Constitutional Hill

Constitutional Court

The law vs. religion: Let’s try that again

The debate sparked by Chief Justice Mogoeng Mogoeng after he stated in a speech in Stellenbosch that it would be a good thing if religion influenced “the laws that govern our daily lives starting with the Constitution”, has been both frustrating and misinformed. Instead of focusing on the veracity and desirability of the arguments advanced by Justice Mogoeng, most commentators focused on the irrelevant question of whether a Chief Justice should express his religious views in public at all.

Chief Justice Mogoeng Mogoeng was admirably honest and transparent about his personal convictions when he stated – quoting that great freedom fighter and anti-colonialist, Lord Denning – that he believed “without religion there can be no morality; and without morality there can be no law”.

Judges are not empty vessels, lacking any personal beliefs, values and opinions. Instead, the different life experiences of judges (often focused on their differences in sex, gender, sexual orientation, race, class, religious or non-religious beliefs and other circumstances) may well influence how they view the world and the legal problems they are confronted with and, to some degree, how they will interpret the often open ended provisions of the Constitution in order to solve those legal problems.

Similarly whether a judge is a Pentecostal Christian, an atheist, a cultural Anglican, a Rastafarian, an agnostic, a devout member of the Dutch Reformed Church or a member of the File Sharing Religion may well have some influence on the way in which that judge sees the world and how he or she will resolve the legal problems he or she is called upon to adjudicate on.

Of course, judges need to be impartial. But this does not and – conceptually – cannot mean that a judge is required to have no beliefs or value system on which he or she will inevitably draw to decide complicated constitutional questions raised before him or her.

It only means that a judge must not pre-judge a case and must hear all the arguments before him or her and must consider both the applicable legal text and the relevant binding case law before making a ruling on a specific matter.

I would think it is far better and more honest for a judge to admit to these personal beliefs and to declare them upfront, as the Chief Justice did in his speech. Where judges declare their views openly, it is far easier to engage with the judgments written by that judge and to construct an argument either in support of or critical of the approach taken by a specific judge.

For this reason I have come to the realisation (modifying my previous position) that I have no problem with Chief Justice Mogoeng Mogoeng stating his views on the desired role of religion in law-making and constitutional interpretation in public.

However, I do believe that judges are not beyond criticism and that citizens are entitled to engage critically with the stated beliefs and values of judges.

The far more productive debate about the speech delivered by the Chief Justice would confront the substance of his speech and would construct arguments either in defence of his views or critical of them.

I propose to do the latter. It would enhance democratic debate if others who disagree with me took the time to construct counter arguments.

In this regard I believe the views expressed by Chief Justice Mogoeng on the role of religion in law-making and constitutional interpretation are intellectually incoherent and shallow, nonsensical and (to the extent that one can make any sense out of them) socially and politically reactionary and hence in direct opposition to my own value system and the norms embedded in the Constitution.

It is of course highly controversial to argue – as the Chief Justice did – that religion can be the only source of morality in any society. This claim ignores (or is ignorant of) developments in both traditional African philosophy and Western philosophy of the past 150 years.

For example, for some of us, humanism is an attractive non-religious source of morality, given its emphasis on the value and agency of human beings, individually and collectively, and its focus on the value of critical thinking and evidence over established doctrine or faith.

Given the fact that the value of human dignity is one of the founding values of our Constitution and given, further, that dignity is closely associated with the moral agency of humans, it is easy to square humanism with South African constitutionalism.

However, it is conceptually difficult if not impossible to square the views of the Chief Justice about morality (as prohibiting human beings from engaging in forms of sexual behaviour outside of state recognised marriage – even when this does not harm others) with the demands of the constitution to protect the infinite human dignity of every human being.

If laws were put in place (as the Chief Justice suggest they should) to curtail the freedom of individuals to decide for themselves how they wish to live their lives and how they want to arrange their intimate affairs, such laws would curtail the inherent human dignity of everyone. This would be in direct conflict with one of the founding values of our Constitution, a value, which our Constitutional Court has said, runs like a golden thread throughout the Constitution.

Moreover, anyone familiar with Immanuel Kant’s attempts to formulate rules on how to determine right from wrong through the categorical imperative (the idea that actions can only be considered moral if they could be imitated by anyone else and produce good results) would also be hard-pressed to agree with the Chief Justice that religion is the only possible source of morality in society.

You might not agree with Kant, but at the very least his philosophy – which former Constitutional Court Justice Laurie Ackermann has argued forms the intellectual basis for any understanding of the Constitutional Court’s dignity jurisprudence – posits an alternative source of morality not associated with any religious doctrine.

Of course, this idea that religion is the only source of morality for a society is especially common among those who associate morality with sexual behaviour.

Although it is difficult to tell exactly what the Chief Justice means by “religion” (there are many different religious traditions and many conflicting moral beliefs even within the Christian tradition, a tradition which the Chief Justice claimed to source his views from) his speech does suggest that he associates religious values with a strand of Pentecostal Christianity that focuses on sex as the root of all evil in the world.

Thus Justice Mogoeng stated in his speech that:

a legal framework that frowns upon adultery, fornication, separation and divorce, subject to appropriate modification, would, idealistic as this may appear to be, help us curb the murders that flow from adultery, help us reduce the number of broken families and the consequential lost and bitter generation that seems to be on the rise, which in turn cause untold harm to society.

At a press conference called to “clarify” his views, he reiterated that he saw a clear link between “morality” (as he understands it) and sexual behaviour, stating that:

Concerns that cannot be left unattended relate to the effect of religious principles on the right to secure a divorce, the freedom to indulge in adultery and promiscuous fornication.

I am sure many South Africans will claim to agree with this view of morality as espoused by the Chief Justice (even as they fail to live their lives according to it). But in a pluralistic society the moral views of the majority cannot be used to infringe on the rights of others and to rob those who do not wish to adhere to the majority view of their dignity and freedom.

Be that as it may, personally I find the views of the Chief Justice on “promiscuous fornication” and the need for laws to force people to remain married even if they wish to divorce, deeply conservative and objectionable.

This is because religious rules relating to how and with whom we are allowed to have sex function to control and discipline citizens (especially their bodies) and rob them of the freedom to decide for themselves how they wish to live their lives. It imposes the view of some about how we are allowed to use our bodies for pleasure on all of us and robs people of their right to live according to their own beliefs about how to arrange their intimate affairs.

Suggesting that the law should ideally regulate consensual sexual activity and the freedom to enter into and terminate relationships that have little or no bearing on the material wellbeing of people is disrespectful of the freedom of those who do not share your very narrow religious view of morality. It has the potential to interfere with the private choices of individuals and requires the church or the state to have a decisive say over our bodies.

This is potentially devastatingly invasive of the right of everyone to bodily and psychological integrity, which includes the right to make decisions concerning reproduction and to security in and control over their body guaranteed by section 12(2) of the Constitution.

It is therefore difficult to see how the views of the Chief Justice can be accommodated within the current constitutional regime.

Moreover, the morality espoused by the Chief Justice, does not seem to focus on the need to respect the inherent human dignity of every person and the idea that each human possesses moral agency to decide for him or herself how to live their life – as long as this does not harm others.

Instead, it seems to lean towards the view that the law as well as the power and authority of the state should be deployed to inculcate a specific religiously inspired morality in citizens.

In this regard the argument put forward by the Chief Justice that principles sourced from all religions could be infused into a “national moral code that could be taught at home and school from a tender age all the way up to adulthood” is particularly worrying. It is also intellectually incoherent as it directly contradicts other statements made by the Chief Justice in his speech.

In Stellenbosch the Chief Justice referred to the fact that the Constitutional Court has embraced the notion of South Africa as a pluralistic society. He even quoted the Court’s judgment in Prince where it stated that: “The protection of diversity is the hallmark of a free and open society.”

But once you recognise that our Constitution demands protection of this diversity – including diversity related to religious and other beliefs such as the belief not to believe in any God – it is intellectually incoherent to then argue that a very narrow conception of religious morality should influence laws that regulate the private and intimate lives of citizens. It is also incoherent to argue that certain religious values should be infused in a national moral code, which should be used to indoctrinate vulnerable children.

A society that respects diversity cannot enforce or propagate a narrow religiously inspired moral code on society as a whole. Instead, a society that respects diversity will celebrate difference – also different attitudes about morality.

For example, for some a “moral” society will be a society which censors and regulates the sexual activities of citizens and emphasises the moral superiority of monogamous marriage between one man and one women (and maybe two and a half children and a dog) till death do them part.

For others a “moral” society may be a society in which individuals are free to decide for themselves (without interference from the state) how to arrange their consensual, private, intimate affairs and in which we all fight to eradicate social injustice and economic inequality.

Because of these vastly different conceptions of what is good and moral, a society in which diversity is respected cannot enforce or promote a uniform moral code as the Chief Justice suggested.

Moreover, the view that religious values should influence laws and the interpretation of the Constitution is also in direct conflict with the precedent developed by the Constitutional Court.

In the Fourie judgment (ironically, perhaps, dealing with the need to recognise same-sex marriage), the Constitutional Court in no uncertain terms rejected the argument that religious beliefs should form the basis of legal regulation, stating as follows:

It is one thing for the Court to acknowledge the important role that religion plays in our public life. It is quite another to use religious doctrine as a source for interpreting the Constitution. It would be out of order to employ the religious sentiments of some as a guide to the constitutional rights of others. Between and within religions there are vastly different and at times highly disputed views on how to respond to the fact that members of their congregations and clergy are themselves homosexual. Judges would be placed in an intolerable situation if they were called upon to construe religious texts and take sides on issues which have caused deep schisms within religious bodies.

It is exactly because there is no universally accepted set of moral norms – religious or otherwise – on which any court can rely that the South African Constitution (not any set of religious beliefs) serves as the source of our constitutional morality.

We have a choice: either we amend the Constitution in order to ensure that the religious beliefs of some become the moral loadstar for legislation and constitutional interpretation – thus rejecting any accommodation of diversity – or we stick with the constitutional values which celebrate religious and other forms of diversity and respect for human dignity and prohibit the law from enforcing the narrow religious morally inspired beliefs of some on the whole of society.

