There is strong anecdotal evidence (as well as some research from South Africa and the USA), that suggests the race, the gender, the class, the HIV status, the sexual orientation or the education level of both the killer and of the victim sometimes play a role in the severity of the sentence imposed on a killer. A white farmer who kills a black labourer may sometime receive a lighter sentence than a black unemployed youth who kills a blonde young woman. A heterosexual man who kills a lesbian may sometimes receive a lighter sentence than a poor gay man who kills a rich heterosexual banker. And if one kills a tourist who lives in Europe one might well get a far heavier sentence than if one kills a poor black woman living in a rural area.

Given the serious delays in the Nkonyana case, coupled with reports of sloppy investigation and the stalling tactics used by the lawyers representing the killers, it is a bit of a miracle that the four men were indeed convicted and sentenced yesterday. From personal experience I know that not all members of the police are eager to investigate hate crimes against gay men and lesbians and often fail to investigate reports of assault against gay men, lesbians and transgendered persons. And if they do investigate the crimes they often fail to do so with the same diligence than they would investigate, say, the murder of a foreign tourist or a blond girlfriend of a rugby player.

This is not to deny that we have made progress over the past 15 years. At least the case was investigated and brought to court, the accused received a fair trial and the presiding officer was prepared to convict the killers and sentence them to jail – despite the fact that they “only” killed a black lesbian.

For example, some years ago Judge President John Hlophe allowed Christopher Moses “to get away with murder” because his victim was HIV positive. Moses had killed a gay man called, Gerhard Pretorius, and then claimed that, on the night of the murder, he and the deceased had unprotected penetrative sex for the first time. He also claimed that after the sex, Pretorius told him that he had HIV.

Moses’s defence, as stated by his psychiatrist, was that he flew into “an annihilatory rage” beyond his control. The state psychiatrist demonstrated that Moses could not have lost total control because the evidence demonstrated a sustained “complex and goal- oriented” attack. Academic critics argued that Hlophe should have found Moses guilty of murder and that he had misapplied the doctrine of criminal capacity to the case. The murderer’s personal circumstances indicated a reduced sentence would have been appropriate. Instead, Hlophe found that knowingly exposing a person to HIV was sufficient reason to murder them with an excuse of “uncontrollable rage”. He ignored the undisputed objective evidence of premeditation, including fetching two different knives to finish a murder and then setting about creating an alibi.

In any event, it is impossible to say whether the sentences imposed on Zoliswa Nkonyana’s killers would have been significantly lighter if the court had not made a ground-breaking ruling that the killing was motivated by homophobic hate and if this was not taken into account as an aggravating factor in sentencing. Section 28 of the Equality Act states that when the state proves that unfair discrimination on the grounds of race, gender or disability played a part in the commission of the offence, this must be regarded as an aggravating circumstance for purposes of sentence, but the court yesterday extended this to sexual orientation. This section does not mention sexual orientation discrimination or any other criminal attacks animated by hatred for gay men or lesbians

Interesting, while looking at this aspect of the Equality Act, I have been unable to determine whether the provisions of this part of the Equality Act (which deals with the Promotion of Equality by the State and private individuals) have indeed come into operation. My LexisNexis legal database states that the date of commencement of these sections is “still to be proclaimed”. This means that the positive obligations imposed by the Equality Act to promote equality and thus deal with the causes of prejudice and discrimination have never been put into force, which would be strange, given the professed commitment of our government to the achievement of equality.

Section 25 of the Equality Act spells out some of the positive obligations placed on the state by this Act to promote equality.

(1) The State must, where necessary with the assistance of the relevant constitutional institutions (a) develop awareness of fundamental rights in order to promote a climate of understanding, mutual respect and equality; (b) take measures to develop and implement programmes in order to promote equality; and (c) where necessary or appropriate: (i) develop action plans to address any unfair discrimination, hate speech or harassment; (ii) enact further legislation that seeks to promote equality and to establish a legislative framework in line with the objectives of this Act; (iii) develop codes of practice as contemplated in this Act in order to promote equality, and develop guidelines, including codes in respect of reasonable accommodation; (iv) provide assistance, advice and training on issues of equality; (v) develop appropriate internal mechanisms to deal with complaints of unfair discrimination, hate speech or harassment; (vi) conduct information campaigns to popularise this Act.

(2) The South African Human Rights Commission and other relevant constitutional institutions may, in addition to any other obligation, in terms of the Constitution or any law, request any other component falling within the definition of the State or any person to supply information on any measures relating to the achievement of equality including, where appropriate, on legislative and executive action and compliance with legislation, codes of practice and programmes.

(4) All Ministers must implement measures within the available resources which are aimed at the achievement of equality in their areas of responsibility by: (a) eliminating any form of unfair discrimination or the perpetuation of inequality in any law, policy or practice for which those Ministers are responsible; and (b) preparing and implementing equality plans in the prescribed manner, the contents of which must include a time frame for implementation of such plans, formulated in consultation with the Minister of Finance.

Once these sections become operational (if ever) the state will have a legal duty to take the lead in educating the public around issues such as racism, sexism, homophobia, religious intolerance (including intolerance against non-believers), and prejudices against disabled persons.

The fact that this has not happened to the degree envisaged by the Constitution (and by these seemingly inoperable provisions of the Equality Act), suggests that not all members of our government (at both national and provincial level) are fully committed to the eradication of all forms of hatred and prejudice and to the promotion of a world in which all kinds of differences between people are respected and even celebrated.

What is needed to turn the tide against prejudice and hatred based on sexual orientation (as well as race, sex, gender and disability) is political leadership from the highest level. Unless the President, the Deputy President and Ministers (as well as Premiers and MEC’s and Mayors) regularly speak out against homophobia (and other forms of prejudice) and against the violence and threats of violence that haunt especially working class, black, gay men, lesbians and other sexual minorities, attitudes will not begin to change.

Just like Helen Zille needs to speak out regularly against racism and the racial utterances of people like Steve Hofmeyer, so Jacob Zuma should speak out against the homophobic statements that are regularly made by other politicians, community leaders and religious leaders.

Until these leaders stop feeling embarrassed about the fact that we have different sexual orientations and until they stop – through their silence – from condoning the hatred and prejudice that too often spill over into violence against gay men and lesbians, attitudes will not begin to change.

A good place to start a campaign that would foster respect for difference would be in our schools. School principals need to be trained in diversity management and should only be promoted if they can demonstrate that they have taken steps to create a school environment in which racial, gender, sexual orientation and religious diversity is not only tolerated but celebrated. An environment should be created in which teachers begin to realise that they have a duty to promote the values contained in our Constitution – including the value of respect for the human dignity of everyone, regardless of his or her sexual orientation.

