A company called Bosasa is suing Basson and the Mail & Guardian for publishing a story headed: “Very brave for a young man”. The article relates the facts around a chilling phone call received by Basson from communication strategist Benedicta Dube. Basson was perturbed by the phone call because it transpired that Dube knew where and what Basson had studied, where he was born, and what his ID number was. She also read to him the names of some of Basson’s friends and their professions. During their conversation of almost 18 minutes Dube also threw in lines such as: “You are very brave for a young man” and said she would “kill” Basson if he told anyone about their conversation. She has not sued Basson for reporting this phone call, so one must assume that his version of the phone call is true, which is kind of scary.

Bosasa did sue, because in the article Basson claims that he had exposed in the Mail & Guardian over a period of three weeks “the corrupt relationship between facilities management company Bosasa and the Department of Correctional Services”. Bosasa did not like being called corrupt (or perhaps it is the claim that the corruption originated from a relationship with the Department of Correctional Services that got them upset) and as part of its pre-trial manoeuvres, it demanded some documents from Basson and the Mail & Guardian. They provided the relevant documents but with the names of their sources redacted.

In a preliminary legal skirmish the parties asked the South Gauteng High Court to determine whether Basson and the Mail & Guardian had a legal right to protect their sources in this way – despite having a defamation case brought against it. In a judgment written by Tsoka J, which seems to deal with the potentially dry legal question of the correct interpretation of Rule 35 of the Uniform Rules of Court, the learned judge made an important ruling in defence of the freedom of the media.

Sub rule 2 of Rule 35 states that a party is not expected to produce documents or tape recordings “in respect of which he has a valid objection”. Tsoka pointed out that all the relevant documents were indeed disclosed. The only question was whether Basson and the Mail & Guardian had a valid objection against revealing the names of their sources. The Rule, said the judge, had to be interpreted in the light of section 16 of the Constitution which guarantees freedom of expression, which includes freedom of the media. Bosasa claimed that if it were denied access to the names of the confidential sources its right to a fair trial would be infringed.

As an aside: the latter claim by Bosasa is a peculiar, one might think perhaps a Freudian, slip on the part of Bosasa as it is not facing criminal charges and its right to a fair trial is thus not implicated at all. This is a civil case in which it is claiming damages from Basson and the Mail & Guardian for alleged defamation for damage to its reputation. (Basson and the newspaper claims, rather cheekily, that Bosasa has no reputation that could have been damaged by the article as the company is widely associated with corrupt activities.)

Tsoka J, quoting extensively from the important Constitutional Court case in Khumalo v Holomisa, emphasised the important role played by the print, broadcast and electronic media in the protection of freedom of expression in our society. The media are key agents in ensuring that the right to freedom of expression is enjoyed by all citizens. The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate. The media are also important agents in ensuring that government is open, responsive and accountable to the people as the founding values of our Constitution require.

In order for the media to do its job, it is imperative that journalists are able to keep their sources confidential. In the absence of a guarantee of confidentiality, many sources would not co-operate with the media and ordinary citizens would be the poorer for it.

Tsoka then looked at the facts of the present case, noting that the contention between the parties is not whether the Mail and Guardian had acted with malice. It was therefore not relevant to its case who the confidential sources of the allegations of corruption were. The story was either true or it was untrue. The judge also rejected arguments that an Australian case which found that a journalist had to reveal his sources had to be applied here, presenting several arguments to justify this rejection. To my mind the best argument raised by the judge why the Australian judgment would not help Bosasa is neatly captured in the following statement by Tsoka J: “In any event, there is no Bill of Rights in Australia.” How it warmed my heart to read those words.

In any case, Tsoka found that the issue in each case would be whether the names of the sources would be pivotal to the case made by the party suing for defamation. Given the fact that Bosasa has to prove that the statements are defamatory and that Basson and the Mail & Guardian then has the onus to show that its defences against a claim of defamation is valid, the names of the newspaper’s sources at this stage is wholly irrelevant. The sources are allegedly employed by Bosasa and are fearful of reprisal, should their identities be revealed. As Bosasa has a duty to deal with the question of whether the allegations made are true or false, it is neither here nor there who the sources are who gave the information to the newspaper.

Although there is not a blanket journalistic privilege never to reveal one’s sources when one is sued for defamation to the contrary, in this case the sources should be protected as their identities are not central to the case and as they exercised a “laudable civic duty” by acting as whistle-blowers in a case of alleged corruption involving the state. The case may be different where a journalist receives information about the commission or pending commission of a serious crime, a journalist would be foolhardy to claim that it had to protect its sources providing such information. But this is not such a case.

Reading the judgment I could not help but wonder about the possible Oscar Wilde effect in a case like this where an institution like Bosasa sues a newspaper for defamation. Had Bosasa considered the risk it is taking? What happens if, during the trial, it becomes clear that the company was indeed embroiled in a corrupt relationship with the Department of Correctional Services? Has the Directors considered the risk of being arrested for corruption if this were to happen?

And why is Bosasa so adamant about getting accesses to the names of those who had leaked information to the Mail & Guardian? Is there any connection between this eagerness of the company to obtain this information and the implicit threat made to Adriaan Basson that he might get killed for investigating Bosasa? As things stand, this case has already been damaging to Bosasa as it has placed some doubt in the minds of reasonable individuals about its behaviour. It might not be corrupt (and this will only be ascertained during the trial), but has it not shot itself in the foot by its heavy handed legal approach to the case?

