Constitutional Hill

Criticism of Courts

The silence of Justice Mogoeng

Mar 16th, 2011
by Pierre De Vos.
49 comments

Does a judge have a duty to provide reasons when he or she expressly disagrees with aspects of a colleagues judgement when he or she sits on the same bench as that colleague? Does it matter when the disagreement is on a matter of legal principle that seems settled law? If a judge of the Constitutional Court indicates that he or she disagrees with certain views expressed by one of his or her colleagues, should that judge not provide reasons for this disagreement in the name of transparency and in order to foster a culture of justification?

After all, as the late Prof Etienne Mureinik argued in a brilliant and seminal article in 1994, our new constitutional order provides us with a bridge from a culture of authority to a culture of justification. Do judges of the Constitutional Court not have a special responsibility to justify their decisions so that legal academics, other members of the legal community and the public at large can analyse those reasons and — if appropriate — can critique the judgment of an individual judge and the reasons advanced for that judgment by the individual judge?

When we analyse and critique individual judgments handed down by judges of any court, this serves as an appropriate (if limited) mechanism to hold the judges of the court accountable. This does not mean that judges must or do change their views every time they are criticised by the public or by legal academics. But such critiques generate a dialogue (in which judges always have the final say) and hopefully this improves the jurisprudence of our courts.

In our system, not all decisions made by a judge requires the furnishing of reasons. For example, where the Supreme Court of Appeal declines to hear an appeal they are not required to furnish reasons for their decision in every case. But when a judge of the highest court in the land disagrees with a colleague on what seems to be an issue of trite law, but he or she does not furnish reasons for that disagreement, questions will inevitably be asked about the real motivation behind the disagreement and for the failure to provide a reasoned judgment which sets out the justification for the disagreement.

In the case of Le Roux and Others v Dey, the Constitutional Court judgment, which sharply divided between a minority judgment written by Yacoob J and two majority decisions (one written by Brand AJ and one written by Cameron and Froneman), the judgment is preceded by a summary of the various positions taken by the various judges in the case. What caught my eye in this summary was the short sentence in paragraph 9 of this summary which states that all members of the Court endorsed the exposition in the judgment of Froneman J and Cameron J about apology “and, save for Mogoeng J, regarding expression about constitutionally protected groups (paras 181 to 189)”.

Paragraph 181 of the Froneman and Cameron judgment states that:

It is correct, as counsel for the applicants emphasised, that Dr Dey found it objectionable that the image associates him with two men portrayed as engaging in same-sex conduct.  Counsel also emphasised that the Constitution discountenances anti-gay sentiments.  He suggested that Dr Dey’s claim should for this reason fail.

Paragraph 189 states that:

The image showed Dr Dey’s face on a naked body in a sexually compromising position, being photographed.  The affront this caused to his feelings is in our view actionable.  The wounded feelings relate to constitutionally sanctioned and protected personal choices, and are legally compensable.

My first impression of these two paragraphs is that anyone who embraces the constitutional injunction that one has to respect the equal dignity of all — regardless of the sexual orientation of the person — would have no problem with the content of these two paragraphs. I might be wrong, but these paragraphs do not seem particularly controversial — given the jurisprudence of the Constitutional Court on sexual orientation discrimination.

Our Constitutional Court has often suggested that the Constitution “discountenances anti-gay sentiment”. The Constitutional Court has often found that one’s personal choices about engaging in same-sex sexual activity is protected by our Constitution. At first glance, the brief throwaway line in the court’s summary of the judgment quoted above therefore suggests that Justice Mogoeng does not agree with the long line of precedent on sexual orientation discrimination.

This perception may be wrong. I might have misinterpreted the meaning of the paragraphs quoted above. Besides, there may be very good reasons why Justice Mogoeng does not agree with the statement that our Constitution does not favour anti-gay sentiment. It may also be that Justice Mogoeng disagrees with the statement that choices about engaging in same-sex sexual behaviour are protected by the Constitution not because he does not respect the human dignity of gay men and lesbians but because of some other — as yet unstated — reason.

The problem is that Justice Mogoeng did not provide us with such reasons. There is no separate judgment provided to explain the position of Justice Mogoeng. It is therefore impossible to analyse or critique his stance or to say what motivated it. No one can say whether he or she ought to agree or disagree with Justice Mogoeng or with the other judges of the Constitutional Court.

Justice Mogoeng has in effect managed to avoid scrutiny of his views by the legal community and by the public. While this means he has avoided having to face the kind of accountability that judges are normally subjected to in a constitutional democracy, there might be good reasons for this. But as these reasons were not provided, it is not possible to have an informed and reasoned discussion about it.

In the absence of reasons one may well wonder what Justice Mogoeng’s views are about the rights of gay men and lesbians protected by our Constitution. One may wonder whether he believes that the prohibition on unfair discrimination on the basis of sexual orientation enshrined in our Constitution should be ignored or subverted by the judges on the Constitutional Court and whether he believes that he is bound by the precedent set by the Court in a long line of previous cases. But as no reasons were given, one would not be able to engage in a reasoned and responsible discussion on this disagreement.

The fact is that we simply do not know why Justice Mogoeng declined to agree with the paragraphs quoted above. By not providing us with reasons for his disagreement, Justice Mogoeng has left himself open to criticism — not for expressing his views in a reasoned and careful judgment, but for not providing any reasons at all.

The principles of openness, transparency and accountability which judges of the highest court should be particularly attuned to, has not been served by this silence. Justice Mogoeng has, in my opinion, therefore unwisely failed to embody the culture of justification demanded by our Constitution.

If Justice Mogoeng holds controversial views on the rights of gay men and lesbians (rights which are explicitly enshrined in our Constitution) it would have been better for everyone concerned if he had expressed these views in a reasoned judgment. Some of us might have unpacked and criticised these reasons and might have had harsh words about his views, but at least we would then have engaged in a reasoned dialogue about the values and principles of one of the judges on our highest court.

In the absence of reasons, no such dialogue is possible. In my opinion the South African public is not served by such a silence. Neither is the Constitutional Court or the judge who has declined to provide reasons for his disagreement with colleagues. It is surely always better to debate an issue on the basis of a reasoned set of arguments, than to leave things unclear and vague. Such a silence creates unnecessary suspicion and invites uninformed speculation about the motives and views of a judge.

Further reflections on academic criticism of courts

Feb 6th, 2011
by Pierre De Vos.
65 comments

Adv. Jeremy Gaunlett’s criticism of legal academics and of the Constitutional Court has elicited much discussion and debate. As I said before, such debates should be welcomed. In South Africa people in positions of influence and power (even academics with very limited influence and rather limited — or no — power) tend to be far too precious about criticism levelled against them.

It is not often that a lowly academic like myself get the opportunity to engage with the “ideas” of a person who is often said to be one of the most eminent and accomplished lawyers in South Africa. In my previous post, which was jotted down between sessions of a symposium which I was attending in Durban, I only touched on some of the problems with Gauntlett’s speech. I thought it might therefore be appropriate to re-read his speech and to engage more fully with it.

What forcefully struck me on a second reading of Gauntlet’s speech, is the rather cavalier manner in which the talk engages with the purported facts on which some of his criticism is based. One would have thought that a highly regarded advocate would get his facts straight and would not make misrepresentations on which he then based some of his criticism. Such tardiness suggests — rather ironically — that when Gauntlett stated that “it is time to end an approach which is insufficiently rigorous”, he was referring just as much to his own speech delivered to law teachers, than to the output of judges and legal academics.

Let me explain.

