Constitutional Hill

Criticism of Courts

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!

The past is very unpredictable and may not exist

Mar 2nd, 2010
by Pierre De Vos.
43 comments

Evita Bezuidenhout, talking about the revelations of apartheid era Vlakplaas hitsquads and the claim by many white South Africans that they never knew about the extra-judicial killing and torture of black South Africans by the police, said that ”the future is certain; it’s the past that is unpredictable”.

Last week the Supreme Court of Appeal (SCA) reminded us how true these words of Tannie Evita is for South Africa. Writing another chapter in this novel called our past, the court in effect wiped out a swath of human rights abuses perpetrated during the apartheid era.

According to the SCA, Dirk Coetzee, David Tshikalange and Butana Almond Nofomela never murdered Durban attorney, Mr Griffiths Mxenge, in November 1981. Adriaan Vlok never ordered the bombing of the headquarters of the South African Council of Churches at Khotso House, and the COSATU trade union headquarters in Johannesburg. Eugene de Kock, Craig Williamson and General Johannes Coetzee never bombed the London offices of the African National Congress in 1982.

Of course, we know these events did happen. The perpetrators were, after all, granted amnesty by the Truth and Reconciliation Commission (TRC) for having done these things. But according to the SCA, because the TRC granted the perpetrators amnesty, a newspaper could not claim that such individuals were murderers or criminals as this claim – which obviously would be defamatory – would also be false.

This, at least, is the consequence of the majority decision of the SCA in the case of The Citizen and Others v Robert McBride. Streicher JA (for the majority) thus found that The Citizen had defamed Robert McBride when it referred to him as a criminal and as murderer. While it was true that McBride planted a bomb in a pub in which three civilians had been killed and that he had been convicted and sentenced to death for these “crimes”, the newspaper could not rely on the traditional defense against defamation(that the defamatory statements were true and were in the public interest or that it was fair comment based on proven facts) because McBride was granted amnesty. It was therefore false to claim that he had been a murderer. He was not a murderer as the TRC had granted him amnesty for committing those murders.

Mthiyane JA (for the minority) disagreed, stating (correctly, I would contend) as follows:

the right thinking reader of The Citizen would have been left with the impression that the authors are clearly and principally commenting or expressing an opinion on the suitability of the plaintiff as a candidate for appointment as police chief. As I see it the reader would have understood the writers to be arguing, rightly or wrongly, that because of the plaintiff’s involvement in the bombing of Magoo’s bar and the Why Not restaurant in 1986, which had fatal and disastrous consequences for many innocent people, and his subsequent conviction and sentence, he ought not to be appointed to the post of chief law enforcement officer of a large municipality. Despite the strong and robust language used and the somewhat extreme (if not, right-wing) views expressed, the articles and editorials remain comment or opinion on the issue of his suitability for the position of the Metro Police Chief.

The fair comment defense did not require that the comment had to be fair in an objective sense, nor did it require the comment to be impartial or well-balanced. “Fair” in this context means only that the opinion expressed must be one that “a fair man, however extreme his views may be, might honestly have, even if the views are prejudiced”. Critical for the newspaper would be that the factual allegations on which the comment was based could be shown to be true. The minority points out the absurdity inherent in the majority opinion:

My colleague says that these facts cannot be obliterated from the historical record and that it is a well known fact that he is a murderer, but then goes on to suggest that the granting of amnesty rendered that fact false ─ a suggestion with which I join issue. This is by no means intended to downplay the broader motives which the plaintiff may have had, namely to free the then downtrodden majority of the people of this country from the evil system of apartheid.

The TRC Act made it clear that the effects of being granted amnesty would be to insulate a person from criminal and civil liability and to expunge the criminal record of the person granted amnesty. Last year the Constitutional Court found in the case of Du Toit v Minister of Safety and Security that Wynand du Toit, who was sentenced to 15 years imprisonment for the murder of the “Motherwell Four” but was later granted amnesty for these despicable deeds (am I allowed to write this without defaming Du Toit?), did not have a right to be reinstated as a police officer because of his amnesty. The Court warned against a “purely literal and de-contextualised reading” of the TRC Act, which would lead to a conclusion that:

the grant of amnesty has the effect of expunging not only the record of the conviction and sentence imposed on the perpetrator, but also all consequences that follow that conviction and sentence, past, present and future. There are, however, serious difficulties with that interpretation.

It was one thing to alter the public record, but another to change history and to assume for purposes of the law of defamation that certain acts – which did take place – actually never took place after all.

