corruption

Selling horse droppings as figs

Apr 2nd, 2012

In Afrikaans we have a striking saying describing rather accurately what the keepers of secrets (yes, the spies and double agents and professional liars in the intelligence agencies) are trying to do with its latest range of advertisements promoting the Secrecy Bill: “Hulle will ons nou wysmaak dat perdedrolle, vye is”. (“Now they want to convince us that horse droppings are really figs.”)

Apart from the fact that the government is not supposed to promote a Bill currently still serving before Parliament and not yet passed into law (as Parliament is currently seized of this matter, and the executive has no truck with the Bill until it is actually passed and becomes law), the advertisements are about as honest and truthful as your average Senior Manager at the Department of Public Works testifying at the Bheki Cele Inquiry.

I focus on the English version, which can be played via YouTube:

The text of the advert is as follows:

Female Voice: “Are you following the whole debate about this new law everyone is talking about? Something about state information?”

Male Voice: “Yes. And I see why government worries. All this stuff about identity theft, people being long dead but collecting pensions, the list is endless.”

Female Voice: “But what about corruption? How will the government deal with that?”

Male Voice: “The bill makes it clear that if people try to cover up corruption they will go to jail for up to 15 years, and whistleblowers will be protected.”

Female Voice: “That’s good. But will we still be able to get the information we need from the government?”

Male Voice: “Yes. Our constitution gives us that right. As for the press, the bill doesn’t suppress press freedom at all. When you want information that is classified, you just have to apply for it. If you are still not happy, you can go to court and the judge will decide if it is in everyone’s interest.”

Female Voice: “Yes, sounds reasonable.”

Male Voice: “The thing is that government has to protect its information from criminals. There are spies out there that want to steal our information to develop their own countries at our expense.”

Female Voice: “I see. I want to familiarise myself with the bill more. There’s so much I didn’t know.”

Male Voice: “Great, ‘cause it’s really important that government protects its information. It is about protecting our country and its hard-won freedom. Ensuring that we all live in peace, security and prosperity.”

The thing is, the Secrecy Bill has absolutely nothing to do with identity theft and neither has it anything to do with people fraudulently collecting pensions if they are not entitled to do so. Although section 8 and 9 of the Secrecy Bill deals with the protection of valuable information (which could include personal information about one’s ID held by the state), and although these sections state that such information warrants “a degree of protection and administrative control and must be handled with due care and only in accordance with authorised procedures”, the Bill does not actually criminalise the selling of your ID by a state official and is in no way dealing with identity theft. What a very small part of the Bill does (about 4 of the more than 50 clauses in the Bill) is that it prohibits any person from unlawfully and intentionally destroying, removing, altering or erasing valuable information.

A state official would therefore be punished in terms of this Bill if he or she deleted your ID information from the government database. What the Bill would not deal with at all is identity theft or pension fraud. The law already punishes fraudulent selling of your ID information to others as well as pension fraud, and this Bill has absolutely nothing to do with that. In other words this advert is deceitful and dishonest. This is perhaps not surprising, as the adverts were cooked up by the very spies who, we are told, we should trust with decisions about the need to classify state documents as secret or top secret. I would not trust these people when they tell me what the weather will be like tomorrow – let alone with these decisions that may well hide serious criminality and corruption. (General Mdluli, are you there?)

Ironically, what the adverts do, is to illustrate beyond all doubt why this Bill is so dangerous. If these people are prepared to deceive the public so blatantly and openly, why would they not lie to us about the existence of wrongly and unlawfully classified documents which we might need to get access to in order to expose corruption or in order to expose the blatant flouting of the law and undermining of our democracy by the intelligence services?

The “safeguards” in the Bill which the advert talks about are therefore illusory. If it is a criminal offense to be in possession of a classified document, and if one tries to get access to a wrongly classified document, the spies will merely claim that the document does not exist, finish en klaar. If one then claims to have seen the document, one will be arrested and charged for possessing a classified document and to admitting to having committed a crime and one could be sentenced to a long period in jail for possessing even an illegally classified document.

It is true that section 43 of the Bill states that a person who is protected by the Protected Disclosures Act may disclose documents despite any provisions in the Bill, which means that a very brave (some would say very stupid) state employee who discovers documents demonstrating criminal activity or corruption by the intelligence services, may leak such documents to, say, the Public Protector.

What the advert does not say is that the Public Protector will then immediately have to take the leaked documents showing serious criminal activity to the nearest Police Station where one of Richard Mdluli’s cronies will be able to receive the document and “deal” with it to protect the intelligence services and those exposed as criminals or crooks in the documents. The Public Protector can then try and get access to the document via various means and after several years – and assuming rather optimistically – that the document had not been “lost” (in other words, destroyed), she might finally get access to that document – long after the crime was committed and the cover up effectively instituted, the witnesses “disappeared” or intimidated into silence or packed off to Tjikitjikistan as the undersecretary of culture.

Moreover, the advert seems to suggest that all active citizens are really no more than potential criminals, suggesting how the paranoid spies view us ordinary citizens. It says that the state has to protect its information from criminals, but it is exactly the kinds of information that we need as citizens that we will be “protected” from accessing. We will not ever again be able to know that intelligence services had concocted another Browse Mole Report to discredit the enemies of the sitting President. We will not ever again be able to know that the spies had taped telephone conversations between politicians or between NPA members. We will not know that senior ANC leaders have been spied on by the intelligence services because the President thought that these leaders might pose a threat to his political ambitions.

Of course, the adverts also display the kind of paranoia that is familiar to students of any fascist police state. Hence it suggests that we need to protect state secrets because if any of these secrets held by the state are ever released, our very freedom (the freedom curtailed by this Bill) will be threatened. Now, I for one cannot imagine what secrets the spies are keeping that are so earthshattering that it would threaten the very life of our nation and our Constitution if it were to be made public. Could it be information about financial donations made by foreign dictators to the President or the governing party? Information about the sex-lives of politicians illegally spied upon by the intelligence services on instructions from the President? Maybe there are documents proving that our spies are plotting to assassinate the President of the United States, which, if revealed, could lead to a US military invasion.

But I doubt that any of these documents exist and even if they did, we will be protected by its disclosure (and disclosure of the unlawful actions by the intelligence services who might have compiled these documents illegally), not by keeping them secret.

This Bill is about protecting the intelligence services and drawing a veil of secrecy over their often unlawful activities in order to enhance the powers of the spies, create a police state within a state and protect the leadership of the incumbent faction inside the ANC from embarrassment and from being ousted in quasi-democratic party elections. It is not about freedom but un-freedom, not about democracy but a threat to our democracy.

If you believe otherwise, I am sure you will also believe me when I say that you should please send me all your banking details (including password) immediately so that I can transfer a few million dollars into your account, which I will do because I need your assistance with transferring fabulous amounts of money into South Africa.

Another unconstitutional law on the horizon?

Mar 26th, 2012

by Pierre De Vos.

13 comments

I was asked to prepare a memorandum on the draft amendments to the South African Police Service Act, purporting to give effect to the Constitutional Court judgment in the Glenister case. The Glenister judgemnt found that the abolition of The Scorpions and the creation of The Hawks was unconstitutional in several respects and ordered Parliament to fix the problem within 18 months. These amendments are a purported attempt to comply with the judgment.

In the memorandum I concluded that the proposed amendments fall far short of the minimum requirements as set out in the majority judgment in the Glenister case. (The full memo can be accessed here.)

What is clear from the draft is that there is no political will to create an independent body free from political influence or interference to fight corruption. It would be far too dangerous for the kleptocratic members of the political elite to create such a body, hence the minimalist attempts contained in the draft Bill which attempts to create a partly independent body, but one which will retain “sufficient” political control over it to ensure that the body does not investigate the “wrong” people.

But creating a partly independent corruption fighting body is like making a woman half pregnant – not something that seems possible at present. (Not that I am an expert on that particular score.)

As the Glenister judgment set out, at the heart of the inquiry is whether the body will be free from political influence and interference so that it can do its job effectively, on the one hand, while remaining financially and politically accountable, on the other hand. What is essential in achieving this balance is to depoliticise the anti-corruption institution or institutions. To achieve this a body need not attain the kind of independence guaranteed for the judiciary (“full independence”), but it does need 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.

The Bill opts of a “minimalist approach”, including amendments to several sections of Chapter 6A of the South African Police Service Act but retaining the DPCI, albeit in a slightly different format, instead of creating a completely new body. The amendments represent a rejection of a return to the previous position where the DSO was situated within the National Directorate of Public Prosecutions. The approach also rejects the option of creating an independent body outside the formal structures of the South African Police Service. This approach is not necessarily precluded by the majority judgment in the Glenister case (although the judgment did not deal with the difficulties regarding financial independence that will arise because of the non-independent National Commissioner of Police’s role as the Chief Financial Officer of the “independent” unit). As long as the amendments create an independent corruption-fighting unit free from potential political influence and interference, a body that – judged in its entirety – is not only in fact sufficiently independent but is also reasonably perceived as being independent, the amendments will comply with the judgment.

As it stands, an overall assessment of the proposed amendments suggest that the amendments fall far short of what is required by the Glenister judgment in several ways. This is because the amendments do not remove the potential for political influence and interference in the work of the Hawks because the new body is neither sufficiently structurally or operationally independent to and cannot reasonably be perceived as being so independent. The amendments provide far too much power for politicians to regulate the work of the unit, rendering it not sufficiently operationally independent. Neither is it sufficiently structurally independent because of lack of safeguards regarding security of tenure for all members of the unit as well as effective mechanism to report and investigate allegations of political influence and interference in its work. Both in fact and in terms of a reasonable perception of independence the proposals for a reconfigured Hawks fail to safeguard independence as required by the judgment. In this regard, the following are the main problems with the proposed amendments.

