Constitutional Hill

Constitutional Court

Who will protect our Parliament against the President and his securocrats?

A press conference held on Tuesday revealed that ANC Chairperson and part time Speaker of the National Assembly (NA), Baleka Mbete, as well as former North West Premier and part time National Council of Provinces (NCOP) Chairperson, Thandi Modise, do not have a good grasp of either the architecture of the Constitution of the Republic of South Africa nor of the rules of Parliament which they are required to enforce impartially (but which they have chosen not to).

It is a little known fact among non-lawyers that the terms “separation of powers” and “checks and balances” are not to be found in the South African Constitution. However, the Constitutional Court, in a long line of cases, has held that the separation of powers doctrine (and the concomitant system of checks and balances) forms an integral part of the South African constitutional design.

The Constitution creates three branches of government (some argue it may create a fourth branch consisting of the Chapter 9 institutions) and allocates specific powers to each branch. This allows each branch to check the exercise of power by the other branches in order to ensure that no branch gains too much power. In theory this protects citizens from the abuse of power that inevitably results from the concentration of too much power in one institution or branch of government.

In modern democracies like South Africa (in which governance decisions have increasingly become complex and often technical in nature), the executive is by far the most dangerous branch of government. If the other branches do not vigilantly check the exercise of executive power and hold it accountable, the executive will threaten the health of the democracy as well as the rights and well-being of every person who lives in South Africa. (The Marikana massacre is the most bloody and extreme recent example of this phenomenon.)

The executive has direct operational control over the military and the other potentially repressive state institutions such as the police force and the secretive state security services with its network of spies and its ability to eavesdrop on the conversations of any citizen.

It also controls an army of civil servants who (in terms of chapter 10 of the Constitution) must execute the lawful policies of the government of the day but must remain politically impartial. However, many civil servants find this impossible to do because of an increasing conflation of the governing party and the state and because of the pressure to show loyalty to (and entertain the whims of) the head of the executive.

The problem of abuse of power by the executive is heightened in the South African system in which citizens do not directly elect the executive. Unlike the members of the NA (the only national institution democratically elected in direct elections by voters), the executive is formed at the whim of the President who, in turn, is indirectly elected (some will say, appointed) by the members of the NA.

In reality, at present the President is elected by the just over 4000 delegates who attend the ANC national elective conference every five years. However, to what extent these delegates represent the choices of the rank and file members of the party is unclear, because branches can be bought or otherwise manipulated to support one or the other candidate at the elective conference.

In order to safeguard our democracy against the dangerous and overweening power of the President and other members of his or her executive, the Constitution subjects the executive to the control of the legislature – in particular the democratically elected NA – as well as to the Constitution, enforced by an independent judiciary.

The President is not only elected by the NA, but can also be fired by it. The NA can also fire the cabinet. The NA can fire the President and/or the cabinet at any time for any reason it sees fit.

Section 42(5) of the Constitution empowers the President to summons Parliament to an extraordinary sitting at any time to conduct special business. When summoned, Parliament cannot refuse to gather, but in theory it retains the power vis-à-vis the President and his or her executive because it has the final say on any binding decision it is required to take.

Moreover, the President (or any other member of the executive or of the security apparatus) is not authorised to prescribe to Parliament how it should operate when it is called to such a special sitting or what decisions it should take.

This is made clear by section 45 of the Constitution, which states that the NA and the NCOP “must establish a joint rules committee to make rules and orders concerning the joint business of the Assembly and Council”. The President or members of the executive (include the police, military or state security) cannot rewrite these rules or circumvent them.

Section 57 and 70 of the Constitution also confirm that when the NA or the NCOP sit separately they are empowered to determine and control their internal arrangements, proceedings and procedures.

Section 56 and 69 further provide the NA and the NCOP with far reaching powers over the executive, stating that the NA or NCOP or any of their committees may:

  • summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
  • require any person or institution to report to it;
  • compel, in terms of national legislation or the rules and orders, any person or institution to comply with such a summons; and
  • receive petitions, representations or submissions from any interested persons or institutions.

