Constitutional Hill

Constitution

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.

On the legalisation of public debate

Nov 30th, 2010
by Pierre De Vos.
17 comments

Sometimes the law and our Constitution appear to be rather similar to a very sharp knife. That knife can be used by a surgeon to perform life-saving open heart surgery. But the same knife can also be used to stab somebody in the heart and kill him or her. (In this regard, the law is not unlike religion which can sooth and comfort, but can also help to spread hatred and violence.)

In a constitutional state the law can help to protect the marginalised and oppressed and can ensure a semblance of ordered fairness and — sometimes — even a semblance of justice. Although the law and the Constitution is not perfect in this regard, it does help to create a framework that prevents some of the worst abuses of power and protects some people who would otherwise not have been protected at all. But in South Africa, the law and our Constitution have also become rather dangerous tools that are used to stifle debate and prevent serious engagement with important issues of the day.

When a Minister buys two official cars for more than R1.2 million each, this is defended because “the Ministerial Handbook allows it”. When A Minister stays in a top class Hotel for several months because there was a crack in the wall at his official residence or because he did not like the bed he was required to sleep on, this is similarly justified with reference to that scary and immoral Ministerial Handbook.

When the President’s former financial advisor is convicted of bribing the President, his defenders argue that one may not ask questions about the President’s commitment to eradicate corruption “because he is innocent until proven guilty”. And when an Afrikaans author and newspaper columnist makes blatantly racist statements in an interview and is then fired by the newspaper and criticised by some, her defenders argue that her freedom of expression is being infringed and that those who criticise her are not showing sufficient tolerance of her racism.

Instead of dealing with the substance of an issue, defenders of the above people hide behind the law and the Constitution to try and stop any kind of meaningful engagement about what is right and wrong, what is acceptable and worthy of our support and what unethical, deeply offensive, or just plane callous. Implicit in this view is the assumption that as long as something is not illegal or unconstitutional, it is perfectly acceptable and hence may never be criticised.

Take the case of the Afrikaans author, for example. She stated that she does not like black people and suggested that this was because many (or perhaps most) black people are rapists and murderers. This is probably not illegal. There is no general law in South Africa prohibiting anyone from exposing themselves as a blatant racist. Unless a statement amounts to hate speech, it is legally permissible to say racist things.

This does not make her statements acceptable or right. Pointing this out is not intransigent or illiberal — it is being principled and displays a willingness to engage in substantive debate about important issues of the day, something that is required from all citizens to allow a democracy to thrive. If we cannot express opinions about what we believe is right and wrong, we might as well go and live in Saudi-Arabia.

It is usually not illegal to cheat on your wife or to lie to a friend about it. It  will usually not be illegal to make irresponsible political statements that will ruin the country’s economy. It is not illegal to express admiration for HF Verwoerd or Sarah Palin or to listen to the records of Britney Spears. But how can one possibly be an intelligent, engaged and reflective citizen in a functioning democracy if one is not allowed to form opinions about at least some of these issues and if one does not express these opinions in public?

By equating what is legal with what is right and what we believe is acceptable, public representatives and private citizens who deploy this strategy help to limit the scope for any serious public debate and rob us all of the agency to help form the world we live in. It is a deeply anti-democratic as democracy can only flourish where the space for debate and contestation is not closed down by this narrow, legalistic, approach to the world.

It is time that South African citizens learn that there is often a huge gap between what is legally permissible (or what has not been proven — yet — to have been illegal) on the one hand, and the opinions we are allowed to form as citizens of a democratic country about what we believe is right and wrong, acceptable or despicable on the other.

Given the facts which emerged at the trial of Schabir Shaik, we are completely within our rights to ask whether our President — not unlike former US President Richard Nixon, who had to resign in disgrace — might not be a crook (despite the fact that he has not yet been tried or convicted by any court). Given our ethical commitments about racism and discrimination, we are perfectly within our rights to criticise the Afrikaans author who made racist comments, despite the fact that what she said was probably not illegal and that she has not been convicted of any crime.