Is Bosasa and its directors the ones being brave for taking on the Mail & Guardian? After all, cross examination can often be devastating to those who try to hide things. Only time will tell.

Today, 18 years later, many South Africans are not free — at least not in the sense that they have access to the necessary financial and human resources to make the kind of life choices that could help them to live meaningful and dignified lives.  But it is important to remember how bad things were for most citizens during the apartheid era, not to excuse or justify the excesses and arrogance of some in government today, but to remind ourselves that the glass is at least (still) half full.

I am always amused when I read some of the most outrageous and angry posts on Blogs which accuse our government of almost everything from genocide to Nazism (the latter insult is usually hurled at anyone supporting redress measures based on race, sex or disability).  If these posters had written the same kind of thing during the apartheid era they would soon have received a visit from the Security Branch. They may even have been arrested or, worse, would have disappeared, never to be heard of again (or their charred bodies found in shallow graves years later).

During the various states of emergency one would never have known what was happening in the country if one only read the newspapers or — god forbid — watched the propaganda on the SABC news programmes. These were all heavily censored and the SABC actively spread false propaganda as part of its total strategy against what the Nats called the “Total Onslaught”. (How quaint and far removed from reality this kind of fascist language sounds today.)

It was only through whispered conversations and by experiencing the disconnect between what was happening around one and what the papers said was happening, that one could get a sense at all of how vicious and brutal the apartheid state was acting in order to try and repress an ever spreading revolt against the state.

Today it would be unthinkable that our government would announce a State of Emergency, that it would send in the army to suburbs around the country to terrorise the majority of citizens and that it would close down newspapers critical of the government. Goodness knows, for those of us who somehow thought South Africa is a special nation (why I can’t for the life of me remember), our government has been a huge disappointment. We expected so much, only to be confronted by a government run by ordinary politicians. After a few years in power, our government started behaving like people in power in many other parts of the world, instead of like the paragons of virtue and the champions of the poor and the marginalised like they promised us they would.

We are just another developing country struggling with the demons of colonialism — albeit one with lots of potential.

But perhaps, as we celebrate Freedom Day, it is important to remember that living in a fairly normal country where politicians lie and cheat and steal, where most citizens try to make a better life for themselves despite the venality of some of their neighbours and many of the politicians, is not that bad — especially for those of us with jobs and access to food and health care. Although many of us — rather naively, perhaps — hoped for better, the working poor and middle classes — including all the white people moaning and complaining about the country “going to the dogs” — are far better off than we were in 1994 (both economically and in terms of our freedom to live our lives as we please). It is the unemployed who have real gripes with our government, but for the moment there has been no sustained and organised revolt against the revolting greed of the politicians and the business class.

But our Constitution is one of the most magnificent legal documents ever created. The judgments of our Constitutional Court are read and studied across the world and have made a real impact on the lives of many (if not enough) citizens. Civil society seems to be emerging from its post-1994 slumber and is stirring, challenging absurd moves by the governing party like the proposed Secrecy Bill and Traditional Courts Bill.

Despite our giggling President who never did answer the corruption charges against him, despite the racisms and sexism and homophobia that still haunt our land, despite the cesspit of corruption seemingly engulfing our Police Service, many South Africans are getting along with life as best they can. More and more of us are realising that our government is not that special, and that we cannot rely on our government alone to improve our lives, that we have to do it for ourselves.

Siyazenzela!

Happy Freedom Day.

Minister Nathi Mthethwa, who mislead the public last week about the use of a secret police fund to pay for a “security fence” around his home and has not yet apologised for misleading us, and President Jacob Zuma, who has been linked to Mdluli but has not made any statements about his reinstatement and the order by his Police Minister to stop an investigation into Mdluli’s alleged corrupt activities, owe citizens an explanation. In the absence of such an explanation all reasonable people will be hard pressed not to conclude that the Minister and the President – if not themselves implicated in this web of alleged corruption – is condoning it for purely short term political purposes.

]]> http://constitutionallyspeaking.co.za/corruption-and-political-expediency-an-illustrated-guide/feed/ 71 http://constitutionallyspeaking.co.za/how-to-make-an-asa-of-yourself/ http://constitutionallyspeaking.co.za/how-to-make-an-asa-of-yourself/#comments Fri, 20 Apr 2012 07:05:38 +0000 Pierre De Vos http://constitutionallyspeaking.co.za/?p=5818 The Advertising Standards Authority of South Africa (ASA) has made several highly controversial rulings in recent times, appearing hell bent on making an ASA of itself. Last year it ruled that an advertisement for Axe deodorant which showed a winged creature falling from the sky, ostensibly attracted to a man who has used Axe, was in breach of its code because the commercial set out to communicate that the new Axe fragrance is so irresistible that even angels will be enticed by it. The problem for ASA was that the angels were seen to “forfeit their heavenly status” (perhaps because it is well known that angels exist and live in heaven).

Now it has ruled that it cannot make any ruling on whether completely misleading and dishonest government adverts promoting the Secrecy Bill contravenes the Code. The Right2Know campaign had complained about these ads, invoking section 4.2.1 of the Code. This section states that:

Advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer.

In refusing to consider the merits of the case, ASA invoked section 2.4 of part I of the Code which states that:

To the extent that any advertisement:

· Expresses an opinion on a matter which is the subject of controversy; and
· That controversy involves issues within the areas, broadly defined, of public policy and practice, then that opinion shall not be subject to the provisions of the Code relating to misleading claims.