The majority decision has a somewhat Orwelian character as it holds that the TRC Act now requires us to pretend that what actually happened in the past, never really happened. We have to pretend that all those people who were granted amnesty for the most heinous crimes (once again, am I defaming anyone by writing this?) never really did anything wrong. It forces a kind of legal amnesia on all of us and fails to heed warnings that we should never forget the past – lest we repeat it.

I hold no personal grudge against McBride. He was granted amnesty for a politically motivated act in which several women were killed. Just like De Kock and Coetzee, he took part in the amnesty process and his criminal record was expunged. Good for him. Unlike De Kock and Coetzee his deeds formed part of the liberation struggle.

Personally I do not believe his conviction for acts for which he was granted amnesty (but which the majority in the SCA would rather us not mention at all) disqualifies him from being a police chief. The fact that he is alleged to have crashed his car after a day of heavy drinking, that he is further alleged to have obtained a fake medical certificate to cover this up and is alleged to have intimidate witnesses, might well – if proven – disqualify him from ever holding any job, but that is for a court to decide.

But the principle seems important. A ruling that the TRC amnesty process requires us to suddenly be struck by a dangerous amnesia about the past, is destructive and illogical. In a democracy with a free media it is impossible to rewrite the past and to pretend proven facts never happened. That is what the SCA majority in effect requires us to do. I do not want to have any part in perpetuating those kinds of lies and the rewriting of history. Granting all those criminals amnesty was bad enough. Surely it is a bridge too far to expect us to forget they ever did those things.

On precedent and Mr Von Abo

Feb 9th, 2010
by Pierre De Vos.
No comments yet

High Court judges are supposed to have a duty to follow the precedent set by the Constitutional Court and they have to do so in an honest and diligent manner. As readers of this Blog know, I believe South African High Court judges do not always adhere to this injunction. This is either because judges are ignorant of Constitutional Court precedent (as seemed to have been the case in a recent Cape High Court judgment on section 9 of the Constitution involving an exotic dancer from Moldova) or because they do not like the precedent and then “re-interpret” it to fit their own needs (as seemed to have happened in the controversial Von Abo judgment about the expropriation of farms in Zimbabwe).

Where such a re-interpretation of the law is legally credible (in that it is logical and relatively rational and would not undermine the legitimacy of the courts and diminish respect for judges and the judiciary as an institution) and where the outcome achieved is more just than it would otherwise have been if the precedent was strictly adhered to, an argument could be made that one should not be too harsh on a lower court judge.  After all, precedent is not water tight and in my book a judge who seeks justice (if that is ever achievable!), while also attempting to take seriously his or her role as judge and the precedent of higher courts is a good judge.

However, in my opinion the judgment in Von Abo v the Republic of South Africa and Others, handed down on Friday in the North Gauteng High Court by Prinsloo J, went too far, producing a judgment that strayed way beyond Constitutional Court precedent, thus straining credulity in the process. Worse, the judgment contains several sarcastic statements and angry denunciations which display a thinly veiled contempt for the government of the day – not something a credible court judgement should do lightly. In both tone and in effect the judgment fails to respect the principle of separation of powers as annunciate by our highest court.

The judgment ordered the Government and the Minister of International Relations to pay constitutional damages to Mr Von Abo because the government and the Minister had failed to honour a previous court order which declared that they had a Constitutional obligation to provide diplomatic protection to Mr Von Abo – whose farms were confiscated in Zimbabwe. The previous judgment also ordered them to take all necessary steps to have Mr Von Abo violation of his rights by the Government of Zimbabwe remedied and to report to the court within 60 days of the order about what steps they have taken to achieve this.

The Minister had not taken any steps in this regard, relying on junior officials and the South African ambassador in Zimbabwe who met Zimbabwean officials and requested the Zimbabwean officials to assist, something which – surprise! – theZimbabweans did not do. As Prinsloo rather caustically states:

The applicant has received no relief despite the good intentions of the officials…. [The Minister exhibited no interest whatsoever in attempting to comply with the orders of this court. Her conduct borders on contemptuous.

The court found that although the SA government said it would comply with the previous order, they “did nothing of the sort”. No effective measures were taken to try and protect the rights of Mr Von Abo. Thus while the government had taken steps, it did not take steps that actually made any difference to Mr Von Abo which meant they had been in breach of the original court order. 

