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Interview with justice Mogoeng – live blog

Sep 3rd, 2011
by Pierre De Vos.
55 comments

I am attending the JSC interview with justice Mogoeng and will blog on proceedings. Refresh your browser for updates.

10:15 – Time for a break. I have another appointment so sadly won’t be able to blog on rest of interview.

10:10 – Mogoeng says he understand President might have considered other judges but chose him and somebody had to make themselves available so that work of the judiciary could go ahead. Denies that he has personal ambition.

10:05 – Ngoepe runs through all those who support the nomination. Probably trying to counter the submissions of COSATU and others who criticised the nomination.

10:55 – Smuts asks if civil society have the right and duty to raise questions about Mogoeng’s judicial approach. Mogoeng says gender groupings and others must be encouraged to be vigilant, but all he was questioning was that these institutions were not balanced in their criticism.

10:50 – Adv Smuts asks why Mogoeng followed a 1988 judgment of SCA in rape case when Constitution was adopted in 1994 and minimum sentencing legislation was adopted in 1997. Refers to SCA judgments of 2001 which rejected the Mogoeng argument that it might be a mitigating factor when the rapist knew the victim or was intimately involved with her. Was it sound to refer to 1988 case instead of 2001 judgment? Good question! Mogoeng says one does not always come across all the authorities that are relevant. So he admits that he was wrong (and in effect, that he did not know the judgments of the SCA), but says the fact that he ignored 2001 judgment does not show that he has a sexist mindset. Moseneke follows up and points out that anyone alive to the new values embodied by the Constitution and the legislation could not have made the judgement Mogoeng did and that the judgment was therefore not jurisprudentially sound. Moseneke asks why Mogoeng did not follow the authorities? Moseneke also points out that Mogoeng relied on facts of previous cases instead of the ration decidendi, seems to give Mogoeng a bit of a lecture on how to be a judge.

10:45 Minister Jeff Radebe once again mentioned the “attacks” on Mogoeng. Says there is nothing wrong for a prosecutor being appointed as an acting judge (something that judgments in other jurisdictions have found to be in contravention of the independence of the judiciary). As prosecutors are independent, they can act as judges. This ignores questions about whether such a prosecutor should hear criminal cases when he or she is invested in successful prosecution of accused persons.

10:38 – Prof Schlemmer asks whether JSC and whether it should not appoint better judges to start with, entering a political minefield as this line of questioning can easily be interpreted by some as suggesting that transformation leads to problems. Mogoeng says he would be reluctant to engage with the question.

10:35 – Prof Schlemmer notes that in Germany they want to pass legislation to hold the state liable if a judgment is not delivered within 5 months. Mogoeng says JSC must make sure that there are training opportunities for judges, suggesting that better training would stop delays of handing down of judgments (which can be up to seven years – as Ngcobo stated on another occasion). Suggests training will solve the problem, not disciplinary action against judges who fail to write judgments.

10:28 – Being asked about accountability of judges and the role of CJ in this. Sometimes there is an overemphasis on the independence of judiciary, one should strike a balance between this and accountability. Asked about CJ’s role in disciplining judges i.t.o. JSC Act. Mogoeng says that now that we have the structures in place, we must make sure that these structures get on with its task. Mogoeng says he would not go so far as saying that a judge should be removed if he or she does not deliver judgments in time. Depends on the facts of a particular case.

10:11 – Chohan asks about UCT’s DGRU submission which developed criteria for Chief Justice. One of the criteria is the ability of candidate to lead the Constitutional Court itself. She asks about the esteem he is held by his colleagues at the CC and Mogoeng states that he “has a sound relationship” with his colleagues, not answering whether he is held in esteem by them.

10:05 – Asked why law made by courts seem to differ than from law made by Parliament on rape as former suggests that one should make a distinction between rape of someone known to victim and someone who is not, correctly in my view, suggesting that our courts more generally do not always treat rape in a way that is acceptable or should be acceptable. Deputy Minister Fatima Chohan asks about minimum sentences, pointing out that Parliament has now made clear that knowledge of victim is not compelling reason not to give a minimum sentence. Not sure if she is criticising the nominee who has suggested that it should be a reason to treat rape differently depending on the relationship – despite the minimum sentencing laws. Is she suggesting that Mogoeng did not obey the law as passed by Parliament but rather followed the SCA judgments and hence did not respect the separation of powers? The sentencing laws were passed in 1997, before Mogoeng handed down some of his controversial judgments.

9:53 – Moseneke asks about Mogoeng’s views and that of his church about other religions and their right to exist. Mogoeng says his church is Christian in nature, guided by the holy bible. Other faiths have their own books. There will always be points of disagreement between faiths. Mogoeng suggests that his views might differ from that of his church and that he would be guided by the Constitution as one should not confuse your personal beliefs and the fundamental rights of everyone, thus suggesting that when he is a judge he will not follow the dictates of his church.

9:47 – Asked how he would manage to be CJ given the widespread opposition to his nomination. Mogoeng states that the criticism related to three judgments only (suggesting other rape judgments did not demonstrate gender insensitivity) but now he has had opportunity to show this is not as shocking as it may appear and people will accept that. He says he will reach out to those who criticised him because if ANC and NP could agree to act for best of country, so could others.

9:39 – Some Commissioners trying to stop further questioning of Mogoeng on issues raised before (rape judgments etc) and is supported by others like Deputy Minister Ramatlhodi.

9:34 – Asked about rape judgments and the “point of departure” of judge Mogoeng who suggested that but for the presence of another person the rapist would have had sex with the survivor. Mogoeng again blames the SCA for his views. Still says that because complainant knew the rapist the effect of the rape could not have been so serious.

9:26 – Asked about number of reported judgments, but Mogoeng says he cannot remember how many. Asked again about his Dey “dissent” in which he never gave any reasons. It is suggested that he did not apply his mind to the case at hand, which is something a judge should never do.

9:22 – Being asked about the right to health care and the NHI scheme now.  Mogoeng says that that people are fairly satisfied with health services as it has improved.

9:17 – Being asked about competition law now. Judge Dennis Davis might have loved to answer this question but Mogoeng declines to comment due to possibility that such a matter might come before the court.

9:05 – Sunday morning and back at the hearing. Discussion about the devastating COSATU submission which suggests that Mogoeng might not be fit to serve as a judge.

First impressions of the interview: Given the sustained criticism of the nominee by a wide range of civil society organisations, including ANC-aligned COSATU and Nadel, the nominee probably performed better than expected. Although his defensive and emotional defence of his record in his opening statement did not appear judicial and at times sounded more like the response of a politician than a Chief Justice, I would guess that it might have garnered some sympathy from many South Africans watching the interview on TV. Evidence of his quick temper — rebuking the Chair of the JSC for perceived sarcasm and often bristling under sustained questioning from the more critical members of the JSC – might well have diminished his stature with many lawyers and members of the judiciary, but probably also garnered some sympathy among those not well versed with the ways of the judiciary.

The nominee made some excellent points, and his statement that the government should change its briefing patterns in order to assist black and women practitioners to gain the necessary experience to prepare them for appointment to the bench is well taken. (I would argue that anyone interested in the independence and credibility of our judiciary — including attorneys working in big law firms — could also take this need for a change in briefing patterns to heart.)

However, his answers to criticism of his rape judgments were not convincing. He never explained why he thought that it might be a mitigating factor that a rapist is married to or intimately involved with the survivor or why he could say that it was a mitigating factor that the man who assaulted his partner by dragging her behind his car was “provoked” by the victim. Mere platitudes about support for women’s rights will not dispel concerns about the patriarchal views of the nominee regarding women.

His explanation for the non-writing of a judgment in which he disagreed with the judgment that it can never be per se defamatory to call somebody gay was also not convincing. Surely his colleagues would have asked him to provide reasons for his dissent and surely one only dissents when one has reason to? The contention that he did not have time to think about whether he agreed with this judgment and that even today he has not formed a clear view on this issue, is quite frankly, bizarre. It is difficult not to conclude that he decided that being gay is so awful that it would always be defamatory to call somebody gay but that he could not provide reasons to that effect because that would have contradicted the very provisions of the Constitution which he had sworn to uphold. In the end Justice Mogoeng indicated that he might well now have signed on to that judgment, suggesting that he was prepared to change his views — at least in public – if his views became too controversial and would hamper his ambitions – not a characteristic that one would want from a Constitutional Court judge or any judge for that matter.

The JSC’s performance was mixed. The ANC members often appeared to want to answer questions for the nominee and bent over backwards to show their support for him, while some of the more critical questioners probably did their cause more harm than good by asking questions in a tone that was overtly aggressive. Justice Moseneke was an active chairperson and asked some pointed questions of the nominee, providing hints that there might be some tension between him and the nominee. Sometimes the tension between them was palpable. Other questioners posed the difficult questions and allowed the nominee to respond to the sustained criticism against his record, but some questioners seem to suggest that it was close to treason to ask critical questions about a nominee, referring to the criticism as “vicious attacks” and as an “onslaught”, suggesting that they were uncomfortable with democracy, which allows for a sustained scrutiny of the decisions of a President.

The impression left was that the President had already appointed Mogoeng and that the consultation with the JSC was little more than a charade. Some JSC members seem to think that all they have to decide is whether the nominee has the requisite legal qualifications and is fit and proper – not whether he is a good choice or the best choice, suggesting that it saw the JSC as little more than a rubber stamp of the President’s decision except in cases where the President would want to appoint, say a Charter accountant with a serious criminal record as Chief Justice.

A last question: would the submission from COSATU, which suggested that perhaps Mogoeng should never have been appointed as a judge, make any difference to the proceedings? The answer is that it probably would not as the ANC members and Presidential appointees on the JSC have already decided to support the nomination.

17:09 – The meeting is adjourned until tomorrow at 9h00. Will continue then.

16:45 – Adv Smuts asks Mogoeng about the dinner Mogoeng had with Jacob Zuma where he met the President. Mogoeng states that this was the first and last time he spoke to President Zuma – except when he attended the heads of courts conference and at the judges conference. And the fourth time was when he went to the President’s house to be formally asked to become Chief Justice. Of course, this phrasing would give some ammunition to those who wish to challenge the process as it sounds as if the decision had been made to appoint Mogoeng before consultation took place and that the consultation is completely irrelevant. Maybe the nominee just misspoke on this score?

16:44 – Asked about whether he would prefer the greater good of society above the rights of the individual, but Mogoeng declines to comment.

16:36 – Mogoeng asked about why he was selected and not one of the more experienced candidates. When Moseneke was appointed Deputy Chief Justice, says Mogoeng, other judges on the CC were more senior but they were not appointed and no one complained. Mogoeng sounds bitter about the criticism raised about his “nomination” as he claims the tenor of the discussion about him changed after he was “nominated”: first he was mentioned as a possible candidate but when he was nominated people said he was not suitable, which makes no sense.