This exclusion is obviously aimed at those ads in which a controversial opinion is expressed about matters of public policy to the extent that such opinions are expressed. Thus, if an add expresses the opinion that etolling is a bad thing, that motorists should oppose the introduction of etolls and that etolls are being imposed by a government with no respect for citizens, it will not be possible for the government to complain about the add on the basis that the opinions expressed in the ads are incorrect. This is because opinions, by its very nature, are not easily verifiable as either true or untrue.

But surely the Secrecy ads are fundamentally different. If the adds promoted the Secrecy Bill by expressing the opinion that South Africa needed this law to protect the national security of the state, ASA would have been prevented from considering whether the ads are misleading or not, because the adds would express an opinion about whether the Bill is needed or not. Reasonable people may well differ about whether this is indeed the case.

But this is not what the ads do. They do not purport to express an opinion only, but also purport to inform the public about facts, namely what the Secrecy Bill is in fact aiming to achieve. They make what appear to be factual assertions about the scope and nature of the Bill. One of the television adverts presents a seven year old child (see below) saying that: “My government knows who I am because my government protected my birth certificate.” It then continues that the “Protection of State Information Bill is about getting serious, serious about protecting your information.”

The advertisement therefore states as fact – both in words and through visual presentation – that the Secrecy Bill is about protecting information relating to birth certificates. This is a factual claim which is untrue. To put it differently, this is a blatant lie. The exclusionary rule explicitly states that the exclusion only applies to the extent that it expresses an opinion. Where an advert contains both opinion and assertions of fact, the assertions of fact remain to be considered by ASA in terms of its rules. But What ASA has done is to refuse to adjudicate on the fal;se assertions because the advert also contains opinion. That is a blatant and obvious misreading of its own Code.

In fact the Secrecy Bill says absolutely nothing about Birth Certificates. Another law, the Births and Deaths Registration Act 51 of 1992, deals with this matter. Section 29 of this Act protects the secrecy of our Birth Certificates, prohibiting any person from publishing or communicating to any other person any information obtained from a birth certificate.

Section 31 of this Act states that it is a criminal offense for any person who has custody of a birth certificate to damage it or destroy it; to make false copies of a birth certificate or a reproduction. The Secrecy Bill does no such thing. The factual claim made in this advertisement is therefore false and is in contravention of section 4.2.1 of the Code. Because the advert purports to make true factual statements, ASA could not plausibly argue that the adverts merely deal with the expression of controversial opinions.

I will give an example to illustrate the distinction I am making but which ASA seemed unwilling or incapable of making. If someone produces an advert stating that President Jacob Zuma is a bad President because he is soft on corruption, that advert would be expressing an opinion and ASA would not be able to make a finding about the advert on the basis that it is misleading. Whether President Zuma is soft on corruption or not is itself a matter of opinion.

However, if that advert stated instead that President Zuma is a bad President because he has been convicted of rape, then the advert would include an assertion of fact that is demonstrably false and ASA would then not be able to invoke section 2.4 in order not to make a ruling on the advert. President Zuma has never been convicted of rape and the advert would therefore be false and misleading.

Similarly, the Secrecy Bill adverts state as fact that the Secrecy Bill is about matters with which the Secrecy Bill does not deal at all. It is therefore not a matter of opinion about whether these adverts are false and misleading. It is a matter of fact.

I guess one should not expect any semblance of logic to emanate from a body who seems to be prepared to believe that angels exists, but it is rather troubling that ASA has been too cowardly or subservient to make a ruling on these false and misleading adverts merely because this would have been politically awkward.

Which brings us to the subject of this post, Police Minister Nathi Mthethwa, and his alleged abuse of a crime intelligence slush fund to fund a R200 000 security wall around his private property. Last week City Press alleged that almost R200 000 from the slush fund was used for renovations to Mthethwa’s house in KwaMbonambi, northern KwaZulu-Natal. City Press pointed out that these payments were illegal as the secret fund can only be utilised to finance secret covert crime intelligence operations. Security renovations at the homes of Cabinet ministers are done by the department of public works and have to be declared to Parliament.

But the problem for Mthetwa was more acute than the allegations of the unlawful use of a slush fund. The problem is that the slush fund is controlled by General Richard Mdluli, the head of crime intelligence, who was facing charges of murder, fraud and corruption.  Hawks spokesman McIntosh Polela astonishingly conceded last week that acting police commissioner Lieutenant-General Nhlanhla Mkhwanazi had, on the orders of Mthethwa, instructed the Hawks to halt all investigations involving the crime intelligence department. If this is all true, then it would mean that Mthethwa had ordered an end to a criminal investigation which might well have implicated him.

In any event, the Minister is not legally entitled to instruct the Hawks to halt any investigation. It is true that section 17I(2) of the now unconstitutionally declared section of the Police Service Act states that a Ministerial Committee may determine: (a) policy guidelines in respect of the functioning of the Directorate; (b) policy guidelines for the selection of national priority offences by the Head of the Directorate; (c) policy guidelines for the referral to the Directorate by the National Commissioner of any offence or category of offences for investigation by the Directorate; (d) procedures to coordinate the activities of the Directorate and other relevant Government departments or institutions. The Ministerial Committee is authorised to “oversee the functioning of the Directorate”.

This means, first, that the Minister cannot issue any instructions to halt an investigation. Second, that if meddling were to take place, it had to be done not by the MInister but by the Ministerial Committee in the form of “policy guidelines”. If Minister Mthethwa did indeed give the instruction as claimed by Polela, this was therefore not legal.