This means the NA or NCOP can at any time summons the President (or any other person) to appear before it. If the President (or any other person) refuses to do so, the NA or NCOP can force them to appear by summoning him or her to do so. If the President (or any other person) refuses to appear when summonsed he or she would be in contempt of Parliament. In terms of the rules of Parliament the Speaker or Chairperson of the NCOP needs to grant permission before a person is summoned.

(Of course, given the fact that the ANC Chairperson and the President meet every Monday at Luthuli House and given that her loyalty to the party and its leader will – in the absence of strong principles – trump loyalty to the rules of Parliament, it is not likely that the Speaker will ever grant such permission to summon the President to the NA.)

As we all know (because the rule was flouted last year) NA rule 111 also requires the President to answer questions in the NA at least four times every year. The question sessions are supposed to be scheduled in terms of the Parliamentary programme. If the Speaker fails to schedule such sessions (as she indeed failed to do last year) she is flouting the rules of the institution that she purportedly heads.

Because much of the de facto power resides with the President and his or her executive (as they control the potentially all-powerful and repressive state institutions as well as the public administration), Parliament can only perform its functions and hold its own against the potentially repressive actions of the executive, if the Speaker and Chairperson of the NCOP vigilantly protect Parliament from interference by the executive and protect the sanctity of the institution.

When Speaker protects Parliament in this manner, she is protecting democracy itself. She is protecting the democratic space and the right of voters to be represented in a robust and vigilant manner by the MPs representing the political parties for whom voters cast their ballots. If she fails to protect the sanctity of Parliament against the overbearing power of the executive, she is unlawfully surrendering our democratic space to the whims of unelected bureaucrats, shadowy securocrats or politicians who serve at the pleasure of the President, not at the pleasure of the voters.

It is to that end that the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act of 2004 specifically states in section 3 that:

The Speaker and the Chairperson [of the NCOP], subject to this Act, the standing rules and resolutions of the Houses, exercise joint control and authority over the precincts on behalf of Parliament.

The Speaker and the Chairperson cannot legally abdicate this control over Parliament to anyone. It cannot delegate their powers to the Minister of State Security, any of its spies, the South African Police Service or to any other government department. This fact is further underscored by section 4(1) of the Act, which states that:

Members of the security services may (a) enter upon, or remain in, the precincts for the purpose of performing any policing function; or (b) perform any policing function in the precincts, only with the permission and under the authority of the Speaker or the Chairperson.

When Baleka Mbete therefore suggested to journalists on Tuesday that she was not in control of the security arrangements at Parliament during SONA, she was admitting that she (along with the Chairperson of the NCOP) had failed to comply with section 3 and 4(1) of the Act.

Mbete said at the press conference that during a briefing on security plans for the state-of-the-nation address, “we became aware that there was a plan for certain equipment to be deployed”. But she admitted that:

It is an item we received as a report along with many other reports, without necessarily knowing the detail, in particular [the] effects, because it was an item dealing with what measures had to be taken for the protection, in particular, of the head of state and the deputy president.

This means that if the Speaker was being truthful she was admitting that she was unaware of the detail of the actions of the potentially repressive state institutions in the Parliament when she was legally bound to give permission for their actions and retain control over these actions. She had abdicated her legal responsibility, and had thus forsaken her Constitutional duty to protect the legislature against encroachment by the executive branch of government.

Her political loyalty to the head of the executive branch of government thus trumped her loyalty to the Constitution and her duty to uphold the law. It made her position (and that of the Chairperson of the NCOP) untenable.

Both have a duty to resign forthwith. That they won’t do so and won’t be forced to do so by the majority party, tells its own story.

Xenophobic attacks: apartheid-thinking alive in South Africa

The attacks on foreign owned businesses in Johannesburg last week and the refusal of many South Africans to acknowledge the xenophobic impulse behind these attacks – as well as the odious justifications for such attacks – are, sadly, not that surprising. After all, the stench of apartheid-thinking (and the false sense of South African exceptionalism that it reflects) lingers on twenty years after the formal end of apartheid.

A few years ago I was sitting at OR Tambo airport, waiting to board a flight when a young man in a well-cut grey suit, impeccably pressed white shirt and colourful tie, came over to greet me. He had been one of my students at the University of Western Cape, he told me, and was now a Deputy Director General in one or other government department.

I was bursting with pride. I always feel terrific when I hear of the successes of a former student.