Now, defenders of the President are of course entitled to argue that taking a million Rand from a convicted fraudster and then doing favours for that crook is perfectly acceptable and that this is the kind of public morality that we expect and admire in our leaders. We can then have a debate on whether it is a good thing to have a President that takes money from a crook.

Defenders of the racist author may argue that it is perfectly acceptable to make racist statements and that such racism should be endorsed and admired. We can then have a real debate about these issues and, hopefully,  in time move in the direction of a shared vision of what is right and wrong in a constitutional democracy based on open and transparent government and human dignity, equality and freedom.

Given the vast differences in the world views of South Africans, we will probably not reach that utopian point in the near future (or perhaps ever). But as long as we embrace this legalisation of public debate and hide behind formalistic platitudes about what is legal and illegal, we are not going to have a serious debate on the important issues.

And without such debate our democracy cannot flourish.

Thanks goodness for our Bill of Rights

Nov 10th, 2010
by Pierre De Vos.
85 comments

Travel is supposed to broaden one’s perspective. It can, however, also help to confirm one’s prejudices. I have just arrived back from Sydney where I attended a human rights conference and I am still deciding whether it broadened my perspective or merely reinforced my preconceived ideas about Australia.

One thing is certain: South Africa is a far more interesting country to live in than Australia. How so many South Africans could have decided to emigrate to that country is beyond me.

Maybe these former South Africans like the fact that there are far fewer poor people in Australia, that the poverty there is mostly hidden away, and that one can be conspicuously and nouveau rich without having to worry about how it might look to others or without having to worry too much that somebody might try and make you feel guilty about the fact that the land was stolen from the original owners of the land. Or maybe they like the fact that they can go through a day or a week without ever having to think about Julius Malema, Sunette Bridges or Afriforum.

Personally I would die of boredom if I had to live in Australia. Goodness, it’s a country with no justiciable Bill of Rights. Two years ago a government commission investigated the possibility of introducing a Bill of Rights and recommended that Australia join other modern democracies by adopting such a Bill of Rights. The government rejected this recommendation. At the conference I attended the Attorney General justified this decision by arguing that the legislature can be trusted to protect the rights of all Australians and that introducing a Bill of Rights would give far too much power to judges.

I was too polite — being a guest and all — to point out that because Australia did not have a Bill of Rights it lagged behind South Africa when it came to the legal protection of vulnerable and marginalised groups. Same-sex couples are not allowed to marry in Australia and when citizens of Australia were illegally detained at the concentration camp at Guantanamo Bay, the Australian government said or did nothing.

One of the biggest human rights issue in Australia – apart from the fact that the colonisers stole the land form the original inhabitants and until 40 years ago had a policy which sanctioned the removal of the children of some original inhabitants from their parents and placed them in foster homes, creating the “stolen generation” — is the treatment of refugees and asylum seekers.

South Africa is, of course, not unfamiliar with xenophobia. Former President Thabo Mbeki might have argued that South Africans might not be xenophobic and that the murderous violence against foreigners in 2008 had nothing to do with xenophobia, but we have come to expect this kind of denialism from him. He really should get out more and speak to ordinary people — both to South Africans and to people from the rest of the continent — who will soon tell him that his claim that the violence of 2008 was not xenophobic is just as preposterous as his previous questioning of the link between HIV and Aids.

In South Africa, despite the sometimes harsh treatment of foreigners by locals and persistent allegations of corruption by Department of Home Affairs officials dealing with refugees and asylum seekers, the official policy of the South African government is — in line with the provisions of our BIll of Rights – far more respectful of the rights of such groups than in Australia. In that country, refugees and asylum seekers are imprisoned in harsh conditions and both major parties fall over their feet to demonstrate how harsh they will treat the refugees and asylum seekers who seek safety from prosecution in Australia (which styles itself as a “mature democracy”).

This is a huge election issue as most Australians seem to fear that they will be “swamped” by people arriving in boats from other parts of Asia. When I heard that all such refugees and asylum seekers who arrive by boat are locked up in detention centres (a kind of detention without trial) I envisaged huge concentration camps with hundreds of thousands if not millions of refugees incarcerated there. (Detention without trial sounds kind of familiar to South Africans, does it not — no wonder some white South Africans feel right at home there.)