If the Ministerial Committee issued policy guidelines aimed at halting the investigation, it would demonstrate the correctness of the Glenister judgment. The current situation also seems to illustrate better than any abstract or academic exercise why the current draft legislation purporting to give effect to the Glennister judgment to create an independent corruption fighting unit, does not in fact comply with that judgment.

The draft legislation allows the very Minister who is alleged to have instructed that the investigation implicating him in corruption should be stoppped to oversee the new corruption fighting unit. A newly proposed insertion of section 17DA provides wide discretion for the Minister to suspend and ultimately to remove the Head of the Directorate from office. In terms of the proposed amendment, the Minister is empowered in terms of section 17DA(2)(a) provisionally to suspend the Head of the Directorate, pending an “enquiry into his or her fitness to hold office as the Minister deems fit” and may then remove him or her from office for misconduct; on account of ill-health; on account of incapacity to carry out his or her duties of office efficiently; or on account thereof that he or she is no longer a fit and proper person to hold the office concerned.

This means if the Minister had given an unlawful instruction to stop an investigation into corruption in which he is allegedly involved, and the head of the Hawks had refused to obey this, in terms of the draft legislation the Minister would have been able to suspend the head of the Hawks without any pay and ultimately to have the head of the Hawks fired on the vague ground that he was inefficient.

That is why the Glenister judgment insisted that any corruption fighting unit had to be free from political influence and interference (something clearly not the case at present) so that it can do its job effectively, on the one hand, while remaining financially and politically accountable, on the other hand. As the judgment emphasised, it was essential for the body to be sufficiently independent so as to enable the anti-corruption agency to function effectively without being exposed to undue political influence.

Legal mechanisms must be established that limit the possibility of abuse of the chain of command and that will protect the agency against interference in operational decisions about starting, continuing and ending criminal investigations and prosecutions involving corruption. An effective corruption-fighting unit thus needed to meet two basic interrelated requirements. It needed to be both structurally and operationally independent — in accordance with the fundamental principles of the South African legal system and in line with South Africa’s international law obligations — to enable it to carry out its functions effectively and free from any undue political influence or undue intervention.

If anything illustrates the wisdom of this finding, it is the facts surrounding the implication of the political boss of the Hawks in corruption and the attempted cover up of the corruption by allegedly ordering a halt to the investigation.

I would guess that this is why, when confronted by these allegations last week, Mthethwa asserted: “The minister wishes to put on record that neither his house in KwaZulu-Natal nor those of his immediate relatives were built, refurbished and paid for with any source of public funds or taxpayers’ coffers.” Tellingly, so it seems to me, the denial seemed forthright and categorical, yet it did not state that funds were not used for the security upgrade involving the building of a security wall, leaving open a tiny gap for the Minister to wiggle through if caught out in a lie.

City Press reported this week that City Press it has in its possession the following hard evidence proving that the MInister had misled the public:

» The risk assessment that was done at Mthethwa’s property by Brigadier T Tshika of the counterintelligence division on Mdluli’s instruction in June 2010;

» A secret services account claim form, dated September 14 2010, on which a Lieutenant Colonel DG Naidoo requested R70 738.60 “to carry out security upgrades at the minister’s official residence”. The claim was approved by then chief financial officer of crime intelligence Major General Solly Lazarus;

» A second secret services account claim form, dated December 13 2010, on which Naidoo requested R57 146.30 “to purchase building material and hardware . . . to carry out security upgrades at the minister’s official residence”, which was approved
by Lazarus;

» A third secret services account claim form, dated January 31 2011, on which Naidoo requested R67 696.55 “to purchase building materials and hardware . . . to carry out security upgrades at the residence of the minister of police”, approved by Lazarus.

This is rather damning of the MInister, who appears to have misled the public with his denial. But what happens now? Obviously, if it turns out that the Minister did lie about the slush fund and then did order the suspension of the investigation into his alleged involvement in corruption, he needs to be fired. Meanwhile the Public Protector may well be able to investigate the Minister for breaches of the Executive Members Ethics Act, read with the Ethics Code.

In terms of section 2.1 of this Code, Members of the Executive must to the satisfaction of the President or the Premier, as the case may be: (a) perform their duties and exercise their powers diligently and honestly; (b) fulfil all the obligations imposed upon them by the Constitution and law; and (c) act in good faith and in the best interest of good governance; and (d) act in all respects in a manner that is consistent with the integrity of their office or the government.

Section 2.3 of the Code states that Members of the Executive may not, amongst others, (c) act in a way that is inconsistent with their position; (d) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person; (f) expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests.

If the allegations are true that the Minister had relied on the crime intelligence slush fund to build a wall around his private home and had then misled the public about it, he would be in clear breach of these provisions. In terms of the ACT, the Public Protector is empowered to investigate breaches of the Code on the receipt of a complaint. The President is then supposed to act on the complaint. If the Public Protector finds the Minister guilty, the President would be expected to fire the Minister as happened with the Minister of Public Works, but in this case this is less likely to happen because the Minister is a political ally of the President and the elective conference is only a few months away.

But President Zuma may be put in a very tight spot. After all, if, after a guilty finding, the President fails to act, this will further cement the public perception that President Zuma is more intent on securing his own future than in dealing with corruption and maladministration. This may, ironically, be used by President Zuma’s political opponents to question his probity and to diminish his standing before the elective conference in December. Whether he will then fire the Minister or not may well depend on whether the Minister was privy to any incriminating knowledge regarding the President himself.