“Where are you off to,” he asked as we sipped our drinks.

“Addis Ababa,” I said.

“Oh, you are going to Africa,” he replied, raising his left eyebrow and flashing a sceptical grin. “Good luck with that, chief.”

Here we were in Johannesburg – a “World Class African City”, as the slogan would have it – and my interlocutor (who would be classified as “African” in terms of Employment Equity legislation) was suggesting that I was venturing into a scary and dangerous place called “Africa”, a place very different from Johannesburg where South Africans stayed and belonged.

The comments made me feel deflated. I had clearly failed this former student, who should never have graduated without a more accurate and confident sense of South Africa’s place on our continent.

Of course, the attitude that South Africa is not fully part of the African continent and (in its way) is different from other African countries, permeates the thinking of many South Africans.

Driving home from work and listening to the business programme, I often hear this or that CEO of a large company tell us listeners that his company (it is always a man) has an “Africa strategy” and that it is planning to “expand into Africa”. (Imagine a CEO from the USA talking about plans to expand into America.)

This feeling of apartness from the rest of our continent and from its people (exhibited by some, but obviously not all, South Africans) must surely be partly blamed on the political isolation of South Africa during the apartheid years. Those who lived in exile or often met up with family or friends in exile must have had a different experience. But those of us who remained on the southern tip of Africa with our “colonialism of a special type” were taught very little about the rest of our continent and about its people.

When freedom arrived in South Africa many of us knew more about Jan van Riebeeck, Die Groot Trek, the unification of Germany and the French revolution than we did about the struggle against colonialism in Africa. How many knew much about the lives of Kwame Nkrumah, Patrice Lumumba or Thomas Sankara?

Some South Africans have probably also internalised some of the racist thinking on which the apartheid regime was built. It would be strange if many of our minds had not been partly colonised by ideas of supposed “Western” superiority. No wonder some of our compatriots still fear, hate or despise foreigners from the rest of our continent, while showing no such fear, hatred or scorn for foreigners from Europe or the USA.

Apartheid may be formally a thing of the past, but some of the dangerously destructive and hateful ideas on which that ideology of supremacy was built linger on in the minds of some South Africans. It may therefore not be that surprising that some South Africans have been willing over the past week to excuse or justify the Johannesburg attacks on businesses owned by fellow Africans.

The drafters of our Constitution – many of them having experienced the hospitality of Africans across our continent in years of exile – evidently never shared this fear, hatred and prejudice towards foreigners from the rest of the African continent. On the contrary, perhaps mindful of our past and the role played by fellow Africans in assisting our liberation movements, the Constitution protects foreigners who enter South Africa – regardless of where they come from or how they landed here.

This is so because most of the rights in the Bill of Rights (with the exception of rights like the right to vote and the right to citizenship) are guaranteed for “everyone”.

“Everyone” includes immigrants, permanent residents or those who live in South Africa on temporary work or study permits. In Lawyers for Human Rights v Minister of Home Affairs the Constitutional Court found that foreigners who have not entered South Africa legally are also protected by all the rights in the Bill of Rights which apply to “everyone”. This is so because at the heart of the Bill of Rights is the idea that each individual possesses an inherent human dignity, is of equal moral worth and, hence, cannot be treated differently just because we dislike or fear him or her or have made assumptions or generalisations about a person because of where he or she was born.

In the words of Judge Nugent in the Supreme Court of Appeal (SCA) judgment of Minister of Home Affairs v Watchenuka:

[Human] dignity has no nationality. It is inherent in all people, citizens and non-citizens alike, simply because they are human beings. And while that person happens to be in this country, for whatever reason, [their human dignity] must be respected, and is protected, by section 10 of the Bill of Rights.

That foreign nationals are protected by our Constitution is not surprising. They are often some of the most vulnerable people in our society, some having fled war zones, economic hardship or political persecution.

The argument that foreigners should be treated differently and deserve to be discriminated against, vilified and persecuted because they do not play their part to build the country, is also factually incorrect. As the Constitutional Court pointed out in Khosa and Others v Minister of Social Development and Others foreign nationals contribute to the welfare system through the payment of taxes (at the very least by paying VAT on all goods they buy). Many also contribute to the economy in other ways, enrich our culture and provide needed skills.