The truth is that most politicians are uncomfortable about sexuality issues and would rather never have to think about the fact that gay men and lesbians exist and that they are our brothers and sisters, our mothers and fathers, our sons and daughters, our comrades and colleagues. They will not speak out against injustice because they are scared that they will be viewed with suspicion (and might be suspected of being gay or lesbian themselves), so they keep quiet while people like Zoliswa Nkonyana get harassed, assaulted, raped and murdered.

White South Africans have a specific duty to speak out against racism whenever it is expressed or perpetrated by fellow whites. When they keep silent around braaivleis fires, in boardrooms, at dinner parties when somebody tells a racist joke or makes racist statements about black South Africans, they become complicit in the perpetuation of racism. Similarly, if we remain silent in the face of implicit or explicit homophobia amongst our friends we become complicit in homophobia and, ultimately, in the killing of gay men and lesbians.

How anyone can justify his or her silence in the face of racism and sexism and homophobia, I really do not know.

Lemme tell ya something. America is a great nation, because we’re a united nation and those who are trying to divide the nation as you’re trying to do here and as the president is doing are hurting this country, seriously. The right course for America is not to divide America, and try and divide us between one and another, it’s for us to come together as a nation. And if you’ve got a better model, if you think China is better, or Russia is better, or Cuba’s better, or North Korea’s better, I’m glad to hear all about it. But you know what? America’s right, and you’re wrong!

This argument is often used by the rich, who complain that the so called 99% of the US population (who are not stinking rich) may be stoking “class warfare”. It serves as a handy mechanism for stopping anyone from questioning the inequality, the unearned privileges bestowed on the rich, and the obscene unfairness of the US economic and social system and helps to protect the status quo.

I was therefore surprised when Cape Town mayor, Patricia de Lille (who used to have more progressive principles before she joined the Democratic Alliance), used this same kind of language to attack people who were planning to highlight unfairness and economic inequality in Cape Town by “occupying” the Rondebosch common (a piece of untidy, windswept grass and bushes in the middle of the leafy middle-class suburbs of Cape Town).

Last week, in a speech delivered by the mayor in the city council chambers, De Lille called the leader of the protest (a guy with the wonderful name of Mario Wanza) and his supporters “agents of destruction” and then continued:

There are those who would sooner see this city destroyed, driven in two by violence and aggression, than be a part of a shared destiny. I tell this council now, those agents of division will not win. I think here in particular of Mario Wanza, a would-be but failed public servant, who claims to speak on behalf of the people of the Cape Flats. … [I would not allow] these agents of destruction to use their misguided, naive and brutal misunderstandings of the politics of race to divide this city. … I tell the people of Cape Town this: They will not succeed because we will not let them.

Given these fighting words (with De Lille seemingly channelling her inner PW Botha), it was perhaps not surprising that the police refused to give permission for the gathering and declared the gathering “illegal”. The police did so on what appears to be spurious grounds, arguing that organisers arrived “between 15 and 30 minutes late” for their meeting with police officials and that organisers insisted on having all nine elected representatives present in the meeting as opposed to four.

These reasons are, to say the least, completely spurious, suggesting that the police had a mandate to stop this gathering at any cost. In fact this kind of reasoning has a rather authoritarian ring to it and seems to be based on the assumption that taking part in a protest is not a right, but a privilege that can be bestowed and can also be taken away by a police officer if an organiser of a gathering does not behave “properly”. This used to be the legal situation in apartheid South Africa, but as we now live in a constitutional democracy it is no longer the case. Somebody should tell the police (and mayor De Lille)

The Regulation of Gatherings Act makes it very clear that the responsible police officer has a duty to negotiate with organisers of a gathering and to do so in a way that would help the organisers to conduct a peaceful protest march or gathering. Where a police officer fails to do everything in his or her power to ensure that a peaceful and orderly gathering can take place, that police officer is breaking the law and is also infringing on the constitutionally guaranteed rights of citizens.

Reading the various provisions of the Gatherings Act, it is impossible to see how the police could validly have declared this gathering illegal and how they could reasonably have believed that they had the right to do so. The relevant police officers either have difficulty with basic English comprehension or they deliberately decided to flout the provisions of the Regulation of Gatherings Act in order to get this gathering declared illegal (which happened to comply with the wishes of mayor De Lille).

One would have hoped that De Lille would have condemned this apparent abuse of power by the Police. After all, she is a leader of the DA, a political party who has often (rightly) expressed outrage when ANC-aligned government officials flout the law. The DA is also a party who has presented itself as a champion of the Rule of Law – even challenging the unlawful appointment of Menzi Simelane as National Director of Public Prosecutions in court. But alas, when the fears and short term interests of upper-middle class DA voters clash with respect for the law and adherence to democratic principles, one should not expect principle to hold sway. The mayor thus made statements which endorsed the dubious notion that this gathering was an “illegal” one.

The Regulation of Gatherings Act makes it clear that every person has the right to assemble with other persons and to express his or her views on any matter freely in public and to enjoy the protection of the State while doing so. As such, this Act gives expression to the right of everyone (guaranteed in section 17 of the Bill of Rights), peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.

This right is an important one for any democracy as it helps to even out the political playing field. Given the fact that access to money and a proximity to the powerful often give certain people or pressure groups disproportionate influence over the politicians and the political process, this right to protest can be viewed as a right that is of particular importance for the poor, the powerless and the dispossessed. How else will people living in poor and marginalised communities have their voices heard and their concerns listened to?

My guess is that the rather reactionary tone of De Lille’s statement and the heavy-handed and probably illegal actions of the police stem from the fear that a protest on the Rondebosch common would indeed provide a voice to the voiceless and would challenge the cosy elite pact between the politicians and the rich (the very rich whose donations keep the major political parties afloat).

Because the right to protest is fundamental to the proper functioning of a democracy, the Gatherings Act assumes that gatherings and protests will almost always be allowed and that technicalities will not be used to ban protests that would make the powers that be uncomfortable. Thus section 3(5)(c) of the Act even requires the relevant police officers to try and identify organisers of protests and gatherings and then engaging with those organisers – even if no notice was given of the protest or gathering by its organisers. Furthermore, section 4(1) places a legal duty on the responsible officer to engage with organisers of a gathering or protest to try and reach agreement about how the gathering or protest would be conducted.

Section 4(4)(b) of the Act also allows the responsible officer to impose certain conditions on the gathering or protest if there are reasonable grounds to do so in order to minimise traffic disruptions, to ensure continued access for others to their places of work and property, to prevent injury to any person and to prevent the destruction of property. When an officer imposes such conditions he or she is required by law to give written reasons for this.