If you favour the first route, the Chief Justice is your man. If you favour the second, well, then his speech will make you extremely nervous.

Evictions: 0 out of 10 SANRAL – try again

Hundreds of people were left homeless at Nomzamo settlement in Strand on Tuesday after the South African National Road Agency Limited (SANRAL) initiated the demolition and destruction of their homes from land owned by SANRAL. However, it is far from clear that the forced eviction and demolition was lawful, despite the claim by SANRAL that it was authorised by an interim interdict, obtained on 24 January this year.

“The law is the law,” said Vusi Mona, spokesperson for SANRAL, on Tuesday when he attempted to justify the eviction of hundreds of people from their homes built on SANRAL land. Mona was invoking an interim interdict aimed at unspecified persons intending to occupy SANRAL land to justify the eviction.

The interdict purports to prohibit unspecified persons from unlawfully occupying the land, building structures on the land and inhabiting those structures. It also authorises SANRAL, duly assisted by the SAPS, to remove people from the land, demolish their homes and remove their belongings from the land.

However, the interdict clearly excludes from its ambit those who had already occupied land and were already living in structures on the land at the time that the interdict was granted.

This means that any action taken by the SAPS – on the instructions of SANRAL – against those who were already occupying the land on 24 January would be blatantly illegal.

This does not mean that the eviction of people who occupied the land after 24 January and the demolition of their homes were constitutionally valid.

A court clearly has the power to grant an interdict to prevent people from unlawfully occupying land and building informal structures on that land to house them.

But once they occupy the land and build homes on it, only a court can order an eviction and then only after considering all the relevant circumstances as set out in the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act (PIE).

What the court cannot do, is prospectively order the eviction of unspecified people from their homes and the demolition of those homes by granting an interdict to that effect, as this would be in direct conflict with the Constitution.

The Constitutional Court is currently considering this issue (in the case of Zulu and Others v Ethekweni Muncipality and Others) but in doing so they must be guided by section 26(3) of the Constitution which states that:

No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

In the Zulu case the Ethekweni Municipality conceded before the Constitutional Court that an interdict that actually authorised eviction and demolition would be unconstitutional. However, it argued, quite unconvincingly in my opinion, that an interdict allowing the SAPS to remove existing occupiers from land and demolishing their homes did not in fact constitute an eviction.

Where the court grants an interdict that operates prospectively and allows authorities to prevent occupation of land as well as the eviction of those who have settled on the land and the demolition of their homes, they abdicate their responsibility granted to them by section 26(3) to either private bodies or to organs of state like SANRAL or the Police.

In such a case there would be no judicial oversight over the possible eviction of people who would often be desperate because they would be occupying land illegally because they literally have nowhere else to go.

Neither would there be any consideration of all the relevant circumstances relating the manner in which the land was occupied and the desperation of the occupiers as required by section 26(3) and further elaborated upon in PIE.

As the eviction and demolition of homes at Nomzamo settlement in Strand thisweek demonstrates, a court who grants an interdict that prospectively allows an authority to evict people from their homes and demolish those homes unconstitutionally circumvents the requirements of section 26(3) of the Constitution and sabotages this section of the Constitution.

An interdict such as the one bandied about by SANRAL to justify their heartless action is therefore almost certainly unconstitutional.

In the judgment of Port Elizabeth Municipality v Various Occupiers the Constitutional Court displayed a far more humane and sensitive attitude towards human beings than either the judge who granted the SANRAL interdict or the spokesperson of SANRAL. Discussing the way in which PIE had to be interpreted and applied, Sachs J stated:

PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern.

The fact that SANRAL and the SAPS displayed a complete lack of grace and compassion in this case, underscores the need for court involvement in any decision to evict people from their homes.

This is important because a court that considers whether to evict people from their homes in accordance with section 26(3) of the Constitution, read with the provisions of PIE, will have to ask many questions that neither the court who issued the interdict nor SANRAL ever asked.

Section 6 of PIE states whenever an organ of state like SANRAL requests a court to grant an order for eviction the court can only do so if it is just and equitable to do so, having regard to the circumstances under which the unlawful occupier occupied the land and erected the building or structure; the period the unlawful occupier and his or her family have resided on the land in question; and the availability to the unlawful occupier of suitable alternative accommodation or land.

In City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties the Constitutional Court said that when considering whether an eviction would be just and equitable, a court must also consider the obligations of the municipality in a case. Even where a third party requests an eviction order a municipality must act reasonably in the circumstances.

In terms of Chapter 12 of the National Housing Code requires authorities like Municipalities to provide housing assistance in emergency housing circumstances. This means that the Municipality has a duty to provide assistance to people who find themselves in a housing emergency for reasons beyond their control. Where they are evicted – legally or illegally – people will find themselves in a housing emergency.

As the Constitutional Court explained in Blue Moonlight Properties a municipality cannot argue that in terms of Chapter 12 it is neither permitted nor obliged to take measures to provide emergency accommodation to those evicted. On the contrary “[t]he City is obliged to provide temporary accommodation”.

Claims by Premier Helen Zille on Twitter to the contrary are therefore false. As soon as the eviction occurred, the City of Cape Town had a duty to assist those evicted by SANRAL.

What remains incomprehensible is that many cities across South Africa still view homeless people who are forced unlawfully to occupy land because they have nowhere else to go as law-breakers – as if homeless people are not human beings imbued with incomparable human dignity.

What is needed is a complete paradigm shift on the part of authorities in South Africa. Millions of South Africans still do not have access to formal housing. Like everyone else, those who have no access to formal housing need shelter from the cold and rain. If they do not have the resources to buy or rent property they must be accommodated, and it is the state that has a responsibility to do so.

But many municipalities and provincial governments as well as the national government seem reluctant to deal pro-actively with those in desperate need of shelter. Instead of devising and implementing drastic and far-sighted policies to accommodate those in need of shelter, authorities often seem to treat the homeless as a nuisance to be combatted.

In the absence of such far-sighted policies to provide those in desperate need with access to forms of housing, many people will be forced to occupy both state and private land unlawfully. When they do, authorities often break the law by evicting the occupiers without obtaining the constitutionally required eviction orders and without providing alternative accommodation.

The result is that the authorities (in both DA and ANC municipalities) are often at war with poor people, the very people they claim to revere during elections. It’s a vicious circle: authorities fail to prioritise the needs of poor people and then rhetorically criminalise people for being poor by blaming them for having the cheek to do what is necessary to survive.

When authorities use the law as an excuse for their war on the poor – as Vusi Mona did this week – they undermine the legitimacy of the law. After all, where the law makes it impossible for poor people to survive with even a semblance of dignity, the law is an ass.

Why redress measures are not racist

Anybody who highlights the pervasive racism and racial discrimination still experienced by black South Africans are invariably attacked by enemies of equality who oppose legal measures to address the effects of past and on-going racism and racial discrimination. Claiming that measures aimed at addressing the effects of past and on-going racial discrimination are “racist”, some of them assert that the right to equality always requires all people to be treated the same, regardless of their race, sex, gender or sexual orientation. These arguments, I contend, are both ignorant and wrong.

Insisting on the equal treatment of all people in all circumstances is deeply unfair. Insisting on such equal treatment can also have bizarre and even dangerous consequences.

To use an uncontroversial example, most of us would be horrified if schools insisted that all boys and girls, regardless of age or sex, must play in the same rugby league. Most of us would also be horrified by a government policy requiring every child to pay R50,000 a month to be allowed to attend a government school.

People are often discriminated against on the basis of age, sex or financial status. Yet few of us would deny that the policies mentioned above (which insist on the equal treatment of children regardless of their age, sex or financial ability) are profoundly unfair.

We may point out, when pressed, that because the playing field is not equal for the children involved, an insistence on equal treatment is profoundly discriminatory. It would endanger the lives of some children. It would also exclude children from life-enhancing benefits and opportunities based on no more than the historical “accident” that some children were born later than others, or on the fact (entirely unrelated to the abilities of the particular child) that some parents are able to afford the school fees while most will not.

For this reason the principle of equality cannot be based on the requirement that all people must be treated in exactly the same manner at all times, regardless of their personal circumstances or their personal attributes and characteristics.

Unless you are wilfully ignorant of South Africa’s history, you would not be able to deny that when our Constitution was adopted our society was “deeply divided, vastly unequal and uncaring of [the] human worth” of black South Africans. Anyone who has eyes to see must also admit that these “stark social and economic disparities” persist to this day.

Given our history of racial subjugation and oppression, it is no surprise that these inequalities are racially marked (although, as the Constitutional Court has pointed out, this racial inequality often intersects with other forms of disadvantage based on sex, gender, sexual orientation and – not mentioned by the Court – the relative poverty or wealth of individuals).

In 2011 the average annual income of a “white” household was about R365,000, that of an “Indian” household R251,000, that of a “coloured” household R251,500 rand and that of an average “black” household R60,600. (See table below.)

 southafrica_income

Our Constitution responds to this undisputed reality. Unlike opponents of redress measures, who insist that we should ignore these facts and should turn a blind eye to the way in which past racial exploitation continues to affect the life-chances of the overwhelming majority of South Africans, the Constitution recognises the incontrovertible fact that all are not equal in our country. If legal rules and policies deny this reality, it will simply lead to an entrenchment of existing inequalities. As the Constitutional Court stated in the case of Minister of Finance v Van Heerden:

Our Constitution recognises that decades of systematic racial discrimination entrenched by the Apartheid legal order cannot be eliminated without positive action being taken to achieve that result. We are required to do more than that. The effects of discrimination may continue indefinitely unless there is a commitment to end it.

This is why section 9(2) of the Constitution contains a so-called “affirmative action” clause, which provides for the achievement of full and equal enjoyment of all rights and freedoms and authorises legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination.

Our Constitution thus allows for and in some cases, requires, “remedial or restitutionary equality”. As the Constitutional Court explained in the Van Heerden case (ironically brought by a white National Party member of Parliament who complained that he was being discriminated against):

Such measures are not in themselves a deviation from, or invasive of, the right to equality guaranteed by the Constitution. They are not “reverse discrimination” or “positive discrimination”… They are integral to the reach of our equality protection. In other words, the provisions of section 9(1) and section 9(2) are complementary; both contribute to the constitutional goal of achieving equality to ensure full and equal enjoyment of all rights…. Absent a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised under-privilege, the constitutional promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow.