Lurking at the heart of these missives, it seems, is a narrow, completely diminished, understanding of democracy. Minister Nzimande seems unaware of (or he is ideologically opposed to) the fact that our Constitution establishes more than a representative form of democracy in which passive voters are given the opportunity every five years to vote for the party of their choice (which the state broadcaster tells them should be the ANC). In his latest missive, he has the following to say about a supposed liberal ideological third force:

As part of the ideological armoury of the anti-majoritarian liberal offensive are attempts to assemble elite voices in society that appear to be either neutral or authoritative to try and discredit the ANC. The mainstream liberal media, some liberal NGOs, and of late business voices like Reuel Khoza, are all part of an ‘ideological third force’, decrying the ‘threats’ to our constitution and ‘lack’ of leadership in the ANC and society. Similarly, all of our institutions supporting democracy are either affirmed or condemned in the media, purely on the basis of whether they find positively or negatively against the ANC or government, often irrespective of the issues at hand.

That, according to Nzimande, is why the masses should be mobilised behind the ANC/SACP programme of action (as if anyone belonging to the masses are not capable of thinking for themselves and having a view that contradicts that of the movement) and why cadres should not believe a word they read in the print media (the SABC being ideologically less problematic and therefore more believable – unless they report on Julius Malema).

It has not occurred to Minister Nzimande that there might be reasons why the print media are criticising the movement and why NGO’s are taking the government to court. There might be very good reasons for protesting when our government does something reactionary, venal, corrupt or undemocratic. Whether the criticism is provided by an 84 year old granny who voted for the ANC or a newspaper editor – it remains valid no matter what Nzimande thinks. He has not considered the possibility that many of the ANC critics are fighting for a better life for themselves or the communities they serve, something the government is not doing so well because many of its leaders are fighting with each other for positions, which will bring with them the status that a blue light convoy and stays at the Mount Nelson can bestow, along with immense wealth that flows from access to government tenders and bribes by others who wish to access these tenders.

When the President tells an interviewer of The Sowetan: “We don’t want to review the Constitutional Court, we want to review its powers,” a few days before his own case which might revive corruption charges against him is heard by the Supreme Court of Appeal (SCA), one need not have a special ideological hatred for the ANC to worry about a threat to the Constitution. When the President appoints the least qualified and most right-wing member of the Constitutional Court as Chief Justice, and is lauded by the social conservatives and by Blade Nzimande for doing so (Blade saying those who pointed out Mogoeng’s conservative anti-women and anti-gay credentials did so only to spite the President!), then one should surely be aware that liberal and conservative, progressive and reactionary has stopped meaning what it used to mean and that Blade’s rant about an ideological third force is utterly meaningless.

And when North West Human Settlements MEC, Desbo Mohono, says that municipalities need to create stringent by-laws to prevent the “mushrooming” of informal settlements, in effect declaring war on the poor and sounding remarkably like an apartheid era Minister, then any thinking person would surely take Blade Nzimande’s attack against NGO’s and liberals with a pinch of salt. How can one not and begin to think that he is hiding behind his revolutionary language to try and pull the wool over our eyes about the movements true ideology (and ideology that has more to do with wealth accumulation and demonization of the poor than with providing a better life for all)? By the way, the MEC seems to have given the game away on Saturday when he made the following statement:

I would like to urge all local municipalities, to come up with rigid by-laws that would ensure that we do not see another informal settlement mushrooming in our land… We cannot win this battle if we continue to be held to ransom by our people, who continue to occupy land illegally and continue to add numbers to the ever emerging informal settlements.

In this view, it is the people – especially the poor that comrade Blade claims to fight for – who have become the enemy and who is holding the government to ransom by having the cheek of existing and actually wanting to have some kind of roof over their heads every night when they go to sleep. I mean, these people must be part of the liberal ideological third force, cunningly relying on the Constitution which states that everyone has a right of access to housing and placing a positive obligation on the state to take reasonable steps progressively to provide such access to those who need it.

Now, the supposedly liberal NGO’s are the ones who often assist the homeless and those who live in informal settlements and help them to take the government to court when the government that Blade is part of heartlessly evicts the marginalised and vulnerable poor from their often makeshift homes or the dilapidated inner city buildings where they live, often in desperate conditions. The supposedly revolutionary movement of which comrade Blade is a member is often the one who demonises these same people (as the MEC did on the weekend) and who takes steps to try and get them out of sight. (I guess it must be distressing to have to see these informal settlements flash past as one is chauffeur driven in a blue light convoyed R1 million car to another party where one will sip champagne on hehalf of the masses to celebrate the 100 year birthday of the ANC – staying in the Mount Nelson far away from these horrible poor people who dare to want to get a roof over their heads must be so much more soothing and fun.)

In any case, at the heart of all this is a deeply undemocratic attitude to the “masses of our people”, to debate and to criticism of any kind. Citizens are seen as passive voting fodder who must be galvanized every five years to vote for the movement and otherwise must shut up. In the Doctors for Life case, Justice Ngcobo made it clear that this is not the kind of democracy established by our Constitution. The commitment to principles of accountability, responsiveness and openness, wrote Ngcobo, shows that our constitutional democracy is not only representative but also contains participatory elements. This is a defining feature of the democracy that is contemplated. This means that all citizens (even the liberal ones) have a right to have their say and to participate in the discussion. Not even Minister Nzimande can try and shut up anyone who raises concerns about the manner in which the government is “governing” the country.