On Monday the banner headline in the local Australian newspaper announced that the amount of refugees and asylum seekers who had arrived in Australia this year had reached an all time high. The amount of people  “swamping” Australian had reached the staggering number of 5800. At first I thought this was a misprint. All this angst and fear because 5800 desperate people had arrived in Australia in small boats. But no, this was the correct figure.

Wonder if it has anything to do with the fact that almost none of those who arrive to seek refuge in Australia are white? In 2009 less than 2000 people came to Australia as refugees and asylum seekers (the white South Africans with money obviously are not included in this figure), yet the newspapers reported about this as if this was a national crisis.

Although official figures are difficult to come by, we all know that there are millions of undocumented immigrants, refugees and asylum seekers in South Africa from all over the African continent. Imagine what the Australians would have said and done if they had lived in South Africa. Imagine what political capital the government and the opposition would have made out of this. Imagine what pressure our courts would have been under to endorse the inhumane incarceration of all refugees and asylum seekers in concentration camps.

The attitude of Australians place the terrible xenophobic violence in South Africa in 2008 in some kind of context. Of course it does not excuse it. Nothing could — despite the best efforts of our pipe smoking former President. Neither does it excuse the unofficial and sometimes official callousness of South African officials when they deal with refugees and asylum seekers. But in South Africa the Bill of Rights protects such refugees and asylum seekers and organisations such as Lawyers for Human Rights do brilliant work to protect asylum seekers and refugees from discrimination and often successfully approach our courts to help protect the rights of such groups.

In Australia such groups have no legal rights. They might as well have been locked up at Guantanamo Bay. And despite what the Attorney General of Australia said, the legislature is not going to protect such people anytime soon. That is why one needs a Bill of Rights – to protect the marginalised and the vulnerable that will not be protected by the politicians. If the politicians in a so called “mature” democracy do not want to accept that, one must wonder how mature they really are.

On euthanasia

Oct 18th, 2010
by Pierre De Vos.
29 comments

News that Professor Sean Davison, 48, the head of the department of biotechnology’s forensics laboratory at the University of the Western Cape, was arrested in New Zealand for allegedly feeding his cancer-stricken mother a lethal dose of morphine, once again highlighted the often illogical and sometimes bizarre manner in which our society (and the law) deal with profoundly difficult ethical questions.

We have come a long way since the days when suicide was considered unlawful. Under the influence of Christian teachings, which assumed that God gave life and that only He could take it away (somewhat negating the free will of the person who had to decide whether to take God into his or her heart or whether to take their own life), successful suicide was punished by dishonouring the corpse and seizing the property of the deceased. And people who attempted to commit suicide but failed were prosecuted and punished. Attempted suicide was still prosecuted and punished during the regime of the Dutch East India Company at the Cape, but today this proposition seem rather absurd.

Our criminal law is clearly not very consistent in dealing with ethical issues. It prohibits cruelty towards certain animals and also bans sex with animals, but the poor chickens that end up in neatly packaged containers at Checkers and Pick and Pay and (so it is convincingly claimed) often suffer horribly before they are killed, chopped into neat little pieces and packed off to supermarkets to be bought, braaied and eaten by humans, are somehow not protected by this law.

It is therefore not surprising that there is some ambivalence in our law about how to deal with the broad concept of euthanasia. As a general principle, a person who assists another to end his or her life, is guilty of murder and can be successfully charged and prosecuted. Where a doctor or family member knowingly administers a lethal dose of a painkiller to end the suffering of the terminally ill patient or a patient who is in a permanent vegetative state, he or she will potentially be guilty of murder and could be prosecuted.

However, in 1992 in the High Court in Durban in the case of Clarke v Hurst the wife of a patient who was in a permanent vegetative state sought an order authorizing her to withhold the intravenous feeding from her husband so that he could starve to death. The Court found that while the patient was legally still alive, there was no possibility that the patient would emerge from his vegetative condition (the court not being in the business of miracles) and that his brain had “permanently lost  the capacity to induce a physical and mental existence at a level which qualifies as human life”. This meant that “judged by society’s legal convictions, the feeding of the patient does not serve the purpose of supporting human life as it is commonly known”.