As I have explained before, this does not mean that redress measures will always be constitutionally valid.

First, while the Constitutional Court acknowledges that redress measures aimed at bringing about transformation “will inevitably affect some members of the society adversely, particularly those coming from the previously advantaged communities”, a measure that constitutes “an abuse of power” or imposes “such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened” would not be permissible.

Second, the Court acknowledged that in the assessing the validity of redress measures “a flexible but situation-sensitive” approach is indispensable. This is so “because of shifting patterns of hurtful discrimination and stereotypical responses in our evolving democratic society.” Once the income of the average “black” household is more or less equal to that of the average “white” household and once the racially skewed patterns of property ownership have become less glaringly unjust, race-based redress measures may well be found no longer to be constitutionally valid.

It also does not mean that there are not, in certain cases, practical and conceptual problems with the implementation of race-based redress measures. For example, the way in which the current so called Broad Based Black Economic Empowerment (BBBEE) policy is being implemented is a recipe for nepotism and corruption. BBBEE can often look suspiciously like a form of bribery aimed at moderating the economic policies of the ANC government and at opening direct channels of communication between the big companies and government leaders.

The revelations about Cyril Ramaphosa’s direct communications with several government ministers during the strike that led to the Marikana massacre clearly demonstrate the “benefits” of political connectivity that BBBEE bring to big business.

Often the policy is implemented in ways that allow the old business elite to “buy off” the new political elite by handing large amounts of shares or board positions to politically connected individuals, without benefiting the broad community and without redistributing assets and benefits to the large majority of South Africans.

Reasonable people could therefore engage in a serious debate about the correct scope and content of such redress measures. But claims that such measures are inherently “discriminatory”, that they infringes on long established human rights norms or that they are inherently unjust, are not based on either facts or any understanding of the legal landscape.

Those who oppose redress measures in principle (not having read much about anything and smugly holding on to their own ignorance) may not be aware that in the legal and philosophical discourse, the Constitutional Court’s approach to redress is neither unique nor conceptually problematic.

In fact, with the exception of some far right-wing judges on the US Supreme Court (who believe corporations have rights – just like people) I am unaware of any modern equality jurisprudence in foreign jurisdictions or in international law supporting the notion that race-base redress measures constitutes “reverse discrimination”.

Thus the lawyers and judges who staff the Committee on Human Rights, providing an authoritative interpretation of the International Covenant on Civil and Political Rights (ratified by, and binding on, 167 countries) in a General Comment on the Equality of Men and Women endorsed the notion that states have a duty to take positive measures to achieve equal empowerment of women.

Similarly, the judges and lawyers who staff the Committee on Economic, Social and Cultural Rights, providing an authoritative interpretation of the equality guarantee in the International Covenant on Economic, Social and Cultural Rights (ratified by, and binding on, 167 countries) endorsed the need for states to take affirmative action measures and explained the need for redress measures as follows:

In order to eliminate substantive discrimination, States parties may be, and in some cases are, under an obligation to adopt special measures to attenuate or suppress conditions that perpetuate discrimination. Such measures are legitimate as long as they represent reasonable, objective and proportional means to redress de facto discrimination and are discontinued when substantive equality has been sustainably achieved.

The Committee on the Elimination of All Forms of Discrimination Against Women, in its authoritative interpretation of the International Covenant on the Elimination of All Forms of Discrimination Against Women (ratified by, and binding on, 187 countries) endorsed affirmative action measures as follows:

It is not enough to guarantee women treatment that is identical to that of men. Rather, biological as well as socially and culturally constructed differences between women and men must be taken into account. Under certain circumstances, non-identical treatment of women and men will be required in order to address such differences. Pursuit of the goal of substantive equality also calls for an effective strategy aimed at overcoming underrepresentation of women and a redistribution of resources and power between men and women.

Lastly, the judges and lawyers who staff the Committee on the Elimination of All Forms of Racial Discrimination, in its authoritative interpretation of the International Convention on the Elimination of All Forms of Racial Discrimination (ratified by, and binding on, 176 countries) explicitly rejects the use of the term “positive discrimination” when dealing with race-based “affirmative action”, noting that in the context of international human rights standards, this term is a contradictio in terminis (a contradiction in terms). It then proceeded to note that such “affirmative action” measures:

include the full span of legislative, executive, administrative, budgetary and regulatory instruments, at every level in the State apparatus, as well as plans, policies, programmes and preferential regimes in areas such as employment, housing, education, culture and participation in public life for disfavoured groups, devised and implemented on the basis of such instruments.

There are, of course, some reasonably credible lawyers and philosophers who support the principle that the effects of past and on-going discrimination should be addressed by affirmative action measures, but hold that such measures should not rely on “race”. I have previously written about structural racism, which – I believe – counter these arguments by showing that in South Africa race is not a proxy for disadvantage but itself always causes disadvantage.

All I will add here is that, if you support redress measures but agree with those who oppose the use of racial categories for redress purposes, the examples provided above at the very least must remind you that your argument is neither self-evident nor widely accepted “common sense”. I despair that many people taking part in the debate (wholly ignorant of the writing and jurisprudence on equality which have developed over the past 50 years) seem to believe that it is obvious that race-based redress measures are “racist”. It is not.

My advice to those would be simple: do some basic reading on equality law and the use of racial categories in effecting redress. It may, at the very least, make you realise that the view you think is based on self-evident common sense is not nearly as obvious as you believe. It may even lead you to reflect and think.

Constitutional Court affirms right of President to confer silk status on advocates

Senior advocates must be relieved. On Thursday the Constitutional Court confirmed that the president indeed had the power to confer silk status – also known as the status of Senior Counsel (SC) – on advocates. This means that the status of SC – which enhances the earning potential as well as the social and professional status of an advocate – will remain, as will the high cost associated with hiring the services of one of these select group of lawyers.

When Urmilla Roshnee Devi Mansingh’s application to be conferred with SC status was unsuccessful, she decided not to take this rejection by her peers lying down. Taking on the long established practice of conferring silk status on a select group of advocates, she must have realised that she was challenging the entire legal establishment and that she was not likely to succeed. It may even have come as a surprise to her when the High Court declared that section 84(2)(k) of the Constitution does not authorise the President to confer the status of senior counsel on advocates.

But this decision of the High Court was reversed on appeal by the Supreme Court of Appeal (SCA), a decision which was confirmed on Thursday by the Constitutional Court. Although the legal challenge may have been motivated by the view that the conferral of silk status on a select group of advocates was not easily squared with the egalitarian ethos of our constitutional democracy, the case was not decided on the basis of whether the institution of silk or SC status is good or bad, or whether it is worthy of protection. Nor was the case decided on the basis of the merits of Ms Mansingh’s own unsuccessful applications for SC status.

Instead, the court only had to decide whether section 84 of the Constitution bestowed the power on the President to confer the status of SC on those advocates selected for it by their peers at the Bar. Section 84 of the Constitution states in part:

1. The President has the powers entrusted by the Constitution and legislation, including those necessary to perform the functions of Head of State and head of the national executive. 2. The President is responsible for…. (k) conferring honours.

Aspects of section 84 of the Constitution have its origins in English constitutional law. This reminds us that the our colonial past still haunts us and shines through in the most surprising places – including in section 84 of the Constitution.

Before 1994, following the Westminster model, the “royal prerogative” was a source of power for South African heads of state derived not from the Constitution or other statutes but from the common law. These prerogatives powers had their origins in English law, which bestowed certain prerogative powers on the English monarch.

Similar powers have been and still are exercised (by heads of state or the executive in his or her name) in many countries that form part of the Commonwealth as well as many outside it. In South Africa, prior to 1993, some, but not all, of those powers had been codified in earlier constitutions. Those that remained non-statutory were dealt with by reference to the exercise of the prerogative by the English monarch.

Historically, the conferral of silk was considered an exercise of the “honours prerogative” under the English law, which was received into South African law under the Union Constitution of 1910. The Head of State possessed both a codified honour-conferring power and an unspecified, residual prerogative power similar to that held by the English monarch.

This all changed in 1994 when some of the prerogative powers were codified in section 82 of the interim Constitution and, later, in section 84 of the final Constitution. In President of the RSA v Hugo the Constitutional Court found that the fact that our constitution was now supreme meant that there are no longer any powers derived from the royal prerogative which are conferred upon the President other than those enumerated specifically in the Constitution.

In Mansingh v General Council of the Bar and Others the Constitutional Court (in a unanimous judgment penned by Justice Nkabinde) had to interpret the scope of section 84(2)9k) of the Constitution to determine whether the conferral of silk status on advocates was constitutionally valid. In effect, the court had to decide, in the light of the historical origins of the section 84(2)(k) powers as a prerogative power of the monarch, whether the phrase “conferring honours” was broad enough to encompass the traditional practice of bestowing silk status on selected members of the advocates’ profession.

The Court applied the well known interpretive approach that, while having due regard to the language of the constitutional text and the context within which the interpretation happens, is “generous and purposive and gives expression to the underlying values of the Constitution”. The Court agreed that when adopting the purposive and contextual approaches, courts are constrained by the plain language used in the section, but must also have regard to the constitutional context preceding the enactment of the provision in question.

Ms Mansingh had argued that the conferral of silk status did not fall within the ambit of section 84(2)(k) as this power must be viewed as no more than the power to bestow National Orders – like the Order of the Baobab – on individual citizens. She contended that since the institution of silk does not share the same characteristics as other Orders bestowed on citizens by the President, it is not an “honour” in the meaning of section 84(2)(k).

The court disagreed, pointing out that the textual meaning of the word “honours” is capable of a very wide meaning. It is interesting to note that the Court came to this view, partly by referring to the original intentions of the drafters of the Constitution. The Constitutional Court seldom refers to the original intentions of the drafters of the Constitution – perhaps because the “original intent” theory of constitutional interpretation is so thoroughly discredited and is associated with right wing judges such as Antonin Scalia of the US Supreme Court.