When the 84 year old granny, Ntombentsha Phama, who welcomed a TV news camera crew into her home and spoke about her plight, and was then berated by a delegation of ruling party councillors sent by Mbhashe Local Municipality Mayor Nonceba Mfecane, they are showing the same kind of lack of understanding or respect for democracy as Blade Nzimande. During a second visit, this time with Mfecane in tow, Phama was again scolded, given two blankets and a business card, and told to call the mayor – not the media – when she had problems.

Like Nzimande the mayor and his cronies never stopped to think that Phama had a RIGHT to invite the TV cameras into her home and that instead of berating her, they might have done something about the criticism. They never thought that the embarrassment to the ANC came not from the granny, but from the way in which the council had behaved. Similarly, Nzimande does not seem to understand that the criticism of the ANC in the media might – at least sometimes – be based on the fact that the ANC is stuffing up. I guess it is far easier to launch a tirade against the granny or against a so called ideological third force, than actually to governing responsibly and effectively and to deal with the criticism. I find that even those evil liberals in the media will praise the government when it does something well. The only problem is that there is not often that much to praise – unless we set our sights so low that anything the government does better than the apartheid state is seen as worthy of praise.

President Zuma was also a respondent in this case and may still decide to appeal the judgment. If he decides not to appeal, the NPA will have to provide the Registrar of the court with the “reduced record” which the NPA relied on to make its original decision. After looking at this record the DA will then have to decide whether it is worth pursuing this case and whether there is merit in having the decision reviewed by the High Court.

The SCA made the following order regarding the production of this “reduced record”:

the first respondent [NPA] is directed to produce and lodge with the Registrar of this Court the record of the decision [to drop charges against Zuma]. Such record shall exclude the written representations made on behalf of the third respondent [Zuma] and any consequent memorandum or report prepared in response thereto or oral representations if the production thereof would breach any confidentiality attaching to the representations (the reduced record). The reduced record shall consist of the documents and materials relevant to the review, including the documents before the first respondent when making the decision and any documents informing such decision.

When the former acting National Director of Public Prosecutions, Mokotedi Mpshe, announced that the NPA was dropping the charges against President Zuma, he indicated that the representations submitted by the legal representatives of Mr Zuma (as he then was) pertained to the following issues: the substantive merits of the case against Zuma; the argument that Zuma would not receive a fair trial; the practical implications and considerations of continued prosecution; and policy aspects militating against prosecution.

Mpshe made it clear that the NPA “could not find anything with regard to the first three grounds that militate against a continuation of the prosecution”, meaning that the NPA believed it had a winnable case against Zuma and that Zuma would be able to receive a fair trial. The NPA will have to produce the record and the documents which led it to this conclusion.

This means that the documents setting out the strength of the corruption case against Zuma will have to be produced along with legal memorandums dealing with allegations that Zuma would not be able to receive a fair trail because of the way in which the then Scorpions conducted the case. These documents, if made public, could be extremely embarrassing to the President as it might remind South Africans of the fact that a strong prima facie case of corruption exists against President Zuma, a case which he has never answered despite claims at the time that he wanted to clear his name.

But the NPA will also have to furnish other documents which might embarrass former President Mbeki and others who might have plotted against Zuma. This is because the reasons given for the dropping of the criminal charges against Mr Zuma (as he then was), centred on the alleged abuse of the process and as Mpshe’s statement made clear this turned on allegations that there was some manipulation inside the NPA regarding the timing of bringing charges against Zuma.

The NPA decided to drop the charges against Zuma after listening to the recordings of various phone conversations between the head of the Scorpions and other role players. Although Mpshe’s statement is coy on this issue, it appears as if Zuma’s lawyers provided the NPA with these recordings. However, crucially, it appears from Mpshe’s statement that it was not these recordings provided by Zuma’s lawyers on which it relied to drop the charges against Zuma. The following extract from Mpshe’s statement is pivotal:

The reputation of the family is destroyed and, because of all the stress and the shame, the disgraced attorney’s daughter uncharacteristically finds solace in the arms of an unscrupulous pierewaaier (dandy), who seduces her and turns her into a “fallen woman”. She falls pregnant (because God believes that “bad” girls must be punished) and flees to Paris where she prettily mopes around and stares at the Eiffel tower and at the Seine. Alternatively she stays in Cape Town and commits suicide by dramatically walking into the ocean, a-la Ingrid Jonker.

The point is, those of us subjected to this script were brought under the strong impression that for an upright member of society – an attorney nogal – to steal money from his clients was a disgracefull and disgustingly dishonest act, exactly because of the trust relationship that was supposed to exist between an attorney and his or her clients. Luckily, puritanical Christian Nationalists no longer rule South Africa, so those of us who speak Afrikaans and have a pale-ish skin no longer have to fear God’s wrath because we enjoy sex or because we believe in equality for all. Neither are we forced to go to church to pray for rain or the defeat of communism and the ANC.

But maybe we have gone a bit overboard in reacting to these bizarre Christian Nationalist values. Surely some of us seem to be far too forgiving of the crooks who steal other people’s money or take bribes – even if the bribe was solicited by Schabir Shaik? We even elect some of those implicated in criminal acts as political leaders. Should we really send a signal that stealing innocent people’s money is something easily forgiven – as long as one is married to the “right” person and has opportunistically aligned oneself to the “right” political faction inside the ANC?

Was it not bad enough that we sullied our democracy by pardoning all those involved in apartheid attrocities? Surely at some point we should start insisting that commiting a crime should disqualify one from being celebrated as an upstanding member of society?