The amendments provide insufficient guarantees to safeguard the structural independence of the Directorate as it fails to provide security of tenure for all the members of the Directorate and fails to establish statutory secured levels of remuneration for all members of the Directorate.

In terms of a newly created section 17M all members of the Directorate remain members of the South African Police Service “with all the powers, duties and functions of other members of the South African Police Service”. Section 17G which states that the remuneration, allowances and other conditions of service of members of the Directorate shall be regulated in terms of section 24 of the Act (a section which allows the Minister to make regulations about the reduction in rank of members as well as the remuneration structure of members), falls short of the security of tenure for all members. As the majority judgment in Glenister made clear, in the absence of explicit provisions entrenching the employment security and remuneration levels of members of the Directorate, “individual member could be threatened – or could feel threatened – with removal for failing to yield to pressure in a politically unpopular investigation or prosecution”, which would be inimical to structural independence.

Ordinary members of the Hakws would therefore remain subject to the hierarchical structure and discipline of the SAP and could be removed by the National Police Commissioner (who is not an independent person). The National Commissioner would retain the power to “discharge” any member of the DPCI from the SAPS on account of redundancy or the interests of the SAPS. The Commissioner would also still be empowered to discharge a member of the service if, for reasons other than unfitness or incapacity, the discharge “will promote efficiency or economy” in the SAPS, or will “otherwise be in the interest of” the SAPS. Ordinary members of the Directorate therefore would therefore not be sufficiently protected in terms of job security as required by the Glenister judgment.

Moreover, although a newly inserted section 17DA provides limited protection for the employment security for the Head of the Directorate, and the newly inserted section 17CA(c) provides limited remuneration protection for the Head, Deputy Head and Provincial Heads of the Directorate, it contains no such protection for other members of the Directorate. This means that ordinary members of the Directorate will be subject to the ordinary remuneration regime of the SAPS in exactly the same manner as other members of the SAPS, rendering them insufficiently independent in a structural sense. This falls foul of the Glenister judgment as discussed in section 2.3.2.3 above.

The security of tenure of the Head of the Directorate is not sufficiently protected as required by the judgment as discussed in section 2.3.2 above. A newly inserted section 17DA deals with this matter, but provides wide discretion for the Minister in suspending and removing 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 then 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. Subsection (3) allows removal from office by an address of the two Houses of Parliament for the same reasons as set out above. Where the Head is suspended, he or she shall receive no salary or such salary as the Minister will determine.

Four aspects of this provision might cause problems. First, any enquiry into the fitness of the Head of the Directorate to hold office will be conducted as the Minister sees fit. There are no formal requirements for how this enquiry should be conducted or who should conduct the enquiry. This wide discretion means that an enquiry could be conducted by the Minister him or herself or by someone in the Minister’s office watering down the safeguard of an objective determination on whether one of the four criteria for removal is in fact present. Second, the third requirement relating to the Head’s possible incapacity to carry out his or her duties of office efficiently, is exceedingly broad and not easily susceptible to objective determination.

The notion of efficiency renders the subsection overbroad and potentially allows the Minister to remove the Head of the Directorate if, in his or her opinion (or, in his or her stated opinion), the Head has not been efficient, opening the door for removal on non-objective grounds, which is not compatible with actual independence or perceived independence.

Third, when the Head of the Directorate is preliminary suspended, he or she could be suspended without a salary and could therefore in effect be punished even before he or she is formally removed, placing considerable potential power in the hands of the Minister to put pressure on the Head of the Directorate, and thus rendering the independence of the Head of the Directorate tenuous at best. Lastly, the two Houses of Parliament can remove the Head of the Directorate by “praying for such removal on any of the grounds” referred to above.

No enquiry is required in this regard and the wording is vague, which means the section could be interpreted as not requiring the two Houses of Parliament actually to have established as objective fact that one or more of the grounds listed is actually present. In one reading of this section, this would render this power as little more than the exercise of a political discretion which may not easily be reviewed by a Court, rendering the security of tenure and hence the independence of the Head of the Directorate.

These fears are reinforced by the heading of this section, which states that the section relates to “Loss of Confidence in Head of Directorate”. A “loss of confidence” is a subjective standard, not an objective standard, as it relates to whether the Minister or the Parliament had stopped having confidence in the Head of the Directorate and such loss of confidence could just as well relate to political reasons as to objective criteria reviewable by a court of law.

Despite the proposed amendments, the possibility of political influence and interference in the work of the Directorate looms large, both in fact and in terms of reasonable perceptions about such influence and interference. The requirements set out in the Glenister judgment (as discussed in section 2.2.3 above) have therefore not been met. Section 17CA(1) proposes that the Minister of Police, with the concurrence of the Cabinet, appoint the Head of the Directorate for a non-renewable term “not exceeding seven years”, while section 17CA(3) requires that the Deputy Head be appointed by the Head with the concurrence of the Minister of Police and section 17CA(4) requires that the Provincial Head of the Directorate to be appointed by the Head with the concurrence of the Minister of Police. This means that the Minister has a veto right over the appointment of the Deputy Head and the Provincial Heads of the Directorate.

No objective minimum criteria are prescribed regarding the skills, experience or commitment to independence of any of the men or woman appointed to these positions. In theory the Minister could appoint an outgoing member of Parliament of the governing party (or another political party) or a sitting member of the highest decision making body of the governing political party (or another political party), somebody without any police experience or someone embroiled in allegations of corruption, in any of these positions. Absent a mechanism that provides for safeguards against the appointment of individuals who are in fact or are perceived not to be politically partial, the perception may well be created that the Directorate is not in fact independent and will thus fly in the face of the requirement that the body should be independent in fact and in terms of perceptions.

The amendments also do not include any legally binding requirement that the Head of the Directorate or any other member of the Directorate need to fulfill his or her duties independently (or, alternatively) without fear, favour or prejudice. A proposed insertion of section 17E(9)(a) states that a member of the Directorate “shall serve impartially and exercise his or her powers or perform his or her functions in good faith” while section 17E(1) requires members to take an oath to “enforce the Law of the Republic without fear, favour or prejudice and, as the circumstances of any particular case may require, in accordance with the Constitution and the Law”.

There are several problems with this section. First, there is a distinction between serving impartially and acting in good faith, on the one hand, and being independent on the other. Second, there is no sanction for anyone not acting independently and impartially. Third, the oath seems to be at best ambivalent as it states that one needs to act without fear favour or prejudice but only “as the circumstances of any particular case may require” leaving open the possibility that this means that in certain cases one need not act so and need not act in accordance with the Constitution and the law if the circumstances of the particular case requires it.

A new proposed section 17D(1)(a)(A) states that the functions of the Directorate are, inter alia, to prevent, combat and investigate “in particular selected offences contemplated in Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities Act.” It is unclear what these “selected offenses” are intended to be and who will select the offenses. However section 17D(1)(a) and 17D(1)(c) states that national priority offenses and other offences can be investigated at discretion of Head or if it is referred to the unit by the National Commissioner, but this remains subject to policy guidelines issued by the Minister (currently the guidelines are to be issued by the Ministerial Committee).

The insertion of a specific focus on charges in terms of the Corruption Act, goes some way to allay fears of political influence and interference. However, corruption is often closely aligned with other offenses such as fraud. The fact that the Minister therefore would retain broad discretion to issue policy guidelines on which priority crimes to investigate might potentially hamstrung investigations in which fraud and corruption are intertwined. Such a broad discretion provided to apolitical actors was not compatible with independence as required by the judgment.

The judgment required far more effective mechanism to protect members of the Directorate from political influence and interference, both prospectively and retrospectively. The judgment thus found that section 17L did not meet the requirements for independence in this regard as the retired judge empowered to investigate allegations of undue influence could only deal with retrospective complaints of interference. Curiously, the proposed amendments wholly fail to address these concerns.

Although it is proposed that section 17L(7) be amended to allow a retired judge to obtain information from the NDPP, there are no proposals to create a structure that ab initio prevents political interference in the work of the corruption-fighting unit. As the judgment found, in some cases irreparable harm may have been caused which judicial review and complaints can do little to remedy. More importantly, many acts of interference may go undetected, or unreported, and never reach the judicial review or complaints stage. That is why it was necessary to create “adequate mechanisms designed to prevent interference in the first place” as this was required to ensure that political interference does not happen from the start. This failure renders the proposed Bill unconstitutional.

On changing the Constitution

Mar 23rd, 2012

by Pierre De Vos.

93 comments

Recent statements by politicians about the need to review the judgment of the Constitutional Court with a view to assess the need for changes to the Constitution, is often accompanied by assurances that the South African Constitution has already been amended 16 times. It is argued that the Constitution was a compromise document foisted on the people of South Africa by evil right-wingers, that the document has become a stumbling block to the effective governing of the country and hence has become a hinderance to the economic transformation of the country. Over the past year many ordinary folk, taking its cue from those talking about changing the Constitution, have taken up this whispering campaign against the Constitution.

There are two problems with this line of reasoning. First, the mere fact that the Constitution has been amended 16 times is irrelevant, as the number of amendments is not what is in issue. Rather what is in issue is the nature of any proposed amendments. Are they good for democracy and for the country or are they bad? Would they insulate the governing party from scrutiny when it flouts the law and the Constitution or would it enhance oversight and democratic accountability for any governing party? Would amendments rob citizens of their rights and their ability to have those rights enforced by the courts, or would it make it easier for citizens to enforce their rights? Would amendments hamper economic transformation by protecting the corrupt in government and the private sector, or would it advance transformation by ensuring open, accountable and transparent government with the requisite oversight powers for the courts?