16:32 – Ngoepe raises the question of the CC hearing the case about the extension of the term of office of the Chief Justice. Mogoeng says he felt “very uncomfortable” sitting in that case (but not uncomfortable enough to recuse himself, it seems). Sounds as if Ngoepe is indirectly having a go at Moseneke.

16:24 – Ngoepe asks about the rape judgments. It appears as if he is coming to the nominees assistance, saying that a judge must list the mitigating factors when he sentences a rapist. The question of whether one should rely on the fact that the women “aroused” the rapist or provoked him as mitigating factors, is avoided.

16:15 – No matter what happens, I think it is a good thing that there is an open hearing after civil society was given the opportunity to express their views. Cosatu made a submission at the last minute which was surprisingly critical of the nominee stating that: “It is disturbing that even if NOT successful Justice Mogoeng will remain on the bench as an ordinary Constitutional Court judge. Whereas the reality is that questions as to his fitness and appropriateness to serve as a judge on ANY court, let alone the Constitutional Court, raises serious concerns as to the nature and the rigour of the original process that enabled him to ascend to the bench.” Those who claim that the nominee has been treated badly seems to miss the point (apart from the cartoon of Zapiro, which I believe was completely out of line).

15:55 – Tea break. So far the interview, after a slow start, has been quite revealing. Justice Mogoeng is being subjected to serious questioning and there has been flashes of anger and irritation coming from him. This puts the rather emotional and defensive opening statement in some perspective. The ANC aligned Commissioners seem to have made up their minds and are trying to protect the nominee. But am I the only person who cringes when white Commissioners question Mogoeng on his experience? It can easily come across as arrogant and runs the risk of sounding racially insensitive.

15:45 – Ngoepe now jumps in and says that it is also wrong for son or daughter to appear before judge. Of course, this is a very good point. But two wrongs obviously do not make a right.

15:34 – Minister Radebe refers to Constitution, which refers to minimum qualifications for appointment as a judge, suggesting that Mogoeng has the MINIMUM qualifications for the job, obviously not setting the bar very high. Now Radebe walking Mogoeng through the failure of the nominee to recuse himself when his wife prosecuted the case and providing the answers to justify this lapse, making it unnecessary for Mogoeng to make his own case. We all know where he stands on this nomination (just as we now know where Moseneke stands on the nominee). Moseneke asks whether there is a difference between a son and a wife when it comes to whether one should recuse oneself. Mogoeng says no: the perception would be the same. In others words, his defence is that others did the wrong thing so when I did the wrong thing I should not be judged for it. Moseneke now makes this very point!

15:30 – Mogoeng asked about how he was received by other judges of CC. They did not necessarily reach out to me.

15:20 – Moseneke jokes that “I am not at all close to the President, indeed, I am not”! This is turning into the Moseneke and Mogoeng show. The electricity between the two (in a negative sense) is palpable.

15:15 – Moseneke asks whether he would have written differently now, would he have said that the man (the rapist) was allowed to be aroused because women was scantily clad. Mogoeng says: “maybe, I would have changed my decision…..”

15:08 – Now asked about the child rape judgment where Mogoeng stated that the rapist had a “tender approach” towards the child. Mogoeng says he was not treating the injury of girl child in insensitive manner but one gets different degrees of violation in rape cases and one must make this distinction. Moseneke mentions the submissions of women’s groups which pointed out that the judgments included myths about rape not in line with gender sensitivity. Mogoeng again relies on SCA. He says SCA reasoning was the same as his. In other words, his defence is: the SCA made me do it.

15:04 – Mogoeng says when he gave the rape judges he was young and he looked at SCA judgments, and finds it problematic that people just focus on the fact that he had mentioned the relationship between the parties as a mitigating factor.

15:01 – Now being asked about whether Mogoeng sees difference between rape and marital rape. Mogoeng now states that he sees rape as rape. Asked whether being married to the victim is a mitigating factor. Mogoeng states he relied on SCA and says marital state is not the only or decisive factor in sentencing. He is trying to skirt the question because the judgement referred to by questioner clearly shows that Mogoeng does make a distinction between marital rape and other forms of rape. As Moseneke mentions all the shocking rape judgments, Mogoeng looks less than happy.

15:00 – Koos van der Merwe asks about Mogoeng’s temper and why he told Moseneke not to be sarcastic: “It is the first time in 15 years that an applicant has been so arrogant”. Mogoeng apologises to Moseneke for losing his temper. Well, this is not boring.

14:50 – Adv Smuts now asks him about appointment of acting judges from ranks of the prosecution service: is this not infringement of separation of powers. Mogoeng says he has only applied his mind superficially but “it is an option worth exploring”. Not an impressive answer as the candidate is skirting the issue. Mogoeng reminds me of Zuma: friendly, pliant and very vague and not really thoughtful enough to answer some of the difficult questions. Moseneke pushes the point, saying this is a very vital issue for the independence of the judiciary, so he is suggesting Mogoeng is not really a person who has sufficient concern for this independence.

14:45 – Now being asked why he has no publications and so few reported cases. Mogoeng says he has no passion for writing articles. He suggests that some judgments were not reported for reasons that are not clear.

14:40 – Moseneke now pursues this very question. Mogoeng seems to skirt the question as he seems to suggest that because he did not have time he did not give reasons and now he claims that he does not have a view on this now. Mogoeng is angry and calls Moseneke sarcastic because Moseneke presses him and does not allow him to skirt the issue. Mogoeng now claims that he would have not dissented! In other words, he is disavowing his previous views on this issue by pretending that he never had real views on the matter to start with. Wow! Not very consistent or principled. There is clearly some tension between Moseneke and Mogoeng.

14:36 – Now being asked about the Dey case and about not writing a dissent. Mogoeng says he should have provided reasons. Someone should ask him what these reasons would have been.

14:30 – Is being asked now about chairing JSC and whether it is doing its job. He talks about briefing patterns and why government often only briefs white counsel and the need to change this. This is a good point, but what a Chief Justice can do about this is not clear.

13:30 – Moseneke asks that if CJ is intellectual leader, then must convince us that you have that intellect. but now it is lunch first.

13:23 – Lex Mpati, President of SCA asks about the relationship between JP’s and the CJ as well as about President Zuma’s statement in which he told judiciary not to make policy. Mogoeng says that judiciary must be independent from other branches of government and lobby groups, but must know it’s role is not boundless. Problem arises when judges determine policy.

13:16 – Adv Madlanga asks about how CC colleagues feel about his appointment. Mogoeng says any CC judge might want to be CJ but no judge on CC would not cooperate because of disappointment about not being appointed. Good answer.

13:07 – Adv Fourie asks about court structure and the question about whether CC should become apex court as well as about office of Chief Justice. Mogoeng talks about JP’s, basically saying same thing as in previous interview. Talks about need for CC to have sifting mechanism to select only really important cases.

13:00 – Minister Radebe talks about a “vicious campaign” against Mogoeng and asks whether he would be able to carry his colleagues with him and provide examples of this. The ultimate sweetheart question. Mogoeng says he has confidence of colleagues as at judges conference he was asked to oversee implementation of decisions taken there. Moseneke says: one thing to run a conference another to be Chief Justice.

12:45 – Ms Boroto asks about access to the judiciary; how would you ensure access to justice for all? Justice Mogoeng says he invited traditional leaders, religious leaders and civil society to conferences to discuss these issues and he believes traditional courts could play a role here. (Gender activists will of course be rather nervous about this proposal as traditional courts are by their very nature patriarchal.) M states that such courts could be trained so that they actually adhere to the Constitutional imperatives of gender equality.

12:20 – Judge President Bernard Ngoepe now asking questions, calling the criticism against Mogoeng “an onslaught” and making a longwinded speech. Says that JSC members have an open mind about the issue.

11:46 – So, finally Mogoeng’s statement is coming to an end and he claims again that he is neither homophobic nor gender insensitive.

11:40 – On freedom of expression, he states that this right must be exercised with reference to dignity. His concerns have been vindicated by some of the cartoons about him. This suggest that the judge believes Zapiro cartoons about him are defamatory.

11:27 – Now dealing with why he prosecuted people on behalf of the Bophutatswana bantustan. He got a bursary from that government, despite organizing a protest on June 16 and being dismissed from school for it. Bursary required him to become a prosecutor.

11:24 – Justice Mogoeng seems to have an uncanny strategy – wear down critics by droning on for so long that no one would ask difficult questions.

11:14 – He refers to the appointment of John Roberts as Chief Justice of the USA when he was only 50 years old. Maybe not the best example as Roberts is a far right-wing judge and was appointed by the bumbling George W Bush. But I agree that his age is not a very convincing reason for not appointing Mogoeng as Chief Justice.

11:10 – Quotes from a male rape case which, perhaps inadvertently, underlines that he sees this kind of rape as more disgusting than the rape of a woman.

11:07 – On the Dey case he states that he refused to sign on to aspect of judgement which states it cannot be per se defamatory to call someone gay, Muslim or Christian. If this is to be believed he is saying that it would often be defamatory to call someone a Christian.

11:03 – On homophobia M states that he has constitutional right to freedom of religion and that his church is no different from other churches, based on the idea that man must marry a woman and not another man. In effect, he says that he endorses homophobia of his church but that this is no different from homophobia of other churches.

11:00 – M is reading his document of more than 40 pages in which he attempts to justify his various judgements on rape and other controversial judgements.

11:00 – M reads from judgement where he stated that it was “highly insensitive” of a man to punch and rape his eight month old girlfriend. I would not call it insensitive, I would call it brutal and callous.

10:50 – Now discusses the various controversial gender violence cases. Says accused who dragged his girlfriend behind his car was given a suspended sentence so that he could be put on terms. Minister Rbadebe talks about the viscous attacks on Mogoeng.

10:45 – M: It is unfair and disingenuous to use 3 cases out of 10 to argue that I am not sensitive to gender violence. He mentions cases where he imposed heavy sentences on the men who were convicted of rape.

10:40 – M makes opening statement. Talks about legal philosophy and commits himself to Constitution and it’s values.

10:28 – Decided that Justice Mogoeng will be interviewed first, and he takes his seat.

Why Ramatlhodi promotes an autokratic kleptocracy

Sep 1st, 2011
by Pierre De Vos.
156 comments

It is by now trite to note that in South Africa there are very serious, some would say obscene, disparities in wealth between rich and poor, made worse by the recent economic turmoil in the world. More than a million South Africans have lost their jobs over the past two years, joining the roughly 35% of the population that are unemployed or has long since stopped looking for work at all.