I was wondering about this when I read on Sunday in City Press that President Jacob Zuma had expunged the criminal record of the husband of the acting prosecutions boss, Advocate Nomgcobo Jiba. Zuma’s spokesperson Mac Maharaj confirmed to City Press that former lawyer and Scorpions member Booker Nhantsi’s criminal record for stealing a client’s money from his trust fund was erased in September 2010. Nhantsi, who worked as an attorney before being appointed a deputy director in the Eastern Cape Scorpions, was convicted of theft in the Mthatha High Court in 2005. He had dipped into funds totalling R193 000 held in a trust for a client in 2003. He was sentenced to five years imprisonment, two years of which were suspended for a period of five years.

City Press reports that Jiba is closely associated with Lieutenant-General Richard Mdluli, the “controversial” head of the police crime intelligence unit. (Calling Mdluli controversial is a bit like calling George W Bush controversial for allegedly ordering the torturing and also the killing of thousands of non-Americans, but sometimes we use these euphemisms to keep ourselves sane.)

Mdluli is alleged to have murdered a rival in a love triangle and to have stolen money from a secret crime intelligence slush fund. When Jiba was in some legal difficulties (she was suspended by the NPA in 2007 for allegedly assisting the police to defeat the ends of justice by countering the Scorpions’ investigation of former police chief Jackie Selebi), Mdluli assisted her by making an affidavit in Jiba’s favour that supported the notion of a conspiracy against Selebi. (Zuma and his inner circle seem to really take all this talk of conspiracies rather seriously.)

Now the slush fund that Mdluli is alleged to have corruptly misused is the same slush fund that City Press claims was used to pay for renovations of almost R200 000 to Police Minister Nathi Mthethwa’s house in KwaMbonambi, northern KwaZulu-Natal. The newspaper claims that these allegations were contained in a top-secret police report that was handed to acting police chief Lieutenant General Nhlanhla Mkhwanazi last month, which names Mthethwa in the Hawks’ investigation into the plundering of the R200 million secret service account. City Press speculated that Mthethwa had ordered an end to the Hawks probe because of his involvement in the scandal.

Mthethwa denied these charges, claiming that the “minister is the political executive of the SAPS and as such does not get involved in operational matters.” This claim of non-involvement in operational matters was directly contradicted by Hawks spokesman McIntosh Polela who conceded that acting police commissioner Lieutenant-General Nhlanhla Mkhwanazi had, on the orders of Mthethwa, instructed the Hawks to halt all investigations involving the crime intelligence department. Someone seems to be lying about something here.

But back to the tawdry pardoning of (now) former criminal, Booker Nhantsi. Could he have been pardoned by President Zuma because he happens to be on the “right” side of the internal factional fight? Was it done to keep the acting NPA boss sweet to ensure that the criminal charges against Zuma will never be resurrected? And what does this pardoning say about the moral compass of our President? Surely it reinforces the perception that our President does not have a moral compass at all and that he is not one to let small detail like criminality stand in the way of loyalty and protection of his own interests of staying out of jail.

Now, it must be said that the President has the constitutional power to pardon any criminal in terms of section 84(2)(j) of the Constitution. However, the Constitutional Court has said in the Hugo case many years ago that the exercise of this power can be reviewed. Where the President pardoned an individual he is at the very least required to exercise that power in good faith.

If, for instance, a president were to abuse his or her powers by acting in bad faith I can see no reason why a court should not intervene to correct such action and to declare it to be unconstitutional. For example, a decision to grant a pardon in consideration for a bribe, could no doubt be set aside by a court. So, too, if a president were to misconstrue his or her powers I can see no objection to a court correcting such an error, though it could not exercise the discretion itself.

The Constitutional Court confirmed this view in the Albutt case where it found that the pardoning of a group of apartheid era prisoners with the aim of effecting reconciliation was unconstitutional because the victims of the apartheid era crimes were not consulted by the President before the decision to pardon the prisoners were taken. In that case the Court stated (and this might well come as something of a surprise or even a shock to President Jacob Zuma and some of his advisors) that:

It is by now axiomatic that the exercise of all public power must comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of the rule of law. More recently, and in the context of section 84(2)(j), we held that although there is no right to be pardoned, an applicant seeking pardon has a right to have his application “considered and decided upon rationally, in good faith, [and] in accordance with the principle of legality”. It follows therefore that the exercise of the power to grant pardon must be rationally related to the purpose sought to be achieved by the exercise of it.

When asked about the reasons behind this seemingly unethical but possibly politically expedient pardon, Mac Maharaj made the following statement:

A pardon is an act of mercy by the president if the president is convinced that it is in the public interest for a pardon to be granted. In Nhantsi’s case, he was convicted of the offence of theft, which was his first and only offence. He had also served his sentence. Nhantsi is also a qualified and skilled individual who can make a contribution to society. He was therefore pardoned accordingly.

These reasons could, of course, apply to many other people who have been convicted of crimes of dishonesty (many of whom, including Schabir Shaik, who have not been pardoned by the President), but in the absence of any proof of a bribe being paid to effect the pardon or of other bad faith factors playing a role in the pardon, one will have to conclude that the pardon – although politically scandalous and unethical - was not unlawful. (I know this distinction is not one that some politicians and some supporters of the President care to make.)

Finally, in this fog of allegations, denials and counter-allegations, this pardoning of a former dishonest thief who happens to be in the “right” political faction inside the ANC (and whose wife is in a position to decide on whether to revive criminal charges against President Zuma), will further enhance the perception that our President is at least ethically (if not legally) tainted and that he makes decisions based on his personal interests and not based on the interest of the government he leads or of the nation.