Gauntlett suggests that, apart from three academics he names, there has been no “probing critique” in the last five years of the work of the Constitutional Court. This is of course an absurd claim. Anyone who reads the various law journals will be familiar with the work of many academics who regularly criticise the judgments of the Constitutional Court on a wide variety of issues.

Admittedly, some of this academic work have a theoretical dimension and might be difficult to follow or to understand if one is not well read in legal theory or the social sciences. Some of it can also seem a bit abstract and can be pretty difficult to digest on a first reading. But this does not mean that the Constitutional Court is not regularly criticised — sometimes in rather intemperate language.

The highly critical articles about the Court’s sometimes shockingly inappropriate judgments dealing with gender issues comes to mind (I have counted 15 articles highly critical of the Volks v Robinson judgment, for example.) The large body of work — including book length manuscripts — which have criticised the Constitutional Court’s timid approach to social and economic rights could not have slipped anyone’s notice who have actually regularly read only one or two of the more prominent law journals. In the labour law field there has been serious criticism by several academics of the Constitutional Court’s eccentric reasoning in a line of cases dealing with jurisdictional issues.

This statement of Gauntlett therefore seems utterly bizarre and completely unrelated to reality — unless one assumes that what he meant was that academics did not criticise the Constitutional Court judgments in the way that he agreed with and in the ideological register with which he agreed. (This is a common problem among some  highly acclaimed practising lawyers who are perhaps a bit more enamoured by their own voices than is healthy and hence talk too much and read too  little in the field which they profess to be experts in.)

A second example of Gauntlett’s rather adventurous engagement with the truth can be found in the following passage:

the contrast for example between the House of Lords where the 12 Lords of Appeal in Ordinary on the last figures I saw 7 had on average 14 years of judicial experience before being appointed to that court; in Canada, 12 years; while in South Africa, fully six of the 11 members of the Constitutional Court had no judicial experience before joining the court with the remaining five averaging four years judicial experience each. Can it be said that certain of last year’s appointments reflect a continuing disregard for discernible judicial excellence?

This statement is, to put it kindly, grossly inaccurate. If he is referring to judges appointed in 1994, he should surely know that Ackermann (10 years service), Goldstone (11 years service), Madala (2 years service), Mahomed (2 years service), Didcott (17 years service) and Kriegler (9 years service) had an average of 8.5 years experience as judges before joining that court. They joined Chaskalson, Langa, Mokgoro, O’Regan en Sachs, who had not served as judges before their appointment to the Constitutional Court.

But maybe he was referring to recent appointments. If he is referring to recent appointments, Gauntlett is shockingly ill-informed. Cameron, Froneman, Jafta, Khampepe and Mogoeng respectively had 15, 17, 8, 8 and 8 years judicial experience before joining the Constitutional Court. This is an average of about 10 years experience each. In other words, the learned advocate has based some of his argument on false statistics.

Gauntlett also complains about the output of the Constitutional Court. He points out that in 2008, the Constitutional Court heard only 22 cases while the Supreme Court of Canada heard 82, the House of Lords 102 appeals in 2005 and 94 in 2006.

Well, this is a curious criticism. It can only serve as valid criticism if one assumes that the Constitutional Court judges should and could have heard more cases but did not do so because they were too lazy or slothful to hear as many cases as the their counterparts in Canada or the venerable House of Lords in the “mother country”. This could be a potent criticism of our Constitutional Court, but then one would have to ask how many applications for leave to appeal were heard by it and one would have to assess whether any of these applications for leave to appeal were turned down despite having a reasonable prospect of being successful.

In fact last year the Constitutional Court dealt with almost 120 applications for leave to appeal and eventually heard 30 of those appeals because it found that it was in the interest of justice to do so and — rather importantly — there was at least some prospect that the appeal would be successful. In the absence of an analysis of whether any of the cases not heard had any prospect of being successful, the criticism by Gauntlett makes no sense. At best it is lazy. At worst it may be dishonest.

Goodness, it is important to subject the work of all judges to serious and sustained criticism. This criticism may be of a technical nature (the kind of criticism that one can find in every edition of almost every law journal published in South Africa). The criticism may also be more relevant for the health and well-being of our constitutional democracy by focusing on the effects of individual judgments on the lives of ordinary people.

My view is that we have far too much of the former kind of criticism and not enough of the latter. Lawyers and legal academics steeped in formalistic legal discourse, often deal with the law as if ordinary people are not affected by the judgments of our Courts and as if doctrinal purity is far more important than “irrelevant” questions such as whether a judgment would cause ordinary people to lose their access to housing, would make it impossible for them to feed themselves and their children, or would allow the state or others to deny them their dignity.

(Of course, when the Court displays a concern for ordinary people, some academics held up by Guantlett as examples of what ideal academics should be doing, criticise the court for its “atavistic sentimentality” or – shock! horror! – “outcome-based” approach.)

Apart from an accurate engagement with the facts, what Gauntlett’s speech lack is any hint that these debates really affect human beings (as opposed to an acute awareness that it affects lawyers who earn a few million Rand a year).

The Empire Strikes Back

Feb 3rd, 2011
by Pierre De Vos.
106 comments

It is always good to have one’s feet held to the fire. Criticism of the legal profession and of legal academics should therefore be welcomed – whether it comes from traditional conservative quarters or from more progressive voices in our society. Criticism (hopefully) encourages self-reflection. Incisive criticism may start a debate, which might help to enlighten us and might improve the way we all engage with the law.

It was therefore great to read that Adv Jeremy Gaunlett had delivered a speech in which he criticised the legal profession for a “lack of critical faculty not merely in the Faculty, but across the face of legal life in South Africa”.  Gauntlett – who was nominated for appointed to the Constitutional Court and the Cape High Court but has not been appointed to either court – argued that there was a complacency amongst lawyers and legal academics about problems facing the legal system in South Africa.

I think as a general proposition this is correct. Lawyers and legal academics are often far too hesitant to engage with (and speak out about) issues of social injustice and the manner in which our legal system still favours the rich and well connected and disadvantages the poor and those who do not have friends in high places.

However, Gauntlett’s gripe seems to lie elsewhere. He argues that “it is time to end an approach which is insufficiently rigorous in its scrutiny of the judgments of courts, and how they function”.

[O]ther than the writing of David Dyzenhaus, Stu Woolman and Jonathan Lewis, in the tradition of John Dugard, Tony Mathews and Barend van Niekerk, and later Fink Haysom, Clive Plasket and Etienne Mureinik, what probing critique has there been in the last five years of the work of the Constitutional Court? Those of you who are public lawyers may not agree with it all.  You may or may not agree with Jonathan Lewis when he describes the output of the Constitution Court in recent years as “evidenced by an atavistic sentimentality”, “outcome-based” and “mock-Solomonic”. But then we would all benefit if you said so.

Why have you not criticised the refusal by Justice Sachs in the Sidumo case to join Justice Ngcobo and others in determining whether the right in issue was a labour right or an administrative justice right, he urging a “move away from unduly rigid compartmentalisation so as to allow judicial reasoning to embrace fluid concepts of hybridity and permeability”? Do you share my inability to understand language like that, and the concern that it is inexact because the reasoning is not rigorous?

Amongst other things the concern, says Gauntlett, is “the lack of legal clarity”.  This kind of reasoning is, of course, plausible. If one adheres to a traditional view of the law, if one does not embrace the transformative vision of the Constitution, if one believes that the common law and other legal rules should remain untouched by the values and norms enshrined in the Bill of Rights, this yearning for “legal clarity” seems logical and necessary.