Many people continue to live in informal settlements (in shacks that are often flooded and are bitterly cold in winter) and many go to bed hungry. Many cannot afford the pay-as-you-go water and electricity services ostensibly provided to them by the state – if these services are provided to them at all – while many others receive substandard health care and are forced to send their children to dysfunctional schools where teachers are often not in class to teach and where children may well have no access to libraries, laboratories or sufficient computer facilities.

Of course, if one happens to be an ANC leader – inside or outside of government – or if one is one of the captains of industry (who became rich by exploiting black workers during the apartheid era and remain rich today by donating money to the ANC), one would probably not directly be affected by this reality. After all, one will be driving around in a car (who was paid for by tax money that could have fed a starving child) costing more than a million Rand (that is, when one is not renting a fancy car for hundreds of thousands of Rand a year), or one will be living in the Mount Nelson Hotel (if one is not living in a R8 million house provided by the state). Just yesterday it was reported that the state had forked out R183 million on brand new mansions to house cabinet ministers, money that could have been used to house around 2,000 poor families.

It is against this background that one should read the bizarrely immoral opinion article (penned by Ngoako Ramatlhodi, ANC NEC member, chairperson of the ANC National Elections Committee and Deputy Minister of Correctional Services) and published in The Times today.  Mr Ramatlhodi probably knows that the credibility of the ANC and the government it leads is being eroded by lavish and wasteful spending on the perks of party leaders and by the constant revelations of government corruption in our media and by the Public Protector. 

It is therefore not surprising that he is now using the South African Constitution and our indpendent constitutional institutions as scapegoats to try and divert attention from the failures of the government. Our government is failing to address the most basic needs of the poor while government and party leaders live lavish lifestyles at the expense of taxpayers and of the poor, whose lives could have been improved by the money wasted on extravagant perks and the millionaire lifestyles of ANC leaders.

According to Mr Ramatlhodi the Constitution is deeply flawed because while it bestows political power on the ANC (who by virtue of divine intervention will always represent the interests of all black South Africans even when its leaders steal from the very masses it claims to represent and when these leaders misuse funds – earmarked to address the social and economic inequality in our society - to satisfy their own venal and selfish needs), it also supposedly ”immigrates” substantial power away from the legislature and the executive and vests it in the judiciary, Chapter 9 institutions and civil society movements. He bemoans the fact that the ANC ”embraced what one calls the emptying of the state” and then continues:

Apartheid forces sought to and succeeded in retaining white domination under a black government. This they achieved by emptying the legislature and executive of real political power. On the other hand, the liberation movement was overwhelmed by a desire to create a society bereft of any form of discrimination and, as a result, made fatal concessions. We thus have a Constitution that reflects the great compromise, a compromise tilted heavily in favour of forces against change.

Thus the Constitution - interpreted and applied by the judiciary, and Chapter 9 bodies such as the Public Protector - as well as civil society groups fighting for real transformation of our society have been allowed to rob the ANC of its power to govern the country through the legislature and the executive, blocking the “fundamental change” required to turn South Africa into a true kleptocracy. (Ok, I paraphrase the honourable Deputy Minister’s words slightly, but pardon me for interpreting this opinion piece as arguing for more power for the ANC to act in the interest of its leaders without having to account to anyone for how it spends and wastes our money for the benefit of the few.)  

Mr Ramatlhodi is also upset that people challenge unlawful and unconstitutional actions of the government in our courts and that they dare to take part in democratic debates by expressing views with the aim of trying to influence public opinion for the better of society. God forbid that democracy should actually lead to a situation in which the majority of South Africans might disagree with something the governing party – with its divine right to rule - might have said or done. The ANC can surely not allow democracy actually to, well, work. What would become of the cars, the houses, the tenders, the champagne, the whiskey, the farms, the trips to visit drug-dealing girlfriends in Swiss jails?

The other tactic is to challenge as many policy positions as possible in the courts, where the forces against change still hold relative hegemony. The legislature itself has not escaped the encroaching tendency of the judiciary, with debatable decisions taken by majority views, in some instances. Decisions of the Judicial Services Commission have equally been systematically subjected to judicial reviews. The process of delegitimising the commission and its decisions has been initiated through the instrument of “public opinion”.

These views are not only uninformed and demonstrably wrong; they are also callous and dangerous. Blaming the Constitution, the courts and chapter 9 institutions for the failures of the government sufficiently to change the lives of ordinary citizens who suffered under apartheid is like a man blaming an umbrella for making him wet or a white South African blaming black citizens for apartheid. 

First, it is based on the assumption that the government of the day – who currently happens to be led by the ANC – should have a free hand to do what it likes because any check on the exercise of power of the legislature and the executive would turn these branches of government into ineffectual and impotent institution. This is of course nonsense, as the majority party in Parliament can pass any law it wishes – as long as it does not infringe on the rights of the very citizens who vote for it.

Second, it assumes that a majority party will always have the best interest of the country and its people at heart, that it will never act in a selfish or corrupt manner and that it must always be trusted to respect the rights of everyone and to act in a manner that will advance the interests of those who most rely on the state for their survival and well-being. This is a truly bizarre view as governments are formed by people – and not ordinary people but politicians whose job it is to amass power and to act in their own interest while pretending to serve the public - who are not superhuman and will not act like angels unless they are forced to. 

Lastly, this assumes that the ANC government actually always acts in the interests of the poor and the marginalised – even when it spends R183 million on new houses for a few cabinet Ministers, when cabinet Ministers stay at the Mount Nelson Hotel at taxpayers’ expense, when its officials enter dubious and probably corrupt leases with well-connected businessmen and waste billions of Rand in the process, money that could have been spent on really making a difference to the lives of those South Africans who are unemployed and depend on the state for its survival and well-being.

The view of the courts expressed in the Ramatlhodi piece is also either shockingly uninformed or deliberately misleading, which is, I guess, understandable as one needs to manufacture an enemy when one is losing the trust of the electorate because one is so obviously acting in a selfish and venal manner to line one’s own pockets to enable one to live a life of luxury at the expense of the poor. If Mr Ramatlhodi had read only a few judgments of the Constitutional Court, he would have known that our highest court – far more than the legislature and the executive – has been acting as a champion of transformation and of the interests of the poor.

If it was not for that court, the government would not have been forced to provide anti-retroviral drugs to poor, mostly black, pregnant women, thus saving the lives of hundreds of thousands of (mostly black) babies – all while people like Mr Ramatlhodi kept criminally silent. How many hundreds of thousands of babies died as a result of this communal silence, Mr Ramatlhodi? He would have known that thousands of people have been protected from unlawful eviction through the intervention of that court.

He would have known that the Constitutional Court has enthusiastically endorsed affirmative action and land reform and has taken the ANC government to task for not doing anything to scrap some of the most scandalous pieces of racist apartheid era legislation. One wonders whether this oversight might have been caused by the fact that leaders were too busy to benefit from tenders and to wine and dine their friends at taxpayer’s expense at the Mount Nelson Hotel or at their government provided mansions to actually care enough to table changes to the oppressive apartheid laws in our democratic Parliament. 

He would have known that the Constitutional Court declared invalid sections of the truly shockingly named KwaZulu-Natal Slums Act adopted by the ANC government in that province because that Act tried to punish the landless or homeless poor for being landless or homeless (which is understandable, I guess, because a person like Mr Ramatlhodi would probably not want to be reminded of the landless and the homeless when he is sipping champagne in his R8 million government provided house).

He would also have known – just to be fair – that sometimes the Constitutional Court has not been as progressive in its judgments as some of us would have liked but that this have almost always been when it has endorsed government policies or pieces of legislation that are anti-poor, anti-women or anti- the marginalised and the vulnerable. Thus it found that it was ok for the government to cut off the electricity of destitute people and for the government to have pay-as-you-go electricity meters installed in the homes of Joburg residents – even if this was only done in poor areas where black South Africans live and not in rich areas where the ANC leaders and white people live.

It also found constitutionally valid a law which basically left destitute a women who had looked after her partner for more than ten years because that law only required the estate of a deceased partner to support a women if she had been legally married to her partner. That the ANC of Mr Ramatlhodi would support such a law is probably not surprising, seeing that the ANC President has now nominated a man for Chief Justice who has made the following remarks in a case in which a man was found guilty of raping a innocent and defenceless child (in the case of S v Sebaeng (CA 16/2007) [2007] ZANWHC 25 (22 June 2007) about the “shortcomings” in the victim’s evidence:

She claims that the sexual intercourse was very painful but there was clearly nothing about her to suggest that she was in any pain when she arrived home and even during her stay there at her grandmother’s home … When she arrived at her grandmother’s home, the only strange things observed and spoken about by those who saw her were the Simba chips, the R30.00 and the 9 o’clock appointment with the Appellant….

One can safely assume that [the accused] must have been mindful of her tender age and thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and the R30.00.

So, while Mr Ramatlhodi believes we should entrust our legislature and executive with unlimited powers, I do not: not this government, not a DA government not ANY government anywhere in the world. Down that road lies tyranny and oppression of the worst kind. As the ANC government of which Mr Ramatlhodi is a member has demonstrated over and over again, even where the power of a government is limited and even where the Constitution exhorts it to address the needs of the poor and vulnerable, it often acts in the interests of its own members and not that of the broader public whose interests it claims to serve.

Whether the ANC is in power or anyone else is in power, we need the very institutions that Mr Ramatlhodi attacks. These institutions – created by our Constitution – protect us from the government of the day, no matter which party might serve in government.  This is true in South Africa as it is true in the United States, France, India or Nigeria. If  it was not for institutions like our courts – interpreting and enforcing the progressive provisions of our constitution – and of the Public Protector – exposing the scandalous corruption of Ministers and of government officials - how far away would we have been from Muammar Gaddafi’s Libya?

The “opinion” of Mr Ramatlhodi is no more than an argument in favour of an autocratic kleptocracy in which a few well-connected party leaders and businessmen would live an obscenely opulent life, while the rest of us wouldl try to survive in a world that would be nasty, brutish and probably far too short.  

Where are you going to stand, my fellow white South Africans?

Aug 15th, 2011
by Pierre De Vos.
492 comments

One of the things I most admire about Archbishop Desmond Tutu is that he is an equal opportunities offender. A few years ago he offended then President Thabo Mbeki for saying that there was a lack of debate inside the ANC, given that it was verboten to talk about succession inside the ANC or to question the President’s views on any number of topics without expecting some serious, flame-throwing, nuclear slap-down in return. Mbeki then, as was his wont, wrote a rather sarcastic letter in response, which I would summarise (only somewhat in jest) as telling the Arch: “You know f#k-all, and I know everything”.

