justice…. No sooner had the president made this nomination that a well co-ordinated and orchestrated campaign was launched to try and discredit Justice Mogoeng… to spite the authority of a president whose party was voted for by the overwhelming majority of our people.

I have been wondering how this “campaign” against the President’s choice for Chief Justice might have been “co-ordinated” and “orchestrated” in order to “spite the authority” of the President and the ANC he leads and how it might have turned progressive organisations such as Cosatu (which is in an alliance with the ANC) and the National Association of Democratic Lawyers (Nadel) into liberal plotters and handmaidens of the “counter-revolutionary forces” represented by the unpatriotic DA. And how did they manage to co-ordinate their “campaign” with other progressive civil society organisations such as Section 27 and Sonke Gender Justice?

As a fan of Nirvana (and, I have to admit, of William Burroughs), I have been wondering whether Mantashe’s and Nzimande’s paranoia might not have been justified. After all, just because the possibility of a plot seems improbable does not mean it is not true. I have been told — can you believe it — that there might even have been a plot long ago (involving Nzimande and Mantashe themselves) to unseat then President Thabo Mbeki as President of the ANC and the country, but I am sure the people who told me this were lying. In this spirit of constructive inquisitiveness, I have been trying to reconstruct events which might have led to this alleged co-ordinated and orchestrated “campaign” against the “nomination” of Justice Mogoeng as Chief Justice.

Of course, all these organisations would have had to have shown extraordinary foresight, cunning and meticulousness to pull off their devious plan. Foreseeing that Jacob Zuma would one day become President of South Africa (I wonder how they knew this?!) and further foreseeing that he would then have wanted to appoint justice Mogoeng Mogoeng as Chief Justice, these organisations would have been required to put into place the building blocks of their campaign more than 10 years ago.

First, in order to fabricate supposed “evidence” of Justice Mogoeng’s unsuitability for high office, they would have had to fabricate several judgments supposedly authored by Justice Mogoeng and would then have had to sneak these supposed “judgments” into various legal databases. Knowing how damaging it might be to a nominee if it was ever revealed that he was ignorant of the post-constitutional law on sentencing regarding rape matters and if it was shown that he was a homophobic patriarch soft on child rapists, they would have included in these “judgments” arguments often used by patriarchs and sexists to minimise the seriousness of the effects of rape on women and children.

(Personally, I believe the plotters might have gone too far when they authored that judgement in which the nominee supposedly argued that a child rapist deserved a lesser sentence because he showed “tenderness” to the victim. I mean, who is going to believe such nonsense?)

But they would have had to be careful: if these cases were reported in the law reports, a cursory search — perhaps by members of that august body, the Judicial Service Commission – might have revealed these judgments before Justice Mogoeng had been elevated to the Constitutional Court. Cunningly they would then have had to ensure that the judgements were never reported, probably relying on the discretion of the editors of the law reports who (being counter-revolutionaries themselves) might have had to be roped in to ensure that the supposed “judgments” of the nominee did not become widely known.

Then, after President Zuma’s announcement of the nomination, the plotters would have all had to meet in secret at an undisclosed venue (maybe a bunker built by the CIA under COSATU headquarters – I, for one, would put nothing past those torturers wrapped in the American flag) to co-ordinate and orchestrate their vicious onslaught on the President’s nominee. Wearing dark glasses and false moustaches (despite the protestations of the women in the group who felt that wearing false moustaches did nothing for their gender credentials), they would all then have had to sneak into the secret venue to decide how the planted and completely fabricated judgments of the nominee could be made known to the wider public to cause the greatest embarrassment to the President and the nominee.

They would also have had to had luck on their side. They would have had to find some schoolboys who were prepared to fabricate a sexually suggestive picture of their headmaster and deputy headmaster and would have had to persuade the deputy headmaster to sue the schoolboys for defamation, prodding him to take his case all the way to the Constitutional Court. I am still not sure how they might have gotten to judges Froneman and Cameron to persuade them to write a separate concurring judgment “at the last minute” in the case in which they found that it was never per se defamatory to imply that somebody was gay.

I am also still at a loss about how they might have been able to influence justice Mogoeng – somebody in which the President has placed his trust and therefore not a man that would be easily persuaded by plotters to refuse to sign on to this judgments and then (on top of that) to refuse to give reasons for his dissent. Maybe they cunningly organised a three day prayer meeting which the nominee was persuaded to attend just when he was expected to write a dissenting judgment in this case.