Section 5 of the Act makes it clear that a gathering or protest may only be prohibited in extreme cases. This section states that:

When credible information on oath is brought to the attention of a responsible officer that there is a threat that a proposed gathering will result in serious disruption of vehicular or pedestrian traffic, injury to participants in the gathering or other persons, or extensive damage to property, and that the Police and the traffic officers in question will not be able to contain this threat, he shall forthwith meet or, if time does not allow it, consult with the convener and the authorized member, if possible, and any other person with whom, he believes, he should meet or consult, including the representatives of any police community consultative forum in order to consider the prohibition of the gathering.

Only after such a meeting would a responsible officer be able to prohibit a gathering, if he or she is convinced “on reasonable grounds” that no amendment to the conditions of the gathering would prevent serious disruptions or extensive damage to property.

Now, people who are familiar with Cape Town would know that no person could reasonably claim that a gathering on the Rondebosch common would seriously disrupt traffic or that it would pose a serious risk to people or that extensive damage to property would ensue. There are no buildings on the common and nobody lives or works on the common, so how the police could have decided that the gathering posed a serious risk to the safety of people or to damage of property is beyond me. In fact, I would go as far as saying that the police acted illegally (perhaps spurred on by the incendiary comments of the mayor?) by banning the gathering. The subsequent heavy handed actions against those who chose to gather on the common and the arrest of all those who took part was therefore in all likelihood illegal.

A liberal administration would never have made the kind of statements that De Lille made and would never have suggested that the protestors should be stopped. A liberal administration would have championed the right of protesters to gather and convey their message (even in a suburb where rich DA voters predominate) and would have done everything in its power to ensure that a peaceful protest with the least amount of disruption took place. But then again, the DA administration in Cape Town can probably only be said to be liberal in name.

PS: The headline is an ironic quotation of a headline which appeared in Die Son newspaper a few years ago when it reported on the fact that “singer” Patricia Lewis “acted” in a soft porn movie.

This complaint probably stems from the fact that President Zuma, other Ministers, MEC’s, Mayors as well as the Judicial Service Commission (JSC) have all suffered embarrassing legal defeats before our courts over the past year. It is unclear why they have lost so often and so badly. One possibility is that they had received appalling legal advice from their advisors (or in the case of the President, from the Minister of Justice). Another is that they had failed to follow the sound legal advice provided to them.

This distinction between legal issues and policy decisions is, of course, difficult if not impossible to maintain. For example, clearly the President has a wide political discretion to appoint a man or woman of his choice as the National Director of Public Prosecutions (NDPP). But if he were to appoint a convicted fraudster to that position this would be unlawful as the National Prosecuting Authority Act (passed by the ANC dominated Parliament) requires him to appoint a “fit and proper ” person as NDPP.

In such a case the court would have a duty (if called upon to do so) to enforce the law and would have to declare the appointment invalid. If the court did not have the power to enforce the prescriptions of any law, the law could be ignored and then we would potentially live in an anarchic and lawless state. But in declaring the appointment unlawful, the court would interfere with the policy choice of the President – albeit a choice that was exercised in a manner that flouted the law. In a case like that the distinction between policy and legal considerations would dissolve and would become meaningless — unless one really believed that law was not binding on the executive at all and that a court should therefore not ever have the power to enforce the provisions of a law that was passed by the legislature. Such a system would be akin to an absolute monarchy or a dictatorship in which the legislature would perform a symbolic function as a pretend-democratic chamber whose decisions would be ignored at will by the President.

But two recent decisions by the ANC and the DA do actually demonstrate the problem of purely political decisions masquerading as quasi-legal decisions. Purely political decisions recently instigated by Zuma and Zille have been dressed up as disciplinary cases in order to provide a fig leaf of respectability and legitimacy to the witch-hunts against the recalcitrant party members who have challenged the authority of the respective party leaders.

The first case is well known: a selected number of the “top six” leaders of the ANC (which happened to include Jacob Zuma and Gwede Mantashe who were both known enemies of the accused) decided to have Julius Malema charged with contravening certain provisions of the ANC Constitution. Malema was then “tried” before an ANC disciplinary committee. The committee comprised of “disciplined members of the ANC” and can in no way be considered to be independent or impartial as it lacked even the most basic safeguards that would have secured its independence and impartiality. The conviction of Malema was a foregone conclusion but in order to give this outcome a semblance of legitimacy the disciplinary hearing was conducted as if it was a legal one.

The legitimacy of the process was, however, compromised (despite the pretence at legality) because the disciplinary committee members who previously had run-ins with Malema did not recuse themselves and the committee also “forgot” to hear evidence in mitigation after it found Malema and other members of the ANC Youth League guilty of the charges.

The DA has meanwhile launched disciplinary proceedings against DA MP Masizole Mnqasela, after he angered its leader Helen Zille. This he did because during a heated internal party election contest for Parliamentary leader of the DA he stated on prime-time radio that Lindiwe Mazibuko was not black enough to become the DA’s parliamentary leader. Mr Mnqasela had dismissed Ms Mazibuko’s candidacy as “window-dressing” in the lead-up to the DA parliamentary caucus election.

Zille was not amused by this and launched a scathing attack on Mnqasela by saying he had “made a fool of himself and the party”. Writing in her weekly newsletter, Zille equated Mnqasela’s controversial remarks to “Verwoerdian thinking”, referring to the architect of apartheid, Hendrik Verwoerd. “Even in the DA, Verwoerdian thinking sometimes rears its ugly head … I may have missed something, but not once during her campaign did Lindiwe or her supporters ever say she should be elected leader of the caucus because she is black,” Zille wrote.

The DA Constitution allows for a disciplinary committee to hear such a case. Such a committee is not independent but is elected by politicians who are also leaders of the party (on a regional basis) and its members will in all likelihood not wish to upset the party leadership – at least not if they had any thoughts of getting ahead in the party and maybe even becoming a shadow minister of bottle washing or of Zille praise singing. The committee is therefore neither independent nor does it have the necessary characteristics of a body that would act impartiality (or that one could reasonably be expected to act impartially). Zille (like Zuma) has made it clear what outcome is expected of this quasi-legal DA disciplinary process and I, for one, would be very surprised if Mnqasela is not found guilty of some or all of the charges against him.

Ironically, these two examples illustrate (to some degree, at least) the legitimising power that the law still exerts over our imaginations. It reminds us of the dominance in our culture of the liberal view that the law is (almost) always a neutral and objective mechanism for the fair resolution of disputes (even though the presiding officers might get it wrong in exceptional cases and might rely on their own personal ideological views when they resolve a dispute).