Now the former Truth and Reconciliation Commission (TRC) chairperson and Archbishop has caused another stir by dusting off a recommendation of the TRC which proposed the imposition of a “prosperity tax” to raise money for redress. Addressing an audience in Stellenbosch, the former Archbishop stated that white people should campaign for the imposition of such a tax as reconciliation gesture. He explained that although today’s white population was not necessarily directly involved in apartheid, they nevertheless derived benefits from an unjust system through opportunities, lifestyles and access to services. “South Africa is infamous as one of the worst examples of inequality between the rich and poor,” he said.

The FW de Klerk Foundation, doing what it does best, jumped to defend the economic interests of white people and shot down this idea. In doing so, it made statements that are so obviously wrong — as a matter of Constitutional Law - it made me wonder whether the Foundation is not being advised by the Chief State Law Advisor or by those clever lawyers who told the President that section 8(a) of the Judges’ Remuneration and Conditions of Employment Act is constitutional. The Foundation, predictably but depressingly, rejected the idea of a reparations tax imposed on white South Africans and then made the following quite astonishing set of claims:

One of the principles [on which the post-apartheid society is based] is non-racialism and the idea that we should no longer adopt laws that are aimed at one or another racial group. It would accordingly be unconstitutional to impose a wealth tax only on one of South Africa’s racial groups. It would require the reintroduction of racial classification and of many of the other demeaning racial distinctions that were associated with apartheid. It would also be unfair. Would whites who opposed apartheid be expected to pay the same as those who supported it? Would there be different tax scales for whites who supported the ANC, the DP and the old National Party? And what about the many blacks who held well-paid positions in homeland governments? To be constitutional, a wealth tax would have to be applied to all South Africans regardless of their race.

As any second year Constitutional Law student (as well as any regular reader of this Blog) knows, the statement on the unconstitutionality of a wealth tax imposed on white South Africans is pure nonsense. Maybe the folks at the FW de Klerk Foundation have been reading too many of Ken Owens’ letters in Business Day and forgot to read either the text of the Constitution or the applicable Constitutional Court judgment on affirmative action. If they had read section 9(2) of the Constitution as well as the judgment in Minister of Finance v Van Heerden they would surely have avoided embarrassing themselves by making false statements about South African (as opposed to American) Constitutional Law.

In that judgment the Constitutional Court, (in a judgment written by Deputy Chief Justice Dikgang Moseneke) held that equality is something that must still be achieved in South Africa and that section 9 of the Constitution places a duty on all organs of state ”to protect and promote the achievement of equality” by implementing corrective measures that target groups disadvantaged by past discrimination. We cannot merely pretend we now live in a non-racial society and therefore ban all references to race in our law because if we do we will merely be entrenching white privilege — which is what the FW de Klerk Foundation’s position essentially boils down to.

The Court pointed out that “when our Constitution took root a decade ago our society was deeply divided, vastly unequal and uncaring of human worth”. Many of these “stark social and economic disparities” (much of it linked to a person’s race) will persist for a long to come. According to the Constitutional Court, corrective measures which target specific race groups are therefore constitutionally valid and in many cases even constitutionally required in order to “start a credible and abiding process of reparation for past exclusion, dispossession, and indignity within the discipline of our constitutional framework”.

The implementation of race-based measures (like the imposition of a once-off wealth tax on white South Africans to advance reconciliation and make token reparation for the wrongs of the past) is therefore not an exception to the general guarantee of equality or to a general endorsement of non-racialism. Such measures are not “reverse discrimination” or “positive discrimination” but are rather “integral to the reach of our equality protection”.

For race-based corrective measures to comply with the constitution, one must ask whether “an overwhelming majority of members of the favoured class are persons designated as disadvantaged by unfair exclusion” and whether the measures “constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal [of the achievement of equality] would be threatened”.

In the Van Heerden case the Constitutional Court had to decide whether a Parliamentary pension scheme, which — for a period of five years — provided better benefits to parliamentarians who first joined parliament in 1994, was constitutionally valid.  Mr Van Heerden, an old apartheid era parliamentarian, complained that the scheme discriminated against whites because the vast majority of new parliamentarians in 1994 were black and those who served before 1994 were mostly white. The court rejected this argument, pointing out that Mr Van Heerden was still going to be far better off in terms of his pension than any parliamentarian who entered parliament in 1994 for the first time.

One question was whether the affirmative action scheme might not comply with section 9(2) because some white people also first joined parliament in 1994 and was benefiting from the scheme. Moseneke stated that as long as the overwhelming majority of those targeted are from the disadvantaged group (or, by implication and conversely, as long as the overwhelming majority of those disadvantaged are from the former or continuing privileged group) the scheme would meet the criteria for a valid scheme. So while placing a wealth tax on all people earning a certain amount would be constitutionally valid, so would a tax only aimed at white South Africans who earned a certain amount every year.

A once-off wealth tax imposed on white South Africans who earn more than a certain amount as a small gesture towards reconciliation and redress would almost certainly pass the Van Heerden threshold because whether one supported apartheid or struggled against it, one invariably benefited from it if one is a white South African (whether born before or after 1994). If I had been born black and poor, I almost certainly would not have gone to University and I would almost certainly never have been a Law Professor at UCT, earning quite a nice salary, thank you.

This does not make me feel guilty, but it does make me feel humble and aware of the injustices of the past which I benefited from. It also spurs me on to do my small bit (no matter how small) for reconciliation and redress, not out of a misplaced sense of moral superiority (how can I be morally superior if I am just another human being with my own faults, petty and probably unexamined prejudices and any number of other foibles), but this is the only way I can make sense of living as a white person in this strange place in which our apartheid past lingers like a bad smell — despite all the denials of many who benefited from it.

The fact that some whites were too lazy or stupid to get rich during the days when affirmative action only benefited white people, is of course irrelevant for this argument. (Of course today we still get affirmative action for whites in the form of rules that require children to live in the area which serves as the feeding area of certain schools who happen to be well resourced and well run or the rules of schools which say that if one’s parents or siblings went to that school one would get special treatment in admission to that school.)

But not only is a wealth tax on white South Africans who earn a minimum amount of money constitutionally valid. It is also an important and welcome idea that must be supported by all right-thinking South Africans with even a smidgen of a conscience or common sense. (By saying this I am not claiming to be better than, or morally superior to, anyone else – I am merely suggesting that whether for reasons of conscience or for pragmatic reasons, it is the right thing to do.)

Why not impose such a tax of — say — 2% or 3% of one’s annual income for a period of a year or two and then divert that tax into a special fund, administered by a respected panel of experts with the brief of funding and administering projects that would begin to address the shockingly bad facilities at many government schools frequented by the poorest of our citizens — a state of affairs indisputable caused by apartheid.

How many school libraries could be built with that money? How many fully stocked laboratories could be built with that money? How many soccer fields and pavilions could be erected with that money? How many new computer labs with internet access could be provided to students who now can only dream of having access to computers and the internet? To avoid the argument, offered by some white people, that such a scheme would be a waste of money ”because ‘they’ (always wondered who ’they’ were and if ‘they’ included white businessmen who rake in obscene bonuses paid out of the profits made possible by exploiting workers) will only steal the money”,  the money could be administered separately by a well-respected panel or independent institution, headed by Mamphele Ramphele, for example.

The problem is, of course, that some white people — out of shame or ignorance or maybe a bit of both — do not want to admit that white South Africans almost all benefited from apartheid vis-à-vis black South Africans. (I have always thought that many of those who attack me and charge that I am ashamed of being white, are projecting their own sense of suppressed racial shame onto me.)

Some benefited directly through affirmative action for whites which reserved most government and many private sector jobs for whites and boosted the education of white children by spending vastly disproportionate amounts of money on the education of white children. Others benefited indirectly, by living in a society where cheap black labour was always available to look after children and clean the toilets of even relatively poor whites or by being born white to parents who benefited from apartheid and could therefore provide a better life for their children.

Before we all accept this obvious fact, show a willingness to face up to it and begin to do something about it, and resist the temptation to want to sweep it all under the carpet because of embarrassment, misplaced anger or ignorance, we are never going to be able to embark on the true road to reconciliation. Insisting on reconciliation based on a denial of the past is not doing us any good. Such a “reconciliation” is no more than an attempt to rewrite the past in order to try and ensure that the laughable but very deeply entrenched notion so central to white identity — the idea of white moral superiority — remains intact.

I am dreaming of a world in which the notion of moral superiority based on race has no place. In this world — in which every human being has an inherent moral worth but (perhaps influenced here, against my will, by my Calvinist upbringing) where human beings are never perfect — making claims about the moral superiority OR inferiority of an individual based on their race is so absurd and immoral that anyone making such a claim, defending such a claim or implicitly relying on such an assumption has forfeited the right to be taken seriously. And in yours? Where are you going to stand in this war of ideas, my fellow white South Africans?

Don’t hide behind (non-existent) sub judice rule

Jul 18th, 2011
by Pierre De Vos.
6 comments

One of the most irritating phenomena of our political life is the manner in which politicians wrongly invoke the so called sub judice rule to avoid accountability. Because they do not want to answer difficult questions or deal with politically awkward issues, such politicians invoke a rule that only exists in their imagination.

Is it possible that such politicians do not know that the rule has been substantially changed by the Supreme Court of Appeal (SCA) to bring it in line with the values and norms enshrined in our democratic Constitution? Or are they cynically invoking a non-existent rule knowing full well that the rule does not exist in the form that they pretend that it does?

The latest culprit is the Minister of Police, who invoked the rule in response to the Human Rights Commission’s (HRC) findings and remedial order in the case of Mr Chumani Maxwele, the jogger who is alleged to have given President Zuma’s motorcade the middle finger. The HRC found that the Special Protection Unit had violated several of Mr Maxwele’s rights and called on the Minister, on behalf of the members involved, to apologise to Mr Maxwele and to take steps to ensure that the SAPS acts in terms of the Constitution and the Law.

Reacting to the HRC’s findings, the Minister’s spokesman claimed that because Mr Maxwele had instituted civil proceedings against the SAPS the sub judice rule applied. The SAPS had accordingly refused to participate in the investigation and would not abide by the HRC’s ruling.

Now, it is an established rule of the common law that the proper administration of justice may not be prejudiced or interfered with and that to do so constitutes the offence of contempt of court. As the SCA has found, the sub judice rule is important as the integrity of the judicial process is an essential component of the rule of law. If the rule of law is itself eroded through compromising the integrity of the judicial process then all constitutional rights and freedoms are also compromised.

The crime of contempt of court thus includes contempt ex facie curiae (out of court) and this entails, first, cases where publication of an opinion will violate the dignity, repute or authority of the court (either by criticizing or insulting a particular judicial officer or the judicial system as a whole) and, second, statements which prejudice the administration of justice in pending proceedings. It is this latter aspect that has become known as the sub judice rule.