This approach – just like the original judgment – completely misconstrues the precedent set by the Constitutional Court in Kaunda and Others v The President of the RSA and Others. In that case the Constitutional Court controversially stated that South African citizens had a right to request diplomatic protection and the Government has a corresponding obligation to consider the request and deal with it consistently with the Constitution. But the judgement by Chaskalson J cautioned as follows:

This, however, is a terrain in which courts must exercise discretion and recognise that government is better placed than they are to deal with such matters…. A decision as to whether, and if so, what protection should be given, is an aspect of foreign policy which is essentially the function of the executive. The timing of representations if they are to be made, the language in which they should be couched, and the sanctions (if any) which should follow if such representations are rejected are matters with which courts are ill equipped to deal. The best way to secure relief for the national in whose interest the action is taken may be to engage in delicate and sensitive negotiations in which diplomats are better placed to make decisions than judges, and which could be harmed by court proceedings and the attendant publicity….

But where the government refuses to consider a legitimate request, or deals with it in bad faith or irrationally, a court could require government to deal with the matter properly. Rationality and bad faith are illustrations of grounds on which a court may be persuaded to review a decision. There may possibly be other grounds as well and these illustrations should not be understood as a closed list.

Although the Constitutional Court judgment has been criticised for its rather timid approach (criticism I agree with), the High Court had a duty to try and reconcile his reasoning with that of the higher court – something he did not do in any plausible manner. The judgment of Prinsloo J does not take to heart the warnings of the Constitutional Court about the courts’ unsuitability to make determinations about the correct line of diplomatic intervention. Because the Government intervention was – according to the judge – less than enthusiastic, it did not comply with the original order. The judge failed to deal with the matter in accordance with the rationality test as set out by the Constitutional Court, and thus failed to adequately justify the decision in accordance with binding precedent.

It might well be that the Government could and should have done more for Mr Von Abo and others like him. South Africa’s attitude towards the Mugabe regime in Zimbabwe has been at best perplexing and at worse scandalous. It might well be that a High Court judge could have fashioned a set of reasons to justify the orders handed down without straining credulity. Sadly Prinsloo J did nothing of the sort.

Of course, whether the original judgment adhered to Constitutional Court precedent is itself highly debatable and if the Minister had appealed to the Constitutional Court, that court might well have overturned the decision. The Constitutional Court is rather conservative when it comes to matters like this and they are very timid about interfering with policy decisions such as decisions about how exactly to conduct foreign policy negotiations. The Minister did not appeal – either because her officials were uninformed about the law or because they were, ironically, trying to use the High Court judgment as a bargaining tool with the unimpressed Zimbabweans.

The Von Abo case raises important issues about the limits of the power of the court to interfere with the policy decisions and actions of the government. Let us hope that the second time around the Minister will get off her backside and appeal the decision, in which case the Constitutional Court may well revisit the timid approach set out in Kaunda.

Urgently wanted: judicial training

Jan 11th, 2010
by Pierre De Vos.
104 comments

Many South African judges are notoriously prickly about the need to undergo further judicial education. Despite the fact that Parliament passed the South African Judicial Education Institute Act in 2008, the Institute has not yet trained any judges or aspirant judges and it is unclear when it will start its work in earnest. Yet most judges received their legal training before the advent of the new Constitution and there clearly is a need for further training of judicial officers to bring them up to speed with constitutional jurisprudence.

The recent High Court judgment of Hlophe JP in the case of Malachi v Cape Dance Academy and Others demonstrates the urgent need for further judicial training. Although the case was probably decided correctly, the judgment is shoddily written while the constitutional law arguments are confusing and lacking in a basic understanding of constitutional law jurisprudence.

In the case, the High Court declared invalid section 30(1) of the Magistrates Court Act and the common law rule it codified, which allows a judicial officer to order the arrest of a person when it is suspected that the person will flee in order to evade the payment of a debt. In this case Ms Tatania Malachi, an “exotic dancer” (yeah right) from that lovely country Moldova (found by some surveys to house the unhappiest citizens in the world) was arrested after she tried to return to Moldova without paying her employer R20 000 owed to him.

Given the fact that the Constitutional Court declared invalid section 65A-65M of the Magistrates Court Act which provided for the imprisonment of judgment debtors in certain circumstances, the order of invalidity will probably be confirmed by our highest court. It will be surprising, however, if the Constitutional Court endorses some of the unconvincing and badly reasoned “arguments” put forward by the High Court.