However, in this judgment it thus endorsed the SCA interpretation of the section that relied heavily on the preparatory drafting documents. These documents indicated what the intentions of the constitutional drafters were when they included various subsections into section 84 of the Constitution.

The general intent of the drafters of the Constitution therefore seems to be plain. Insofar as executive powers derived from the royal prerogative were not incompatible with the new constitutional order, they should be codified and maintained. Conversely stated, the intention was not to abolish prerogative powers or to diminish the function of the head of state previously derived from the royal prerogative, but to codify the powers insofar as they are not inimical to the constitutional state and to render the exercise of these powers subject to the Constitution. _In this light the historical perspective therefore seems to support the appellants’ argument that the power to ‘confer honours’ contemplated in section 84(2)(k) of the Constitution must be afforded its traditional content, which included the power to appoint silks.

Ms Mansingh also argued that the true character of SC status was a certification of professional quality – not a mere “honour” as envisaged by the Constitution. Silk or SC status, she argued, is awarded by letters patent, which are a classical form of certification of professional quality. In other words, she argued that the conferral of silk status was more like bestowing a professional qualification or certification of quality on an advocate, one with profound financial and professional implications that go far beyond the conferral of a symbolic “honour” as allowed by the Constitution.

The Constitutional Court rejected this argument, stating that:

The conferral of silk may assist in the administration of justice by aiding in the proper functioning of the legal system. And this Court cannot ignore the reality that applicants for SC status initiate the process and that some may consider appointment an important step in their professional advancement. But that is not all. The respondents emphasise that being appointed silk serves as recognition by the President of the esteem in which the recipients are held “by reason of their integrity and of their experience and excellence in advocacy.

In other words, the Constitutional Court said that the conferral of silk has different consequences and different functions and at least one of those happens to fall within the ambit of conferring honours as authorised by section 84(2(k). The Court argued that Ms Mansingh has not “pointed to any features of the institution that warrant its exclusion from the broad understanding of “honours”.”

While reading the judgment I wondered about the fact that the long-held traditions of conferring silk status on some selected advocates is a tradition inherited from the colonial era. Yet, this tradition seems to be widely accepted and even revered by many members of the legal profession – also members who would otherwise be more progressive and anti-colonial in their politics. While the judgment dealt with the narrow constitutional issue regarding the powers of the President, I wonder whether we will ever get to a point where a sizable group of advocates would begin to question this tradition of conferring silk on advocates, a tradition with a decidedly colonial history.

Teen sex: The criminal law can’t replace parenting

Judging by comments on talk shows and on Twitter, many adults – including many parents of adolescent children – do not have a healthy attitude towards sex. While they may engage in sexual activity, and while many presumably enjoy having sex, many adults seem to have internalised the Judeo-Christian belief that various forms of consensual sexual self-expression are “sinful”, “dirty”, “corrupting” and therefore something to be ashamed of and to keep secret. It is no surprise that such adults may support the criminalisation of their adolescent children’s sexual development to avoid talking to their children about sex. But, as the Constitutional Court recently found, the use of criminal law as a parenting tool in matters relating to the sexual development of teenagers is impossible to square with the rights guaranteed in the Constitution.

In one of his most famous poems, the late English poet laureate Phillip Larkin (who never had any children himself) wrote:

They fuck you up, your mum and dad./ They may not mean to, but they do./ They fill you with the faults they had/ And add some extra, just for you.

But they were fucked up in their turn/ By fools in old-style hats and coats,/ Who half the time were soppy-stern/ And half at one another’s throats.

Larkin, I take it, wanted to make the point that parents are not always well-equipped to guide their children into a well-adjusted adulthood. This is so because parents are often not particularly wise or well-adjusted: they may harbour old resentments from their own difficult childhoods and may carry with them some of the prejudices, blind-spots and insecurities inherited from their own parents. It is especially when children disappoint their parents by developing their own distinctive personalities – when they refuse to fulfil their parents’ dreams and expectations and act like the unique human beings that they are, with a will and personality of their own – that some parents lose the plot.

This may also be the case in matters relating to sexuality: some parents who themselves may be deeply ambivalent about sex (enjoying it but also half-believing that sex is potentially shameful) may find it hard to talk to their teenage children about sex. Such parents may well hope that the threat of criminal sanction would force their adolescent children to ignore their own developing sexual feelings and would stop their children from exploring their budding sexual feelings. Instead of reflecting on their own inherited attitudes about parenting and the manner in which their personal moral views might come in the way of raising their children to become well-adjusted and happy adults, they pin their hopes on the criminal law to absolve them of responsibility for the proper rearing of their children.

The hopes of such parents were dashed last week when the Constitutional Court, in a unanimous judgment authored by Sisi Khampepe, declared invalid sections 15 and 16 of the Sexual Offenses Act in Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another.

The impugned sections criminalise consensual sexual intercourse between adolescents (between 12 and 16 ears of age) as well as other forms of physical contact between adolescents including petting, kissing and hugging. The Act states that in such cases both of the adolescents involved had to be prosecuted. The Act provides for a “close-in-age” defence to an adolescent who had been charged with petting, kissing and hugging, but not to an adolescent who had been charged with sexual intercourse with another adolescent. This means that where both the adolescents were children “and the age difference between them was not more than two years at the time of the alleged commission of the offence” they could not be prosecuted – but only in cases of petting, kissing and other non-intercourses related sexual contact.

The Constitutional Court found that these provisions infringed on the right of adolescents to dignity, privacy and the right to have their best interests treated as being of paramount importance.

Its findings were premised on the assumption “that children enjoy each of the fundamental rights in the Constitution that are granted to ‘everyone’ as individual bearers of human rights”. The Court views children as individuals – not as mere extensions of their parents – and the judgment therefore affirmed the need to value the choices that children make.

This means that children, too, must be treated like human beings, not merely like creatures on their way to acquiring free will and the status of fully human being. In discussing the right of children to have their dignity respected and protected, the Court affirmed that the dignity of a child is of special importance “and are not dependent on the rights of their parents”. The exercise by children of their dignity rights is not “held in abeyance until they reach a certain age”. This is so because:

If a child is to be constitutionally imagined as an individual with a distinctive personality, and not merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them…. Individually and collectively all children have the right to express themselves as independent social beings, to have their own laughter as well as sorrow, to play, imagine and explore in their own way, to themselves get to understand their bodies, minds and emotions, and above all to learn as they grow how they should conduct themselves and make choices in the wide social and moral world of adulthood.

If you accept that children are also entitled to enjoy the right to have their dignity respected and protected, it must be clear that the criminalisation of consensual sexual conduct of children infringes on this right. It “is a form of stigmatisation which is degrading and invasive”.

If one’s consensual sexual choices are not respected by society, but are criminalised, one’s innate sense of self-worth will inevitably be diminished. Even when such criminal provisions are rarely enforced, their symbolic impact has a severe effect on the social lives and dignity of those targeted.

This is especially so because sections 15 and 16 of the Act criminalise a wide range of consensual sexual conduct between children: the categories of prohibited activity are so broad that they include much of what constitutes activity undertaken in the course of adolescents’ normal development.

There can also be no doubt that the existence of a statutory provision that punishes forms of sexual expression that are developmentally normal degrades and inflicts a state of disgrace on adolescents. To my mind, therefore, the stigma attached to adolescents by the impugned provisions is manifest. When that individual is publicly exposed to criminal investigation and prosecution, it is almost invariable that doubt will be thrown upon the good opinion his or her peers may have of him or her.

The Court employed similar reasoning to find that section 15 and 16 infringed on the right to privacy of affected adolescents and their right to have their best interests treated as being of paramount importance.

After all, the right to privacy is closely related to the notion of dignity as it recognises that we all have a right to a “sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community”.

The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy.

The criminalisation of adolescent sexual activity would allow police officers, prosecutors and judicial officers to scrutinise and assume control of the intimate relationships of adolescents, “thereby intruding into a deeply personal realm of their lives”.

In my view these passages serve as an important “teaching moment” for parents. They challenge parents to form a closer and more authentic bond with their children, challenge them to listen to their children but also to guide them. The judgment asks parents not to treat children in an overly paternalistic manner and not as the property of parents or the state, but as individuals with unique needs and an ability to develop into well-adjusted adults – if only their caring parents, who respect their individuality, provide appropriate guidance to them.

This does not mean that anything goes. There may be legitimate reasons for limiting a child’s fundamental rights in particular circumstances, due to the stage of his or her development and in order to protect him or her. Legislation that infringes on the child’s right to dignity, privacy and the like could be justified in terms of the limitation clause if this limitation was reasonable. Such legislation would be reasonable if it genuinely protected children from harm and – in the present case – from the risks (including the risks of teenage pregnancy and psychological harm) associated with inappropriate sexual experimentation for which particular adolescents might not be prepared.

But the state had not provided the court with any evidence that the criminalisation of sexual activity between adolescents would in fact protect teenagers from harm. The expert evidence before the Court demonstrated that it was potentially healthy for teenagers to explore their sexuality, as long as such exploration was “conducted in ways for which the individual is emotionally and physically ready and willing.”

What is of utmost importance is ensuring that children are appropriately supported by the adults in their lives, to enable them to make healthy choices. This is particularly so given the awkwardness and embarrassment children often feel when discussing sexual relations with adults. If children are not made to feel that there are safe environments within which they can discuss their sexual experiences, they will be stripped of the benefit of guidance at a sensitive and developmental stage of their lives.

The impugned provisions did nothing of this sort. In fact the Court found that these provisions would exacerbate harm and risk to adolescents by undermining support structures, preventing adolescents from seeking help and potentially driving adolescent sexual behaviour underground. Moreover, the Act placed a duty on anyone to report contraventions of the Act to the Police, which would make adolescents less likely freely to communicate about sexual relations with parents and counsellors. These reporting provisions “create a rupture in family life and invite a breakdown of parental care by severing the lines of communication between parent or guardian and child”.

The criminal law is a drastic tool to address problems associated with inappropriate sexual activity of children. Children could be imprisoned because they engaged in heavy petting or kissing or in sexual intercourse. This they could have done because they were indeed emotionally ready to engage in the activity or because their parents had not guided them appropriately to make correct choices about their sexual development. The provisions would potentially expose children to trauma and to the harsh effects of the criminal justice system. And while the Court does not say so, this might occur because of the absence of appropriate guidance and advice by parents too ashamed to talk to their children about sex or too reliant on the criminal law to do the parenting on their behalf.