So. the person was legally alive, said the court, but he lacked the capacity for human life and could therefore be allowed to starve to death. As Prof Jonathan Burchell commented in his Criminal law textbook, “there is a certain ambivalence” in this judgement.

The distinction between ceasing treatment or withholding food from a patient that is never going to recover and is suffering on the one hand, and administering a high dose of some pain killer that would contribute to the death of the patient on the other is not easy to make. Surely doctors have an ethical duty to relieve the pain of patients?

But how much morphine can a doctor prescribe before the alleviation of suffering turns into euthanasia? Surely this line is rather difficult to draw and doctors struggle with this every day, often prescribing high doses of a drug to a patient in a vegetative state who is going to die anyway, knowing full well that this will hasten the death of the patient.

The South African Law Reform Commission seem to have realised this problem and proposed that  a medical practitioner or, under specified circumstances, a nurse should be allowed to relieve the suffering of a terminally ill patient by prescribing sufficient drugs to control the pain of the patient adequately even though the secondary effect of this conduct may be the shortening of the patient’s life.

However, the Law Reform Commission Paper also seem not to have bitten the bullet on the issuee of whether Parliament should intervene to allow for the direct killing of patients who wish to die a dignified death. It did not propose that such a direct assistance to end the suffering of a terminally ill person should be made legal. In summary, it made the following proposals:

  • A medical practitioner may, under specified circumstances, cease or authorise the cessation of all further medical treatment of a patient whose life functions are being maintained artificially while the person has no spontaneous respiratory and circulatory functions or where his or her brainstem does not register any impulse.
  • A competent person may refuse any life-sustaining medical treatment with regard to any specific illness from which he or she may be suffering, even though such refusal may cause the death or hasten the death of such a person.
  • A medical practitioner may, under specified circumstances, give effect to an advance directive or enduring power of attorney of a patient regarding the refusal or cessation of medical treatment or the administering of palliative care, provided that these instructions have been issued by the patient while mentally competent.
  • A medical practitioner may, under specified circumstances, cease or authorise the cessation of all further medical treatment with regard to terminally ill patients who are unable to make or communicate decisions concerning their medical treatment, provided that his or her conduct is in accordance with the wishes of the family of the patient or authorised by a court order.

However, section 12(2) of the Bill of Rights state that everyone has the right to bodily and psychological integrity, which includes the right to security in and control over their body. Surely, if a patient believes that he or she would rather die than continuing to suffer pain, the person should be allowed to instruct a doctor or family member that when the time comes he or she should be relieved from their pain? In the case of Prof Davisons mother, if she had asked her son to end her life when it became unbearable, should the law not have provided some mechanism for him to fulfil his mother’s wishes to do with her body as she likes?

Is this absolute prohibition in our law on assisting anyone to kill themselves for any reason, not perhaps based on the same kind of absurd reasoning that allowed for the criminalisation of suicide in previous centuries? Surely, I have a right to decide whether I want to die or not. Should I then not also have the right to ask others to help me to die? Personally, I think every person has a right to ask others to legally help them end their lives.

The most difficult cases would of course be those where a patient had not expressly stated that he or she would wish to die if he or she was terminally ill or in a vegetative state, and was now incapable of giving such an instruction. Can the family now decide that the life of the wife or mother who is now in a vegetative state should be terminated? I am not sure section 12(2) of the Constitution can help us answer this question. It is perhaps an ethical question that Parliament needs to answer.

Personally, I believe Parliament should pass comprehensive legislation in this regard. Such legislation should allow for strictly regulated ways in which doctors could assist patients to end their lives if the patients so request. Such legislation should also allow doctors to actively end the life of a patient in cases where family members wish to end the life of a loved one who is in a vegetative state. What is the difference, after all, between starving a person to death and giving that same person a high dose of morphine? Is the second case not more humane than the first? Why would the first then be legal and the second not?