But in the Midi Television case the SCA stated that the broad scope of this rule which was in force in the pre-democratic era has been severely curtailed by the Constitution. In that case, dealing with the sub judice rule in the context of pre-publication censorship, Nugent JA, writing for a full bench of five judges, summarised the new position as follows:

[A] publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage. In making that evaluation it is not only the interests of those who are associated with the publication that need to be brought to account but, more important, the interests of every person in having access to information. Applying the ordinary principles that come into play when a final interdict is sought, if a risk of that kind is clearly established, and it cannot be prevented from occurring by other means, a ban on publication that is confined in scope and in content and in duration to what is necessary to avoid the risk might be considered.

If one applies these basic principles to the case at hand, it must be clear that the sub judice rule is not applicable here. The Minister would have to convince us that there would be a demonstrable and substantial prejudice to the administration of justice if he apologised to Mr Maxwele as requested by the HRC. He will further have to show that it would not be in the interest of society as a whole to obey the request of a Chapter 9 body because the risk to the administration of justice would far outweigh the harm done to the credibility and the dignity of the Chapter 9 institution.

This will obviously be impossible to show. Given the fact that section 181 of the Constitution states that other organs of state – including ministers – through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions, I cannot think of an example where the Minister would be allowed by the sub judice rule to ignore the HRC and to refuse to institute the remedial action proposed by it in a certain case.

Besides, how the minister could possibly argue that complying with the findings of the HRC – which dealt with the violation of Mr Maxwele’s constitutionally guaranteed rights to human dignity, to freedom and security of the person, to privacy, to freedom of expression and peaceful/unarmed demonstration – could possibly influence the parallel civil proceedings – which deals with a civil claim against the Police – is hard to fathom.

The HRC has already published a finding in which it concluded that Mr Maxwele’s rights have been infringed. Nothing the Minister can do or say will change that. A court dealing with the civil claim of Mr Maxwele will not be swayed by the finding of the HRC as it will have to hear the evidence presented to it and make its own finding on whether damages should be paid.

The fact that the HRC has found that Mr Maxwele’s rights have been infringed can also not be tendered in the civil case as proof that Mr Maxwele is entitled to be compensated financially as a result of any damages suffered. The two issues are therefore entirely different enquiries, and no substantial prejudice to the civil trial can possibly arise through the correct exercise of its rights jurisdiction by the Human Rights Commission.

Surely the Minister and his advisors know this. Can one therefore assume that they are hiding behind the sub judice rule to avoid complying with a finding of the HRC because the President and his seemingly lawless bodyguards were involved in this case? Is the Minister scared of President Zuma and his bodyguards or is he just ill-informed?

In any case, as the law stands now, the sub judice rule will almost never be applicable. Where anyone invoke this rule, they are doing so either because they are ill-informed about the law or because they are using the rule to avoid accountability. Whenever a politician invokes the sub judice rule, I for one will assume that the politician is admitting guilt or other wrongdoing, but is trying to hide from scrutiny and accountability for his or her actions.

So next time you read that a politician has invoked this rule, please do not believe for one second that the rule is applicable. It will not be applicable. Assume instead that the politician is ducking and diving because he or she is scared; or is trying to avoid being caught out in a lie; or is looking for an excuse to justify a constitutional breach of a duty to show respect for other constitutional institutions like the HRC or the Public Protector.

(Also see statement by Adv Nikki de Havilland, Centre for Constitutional Rights)

President Zuma and the separation of powers

Jul 11th, 2011
by Pierre De Vos.
26 comments

The remarks made on Friday by President Jacob Zuma  in front of an audience of judges at the Access to Justice conference in Johannesburg, has elicited much comment. Given the manner in which President Zuma became President after corruption charges were inexplicably dropped against him, his appointment of the tainted Menzi Simelane as National Director of Public Prosecutions and the utterances by some of his supporters about so called “counter-revolutionary judges” - made in the period when Zuma was being pursued on corruption charges - it is perhaps understandable that not everyone would trust President Zuma’s bona fides on the issue of an independent judiciary and the supremacy of the Constitution.

However, it is important to keep a clear head and not to overreact to what the President has said. In South Africa we have a tendency to interpret statements according to the preconceived template constructed by our fears, suspicions and prejudices – and often do not properly hear and understand what a political opponent might have said. At the same time this is a pivotal issue for our democracy and it is therefore important to look at the words of the President carefully to see whether it makes sense and whether it can be squared with our system of separation of powers and constitutional supremacy.

President Zuma - quite correctly, in my view - stated that one must distinguish the areas of responsibility between the judiciary and the elected branches of government. Although our courts have often said that there is no bright line boundary between the three branches of government and that it is not always easy to distinguish between the work done by the three branches, it has always maintained that some aspects of decision making is more appropriately left to the non-judicial branches of government. There is therefore no disagreement between the judiciary and the President on this point.

President Zuma then continued:

The Executive, as elected officials, has the sole discretion to decide policies for Government. This means that once government has decided on the appropriate policies, the judiciary cannot, when striking down legislation or parts thereof on the basis of illegality, raise that as an opportunity to change the policies as determined by the Executive area of government.

Although this statement is not a model of clarity and can be interpreted as meaning that judges cannot issue orders that would affect the ability of government to make the policies it sees fit, I take it to mean that the executive – rather than the judiciary – is the appropriate branch to formulate policy which can then be tested by the courts for constitutional compliance. If one assumes that the President accepts that government policies can be declared unconstitutional and that Courts can tell the executive that some policy choices are constitutionally invalid, then this view seems correct.

Courts cannot formulate policy, but of course, judicial decisions will often affect the policy choices a government is required to make. The decision in the Cape High Court in the Makhaza toilet’s saga is a case in point. As the court had found that providing open toilets to residents of Makhaza infringed on their rights, this radically circumscribed the policy choices on sanitation open to the City of Cape Town. As our Constitution empowers courts to make orders that will vindicate the rights of ordinary citizens, in principle there is nothing wrong with this course of action,

This was made clear in the Treatment Action Campaign case where the government’s lawyers – perhaps under pressure from the tea-guzzling, garlic and beetroot-eating, Minister of Health – argued that even where a court finds that government policies fall short of what the Constitution requires, the only competent order that a court can make is to issue a declaration of rights to that effect. That leaves government free to pay heed to the declaration made and to adapt its policies in so far as this may be necessary to bring them into conformity with the court’s judgment.

This, so the argument went, is what the doctrine of separation of powers demands. Government lawyers contended that under the separation of powers doctrine the making of policy is the prerogative of the executive and not the courts, and that courts cannot make orders that have the effect of requiring the executive to pursue a particular policy.

In the TAC case the Constitutional Court rejected the argument that it could not make orders that would have policy implications for the government. The Court stated as follows:

This Court has made it clear on more than one occasion that although there are no bright lines that separate the roles of the legislature, the executive and the courts from one another, there are certain matters that are pre-eminently within the domain of one or other of the arms of government and not the others. All arms of government should be sensitive to and respect this separation. This does not mean, however, that courts cannot or should not make orders that have an impact on policy.

Where state policy is challenged as inconsistent with the Constitution, courts have to consider whether in formulating and implementing such policy the state has given effect to its constitutional obligations. If it should hold in any given case that the state has failed to do so, it is obliged by the Constitution to say so. In so far as that constitutes an intrusion into the domain of the executive, that is an intrusion mandated by the Constitution itself. There is also no merit in the argument advanced on behalf of government that a distinction should be drawn between declaratory and mandatory orders against government. Even simple declaratory orders against government or organs of state can affect their policy and may well have budgetary implications. Government is constitutionally bound to give effect to such orders whether or not they affect its policy and has to find the resources to do so.

Especially in social and economic rights cases courts will be required to evaluate state policy and to give judgment on whether or not it is consistent with the Constitution. Section 38 of the Constitution contemplates that where it is established that a right in the Bill of Rights has been infringed a court will grant “appropriate relief” that are – in the wording of section 172(1)(a) – “just and equitable”. As the Court stated in the TAC case:

We thus reject the argument that the only power that this Court has in the present case is to issue a declaratory order. Where a breach of any right has taken place, including a socio-economic right, a court is under a duty to ensure that effective relief is granted. The nature of the right infringed and the nature of the infringement will provide guidance as to the appropriate relief in a particular case. Where necessary this may include both the issuing of a mandamus and the exercise of supervisory jurisdiction.

The President’s argument about policy formulation being left to the executive may therefore be seen as a bit naive and simplistic as it may be read as assuming that court judgments must never impact on government policy formulation. In a constitutional state that would be impossible. However, one could also interpret the passage generously, in which case the President can be assumed to have said nothing more than that the executive will always have the final say on what policy to formulate and implement – as long as the policy complies with the Constitution as interpreted by the judiciary.

What was perhaps more worrying is that the speech may be read as indicating that President Zuma resents the fact that all executive action is subject to the discipline of the Constitution and that in a constitutional democracy with a supreme Constitution the executive is not free to act as it sees fit and to adopt the policies of its choice as it sees fit and implement those policies as it sees fit. He also seems to suggest that when political opponents raise constitutional issues to score political points and/or approach a court to vindicate the constitutional rights of ordinary citizens or to uphold the Rule of Law and the Constitution, a court should not entertain such questions. This is clearly wrong.

President Zuma stated that the executive “must be allowed to conduct its administration and policy making work as freely as it possibly can” and then continued:

The powers conferred on the courts cannot be superior to the powers resulting from the political and consequently administrative mandate resulting from popular democratic elections. Political disputes resulting from the exercise of powers that have been constitutionally conferred on the ruling party through a popular vote must not be subverted, simply because those who disagree with the ruling party politically, and who cannot win the popular vote during elections, feel other arms of the State are avenues to help them co-govern the country. This interferes with the independence of the judiciary. Political battles must be fought on political platforms.

The problem with this statement is that it – wrongly – assumes that one can always make a distinction between “political disputes” on the one hand and constitutional questions on the other. Often, opposition parties or civil society groups will challenge the constitutionality of a legal provision or of action by the executive or an organ of state and they have every right to do so. Often such challenges will deal with issues that are highly political but that may also raise constitutional questions. The mere fact that unconstitutional action by the executive is criticised by opposition parties who – as is their right – might exploit this alleged unconstitutional action for political gain in order to show up the government of the day, does not preclude any court from declaring such action unconstitutional.

Political disputes and constitutional disputes often overlap: Is the provision on which the President relied to extend the term of office of the Chief Justice constitutionally valid? Did the Judicial Service Commission act lawfully when it decided not to investigate the complaint agianst Judge President John Hlophe? Is a municipality entitled to evict poor people from buildings in the inner city of Johannesbsurg as part of a programme of gentrification? Can the President fire the head of the intelligence service? Can Parliament pass a law to force “coloured” workers to move to provinces where they are not in “oversupply”. Is the policy on forcibly installing pre-paid electricity meters in poor, black, areas of Johannesburg constitutionally valid? All these questions are BOTH political (in the sense that it deals with governance issues) AND constitutional in nature.