We do know that people like Zackie Achmat and Zwelenzima Vavi are quite astute political strategists (and it might surely have helped that Zackie is reported to know justice Edwin Cameron), but how they might have managed to convince a man of the intellectual calibre and possessing the high morals and principles of the nominee to dissent from a judgment that seemed entirely uncontroversial is still beyond my comprehension. I must say, if this is what happened, I have new respect for the ability of the plotters to orchestrate a completely baseless and vicious campaign against the unblemished record of an innocent man.

The rest must have been easy. After all, the media will do anything to discredit our President as they all hate the President, probably because he is a more successful lover than any of the editors of the big newspapers and a far better singer and dancer. Thus, once the fabricated judgments of the past came to light and once cheeky academics started asking questions about the failure of the nominee to give reasons for his seemingly homophobic views, the job was as good as done.

(By the way, I can neither confirm or deny that I have been involved in this alleged plot. Neither can I confirm or deny that I sit up late at night while listening to recordings of passages of the Constitution – played backward — while fondling my false moustache in the manner of Dr Evil in Austin Powers movies and sticking pins into a voodoo doll of our President, all while giggling hysterically.)

Another thing that I am not yet at liberty to explain is why justice Mogoeng would not have exposed this plot by denying that he ever authored the incriminating judgments fabricated by his tormentors. Surely it is unthinkable that he is in on the plot as well? Maybe he just lost track of all the judgments he had authored or signed on to as a judge, having authored so many judgments in his day as Judge President of the North West that it would have been impossible to keep track of all of them.

But luckily it all worked out well for him — or so it seems.

If one were to take the paranoia of Mr Mantashe and Dr Nzimande seriously, one will have to admit that this was a cunning and devious plan executed with military precision. Well co-ordinated and orchestrated indeed. But the plotters obviously had failed to take account of the fact that Dr Nzimande and Mr Mantashe (old plotters both), were going to be on to them and that soon enough they would be exposed by these gentlemen as the evil plotters they have always been. Now the plot has completely backfired and both the President and the nominee in all likelihood will come out of the events smelling like roses.

Which just goes to show: in politics it always pays to be paranoid. One can never be too careful because enemies lurk around every corner and will go to the most absurd lengths to discredit you if you happen to be the President (or one of his henchmen) of a mid-sized developing country and you happen to be tormented by dreams in which speeches from Shakespeare’s Macbeth recur:

Whence is that knocking?—
How is’t with me, when every noise appals me?
What hands are here! Ha, they pluck out mine eyes.
Will all great Neptune’s ocean wash this blood
Clean from my hand? No, this my hand will rather
The multitudinous seas incarnadine,
Making the green one red.

Why the Constitution is not a conservative document

Sep 7th, 2011

by Pierre De Vos.

54 comments

Prof Jane Duncan has taken issue with a post on this Blog in which I criticised the views expressed by Deputy Minister Ngoako Ramatlhodi regarding the perceived problems with our Constitution. Over at the SACSIS Blog Prof Duncan provides a relatively nuanced and interesting (but in my view misguided) analysis, in which she seems to argue that the Constitution is a major stumbling block standing in the way of addressing the major structural problems in our society which keeps poor people poor and rich people rich:

Ramatlhodi’s arguments are clearly self-serving, and reinforce a trend in the ANC’s behaviour to attack fundamental rights and freedoms. But aspects of his argument ring true, and the standard constitutionalist argument made by the likes of de Vos are inadequate to the task of responding to these criticisms. The contradictions of the type of transition that South Africa chose led to a constitution that is not nearly as transformative as they make like to think. In fact, in certain respects, the Constitution is a profoundly conservative document.

She correctly points out that the South African Constitution is a negotiated document that embodies compromise and that the Constitutional Assembly (who drafted the 1996 Constitution) was bound by 34 constitutional principles which were negotiated by an undemocratic and unelected body at CODESA. She claims that the manner in which the Constitution’s parameters were developed has limited the democratic form and content of South Africa’s constitutional order and notes that:

A clause was also inserted guaranteeing the right to property, where property may only be expropriated for a public purpose and in the public interest, and subject to compensation. So in a cruel twist of fate, the ANC government took on the responsibility of paying for the property that black people had been historically dispossessed of by the white minority. The consequences of this concession to the white minority are starkly apparent. Property relations have remained largely untransformed and land redistribution through the ‘willing buyer, willing seller’ mechanism has been largely a failure. The socio-economic rights regime in the Constitution is not geared towards changing these structural problems.