Sadly, because of society’s unease about such matters, Parliament will probably not deal with this matter. This is a tragedy. Every day doctors will continue to make very difficult decisions which technically might expose them to prosecution. Surely Parliament owes it at least to our doctors to clarify the legal position around euthanasia.

Political cowboy capitalism

Sep 21st, 2010
by Pierre De Vos.
65 comments

As the National General Council (NGC) of the African National Congress (ANC) gets under way in a blaze of publicity – pre-match analysis by all the weekend papers, live radio crossings for the speech of the ANC leader, regular twitter updates, wall-to-wall coverage in this morning’s papers - it struck me again how ubiquitous political parties are in our society and how important they are for the proper functioning of the constitutional democracy in South Africa.

Yet, political parties – unlike almost all other institutions of public importance – remain essentially unregulated by law. It is a free for all, a free market so unbridled that it should make not only communists but even moderate social democrats blush. This is political cowboy capitalism of the worst kind. While mining companies, universities, old age homes and even sporting bodies are all tightly regulated, political parties are not regulated at all – neither by the Constitution or by ordinary legislation. I find this rather problematic. If I was President Jacob Zuma I might have said that this flies in the face of the need to instill “revolutionary discipline” inside political parties and is thus rather counter-revolutionary.

The South African Constitution has remarkably little to say about political parties. Section 1(d) does confirm that a multi-party system of democratic government is one of the founding values of our Constitution and political parties are mentioned elsewhere in the Constitution, but nothing is said about how political parties must operate and whether they should adhere to democratic principles in electing leaders or nominating individuals for election to the various legislatures.

Political parties can receive donations from anyone – whether it is Kim Ill Jung, Muammar Gadaffi, George Bush or Bill Gates - or any organisation – whether it is a company who hopes to score an arms deal contract or a lucrative investment deal or wishes to have the law amended to ensure that the regulatory framework in the country allows it to make bigger profits and exploit ordinary people even more.

Political parties can create investment vehicles, can start up their own businesses – who can bid for government tenders - and can spend the money they make in any way they wish. They can use the money to hand out food parcels before an election, ferry potential voters in flashy cars to lavish parties, pay for the services of Kwaito Stars and for brilliant lawyers to help keep their leaders out of jail.

Furthermore, the Constitution does not make clear exactly what the relationship between the party leadership, the legislature and the executive should be. Can the governing party dictate to members of Parliament what they should think, what questions they should ask, what amendments they must make to draft legislation and what legislation they must approve? Well, there is nothing in the Constitution to help us answer these questions. If delegates at Polokwane said they wanted to get rid of the Scorpions because it had a tendency to prosecute ANC politicians for corruption, well, so be it.

And what about the relationship between the governhing party on the one hand and the President and Cabinet Ministers on the other? Cabinet Members are made individually and collectively accountable to the National Assembly, but they can also be fired by the National Assembly. Because the members of the National Assembly became members of that body because political party leaders agreed that they be placed high enough up on election lists so that they would make it to the National Assembly, MP’s are beholden to party bossses for their jobs and must either do what they say or suffer the consequences.

They can also all be recalled by the party if they do not follow the dictates of the party and if they refuse they can be expelled from the party in which case they automatically lose their seat in the Assembly.

This means that if the party wishes to, it can make the President and the Cabinet mere implementers of policy decided in Luthuli House. While formally the structures of constitutional democracy would then remain in place, this would become a bit of a sham as everything will be decided, at worst, by a few people at Luthuli House and, at best, by 4000 delegates at ANC gatherings. A democratically elected Parliament will facilitate public involvement in the law-making process and will invite civil society members and other members of the public  to give oral testimony about policies and draft legislation – just as required by the Constitution – but they will ignore this and follow the dictates of Luthuli House, bringing an end to the participatory aspect of our democracy and diminishing the power of the people.

Yesterday at the ANC NGC President Jacob Zuma departed from his prepared speech when he tried to justify the indecisiveness about finalising a new “growth path” strategy for the country by saying there were complaints about the previous administration’s style of taking decisions before approval by the ANC. (He might as well have said that Thabo Mbeki was a tyrant who never listened to the ANC rank and file and so had to be booted out, because the delegates liked this rather a lot.) “The ANC will be leading. The government will not be leading the ANC,” he said.