Our courts have a right and a duty to declare action or inaction by the government or organs of state unconstitutional if it does not comply with the Constitution. It is irrelevant whether the case happens to have been brought to the court by a political party or whether the issue raised before the court is politically charged. What a court has to do is to declare invalid unconstitutional behaviour – no matter whether that unconstitutional behaviour had been endorsed by 2400 delegates at an ANC conference at Polokwane, or by 12 million voters during a general election. This is what it means to live in a constitutional democracy. The sooner everyone gets used to this, the better.

Where a court declares the actions or failure to act on the part of the executive to be unconstitutional, the court is not helping opposition parties or civil society to co-govern the country. The court is merely upholding the Constitution. The executive can prevent political opponents from politically embarrassing the governing party and the executive, by making sure that its actions always comply with what is required by the Constitution. Of course, for that to happen the executive would need good legal advice, which I fear, is often not provided. But maybe that is an issue for another day.

Courts have a pivotal role to play in upholding the Constitution. When they do this, they help to protect everyone – including the poor, marginalised and vulnerable – from abuse of power by venal, tardy, overwhelmed or heartless government officials. They also help to hold the executive to account and to protect our democracy in the name of the people. Just like the other two branches of government, a properly functioning judiciary must therefore also be seen as representing the interests of the people and when one talks about the separation of powers one should be careful not to suggest that the judiciary has less legitimacy merely because its judges were not directly elected by about 35% of the citizens who bothered to vote for the majority party at the last election.

On the World Cup and our Constitution

Jun 10th, 2011
by Pierre De Vos.
88 comments

It is exactly one year ago that I bought my first Vuvuzela at my local Spar and discovered what a beautiful racket I could make with that piece of plastic, donned my Bafana Bafana shirt and joined friends in the city to watch our team take on Mexico in the opening game of the Soccer World Cup. That was the day Simphiwe Tshabalala scored the glorious opening goal of the World Cup and South Africa suddenly turned into the country we all wished we had lived in all our lives.

Almost all the professional whiners – of which our nation seems to have more than its fair share – fell silent while almost all of us marveled at our ability to put on the show of our lives. Reports of corruption and nepotism disappeared from the front pages of our newspapers, politicians mostly refrained from making embarrassing statements and many white people who had been hiding behind the high walls of their security complexes took public transport for the first time in their lives and discovered that most of their fellow South Africans of all races are actually pretty decent people just trying to live lives of dignity and respect.

To me there are some interesting parallels between South Africa’s hosting of the World Cup and the drafting of our Constitution. In both cases there were many naysayers who believed it could not be done or that it would be done badly. In both cases there were difficult periods in which it seemed unlikely that we would succeed. Yet, in both cases we produced something world class, yet truly South African – despite the compromises we were forced to make. Compromises, I might add, which we had to make with unsavoury characters like that old authoritarian Sepp Blatter (in the former case) and with members of the old Nationalist Party (in the latter case) in order to get to the point where we could be given a chance to prove ourselves.

When people complain about our Constitution and say that it is not a document that deals with our South African reality, that it affords “criminals” too many rights, that it is too progressive because it protects the rights of religious and sexual minorities, that it makes governing the country too difficult or that it places too much power in the hands of unelected judges or an indirectly elected (and, at present, a rather flawed) President, I think they miss the point.

First, they ignore the fact that the Constitution is not only a practical legal document but also a symbolic memorial to our collective hopes and dreams. Although it is not a perfect document (just like the World Cup was not perfect – after all, we lost to Uruguay and never made it to the second round of the competition), it embodies a set of fundamental and essential values which must guide the actions of present and future governments. The inclusion in our Constitution of these values – openness, transparency, freedom and respect for the human dignity of all South Africans – signals a complete break with the apartheid past. It continues to remind us how we wish to live, what kind of human beings we want to be and what kind of government we believe we deserve, even if individual politicians and our major political parties do not always live up to the promise of our founding document.

Second, the Constitution is a living document which acquires meaning through interpretation and application. Although it contains fundamental basic rules that bind those who govern the country, it is left to our courts to decide how these rules should apply to specific situations. The success of the document should not be measured merely by asking whether the current government is always following the letter and spirit of the Constitution or with reference to individual court judgments with which we might disagree. When naysayers argue that our Constitution might already have failed, I like to quote Mao Tse Tung, who when asked what he thought of the French revolution stated that: “It’s far too early to say.”

(Similarly, while we are currently sitting with the financial hangover left by our hosting of the World Cup, I would argue that it is far too early to say whether the long term benefits of hosting the Cup would have made the whole exercise worthwhile.)

Third, the Constitution has already produced enumerable benefits to all South Africans and have changed the way we think about ourselves and the society we live in. Just as the World Cup produced new stadiums, new roads and more visible policing and the Bulls playing rugby in Soweto, so our Constitution has produced some benefits for all of us – even if these benefits are not always easy to identify.

Without the Constitution, gay men and lesbians would probably not have enjoyed the full legal protection we now enjoy; we would probably not have enjoyed the degree of media freedom and freedom of expression that we now do and we would have been less certain that attempts by the ANC government to pass the draconian Secrecy Bill will eventually flounder in Parliament or in our courts; the Western Cape government would probably not have lost the legal battle regarding the provision of open toilets to the residents of Makhaza and the inner city residents of Johannesburg would have been far more vulnerable to eviction by the Johannesburg City Council.

While many South Africans still struggle to accept the notion that those who they disagree with or those who do not look like them enjoy the same legal rights as they themselves do, almost all of us now think and talk in terms of our rights and are quick to demand our rights when we believe our rights are threatened or infringed. Indeed, we have become a society of rights-holders and we have embraced the notion that no-one has the right to infringe on our rights. In this sense, we have become empowered to be active citizens and as active citizens we can begin to see glimmers of the dignified lives we wish to live and know we deserve.

Lastly, the Constitution is only as good as those who are entrusted to implement it and our collective commitment to ensure that they implement it well. Every citizen now has a voice and can – through civil society involvement, through engagement with political parties and institution, through struggle and protest – play a small part in ensuring that the Constitution works as well as we had hoped it would when we adopted it. Sometimes one individual can make a difference – as Public Protector Thuli Madonsela has shown. Sometimes the collective efforts of a community is required – as the people of Joe Slovo informal settlement has shown.

So, while there is much that is still wrong in our society (endemic corruption and unacceptable levels of crime, vast economic inequality, lingering racism and sexism and threats to media freedom and the Rule of Law, to name but a few) and while much work needs to be done to ensure that the promise we made to ourselves as a nation when we adopted the Constitution are actually realised, on this first anniversary of the start of the World Cup, I prefer to see the glass as half full. And one of the most important reasons for that half full glass is our Constitution.

Of course, when we cast our minds back to the heady days of the World Cup and we ask whether it was all worth it, it would be easy to conclude that it was not – given the many other problems in our society that need to be addressed, given the financial cost of hosting the event and given our embarrassment about having been duped by the authoritarian Sepp Blatter into believing that he was a kindly Father Christmas. But maybe – as is the case with our Constitution – we should also try to remember the good that has come of it and keep in mind that it is indeed far too early to tell whether it was all for the better or not.

The Empire Strikes Back

Feb 3rd, 2011
by Pierre De Vos.
106 comments

It is always good to have one’s feet held to the fire. Criticism of the legal profession and of legal academics should therefore be welcomed – whether it comes from traditional conservative quarters or from more progressive voices in our society. Criticism (hopefully) encourages self-reflection. Incisive criticism may start a debate, which might help to enlighten us and might improve the way we all engage with the law.

It was therefore great to read that Adv Jeremy Gaunlett had delivered a speech in which he criticised the legal profession for a “lack of critical faculty not merely in the Faculty, but across the face of legal life in South Africa”.  Gauntlett – who was nominated for appointed to the Constitutional Court and the Cape High Court but has not been appointed to either court – argued that there was a complacency amongst lawyers and legal academics about problems facing the legal system in South Africa.

I think as a general proposition this is correct. Lawyers and legal academics are often far too hesitant to engage with (and speak out about) issues of social injustice and the manner in which our legal system still favours the rich and well connected and disadvantages the poor and those who do not have friends in high places.

However, Gauntlett’s gripe seems to lie elsewhere. He argues that “it is time to end an approach which is insufficiently rigorous in its scrutiny of the judgments of courts, and how they function”.

[O]ther than the writing of David Dyzenhaus, Stu Woolman and Jonathan Lewis, in the tradition of John Dugard, Tony Mathews and Barend van Niekerk, and later Fink Haysom, Clive Plasket and Etienne Mureinik, what probing critique has there been in the last five years of the work of the Constitutional Court? Those of you who are public lawyers may not agree with it all.  You may or may not agree with Jonathan Lewis when he describes the output of the Constitution Court in recent years as “evidenced by an atavistic sentimentality”, “outcome-based” and “mock-Solomonic”. But then we would all benefit if you said so.

Why have you not criticised the refusal by Justice Sachs in the Sidumo case to join Justice Ngcobo and others in determining whether the right in issue was a labour right or an administrative justice right, he urging a “move away from unduly rigid compartmentalisation so as to allow judicial reasoning to embrace fluid concepts of hybridity and permeability”? Do you share my inability to understand language like that, and the concern that it is inexact because the reasoning is not rigorous?

Amongst other things the concern, says Gauntlett, is “the lack of legal clarity”.  This kind of reasoning is, of course, plausible. If one adheres to a traditional view of the law, if one does not embrace the transformative vision of the Constitution, if one believes that the common law and other legal rules should remain untouched by the values and norms enshrined in the Bill of Rights, this yearning for “legal clarity” seems logical and necessary.

After all, the assumption that “legal clarity” was a good thing and that it used to be the norm rather than the exception in the pre-constitutional era, is widely shared by traditional lawyers in South Africa. (Of course, the fact that the belief in legal clarity often led judges enthusiastically to enforce apartheid laws or made them shy away from trying to re-work the law to minimise the inhumane effects of the common law and apartheid legislation on the majority of South Africans, is not often remarked upon by the adherents of this view.)

Of course, this view is based on a very particular approach to the law, one that assumes that “legal clarity”, “precision”, and “coherence” are not only ideals that are nice to have but can be (and are) indeed achieved. It takes for granted the correctness and moral superiority of traditional legal culture, which as Karl Klare pointed out in a seminal article in 1998 remains exceedingly formalistic, rule-bound, and more concerned with precedent and systems of logic than with the just outcomes of individual cases and with the achievement of a semblance of justice.