Besides, even when some foreign nationals are poor and contribute little in the form of taxes, the value of Ubuntu enjoins us to treat people equally, regardless of their country of origin. In the words of Justice Yvonne Mokgoro in the Khosa judgment:

Sharing responsibility for the problems and consequences of poverty equally as a community represents the extent to which wealthier members of the community view the minimal well-being of the poor as connected with their personal well-being and the well-being of the community as a whole. In other words, decisions about the allocation of public benefits represent the extent to which poor people are treated as equal members of society…  A society must seek to ensure that the basic necessities of life are accessible to all if it is to be a society in which human dignity, freedom and equality are foundational.

The Constitutional Court judgment in Koyabe v Minister of Home Affairs illustrates the general attitude towards foreign nationals demanded from us by the Constitution. Ruling that foreign nationals are entitled to reasons for a decision declaring them illegal foreigners in terms of the Immigration Amendment Act, the Court made the following observation:

In our constitutional democracy, officials are enjoined to ensure that the public administration is governed by the values enshrined in our Constitution. Providing people whose rights have been adversely affected by administrative decisions with reasons, will often be important in providing fairness, accountability and transparency. In the context of a contemporary democratic public service like ours, where the principles of batho pele, coupled with the values of ubuntu, enjoin the public service to treat people with respect and dignity and avoid undue confrontation, the Constitution indeed entitles the applicants to reasons for the decision declaring them illegal foreigners.

It is, of course, easy to blame foreigners for all the ills that beset South Africa. It’s easy to pick on a vulnerable minority and to pretend that all will be well if only we could rid ourselves of the group targeted for attack or extermination. It is easy to conjure up hate-filled stereotypes of fellow Africans to justify their persecution.

But it is intellectually lazy and dangerous. Instead of confronting problems head on, such victim-blaming allows us to stick our heads in the sand. It also endangers the lives of fellow Africans and destroys communities.

But just as important, it demeans us all when we condone the persecution of our fellow human beings. In the words of Justice Albie Sachs in Port Elizabeth Municipality v Various Occupiers “[o]ur society as a whole is demeaned” when action “intensifies rather than mitigates” the marginalisation of vulnerable people in our society.

In short, it reminds us that apartheid-thinking continues to live – like a dangerous virus – in the brains of quite a few South Africans.

The freedom to be fabulous

South Africans do not all agree on the meaning of freedom. Whenever there is talk of the need to achieve economic freedom or the need to protect the freedom to be different, it becomes evident that we do not all mean the same thing when we talk about “freedom”. Maybe it is time to reflect more deeply on what we mean when we talk about freedom – before “freedom” becomes a meaningless cliché only trotted out by politicians when they want to stop us from thinking critically.

Last week President Jacob Zuma was on top form when he responded to the debate on the presidency’s budget in the National Assembly. In his speech a jovial Zuma lectured DA Parliamentary leader Mmusi Maimane, telling Maimane that he and his family were very fortunate to be living in a free South Africa, noting that this freedom was attained through the blood, sweat and tears of many selfless freedom fighters, in a liberation struggle that was led by the ANC.

We are indeed fortunate to live in a country where basic political freedoms as well as basic economic freedoms are protected in the justiciable Constitution. We are fortunate that the ANC, as the most prominent liberation movement in South Africa, ensured this expansive protection of freedom in the Constitution.

However, the gap between the promise of the Constitution and the lived reality of ordinary citizens can sometime look insurmountable. As I was once told when I spoke at a workshop in an extremely impoverished community: “We cannot eat your Constitution and your rights.”

The indisputable fact is that despite a dramatic improvement in the well being of most South Africans since the ANC came to power after the fall of apartheid, all of us are not equally free. As the Constitutional Court remarked several years ago:

We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services…. For as long as these conditions continue to exist that aspiration will have a hollow ring.

Too often politicians talk too glibly about freedom, as if it relates only to the right freely to choose those who represent us in Parliament. While this kind of freedom is of vital importance for the restoration of the full dignity of all South Africans and to protect us from the kind of tyranny that prevailed during the colonial and apartheid eras, it ignores the lack of economic freedom faced by many South Africans.