What those who argue that the Constitution has been amended 16 times do not say, is that almost all of these amendments passed so far have been mere technical amendments of no real substantive or political effect. Where substantive amendments have been made, this has tended to weaken the Constitution and the checks and balances in it, instead of strengthening it, and as such was criticised by many in academia and civil society.

But most amendments have been entirely uncontroversial.

Thus the first amendment dealt with the oath of office to be sworn by the Acting President. Amendment two, inter alia, changed the name of the South African Human Rights Commission to that of Human Rights Commission. Amendment four was needed to confirm that a provincial legislature remains competent to function from the time it is dissolved or its term expires, until the day before the first day of polling for the next legislature. The fifth amendment, inter alia, was aimed at allowing a proclamation calling and setting dates for an election of the National Assembly to be issued either before or after the expiry of the term of the National Assembly. And on it goes.

So far only four sets of amendments of some importance and political relevance have been made to our Constitution. The sixth amendment stated that the head of the Constitutional Court (and not the head of the Supreme Court of Appeal) will become the Chief Justice of South Africa and also provided for the extension of the term of office of a Constitutional Court judge by the legislature. The second part of this amendment was highly controversial as it potentially affected the separation of powers and the security of tenure of Constitutional Court judges and was vigorously opposed by academics and civil society groups. It did not help that Parliament unconstitutionally tried to delegate the power to extend the term of office of a Constitutional Court judge to the President, a provision that was first relied upon by President Jacob Zuma when he wanted to extend the term of office of former Chief Justice Sandile Ngcobo.

The eighth, ninth and tenth amendments were passed to introduce the highly contentious floor crossing provisions, which allowed members of national and Provincial Parliaments and Municipalities to cross the floor during two window periods — as long as more than 10% of the members of the party crossed the floor. These provisions insulated the ANC from floor crossing (as it would have required between 25 and 30 ANC members to cross the floor together) but decimated smaller parties where even 1 person could easily cross the floor.

In 2009, after the Polokwane conference and in the face of threats of factionalism within the ANC, the fourteenth and fifteenth amendments were adopted to abolish the floor crossing, thus protecting the ANC from possible floor crossing defections by the losing factions of party elections at national, provincial and local government level.

The twelfth and thirteenth amendments provided for the elimination of cross-border municipalities by changes to the boundaries of certain provinces. These were highly contentious as citizens living in KwaZulu-Natal and Gauteng did not want to be moved to worst performing provinces of the Eastern Cape and North-West respectively. Despite valiant efforts by the people of Matatiele and Merafong, and despite some promises made to the contrary before national elections, the ANC used its then two-thirds majority to force these communities into provinces they did not want to go to.

Every proposed amendment to the Constitution must surely be evaluated on its merits. Amending the Constitution is not per se a problem. Only those proposed amendments to the Constitution that will protect the governing elite at the expense of citizens or will undermine the very nature of our Constitutional democracy, will be problematic. Each proposed amendment will have to be judged on its own merit.

Which brings me to the second problem with this talk about amending the Constitution. Those who argue that the Constitution must be amended because the Constitution has become a stumbling block to the effective governance of the country and hence in effect prevents social and economic transformation, are rather vague about how the Constitution should be amended.

There seems to be two general arguments circulating and being whispered about in this regard. First, some among us are upset that the courts can review and set aside decisions by the President, other members of the executive and other organs of state, when such decisions are not authorised by the Constitution or the law, do not comply with the Constitution or ordinary law or when these decisions are not rational (in other words, when the decisions are arbitrary, made in bad faith or capricious). This argument is based on the premise that those in government should not be bound by the law and should, in effect, be above the law.

For example, if the Constitution or an ordinary piece of legislation requires the President to appoint a “fit and proper” person to a position and he then decides to appoint somebody to that position who has been found guilty of corruption or murder, so the argument goes, it is not for the non-elected members of the judiciary to declare such an appointment invalid merely because the appointment did not meet the minimum requirements set by the law.

Such an argument is no more than an argument for lawlessness. Of course, in such a case there is nothing that prevents the legislature from amending the relevant legislation (or the Constitution – if the requisite majority can be mustered to do so) to abolish the requirement that only a “fit and proper” person should be appointed to the job. What cannot ever be accepted in a constitutional democracy, is a situation where the law and the Constitution can be flouted at will, with no recourse open to the courts to check this flouting of the law.

A second argument is made that the Constitution is a compromise document agreed on by the Constitutional Assembly in line with the 34 Constitutional Principles contained in the interim Constitution and as such lacks legitimacy because it contains many anti-transformation provisions.

Of course, the interim Constitution contained a provision that would have allowed the final certified Constitution to be submitted to voters in a referendum if two-thirds of the members of the Constitutional Assembly could not agree on the text. If at least 60% of the voters approved of the draft Constitution in a referendum, it would have taken effect. The ANC and the NP both avoided this by agreeing on the text. The fact that a referendum was never enforced suggest that the ANC was worried that its version of the Constitution would not obtain a 60% majority in a referendum. Instead both parties, after extensive public participation, agreed to a document which it could live with – although almost all commentators have since argued that the ANC out negotiated the National Party and secured a Constitution that was far closer to its original plans than they could have dreamed about.

In any case, it is unclear which provisions of the Constitution hinders social and economic transformation in South Africa. The property clause is often singled out in this regard, but as I have pointed out several time before that section does not require a “willing-buyer willing-seller” land reform process. Neither does it require the payment of market value for all land expropriated for purposes of land reform. Those who claim that the Constitution obstructs social and economic change has not yet been able to point to any other provisions in the Constitution that mitt be objectionable. This is probably because there are none.

Ours is not an exclusively liberal Constitution. Although it contains a system of government based on the separation of powers and checks and balances as well as all the traditional liberal human rights like freedom of expression, it also contains a set of social and economic rights that places a positive duty on the state to take reasonable steps to provide better and more expansive access to housing, health care, education and other social and economic rights. Moreover, the Constitution applies, to a large degree, horizontally also binding private individuals and institutions like businesses. This aspect is based on the view that the human rights of an individual can be trampled on not only by the state but also by powerful private interests and by individuals.

My question would be: which sections of the Constitution exactly are those that hinder transformation? In my view there are no such sections to be found in our Constitution. Those who argue that it might be time to amend the Constitution to effect social and economic transformation need to say which sections they find objectionable. We can then have a sensible debate about this question. In the absence of such clear proposals and arguments, the mutterings and whispers about the need to change the Constitution can be treated as ill-informed and self serving drivel by those who are seeking a scapegoat to avoid accountability for governance failures over the past 18 years.

My challenge to those who whisper and grumble about the need to change the Constitution is this: either put your cards on the table so that we can debate the issue or stop your self-serving campaign to discredit the Constitution. In the absence of concrete proposals one will have to assume that those who talk about changes to the Constitution are not interested in the well-being of South Africans, but rather in retaining power and access to tenders by scapegoating the Constitution.

A worrying attack on the Rule of Law

Mar 22nd, 2012

by Pierre De Vos.

78 comments

The decision of the Supreme Court of Appeal (SCA) on Tuesday in the Jacob Zuma case, must come as a political – but not yet as much of a legal – blow to President Jacob Zuma. Coming just as the unofficial succession debate is hotting up, this judgment will provide some ammunition to President Zuma’s opponents inside the ANC as it will remind party activist and ordinary voters alike that Zuma had a corruption case to answer, that his financial advisor was convicted of bribing him but that he never got his day in court to clear his name.

It is important to note that the decision does not deal with the merits of the case brought by the DA, as the NDPP and the President have been using stalling tactics to ensure that this case is not finalized before the ANC elective conference this December. The question of whether the decision of the National Director of Public Prosecutions (NDPP) to drop all corruption charges against Jacob Zuma was unlawful and should be set aside, will only be considered once an appeal of this judgment had been finalised by the Constitutional Court, and then only if the Constitutional Court confirms the SCA judgment.

Legally there is therefore still a long way to go. Even if the Constitutional Court confirms the SCA judgment, the merits of the case will then have to be ventilated in the High Court and will almost certainly be appealed to the SCA and then the Constitutional Court. But the Constitutional Court judgment might well be finalized before December, which would mean that if the SCA judgment is confirmed, the NDPP will have to hand over almost all relevant documents which were considered by the NDPP when he made the controversial decision to drop charges against Zuma to the court. The NDPP would not have to hand over the written submissions made to the NPA on behalf of Zuma as these documents are confidential – unless President Zuma waives his right to confidentiality in this regard.

As Navsa J explained, this will present difficult choices for the NDPP and for President Zuma, as they run the risk of ultimately losing the case if they fail to put sufficient documents before the court to legally justify the decision to drop the charges against the President. Such information, crucially, will have to include evidence of the tape recordings which ostensibly led to the dropping of charges as well as evidence about the way the tapes were obtained and by whom they were made. I quote from the judgment.

In the event of an order compelling production of the record, the office of the NDPP will be obliged to make available whatever was before Mr Mpshe when he made the decision to discontinue the prosecution. It will then fall to the reviewing court to assess its value in answering the questions posed in the review application. If the reduced record provides an incomplete picture it might well have the effect of the NDPP being at risk of not being able to justify the decision. This might be the result of Mr Zuma’s decision not to waive the confidentiality of the representations made by him. On the other hand, a reduced record might redound to the benefit of the NDPP and Mr Zuma.