Gauntlett’s critique, it seems to me, is therefore an ideologically based one – although it professes to come from a neutral and apolitical place. If one assumes that traditional formal legal culture is the only acceptable and correct way of doing law, then one might well agree with Gauntlett. If one embraces a transformative vision of the Constitution – in the sense explored by Klare – then one might very well have serious problems with Gauntlett’s views set out above.

I obviously fall in the second category. My critique of lawyers and legal academics would therefore focus far more on the lack of engagement of many lawyers and legal academics with issues of social justice and the lack of critical reflection about the way in which the so called “precise” and “accurate” legal rules Gauntlett talk about often favour the powerful and wealthy in our society.

Gauntlett also highlights problems with the way we choose our judges. He states:

Other than the Bar, who contributes to researching candidacies for the Bench? Should your Society not have a review committee to do just that, to offer an objective assessment of their academic worth, judgments or other legal writing, and to offer informed criticism of candidates to the JSC?

Of course there have been some serious problems with the appointment of judges. We have appointed quite a few judges who – in my opinion – did not meet the minimum criteria for appointment, including that they should have embraced the progressive values enshrined in our Bill of Rights.

(Incidentally, my colleagues at the Democratic Governance Rights Unit have been submitting assessments about applicants for judicial office for the past two years, so Gauntlett is perhaps not as well informed as he could have been about the appointments process.)

What jumps out at me is the statement that an “objective assessment” of candidates is needed. But if we talk about the need for a transformed judiciary – by which I understand a judiciary which is staffed by judges who are not sexist, not racist, not homophobic, judges who take the social justice demands of our Constitution seriously – then this talk of an objective assessment seems rather strange if not impossible.

For me what would be interesting and worthwhile would be to have a conversation (or even a heated argument) about the ideological assumptions underlying Gauntlett’s critique. We all come from different perspectives and make different assumptions about the nature of the legal system we would like to see in South Africa. These are not uncontested and for me the problem with Gaunlett’s argument is that it attempts to erase or hide the politics and ideology on which his argument is built and pretends to come from a neutral place.

Let the conversation begin.

Minister and her advisors must calm down

Jan 17th, 2011
by Pierre De Vos.
21 comments

No country can tolerate mutiny or insurrection by soldiers of its armed forces or patent ill discipline by members of the armed forces. Neither can any constitutional democracy tolerate unlawful behaviour by members of the executive. Where soldiers disobey orders and threaten national security the relevant authority would have every right to terminate the services of such a soldier – in extreme cases even without giving them a fair hearing. But the Minister will only be entitled to do so if he or she is authorised by the Constitution or ordinary legislation to do so.

The question is whether the Defence Act of 2002 does indeed give our Minister of Defence that right and if it does, what limits it places on her power to exercise that right. Are soldier of the SANDF entitled to the right to a fair labour practice set out in section 23 of the Bill of Rights – even when they have allegedly broken the law – or does legislation allow the Minister to fire them without such a hearing?

These questions arose after soldiers staged a chaotic march to the Union Buildings which turned violent and the Minister subsequently decided to dismiss soldiers she claimed had been identified as having taken part in the march without giving them a fair hearing. The North Gauteng High Court found that these summary dismissals were not justified by the law, which irked the Minister of Defence. Interestingly, instead of appealing this judgment, she is now bringing an application in terms of Rule 42 of the Uniform Rules which provides that the court who issued an order may rescind or vary “an order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission”.

The Minister’s legal advisor – in an affidavit submitted to the Court – claims this error or omission stems from the fact that the judge stated that:

it was never at any stage, communicated to the applicants in any way whatsoever how the march organised by SANDU posed a risk to national security to such an extent that it caused the respondent to adopt the novel approach to address the problem. There is no explanation to justify the procedure that had been adopted by the respondents or reasons set out why the principles of natural justice and procedural fairness could not be applied in the particular circumstances….The Court could not find any reference in the respondents’ papers as to how national security was threatened by the conduct of the members.

The affidavit alleges in a somewhat confusing and less than convincing manner that the papers had indeed shown how nationals security had been threatened. Maybe the papers are just badly drafted. I have not seen the original papers submitted to the High Court so it is impossible to know whether legal advisors to the SANDF did indeed provide evidence to the High Court that the national security of the country was threatened by the conduct of the soldiers. I am also not a procedural lawyer, so I can therefore not comment on the plausibility of this application.

However, the affidavit does contain curious passages which suggest that the person or persons (?) who drafted it are either not familiar with the South African Constitution or are wilfully trying to mislead the Court.

First, the founding affidavit seems to lack any appreciation of the Rule of Law and does not seem to show a sufficient appreciation of what the supremacy of the Constitution entails. It claims unfettered powers for the executive in the realm of national security and claims that Courts can never review decisions of a Minister if that Minister claims that national security is at stake. But our Constitutional Court has made it clear that in principle all action by the executive is reviewable by our courts and if the executive fails to act in accordance with the Constitution or ordinary legislation, such action can be declared invalid by the courts.

In one of the most famous earlier cases, the Constitutional Court in President of the Republic of South Africa v Hugo found that any action by the President may be reviewable to determine whether it is inconstant with the Constitution. The line of SARFU cases confirmed that the President had to comply with the requirements of legislation which authorised him to act. The same obviously applies to the Minister of Defence.

However, in attacking the judgment by the North Gauteng High Court the affidavit on behalf of the Minister — under the name of Barnabas Xulu – seems to claim that South African Courts cannot in any way be involved in reviewing the decision of the Minister of Defence as long as she claims that national security had been at stake.

The argument seems to be that where the Constitution or ordinary legislation allows the Minister to fire soldiers if national security had been threatened, she would be entitled to do so if she had decided that national security had indeed been threatened and no court could ever intervene or review such a decision to determine whether national security had indeed been threatened or whether the Minister had merely pretended that it was threatened to justify the infringement of individual’s rights (perhaps for another or an ulterior purpose). It states:

It is abundantly clear that the Courts are not granted roving missions or the unbridled power to define national security for the Presidency or the Ministers responsible for the defence of this country. Those powers are reserved exclusively for parliament and the national executive. It is just plainly wrong for the Court to purport to tell the political branches of government how to define national security and what measures would be deemed appropriate to deal with grave threats to national security and mutiny. In this case, Judge Pretorius not only belittled the Chief of the SANDF’s legitimate fears about risks to the security of the state but she went further to tell the executive how risks to national security must be handled. The Court even went so far as to suggest that the “harm to national security could have been addressed by suspending the members pending an investigation”.

In a constitutional democracy based on the Rule of Law, this contention is utterly untenable. While our Courts will probably give a relatively wide margin of discretion to the Minister of Defence (or to the President) to determine when national security had been threatened, this discretion will never be unlimited. Where the Minister uses this discretion drastically to interfere with the rights guaranteed in the Bill of Rights (as happened in this case) the Minister would have to provide some evidence (which is not the same as bold assertions not backed up by some proof) that national security had been threatened to demonstrate that her conclusion was at least rational (but perhaps reasonable).

To hold otherwise would be to give the Minister absolute power to infringe on the rights of citizens even in cases where on the facts it would be impossible for any person to come to the conclusion that national security had indeed been threatened. This would be lawlessness masquerading as a concern for national security. (I am not claiming that this was indeed the case here. As I had not seen the original submissions on behalf of the Minister I have formed no opinion on whether the chaos that resulted from the march by soldiers to the union buildings could plausibly be said to have threatened national security.)

This claim that the actions of the Minister of Defence is completely exempt from judicial review in any case in which she claims national security is at stake (even if this claim is utterly irrational or bogus) is a preposterous one. It cannot be squared with constitutional governance in a democracy in which supremacy of the Constitution (not of Parliament or the Executive) is entrenched. Neither can it be squared with respect for the Rule of Law.

Second, the affidavit also contains a curious mistake (or perhaps it is a misrepresentation). It argues that the High Court should have taken into account various precedent from the United States Supreme Court. Now, strategically, this is not a wise move as anyone who is familiar with the jurisprudence of the South African Constitutional Court would know that US Supreme Court precedent is seldom followed by our highest court. But that is not the real problem. In making the case for the application of US Supreme Court precedent, the affidavit correctly states that section 39 of the Constitution states that “when interpreting the Bill of Rights, a court… must consider international law”. Our Courts have found that this does not mean that it has to follow international law, merely that it has to consider it.

But the curious thing is, the affidavit conflates international law (the law that governs relations between states, which our courts must consider) and foreign law (the law developed by foreign domestic courts like the US Supreme Court), which section 39 of our Bill of Rights states our courts may consider when interpreting the Bill of Rights. The drafters of this affidavit are either unaware of the difference between international law and foreign domestic law (a first year law student mistake which would be shocking for a legal advisor to a Minister to make), or they are trying to mislead the Court.

Our Courts have no constitutional duty to consider the precedent of the US Supreme Court as suggested by this affidavit. It may do so if it chooses to, but that is another matter altogether. The fact that an affidavit prepared on behalf of the Minister of Defence cannot even correctly distinguish between international law and foreign domestic law is rather worrying. One wonders if all other assertions in the affidavit are correct or whether there might not be some other misleading passages.

Now this is a complex and interesting case. Clearly firing soldiers without giving them a hearing limits their rights. This can only be done by a law of general application. But nothing in the Defence Act or its regulations explicitly limits the rights of soldiers in this way — although some of the regulations could, at a stretch, perhaps be read as implying such a limitation because it gives the Minister the right to fire them without saying anything about the requirements of a fair hearing.

Our Courts have argued that where rights are to be limited by legislation (or regulations) this must usually be done explicitly. If the courts find that the law as it stands does not allow the MInister to fire soldiers without giving them a hearing in extreme case where national security is indeed threatened by such soldiers, then Parliament may of course intervene and amend the law.

This would be in line with the idea — mooted by Chief Justice Sandile Ngcobo at a lecture last year at the University of Stellenbosch on the separation of powers — that there is a continual dialogue between the legislature, the executive and the judiciary. Our Parliament may respond to a judgment by the courts to try and rectify a loophole in the law — as long as it does not limit the rights of individuals in a way that cannot be justified by the limitation clause. But then the Courts can review that law if asked to do so to check that that the limitation on the rights of soldiers are indeed constitutionally justifiable.

To claim, as the Minister’s legal advisor seems to do in this affidavit, that courts have no right to review the actions of a Minister or legislation passed by Parliament if it relates to “national security” is of course a disgraceful and subversive affront to the idea of a constitutional democracy based on the supremacy of the Constitution. Even the Minister of Defence is subject to the law and the Constitution – even when she claims to be acting out of concern for the national security of the state.