This is of course not entirely correct. When one is in government – either as a member of the legislature or the executive – it is impossible to always act on dictation from the ANC. ANC conferences or even the NEC do not consider every Bill and formulate an opinion on it. Neither do they consider any possible policy decision that a Minister is required to make.

This means we have a strange system in which the leadership of the governing party potentially has enormous power to run the country by remote control,  while we also have a Constitution that invests many formal powers in the executive and the legislature and makes clear that these bodies are the engine room of our democracy. But how should political parties in government relate to their members in the legilsature and the executive? The Constitution is silent on that.

What is needed is a piece of comprehensive legislation – as is in place in Germany – that regulates the organisation and conduct of political parties. Such a piece of legislation should require any political party who receives money from the state to be organised along democratic principles – including requirements for the democratic election of leaders and candidates for elective office.

It should also require all political parties to be transparent about donations from individuals and companies, should cap donations that could be given to a party each year to less than, say, R10 000, and should also require that the financial statements of political parties be audited to determine that the money was not spent to buy votes or influence or to bribe anyone.

What such a law would not be able to do, would be to solve the problem of the relationship between the party and its members in the legislature and the executive. There will always be problems in this regard, as the political party and its members would want to make sure its members in the legislature and the executive follow the party line, but they will be unable to micro manage all legislators and all members of the executive at all times. At the same time legislators and members of the executive would want to have somewhat of a free hand to respond quickly, strategically and coherently to events that might not have been foreseen by the party.

Can one legislate for this? I am not so sure. Meanwhile the ANC will continue asserting its right to circumvent the democratic institutions by telling its members elected by us and serving in these institutions what to do, while finding that it is rather difficult to enforce this principle from day to day.

MP’s now protected from whistle blowing

Sep 14th, 2010
by Pierre De Vos.
52 comments

South African Parliamentarians – like other individuals in society – are sadly not free from the temptations of modern life. One MP has already been convicted of fraud and sentenced to a three year prison term after receiving a huge discount on a new car from an arms deal competitor and lying about it to Parliament. Many other MPs were convicted of fraud after they abused the travel benefits of Parliament in a saga that became known as Travelgate.

Harry Charlton, the guy who revealed the existence of the massive fraud perpetrated by some of our elected representatives against every single South African (who has contributed to the taxes that bankrolled this travel fraud), was fired soon after he blew the whistle on these MPs. The poor guy thought he would be protected by the law and that he would not be fired for exposing the criminal activities of some of our elected representatives.

Boy, was he wrong.

After Parliament fired him, he approached the Labour Court on the basis that the disclosures were “protected disclosures” as envisaged in the Protected Disclosures Act 26 of 2000 (“the PDA”, also known as the whistle blowers act) and that his dismissal was consequently automatically unfair in terms of our labour law. He won his case in the Labour Court, but Parliament appealed the judgment and the Labour Appeal Court (LAC) overturned the judgment on the basis that his disclosures were not protected by the PDA.

The PDA states that a whistle blower is only protected if he or she makes disclosures about criminal or other unlawful acts or some other specified objectionable actions of his or her “employer” or of a fellow “employee”. Parliament argued that Parliamentarians are neither employers nor employees of Parliament and that they are therefore not covered by the PDA.

In other words, it argued that if someone who works for Parliament makes disclosures about corruption, criminal activities or other nefarious activities of MPs, that person will not be protected by the PDA. An employee of Parliament would therefore have to think twice before ratting on crooked MP’s because he or she would not enjoy the same protection as the rest of us who blow the whistle on other kinds of corruption and criminality.

The Act defines an employee as, inter alia, “any person… who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and any other person who in any manner assists in carrying on or conducting the business of an employer”.

It furthermore defines an employer as any person “… who permits any other person in any manner to assist in the carrying on or conducting of his, her or its business, including any person acting on behalf or on the authority of such employer”.