Interestingly, the SCA decided not to deal with the question of whether a decision by the NPA to drop charges constituted administrative action under the Promotion of Administrative Justice Act (PAJA). Instead it found that the decision was reviewable under section 1(c) of the Constitution. This is where the curious statement of the ANC becomes relevant. In the statement following the judgment the ANC said, amongst others:

This matter, whilst it receives a deeper legal analysis, we however want to highlight the following:

The continued attempt by the DA to use the Courts to undermine and paralyse government.

The granting of blanket permission to political parties to can review any State decisions, using Courts.

How the DA will conduct a review of the case when it can`t have access to all the information which informed the NDPPs decision, to withdraw the charges.

Given these facts, it is clear that democracy can be undermined by simply approaching courts to reverse any decision arrived at by a qualified organ of State.

Leaving aside for the moment that the NPA is not part of government as suggested by the statement, but in fact an independent body that must make decisions on whether to charge and prosecute somebody “without fear, favour or prejudice, the statement shows a worrying lack of understanding of the Rule of Law. The Rule of Law requires, at a minimum, that public power must be exercised in accordance with the law and in a rational manner. The ANC statement suggests that when the government of the day (or in this case the NPA) acted illegally (in the sense that it ignored the law or was not authorised by law to act or where there was no rational relationship between the act and the reasons given for the act, then a political party should not be allowed to approach a court to challenge this flouting of the law and the Constitution as this would open the floodgates of litigation, would undermine all organs of state and would paralyse government.

As I see it, this seems like an extraordinary admission on the part of the ANC that the government it heads flouts the law and the Constitution so regularly that it would be completely paralysed if it is taken to court every time this happens. Why else would political parties flood the courts (spending millions of Rand they could have spent on election campaigns) unless they believe they can prove that the government has flouted the law. I am not sure the statement was meant to make this admission, but that is the necessary implication of it. The SCA dealt with the floodgates argument in the following (to my mind convincing) passage, starting with a quote from a High Court judgment:

“One of the principal objections often raised against the adoption of a more flexible approach to the problem of locus standi the floodgates will thereby be opened, giving rise to an uncontrollable torrent of litigation. It is well, however, to bear in mind a remark made by Mr Justice Kirby, President of the New South Wales Court of Appeal, in the course of an address at the Tenth Anniversary Conference of the Legal Resources Centre, namely that it may sometimes be necessary to open the floodgates in order to irrigate the arid ground below them. I am not persuaded by the argument that to afford locus standi to a body such as first applicant in circumstances such as these would be to open the floodgates to a torrent of frivolous or vexatious litigation against the State by cranks or busybodies. Neither am I persuaded, given the exorbitant costs of Supreme Court litigation, that should the law be so adapted cranks and busybodies would indeed flood the courts with vexatious or frivolous applications against the State. Should they be tempted to do so, I have no doubt that appropriate order of costs would soon inhibit their litigious ardour.”

Thirdly, as was pointed out by Budlender, ‘if the cases are well-founded, there can be no objection to a flood of people trying to achieve justice’.

What the ANC does not seem to understand is what is at stake here: the very essence of respect for the Rule of Law, a founding value of our Constitution contained in section 1(c) of the Constitution. That section proclaims the supremacy of the Constitution and the concomitant supremacy of the Rule of Law. In fulfilling the constitutional duty of testing the exercise of public power against the Constitution, courts are protecting the very essence of a constitutional democracy. When a political party approaches the court on a Rule of Law question, it is also helping to safeguard democracy. This principle is important, and is explained thus in the judgment:

Put simply, it means that each of the arms of government and every citizen, institution or other recognised legal entity, are all bound by and equal before the law. Put differently, it means that none of us is above the law. It is a concept that we, as a nation, must cherish, nurture and protect. We must be intent on ensuring that it is ingrained in the national psyche. It is our best guarantee against tyranny, now and in the future.

The ANC should have thanked the DA for spending pots of money to safeguard this cherished principle, money they could have spent to fight elections. This does not mean the DA will ultimately win their case. This will have to be decided afresh by the High Court. There are two aspects relating to the Rule of Law that might be relevant to this case, depending on the facts and depending on the evidence placed before a court.

First, although the judgment does not expressly say so, the NDPP would not have acted in accordance with the law and the Constitution, if he had dropped the charges on grounds not provided for in the NPA’s prosecuting policy to which the NPA is bound. What will make the NDPP’s case more difficult is that the acting NDPP, Mokothedi Mpshe, had failed to refer to the prosecuting policy at all when he provided reasons for the dropping of charges. The argument would therefore be that the charges were not dropped in accordance with this legally binding prosecution policy and was thus unlawful and an affront to the Rule of Law.

But there is a second aspect of the Rule of Law which might apply here. This is that when public power is exercised in terms of the Constitution or other legislation, this exercise of power had to be rational. As Navsa pointed out, “the rule of law also requires rationality as a prerequisite for the validity of the exercise of all public power”. This means that where somebody exercises public power, there must be a rational connection between the decision taken and the stated reasons or goal of that decision. Where reasons were cribbed from an overturned Hong Kong decision, say, the body making the decision will have some work to do to convince a court that the decision was rational.

However, it is important to note that the SCA did not endorse the view that the decision would have to be viewed on these two grounds. That, said Navsa, was a question for the high court – the court seized with the application for the review. Because arguments made by the NDPP about the extent to which the decision was reviewable were premature, it was for the High Court to determine the grounds of review. Criticising the now suspended head of the NDPP, Menzi Simelane, (which was not the first time Simelane has been criticised by our courts) on this point, the SCA remarked that it “is difficult to understand why it persisted in pursuing the appeal on this aspect. It does not reflect well on the NDPP.”

It might well be that eventually a court will decide that there are sufficient reasons to grant a permanent stay of prosecution in this case. But usually those decisions are taken by a judge, not by the NDPP. If the NDPP had acted irrationally or if it had not followed its own prosecution policy it would have flouted the law for political reasons and would have treated one person – the current President – as above the law. That is why it is important that the courts decide whether this decision was valid or not. Who knows, the evidence provided by the NDPP (and perhaps by President Zuma, if he decides to release his submissions to the NDPP) might satisfy the courts that this decision did not flout the Rule of Law.

If that were to be the case, the ANC would have again have to thank the DA for clearing this up and for helping our courts to reaffirm our confidence in our prosecuting authority. At the moment the NPA is not a body that instils much confidence with anybody, as there is some evidence that it has been politically captured by the Zuma faction inside the ANC over the past three years (and there is some evidence that it was politically captured by the Mbeki faction before that). I suspect the statement was made not because of a sudden attack of conscience or principle on the part of the ANC, but rather because the judgment provided a political opening for opponents of President Jacob Zuma and needed to be discredited.

In doing so, this statement represents a worrying attack on the Rule of Law.

On “bribery” scandals and intelligence services

Mar 12th, 2012

by Pierre De Vos.

38 comments

Around the time when former President Thabo Mbeki fired the director-general of National Intelligence Agency, Billy Masetlha, a visibly angry Mbeki accused some of his intelligence agents of “manufacturing intelligence” and lying to him merely to please him. “The president as head of state and head of government is the principal client of civilian intelligence,” Mbeki fumed. “Now you can imagine what would happen if the president is fed false information”.

Masetlha, in court papers, called Mbeki a liar in return but lost that battle when his dismissal was confirmed by the Constitutional Court.

Masetlha was blamed for authorising the unlawful surveillance of ANC executive and businessman Saki Macozoma under the pretext that he was involved with foreign intelligence; for being involved in the fabrication of the e-mails that purport to implicate senior government and ANC officials in a plot to side-line and incriminate embattled former deputy president Jacob Zuma; for being highly involved in party political squabbles by colluding with politicians in the divisive succession battle that, at the time, was polarising the ruling party between Mbeki and Zuma camps; and for acting unlawfully in bugging and intercepting individuals’ communications for the same purpose, which could have contributed to the fabrication of the e-mails.

Later it transpired that the intelligence services were bugging the phones of various former and current law enforcement agents, including Bulelani Ngcuka and Leonard McCarthy (we were told this was done legally but no hard proof was ever provided for this claim), which tapes were then mysteriously leaked to the current President and his lawyers and was then used to justify the politically inspired dropping of criminal charges against the President.

Around the same time the Review Commission on Intelligence, chaired by former Deputy Minister Joe Matthews, found that intelligence services regularly infringed on the right to privacy through intrusive methods that are unconstitutional. For example, it found that the NCC, which intercepts electronic signals such as cell phone conversations, is engaged in eavesdropping that is unconstitutional and unlawful. This is because the centre fails to comply with the requirements of the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002, which prohibits the interception of communication without judicial authorisation.

More recently news reports suggested that several high profile appointees in the intelligence services have resigned after clashes with the Minister of State Security, allegedly in part sparked by disagreements with the Minister about the unlawful misuse of the intelligence services to spy on political opponents of the ruling Jacob Zuma-factions within the governing ANC.

In the intelligence world, a world filled with subterfuge, lies and counter-lies, misinformation and secrets, it is never easy to know which side is talking the truth. But surely all these stories do create a picture of a highly politicised set of South African spy agencies who have, for the past several years, been involved in illegal activity – some of it relating to succession battles inside the ANC.

It is not as if they have not had access to lots of scandalous or suspicious facts (not fabrications) about the political opponents they were targeting for being on the “wrong” side of the ANC factional battles. Zuma was bribed by Schabir Shaik, there were some very ambitious and greedy people who were not happy with Mbeki’s leadership of the ANC, Zuma did have sex with the daughter of an old struggle friend and for undisclosed reasons he did visit Angola and Libya when his legal and political troubles started, former NPA boss Bulelani Ngcuka did chat to the head of the Scorpions about the timing of laying corruption charges against Zuma.