The arguments presented by Prof Duncan are, in my view, based on a misconception about the nature of the South African Constitution. As I see it, there are at least two problems with the argument presented by Prof Duncan. First, she seems to suggest that the Constitution is somehow at least partly to blame for the fact that the ANC government has not shown any appetite for revisiting the back room deals about the structure of the South African economy – deals reached between the ANC and white capital before the first democratic election in 1994. This ignores the fact that the ANC government has not effected radical change because the new political elite is benefiting just as much from this pre-1994 deal as those white capitalists who struck the deal with them.

Second, she fails to point to those provisions of the Constitution that supposedly give it the profoundly conservative character that she talks about. It is also not clear what aspects of the Constitution she is referring to when she argues that the document has limited the democratic form and content of the South African constitutional order. The only constitutional provision mentioned in the article is the property clause, which she seems to think requires the state to follow a willing buyer willing seller approach to land reform — something the property clause decidedly does not do.

It seems to me Prof Duncan is partly blaming the Constitution for the failures by the ANC government to address the fundamental structural inequalities in our economy — although, to be fair, she does admit that the ANC government should also carry some blame for these failures.

Of course, it must be conceded that the Constitution does contain a property clause which requires just and equitable compensation to be paid to anyone whose property is expropriated to address past land dispossession and to effect land reform. Just and equitable compensation does NOT, however, require the state to follow a willing buyer willing seller policy. That policy was a deliberate policy choice of the ANC government not demanded by the Constitution. Moreover, the Constitution states that the price to be paid must reflect an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including:

the current use of the property;
the history of the acquisition and use of the property;
the market value of the property;
the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
the purpose of the expropriation.

A far more radical land reform programme which would allow for the expropriation of unproductive land and would specifically target land which formed the subject of forced removals over the last 50 years of apartheid, while taking into account the need for South Africa to maintain food security, would be admissible in terms of our Constitution. It is not the fault of the property clause that this has not happened.

Although the state is required to pay compensation for all expropriated land, this compensation does not have to equate to the market value of the property and can be far below the market value, depending on the other relevant factors. The fact is that the land reform programme has been a dismal failure so far because the government has stuck to the absurd willing buyer willing seller policy and because it has failed to put structures and mechanism in place to ensure that those who benefit from land redistribution are assisted either to work the land productively or to make sustainable use of the property in some other way.

One of the major arguments used by the left against a constitutional order in which the Constitution is supreme and in which a Bill of Rights is enshrined to protect the rights of everyone, is that it leaves untouched the private wealth and power of those whose actions often far more decisively affect the lives of the unemployed and the working poor. In such a system, so the argument goes, radical structural transformation of the social and economic system is impossible because private wealth and power is protected by the Bill of Rights, but private institutions and individuals who wield this enormous power has no obligation in terms of that Bill of Rights to respect the rights of the marginal, the vulnerable and the poor.

The South African Constitution is different, as it contains some radical provisions that acknowledge the fact that private power is a major stumbling block in transforming the economy and in creating a more egalitarian society. Thus, many of the provisions of the Bill of Rights also apply to private institutions (companies like De Beers; Old Mutual; Anglo-American; SA Breweries and those owned by Patrice Motsepe) and individuals, while section 39(2) imposes an obligation on the courts to develop the common law and customary law and to interpret legislation to bring it in line with the spirit purport and objects of the Bill of Rights. Often private law rules benefit the powerful by assuming that they are engaging with the less powerful in society on equal terms. Our Constitution commands the judiciary to develop private law rules to take account of this (something, admittedly, that many judges — also those appointed as so called “transformation judges” appointed by the ANC dominated JSC — are often reluctant to do).

And the spirit, purport and objects of the Bill of Rights are fundamentally democratic and transformative. It places a positive duty on the state to take steps that would “achieve equality” (making use of racially based redress measures in appropriate circumstances); that would provide more people progressively with better access to housing, health care, social services, water and electricity; and that would protect the environment. It also places a duty on the state to provide anyone with basic education and to do so in an equitable manner (as the right to education must be read in conjunction with the right to equality).

The fact that the government of the day decided to leave the schooling system largely untouched, retaining pockets of excellence in suburban schools, while not addressing (or only addressing around the margins) the poor schooling received by learners in many township schools, was a policy choice not mandated by the Constitution. In fact, an argument could be made that a proper legal challenge might well result in a finding that the present schooling system (a system which benefits the children of the old and new elites, including the children of Cabinet Ministers) and the way it is being funded is unconstitutional.