But it is even more ironic that by using quasi-legal processes in such a blatant and obvious way to try and legitimise decidedly political decisions, Zille and Zuma run the risk of unmasking the political nature of most legal processes and of helping to delegitimise the liberal version of the law, a version that assumes the law is a neutral and objective mechanism for the imposition of violence on citizens. Because those highly politicised disciplinary processes abuse a quasi-legal process to give some credibility to what are essentially political decisions to act against the members of two different political parties who had dared to cross the leader of the respective parties and threatened the authority of both Zille and Zuma, people might well become cynical about the law more generally.

They might begin to think that law is merely a form of politics perpetrated by members of an unelected clan of legally trained judicial officers. After all, lawyers already know that it can matter a great deal who the presiding officer in a case is. They also know that external political considerations may play a role in the decisions taken by a presiding officer. I recall that in the earlly 1990ties, the Supreme Court of Appeal (SCA) suddenly softened its stance on ANC aligned criminal defendants and reduced Winnie Mandela’s sentence so that the then wife of Nelson Mandela would not have to go to jail. That outcome would have been unthinkable in the mid 1980ties.

This is dangerous terrain for lawyers and judges because political demagogues and populists might easily exploit this ambivalence in the law’s relation to politics to try and delegitimise the courts and the legal process entirely. And this would open up a space for an entirely lawless and authoritarian regime to emerge in which the law on paper would mean nothing more or less than what the President said it meant.

Lawyers therefore face the challenge of producing plausible arguments about the interaction between law and politics, arguments that would acknowledge the fact that legal rules (and the way they are interpreted and applied) can hardly be said to be neutral, but that make strong claims about the ability of such legal rules (to some extent, at least) to constrain the judges that interpret and apply them so that those judges do not merely impose their own personal political preferences on the parties in a dispute before them.

On the one side you have the lunatics (sorry Gareth!) like Connie van der Walt who wrote that if the guy in this picture was her son she would “shoot him dead like a bad dog”. On the other hand, there are those who interpret the poster as subliminally racist, either because it depicts a white and black person in an intimate pose at all, or because (slightly more plausibly) it depicts a white man and a black woman in an intimate pose.

Others have, of course, been outraged by the “disgusting pornography” of it all, given the fact that the two people in the poster appear to be naked from the waist up. (The people who pretend to be shocked by a mild poster like this, are probably not familiar with real pornography and would probably not make good classifiers at the Film and Publications Board.)

What is going on here? I believe (and I would, would I not?), these reactions demonstrate a few revealing things about our communal attitude towards race, sex and gender.

First, it seems to me that these reactions demonstrate the obvious fact that certain opponents of race-based affirmative action, who argue that we should not rely on racial categories when we devise measures to address the effects of past and on-going racial discrimination, are wrong. These critics argue that racial classifications are always morally repugnant, that it is in any case not always easy to determine what the race of a person is, that people who embrace non-racialism might not even see race at all, and that redress can be achieved without invoking such categories as people suffer disadvantage not because of their race but only because of their lack of access to financial and other resources.

I think the poster is rather clever (although DASO probably did not think about this) because no one who sees it will be able to deny that they noticed that the man and the woman in the poster look, well, “different” from each other. How we respond to it will of course depend on our deeply held (and perhaps unexamined or unknown) views on race and sex. We might see a white man once again exploiting a black women (despite the fact that the two people look more or less the same age and are both beautiful), or we might see two heterosexuals who are going to get a lot of flak from their parents, or (I confess this was my first thought) we might wonder whether the white guy is actually going to take his girlfriend home and whether he will one day marry her.

Given this obvious fact, how do people continue to assert that race has stopped mattering in South Africa and that most well-adjusted middle class (white?) people never see race anymore? How can we maintain the fiction that when a black person and a white person apply for the same job, we do not take any notice of the race of the applicants – unless we are forced to do so because of the requirements of affirmative action?

The poster reminds us that (as I have written before):

race hovers not far from the surface in private or other everyday settings: as an unspoken presence, a (wrongly) perceived absence or as a painful, confusing, liberating or oppressive reality in social, economic or other – more intimate – interactions between individuals or between groups of individuals. In South Africa we cannot escape race. We cannot escape our own race. Even when we claim that we have escaped the perceived shackles of race, we are merely confirming its presence by our stated yearning for its absence. And because of this we cannot claim that race does not matter when we talk about redress.

Second, the poster reminds us that many people (of all races) have internalised an apartheid mind-set regarding race, sex and gender and are utterly incapable of seeing intimacy between two people of different races and sexes in anything but starkly racial and gender stereotypical terms. Thus they claim that the poster reflects a racist and/or sexist mind-set because it depicts a white man (a man being the person who supposedly “is always in charge” in a sexual interaction) with a black woman (who is supposedly “always submissive” and to some extent the victim of the man’s sexual aggression).

To such people the thought never seems to have occurred that the women in the poster could be in charge (in charge emotionally, financially and/or physically) and that we cannot tell from the poster whether this is so or not. They have jumped to conclusions (based on their own internalised prejudices and stereotypical assumptions about race and gender and sex) that the woman in the poster is a meek receptor of male aggression. Maybe some have done so because the poster originated with the DA and in that context they are prepared to expect that the DA shares these racial, sexual and gender prejudices. But I would guess most did so because of their own prejudices of which they might not be aware – and not because of their view of the DA.

Lastly, the poster reminds us that many South Africans have internalised a notion of sexuality which has its origins in Judeo-Christian culture. We might call ourselves “Africans” but we often think about sex like modern day Christian missionaries. The assumption underlying the Judeo-Christian tradition is – as Susan Sontag has argued – that a person can be judged as “good” or “bad” (in other words, that a person can be judged as moral or immoral) almost exclusively based on that person’s sexual desires and/or conduct.

Sex is therefore always viewed as a “special case”. While we may not be judged for letting a man starve, we will be judged for wanting to sleep with that man. While a person (of whatever race) may therefore think of him or herself as having no racial prejudices, these prejudices might be flushed out when confronted with a poster that hints at sex between two people of different races. Seeing a black woman in the arms of a white man, the person recoils, either because the picture evokes (in the mind of the racist) unspeakable immoral couplings between the two, or because it evokes (in the mind of the person infected by colonial ideas) images of sexual exploitation of a black woman by a white man.

Leaving aside the white racists, many people would not recoil if he or she saw a picture of black man and a white woman sitting next to each other around a boardroom table. But when they see this picture, they do recoil instinctively because sex, somehow, is different. How ironic that they might then produce arguments that might sound progressive, arguments about the exploitation of black woman, while they are justifying the prejudices which they carry with them, prejudices that can be considered as one of the “special gifts” bestowed on indigenous South Africans by the colonial culture.