But the fact that the intelligence services were involved in collecting and then, in some cases, leaking this information must surely have had everything to do with them taking sides in the succession battles inside the ANC and absolutely nothing to do with protecting the security of the state.

These facts came back to me when I read the front page story in the Sunday Times yesterday, which reported that Deputy President Kgalema Motlanthe’s partner, Gugu Mtshali, has been implicated in soliciting a R104-million “bribe” to obtain government support for a South African company trying to clinch a R2-billion sanctions-busting deal with Iran. My interest was further piqued by the revelation in the story that the Sunday Times had access to recordings of confidential discussions when the “bribe” was solicited as well as of confidential documents (which was “understood to have also been obtained and analysed by US intelligence agencies”).

Who made these recordings? On whose instructions were they made? Were South African intelligence operates involved? How did the US intelligence obtain the material (or was this a red-herring provided by those who leaked the story)? Why has this information been leaked now, so soon after President Zuma has managed to dispense with his other opponent, Julius Malema? Is it a co-incidence that Kgalema Motlanthe is seen by many is the most credible opponent to face President Jacob Zuma at the party’s election later this year at Mangaung?

Of course if the intelligence services were in any way involved in a smear campaign against the Deputy President (and as always, smear campaigns work best when there is real dirt to smear somebody with), it would suggest that they are firmly in the Zuma camp and that they are prepared to abuse their power to secure another term for their “boss”.

If the Secrecy Bill had been in place it would have been impossible ever to find out whether the intelligence services were involved in this or not. This is because the Bill would prohibit anyone from leaking any information about their involvement (unless that person wanted to spend between 10 and 25 years in jail) in such a case. It would literally pull a veil of secrecy over the work done by the intelligence services and would make it impossible to know or reveal whether they are involved in anti-democratic smear campaigns against the political opponent of the President (or whomever is in control of the intelligence services).

It might be that this information came out now because one of the parties involved in the “bribe” is unhappy because the deal eventually fell flat. But attempting to bribe somebody is already a criminal offense, so it would be very stupid for such a person to leak information to a newspaper about his own criminal activity – unless he is pretty sure that he will be protected, either because he was involved as an agent of the intelligence service from the start as part of a sting operation, or because he knows that the various security services will protect him because this was cleared out with somebody high up in the Zuma camp.

Which just goes to show: there might well be good reasons (apart from taking a principled stand) why Kgalema Motlanthe and other leaders of the ANC are reportedly opposed to aspects of the Secrecy Bill. They might well be worried that when this Bill is passed, the dirty tricks by the intelligence services against anyone who opposes the dominant clique inside the party will be stepped up and that it will become impossible ever to reveal such dirty tricks without facing a very long prison sentence.

And once the out of control intelligence services are protected by the Secrecy Bill, one will only be able freely to take bribes and be corrupt without fear of prosecution or exposure, if one remained a loyal supporter of the political leader who happens to be in charge of the intelligence services. And what a nuisance that would be.

Thoughts on scapegoating and endemic corruption

Mar 7th, 2012

by Pierre De Vos.

70 comments

I am currently reading Michela Wrong’s brilliant but depressing, It’s Our Turn To Eat, the story of John Githongo, the Kenyan whistle-blower who took on the government of President Mwai Kibaki, whose members were turning out to be just as deeply mired in corruption as the outgoing government of former President Daniel arap Moi. The book shows what happens if the ruling political class of a country becomes enmeshed in endemic corruption and how difficult it is to turn back the tide of corruption once it has engulfed the ruling party and its leaders.

The members of the elite are usually bribed by members of local big business or by foreign businessmen and women, out to make a fast buck at the expense of the poor. The corrupt political elites make obscene amounts of money while the business elites rake in huge profits by providing shoddy products and services (from houses, to building leases, to medical supplies, to computer equipment) at hugely inflated prices – all because they had paid the requisite bribes to the ruling party or the relevant leaders of that party.

The voters (and especially the poorest voters who have no political connections and who rely on the government to provide it with basic services and opportunities to enhance their life chances) end up suffering while their leaders flaunt their money by buying Rolex watches, expensive cars and gaudy three story faux Tuscan Villas that resemble badly made children’s birthday cakes. (In one poignant scene Githongo relates how it took just three months before the newly installed Kibaki was spotted with a brand new Rolex watch, a sure sign that corruption has set in, according to him.)

It becomes almost impossible to stop this tide of corruption because of an absence of truly independent institutions with the requisite power to investigate and prosecute corruption at every level. If corruption goes right to the top, and if those at the top know that they are protected from criminal investigation or prosecution because they control the police, the intelligence services (who can be relied upon to launch smear campaigns against anyone who asks too many questions or can intimidate and blackmail those who wish to fight corruption) then there is no way that corruption will be stopped. When one is safe in the knowledge that loyal lieutenants are in charge of the police, the intelligence services and any other corruption busting unit, then one can “eat” at one’s hearts content.

Of course, all the “eating” leads to discontent from voters, so a governing party, deeply mired in corruption, will then have to find scapegoats to blame for its shoddy performance and for the lack of service delivery brought about by their corrupt “eating” of state resources. One can blame the last remaining members of the former colonial elite who might be quite rich and might easily be painted as the original perpetrators of the injustices still suffered by the impoverished and unconnected citizens (especially if those colonial types have shown no remorse for their involvement in past injustice and no readiness to help build a new society, instead whining and moaning from the side-lines with a metaphoric white bread clutched under each arm).

One may also blame the Constitution or the judges who interpret and apply the Constitution and argue that these untransformed judges and a Constitution imposed by the colonists are to blame for the slow pace of change. One can blame the opposition party who, instead of loyally trying to help solve problems, moan and complain in a most disgracefully disloyal and unpatriotic manner. Or one can try to redirect the anger of voters to unpopular groups in society: gays and lesbians; foreigners from elsewhere on the continent, Jews or Indians.

It is in this context that the abolition of the Scorpions, its replacement by The Hawks and the eventual decision by a majority of judges of the Constitutional Court declaring invalid the creation of The Hawks must be seen. Although the majority judgment is probably not the best argued judgment ever delivered by the Constitutional Court, it does attempt to grapple with the problem of how to fight corruption in a country where loyalty to the ANC might well mute most attempts by crime fighting bosses to engage in a fearless fight against corruption – even if the corruption leads to the highest level.

The Constitutional Court reminded us that only an independent body – one that is viewed as independent and is indeed independent – would stand a chance of fighting corruption.

Thus the majority judgment stated that the Constitution‘s requirement that a politician must be responsible for policing does not require that the anti-corruption unit must itself function under political oversight. This did not mean that such a body had to be insulated from political accountability. But it did mean that such a body had to be insulated from “a degree of management by political actors that threatens imminently to stifle the independent functioning and operations of the unit”.

But for the majority the gravest problem with the Hawks arises from the fact that the new entity‘s activities must be coordinated by Cabinet. The statute provides that a Ministerial Committee, which must include at least the Ministers for Police, Finance, Home Affairs, Intelligence and Justice may determine policy guidelines in respect of the functioning of the Hawks as well as for the selection of national priority offences. The Hawks is therefore not explicitly a corruption fighting unit. It is a unit that fights “priority crimes” and the politicians could decide what these “priority crimes” should be. This creates a risk of political and executive influence over the Hawks. As the majority pointed out:

It is true that the policy guidelines the Ministerial Committee may issue could be broad and thus harmless. But they might not be broad and harmless. Nothing in the statute requires that they be. Indeed, the power of the Ministerial Committee to determine guidelines appears to be untrammelled. The guidelines could, thus, specify categories of offences that it is not appropriate for the DPCI [the Hawks] to investigate — or, conceivably, categories of political office-bearers whom the DPCI is prohibited from investigating.

It therefore came as a surprise to read that the proposed amendments to the South African Police Service Act purporting to give effect to the Glenister case does not remove the power of the politicians over the “new” body. Instead, it seems to grant more power to the Minister of Police (and more worrying, to the Intelligence Services) to Appoint and fire the head of the “new” unit.

In terms of this draft law the Minister appoints the head of the Directorate, who can investigate corruption but “subject to policy guidelines issued by the Minister and approved by Parliament” This means that the politicians will in effect control the kind of cases that the new unit will be able to investigate.

The Minister may suspend and ultimately fire the Director on the basis of relatively objective criteria such as misconduct, ill-health and him no longer being a fit and proper person, but also for a completely vague reason that he or she can no longer fulfil the duties of the office efficiently. Incidentally this section is headed “loss of confidence in the Head of the Directorate” which gives the game away: if the Minister no longer has confidence that the Director will investigate the “right” types of corruption and not the “wrong” types of corruption, he will be done for.

The Intelligence Service is also given powers to grant or withdraw security clearance to anyone working at this “independent” body. If clearance is withdrawn that person will no longer be able tow ork for the independent corruption fighting body. This means that the politician who controls the intelligence services (in our case this will be the President) will be able to make sure that no investigator in this “independent” unit will make too much trouble for those who are too well-connected or too close to the President himself.

The members of the “new” “independent” Directorate also remain members of the South African Police Service with all the duties of a normal Police officer.

After a first look, these proposals do not seem to come near to meeting the requirements for an independent corruption fighting unit as set out by the majority in the Glenister case. Of course, the truth of the matter is that if the corruption goes right to the top and if the intelligence services are in on the “eating” then it will probably make very little difference what “independent” corruption fighting body is created as it will not be able to fight the endemic corruption engulfing the governing party and the state.