After all, the assumption that “legal clarity” was a good thing and that it used to be the norm rather than the exception in the pre-constitutional era, is widely shared by traditional lawyers in South Africa. (Of course, the fact that the belief in legal clarity often led judges enthusiastically to enforce apartheid laws or made them shy away from trying to re-work the law to minimise the inhumane effects of the common law and apartheid legislation on the majority of South Africans, is not often remarked upon by the adherents of this view.)

Of course, this view is based on a very particular approach to the law, one that assumes that “legal clarity”, “precision”, and “coherence” are not only ideals that are nice to have but can be (and are) indeed achieved. It takes for granted the correctness and moral superiority of traditional legal culture, which as Karl Klare pointed out in a seminal article in 1998 remains exceedingly formalistic, rule-bound, and more concerned with precedent and systems of logic than with the just outcomes of individual cases and with the achievement of a semblance of justice.

Gauntlett’s critique, it seems to me, is therefore an ideologically based one – although it professes to come from a neutral and apolitical place. If one assumes that traditional formal legal culture is the only acceptable and correct way of doing law, then one might well agree with Gauntlett. If one embraces a transformative vision of the Constitution – in the sense explored by Klare – then one might very well have serious problems with Gauntlett’s views set out above.

I obviously fall in the second category. My critique of lawyers and legal academics would therefore focus far more on the lack of engagement of many lawyers and legal academics with issues of social justice and the lack of critical reflection about the way in which the so called “precise” and “accurate” legal rules Gauntlett talk about often favour the powerful and wealthy in our society.

Gauntlett also highlights problems with the way we choose our judges. He states:

Other than the Bar, who contributes to researching candidacies for the Bench? Should your Society not have a review committee to do just that, to offer an objective assessment of their academic worth, judgments or other legal writing, and to offer informed criticism of candidates to the JSC?

Of course there have been some serious problems with the appointment of judges. We have appointed quite a few judges who – in my opinion – did not meet the minimum criteria for appointment, including that they should have embraced the progressive values enshrined in our Bill of Rights.

(Incidentally, my colleagues at the Democratic Governance Rights Unit have been submitting assessments about applicants for judicial office for the past two years, so Gauntlett is perhaps not as well informed as he could have been about the appointments process.)

What jumps out at me is the statement that an “objective assessment” of candidates is needed. But if we talk about the need for a transformed judiciary – by which I understand a judiciary which is staffed by judges who are not sexist, not racist, not homophobic, judges who take the social justice demands of our Constitution seriously – then this talk of an objective assessment seems rather strange if not impossible.

For me what would be interesting and worthwhile would be to have a conversation (or even a heated argument) about the ideological assumptions underlying Gauntlett’s critique. We all come from different perspectives and make different assumptions about the nature of the legal system we would like to see in South Africa. These are not uncontested and for me the problem with Gaunlett’s argument is that it attempts to erase or hide the politics and ideology on which his argument is built and pretends to come from a neutral place.

Let the conversation begin.

Braamfontein = 1 : Bloemfontein = 0

Nov 8th, 2010
by Pierre De Vos.
67 comments

When South Africa became a democracy in 1994, the new Constitution replaced the system of Parliamentary sovereignty (in which Parliament could make any law as long as it followed the correct procedure) with that of constitutional supremacy (in which every law had to conform to the requirements of the Bill of Rights). This brought about a legal revolution and gave our courts enormous power to declare invalid Acts of Parliament as well as the power to declare invalid the conduct of members of the executive – including the President.

But in 1994 South African courts were still largely staffed by conservative white men appointed by the apartheid government and the courts therefore lacked democratic legitimacy. To address this problem, it was decided to create a new Constitutional Court as the highest court for all constitutional matters. The Constitutional Court was also given the power to  make a final decision on whether an issue was a constitutional matter or not, thereby giving it the power to determine — to some extent at least — the limits of its own jurisdiction. The Supreme Court of Appeal (SCA) — then still called the Appellate Division of the High Court — would remain the highest court for non-constitutional matters, but its power and status had clearly been diminished by the new constitutional dispensation.

Although some of the judges appointed to the Constitutional Court in 1994 served as High Court judges, other Constitutional Court judges were appointed from the ranks of academia. Highly respected human rights lawyers and lawyers who took part in the struggle against apartheid such as Arthur Chaskalson, Albie Sachs and Pius Langa were also appointed without ever having served on the bench. This did not go down well with more traditional lawyers and the majority of apartheid-era judges.

At first, the head of the SCA remained the Chief Justice while the head of the Constitutional Court became the President of that court. But as our constitutional jurisprudence developed, it became clear that the Constitutional Court — and not the SCA — was now the highest and most important court in South Africa and the Constitution was amended to make the  head of the Constitutional Court the Chief Justice (and hence the head of the judiciary) while further “downgrading” the SCA by making its head the President of that court.

It was therefore perhaps inevitable that perceptions would arise about tension between the two highest courts in the land. The SCA judges (stuck in Bloemfontein — both physically and metaphorically) were seen as being reluctant to embrace the new constitutional dispensation — even when its own constitutional jurisdiction was extended by the 1996 Constitution. Initially the SCA seemed reluctant to make use of section 39(2) of the Bill of Rights, which requires every court, tribunal or forum to promote the “spirit, purport and objects” of the Bill of Rights when it interpreted any legislation, and when developing the common law or customary law.

The SCA attempted to draw a distinction between “purely” constitutional matters — on which the Constitutional Court  would have the final say — and matters relating to the interpretation of legislation and the development of the common law — which it saw as its rightful domain and on which it hoped to retain the final say. But the Constitutional Court seemed to have put a stop to this when  it made it clear in the Pharmaceutical Manufacturers case that there was only one body of law in South Africa:

The common law supplements the provisions of the written Constitution but derives its force from it. It must be developed to fulfil the purposes of the Constitution and the legal order that it proclaims — thus, the command that law be developed and interpreted by the courts to promote the “spirit, purport and objects of the Bill of Rights”. This ensures that the common law will evolve within the framework of the Constitution consistently with the basic norms of the legal order that it establishes. There is, however, only one system of law and within that system the Constitution is the supreme law with which all other law must comply.

Game, set and match to the Constitutional Court — or so it seemed. Until the Constitutional Court was asked to interpret section 7(1)(b) of the National Building Regulations and Building Standards Act 103 of 1977 in the case of Walele v The City of Cape Town and Others.

In its judgment in the Walele case, the Constitutional Court used a so called “purposive approach” to interpretation of the section to give this section an expansive meaning that was more protective of the property rights of those who might object to the building plans of their neighbours.

In effect, it found that it was an applicant who sought approval for building plans who had to satisfy the local authority that the area in which it is to be erected will probably not be disfigured; will probably not be unsightly or objectionable; and will probably not derogate from the value of adjoining or neighbouring properties. Moreover,  it imposed an obligation on the local authority to ensure the absence of the disqualifying factors before it granted building permission.

The SCA was not amused. It was of the opinion that the Constitutional Court had gotten it all wrong and shortly afterwards the SCA in True Motives 84 (Pty) Ltd v Madhi and Others — using a far more literal and conservative approach to legal interpretation — found that it was the objector to the plans who had to satisfy the local authority about the positive existence of the disqualifying factors and also found that there was no duty on the local authority to ensure the absence of the disqualifying factors. It did so by arguing that the Constitutional Court’s interpretation of section 7(1)(b) was what lawyers call obiter dictum (an opinion voiced by a judge that has only incidental bearing on the case in question and is therefore not binding) and was therefore not binding on the SCA despite it having been made by a higher court.