First, the High Court found that the rule violated the right to equality because the rule treats poor debtors who are unable to furnish adequate security differently from those who can furnish such security, as the former could be incarcerated while the latter will avoid incarceration. Unfortunately, the judgment inexplicably fails to refer to any Constitutional Court jurisprudence on the right to equality and fails to articulate and apply the tests set out by the Constitutional Court to determine whether an infringement of either section 9(1) or section 9(3) had occurred.

If section 30 is invalid because it infringed on section 9(1), a rationality test had to be applied – something the court did not do. If section 30 is invalid because it infringes on section 9(3), it must be shown that the discrimination was based on one of the grounds listed in section 9(3) (like race, sex, gender or sexual orientation)) or on an analogous ground not listed in section 9(3) (such as HIV status). The High Court judgment inexplicably fails to make clear on what ground the discrimination occurred and why different treatment based on one’s financial position or some other unnamed characteristic would constitute discrimination for the purposes of section 9(3).

The implications of this argument – as far as one can tell – is that any law that distinguishes between rich and poor will constitute discrimination on an analogous ground. If this argument were to be sustained it would call into question the very existence of the capitalist system in South Africa. Maybe this is not a bad thing, but then one would expect the judge at least to make a cogent argument in favor of his position.

If one of my students had written the section in the judgment on the infringement of section 9, he or she would probably be awarded a mark of about 25% for the question as it shows a complete lack of knowledge of the Constitutional Court equality jurisprudence or any appreciation for the consequences of the argument presented.

The High Court also found that the rule infringed on the right to dignity as it allows for an arbitrary deprivation of liberty and allows a defendant to be subjected to cruel and degrading treatment. The High Court unfortunately seems unaware that the Constitutional Court has stated that where another right gives effect to the demand for the respect of human dignity (in this case, section 12(1)((e), which prohibits cruel inhuman and degrading treatment) one should rely on that right and not on the right to human dignity.

In dealing with the application of the limitation clause, the High Court seems unaware that it had to apply a proportionality test, having to weigh up all the factors set out in section 36 of the Constitution to determine whether the limitation is justifiable in an open and democratic society based on human dignity, equality and freedom. Instead the High Court discussed each of the factors mentioned in section 36 separately and failed to weigh the factors up against each other as required by the Constitutional Court jurisprudence. This completely misses the point of section 36 analysis and demonstrates a rather weird lack of insight into a fundamental aspect of Bill of Rights adjudication.

The discussion on the limitation clause is also sloppy and repetitive: at some point the same point, using exactly the same phrase, is made in subsequent paragraphs of the judgment, suggesting that the judgment was not properly edited before it was handed down.

In this case, the lack of engagement with Constitutional Court jurisprudence and the lack of understanding about constitutional principles, did not affect the outcome of the case, as the High Court reached a more or less just outcome that will prevent poor people from facing arrest when they owe money and the person to whom money is owed fears that the debtor will flee the country. It could therefore be argued that no harm came of the ignorance of the particular judge and that justice was served.

But in a constitutional state based on the Rule of Law, the legitimacy of the judiciary and the respect for the legal precedent as annunciated by higher courts suffers when lower court judges ignore or completely misconstrue the law. In the long term this could undermine the independence of the judiciary and respect for the legal system. In more difficult cases such a disregard for the law could also adversely affect litigants who may turn away from the law to rely on arbitration or self-help, which would erode respect for the rule of law.

Given the fact that many judges feel insulted when one points out that none of us are perfect and that – like the rest of us – judges are never too old to learn something new about the law, it seems to me the newly established Judicial Training Institute has its work cut out for it. If it functions effectively, it will enhance the quality of judicial decisions and with it respect for and trust in the law and our courts. This, in turn, will enhance the prestige and respect enjoyed by judges themselves. Judges therefore have a vested interest in judicial training and should embrace the new institute and its work, rather than resist it.

Of course, in the long run this will also be good for especially poor and vulnerable South Africans who may rely on the law to ensure that they are not treated unfairly by the rich and powerful in our society.

Pulling a Menzi Simelane

Dec 3rd, 2009
by Pierre De Vos.
71 comments

In the past I have been critical of the way in which the Judicial Services Commission (JSC) has been fulfilling its constitutional obligations as required by the Constitution. The preposterous decision of a majority of members on the disciplinary committee of the JSC (all but one of the lawyers on the JSC committee voting with the minority) to gloss over the blatant lies of one or more of the parties in the battle between the Constitutional Court and Judge President Hlophe, is a case in point.