The sad fact is that we will know that we are at that point when the scapegoating of the Constitution or other easy targets like foreigners or gays and lesbians by the ruling party reaches such a crescendo that it cannot but be an excuse to hide behind to evade responsibility for its corrupt governance. I leave it up to readers of this Blog to decide for themselves whether we have reached or are about to reach that point in South Africa.

Another brilliant idea by our political youngsters

Mar 2nd, 2012

by Pierre De Vos.

123 comments

Criticism of members of the judiciary and the supposed “undemocratic” nature of our constitutional system with its supreme Constitution, enforced by an independent and impartial judiciary, is intensifying.

This is not surprising.

In a one-party dominant democracy in which access to state power also potentially provides undeserved access to immense financial wealth, acquired legally or illegally through the tender process or through high-end government jobs (with its accompanying perks), independent institutions (especially powerful independent institutions staffed by people of integrity) can easily be seen as a mortal threat to the acquisitive ambitions of the looting classes.

In order to maintain their political dominance and in order not to lose all legitimacy in the eyes of ordinary citizens, the looting classes need to draw a veil over their venal actions, by uttering platitudes about their abiding concern for the poor (on whose behalf they so enthusiastically sip champagne) and by expressing concerns about the slow pace of transformation and the “undemocratic” nature of those independent institutions that stand between them and the enjoyment of immense wealth and, perhaps as an afterthought, political power.

After all, no one wishes to spend 15 years in jail (or, in a best case scenario, a few years in a prison hospital), so it is imperative that the “right” person heads the National Prosecuting Authority and the “right” person heads the office of the Public Protector in order to immunise the looters from criminal prosecution for corruption. And of course, it can turn into a terrible bother when cheeky judges declare invalid an Act of Parliament or an appointment of the President, especially when these judgements threaten to destroy the carefully crafted legal mechanisms and structures put in place to protect the political leadership and those who are close enough to the leadership to benefit financially from an emerging kleptocratic state.

It is therefore tempting to dismiss all the talk of a review of the powers of the courts and the expressed yearning for a return to a system of parliamentary sovereignty in which Parliament would be able to make any law – no matter how drastic it infringes on the rights of ordinary voters and no matter how much unbridled power it grants to any of the politicians who “serve” in the Executive – as nothing more than the self-serving attempt at grabbing and consolidating unchecked power.

But this would be wrong. Given South Africa’s apartheid history in which the vast majority of citizens were disenfranchised and given the general distrust in legal processes and in members of the judiciary amongst many voters, arguments about the essential undemocratic nature of judicial review may well have some traction amongst ordinary voters who may not realise that the judiciary – for better or for worse – can (at the moment, at least) probably be trusted far more than can the politicians for whom we vote out of a sense of nostalgia for a better time (that might never have been) and out of a fear of a return to white domination and oppression.

So when the Young Communist League issues a statement demanding that judges become accountable to “the people”, one may take it slightly more seriously than one would normally have done. The statement makes for fun reading, so I quote a sizable part of it here:

We have recently called for the transformation of the judiciary as part of our National Lekgotla resolutions and have stated strongly that our judges are not perfect and that since they are human; they are bound to err, to be biased and influenced by various social and political ambiances… [W]e have found it to be our revolutionary duty to highlight that the members of the judiciary must in exercising their duty understand and respect the political authority of the legislature and the executive; as the powers vested in them are mandated and legitimised by members of society through a democratic process enshrined in our constitution.

We have called for a judiciary system that is accountable to the people and that we will campaign for amendments in the Constitution for the judiciary to be subjected to popular and democratic elections. If the judiciary, like the other branches of government serves the public, then the public must determine who should serve in such offices at all levels of the judiciary.

There are judgements that necessitate that the judiciary be transformed as they leave much to taste relating to transformation of our state and society; it cannot be normal that the courts serve as stumbling blocks of transformation and hide under the protection of the media. The judiciary is not immune from public scrutiny and its independence should never be elevated above the other branches
of government which are democratically elected by the people and are accountable to the people.

Unfortunately the young comrades did not provide any examples of specific judgments of, say, the Constitutional Court, which might have left “much to taste” and which might have acted as a stumbling block to transformation (however defined). Perhaps it has in mind the Mazibuko judgment (which I had previously criticised) where the Constitutional Court endorsed the “pay-as-you-go” water policies of the City of Johannesburg – despite the fact that section 27(1)(b) of the Constitution guarantees for everyone the right of access to water.

But that policy was implemented, as I said, by the democratically elected City Council of Johannesburg (run by the ANC, who is in alliance with the Communist Party) in line with the water policies of the democratically elected national government (a government in which Communist Party serves and whose perks – including long stays in the Mount Nelson and revolutionary free travel to Cuba – its leader seems to enjoy rather a lot). It is therefore unclear how the election of judges would make such judgments more “transformed”. The case nicely illustrates that the problem is not the judges at all, but rather the neo-liberal policies of the very government in which the Communists continue to serve and continue to benefit from.

The problem is that the voters have actually elected this government who has implemented these anti-transformation policies. One can never trust the bloody voters to do the right thing, ne? What is needed, so it seems, is to take a leaf out of the book of Berthold Brecht, and demand that the electorate be replaced. In his poem, The Solution, Brecht mocked an unnamed Communist regime’s pretensions to being democratic in the following manner: “After the uprising of the 17th June/ The Secretary of the Writers Union/ Had leaflets distributed in the Stalinallee/ Stating that the people/ Had forfeited the confidence of the government/ And could win it back only/ By redoubled efforts./ Would it not be easier/ In that case for the government/ To dissolve the people/ And elect another?”

Perhaps the young comrades also did not realise that in a constitutional state (in which the judiciary is required to interpret and enforce the Constitution and thus to check the power of the other branches of government to ensure that those branches do not abuse their power or infringe on the rights of citizens), elected judges would be superfluous. Why have another elected branch of government if that branch is going to do no more than confirm the policies (like the neo-liberal policies around the pay-as-you-go supply of water) devised by the other elected branches of the state.

But, to be fair, at first glance I did not realise how brilliant this plan might turn out to be. As the young comrades pointed out, the problem with judges is that “they are bound to err, to be biased and influenced by various social and political ambiances”.

Goodness, I for one would not want to have any case about the constitutionality of an act by the President heard by judges influenced by various social and political “ambiances”. That is why the election of judges might turn out to be a brilliant idea. After all, at present the other branches of government are staffed by elected officials and we all know that they never err, that they are never biased and that they would never think of being influenced by social or political “ambiences”. No one who has ever attended a debate in the National Assembly would be able to deny that these elected representatives are always impeccable objective and diligent and that their decisions are always correct and never influenced by the wrong kind of “ambiences”.

Who would not want to take their chances in court with an elected judge – as long as that elected judge demonstrates the high degree of objectivity, and the unfailing ability always to make the correct decision, for which our members of Parliament are so well known (give or take a hundred or so Travelgate crooks).

I only have one question: how are we going to protect these elected judges from exposure to social and political “ambiances”? Oh, of course, we only need to lock them up where they can be kept safe from the corrupting influences of the Sowetan and the Mail & Guardian and ETV News to keep them safe from such dangerous influences. Then we can wheel them out whenever a show trial, I mean a constitutional decision, demands it. That will leave plenty of time for the well-connected to loot the state and to spend their money on worthwhile projects – like champagne drinking appreciation classes, visits to drug mule girlfriends in foreign prisons and attending revolutionary parties organised by Kenny Kunene or the intellectual heirs of Brett Kebble.

PS: Apologies for the frivolous nature of this post. I just could not resist it.

A secret arms deal whitewash?

Feb 22nd, 2012

by Pierre De Vos.

22 comments

President Jacob Zuma’s announcement that he would institute a Commission of Inquiry into possible arms deal corruption, was widely lauded. Finally, most commentators said, there was a real chance that a full Judicial Commission of Inquiry would get to the bottom of the arms deal scandal. The Commission would finally allow South Africans to get to know the extent of the corruption in the arms deal as well as the names of those who profited illegally from this deal.

However, the recent promulgation (in terms of the apartheid-era Commissions Act of 1947) of the regulations that will regulate this Inquiry suggests that the Presidency is anxious to control the information submitted to the Commission and to prevent the process from leading to the revelation of any embarrassing or shocking details that might turn out to be damaging to him personally or to those he might wish to protect (whether they have “donated” money to his cause in the past or not).

In fact, a quick perusal of the Commission’s regulations leaves one with the uneasy feeling that the aim of instituting the Commission of Inquiry might well all along have been to help with the suppression of any possible further damaging revelations about the arms deal. By drawing critics of the arms deal into the Commission process, these critics might well be forced to stop revealing any damaging information about arms deal corruption to the wider public.

Thus Regulation 10 states that “whenever the Commission is satisfied … that the Commission’s inquiry may adversely affect any existing, instituted or pending legal proceedings or any inquiry instituted in terms of any law, evidence which is relevant to such legal proceedings or inquiry shall be dealt with by the Commission in such a manner as not to adversely affect such legal proceedings or inquiry”.

If this regulation is strictly interpreted by the chairperson of the Commission (and not in accordance with the principles of openness, accountability and transparency contained in the founding provisions of the Constitution), the Commission may well order that all evidence about arms deal corruption which may relate to any existing or even pending criminal investigation be kept secret. This would mean that any documents before the Commission that may or may not be used in future arms deal corruption cases may suddenly become secret documents which may not be revealed by anyone.