In this case the state provided no evidence that the criminalisation of adolescent sexual activity would actually serve the purpose of protecting children from the physical and psychological risks of inappropriate sexual experimentation. While caring guidance from parents would empower adolescents to make the correct choices about their sexual development, it is unclear how the enforcement of the criminal law would achieve the same result. As the Court pointed out:

We have before us no evidence at all to demonstrate that adolescents may be deterred by sections 15 and 16 from engaging in sexual conduct and thus avoid the risks associated with engaging in sexual activity at a young age. Rather, the evidence we do have before us is to the contrary. It shows that the impugned provisions increase the likelihood of adolescents participating in unsafe sexual behaviour and therefore actually increase the materialisation of the associated risks.

Where legislation cultivates a society in which adolescents are precluded from having open and frank discussions about sexual conduct with their parents and caregivers they would be put at more risk and would not be protected at all. Rather than deterring early sexual intimacy, the provisions merely drive it underground, far from the guidance that might otherwise be provided by parents, guardians and other members of society.

The evidence put before the Court also indicated that the criminalisation of adolescent sexual activity would in fact disempower caregivers and institutions in dealing with adolescents. This is so because parents and caregivers cannot promote behaviour that the provisions have deemed illegal and further because, in the course of attempting to provide guidance and assistance, they may well be told intimate information which they will be obliged to report to the authorities.

The judgment serves as a clarion call to parents to prove Phillip Larkin wrong, to demonstrate that they are willing to treat their children like human beings, that they are parents who are capable of learning from their parents’ mistakes and that they care enough about their children not to try and outsource their parenting to the criminal justice system.

The emotionally charged Hlophe case, revisited

It has become very difficult to have a rational discussion about either the legal issues or the issues of principle underlying the way in which the complaint lodged collectively by judges of the Constitutional Court against Judge President John Hlophe are being dealt with. Emotions are running so high among both vehement critics and ardent supporters of Hlophe that both sides seem to believe their opponents hold bizarre and even shockingly immoral views damaging to the judiciary and to the country. The truth probably lies somewhere between these two extreme views.

When Constitutional Court Justices Chris Jafta and Bess Nkabinde testified under oath before a Judicial Service Commission (JSC) hearing in 2008, they both denied that undue or inappropriate pressure from other judges of the Constitutional Court coerced them into being part of a collective complaint lodged by the Constitutional Court against Judge President John Hlophe.

At the time these denials seemed strange if not completely implausible. This is so because after the Constitutional Court announced that it was laying a complaint against Hlophe because of his alleged improper attempt to try and influence judges to rule in favour of President Jacob Zuma in a case dealing with the validity of search and seizure warrants on Zuma’s properties and those of his attorneys, the two judges issued a remarkable joint statement.

In this statement they recorded that they “have not lodged a complaint and do not intend to lodge one.” They placed on record further that they had told other judges of the Constitutional Court “on a number occasions” that “we were not intending to lodge a complaint and neither we were willing to make statements about the matter.”

For some as yet unexplained reason the judges changed their mind and endorsed the joint compliant of the Constitutional Court. At the time, giving the two judges the benefit of the doubt, it appeared to me as if they did this because they realised that if indeed an improper approach was made to them to try and influence a judgment of the Constitutional Court, this was by no means a private matter only affecting them, but a matter of the highest public importance potentially affecting the legitimacy of the Constitutional Court and of the judicial system as a whole.

Their testimony before the JSC at the time said as much. Thus Jafta told the JSC:

Once it had been explained clearly, the distinction between, on the one hand the interest of an individual judge, and the integrity of the institution on the other hand, we were willing to participate in the complaint at that level so as to protect the integrity of the Constitutional Court.

When Nkabinde was asked why she did not want to be an individual complainant against Hlophe she said:

Mr Commissioner, I think in retrospect, one could have done that. This thing happened at the time when one was busy doing all sorts of things. My mind was not clear at the time as to really what is the right thing to do, and given that complexity, I didn’t see it very clearly.

When asked if she was a willing participant in the collective complaint of all the Constitutional Court justices she told the JSC: “Oh yes, I didn’t have a problem.”

But last week the two justices once again seemed to change their minds. They were again reluctant to testify, the integrity of the Constitutional Court seemingly no longer of concern to them. The justices raised a defence that they are not obliged to subject themselves to the new proceedings (ordered by the Supreme Court of Appeal (SCA)) as the proceedings is a nullity because the relevant regulatory framework upon which the proceedings are predicated is a nullity. They intend to take the decision to reject their argument on review, suggestion that they are now extremely reluctant to testify.

From the outside, and without access to all the facts, this new U-turn seems truly bizarre. I cannot see how this serves either the interest of the Constitutional Court or the interest of the two justices (nor, I would add, the interests of Judge President Hlophe). Their present course of action cannot possibly be squared with their testimony given to the JSC under oath in 2008. Does this mean they lied under oath to the JSC back in 2008? Or does this mean they did not lie in 2008, but that they have decided to that it was not worth it for them to try and protect the integrity of the Constitutional Court by testifying at a hearing because of the political pressure brought to bear on them?

This exposes the judges to questions about their own integrity. There may be other reasons for their many U-turns, but in the absence of a full and plausible explanation from the two justices, they run the risk of appearing to be either spineless and weak or unprincipled and perhaps dishonest.

The U-turns are particularly strange in the light of the damning (but contested) evidence given by the two Justices against Hlophe at the original JSC hearing.

When the two judges in 2008 proceeded to give evidence before the JSC under oath they made claims which, if true, would show that Hlophe had tried to influence them in an inappropriate manner. Jafta testified under oath that Hlophe had told him that Zuma was innocent, that he was wrongly prosecuted; and “sesithembele kinina” (we are relying on you, you are our last hope). Hlophe denied (again under oath) that he ever uttered these words.

Nkabinde similarly testified that Hlophe had told her there was no case against Zuma “that he has connections with the minister” whom he advises, that he has a mandate and that he “had a list of names from intelligence containing names of people involved in the arms deal who may lose their jobs. Once again Hlophe denied many of these allegations.

If these allegations are true and if the denials issued by Hlophe are not accepted by the Judicial Conduct Tribunal, then it would be difficult not to conclude that an impeachable offence was committed by Hlophe. It would amount to a shocking attempt to influence the highest court in the land in order to protect the President from criminal prosecution. It would constitute an attack on the constitution and as it would amount to an attempt to subvert the highest law of the land. The JSC (in a pre-Zuma guise) found as much.

After all, if a judge of one court – claiming to have political connections and a mandate to protect a politician – approaches judges of a higher court in an attempt to influence their judgment in order to try and protect the President of the country from criminal prosecution, it would strike at the heart of the integrity of the legal system. It is difficult to shy away from this stark conclusion.

I would think that for many lawyers who have experienced the systemic racism in the legal profession and in our wider society, it would be emotionally very difficult to accept this conclusion. This would be so, not because they do not believe in the importance of safeguarding the integrity of the Constitutional Court or of the judiciary, but because the carefully cultivated image of Hlophe as a champion for racial transformation, as the one black judge who had been brave enough to challenge racism in the legal profession head-on, is difficult to square with allegations of this magnitude. How can a champion of redress and justice also be a man of rank dishonesty who lacks even the basic integrity required for a sitting judge?

After all, after it emerged that Judge Hlophe had been paid money by an insurance company with a rather unsteady reputation before finally granting that company permission to sue a fellow judges (after the company increased the payments), he authored a report on racism in the Western Cape legal fraternity and the judiciary which he sent to the then Chief Justice. And is it not the oldest trick in the book to try and discredit those who speak out about racism and in favour of transformation by starting to question their credibility and integrity? Did Prof Malegapuru William Makgoba not face this very same tactic when he started challenging the racism of white liberals at Wits?

But regardless of these political dynamics which have (understandably, in my opinion) brought much sympathy and also fervent support for Judge President Hlophe, and regardless of the various technical legal arguments raised in the case, I believe some facts cannot be avoided.

Fact one: given the directly conflicting testimony given under oath at the previous JSC hearing, either Hlophe is a liar or Jafta and Nkabinde are liars. Fact two: a judge who lies under oath cannot and should not be allowed to serve on any court. Fact three: the allegations made by Jafta and Nkabinde, if true, constitute an impeachable offence.

Fact four: unless the appropriate body (whether the Judicial Conduct tribunal or the JSC) makes a finding on which version of events must be believed, the credibility of all three these judges would be fatally compromised. Fact five: unless there is a full hearing in which all parties can give evidence and can be cross-examined, we will never know whether pressure was brought to bear on Jafta and Nkabinde to testify against Hlophe and neither will we know if they were improperly influenced NOT to testify against Hlophe.

One or more people lied. But the person or persons who lied is not an ordinary grubby politician and the lie is not a little white lie about having one drink too many at an office Christmas party. It is in the interest of every litigant who appears before our courts – from the indigent person resisting an unlawful eviction for his or her shack, to the President of the country – that the integrity of judges should be beyond reproach. Once a belief starts taking hold that judges cannot be trusted to make decisions impartially – without being influenced by politicians who trade in power or private business parties who trade in bribes – the legal system ceases to serve the interests of the most vulnerable and marginalised and start serving only the interests of the well-connected and the rich.

It is for this reason that it, surely, cannot be in anyone’s interest not to go ahead with a full hearing in which a credible body would, once and for all, decide where the truth lies. Given the fact that some of the usual suspects (who also resist transformation of the judiciary) have lined up against Judge President Hlophe, it might be tempting for some of us to try and sweep this whole sorry saga under the carpet, to let sleeping dogs lie and to hope that whatever happened in this case was an aberration that would not permanently taint the integrity of the judiciary.