One of my students is doing fascinating research on the manner in which teachers are funded by the Department of Education and has concluded that the funding model used by the Department is deeply flawed. This is because it has had the effect of ensuring that better performing and better qualified teachers remain in the suburban schools where they teach the children of the old and new elite, all while a majority of South African children receive a substandard education from often badly trained and unmotivated teachers. The Constitution may well be invoked to challenge this system and it definitely will not stand in the way of a radical overhaul of the system — just as it will not stand in the way of the introduction of a National Health Insurance scheme.

It must be conceded that the Constitution may be faulted for adopting an electoral system that bestows far too much power on political party leaders and bureaucrats and far too little power on ordinary citizens, allowing for an often arrogant and technocratic approach to governance encapsulated by the discourse of “service delivery”. Given the racialised nature of support for political parties, the (now slightly fading) moral authority of the governing party, the centralising and sometimes almost Stalinist tendencies of some factions within the ruling party, and the dominance of a discourse which endorses the need for a strong and less than fully democratic state (purportedly to better effect social and economic change in South Africa), it is not clear, however, that another electoral system would have really led to the kind of grassroots democracy that many of us yearn for.

The Constitutional Court has not been unaware of these problems and have developed interesting legal avenues to try and enhance the democratic nature of the way we are governed. In social and economic rights cases the court has stated that for the government to act reasonably (and hence constitutionally) when it take steps to realise the social and economic rights contained in the Constitution, it has a constitutional duty meaningfully to engage with the affected communities — the so called beneficiaries of “Service delivery” and “development”. (This failure to consult with the community affected by an attempt at “development” was one of the reasons why the Cape High Court found that the City of Cape Town had acted unconstitutionally when it built open toilets for the residents of Makhaza.)

Of course, I am not arguing that the Constitution can or will be used in order to fully and decisively address the structural social and economic inequalities in our society. The state is supposed to do that — within the disciplining boundaries of the Constitution. The Constitution can be used by social movements and political activists as well as lawyers to prod the state along and to force the state to act in a less technocratic and heartless manner or to engage in a far more democratic manner with citizens when it does so. There are limits to what the law and our courts can be expected to achieve.

But to argue that the Constitution is deeply conservative and hence that even if the ANC government wanted to it would not have been able to implement radical policies to begin to address the social and economic inequalities in our society because of constraints placed on it by the Constitution, seems to me to over egg the pudding just slightly.

A tale of two judges

Sep 5th, 2011

by Pierre De Vos.

150 comments

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to heaven, we were all going direct the other way — in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only. - Charles Dickens, A Tale of Two Cities

The revealing interview of Justice Mogoeng Mogoeng by the Judicial Service Commission (JSC) this weekend and the subsequent decision of that body to rubber stamp the decision of the President, reminded me of the famous quote from The Tale of Two Cities reproduced above. We saw the best of judges and the worst of judges sparring with each other. As Xolela Mangcu wrote about this tale of two judges:

Moseneke stood as a symbol of authority and Mogoeng as a beneficiary of power. The question is which, then, will be the real leader of the Constitutional Court: authority or power? By nominating Mogoeng, President Jacob Zuma may well have taken our judiciary down a path where power trumps authority.

We also saw some ordinary citizens, perhaps expecting so little from themselves and from our system of government or deciding to go along with the decision of the President so that they would not alienate the government from which they need to receive work in future, cheering on mediocrity and power for power’s sake. We saw other citizens, animated by a belief in the core values embodied by the Constitution and the belief that as South Africans we deserve the best, who were shocked by what they saw, perhaps unrealistically yearning for authority to trump brute power in our political and legal discourse.

We saw some JSC members prepared to walk in the light of reason and to deal with the painful facts and we saw other members skulking in the darkness of unreason and emotions, displaying a remarkable lack of appreciation for the robust nature of openness and accountability in a system that is worth calling a democracy. And as is often the case when reason clashes with unreason, facts did not stand in the way of those who had no rational arguments to make.

Thus, some commentators and JSC Commissioners have questioned the bona fides of those who have asked critical questions about the suitability of the “nominee” to become Chief Justice, claiming that such people were animated by a hatred of the President and never support any decisions of the President or, worse, claiming that such people confronted the facts because they were racists. This is, of course, a lie. When justice Sandile Ngcobo was “nominated” as Chief Justice, many of us (who have asked questions about the suitability of justice Mogoeng’s appointment) enthusiastically supported the nomination of Ngcobo. Although we might have believed that Deputy Chief Justice Dikgang Moseneke was a better person for the job, we did not say so, but sang the praises of the nominee because he was clearly a man of integrity, somebody with a towering intellect, somebody whose judgments have demonstrated that he is imbued with the values of the Constitution.