Moreover, section 12 of the regulations declares it to be a criminal offence for any person to reveal any ”information which may have come to his or her knowledge in connection with the inquiry” (including any records in possession of the Commission, including notes, record or transcription of the proceedings) and also prohibits a person from leaking any such documents to anyone. This means that leaks would possible lead to criminal conviction for anyone found guilty of leaking documents or other information relating to the Commission’s work.

Section 14 and 15 drives home the message that the Commission would have broad powers to keep almost any aspect of the Commission’s work secret. It criminalises the following acts by both whistle blowers and by members of the media:

14. No person shall without the written permission of the Chairperson: (a) disseminate any document submitted to the Commission by any person in connection with the inquiry or publish the contents or any portion of the contents of such document; or (b) peruse any document, including any statement, which is destined to be submitted to the Chairperson or intercept such document while it is being taken or forwarded to the Chairperson.

15. No person shall, except in so far as shall be necessary in the execution of the terms of reference of the Commission, publish or furnish any other person with the report or any interim report of the Commission or a copy or a part thereof or information regarding the consideration of evidence by the Commission, unless the President has authorised the publication.

These provisions are clearly over-broad and are almost certainly unconstitutional. It would potentially prohibit anyone who submits documents to the Commission from sharing these documents with the media. If, say, Terry Crawford-Brown or Andrew Feinstein prepares a document and submits it to the Commission it would become a criminal offence for them to show this document to anyone — including to members of the media — unless given permission to do so. And if the media receives any information about the “consideration of evidence” by the Commission and publishes a report about this, the reporter and editor will be committing a criminal offence.

Interestingly, these provisions were cut and pasted almost word for word from the regulations which were promulgated to regulate the work of the Donen Commission of Inquiry into the food for oil scandal. That report was completed in September 2006 but was never released until last year, after the Cape Argus and Independent Newspapers challenged President Jacob Zuma in court to do so. Presumably the President released that report because his lawyers informed him that in terms of the Protection of Access to Information Act (PAIA) he would sooner or later be required to do so.

It is not clear to what extent the Commission would legally be able to refuse anyone access to the documents before it in terms of these regulations. After all, in as far as these regulations clash with the provisions of the Promotion of Access of Information Act (PAIA), the regulations quoted above will be of no force and effect. PAIA would clearly apply to the arms deal Commission as the Commission is a public body exercising a public function in terms of the Commissions Act. Section 5 of PAIA states that “this Act applies to the exclusion of any provision of other legislation that… prohibits or restricts the disclosure of a record of a public body or private body”.

However, in the chairperson of the Commission has a special love for secrecy and wishes to do his or her work in the dark, far away from the prying eyes of the public who might be shocked by the allegations of fraud and corruption involving high placed ANC leaders and other politically connected businessmen and women, he might well rely on several provisions in Chapter 4 of PAIA, read with the Commission’s regulations, to do so.

Most pertinently, section 41 of PAIA states that documents could be kept secret if it could reasonably be expected to cause prejudice to:(i) the defence of the Republic: (ii) the security of the Republic; or (iii) the international relations of the Republic. It may also be opt secret if it would reveal information: (i) supplied in confidence by or on behalf of another state or an international organisation; (ii) supplied by or on behalf of the Republic to another state or an international organisation in terms of an arrangement or international agreement.

Such documents would include any documents relating to military tactics or strategy or military exercises or operations undertaken in preparation of hostilities or in connection with the detection, prevention, suppression or curtailment of subversive or hostile activities; relating to the quantity, characteristics, capabilities, vulnerabilities or deployment of: (i) weapons or any other equipment used for the detection, prevention, suppression or curtailment of subversive or hostile activities; or (ii) anything being designed, developed, produced or considered for use as weapons or such other equipment. Records may also be refused on grounds of so called national security concerns.

Whether the arms deal will be a whitewash or whether it will become a credible, legitimate, open and transparent process in which a serious effort will be made to come to grips with the arms deal scandal without trying to hide anything from the public, will depend largely on the Chairperson of the Commission. However, if the Chairperson of the Commission fails to fulfil his task in conformity with the constitutional values or in a slavish executive-minded manner, one would be well advised not to call him out on this.

You see, section 13 of the arms deal Commission of Inquiry Regulations deems it a criminal offence for anyone to “insult, disparage or belittle the Chairperson or any member of the Commission or prejudice the inquiry or proceedings or findings of the Commission”. Dear readers, it might well be that the Chairperson of this Commission will fulfil this serious and important task diligently and in an open and transparent manner — as required by the Constitution and the law. If that is the case, I will cheer him on. If not, well, maybe some readers will volunteer to contribute to my legal fees if I am then criminally charged for disparaging or belittling the Chairperson of this Inquiry.

An unambiguous attack on constitutional democracy

Feb 14th, 2012

by Pierre De Vos.

117 comments

In 1934 the Appeal Court in the case of Sachs v Minister of Justice; Diamond v Minister of Justice had to consider the validity of a banning order issued by the Minister of Police. Banning orders, which prohibited a person from being present in specific areas because the Minister was satisfied that the person “is in the area promoting feelings of hostility between the European inhabitants of the Union on the one hand and any other section of the inhabitants of the Union on the other hand”, was a powerful tool used by the authorities to restrict the political activities of those opposed to the policies of the government. In rejecting the challenge to the banning order, Stratford ACJ made the following statement about the nature of parliamentary sovereignty in South Africa:

[O]nce we are satisfied on a construction of the Act, that it gives to the Minister an unfettered discretion, it is no function of a Court of law to curtail its scope in the least degree, indeed it would be quite improper to do so. The above observation is, perhaps, so trite that it needs no statement, yet in cases before the Courts when the exercise of a statutory discretion is challenged, arguments are sometimes advanced which do seem to me to ignore the plain principle that Parliament may make any encroachment it chooses upon the life, liberty or property of any individual subject to its away, and that it is the function of courts of law to enforce its will.

Regardless of the spin later put on his words by presidential spin doctors, President Jacob Zuma’s latest comments about the judiciary reflect a yearning to return to this system of Parliamentary sovereignty. President Zuma said that there was a need to review the powers of the Constitutional Court because judges were not “special people”, but fallible human beings. As proof of this statement he pointed to the phenomenon of split judgments, saying:

How could you say that (the) judgment is absolutely correct when the judges themselves have different views about it? We don’t want to review the Constitutional Court, we want to review its powers. It is after experience that some of the decisions are not decisions that every other judge in the Constitutional Court agrees with… There are dissenting judgments. You will find that the dissenting one has more logic than the one that enjoyed the majority. What do you do in that case? That’s what has made the issue to become (one) of concern.

Judges were “influenced by what’s happening and who are influenced by you guys (the media)”, Zuma said. If the decisions of Parliament and the executive could be challenged, there was nothing wrong in questioning the decisions of the judiciary, he said.

Of course, President Zuma is correct that judges are fallible human beings and that different judges might view a legal question differently. (What he did not mention is that judges are usually slightly more intelligent than the average politician and usually far more honest. After all, as far as I know, no South African judge has ever faced bribery and corruption charges in court; no person has ever been convicted in South Africa for bribing a judge; and no judge has had to resign because he went to visit his drug dealing girlfriend in a Swiss jail on state expense.)

Reasonable lawyers often differ about what a legal provision or a judicial precedent might mean in a particular case. That is why lawyers take cases to court: most of them believe that they have some chance of winning their case or of getting a better deal for their client (even if they do lose the case). If they thought they had no chance of swaying the judge this way or that, they would not bother to submit papers and present oral arguments to court. They only believe that because reasonable people could differ on the correct interpretation and application of the facts or the law.

There is therefore nothing strange about different judges in the same court sometimes disagreeing with one another and writing a majority and minority opinion. Unlike some politicians, South African judges usually do not disagree with one another because they took bribes from different parties before the court or because they have another direct interest in the outcome of a matter. They do so because there is a genuine intellectual disagreement between the judges about the meaning of a legal rule or principle.

When this happens judges write different judgments in which they motivate why they took the view they took and these judgments can then be analysed and critiqued, thus keeping judges accountable for their decisions (unlike politicians, who are not held accountable for each decision they take, but are only held indirectly accountable by their party who might or might not gain more votes in the next election).

There is therefore also nothing wrong with criticising judicial decisions. Even sharp criticism of judicial decisions that engages with the legal arguments developed in a judgement must be welcomed, as such criticism and analysis ensure some form of accountability for the judiciary. (Of course, if a politician whose friend was convicted of bribing that politician argues that a specific majority decision handed down by the Constitutional Court is wrong, one might well take that opinion of the politician with more than a pinch of salt.)

But President Zuma’s claim that the powers of the Constitutional Court need to be reviewed because those judges sometimes hand down split decisions makes no sense whatsoever. Either the Constitutional Court has the power to interpret and enforce the provisions of the Constitution, or this power is taken away via a constitutional amendment. It is not possible to tinker with the powers of judicial review currently enjoyed by the Constitutional Court. Where a majority of judges, whose independence is guaranteed, are not allowed to review and set aside acts of Parliament or the executive, one does not have a constitutional democracy under the Rule of Law but a different system in which people enjoy rights by the grace of the majority party.

One can, of course, abolish the powers of the Constitutional Court to declare invalid legislation or acts of the executive, returning to a system of Parliamentary sovereignty which was in place during the apartheid years when the Sachs case was decided. This would mean that we would no longer live in a country in which the human rights of everyone is protected by the courts and President Zuma would then be free to act in accordance with even the most draconian legislation which would not be revieweable by the courts.

If one favoured a system, say, in which individuals could legally be arrested and detained without bringing them to trail, in which political opponents could be silenced with legally imposed “banning orders”, in which women or any unfavoured group (say, somebody who speaks Xhosa instead of Zulu or is disabled instead of able bodied) could legally be discriminated against by the government, then this system would obviously look particularly attractive.