Over this past week I myself flirted with this idea. But the facts keep getting in the way. As the Supreme Court of Appeal (SCA) remarked when it set aside the decision of the JSC not to decide whether it was Hlophe or the two reluctant complainants who had been lying:

It is alleged that a very high ranking judge, the head of one of the biggest divisions of the high court, attempted to influence two of the judges of another court to decide a matter in a particular way. The allegation was considered to be so serious as to constitute gross misconduct which if established may justify the removal of the judge from office. It cannot be in the interests of the judiciary, the legal system, the country or the public to sweep the allegation under the carpet because it is being denied by the accused judge, or because an investigation will be expensive, or because the matter has continued for a long time.

I am fearful of the damage this Conduct Tribunal will do to the reputations if all concerned. What if Justices Nkabinde and Jafta had completely overreacted to the approach by Hlophe and if they had embellished their testimony before the JSC? In that event, Hlophe would have been wrongly persecuted and the two judges would have perjured themselves and would certainly have to face a Judicial Conduct Tribunal of their own for their rank dishonesty. What if they were originally pressured to testify? What if they were now improperly pressurednot to testify?

But what is the alternative? Should we ignore the elephant in the room and pretend that nothing went very badly wrong in this case? It seems to me, no matter how painful and potentially damaging to some of those involved in this case, the only responsible course of action is to have an exhaustive and credible process to find exactly where the truth lies. Anything else will leave a festering sore at the heart of our judiciary.

Khayelitsha policing: among the ‘shambles’ and turf wars, it’s the residents who suffer

Where one party – the ANC – is the party of government nationally and another party – the DA – is the party of provincial government, there is a danger that unnecessary, politically motivated, turf battles between these different spheres of government will arise – often to the detriment of ordinary people. This is exactly what happened when the Minister of Police, the National Police Commissioner and Provincial leaders of the South African Police Service (SAPS) in the Western Cape tried to scupper the appointment of a commission of inquiry by Western Cape Premier Helen Zille into allegations of “widespread inefficiencies, apathy, incompetence and systemic failures of policing routinely experienced by Khayelitsha residents” in Cape Town.

South Africa’s complicated quasi-federal system of government bestows a set of concurrent powers on both the national government and on each of the nine provincial governments. These are a general set of shared powers on housing, health care, education, welfare services and public transport exercised by both the national government and by each of the provincial government.

Policing is also a shared competence between national government and provincial governments. However, the constitutional provisions dealing with control over the SAPS differ from this general scheme. The power to control and manage the SAPS resides with the National Commissioner of Police (not with the Minister of Police).

The Minister of Police is politically responsible for policing, and to this end has the duty to determine national policing policy after consulting the provincial governments and taking into account the policing needs and priorities of the provinces as determined by the provincial executives. The relationship between the National Commissioner of Police and the Minister of Police therefore mirrors that of the National Director of Public Prosecutions and the Minister of Justice.

This is, however, not the end of the matter. The constitution strikes a delicate balance between the oversight powers of the Minister and that of the provincial government. The provincial commissioner is thus required to account to the provincial legislature on an annual basis on the state of policing in the province.

The provincial executive has further recourse in keeping the provincial commissioner accountable to it, as its concurrence is required when the Commissioner appoints a provincial commissioner. In turn, should the provincial executive lose confidence in her or him, it may seek “the removal or transfer of, or disciplinary action against,” the provincial commissioner.

Furthermore, section 206(3) of the Constitution also empowers each province to monitor police conduct; to oversee the effectiveness and efficiency of the police service, including receiving reports on the police service; to promote good relations between the police and the community; to assess the effectiveness of visible policing; and to liaise with the Cabinet member responsible for policing with respect to crime and policing in the province.

In order to perform these functions a province is empowered to appoint a commission of inquiry into any complaints of police inefficiency or a breakdown in relations between the police and any community.

These are unique constitutional arrangements regarding the management of the police specifically, which are not replicated elsewhere in the Constitution. It allows provincial governments to monitor and oversee the police function within their area, but not to exercise control over the day-to-day management of the SAPS in their province. This means the relationship between the national government and provincial governments regarding the police differs from the arrangement relating to other shared competences on housing, health care, education, welfare services and the like.

After Western Cape Premier Helen Zille appointed a commission of inquiry into the alleged failure of policing in Khayelitsha – as she is empowered to do by section 206(5) of the Constitution – and after the Commission issued a subpoena to the Provincial Commissioner to produce certain evidence, followed by subpoenas to three station commanders, the Minister of Police, the National Police Commissioner, the Provincial Police Commissioner and other members of Western Cape SAPS leadership tried to scuttle the commission by challenging its constitutionality as well as the constitutionality of its powers to subpoena members of the SAPS, in court.

In the Constitutional Court they argued (on far narrower grounds that initially in the High Court) that the commission had no legal power to subpoena members of the SAPS. They also argued that the Premier breached her co-operative governance obligations and thus usurped the power of the national government by failing to consult adequately with it before appointing the Commission.

Yesterday the Constitutional Court, in a unanimous judgment written by Deputy Chief Justice Dikgang Moseneke in the case of Minister of Police and Others v Premier of the Western Cape and Others dismissed these arguments and confirmed the constitutionality of the commission as well as its powers to subpoena members of the SAPS.

Khayelitsha is an area with one of the highest crime rates in South Africa. The SAPS in Khayelitsha has long been accused of mismanagement, incapacity and even corruption, and it is alleged that this has contributed to the shockingly high crime rate which has led to a loss of confidence by the community in the ability of the police to protect them from crime, and to investigate crimes once they have occurred.

It is not clear why attempts were made to stop the commission from doing its work. It may be a case of power politics trumping the best interest of citizens. It is not in the interest of the national government and the majority party whose members form the national government to be seen to hamper attempts at improving policing in Khayelitsha, a political stronghold of the governing party.

I can only speculate that the case arose, firstly, out of a fear that the DA government would attempt to use any adverse findings of the commission to embarrass the ANC government and, secondly, out of anxiety that this commission would embolden the DA government to become more robust in its exercise of oversight over the police and (the fear might have been) might have ultimately led to a loss of control by the ANC government over the police in the Western Cape.

Be that as it may, the Constitutional Court rejected the argument that the commission of inquiry could not require members of the SAPS to appear before it under subpoena. As the Constitutional Court explained:

a commission without coercive powers would indeed be unable to fulfil its mandate. It would be no different from an investigation…. When the target of the investigation is the police and how they fulfil their duties in relation to a particular community, they are obliged to account to a lawfully appointed commission…. If they were to be shielded from the coercive power of subpoena, the effectiveness of the Commission would falter.

Moreover, the Constitutional Court went further and affirmed that a Premier and the provincial government had the duty to respect, protect and promote the fundamental rights of people within the province. This means that the Western Cape Premier “is obliged to take reasonable steps to shield the residents of Khayelitsha from an unrelenting invasion of their fundamental rights because of continued police inefficiency in combating crime and the breakdown of relations between the police and the community”.

To ensure that the Western Cape government could fulfil this duty, the Constitution required it to hold the SAPS accountable and to ensure transparency in its operation. These oversight mechanisms included the power to appoint a commission of inquiry who could subpoena members of the SAPS. Without it the provincial government would be hamstrung in protecting the constitutional rights of people living within its province, as it would make it very difficult to hold the police accountable as it is empowered to do by the Constitution.

On the issue of co-operative governance, the Constitutional Court found that when the province appointed the Commission, it did not usurp the powers and functions of the Minister or the Commissioner.

Although there is no doubt that the Premier, acting for the province, had the obligation to consult the Minister and the Commissioner before the province appointed a commission into the policing function:

the undisputed facts show that, over nine months from the time she received the first complaint, the Premier exchanged extensive correspondence with the Provincial Commissioner, which was copied to the Commissioner and the Minister, over the impending appointment of the Commission. On the facts before us, she certainly complied with these obligations.

The co-operative governance provisions in section 43(3) requires an organ of state involved in an inter-governmental dispute to make every reasonable effort to settle the dispute using the mechanisms and procedures provided for. Also, the organ of state must exhaust all other remedies before it approaches a court to resolve a dispute. Another important provision is that the court has a discretion to refuse to hear a dispute if it is not satisfied that the parties have made every reasonable effort to settle the dispute.

However, the court found that in this case, no dispute was ever declared. The Minister and the Commissioner of Police had no dispute with the provincial government before members of the SAPS were subpoenaed to come and testify before the Commission. Even then, the Minister and the Commissioner did not declare a dispute as required by the Framework Act; instead they approached the High Court.

In other words, the judgment suggests rather diplomatically (without spelling it out) that it was the Minister and the National Commissioner that rushed to court without trying to resolve the dispute – not the other way around, as they alleged before the court. The court thus implicitly criticises the parties who rushed to court instead of trying to resolve the dispute and stated as follows:

The litigation is always at the expense of the public purse from which all derive their funding. That is true of the present dispute between the province, the Commissioner and the Minister. Often litigation of that order stands in the way or delays sorely needed services to the populace and other activities of government. Here too, effective policing in Khayelitsha and the functioning of the Commission may have to await the outcome of litigation. Courts must be astute to hold organs of state to account for the steps they have actually taken to honour their co-operative governance obligations well before resorting to litigation.

It was perhaps for this reason that the court ordered the Minister of Police and the National Commissioner of the SAPS to pay the costs of the Social Justice Coalition in the High Court and in this Court, on whose urging the Commission was established and who was a party to these proceedings.

The commission can now proceed. The leadership of the SAPS will have to testify before it. Once a report has been finalised, the Premier would have to decide how the province could use the findings to help the National and Provincial Commissioner to improve policing in Khayelitsha. It is at this stage that civil society – including the Social Justice Coalition – could play a pivotal role. Because no matter what findings the commission might arrive at, without sustained political pressure none of the parties will probably display the political will to improve policing in Khayelitsha to the benefit of its long-suffering residents.

Media freedom is a right that benefits all

Some members of the media and some opponents of media freedom sometimes wrongly suppose that media freedom is a right primarily enjoyed by (and for the benefit of) journalists. A recent Constitutional Court judgment, which rehearses arguments that are also germane to the fight about the constitutionality of the Secrecy Bill, reminds us that media freedom is primarily a right enjoyed by and for the benefit of ordinary citizens.