The problem of how to achieve a semblance of economic freedom as promised by the Constitution is a vast and complex topic, better left for another day.

Instead I wish to reflect on another form of freedom that too many South Africans (especially from an older generation) lose sight of or undervalue. That is the freedom to choose how you want to live your life; the freedom to be different; the freedom not to conform to how others expect you to live your life.

A trio of young men from Johannesburg (Ashwin, Lee-Ché and Rogue) who call themselves the Vintage Boys personifies this kind of freedom. (See video above.)

They revel in being different. Shopping in what looks like bargain clothing stores they create their own style by “editing” the garments. That is, they take to the garments with a pair of scissors and needle and thread and create something new. The creations that emerge are always fabulous and unique. Sometimes they challenge the traditional gender categories. Judging from the YouTube video, the outfits are never boring.

In the video clip one of the young men bemoans the fact that South Africa remains essentially a very conservative country. “Many people still carry the Apartheid with them and because they were not free, they don’t want us to be free.”

The young men rebel against traditions, also deeply entrenched traditions about how gender should be performed.

For me, Ashwin, Lee-Ché and Rogue are poster boys for a certain kind of freedom protected and promoted by the Constitution. By breaking the rules of how men are “supposed” to dress, they assert their agency as human beings and celebrate the freedom that our Constitution guarantees.

Of course, many South Africans do not have the freedom to make the kind of choices that Ashwin, Lee-Ché and Rogue can make because of economic deprivation. But that does not mean that these young men are not every bit as revolutionary as any fighter marching in their red berets to demand economic freedom.

It is by breaking the many of the societal rules (without harming anyone in the process), rules that were also enthusiastically promoted and enforced by the apartheid government, that they create their own meaning of what it means to be free. They challenge traditional stereotypes about our country and our continent through their creativity, energy and verve.

They might not be aware of this, but what these three young men are doing were foreshadowed by Justice Albie Sachs in 1998, when he wrote the following in a concurring judgment in the Constitutional Court case of National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others:

The acknowledgment and acceptance of difference is particularly important in our country where group membership has been the basis of express advantage and disadvantage. The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognising and accepting people as they are…. What the Constitution requires is that the law and public institutions acknowledge the variability of human beings and affirm the equal respect and concern that should be shown to all as they are. At the very least, what is statistically normal ceases to be the basis for establishing what is legally normative. More broadly speaking, the scope of what is constitutionally normal is expanded to include the widest range of perspectives and to acknowledge, accommodate and accept the largest spread of difference. What becomes normal in an open society, then, is not an imposed and standardised form of behaviour that refuses to acknowledge difference, but the acceptance of the principle of difference itself, which accepts the variability of human behaviour.

For some South Africans this radical form of freedom is not easy to cope with. Radical departures from the status quo are seldom embraced by a society – especially an essentially conservative society in which great fear accompanies any form of change.

In the video the three men are shown walking down the streets of Johannesburg in their fabulous outfits while men and women on the street look on.

At one point in the video one of the onlookers being interviewed (a soberly clad older gentleman) expresses disapproval of the way the three young men are dressed because that is not the “proper” way in which an African man should dress. Ironically, he indicates that the “proper” way an African man should dress is like a boring middle class heterosexual man from Europe. But the irony is lost on the interviewee.

(I would contend that it is the same kind of attitude that led to the ban on the wearing of overalls by Economic Freedom Fighter (EFF) legislators in the Gauteng legislature.)

Ashwin, Lee-Ché and Rogue shriek with delight when they hear the man say that it is the first time that he sees someone dressed like this. “Thank you! Thank you!” they exclaim while applauding. By expressing his disapproval, the man confirms to Ashwin, Lee-Ché and Rogue that they are indeed unique and fabulous.

Of course many South Africans will not follow their example. And that, too, is their right. After all the Constitution also protects the right of people not to be rebels.

If you want to follow traditional norms and conform to rules imposed by traditional culture or imported into South Africa through the process of colonialism, this too is your right – as long as your norms and traditions do not discriminate against or marginalise others.

It is a great pity that so many South Africans begrudge others the freedom to live their lives as they please; the very freedom they themselves enjoy because they happen to conform to some or other constructed norm or tradition.

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.)


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.