But that is not the system on which the ANC had agreed years before the current Constitution was drafted. Recall that in 1989 in the Harare Declaration the ANC committed itself to the kind of system of judicial review that is currently in place in South Africa, affirming that in a democratic South Africa:

All shall enjoy universally recognised human rights, freedoms and civil liberties, protected under an entrenched Bill of Rights. South Africa shall have a new legal system which shall guarantee equality of all before the law. South Africa shall have an independent and non-racial judiciary.

There is no context which can explain away the words of the President about a need to review the powers of the Constitutional Court. Poor Mac Maharaj issued a statement in which he pretended that the President’s words could be interpreted to mean something completely different from what he actually said. But the statement about a need for a review of the Constitutional Court’s powers leaves no room for ambiguity or a different interpretation based on context. There is therefore no way to interpret President Zuma’s statement other than as an attack on the principles underlying a constitutional democracy.

In fact Maharaj’s statement added fuel to the fire by suggesting that the executive should be able to influence the judges. He stated that President Zuma’s statement that the powers of the Constitutional Court should be reviewed:

must therefore not be viewed as an attempt by government to undermine the independence of the judiciary and the rule of law which are entrenched in our Constitution. This is an exercise that falls within the mandate of the Executive of formulating and reviewing policies of government which seek to advance the transformative character of our Constitution. It is anticipated that the outcome of this exercise will not only assist in developing value-based solutions to address the legacy of the past but will contribute in shaping our evolving constitutional jurisprudence.

This statement does not only fail to explain away the shocking attack of the President on our constitutional democracy, but signals that the Presidency has a rather strange understanding of the principle of the separation of powers and the independence of the judiciary. How the study by the executive of the judgments of the Constitutional Court could “contribute to the shaping of our evolving constitutional jurisprudence” without an attempt by the executive to intimidate the judges is unclear.

Judges have a constitutional duty to be impartial and independent. They cannot be swayed or influenced by the views of the executive who might wish to shape their jurisprudence. So if the executive aims to “shape” the decisions of the Constitutional Court, then it is aiming to interfere with the independence of the judiciary and hence to undermine one of the pillars of the constitutional democracy. This means that even the spin by the Presidency trying to excuse the inexcusable, displays a shocking lack of respect for our system of separation of powers and checks and balances.

One cannot interfere – legally, at least – with the supremacy of the Constitution and the independence of the judiciary without changing various provisions of the Constitution, including the founding values in section 1 which states, inter alia, that the “Republic of South Africa is one, sovereign, democratic state founded on the values of … supremacy of the constitution and the rule of law.” Such an amendment would require a 75% majority in the National Assembly, something the ANC would not be able to muster – even if they managed to bribe a few small parties to support its anti-constitutional scheme.

This suggests that (in the absence of a coup d’état) President Zuma’s wish that the powers of the Constitutional Court should be reviewed and amended is never going to fly. He will just have to take his chances in the courts (as he has done on many previous occasions, often with great success) when various cases that could affect his corruption and bribery prosecution comes before the judiciary. Meanwhile, he should really think before he talks.

Can the government intervene in Limpopo?

Dec 6th, 2011

by Pierre De Vos.

41 comments

The statement of the national cabinet issued yesterday announcing that the national executive is intervening in three Provinces because of concerns “about the state of financial management and governance” in those provinces, once again highlights the nature of the quasi-federal system established by our Constitution. It raises questions about the nature of the relationship between provincial governments and the national government.

More cynical observers — including the ANC Youth League - have also asked questions about the timing and the motivation of this announcement and might wonder whether it has anything to do with President Jacob Zuma’s fight back campaign to neutralise his political opponents inside the ANC. Can it be a co-incidence that the most drastic kind of intervention allowed by the Constitution was only launched in the home province of Julius Malema?

Who knows?

Cabinet announced that it had “received reports on trends in provincial under spending, overspending and challenges with supply chain management” in Gauteng, Limpopo Province and the Free State. It has therefore decided, amongst other things, that “Limpopo Provincial Government be placed under a section 100 (1)(b) intervention of the Constitution” and that members of the National Executive will assume responsibility for the Provincial Treasury, Education, Transport & Roads, Health and Public Works of Limpopo Province.

Section 100(1)(b) of the Constitution seemingly allows for this move as it states that “[w]hen a province cannot or does not fulfil an executive obligation in terms of legislation or the Constitution, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation,… [by] assuming responsibility for the relevant obligation in that province to the extent necessary to maintain essential national standards or meet established minimum standards for the rendering of a service; maintain economic unity; maintain national security; or prevent that province from taking unreasonable action that is prejudicial to the interests of another province or to the country as a whole”.

The Provincial executive of Limpopo has a constitutional duty in terms of section 125(2) of the Constitution to implement all national legislation within the functional areas listed in Schedule 4 or 5 and to co-ordinate the functions of the provincial administration and its departments. These functions include those now taken over by the national executive. One assumes the cabinet believes that the Limpopo Province is “unable to fulfil its obligations” to run the various functions now taken over by the national executive as it is allegedly experiencing a cash crisis. According to the cabinet statement:

They used up their R757,3 million overdraft facility with the Corporation for Public Deposits (CPD). The CPD is the subsidiary of the South African Reserve Bank which facilitates banking arrangements that national, provincial governments and state owned entities have with the Reserve Bank within which they inter-lend to each other with the approval of the National Treasury. Limpopo had requested that their facility should be increased by R1 billion (to R1,7 billion)from the National Treasury for the province to pay salaries and wages on the 23 November 2011. This request was declined but alternative arrangements were made for an early transfer (2 days before the actual date of transfer) of their equitable share in order to be able to pay salaries.

If this is correct, the provisions of section 100(1)(b) quoted above (in terms of which this action was taken) is probably suitably broad to ensure that this intervention is constitutionally allowed. After all, if a Province runs out of cash and cannot pay the salary of its employees, the intervention might be said to be necessary to ensure that the province provides a minimum standard for rendering a service.

This section represents a potentially radical incursion on the autonomy of a Province and should be read narrowly so as not to empower the national government to interfere in the workings of a province merely for political reasons. This is so because an expansive reading would be in conflict with the larger scheme of the Constitution which creates provincial governments with both exclusive powers and powers it has to exercise in concurrence with the national government. Nevertheless, even on a constricted reading, the requirements of section 100(2) are probably met.

The Constitution does contain a safeguard to protect the abuse of this section for political purposes. However, this safeguard will work best where the balance of powers in the various provinces are more evenly spread. The section states that when the national executive intervenes in a province in terms of subsection (1)(b) a “notice of the intervention must be tabled in the National Council of Provinces (NCOP) within 14 days of its first sitting after the intervention began; the intervention must end if the Council disapproves the intervention within 180 days after the intervention began or by the end of that period has not approved the intervention; and the Council must review the intervention regularly and make any appropriate recommendations to the national executive”.

The NCOP consists of ten person delegations from each province and densely populated provinces have exactly the same say in the NCOP as thinly populated provinces. In a scenario where a majority of the smaller provinces are governed by opposition parties, this section would ensure that the national government would not abuse the section for political purposes. As the ANC controls 8 of the 9 provinces and hence 8 of the 9 NCOP delegations, one assumes a vote to ratify this decision of the cabinet is a mere formality.

Interestingly, the cabinet also announced less invasive measures which will apply to the Free State Province, where (with the agreement of the Premier), directives will be issued in line with section 100 (1)(a) by the relevant members of the National Executive for the following departments: Provincial treasury; and Police/Roads & Transport. This section states that [w]hen a province cannot or does not fulfil an executive obligation in terms of legislation or the Constitution, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including issuing a directive to the provincial executive, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations”.

This step would ordinarily precede the steps taken in terms of section 100(1)(b) and the fact that no such preliminary action was taken in the Limpopo case will add fuel to the fire of the speculations that while some kind of intervention in Limpopo was practically required, the extent of the intervention reeks of political meddling. I have absolutely no idea if this is the case or not. It might well be that the situation in Limpopo is so dire that the cabinet had no choice but to intervene in the drastic manner that it did.

But given the political ramifications of this interventions, the more suspicious among us will invariably ask questions about the motivation behind this radical interference in the autonomy of a province.

It is necessary to highlight one last issue raised by this intervention. It reminds us that where corruption thrives, efficient governance can be dramatically derailed and can lead to disaster for the government and for the people it is supposed to serve. It might be trite to say, but it is important to remind ourselves that corruption and maladministration may have serious consequences for service delivery and will eventually directly affect the lives of the poor. Where a provincial government dishes out tenders to well-connected politicians like Julius Malema (or the friends of Julius Malema) and where such tenders are inflated, the cash eventually runs out — with disastrous consequences for the poor.

If it is true that the Limpopo Provincial government has been milked dry by Mr Malema and his cronies – as alleged by various newspapers – then the intervention comes as a sort of acknowledgment of the deleterious effects of corruption. Somebody eventually has to pay for the cars, the houses and the expensive watches. The people who pay are seldom the well-connected and the rich. More often than not they are the very poor whose interests are supposedly being advanced by those who have abused the system.

corruption

Selling horse droppings as figs

Another unconstitutional law on the horizon?

On changing the Constitution

A worrying attack on the Rule of Law

On “bribery” scandals and intelligence services

Thoughts on scapegoating and endemic corruption

Another brilliant idea by our political youngsters

A secret arms deal whitewash?

An unambiguous attack on constitutional democracy

Can the government intervene in Limpopo?

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