But sadly none of those implicated in these unsavoury events will flee to Paris in disgrace. Neither will they beleive that the family or party they belong to was shamed by their actions. Instead they are more likely than not to claim that they have been the victims of a terrible conspiracy concocted by unnamed foreign intelligence services, opponents inside the ANC, Helen Zille, HF Verwoerd and – who knows – James Bond himself.

Watch this space.

If Obama can implicitly criticise the judges of the US Supreme Court, why can’t President Zuma say that he wants to review the powers of the Constitutional Court? Why can’t Gwede Mantashe say that our judges threaten the stability of the country and act in their own self-interest because they are hostile to the ANC-led executive? Why can’t Ngoako Ramathlodi say that because of the Constitution “the black majority enjoys empty political power while forces against change reign supreme in the economy, judiciary, public opinion and civil society”? Why can’t he say that the courts in our judiciary “the forces against change still hold relative hegemony”?

They may be emboldened by this line of reasoning if they read the column by liberal New York Times columnist Maureen Dowd who lashed out at the five right wing judges who form a majority on the nine-member US Supreme Court in the following manner:

This court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once they give the last word, is well on its way to becoming one of the most divisive in modern American history. It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes. All the fancy diplomas of the conservative majority cannot disguise the fact that its reasoning on the most important decisions affecting Americans seems shaped more by a political handbook than a legal brief.

But this possible shadenfreude by South African critics of the Constitutional Court would be unjustified and more than a tinge dishonest. Very few people argue that judges and the decisions they make should never be criticised – even in harsh terms. I myself have often criticised various judgments of the Constitutional Court as well as many judgments delivered by judges in other courts in South Africa. Criticism of judgments of the judiciary is not the issue. For example, a critical analysis of the Constitutional Court judgment which refused to hear the Hlophe appeal would be potentially valuable. I for one would engage vigorously with such a critical analysis and will try to demolish any kind of argument put up (which, I believe, would not be too difficult to do).

This kind of criticism of judicial decisions is par for the course for any academic.

What we object to is the conservative  attacks on the judiciary masquerading as radical concern for transformation. Some of us take issue with Jacob Zuma, Gwede Mantashe, Ngoako Ramathlodi and others, not because they criticise court judgments or because they attack specific judges (based on the conservative or even reactionary judgments handed down by those judges). We take issue with these self-serving and undemocratic attacks, first, because the attacks on the judiciary (the Constitutional Court, in particular) and on specific judges are not based on fact at all and are mostly based on, (how shall I put this nicely), an adventurous and creative engagement with the truth.

It is not as if the Constitutional Court cannot and should not be criticised. But then it should be based on the judgments of that court and the reasoning employed in the specific judgements of that court by an individual judge.

I have yet to see any critic of that court explaining which judgments exactly demonstrate that the Constitutional Court is hostile to the ANC or that it opposes transformation.

Can it be the judgment in which the court found that search warrants in the Zuma case were valid? No, that case dealt a blow to Jacob Zuma’s attempts to stay out of jail, but obviously had nothing to do with transformation.

Can it be the judgment that declared invalid the law on which President Zuma relied when he extended the term of office of the former Chief Justice? No luck there either, as that judgment was based on a protection of the separation of powers and the independence of the judiciary (which the ANC says it will defend to the bitter end), so that judgment was actually pro-ANC.

Was it the judgment which invalidated the government’s HIV mother to child transmission policy? No, that judgment promoted the well-being of poor and vulnerable women and their children.

And what judgment exactly threatened the stability of the country? Not one judgment comes to mind or has ever been mentioned by the critics of the Constitutional Court.

But there is a second reason why most of these attacks on the judiciary and the Constitutional Court are not just wrong, but also dangerous. They often seem to come from a deeply reactionary and undemocratic place. What is being objected to is not the politics or ideology of a specific Constitutional Court judgment or whether the judgment is pro-transformation or anti-transformation (after all, if that was the issue, the current Chief Justice – the most conservative member on that court – would never have been appointed by President Zuma).

Instead, the aim of those who attack the Constitutional Court often seems to be to create a scapegoat for the governance failures of the government. Without ever being able to name one Constitutional Court judgment which has stopped textbooks from being delivered to a school, which has stopped the government from replacing mud schools with brick and mortar schools, which has stopped the government from taking back control of schools from the out of control labour unions, attackers claim that it is the fault of the Constitutional Court that for some people little has changed in South Africa since 1994.

But it was not the Constitutional Court that imposed the GEAR policy on the government; that imposed a willing-buyer willing-seller land reform policy on the government; that forced the government to buy R40 billion worth of arms; that forced the government Ministers to stay at the Mount Nelson and buy million Rand cars. No, that was our government who did this all by itself.

So, by all means, criticise the judgments of the Constitutional Court, but be honest when you do so. Do not hide behind vague and untrue claims about the evil courts to try and justify the failures of the government. Do not attack the supremacy of the Constitution – as if this supremacy is to blame for the many “challenges” of government. Be honest about your motives for criticising a judgment. For example, why not come right out and say that the decision by the Supreme Court of Appeal (SCA) nullifying the appointment of Menzi Simelane, has nothing to do with fears of stifling transformation and everything to do with fears that an independent person will be appointed as National Director of Public Prosecutions who will not block the prosecution of well-connected politicians.