In the same manner we cheered on the appointment of Deputy Chief Justice Moseneke and of Chief Justice Pius Langa – even if we had our political differences with then President Thabo Mbeki who nominated these candidates (all of whom happened to be black).

I suspect that the interview over the weekend would have been interpreted completely differently by different people, depending on their political views, their knowledge of the law and legal processes, and their ability to get past shallow emotions to a place where facts and reason reside. For the first group, justice Mogoeng might well have emerged as something of a hero, somebody wrongly vilified by nasty people with an axe to grind. After all, the nominee did not come across as the ogre depicted by Zapiro, nor as a bumbling fool, and he passionately, aggressively and sometimes bitterly defended himself against the sharp criticism levelled against his judgements and his judicial philosophy and displayed a moral flexibility much admired in politicians.

I happen to find myself in the second group who was deeply troubled by what emerged at the JSC, based not on emotions but on the facts and an analysis of the issues at hand. In this sense the interview was more revealing than expected.

Justice Mogoeng justified some of his rape judgments and the seemingly patriarchal reasoning employed by him in those judgments by claiming that he was merely following the precedent set by the Supreme Court of Appeal (SCA) to which he was bound as a judge, what I would call “the SCA made me do it” defence. He thus justified his views that women abusers who are “provoked” by the victim deserve leniency, that rapists who know the victim should also be given some leeway, and that child rapists can legitimately be described as having been “tender” to the child he raped because the injuries sustained by the child were not as horrific as in other rape cases, by claiming that this approach is in line with the law. The problem is that these views are not in line with the law as it has developed after the end of apartheid.

These justifications were revealing because they suggested a lack of knowledge of the law and a lack of knowledge and/or lack of respect for the legislature who has spoken quite forcefully on this issue. Thus, in defence of his judgment in S v Moipolai (handed down in 2004, ten years after the advent of democracy) in which Mogoeng stated that it was “highly insensitive of the Appellant firstly, to punch an 8 months pregnant woman, secondly, to punch her so hard that he caused her to fall, and thirdly to punch her because her sense of decency and privacy did not allow her to share the same bed with the father of her children and another woman”, justice Mogoeng relied on a judgment of the SCA in S v N, handed down at the height of apartheid in 1988. In that judgment the Appellate Division (as it was then called), displayed the kind of patriarchal values that was rife amongst apartheid era judges by stating that it was permissible to take into account as a mitigating factor in sentencing in a rape case that there was an intimate relationship between the rapist and the survivor.

Of course, since 1988 the legal landscape in South Africa was supposed to have changed dramatically. This is what some of us mean when we talk about the “transformative” nature of our legal and constitutional system. We adopted a new Constitution in which the rights of women are now protected. Parliament passed sections 51 and 53 of the Criminal Law Amendment Act 105 in 1997, providing for minimum sentences to be imposed on rapists unless compelling circumstances existed to deviate from this. This was done exactly to prevent judges with patriarchal views from imposing inappropriately lenient sentences on rapist based on criteria that says more about the sexist assumptions of the judge, than on the way in which the survivor might have experienced the rape.

In 2001 the SCA made it clear that knowing the rape survivor would NOT constitute such a compelling circumstance that would allow for a reduction in the minimum sentence. (One could add that ordinarily it should be an aggravating circumstance that the rapist knew the survivor — at least for anyone imbued with the values enshrined in the Constitution – because the effect of being violated in this way by somebody one knew would be devastating for the rape survivor.)

Mogoeng’s justification for his rape judgments is therefore surprising as it suggested that our Chief Justice designate was at the time when these judgments were handed down wholly ignorant of the new legislative environment and the constitutional values embodied by the legislation. It also suggested that the nominee might have been unaware that the SCA had developed our law in this regard to bring it in line with the Constitution and the relevant legislation. Whether ignorance of legal precedent and legislation should be a disqualification for appointment as Chief Justice, I will leave for every reader to decide for him or herself.