Which brings me to the second poster of the DA Youth depicted in this post. What, I wonder, would the reaction be to this poster of two men of different races? Would the same people who recoil at seeing a white man in an intimate situation with a black woman feel comfortable with two men of different races in an intimate situation? If they do not recoil, does this say something about how we construct woman as necessarily passive, powerless and meek? If they do recoil, do they know that their minds have been colonised by the ideas first brought to South Africa by white missionaries? I wonder…

If I have time in the next few days, I will critique former President Mbeki’s latest attempt at justifying his flirtation with Aids denialism and his unique interpretation of Muammar Gadaffi’s “peaceful” nature.  Recall for the time being that Gadaffi had warned Libyans rising up against his rule (people he called “rats and cats”, who were “drugged cockroaches”),  to hand over  weapons or “we will announce the holy march, I will call on millions from one desert to another to cleanse Libya house by house…”

But today I wish to raise an interesting point of constitutional law. Although it is never going to happen, I have been asked what would the legal position be if Thabo Mbeki is re-elected as ANC President at the end of the year. Would he be able to return as President of the country, given the fact that he never served a full second term as President?

Section 88(2) of the Constitution states that no person may hold office as President for more than two terms. The section does not say that a President cannot serve more than two consecutive terms, which means the Putin option is not available to a South African President who has served two full terms. A President can therefore not serve two terms, then do something else for five years, only to return to serve as the President for another 10 years after that.

But here is where things get murky. The ban on serving more than two terms as President is qualified by a sub-clause contained in section 88(2), which states that when a person is elected to fill a vacancy in the office of President, the period between that election and the next election of a President is not regarded as a term. Where a President is therefore elected as President after a general election, but then resigns or is fired by the National Assembly and is replaced by another President, the new President will serve the rest of the five year term without that part of the term counting as one of his two terms in terms of section 88(2).

This means that although Kgalema Motlanthe served as President after the removal of Mbeki, he did so to fill a vacancy in the office of the President and he would thus still be able to serve two full terms as President — were he ever to be elected as President of the ANC.

Although Mbeki did not serve a full second term, the wording of section 88(2) seems to be rather specific and does not allow a President who was elected after a general election and was then removed as President during his second term or resigned as President during his second term, to serve another (in effect, third) term later on.

There is a good reason for this. A President is not directly elected, but is rather elected by the members of the National Assembly. In terms of section 102(2) of the Constitution, the majority of members of the National Assembly can also fire a President and his or her cabinet for any reason they wish. For example, they can fire an aloof President who had lost the election for the ANC leadership — as they would have done with Mbeki if he had not resigned after being “recalled” by the ANC.

The majority party in the National Assembly can therefore dictate who must serve as President and had section 88(2) been phrased differently, the leader of that party would have been able to manipulate the support of his party MP’s to hold on to the Presidency indefinitely by a bit of crookery. If section 88(2) had provided that a President who had resigned before the end of his or her term would be assumed not to have served a term as President for the purposes of section 88, it would have opened the door for a President to serve for as long as his party wished him to serve as President.

All that a serving President would have had to do to achieve this, would have been to resign one month before the end of his or her second term — only to be re-elected for another “second” term after the next election. This is why section 88(2) disregards the part of a Presidential term served by a President taking over from an elected President during the five year life of a Parliament, but does not allow a President elected right after an election to discount his or her term served if he or she resigned or was fired before the expiry of a second term. However, the system can still be tricked, as a President who wished to serve more than two terms and who planned ahead could have another person elected as Presdident after the general election, only to replace that President after a month or two. This would, however, require blind support from his or her party and some foresight.

All this means that Mbeki can never serve as President of the country again — unless the Constitution is amended. This seems very unlikely, not only because the ANC would probably not agree to it, but also because the party does not have a two-thirds majority in Parliament (unlike in the days of Mbeki) and would probably not be able to persuade smaller parties to support such an amendment.

This does not mean, of course, that theoretically speaking, Mbeki could not be re-elected as President of the ANC. The ANC Constitution does not prohibit this. Neither does the Constitution require the President of the country also to be the leader of the majority party in Parliament (a situation that seems to differ from that of the Leader of the Opposition).

Of course, where the President of the majority party does not serve as President of the country (even when he or she is entitled to do so), the authority of the President and his or her executive may well be fatally compromised and the constitutional system may well take severe strain. In such a situation, the danger is that very little real power will be exercised within the formal constitutional structures like the Presidency and the executive. As we all know after the firing of Mbeki, it is the President of the majority party and the other leaders of the majority party who decide who serves as President, then instructs the members of the National Assembly to elect or fire whomever is necessary to give effect to this decision.

This situation will aggravate a problem that is inherent in our constitutional design. Although the President is supposedly accountable to Parliament and is elected and can be fired by the Assembly, in reality the President is accountable only to his or her political party and it’s leadership, who can decide who serves in Parliament and can also fire the members of their party as members of Parliament if they refuse to follow instructions from the party leadership. Where a President is not the leader of his or her party, the party will almost certainly try to remote-control the President and this might well lead to a further conflation of the ruling party, constitutional institutions like the Presidency, and the state.

This is also why I am no great fan of the current DA arrangement where its leader serves as the Premier of a province and a member of the Assembly is elected by the party to serve as Leader of the Opposition. Section 57(2)(d) of the Constitution states that the rules of the National Assembly must provide for “the recognition of the leader of the largest opposition party in the Assembly as the Leader of the Opposition”.

Helen Zille is the “leader of the largest opposition party in the Assembly”, yet Lindiwe Mazibuko serves as Leader of the Opposition. There are two problems with this. First, it is unclear to what extent Zille controls the Leader of the Opposition (and to what extent she did so with the two previous DA “leaders” who had served as Leader of the Opposition in Parliament). Second, it is far from clear that somebody who is not the leader of the largest opposition party in parliament can serve as Leader of the Opposition at all.

Section 57(2)(d) of the Constitution can be read as prohibiting anyone other than the actual leader of the largest political party in the Assembly serving in the role Mazibuko is serving in. Mazibuko might therefore very well not officially and lawfully be Leader of the Opposition at all as that title and role might well be reserved by the Constitution for the actual leader of the DA – Helen Zille.

In any event, these issues once again remind us that our Constitution has failed to regulate the relationship between political parties and their elected representatives in the legislature and the executives (at both national and provincial levels). This means that the power of the President or of Premiers vis-a-vis that of the leadership of the political parties they lead, will differ widely, depending on how tight a grip the President or a Premier has on his party. Where the President has no grip whatsoever — as seems the case with Jacob Zuma – the party leadership (in the case of the ANC that would often be Gwede Mantashe) will often act as the power behind the throne, but without having to worry about any of the checks and balances built into the constitutional system.