The Mail & Guardian must be spending quite a handy sum of money on lawyer’s fees. But this money is largely well spent. The newspaper has been involved in several groundbreaking court cases, which have clarified important aspects of media freedom (as well as an important case dealing with the obligations of the Public Protector to investigate maladministration and corruption).

In Mail & Guardian Media Ltd and Others v Chipu N.O. and Others, the seemingly mundane question of whether a provision of the Refugee Act, which imposes absolute confidentiality in the handling of applications for refugee status and the information contained therein, allowed the newspaper to raise important questions about how secrecy can work against the public interest.

In finding that this absolute secrecy imposed on the refugee granting process by the Refugee Act constituted an unjustifiable limitation of the right to freedom of expression, the Constitutional Court in a unanimous judgment authored by justice Raymond Zondo, reaffirmed the important purposes served by the right to freedom of expression.

The Court recalled that the infringement of the right to freedom of expression was used in the Apartheid era “to achieve the degree of thought control conducive to preserve Apartheid and to impose a value system fashioned by a minority on all South Africans”. It thus re-affirmed that this right must be zealously guarded because it was integral to “democracy, to human development and to human life itself”. One of the many differences between the Apartheid era and our current dispensation was exactly that freedom of expression is now constitutionally protected.

A key purpose of this right is to enable the public to form and express opinions on a wide range of matters. The purpose of the right therefore goes far beyond the protection of journalists to write what they like. Quoting from a previous judgment, the Court stated that freedom of expression“lies at the heart of democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters.

As is the case with many other rights in the Constitution – including the social and economic rights – 
the right to freedom of expression is of fundamental importance to safeguard the human dignity of everyone. Where the right is not vigorously protected, ordinary people will be robbed of the ability to make important life choices. Their ability to exercise many of their other rights guaranteed in the Constitution would also negatively affected.

For example, freedom of expression empowers members of communities to expose maladministration and corruption, and to demand better service delivery from those elected to serve the people. When the right to freedom of expression is not protected, it becomes very difficult to be an active and responsible citizen, as you cannot hold elected servants of the people accountable for fear of being muzzled, intimidated, censored or harassed.

Although the protection of this right is of fundamental importance to safeguard the dignity of ordinary citizens, the media plays a key role in society, and is therefore not only protected by the right to freedom of expression but is also a key facilitator and guarantor of the right.

As the Constitutional Court once again affirmed, members of “the media are important agents in ensuring that government is open, responsive and accountable to the people as the founding values of our Constitution require.” The media therefore have an “obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture. As primary agents of the dissemination of information and ideas, they are, inevitably, extremely powerful institutions in a democracy and they have a constitutional duty to act with vigour, courage, integrity and responsibility.”

This means that when the right is limited – as is clearly also the case with the Secrecy Bill – a court will ask hard questions about whether the limitation is overbroad. This is because the limitation is not only imposed on the media, but on citizens who depend on the media to become informed about what goes right and what goes wrong in the country.

Put differently, the court will ask whether there are not less restrictive means of achieving the stated purpose of a piece of legislation that limits the right to freedom of expression (and by extension, the media).

In this case, the provision that imposed absolute secrecy on the asylum process obviously served several important purposes. Secrecy protected the integrity of the asylum process; it encouraged applicants for asylum to disclose information truthfully; and it protected asylum applicants and their families and friends in their countries of origin from possible dangers or threats to their lives and safety that could arise if the fact of the application for asylum and the information contained therein were disclosed.

But the imposition of absolute secrecy was not justifiable as it was clearly overbroad and imposed secrecy where the purposes set out above would not be served or would be trumped by the public interest.

As the Court pointed out, no purpose was being served by an absolute imposition of secrecy on the asylum process in the case of a person who, after arriving in South Africa, discloses publicly, maybe in a press conference, the reasons why he fled his country of origin and other information that is relevant to the asylum application. In such a case no purpose would be served by the absolute secrecy imposed by the provision of the Refugee Act.

Similarly where the asylum applicant has committed a crime against humanity or a crime against peace in his or her country of origin, refugee status would not be granted. There was no logical reason why the Refugee Act should impose absolute secrecy on the application for refugee status or for asylum. In such a case, the public interest in knowing that a person who has committed a crime against humanity is applying for refugee status would trump the interest of the applicant to have the process kept secret. What was required in each case was to ask whether the imposition of absolute secrecy was essential to achieve the important purpose of protecting innocent asylum applicants.

This line of reasoning, which invokes the public interest as an important factor to justify the waiving of rules which otherwise would have imposed absolute secrecy, might well become relevant when the Constitutional Court considers the constitutionality of the Secrecy Bill. Previous drafts of the (now drastically improved) Secrecy Bill would almost certainly have failed this test, as it made no provision for overriding secrecy in the public interest. Now, section 41 provides a partial public interest defence, amongst other in cases where classified documents reveal criminal activity.

What the Constitutional Court will have to ask is whether this partial public interest defence sufficiently narrows down the scope of the Secrecy Bill to justify the limitation. I am sure the argument will be made that it does not as it does not cover other disclosures of classified information in the public interest that do not rise to the level of criminality but “merely” deals with abuse of power, maladministration or covering up nepotism and other forms of non-criminal abuse.

However, I suspect the aspect of Secrecy Bill most vulnerable to attack is the definition of national security, which is defined in an open-ended manner, allowing the classifier to decide for him or herself whether specific documents would affect the national security or not. This kind of open-ended discretion allowing classifiers a wide discretion on how to define “national security” will almost certainly be abused and will hence be very vulnerable to attack.

In the Mail & Guardian judgment the Constitutional Court referred the impugned provision back to Parliament to be fixed. However, in the interim it provided a closed list of criteria binding on the Refugee Appeal Board whenever it had to decide whether secrecy was warranted or not. This interim remedy suggests that the Court is alert to problems that might arise when officials are granted a broad discretion that could be exercised in a manner that infringes on the fundamental right top freedom of expression.

This bodes well for the success of any future constitutional challenge to certain sections of the Secrecy Bill.

Mogoeng v Hoffman: Better not to roll around in the mud with the pigs

The unseemly and racially charged row which has erupted after Paul Hoffman laid a complaint against chief justice Mogoeng Mogoeng at the Judicial Service Commission (JSC) for remarks the chief justice made about judicial transformation provides a textbook example of the manner in which race often colours our judgment and determines how we view a specific event. Whenever the matter of racial transformation is raised, most protagonists become blind and deaf to reason, choosing racial solidarity over rational debate and critical reflection.

In his (now infamous) address to Advocates for Transformation, chief justice Mogoeng Mogoeng delivered a spirited defence of the JSC, while also arguing for the need to change briefing patterns to help open up the legal profession to more women and black South Africans. He also pointed out – correctly in my view – that “standards” are often invoked by those who oppose transformation in a blatantly racist manner that associates high standards with white men and a lowering of standards with the opening up of the profession to women and black South Africans.

The chief justice did not say anything that many of us have not been saying and writing for ages.

Paul Hoffman of the Institute of Accountability (which I thought consisted of no more than one man and a fax machine, but whose website indicates that a gaggle of white men and women are associated with it), took umbrage at these remarks, arguing that the chief justice had brought the judiciary of South Africa and the high office which he holds into disrepute because he had descended into the arena of contestation and controversy in respect to issues which are pending in the High Court.

But upon closer inspection of the complaint against the chief justice, the real complaint is not that he forcefully (and undiplomatically) spoke about judicial transformation. After all, our judges often speak out about controversial legal issues. Just two weeks ago I lauded the late justice Pius Langa for a speech he made in Stellenbosch in favour of “transformative constitutionalism”, a highly controversial and contested concept. No one complained when Langa made this speech, perhaps because it dealt more broadly with transformation and did not directly threaten the interests of the white men who remain the largest financial beneficiaries of the legal profession.

In the past, other judges have been lauded for speaking up about the need to respect the rule of law, for example. As far as I know, no one lodged a complaint with the JSC against a judge for doing so. A senior judge even has his own TV programme in which he quizzes panellists about highly controversial political matters. Hoffman, as far as I’m aware, has not lodged a complained about any of these judges with the JSC.

One might argue that this instance is different because the issue of whether the JSC implements its section 174 mandate in a constitutionally valid manner might still come before the Constitutional Court. But this does not seem like a plausible argument, as the chief justice (as head of the JSC) would have had to recuse himself from hearing such a case in any event. He was therefore never going to hear a case dealing with the JSC, whether he said anything about its work in public or not.

This suggests that the disagreement is not about a profound matter of principle (should a judge ever comment on a controversial constitutional issues) but rather about the ideological substance of the views expressed by the chief justice. This disagreement is, of course, fuelled by self-interest and by the protection of the status quo. Judges can speak up, the attitude seems to be, as long as they say what we want them to say and do not say anything that threatens our financial and other interests.

According to Hoffman’s complaint, the remarks of the chief justice are premised on an untenable legal interpretation of section 174(2) of the Constitution, a section which requires the JSC to take into account the need for the judiciary to reflect broadly the racial and gender composition of South Africa. According to Hoffman, these remarks conflicted with the provisions of section 9 of the Constitution, which proscribes “unfair discrimination against ‘white’ male lawyers”.

This is, of course, uninformed nonsense. Whatever one may personally think of the merits of race-based redress measures (and I know the usual suspects will froth at the mouth and spew entirely uninformed nonsense about equality and discrimination after reading this column), no one with even a modicum of knowledge of the Constitutional Court jurisprudence of section 9 of the Constitution will be able to argue with a straight face that robust measures to transform the racial and gender composition of the judiciary in line with section 174 of the Constitution (read with section 9, especially section 9(2)) are constitutionally impermissible.

(Here is a dare: why doesn’t anyone tempted to comment on issues of race-based affirmative action first read and study the Constitutional Court judgment of Minister of Finance v Van Heerden? Once they have done so, I promise to engage in a reasoned and calm discussion with them on whether our Constitution endorses such forms of affirmative action.)

What the chief justice said about the transformation of the judiciary might upset some people. But it is not constitutionally controversial. Only the blind, the dishonest or those who are completely ignorant of the relevant judgments of the Constitutional Court (and of the wealth of academic literature on affirmative action written by both traditional liberal scholars like Ronald Dworkin, and by more progressive legal scholars) will claim otherwise.