Justice Jaftha, who has since been elevated to the Constitutional Court but had authored the Walele judgment while acting as a judge in the Constitutional Court, wrote a spirited dissent in the True Motives case. Justice Cameron, who has since also been elevated to the Constitutional Court, signed on to the majority decision in the SCA case in which it ignored the Constitutional Court interpretation of section 7(1)(b) of the relevant Act.

The table was therefore set for a rather interesting judgment when the applicants in the case of Camps Bay Ratepayers’ and Residents’ Association and Another v Harrison and Another raised the question of whether the SCA had ignored the principle of stare decisis (the legal principle by which judges are obliged to obey the set-up precedents established by prior decisions) and had therefore unlawfully overrule the Constitutional Court’s Walele judgment. Jaftha and Cameron, who had been on different sides of this case in the SCA, would now have the opportunity to re-visit the issue as members of the Constitutional Court. And what would they say about the rather surprising argument by the SCA that the Walele interpretation of section 7(1)(b) was not binding on it?

Sadly, the Constitutional Court avoided dealing with the issue directly as it found that the applicants had not, in fact, relied on section 7(1)(b) in its long battle to stop the building of a rather fancy house in Camps Bay. But the Constitutional Court nevertheless proceeded to give the SCA and other courts a sermon on the importance of stare decisis (also called the doctrine of precedent in which lower courts are bound by the precedent set by higher courts).

Stare decisis, said the court in its judgment handed down last Thursday, was important because it ensured “certainty, predictability, reliability, equality, uniformity, convenience”. It then pointedly proceeded to remind the SCA:

The doctrine of precedent not only binds lower courts but also binds courts of final jurisdiction to their own decisions. These courts can depart from a previous decision of their own only when satisfied that that decision is clearly wrong. Stare decisis is therefore not simply a matter of respect for courts of higher authority. It is a manifestation of the rule of law itself, which in turn is a founding value of our Constitution. To deviate from this rule is to invite legal chaos….

Of course, it is trite that the binding authority of precedent is limited to the ratio decidendi (rationale or basis of deciding) and that it does not extend to obiter dicta or what was said ―by the way. But the fact that a higher court decides more than one issue in arriving at its ultimate disposition of the matter before it does not render the reasoning leading to any one of these decisions obiter, leaving lower courts free to elect whichever reasoning they prefer to follow. It is tempting to avoid a decision by higher authority when one believes it to be plainly wrong. Judges who embark upon this exercise of avoidance are invariably convinced that they are “doing the right thing”. Yet, they must bear in mind that unwarranted evasion of a binding decision undermines the doctrine of precedent and eventually may lead to the breakdown of the rule of law itself. If judges believe that there are good reasons why a decision binding on them should be changed, the way to go about it is to formulate those reasons and urge the court of higher authority to effect the change. Needless to say this should be done in a manner which shows courtesy and respect. Not only because it relates to a higher court but because collegiality and mutual respect is owed to all judicial officers, whatever their standing in the judicial hierarchy.

This extraordinary and pointed slap-down of the SCA by the Constitutional Court will hopefully not go unnoticed by the judges in Bloemfontein. Although the Constitutional Court refrained from expressing an opinion on whether its interpretation of section 7(1)(b) of the Act was part of the precedent that the SCA was bound by or merely obiter dicta, I suspect this passage quoted above was included in the judgment handed down last week to provide the SCA with the opportunity to see the error of its ways and to abide by the principles laid out by the Constitutional Court in the Walele case.

Whatever one’s views on the correct interpretation of section 7(1)(b) of the Act, the SCA’s argument that the interpretation provided of that section by the Constitutional Court was obiter dictum is rather difficult to justify. To this reader, the SCA decided that the Constitutional Court had given a wrong interpretation of the section and proceeded to ignore it – something it could not do as it was bound by the Constitutional Court’s interpretation.

It is not difficult to read the quoted passage above as a pointed criticism of the SCA. After all, the Constitutional Court by implication accused the judges of the SCA of inviting legal chaos by completely disregarding the ratio decidendi of a Constitutional Court judgment — merely because it thought the Constitutional Court judgment was wrong. As Braamfontein and not Bloemfontein now has the final say in the interpretation of legislation, one hopes that the SCA judges will heed the call and will change their “wicked ways”. In the end, this is not a fight they can ever win.

Should we throw Helen Zille in jail?

Sep 22nd, 2010
by Pierre De Vos.
28 comments

When should courts use their powers to jail politicians and other individuals who disrespect the judicial system and undermine the legitimacy of our courts? Can they actually do so without infringing on the rights of an individual protected in the Bill of Rights? Should Youth League members (or Helen Zille, for that matter) be jailed for contempt of court when they attack the personal integrity of individual judges? And what should happen when organisations or individuals just flagrantly ignore the orders made by courts?  

These questions are rather more difficult to answer than one might think. The recent case of the shenanigans of some of the leaders of the ANC Youth League is a case in point.

When ANC Youth League secretary-general Vuyiswa Tulelo told a daily newspaper last month that a High Court Judge who had ruled against the Youth League had arrived at a “drunken decision”, Advocates for Transformation rightly took Tulelo to task for insulting Grahamstown High Court Judge Nomathamsanqa Beshe. Judge Beshe had ruled against Julius Malema’s leadership of the league and reversed its decision to disband the league’s Eastern Cape provincial leadership. Should Tulelo not have been summonsed to court and thrown in jail for contempt of court?

This matter was, of course, made worse when ANC Youth League KwaZulu-Natal provincial secretary, Bheki Mtolo then said the following in response to the ruling:

We also want to warn the judiciary to desist from meddling with our internal political issues…. We have always respected the independency of the judiciary. However, the conduct of some of these judges who have become political role players has made us conclude that we will engage with them in a political manner.

Last week Chief Justice Sandile Ngcobo rightly called these assaults on the judiciary ”very troubling”  because “this kind of criticism may well undermine public confidence in our courts”. When politicians attack the integrity of individual judges (something Helen Zille and Gwede Mantashe have also made themselves guilty of in the past), instead of focusing on the reasons given for the judgment and engaging with the correctness of such a judgment - based on legal principles and analysis - they go beyond acceptable criticism of the judiciary and they undermine the legitimacy of our courts.

So, are members of the judiciary finally fighting back against this kind of flagrant disrespect shown to our judicial system by “some among us” (to quote that other guy who used to be President - what is his name again?)? News that the Labour Court in Johannesburg had found Gauteng leaders of the SA Democratic Teachers Union (SADTU) guilty of contempt of court, and had ordered that the provincial management and leaders of the central branch (Soweto) be arrested and detained for 15 days for ignoring an interdict that was handed down on Sunday, suggests so.

The SADTU leaders were prohibited by the court order from holding meetings in school time and disrupting the matric preliminary exams in any way but they had allegedly ignored this order.

These examples deal, of course, with two different kinds of contempt of court. The Youth League statements might have been contempt of court because it “scandalised the court”, while the  SADTU refusal to obey a court order might have led to a different kind of contempt of court not related to the “scandalising” of the courts.

Contempt of court is a difficult matter to deal with in a constitutional democracy. It has been argued that the exceptional summary procedure for contempt of court could be interpreted as subverting the fundamental presumption of innocence guaranteed in section 35(3)(h) of the Constitution. The fact that the very judge whose judgment was ignored or who was scandalised by the personal attacks of politicians could make a decision on whether an individual was guilty of contempt of court, could also raise constitutionally difficult issues, given the fact that everyone has a right to be tried by an independent and impartial court.