The ANC has a lot to celebrate and feel proud about (especially about its past), but the quality of its current leaders drinking champagne on that stage (and, directly related to this) the manner in which such leaders are elected, are not part of that which the organanisation can feel proud of. No wonder President Jacob Zuma announced that “the ANC will renew its internal systems and processes in order to prepare and produce new generations of leadership for our country, whose integrity and passion to serve our country is unquestionable”.

The same noises about changes to the internal election procedures of the ANC were made four years ago and nothing came of it, but there is surely an urgent need to address the manner in which party leaders are elected in the ANC – and given recent problems with internal party elections in the Democratic Alliance (DA), also in that political party - to make these processes more democratic and to try and insulate the processes from corruption and the influence of money.

This is important not only for the health of the ANC (and other political parties like the DA) but also for our democracy as a whole. Given the fact that our pure proportional representation electoral system does not allow us to directly elect any public representatives at the national or provincial levels (we can only vote for a party, never for a person), the Mandarins at Shell House might want to consider amendments to the process of electing leaders that would make such elections more transparent and bring them more in line with the democratic values of openness, accountability and transparency set out in the founding provisions of our Constitution.

However, neither the ANC nor the DA had shown an appetite before for developing binding legal rules to force political parties to adhere to minimum standards of internal democracy.  A few years ago when I suggested at an Idasa event that our Parliament should adopt a political party law that regulates the funding of political parties as well as prescribes minimum requirements for internal party democracy for the election of leaders and of representatives to our various legislatures, the then DA Chief Whip, Douglas Gibson, was not amused and accused me of wanting to impose a North Korean style system on South Africa.

Instead of starting to cry like a North Korean, I wrote the following email to Mr Gibson the next day which remains pertinent for this debate:

Last night at the Idasa event on the working of Parliament I asked whether political parties in South Africa would be prepared to consider the adoption of a party law that would, inter alia, regulate the way in which candidates are selected to stand for public office. You replied that this was unacceptable and never happens in any democracy – “only in countries like North Korea”. I thought it might be interesting for you to know that many countries do have party laws, including Germany, Argentina, Mexico, South Korea and as far as I can tell at least 40 others.

In Germany Article 17 of the Party law of 1967 (last amended in 1994) states that: “The nomination of candidates for election to all levels of government must be by secret ballot. The nomination procedure shall be as prescribed by the electoral laws and party statutes.”

Article 21 of the electoral law further regulates the matter as follows:

“(1) A person may only be named as a candidate of a party in a constituency nomination if he or she has been elected for this purpose at a members’ assembly convened to elect a constituency candidate or at a special or general delegates’ assembly. A members’ assembly convened to elect a constituency candidate shall be an assembly of members of the party who at the time of their meeting are eligible to vote in the German Bundestag election in their constituency. A special delegates’ assembly shall be an assembly of the delegates elected by such an assembly of members from their own ranks. A general delegates’ assembly shall be a general assembly appointed in accordance with the statutes of the party (Article 6 of the Law on Political Parties) by such an assembly of members from their own ranks in view of forthcoming elections.

… (5) Further details regarding the election of delegates for the delegates’ assembly, the convening and the quorum of the members’ or delegates’ assemblies as well as the procedure for the election of the candidate shall be set forth in the parties’ statutes.

 (6) A copy of the record of the election of the candidate, with details of where and when the assembly took place, the form of the invitation, the number of members present and the result of the ballot shall be submitted with the constituency nomination. In so doing, the chairperson of the assembly and two members present designated by it shall give the District Returning Officer an assurance in lieu of an oath to the effect that the election of the candidate was by secret ballot. The District Returning Officer shall be responsible for accepting such an assurance in lieu of an oath; he shall be considered an authority within the meaning of Article 156 of the Penal Code.

Your assertion regarding North Korea was therefore slightly off the mark.

These provisions illustrate that legislation may well be adopted in a democracy (especially one with some form of proportional representation electoral system) to set minimum standards and criteria for the election of party representatives in the various legislatures, but leaves it open to each political party to arrange their elections in accordance with their own character and traditions within the confines of these minimum standards. There is nothing that prevents such a law also from applying to the election of party leaders.

Such a law will have little effect, however, if it does not regulate the funding of the internal election campaigns of party leaders and if it does not require transparency in the funding of such campaigns and if it does not prohibit influence buying by large corporations or unscrupolous individuals trying to land huge government tenders.

To this day we do not know who financed Jacob Zuma’s campaign to be elected President of the ANC. Was this campaign funded by thousands of small donations by ANC members eager to see the back of Thabo Mbeki, or was it funded by people like the late Muammar Gaddafi of Libya or by Angola’s President Jose Eduardo dos Santos (as some rumours would have it)? Did Roux Shabangu or other tenderpreneurs contribute to this campaign and was Jacob Zuma beholden to these financiers when he eventually became President? Did the Gupta’s have any role in financing President Zuma and his campaigns and if so, what were they hoping to get out of it?

We simply do not know answers to these questions because there are absolutely no legal rules that bind political parties and potential leaders in those parties to reveal the sources of funding used for either internal leadership campaigns or for political party electoral campaigns in general.

If the ANC is serious about renewing its internal systems of leadership elections and if it wishes to become more democratic and to empower ordinary ANC members to have a more decisive say in leadership elections, it will have to address the influence of money on such elections as a priority and will also open up leadership contests and debates to general scrutiny and debate (as has been suggested by Julius Malema). One way of doing so is by passing a law that prescribes minimum criteria for such elections in the manner similar to that applicable in Germany.

Will the ANC bite the bullet and address this elephant in the room? My guess is that too many people with too much money and power have too much to lose from a change in the rules and from a legally enforced transparent system of leadership and public representative elections. But who knows, maybe the ANC will be overcome with a sudden attack of principle and will do the right thing after all. Or maybe a majority of ANC leaders will not act in a principled way but will nevertheless realsie that opening up leadership elections will weaken the incumbent President and his campaign for a second term and will proceed to do the right thing for the wrong reasons?

Part of this pattern was the appointment, early in his tenure as President, of Adv. Menzi Simelane as National Director of Public Prosecution (NDPP). The abolition of the Scorpions and the creation of the far less independent Hawks can similarly be seen as an attempt to protect the President from future prosecution for taking a bribe from fraudster Shabir Shaik.

President Zuma’s recent statement that the executive ”has the sole discretion to decide policies for the government”, that the executive “must be allowed to conduct its administration and policy-making work as freely as it … can” and that the “powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote”, can thus arguably be read as an expression of concern about the Constitutional Court’s decision to torpedo the Hawks, and the resultant dismantling of parts of the iron ring President Zuma had erected around himself to protect himself from prosecution for corruption.