Mogoeng’s defence of his “dissent” in the Dey case was perhaps more bizarre and therefore more damaging to his image. Apart from the fact that his defence was less than plausible, it also contained in it a serious admission. Justice Mogoeng claimed that he was given little time to decide on whether he agrees with the other judges of the Constitutional Court that it would never per se constitute defamation to call somebody gay. He did not give reasons for “dissenting” from this view, Mogoeng claimed, because he had not really had time to apply his mind to the issue at hand.

This argument — if indeed true — appears more like an admission of a dereliction of duty on the part of the nominee than as an exculpation for not providing reasons. Surely when a judge sits on the Constitutional Court and indicates that he or she disagrees with the opinion of colleagues and if he or she is then asked to provide reasons for the disagreement but refuses to provide such reasons, one would assume that the judge did apply his mind to the matter but decided for strategic or other reasons not to provide reasons for the disagreement. Can one ever indicate disagreement with others without having applied one’s mind to an issue? To me it sounds a bit like claiming to be half pregnant — not something widely accepted as possible amongst doctors or people with any knowledge of the human body. How could one possibly indicate a disagreement without having thought about why one is disagreeing? To me, at least, this explanation makes no sense and does not ring true.

When one is a judge and is required to decide where one stands on all the important issues before the court, one is required to apply one’s mind to all the issues at hand and if one disagrees with the majority judgement on any issue one is required to provide reasons for this disagreement. A failure to apply one’s mind to the issues at hand would suggest that one has failed to live up to one’s judicial oath of office and, in effect, that one has refused to do one’s job properly.

I imagine that for many non-lawyers justice Mogoeng’s defence might ring true. After all, we have all been in situations where we have been pressed for time and have not given an issue as much thought as one would have liked to. As a member of a tea club one might well have failed to form an opinion on whether the dues of members should be increased or not. But the difference is of course that most of us are not judges and are not required by the Constitution to uphold the law, to apply our minds to the issues raised by a case before us and to provide reasons for our decision.

And what happens now? I have heard talk of civil society groups challenging the constitutionality of the process followed by the JSC on the grounds that the JSC had failed to engage in proper consultation with the President on this issue as required. It is argued that this is so because the JSC had decided that it was impermissible for it to consider whether other candidates may have been more suited for the position. How can there be a meaningful exchange of ideas if the one party exchanging ideas sees its role in such narrow terms, some have asked? This is a plausible, perhaps even strong, legal argument.

However, I am not sure it would be in the interest of the judiciary or the Constitutional Court for this matter to be litigated as it might further damage the credibility of our judiciary. Long drawn out litigation may well turn into a highly politicised and partisan matter, pitting staunch defenders of the President and the candidate against those who believe the JSC must act as a check on the exercise of power by the President when he appoints a Chief Justice.

While it would be good to get some clarity about the meaning of the constitutional provision requiring that the President must consult the JSC BEFORE appointing a Chief Justice, a legal challenge will probably ultimately not change anything as it will be based on procedure and not substance and will not necessarily lead to a different outcome — given the fact that the President does have the constitutional power to appoint a Chief Justice. Would it be possible to approach a court to give clarity on this legal point without asking for the decision of the JSC or the President to be set aside? I am not a procedural lawyer, so I am not sure how to answer this question.

In any event, President Zuma will now appoint Mogoeng Mogoeng as the new Chief Justice, despite the fact that the nominee has been tainted — to some degree, at least — by the process of his appointment. (Depending one one’s view, the nominee would have been tainted either by the “vicious attacks” against and “onslaught” on him by dark forces, or tainted by the close scrutiny of his judicial views and temperament.)

My fervent hope is that the new Chief Justice will be able to demonstrate through his words and deeds over the next ten years that those of us who asked critical questions about his appointment and about his values and commitment to the Constitution have been mistaken. Maybe the gruelling process may have allowed the nominee to reflect more seriously on his commitment to gender equality and the dignity of gay men and lesbians and might have brought a change of heart. Maybe he might have realised that he ought not to rely on his personal religious views — as far as they clash directly with the values enshrined in the Constitution – when he considers cases coming before his court. I, for one, will keep an open mind.

Constitution

Secrecy Bill less about media freedom, more about national security state

Why a ten year old agreement cannot authorise deployment of soldiers in our cities

Lest we forget

Why the taalbulle will destroy Afrikaans

Why no human rights culture in the Police Service?

About family fights and transformative constitutionalism

Another legal lesson for the JSC

The plot to spite our President

A tale of two judges

Follow me on twitter

Quote of the week

Search

New from Seminar Room

New from Updates

Links

Recent Comments

Recent Posts

Archives

Categories