In 2001 in the case of S v Mamabolo the Constitutional Court dealt with one aspect of contempt of court relating to the “scandalising of the court” (Justice Kriegler writing the judgment) and confirmed that this was indeed a constitutionally valid criminal offense that could be used to protect the judicial process against scurrilous attacks.

It confirmed that “scandalising the court” is a form of contempt of court recognised by our law. This, said Kriegler, was part of “a variety of offences that have little in common with one another save that they all relate, in one way or another, to the administration of justice”. Noting that the definition of contempt of court is rather broad, Kriegler wondered why  there is such an offence as scandalising the court at all “in this day and age of constitutional democracy”.

Why should judges be sacrosanct? Is this not a relic of a bygone era when judges were a power unto themselves? Are judges not hanging on to this legal weapon because it gives them a status and untouchability that is not given to anyone else? Is it not rather a constitutional imperative that public office-bearers, such as judges, who wield great power, as judges undoubtedly do, should be accountable to the public who appoint them and pay them? Indeed, if one takes into account that the judiciary, unlike the other two pillars of the state, are not elected and are not subject to dismissal if the voters are unhappy with them, should not judges pre-eminently be subjected to continuous and searching public scrutiny and criticism?

The answer is both simple and subtle. It is, simply, because the constitutional position of the judiciary is different, really fundamentally different. In our constitutional order the judiciary is an independent pillar of state, constitutionally mandated to exercise the judicial authority of the state fearlessly and impartially. Under the doctrine of separation of powers it stands on an equal footing with the executive and the legislative pillars of state; but in terms of political, financial or military power it cannot hope to compete. It is in these terms by far the weakest of the three pillars; yet its manifest independence and authority are essential. Having no constituency, no purse and no sword, the judiciary must rely on moral authority. Without such authority it cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over the Constitution and its Bill of Rights — even against the state.

There is of course a tension between the need to protect the judicial process (for the benefit of us all) and the need to safeguard freedom of expression for those who wish to criticise a decision made by a judge.  Because statements concerning judges and the performance of their duties can have a much wider impact than merely hurting the feelings of an individual judge, this crime focuses on acts or statements that reflect on the integrity of courts, as opposed to mere reflections on the competence of judges or the correctness of their decisions.

As the Constitutional Court pointed out, the test for scandalising the court, namely that one has to ask what the likely consequence of the utterance was, will mean that it will be rather difficult to find someone guilty of this offence. Merely criticising a decision – even in harsh terms – would not constitute contempt of court in a constitutional democracy. Launching a personal attack on the integrity of a judge by, say, suggesting that he or she is a drunkard or that he or she is a political lackey of a particular political party would get closer to meeting the requirements for this kind of contempt of court.

Similarly, when contempt of court deals with the intentional and unlawful disobeying of a court order, one will only be convicted if it can be shown beyond reasonable doubt that one indeed had the intention to disobey a court order. The Supreme Court of Appeal confirmed in the case of Fakie v CCII Systems (pty) Ltd that one would only be found guilty of this kind of contempt if one had disobeyed a court order ”deliberately and in bad faith”. If one honestly believed that one was justified in ignoring the court order one could not be found guilty of contempt of court, said the SCA.

It seems to me where any individual or organisation (whether it is a ordinary citizen, a public official, a Minister, a political party or a union) deliberately disobeys a court order – even when it is clear that there was no valid excuse for doing so - the attack on the legitimacy of the judicial system is so severe that there should be little problem with throwing the person in jail. The order of the Labour Court therefore seems appropriate (unless other factors not mentioned in the media might have cast doubt on whether the SADTU leaders had disobeyed the court order in bad faith). If court orders are not obeyed, then the judicial system breaks down and with it the rule of law. Chaos and anarchy is inevitably the result.

But when immature, self-serving, or rather dim-witted politicians attack the integrity of judges (whether they are members of the Youth League, the ANC proper or the DA) one should be rather more careful about using contempt of court proceedings to reign them in. If this procedure is used too quickly, there is a danger that this will stifle debate and dialogue about the work done by courts. Judges are not directly accountable to anyone – which is a good thing – but they are indirectly accountable to the public at large in that their decisions and the reasons given for decisions can be subjected to analysis and criticism.

But what to do in a case like the one mentioned above, where a Youth League leader calls a decision a “drunken judgment”? Should one press for the court to hold her in contempt of court on the basis that she scandalised the court?

Personally, I believe such statements are outragous and that the ANC should take action against the guilty officials, and that their membership of the ANC should be suspended for a number of years. Failure to do so will cast doubt on the ANC’s commitment to an independent and impartial judiciary.

But at the same time, I suspect that it is better to err on the side of free expression and therefore not to throw such oficials in jail on the basis that they are guilty of contempt of court. Besides, if our courts decide to go down that road we might sit with the strange situation where Gwede Mantashe, Helen Zille, and several Youth league leaders are all locked up for contempt of court. Imagine they all find themselves in the same prison for a 15 day period! It would make for an interesting discussion in jail, but would probably not be good for the legitimacy of the judicial system in the long run.

MP’s now protected from whistle blowing

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

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

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

Boy, was he wrong.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What do we talk about when we talk about “transformation”?

Aug 12th, 2010
by Pierre De Vos.
208 comments

Is it at all possible to write sensibly but critically about the way in which the concept of “transformation” has evolved in kleptocratic South Africa? “Transformation” has become a buzzword that is much bandied about and much abused, but few people explain what they mean when they use the word. Like mother hood and apple pie, it is assumed to be an unqualified human good and as such “transformation” is now used much like the rights in the Bill of Rights are used: as trumps to stop any political analysis, argument or the asking of any uncomfortable questions.

Back in 1998, a progressive American academic called Karl Klare wrote an extremely influential and since then much quoted article in which he argued that ours could be seen as a transformative Constitution. Klare argued that as a progressive supporter of the democratic project, one not only could but should interrepret our Constitution as a transformative document.

He claimed that it could be read thus for several reasons. First, he argued that the constitutional text was historically self-conscious, by which I took him to have meant that when interpreting and applying the Constitution, judges were allowed to keep in mind the history of oppression, struggle and the denial of human dignity out of which it was born.

When a judge has to decide whether the arrest, torture and detention of an ordinary citizen (or journalist) was lawful, she could do so with reference to the constitutional text that bans such lawlessness, yes, but also with the ever present and dark memory of the detention, torture and eventual murder of Steve Biko in mind. When a judge had to consider whether to grant an eviction order, she could take into account not only section 26(3) of the Bill of Rights but could also keep the memory of forced removals and the inhuman and degrading effects of that policy on ordinary people alive.

Second, the Constitution was transformative, Klare argued, because it contained an equality clause that explicitly endorsed corrective measures that would help to right the wrongs of past racial oppression. Moreover, it contained a set of social and economic rights which empowered courts to assist ordinary citizens to access the most basic services and benefits required to live a life with a semblance of human dignity.

Lastly, the Bill of Rights explicitly stated that it applied not only vertically against the state, but also horizontally against private individuals and institutions (which were so complicit in the enforcement of apartheid and benefited so hugely from it) and required judges to take into account the spirit and object of the Bill of Rights when interpreting legislation or developing the common law and customary law.

This vision of transformation is, in its way, a radical vision which has as yet not come to pass. It envisages a complete transformation of the legal system as well as a dismantling of the structures which still help to perpetuate the disgraceful racial and gender inequality in our society and continues to subjugate the majority of South Africans – both economically and socially.