It is against this background that today’s judgment of the Supreme Court of Appeal (SCA) declaring the appointment of Menzi Simelane unlawful, must be read. In Democratic Alliance v President of the Republic of South Africa and Others a unanimous court, in a judgment authored by judge Mahommed Navsa (Heher, Mhlantla, Majiedt JJA and Plasket AJA concurring) the SCA found that the President had acted irrationally and hence unlawfully when he appointed Simelane as NDPP and acted in breach of the prescripts of the Constitution and section 9(1)(b) of the National Prosecuting Authority Act 32 of 1998.

Perhaps believing that it was required to provide the President with some pointers on the nature of a constitutional democracy like ours, the SCA pointed out that ours is a democratic state founded, amongst other values, on the supremacy of the Constitution and the rule of law. Section 1(d) of the Constitution commits government to democracy and to accountability, responsiveness and openness. Section 2 of the Constitution reaffirms that the Constitution is the supreme law of the Republic and that law or conduct inconsistent with it is invalid and that the obligations imposed by it must be fulfilled. Thus, every citizen and every arm of government ought rightly to be concerned about constitutionalism and its preservation.

This meant that  the President, as the supreme upholder and protector of the Constitution, is its servant. Like all other organs of state, the President is obliged to obey each and every one of its commands. In what could be read as an indirect response to the recent statements of President Zuma, the SCA then proceeded to make the following powerful observation:

No-one is above the law and everyone is subject to the Constitution and the law. The legislative and executive arms of government are bound by legal prescripts. Accountability, responsiveness and openness are constitutional watchwords. It can rightly be said that the individuals that occupy positions in organs of state or who are part of constitutional institutions are transient but that constitutional mechanisms, institutions and values endure. To ensure a functional, accountable constitutional democracy the drafters of our Constitution placed limits on the exercise of power. Institutions and office bearers must work within the law and must be accountable. Put simply, ours is a government of laws and not of men or women.

The SCA pointed out that institutions of state integral to the well-being of a functioning democracy have to be above reproach, have to be independent and have to serve the people without fear, favour or prejudice. Given the fact that the NPA has “awesome powers” and “that it is central to the preservation of the rule of law”, it is imperative that members of the NPA exercise these powers with the utmost integrity. That must mean that the people employed by the prosecuting authority must themselves be people of integrity who will act without fear, favour or prejudice.

The SCA again reminded us that in the Certification judgment the Constitutional Court stated that section 179(4) of the Constitution provides that the national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. “There is accordingly a constitutional guarantee of independence [of the NPA], and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts.”

This is why the NPA Act requires that the NDPP must, inter alia “be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned.” This was an objective standard. The President could not decide, based on his own personal views and disregarding all the available evidence, that his choice for NDPP was “fit and proper”.

This is so because the relevant section of the NPA Act does not use the expression “in the President’s view” or some other similar expression. Qualities like “integrity” must be assessed objectively. A person would have integrity if he or she possesses characteristics like‘honesty, principle, honour, virtue, goodness, morality, purity, righteousness, probity, rectitude, truthfulness, trustworthiness, incorruptibility, uprightness, scrupulousness, reputability.

In the light of the above the President was required to obtain sufficient and reliable information about the candidate’s past work experience and performance; to obtain sufficient and reliable information about the candidate’s integrity and independence; and in cases where the candidate is the subject of allegations calling his fitness to hold office into question, a satisfactory process to determine the veracity of the allegations in a reliable and credible fashion.

In this case the starting point of the President was wrong. The Minister of Justice had stated that the President told him, at the outset, before asking for his input, that the President had “firm views” on appointing Mr Simelane as NDPP. The President could not argue, as he did, that absent any firm evidence to the contrary he could conclude that Simelane was fit and proper. More was required from the President to comply with the law.

This would especially be the case in a situation like the one under review where serious findings of impropriety had been made by the Ginwala Enquiry and by a court of law against the President’s choice of NDPP.

A fundamental problem for the Minister and the President is that they both considered that the GE [Ginwala Enquiry] report was irrelevant or, based on a rigid view that the GE enquired into Mr Pikoli’s fitness for office and did not concern Mr Simelane’s integrity. It is clear from the President’s account of the discussion with the Minister and from his description of his mindset…. that he took the view that the GE report, insofar as it related to Mr Simelane, was a note of precaution to the National Executive, the NPA and Parliament and that it was not a report intended to have Mr Simelane disqualified for future appointments. The President and the Minister wrongly discounted Minister Surty’s serious concerns about the Ginwala report and its impact on Mr Simelane. So too they were too easily dismissive of the PSC’s [Public Service Commission's] attitude in this regard. It ought also to have been a matter of concern that the GCB had been poised to enquire into Mr Simelane’s conduct ─ it is a matter that would directly affect public perception about his candidacy. It is not unlikely that the GCB probe ground to a halt because of the ensuing litigation.

Helen Zille, leader of the Democratic Alliance, and some of her supporters seem particularly prone to this phenomenon. Recent discussions about Zille’s rather startling comments on HIV and AIDS, illustrate this point rather well. Zille was taken to task by myself as well as by Gavin Silber and Nathan Geffen about her strange comments on HIV. What followed is instructive and may say much about the hold that racial solidarity have on many South Africans – even amongst supporters of a political party who professes to be completely blind to race.

As Silber and Geffen wrote, in her original newsletter Zille had specifically cited people who contract HIV through “irresponsible” behaviour before rhetorically questioning why “taxpayers must foot the bill without asking any politically incorrect questions — enough already!”. She then proceeded to confirm that the Western Cape will continue to provide the most comprehensive HIV-AIDS treatment in the country, but that it would also “ask the necessary questions and make appropriate demands for behaviour change”.

Zille, as is her right, responded to some of the criticism levelled against her by Silber and Geffen stating that:

The article focuses almost entirely on rebutting a statement I never made. It invents a position, falsely ascribes it to me — and then seeks to challenge it. That qualifies as a “sick joke”. It is totally ludicrous to say that I suggested withdrawing treatment from those who contract AIDS “irresponsibly”. How would one know? I have never suggested that the public health system stop treating any person (let alone category of people) with HIV.

This statement is curious and is difficult to reconcile with what Silber and Geffen had actually written and what Zille herself had written on the topic. It reminded me of Thabo Mbeki who first questioned whether a link existed between HIV and AIDS (“a virus cannot cause a syndrome”) and then, when criticised about this, claimed that he had never questioned this link. Silber and Geffen had actually written nothing that was not based on the published writings of the Premier which are easily accessed via the Internet.

Her newsletter, read with various tweets she fired off the next week, makes it clear that she believes that a person who contracts HIV “irresponsibly” should not ask the state to pay for ARV’s but should pay for this him or herself. This assumes, of course that the person would be able to afford to pay for the ARV’s. One assumes the Premier either believes that everyone can afford these medicine, or that those who cannot afford to pay should die.