The JSC has not always covered itself in glory and some of its members, whose ego’s seem disproportionately large compared to their intellects, have made fools of themselves by bullying candidates for appointment or by making statements (including blatantly homophobic statements) which display a serious lack of commitment to the values of the Constitution.

Unlike Ngoako Ramatlhodi, who believes the JSC may not be criticised (unless the criticism emanates  from Judge President Hlophe or the ruling party, of course), I believe we all have a right and a patriotic duty to subject the actions of the JSC to critical scrutiny and to lambast it if we think it is not doing its job properly. That is what democracy is surely all about.

Yet, such criticism should be based on the facts and on a plausible interpretation of the Constitution and the law. That is why I take issue with an article written by James Myburgh and published on Politicsweb, in which he launches a scathing attack on judicial transformation in South Africa. Myburgh was upset with innocuous remarks made recently in Johannesburg by former South African, Margaret Marshall, who is now the Chief Justice of the Massachusetts Supreme Judicial Court, In the Bram Fisher Memorial Lecture at the Legal Resources Trust, Marshall said:

In its fifteen years of constitutional democracy, South Africa has made remarkable strides in creating a diverse judiciary of distinction. You have done so on a far faster, and more impressive scale than we have…. The diversity of your courts is, and should be, great cause for pride and celebration.

Myburgh points to the entirely uncontroversial remarks by President Jacob Zuma in June this year to bolster his case that the appointment of judges is now an entirely racist affair. Zuma said then that the “transformation of the judiciary entails amongst others having a court system that the people of South Africa have confidence in. Obviously as part of this, we need to ensure that judicial officers reflect the demographics of our country”. Myburgh then continues:

Marshall is certainly correct to claim that the ANC has attained its racial goals in the judiciary speedily and on an impressive scale. Whether this is “great cause for pride and celebration” is more open to question. It represents, for one thing, the triumph of extreme racism. One of the founding texts of modern German anti-Semitism – Adolf Stoecker’s 1879 pamphlet “What we Demand of Modern Jewry” – called for the “limitation of appointments of Jewish judges in proportion to the size of the population.” Should South Africa really be proud that, a hundred and thirty years later, the ANC has adopted the same limitation, when it comes to the appointment of white (including Jewish) judges in South Africa?

Such over the top criticism, it seems to me, is singularly unhelpful as it completely denies the political imperative of transforming our judiciary to make it more legitimate and to rectify the past racial discrimination in the appointment of judges. By equating Nazi Germany with present day South Africa, Myburgh ignores three hundred years of racial oppression in South Africa and fails to see that as a matter of ethics and of law there is a need for the racial and gender transformation of the judiciary. Surely a more racial and gender diverse judiciary is one of the (many) requirements for the establishment of a more legitimate legal system.

In fact, he also ignores section 174(2) of the Constitution which states that “[t]he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”. To call the JSC’s preference for the appointment of suitably qualified black men and women as judges a “triumph of extreme racism” also directly contradicts the views expressed by the Constitutional Court in Minister of Finance v Van Heerden which stated that our Constitution’s equality guarantee does not only allow for different treatment on the basis of race to correct past injustice, but sometimes demand it.

Pulling a Menzi Simelane, Myburgh chooses to ignore the authoritative interpretation of the Constitution by our highest court in order to further a narrow political agenda. This is because he attacks the very principle enshrined in our Constitution that requires a racial transformation of the judiciary. He obviously believes that race should play NO role in the appointment of judges, a position that is legally untenable and unethical, given our history of racial oppression and the provisions in our Constitution.

This does not mean, of course, that the JSC should not be criticised for the manner in which it has gone about its constitutionally mandated task. It has made some really bad appointments in the name of judicial transformation. (The appointment of John Hlophe as Judge President of the Cape High Court and Carol Lewis to the Supreme Court of Appeal are two prime examples of this affirmative action policy going very wrong.)

What is needed is a more nuanced approach to this issue, including – as pointed out on this Blog before – an engagement with the way in which the legal profession is structured and the racially skewed briefing patters at the bar. (In this regard I note with interest that Menzi Simelane asked a white lawyer, David Unterhalter, to provide him with arguments to defend himself against the findings of the Ginwala Inquiry and the recommendations of the Public Service Commission that he should face disciplinary charges.)

Making wild statements comparing South Africa and Nazi Germany detracts from these real issues with which we have so far not engaged with sufficiently.

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