Sadly, few lawyers and judges have embraced this vision of a transformative constitutional project. While most pay lip-service to the need for transformation and claim to endorse the transformative vision of the Constitution, it is as if the old had colonised the new by co-opting them in the opppression of the majority of citizens. The concept of “transformation” is now often used – so it seems to me – as a band-aid to hide and legitimise the continued injustice and inequality that is perpetrated by the old business elite and the new political and business elite.

Although more than half of all judges are now black, most judges still do not use the Constitution as they are entitled to do, to try and address the fundamental injustice inherent in our legal system. Many of the basic assumptions underlying the common law – the unqualified benefits of a free market, the alleged freedom to choose, the equal power of all roleplayers – are still vigorously enforced by both black and white judges – even when it benefit the business elite and the politicians and perpetuate the oppression and marginalisation of the masses of our people.

When a pensioner is stabbed and rushed to hospital and she is forced to sign an indemnity form by that hospital, most of our judges – black and white – will endorse the absurd fiction that while she was lying on a trolley, bleeding to death, she had exactly the same bargaining power as the hospital to enter freely into a contract. They will hence find that the Hospital could not be held liable for the negligent amputation of her arms and legs and dismiss any claim against the Hospital.

Real and deep transformation is the enemy of the elite – black and white - because if deep transformation is actually implemented, it will transform the very system that we all benefit from so handsomely, that allows us to drive to work in million Rand cars without having to step out into the streets where people are dying of hunger and disease. Why support deep transformation if one is benefiting from the system?

Politicians are particularly good at this kind of double speak about transformation. They shout and scream about the need for transformation, by which they usually mean the replacement of greedy, white, heartless, capitalists, with greedy black heartless capitalists (who are preferably their friends and relatives who will also help to enrich them and will assure that they benefit from the looting of state coffers).

It reminds one of the saying in the apartheid era that white English-speaking South Africans voted for the Progs of Helen Suzman, but went on their knees every night to thank God that the Nationalists were still in power to “protect” them from the black majority. The new elite can still be found on their knees, from where they can pay lip-service to the masses of our people and the need to address poverty while they stuff their pockets with the loot offered to them by more or less the same system that operated during the apartheid years.

Of course, many things have changed since the days when PW Botha wagged his finger at us on TV, mangled the English language beyond recognition and allowed his security services to torture and kill those South Africans who did not find him charming. The National Party is no more and on an emotional (and even legal) level we are all far more free than we used to be. Even if the new elite does not care much for anyone but themselves, they do not actively hate the majority of the population and do not sit up at night to think of ways to humiliate black South Africans – as seemed to have been the case with the apartheid nutters.

We now live in a democracy and the government knows that they need the vote of the majority of South Africans to continue in power, and they need to continue in power if they want to continue reaping the benefits of BEE deals, corrupt tenders and the wonderful benefits bestowed on them by that other Bible called the Ministerial Handbbook. A welfare net of sorts has therefore been created to provide some needy South Africans with assistance in the form of social grants and pensions. These grants and pensions keep the majority of South Africans from rising up and from overthrowing the state and the system which benefits only a few.

(That is why the DA’s support for a basic income grant makes sense: with such a grant in place, the haves may buy some time. It allows them to continue to insist that while “transformation” is important it should not be taken to mean that anything should really change - except for the colour of the skins of those who exploit the rest of the population.)

So, yes, things have changed. But they have not changed in the way and to the extent promised by the transformative constitution.

“Transformation” has become a catchphrase to justify greed and self-interest and prevent the fundamental changes needed to actually address the monumental poverty and the criminal gap in wealth and personal circumstances between the rich (more and more a non-racial rich) and the poor (which remains largely black).

When politicians or the emerging business elite bleat on about the need for transformation I chuckle bitterly but knowingly. What do they mean when they say this? Do they mean that we should continue as before but should just have less white people with their snouts in the trough and more black people benefiting from the spoils of a system that remains – in its essential structure at least – not much different from that which operated under apartheid?

What is transformation? Can one eat it and use it as a blanket at night to ward off the cold? Will it provide a roof over one’s head, clean drinking water and electricity and a job that will allow one to live with a semblance of dignity? Can one feed one’s children with transformation and send them to school on it? Can one get good medical care (I have not yet seen any pharmacy stocking transformation pills that will make us all healthy) and protect oneself and one’s loved one’s from crime with a transformation blanket? Don’t think so.

When Julius Malema talks about the need for a revolution, or when Jimmy Manyi talks about the need to speed up transformation, all while driving in an obscenely large cars and splashing out on the most expensive luxuries, why don’t we all just laugh (or maybe spit) in their faces and point out that these are words – only empty words – used to keep the majority of South Africans in their place: poor, powerless and ready to acquiesce in their own oppression.

Maybe we should ban anyone from using the word and find new words to talk about the need to change this country. “Transformation” does not cut the mustard. It has become a hollow and empty word, devoid of any real meaning.

What have Tweedledum and Tweedledee been up to?

Jun 29th, 2010
by Pierre De Vos.
70 comments

Maybe all this goodwill, peace, love and happiness generated by the World Cup in South Africa have finally turned my brian into a mushy pulp. (Miss World contestants must be horrified by the World Cup: with all this love and peace going around they must have nothing left to do but look pretty and sniff listlessly at the salad leaves on their lunch plates.) How else to explain the sudden thought, which popped into my head this morning, that I am missing Judge President John Hlophe and his ethically challenged sidekick, Paul Ngobeni?

It has been several months since the Judge President has done anything controversial, reactionary, ethically dubious or even newsworthy. Meanwhile, Ngobeni has seemingly been too busy giving the Minister of Defense bad legal advice to call me a racist and a pervert or to utter spluttering denials about ever having been disbarred as a lawyer in the USA.

Oh, how I miss our very own Tweedledum and Tweedledee!

Of course, several legal challenges are in the pipeline to try and overturn the absurd and illogical decision on Hlophe by the Judicial Service Commission (JSC) last year, so we might still hear from Tweedledum and Tweedledee in the next few months. The JSC, as you might recall, decided to avoid any investigation of the complaint lodged by the judges of the Constitutional Court against the Judge President, because such an investigation would have forced the JSC to decide whether Hlophe or the judges of the Constitutional Court were lying through his/their teeth. If there was one thing the JSC wanted to avoid at all cost, it was discovering the truth.

Nevertheless, now that the dust has settled somewhat, it might be appropriate to reflect on why the JSC made their patently absurd and indefensible decision and why the case seemed to have split the legal community, largely along racial lines.

The first question seems the easiest to answer. A political decision was taken by the Zuma administration to protect Judge President Hlophe – perhaps because he was accused of trying to protect Zuma and he was being rewarded for his zeal and initiative in protecting the Dear Leader from criminal prosecution. (Not that it was necessary, what with the National Prosecuting Authority doing the protection.) The JSC was thus loaded with pro-Hlophe supporters by President Zuma, which enabled a majority of its members to avoid making a finding that either Hlophe or the judges of the Constitutional Court were liars.

The second question is more perplexing. Why did seemingly good people (I am not including the opportunists, charlatans and crooks who came out to bat for the Judge President) keep quiet or offered support for the Judge President? Why were they almost exclusively black, while those who insisted that the truth be determined were almost exclusively white? Why did the tactic deployed by Hlophe and his storm troops to racialise the issue (despite the fact that the overwhelming majority of accusers were black themselves) succeed so brilliantly?

I suspect the answer to this question has much to do with the lack of racial transformation of the legal profession and the consequences of a particular legal culture that exacerbate racial divisions. More than 80% of practicing advocates and attorneys are still white (and in Cape Town this percentage must surely be much higher). Moreover, lawyers (of all races – Seth Nthai hi there!) are notoriously egotistical and arrogant and ready to gossip about, and belittle, their fellow lawyers. They love to snigger about the stupidity and ignorance of colleagues and of judges and often do so in a sneering and sarcastic manner.