The LAC decided that these definitions could not (or should not) be given a broad meaning to encompass MP’s. It rejected the argument that MP’s could be viewed as employers of the staff who work in Parliament – at least for the purposes of the PDA. The LAC rejected the argument that Parliament is the sum of its constituent parts, namely the MPs and as well as the parliamentary staff who support the ongoing operation of Parliament as carried out by the MPs. The argument that the staff perform work for the MPs and that the MPs must therefore be regarded as an employer of the staff members – at least for the purposes of the PDA – also found no favour with the LAC.

It also rejected the submission that even if one accepts that Parliament was regarded as a separate legal entity, MPs could fall within the definition of an ‘employer’ because they were all persons “acting on behalf of or on the authority of such employer”. In doing so, it did not take into account the purpose of the PDA. Nor did it interpret the provisions to promote the spirit purport and objects of the Bill of Rights as required by section 39(2) of the Bill of Rights. Instead it gave these terms more or less the same meaning as they would normally have in the labour law context – relying on rather formalistic and technical legal arguments.

It chose the most obvious literal interpretation of these terms which just happened to have the effect that crooked MP’s would largely be protected from the whistle blowing activities by uppity Parliamentary employees. With a bit more effort and intellectual rigour the LAC could have found a way to give these terms a broader meaning so that MP’s could also be subjected to whistle blowing laws. (That is what the lower court did.) This would have exposed crooked MP’s to far greater danger of having their criminal or unlawful activity exposed.

While one can quibble about the technicalities, the reasons why the LAC chose this path are rather more disturbing than the outcome. Writing for the Court, Patel JA argued as follows:

To subject MPs to the PDA may, in practice, run the risk of frustrating the democratic process. An extension of the application of ‘employee’ under the PDA to include MPs might cause statutes to become more complex. MPs ought to be entirely independent. ….Parliament submitted that parliamentary staff are answerable to the Secretary of Parliament and not to MPs. This point is important. Parliamentarians must be allowed to focus on their constitutional duty to make law. A MPs portfolio ought not to be cluttered with the additional and onerous responsibilities of being an ‘employer’ of parliamentary staff. This would hinder the effective performance of their duties and functions. This court accordingly finds that MPs are not included in the PDA.

In other words, MP’s should not have to worry that their crookedness and criminality will be exposed by Parliamentary staff, because then they will not be able to steal our money and to commit criminal offences (in-between passing laws and holding the executive to account, one presumes).

I find this line of reasoning quite startling and anti-democratic. It flies in the face of one of the founding values of our Constitution namely that our system is based on democratic government, to ensure accountability, responsiveness and openness. If anyone should be subjected to the PDA, it should be our public representatives in Parliament, whose activities are funded by tax payers and who are elected to deliver accountable, open and responsive government.

If the PDA must be interpreted to exclude MP’s (a plausible but not inevitable conclusion), then the PDA must surely be unconstitutional. This is because the PDA would then infringe on our right to receive and impart information as well as our right to vote. How can voters meaningfully exercise their right to vote if laws, in effect, make it more difficult for Parliamentary staff to expose the corruption and other criminality of some MP’s? If we do not know whether some of our MP’s are corrupt, we would not be able to make informed choices about which party to vote for and our vote would become far less meaningful.

MP’s obviously should not be required to act as employers of Parliamentary staff for the purposes of labour law or for other practical purposes. But for the purposes of the PDA, these MP’s should be subject to exactly the same threat of exposure than any other employer or employee. How else will wrongdoing by MP’s ever become known and how else will we be able to know how crooked some of our MP’s might be?

Like Caesar’s wife, our MP’s – above all – should be beyond reproach. Public trust in the democratic process and in our constitutional democracy itself is of utmost importance, but how can we trust MP’s if we know that they have passed a law that the LAC now says rightly protects them from whistle blowing? How any person could argue that the democratic process would be frustrated by protecting whistle blowers who wish to expose possible criminality on the part of MP’s, is beyond me.

The judgment of the LAC demonstrates rather vividly what happens when the transformation of our legal system is not at the forefront of judicial appointments. When judges are appointed who are not imbued with the values of our Constitution, they produce this kind of formalistic reasoning which will diminish, rather than enhance, the quality of our democracy.

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