The principles enunciated by the chief justice are therefore entirely uncontroversial (at least for the well informed). Of course, whether the JSC in fact always fulfils this constitutional mandate prudently and with the necessary wisdom to ensure the long-term legitimacy of the judiciary is another matter. Reasonable people can differ on this point.

Once we have all accepted that the Constitution not only allows, but requires, the JSC to pay regard to race and gender equity when it makes appointments to the bench, and that the legal profession has a special duty to advance transformation in the profession in order to safeguard the legitimacy of the judiciary (also by reviewing briefing patterns, as I have argued on numerous occasions), we could begin to have a productive debate about how the JSC should fulfil this mandate, and whether it is currently doing so in a astute and sensible manner.

By laying a complaint against the chief justice because he forcefully argued in favour of race and gender transformation of the judiciary, Hoffman muddied the waters and made it more difficult to have a real, reasoned, and level headed discussion about what the JSC is doing right, and what it is doing wrong.

This does not mean that I think the chief justice did himself any favours when he couched his valid concerns in such highly emotive language, indulged in sweeping generalisations and attacked unnamed individuals and groups. Nor was it helpful that he expressed what appear to be anti-democratic sentiments when he referred to those who disagree with him as indulging in an “illegitimate neo-political campaign” (whatever a neo-political campaign might be). In a democracy, people have a right to talk nonsense, so calling what they say illegitimate displays a rather worrying lack of respect for freedom of expression.

A wise judge always deals with specifics, not vague conspiracy theories. A wise judge – one of stature – does not insult unnamed NGO’s and commentators, but demolishes specific remarks and specific arguments made by commentators or NGOs with calmness, understatement and cold reason. He or she eschews emotional language and couches trenchant criticism in a diplomatic manner.

Such a judge understands that his or her stature as a judge grows when his or her remarks rise above the petty politics and narrow self-interest that people like Paul Hoffman wallow in. When you roll around in the mud with the pigs, you are going to get dirty. A wise judge knows this and avoids getting down with the pigs. He or she also knows that one’s stature as a judge is diminished if one appears to take criticism too personally and if one is too thin skinned.

Of course, it is not an impeachable offense for a judge to make a speech on a politically charged matter relating to the Constitution. The rule of law is a highly politically charged matter, as most Marxists will argue, but few of us would raise an eyebrow if a judge forcefully defends the rule of law in a speech before lawyers. Neither is it an impeachable offense to use emotive language when doing so. It might be unwise and counter-productive. But impeachable? Please, don’t make me laugh.

Luckily for the chief justice, the anti-transformation complaint lodged against him by Hoffman in defence of the (financial and other) interests of some white men detracted attention from the rather undiplomatic and otherwise stature-diminishing tone of the speech. Ironically, by attacking the chief justice and lodging a complaint, Hoffman enhanced the credibility of chief justice Mogoeng in the eyes of many of us. In fact, maybe justice Mogoeng should think of hiring Hoffman as his PR representative.

Such are the politics of race and redress in South Africa.

In a world in which racism is deeply entrenched and in which the power and privilege of whiteness perpetuates and defends itself aggressively, it is difficult for most of us to choose sides in favour of white privilege (read, Hoffman). That is why we choose the side of the chief justice, even as we acknowledge that he could have presented his argument in a manner that displayed more wisdom, high-mindedness and maturity.

Pius Langa: a man who knew the meaning of transformation

Former Chief Justice Pius Langa passed away earlier this week at the age of 74. This measured man, one who never seemed flustered and always seemed to have time to reflect before speaking, was both a good person and a brilliant jurist. His many meticulously crafted judgments leave behind a fitting memorial to his life and work. But it was his famous 2006 speech on the nature of “Transformative Constitutionalism” for which he might very well become best remembered.

When a famous person passes away in South Africa, it is customary to laud the deceased and to gloss over the more unsavoury aspects of his or her personality or his or her life and work. Even scoundrels like the late PW Botha and the late Hansie Cronje were lauded by many after their deaths; lauded for qualities it would be difficult (if not impossible) to believe they ever possessed. In an attempt to respect the deceased and his or her family, the harsh truth is discarded in favour of soothing fiction.

This problem does not arise in the case of the late Chief Justice, Pius Langa. He was a soft spoken, even quiet, man; one who had to leave school at the age of 14 to earn a living to help support his family, but who later completed his matric and then his various law degrees with the help of his brilliant mind, iron discipline, hard work and his tenacity.

After joining the Durban Bar, he gravitated towards political cases and became deeply involved in the struggle for democracy, helping to found the National Association of Democratic Lawyers (and becoming its President in 1988), and serving in the United Democratic Front. He was also involved as a legal advisor for the ANC during the CODESA negotiating process.

A fact that few people might be aware of is that Langa spoke just about every language and dialect spoken in South Africa (according to former Constitutional Court Justice Johan Kriegler). He was a true polyglot.

It was no surprise when then President Mandela appointed him as a judge to South Africa’s first Constitutional Court. It is difficult to single out for praise any one of his many judgments authored during his term as Constitutional Court Justice, Deputy Chief Justice and eventually Chief Justice. However, if I am forced to, I would have to say that his judgment in Bhe and Others v Khayelitsha Magistrate and Others, displayed some of his best qualities: his political astuteness and his deep concern for the marginalised and vulnerable members of society.

The case dealt, among other things, with the question of whether the customary law rule of intestate succession which only allowed male heirs to inherit was unconstitutional. His judgment reaffirmed the importance of customary law in our legal system, bemoaning the fact that the “positive aspects of customary law have long been neglected” in our law.

The inherent flexibility of the system is but one of its constructive facets. Customary law places much store in consensus-seeking and naturally provides for family and clan meetings which offer excellent opportunities for the prevention and resolution of disputes and disagreements. Nor are these aspects useful only in the area of disputes. They provide a setting which contributes to the unity of family structures and the fostering of co-operation, a sense of responsibility in and of belonging to its members, as well as the nurturing of healthy communitarian traditions such as ubuntu.These valuable aspects of customary law more than justify its protection by the Constitution.

Langa dealt sensitively and with great insight with the manner in which customary law has changed in the encounter with colonialism. He pointed out that originally the customary law rules did not operate in isolation. They were part of a system which fitted in with the community’s way of life and that the system had its own safeguards to ensure fairness in the context of entitlements, duties and responsibilities.

It was partly because of these changes in the context within which customary law rules were applied, that Langa found that the male-centric rule of customary law dealing with succession had to be declared unconstitutional. His judgment thus both affirmed the social, legal and political importance of customary law in democratic South Africa and insisted on its equal status, while simultaneously affirming that customary law rules were subject to the discipline of the Constitution.

Despite the many impressively constructed judgments written by Langa, his address on “Transformative Constitutionalism” – which he delivered at Stellenbosch University in 2006 (later published in the Stellenbosch law Review) – probably made the greatest impression on me personally.

In this address he affirms that ours is indeed a “transformative Constitution” before asking what this might mean and answering the question posed by saying:

This is a magnificent goal for a Constitution: to heal the wounds of the past and guide us to a better future. For me, this is the core idea of transformative constitutionalism: that we must change.

This insight is not particularly remarkable. What is remarkable is the manner in which former Chief Justice Langa engaged with the question of how we must change. If the Constitution serves as a bridge between the past and our future (a metaphor first used in the interim Constitution and popularised by the late Etienne Mureinik), “how,” asked Justice Langa, “does the society on the other side of the bridge differ from where we stand today?” His answer to this question suggests a quite radical understanding of the role of the Constitution and its ultimate aims.

The new society our Constitution is supposed to help bring into existence is one based on substantive equality. “Transformation”, in this sense, requires a social and an economic revolution:

a complete reconstruction of the state and society, including a redistribution of power and resources along egalitarian lines. The challenge of achieving equality within this transformation project involves the eradication of systemic forms of domination and material disadvantage based on race, gender, class and other grounds of inequality. It also entails the development of opportunities which allow people to realise their full human potential within positive social relationships.

In the legal field, “transformation” also refers to a radical overhaul of the formalistic legal culture, away from (in the words of Etienne Mureinik) “a culture of authority’’ to:

a culture of justification – a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force of its command. The new order must be a community built on persuasion, not coercion.

What Langa understood better than many liberal lawyers is that this approach to adjudication requires an acceptance of the politics of law.

There is no longer place for assertions that the law can be kept isolated from politics. While they are not the same, they are inherently and necessarily linked. At the same time, transformative adjudication requires judges to acknowledge the effect of what has been referred to elsewhere as the ‘personal, intellectual, moral or intellectual preconceptions’ on their decision-making. We all enter any decision with our own baggage, both on technical legal issues and on broader social issues. While the policy under apartheid legal culture was to deny these influences on decision-making, our constitutional legal culture requires that we expressly accept and embrace the role that our own beliefs, opinions and ideas play in our decisions.

Lastly, in his address Langa also seemed to reject the potentially conservative and even oppressive view that “transformation” is a distinct event, requiring a once-off change from one situation towards another or the transfer of power from some individuals to others. Providing a ringing endorsement of pluralistic, democratic politics, Langa remarked:

Transformation is a permanent ideal, a way of looking at the world that creates a space in which dialogue and contestation are truly possible, in which new ways of being are constantly explored and created, accepted and rejected and in which change is unpredictable but the idea of change is constant. This is perhaps the ultimate vision of a transformative, rather than a transitional Constitution. This is a perspective that sees the Constitution as not transformative because of its peculiar historical position or its particular socio-economic goals but because it envisions a society that will always be open to change and contestation, a society that will always be defined by transformation.

These selected quotations from the former Chief Justices’ 2006 Stellenbosch address provide us only with a flavour of the nuanced and important ideas contained in it. Personally it reminds me of the utmost integrity and eminence of the man whose judgments and speeches we will continue to study in years to come.

PS: For those who are interested in exploring Chief Justice Langa’s judgments in more depth, there will be a conference honouring his life and work at UCT on 16 and 17 January next year.  The original call for papers (18 June 2013) can be found here.” [http://constitutionallyspeaking.co.za/call-for-papers-conference-in-honour-of-pius-langa-at-uct/]