In the absence of a fundamental change in briefing patterns, many white attorneys still only brief white advocates with whom they grew up, went to university with or drink and play golf with. Some of these advocates are brilliant and some are rather mediocre but in a kind of reverse affirmative action the mediocrity is overlooked while the potential brilliance of young black advocates are sneered at or dismissed. This is unjust and scandalous, but because of the way in which the legal profession is structured it is not easy to change.

Let’s face it, if you are a brilliant young black lawyer starting at the Cape Bar, your chances of being briefed by anyone but the state lawyers is rather slim – unless you have demonstrated that you are a good coconut and is white in all but skin colour. Judge President Hlophe did not create the racial divisions in the legal profession – he merely skillfully exploited it for his own selfish gain.

In this kind of atmosphere, it was very easy for Judge President Hlophe and his cronies to appeal to racial solidarity or to silence some black members of the legal profession, who feared they might be associated with the racists and the anti-transformationists in the legal profession or might alienate their potentially biggest client – the state. Support for a full investigation of Hlophe was seen as support for the sneering and arrogant white lawyers who make cynical jokes about the intellect and ability of even the brightest and most brilliant black advocates and judges.

One therefore had to be exceedingly brave and strong (or perhaps foolhardy) to be a black lawyer supporting a full investigation of the serious allegations against Hlophe.

So, while I have been a sometimes harsh critic of Judge President Hlophe and his cronies, I would argue that the disastrous turn of events, which led to the failure of the JSC to investigate the various allegations at all, can at least partly be blamed on white lawyers who have not always shown the necessary understanding for the urgent need to transform the legal profession. Is the legal profession doing enough to change briefing patterns and to transform the legal profession? Surely not. And if they do not take drastic action on this front, the legitimacy of the legal system and of the judiciary will be further imperiled.

When a white judge makes scandalously patronizing statements about black judges or lawyers, white lawyers and judges must speak out. And when a black judge acts in a way that suggests he or she is a crook, black lawyers must insist that he or she should be fully investigated.

But at the moment this does not seem to happen as racial solidarity seems to trump everything. The more transformed the legal profession becomes, the easier it would become for the good men and women of all races to stand up and insist on the upholding of high ethical standards in the profession and in the judiciary.

When this happens, a lawyer or a judge who is accused of taking a bribe, of drinking one cup of “tea” too many, or of scandalously overcharging clients will not be able to garner support from a block of lawyers merely because he or she belongs to the same race.

Until then we will have to cope with the antics of the Tweedledums and Tweedledees of this world.

Human Rights Commission pro-poor stance must be applauded

Jun 21st, 2010
by Pierre De Vos.
399 comments

The South African Human Rights Commission (SAHRC) were lambasted by DA leader Helen Zille for finding that the City of Cape Town had violated the dignity of residents of Makhaza by not enclosing the toilets it had provided to them and for not adequately consulting with the community about the issue. Zille said in an interview that the City of Cape Town was being “selectively targeted” by the Human Rights Commission.

Her informal side-kick, Rhoda Kadalie, went further, saying that the finding of the SAHRC demonstrated that the the body was singing the ANC’s tune.

Such attacks on the integrity of the SAHRC are rather startling, as the body is an independent watchdog created by the Constitution. The Constitution states that “other organs of state, through legislative and other measures, must assist and protect” the SAHRC to ensure its “independence, impartiality, dignity and effectiveness”. The Constitution also states that “[n]o person or organ of state may interfere with the functioning of these institutions”.

Like any court judgment, a decision of the SAHRC is, of course, not beyond criticism. Anyone – including the leader of a political party – is entitled to analyse the reasons given for a decision by the SAHRC and to criticize that decision on the basis that the legal principles set out by our courts were not applied correctly. But in the absence of conclusive proof that the decision by the SAHRC was biased and hence tainted by political considerations, a personal attack on the integrity of the Commission undermines one of the constitutional institutions and hence undermines respect for the Constitution itself.

Are there good legal reasons to argue – as Zille and Kadalie in effect did – that the decision of the SAHRC can be dismissed because the SAHRC was selectively targeting the DA? This view can be sustained if similar complaints lodged with the SAHRC regarding the failure of ANC-run municipalities to provide access to adequate housing, health care and sufficient food and water were never investigated, or investigated and dealt with differently than the complaint against the DA municipality.

I have been unable to find any proof that the DA or anyone else had indeed lodged such complaints against ANC run municipalities in the past, let alone that such complaints were dealt with differently than this one against the Cape Town City Council. Maybe the DA can provide proof of such complaints being lodged and can demonstrate that the SAHRC dealt differently with these complaints, but they have not yet done so. If they are unable to do so, the statement by its leader seems deeply troubling and disrespectful of the Constitution.

But are there nevertheless, despite a apparent lack of proof that the SAHRC has not dealt with similar complaints against the ANC in the same manner, good reasons to find fault with the SAHRC finding? Can one argue, without fear of being accused of undermining a constitutional institution, that the body was overzealous in its finding because the DA city council was involved?

After studying the SAHRC Report, it is difficult for me to come to that conclusion. The Report correctly points out that the rights in the Bill of Rights place both a negative obligation on the state NOT to interfere with the existing enjoyment of rights and a positive obligation on the state to take steps to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures toward the full realisation of the rights.

The SAHRC report also correctly points out that in the Grootboom judgment the Constitutional Court held that “the Constitution required the state to put in place a comprehensive and workable plan in order to meet its socio-economic rights obligations…the program must,…, be balanced and flexible and must make appropriate provision for attention to short, medium and long term needs” and that the Court held further that the “programme must be reasonable both in conception and implementation…”

In Grootboom, the Court argued that where a programme failed to take account of the needs of the most vulnerable and marginalized, either in the manner it was devised or implemented, it might well be unreasonable and hence unconstitutional. The following conclusion by the SAHRC is therefore entirely plausible (although not the only conclusion that could possibly have been drawn):

while the City’s project to provide flush toilets for all residents is reasonable and indeed commendable, the manner in which the project was implemented (no enclosures or walls for the toilet facilities) was not reasonable. Furthermore while it is accepted that the measures employed were intended as temporary solutions to a situation that needed to be urgently addressed, the situation persisted from 2007, a period of just under three years….No provision was made for those who were unemployed and poor and could not fund the enclosure of their own toilets. Issues of access for those with disability and issues of safety for those most vulnerable to violence in terms of the structure such as ensuring they were well lit do not seem to have featured in the planning and implementation of this project.

One might argue that the SAHRC – like some High Court judgments dealing with cases regarding access to water and electricity – went slightly further than the Constitutional Court jurisprudence (strictly applied) would allow. Its reliance on human dignity – instead of the social and economic rights provisions – to find that the Cape Town City Council had failed to meet its constitutional obligations, is not particularly plausible. And like the South Gauteng High Court in the water meters case, it seemed to imply that the state had a duty to provide a minimum core of services – something that the Constitutional Court had rejected.

However, to my mind the SAHRC should be applauded for this pro-poor approach – not derided for being a lackey of the ANC. In cases where the High Court made innovative use of the social and economic rights jurisprudence, I have applauded the relevant judge for advancing a pro-poor agenda, so it would be hypocritical of me not to applaud this decision of the SAHRC for doing exactly the same thing.