I have changed my mind slightly on this case. Given the important issues at stake it is a good thing that this issue will eventually be decided by our Constitutional Court. But unfortunately it seems as if the ego’s of those involved in the case have gotten the better of them, which have led them to litigate the case in a manner that is not in the best interest of the Minister or of the country. Maybe it is time that the Minister and her advisors take a deep breath and calm down (and perhaps also obtain the services of a bona fide constitutional lawyer) so that they can present the best possible case to the Constitutional Court devoid of the emotional and incendiary rhetoric that is characterising their approach at this point.

This latter approach will be in the best interest not only of the Minister and the government, but also of the country and its citizens.

A picture tells a thousand words

Jan 12th, 2011
by Pierre De Vos.
22 comments

The first time I encountered the practice was many years ago when I visited Morocco. Pictures of the country’s supreme leader, the then King of Morocco (who was later succeeded by his son), could be found everywhere: not only in government buildings, but in every tea shop, hotel and carpet sellers stall. It was as if the pictures were placed everywhere to remind everyone that Big Daddy was watching them.

Of course, in apartheid South Africa, pictures of the Prime Minister and the relevant self-important Cabinet colleague (with the obligatory silly Homburg hats),  could be found in every government department. And I remember once clearing out the boxes of junk from my father’s house and stumbling on a big black and white framed picture of “Doktor Verwoerd” (alongside a framed picture of the Voortrekker Monument) amongst the discarded ashtrays (in the form of wagon wheels) and plates (commemorating the NG Kerk Warmbad’s 75th anniversary) and old newspapers bringing news that South Africa was leaving the Commonwealth (1960) and that South African boxer Arnold Taylor had become the WBA Bantamweight boxing champion of the world (1973).

(These portraits had been long forgotten, of course, because after 1994 very few white South African ever admit to having supported Verwoerd or having voted for the National Party. Surely none of those ex-Nationalists now serving in the DA and the ANC would want us to remember that they were enthusiastic supporters of apartheid.)

But even in apartheid South Africa, where Afrikaners generally revered the Prime Minister as a demigod sent by Our Father in Heaven Himself to keep the Volk safe from die swart gevaar and the communists, the picture of the Prime Minister could be found only in government buildings (and in private homes, of course). Naively I had thought that our new democratic and revolutionary ANC government would dispense with such idolatry. Who in the ANC, I thought, would want to imitate the apartheid government and treat government Ministers as if they were not the servants of the people but rather Very Important People who had to be feared and obeyed?

Well, I was wrong. After all, we did not have a true revolution in South Africa in 1994. The state remained intact and we had a “transition” in which the National Party handed over the political (but not the economic) power to the majority (who happened to support the ANC), while the state and all its structures (and the bad apartheid era habits of the state apparatus) remained.  Today it is unclear whether the ANC transformed the state or whether the deeply embedded state culture managed to curb the more egalitarian habits (or was it mere rhetoric?) of the ANC and whether the culture of the apartheid state did not insinuate itself into the heart of the ANC controlled government.

So, soon after 1994 pictures of Nelson Mandela and his cabinet appeared in government buildings. Because it was Nelson Mandela, it kind of warmed my heart and I did not object. But these days whenever I visit a government department and I see big colour pictures of our President and of the relevant Minister (or in the Western Cape, pictures of Helen Zille) looking sternly down at those who enter, I do not feel at ease. In a democracy, governments (and with it Presidents and Cabinet Ministers) are supposed to come and go, but those pictures seem to suggest otherwise.

I am, of course, too sensitive about this. The existence of those pictures can easily be justified on the basis that the cabinet minister (or the President) is the political head of the Department one is visiting and is hence accountable for what happens there. Having a picture of the President or Cabinet member can therefore be seen as a reminder of the accountability of our government Ministers to the ordinary public. If that Home Affairs official treats you with contempt because you are not rich (or white) it is the relevant Cabinet Minister in that picture who should be held accountable.

That is exactly why it is completely inappropriate that pictures of President Jacob Zuma and Justice Minister Jeff Radebe adorns the foyer of the Western Cape High Court. Our Courts are not part of the government and (unlike officials in the Department of Justice) our judges are not accountable to the President or the Minister of Justice. It is worth quoting extensively from section 165 of our Constitution, which states:

  1. The judicial authority of the Republic is vested in the courts.
  2. The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
  3. No person or organ of state may interfere with the functioning of the courts.
  4. Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

So, Courts are subject to the Constitution and the law — not to the authority of the Minister of Justice. While the Minister ensure the smooth running of the justice system, individual judges and the judiciary as an institution are not accountable to the Minister, either for individual decisions or for the day to day running of the courts. This is what judicial independence entails.

Those pictures on the walls of the High Court tells a different story though. To the uninitiated litigant or accused entering the Cape High Court, those pictures might very well suggest that the Courts are not truly independent as they are under the authority of the President and the Minister and accountable to them.

Justice must not only be done but must also be seen to be done. And this can only happen when courts are not only independent (as guaranteed in our Constitution) but also seen to be independent by ordinary citizens entering a court building. Where pictures of members of the executive adorns the foyer of a court building, the danger is that some ordinary citizens will begin to believe that the courts are accountable to the executive and that judges will rule in a manner that will please the executive – regardless the facts of the case or the law applicanble to that case.

It was therefore unwise to place these pictures in the foyer of the Western Cape High Court. One can only hope that either the Judge President or the Chief Justice will take immediate steps to rectify this mistake in order to safeguard the image of the judiciary and to ensure that no one would be fooled by these pictures and would begin to believe that our courts are not independent.

This is not a decision that can be left to government officials. The relevant leaders of the judiciary need to take steps to rectify the matter. Hopefully either the Judge President or the Chief Justice will act swiftly and will do the right thing to continue jealously to guard the image of our judiciary.

On Frida Kahlo, Leon Trotsky and Blade Nzimande

Dec 10th, 2010
by Pierre De Vos.
38 comments

Today I travelled to the suburb of Coyoacan in Mexico City to visit the “Casa Azul” (Blue House), former residence of Mexican painters Frida Kahlo (see self-portrait below) and Diego Riviera as well as the house where Leon Trotsky was assassinated. These are places that one would imagine members of the South African Communist Party (SACP) might love to visit — or maybe not.

At the Blue House I saw a painting by Kahlo entitled “Marxism will give health to the sick”, in which Kahlo throws away her crutches (she was severely injured in an accident when she was 18), as well as a self-portrait of Kahlo with Joseph Stalin in the background. Both are magnificent paintings that shimmer with an idealism and a vitality that cannot but move the viewer.

Mexico City is also filled with breathtaking murals painted by Diego Riviera, the most impressive  entitled “Man, Controller of the Universe” on the top floor of the Palacio de Bellas Artes, which was originally commissioned for New York’s Rockefellar Centre. (The Rockefellars had the original destroyed because of the anti-capitalist message of the painting.)

Frida Kalo selfportraitThese artists and painters lived in a time when many progressive and idealistic members of the intelligentsia in many parts of the world (from France to Mexico) were Communists. There is something touching and even moving about the belief people like Kahlo and Riviera had that the world could really be a better place — not only for the industrialists and the upper middle classes but for most or even all people living in a country.

Of course, many conservative South Africans, who were bombarded by the paranoid anti-Communist rhetoric of the apartheid state, believes that there is something inherently evil about hanging on to some of the idealism of the Communists of the Kahlo and Riviera era. They somehow believe that the ANC is being controlled by “evil” Communists who are plotting secretly to take away the privileges that they had acquired on the back of the blood, sweat and tears of black South Africans.

This seems ridiculous to me. The knee-jerk anti-communism of reactionary South Africans (who are often but not always white) harks back to the era of the “Total Onslaught” and has very little to do with the political reality in South Africa.

Today even the Communists do not seem to be Communists. The leader of the SACP lives it up in five star hotels and drives around in a R1.2 million car and is a cabinet Minister in a government dominated by crony capitalists and their supporters. Could it have been different?

In this regard the story of Leon Trotsky is interesting. As Wikipedia explains:

Trotsky was one of the leaders of the Russian October Revolution, second only to Vladimir Lenin. During the early days of the Soviet Union, he served first as People’s Commissar for Foreign Affairs and later as the founder and commander of the Red Army and People’s Commissar of War, he was a major figure in the Bolshevik victory in the Russian Civil War. He was also among the first members of the Politburo.

After leading a failed struggle of the Left Opposition against the policies and rise of Joseph Stalin in the 1920s and the increasing role of bureaucracy in the Soviet Union, Trotsky was successively removed from power, expelled from the Communist Party, deported from the Soviet Union and assassinated on Stalin’s orders. An early advocate of Red Army intervention against European fascism, Trotsky also opposed Stalin’s peace agreements with Adolf Hitler in the 1930s.

Trotsky was murdered in the study of his house in Mexico City, probably on the instructions of Joseph Stalin. I am not sure whether this story has any relevance for the leaders of the SACP. If there is a lesson it may be that power has a tendency to corrupt and that one may find it difficult to adhere to one’s principles and not to be seduced by the trappings of power — as Blade Nzimande has so clearly demonstrated since he became a highly paid Cabinet Minister in President Jacob Zuma’s cabinet.

Does this have anything to do with constitutionalism or constitutional law? Well, let me try and trace at least a tenuous link. It seems to me, the story of Trotsky and his murder by Stalin’s cronies reminds us that no matter how idealistic one might have been and how good one’s intentions were, if one attains political power the chances are that one will become corrupted by that power and that one will be deformed by that power and will abuse it – unless one’s power is somehow constrained.

Progressives in South Africa who wish to change the world for the better and address the scandalous (racialised) inequalities between rich and poor should not view a constitutional state, with a clear separation of powers, an independent judiciary and a comprehensive Bill of Rights, as an obstacle to the achievement of their dream but should rather view this as a prerequisite for the achievement of such a laudable goal. Especially a Bill of Rights like ours that contains not only traditional liberal rights, but also social and economic rights, is an ally of all true progressives — not its enemy as some in the ANC (most recently Tokyo Sexwale) has recently suggested.

In the absence of constitutional constraints on those in power — no matter how idealistic they were when they attained power — the temptations will almost certainly become too much and the ideals will be completely subverted. In the absence of positive constitutional obligations to provide ordinary South Africans with access to housing, health care and water, those in power will almost certainly at some point begin to yield power purely for its own sake (or to make money) and not to improve the lives of ordinary citizens.

So when Blade Nzimande makes the laughable and completely bizarre statement that the free press in South Africa is the greatest threat to our democracy, he is acting more like Stalin than like idealists such as Kahlo and Riviera. With all its faults, the free press places another constraint on the exercise of power by former idealists who now ride around in R1.2 million cars. A free press prevents the flourishing of a kind of Stalinism, and prevents the emergence of a world in which all opponents are enemies who have to be locked up or murdered.

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