Certainly, if the ANC had derided the various High Court judges who had found against ANC controlled municipalities in social and economic rights cases and if an ANC leader had labelled the judge involved in such a case a lackey of the DA merely for using an innovative approach to social and economic rights enforcement, few right thinking people would not have been outraged by this attack on the integrity of the courts and the disregard for the Constitution.

A political party (or anyone else, for that matter) who is truly concerned about the plight of the poor and about a lack of service delivery would have applauded this finding of the SAHRC and would have relied on it in future to try and expose the possible unreasonable and unconstitutional failure of other municipalities. A pro-poor political party would not have acted in the paranoid and defensive manner of the DA leader and would not have alluded to alleged conspiracies to excuse their own actions which the SAHRC found wanting.

The SAHRC finding is of course not binding, but that body has a constitutional mandate to monitor the enforcement of social and economic rights. In the past the SAHRC has not always fulfilled this mandate with sufficient vigor. This is partly because it has not received many complaints about the failure of municipalities to fulfill their social and economic rights obligations. But with this finding the SAHRC has shown that it would be willing to push municipalities and to call them out where they fail to implement service delivery programs in a reasonable manner.

This willingness on the part of the SAHRC to fight for the interests of the poor and marginalized is something to be celebrated. The fact that the DA leader saw it differently, will reinforce the perception that the DA is more interested at scoring cheap political points and defending its own political brand in a paranoid and defensive manner than in advancing the rights and interests of the poor. No wonder the DA has been unable to capitalize electorally on the infighting, nepotism and disarray in the ANC.

What poor person is going to believe that the DA is truly fighting in their corner if this is how the party reacts to a pro-poor finding from an independent constitutional institution?

Wake up and worry about the real threats to our democracy

Apr 6th, 2010
by Pierre De Vos.
195 comments

I really do not understand why everyone is making such a fuss about the murder of a completely irrelevant, right wing, racists, megalomaniac like Eugene Terreblanche. Of course, it is always tragic when someone is killed, and Mr Terreblanche’s family and friends must feel much sadness at his passing – something we must try and respect.

But although the killing of yet another South African does remind us of the extremely violent and polarised nature  of the society we live in,  Terreblanche was politically a spent force and his murder – no matter how sad and senseless – was therefore irrelevant from a political perspective and his death should not have been as politically noteworthy as it has become. After all, the AWB consists of no more than a few bearded grey men who seem to have an inability to stay on top of their horses after drinking one brandy and coke too many.

There are far more sinister and politically relevant events to worry about. Our democracy is facing a fundamental threat from the Kebbelists, the tenderpreneurs, the facists and the Stalinists, but we are all so busy getting hysterical about a silly song and about the sad killing of a lonely old man, that we hardly seem to notice.

News that Mr. Kebby Maphatsoe, national chairperson of the MK-veterans association, launched a vicious attack on the judiciary by saying  that judges who ban struggle songs like “Kill the Boer” “wants to bring back apartheid” poses far more of a danger to our democracy than the killing of Terreblanche or even the singing of the “Kill the Boer” song. The fact that Julius Malema and the MK veterans are on the same page and are both undermining the judiciary because of the “Kill the Boer” ruling is really scary.

Julius reinforced the view that he has utter contempt for our constitutional democracy on Saturday when he said the following to the SABC from Zimbabwe (where he was making friends with his fellow anti-democratic kleptocrats):

That court interdict does not apply here [in Zimbabwe]. The order was granted by an untransformed judiciary system, which is the same one that was operating during the apartheid system. It [judiciary] was defeated by the struggle.

Meanwhile the MK veterans association said yesterday they refused to accept the interim interdict. “There is no way we would stop singing this song. The judge (Bertelsmann) is uninformed. It is people schooled in apartheid laws who have been sitting there for 40 years and do not realise that things have changed” which hand down such judgments, Maphatsoe said. According to the MK veterans, judges who do not understand the history of the ANC and the armed struggle is not entitled to pronounce on issues that touch on the heritage of the ANC.

This kind of talk is far more dangerous and irresponsible than the singing of the actual “Kill the Boer” song. It is also uninformed and idiotic and suggests that Mr Maphatsoe is not the sharpest tool in the shed and does not have a firm grip on reality.

The thing is, Bertelsmann granted the interim  interdict on the basis that a case had been made out that it infringed on section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act. Mr Maphatsoe and Julius Malema seem not to understand that this act was passed by the democratically elected Parliament and contains a sweeping hate speech provision that will almost certainly be found to prohibit the “Kill the Boer” song when it is sung in a political context. Judge Bertelsmann did not apply apartheid law but the law tabled in Parliament by the ANC Minister of Justice and voted for by the ANC dominated legislature.

It is scandalous that these enemies of democracy now want to argue that because they do not like the law which they themselves passed, they will ignore the interpretation of that law by a judge (who happened to have been appointed after 1994 by the democratically elected President) and will ignore the order by the court. Such statements fundamentally undermine respect for the independence and integrity of our courts and are seditious. This is the kind of fascist talk that poses a grave danger to our democracy.

The statement that only judges who understand and agree with the ANC version of history will be respected and that those judges who choose to apply the law rather than obey the whims of the ANC MK veterans and Youth League cannot enforce the law against the ANC, is so fundamentally at odds with any tenet of democracy that one suspects Stalin himself might have come to Mr Maphatsoe in a dream to give him this startling insight. These people are dangerous. They will destroy our democracy if they are not stopped.

President Zuma rightly received some praise for his statesmanlike remarks in the wake of the killing of Terreblanche. But statements are not enough. ANC leaders need to reign in these dangerous anti-democratic forces in their midst. Talk is cheap, but what is really required is action. Julius should be disciplined for his shocking disrespect for our democratic order and for his behaviour which fundamentally undermines one of the three branches of our government. If he is not disciplined it will suggest the ANC tacitly supports this little fascist kleptocrat (or at least, are too scared of him to do anything about his actions).

Speaking of Malema’s kleptocratic tendencies, City Press reported on Sunday that Julius Malema has now officially asked the Companies and Intellectual Properties Registration Office (Cipro) to de-register him as one of the directors of SGL Engineering Projects. This means, first, that Julius has been lying all this time about not being a director of SGL Engineering and about having asked for his membership as a director to be removed from the register months ago. If he is only now asking to have his name as a director removed, he was obviously lying when he stated previously that he was no longer a director.

Being caught out in such a blatant lie should have embarrassed Julius and the ANC. Brazenly telling lies like this and then implicitly admitting that you had lied, brings one’s organisation into disrepute and perpetuates the view that one’s organisation is stuffed chock a block with dishonest thieves. Surely any organisation with any pride and self-respect, with a moral compass of sorts, would have instituted disciplinary action against a member caught out telling such blatant and self-serving lies?

Second the fact that Little Julie is now giving up his directorship means nothing, because whether he is a director of SGL Engineering is really neither here nor there. The question is whether he owns shares in the company and is entitled to share in its profits. One can give up one’s directorship but still hold a 70% share in the company and take 70% of the profits made by that company. One need not be a director of a company to profit from the illegally obtained tenders given to that company.

So, even if Malema gave up his directorship, chances are that he is still raking in the money as the majority shareholder in the company. No wonder Julius went to Zimbabwe this weekend. He obviously wanted to get some tips from ZanuPF about how they had managed to stay in power for so long while mercilessly looting state coffers and stealing from the poor.

These issues are the issues that will destroy our democracy and will ruin the lives of ordinary South Africans who vote en masse for the ANC - not the singing of a “Kill the Boer” song or the murder of a has been racist. Wake up people and make a noise about the things that matter!

← Earlier Posts Newer Posts →