This assessment might seem harsh. That is why I went back to Zille’s tweets to see if she might have been misquoted. But, no, there they were, her series of bizarre tweets on HIV, for all to see. (What is it with politicians, the internet and HIV? First there was Thabo Mbeki and now we have Helen Zille.) I quote a few of her tweets:

I made the mistake of posting some of these tweets beneath her denial that she had ever suggested irresponsible people should pay for their own ARV treatment and pointed out that:

Helen Zille says: “It is totally ludicrous to say that I suggested withdrawing treatment from those who contract AIDS “irresponsibly“ But in her tweets she suggested that people who do not use condoms should pay for their own ARV’s. Sounds like she is not being truthful. Some might call it a lie.

Pointing out this lack of candour on the part of their hero was not a smart thing to do, it seems. My post outraged some DA supporters. I provide a sample of the entertaining comments below:

If it weren’t so tragic the comments by de Vos et. al would be amusing and witty…

And as for Pierre de Vos, well what can we expect???

De Vos is without a doubt one of the biggest prat’s on the planet.

Pierre de Vos should stick lecturing in his ivory tower up on the hill. Academics get completely divorced from reality. It’s political correctness and the patronising attitudes of guys like Silber, Geffen and de Vos who think they know what’s best for black people that get me down.

De Vos and his ilk will never have time for Zille, after all she calls a spade a spade. Zille should stay off twitter, after all one cannot build an argument in 140 characters, and one’s message can be misinterpreted. De Vos is the worst kind of academic, he llives in a world that should be perfect, which is fine if you stick to theorising to students, but if you want to get involved in real life, come down from the hill.

Now, as that old right wing judge Erasmus (and old friend of PW Botha) reportedly said many years ago, these criticisms “runs of me like ducks water off my back”. Who cares what obsessed DA supporters infected by a serious dose of racial solidarity think? But it is so depressing that none of those who jumped to Helen Zille’s defence (as they have every right to do) engaged with the point I made. None tried to argue that Zille’s denial was truthful. Instead they just attacked the messenger who happened to have pointed out what would appear to be a huge contradiction between her last statement and her previous tweets.

I fear that many South Africans — and judged by these exchanges, many of them DA supporters — are not very good at democratic debate. One might well have tried to parse Zille’s words (as defenders of Thabo Mbeki often used to do, to their credit) to argue that her denial was indeed truthful. Or one might have invoked context to defend her statements in an effort to reconcile them. Or one might have made a sophisticated argument about how Twitter twists the meaning of words. Such interventions might not have been credible, but they would at least have engaged — no matter how bizarrely — in some form of democratic exchange.

Could it be that some people are so used to having their views validated and taken as the gospel truth, so used to be treated as if their views embody rationality and truth and moral goodness (perhaps because they embody white privilege and unthinkingly and arrogantly live  what Samantha Vice calls whiteliness and white cultural dominance), that they are incapable of engaging rationally with somebody who seriously challenge the assumptions and prejudices they embrace (but that they do not even know that they embrace)?

Is this why only ANC supporters and voters are lambasted for voting along racial lines and for displaying irrational racial solidarity with the ANC and its leaders? I suspect for many of the defenders of Helen Zille it will make no difference if she turned into a tree stump or if she were charged with corruption (they will probably say it was all an ANC plot to discredit her): they will defend her because she is their hero, finish and klaar.

What they do not realise is that such blind loyalty is bad for democracy and is also bad for the leader one is prepared to follow so blindly. How can we have real and meaningful debate if some refuse to address the real issues? And surely, if a leader is so adored and blindly defended, there will be a great danger that he or she will begin to believe the hype and will begin to believe in his or her own infallibility? The truth is that we are all fallible and we all make mistakes. But only those who at least try to be responsible citizens will ever admit to this and would show a willingness to be self-critical and to be critical of the leaders they respect or even adore.

Here is a challenge to DA supporters: why not try and engage with the arguments in this post — robustly and sharply if you so wish — in a serious manner? Why not try and debunk my arguments with more than ad hominem invective? (And if you use ad hominem attacks, why not try making these clever and witty, at least?) In short: why not try and act like responsible citizens in a constitutional democracy?

Just a thought.

Thus President Jacob Zuma, apparently ill served by his legal advisors, have made some serious blunders over the past two years. First he relied on an obviously unconstitutional provision to try and extend the term of office of a great Chief Justice, then he appointed a retired Constitutional Court judge to lead an inquiry into Bheki Cele’s fitness to hold office when he was legally required to appoint a judge from the High Court or the Supreme Court of Appeal.

It is unclear whether Premier Helen Zille relied on advisors before making truly astonishing statements about the criminalisation of sex or whether she came up with her hare-brained scheme all by herself.

Zille said earlier this week that she was so worried about the spread of HIV and its cost to the government that she wants men who have multiple sexual partners and refuse to use condoms to be charged with attempted murder. Zille told a wellness summit hosted by the provincial health department in Newlands on Tuesday that it was time the government shifted its exclusive focus from treating diseases to preventing them and promoting wellness.

If she was quoted correctly, her statement represents a frontal attack on the Rule of Law and the basic principles of criminal law applicable in any democratic society.

If she said that men who have multiple sexual partners and refused to use condoms should be charged with attempted murder regardless of whether they are HIV positive and regardless of whether they knew that they were HIV positive, she was advocating the criminalisation of conduct that no civilised society based on the Rule of Law and a respect for human rights would criminalise.

A fundamental principle of the criminal law in a country that adheres to the rule of law is that one could only be charged and found guilty of a crime (or attempting to commit a crime) if one could be proven to have had the intention to commit the crime or (in exceptional cases) had the knowledge that his or her actions could have resulted in the commissioning of unlawful action and nevertheless negligently proceeded to act. In South Africa culpable homicide is the unlawful and negligent killing of another. Attempted murder is committed where one inentends to kill somebody else but fails in doing so.

Merely potentially endangering the life of another can never be culpable homicide or attempted murder and one cannot be convicted of attempted culpable homicide. One can only be convicted of attempted murder if it can be proven that one had the intention to kill another but failed to do so. In S v Naidoo the SCA set out the position quite clearly:

What the crimes of murder and culpable homicide have in common is a fatal outcome for a human being. Absent a death, absent the particular crime. What they do not have in common is that absent a death, there may be a conviction of attempted murder but not a conviction of attempted culpable homicide. The reason for the difference lies in the distinction between the two forms of mens rea which are essential elements of the respective crimes of murder and culpable homicide.

The crime of murder cannot be said to have been committed unless the act or omission which caused death was intentionally committed or omitted and death was the desired result, or, if not the desired result, at least actually foreseen as a possible result the risk of occurrence of which the accused recklessly undertook and acquiesced in. In short, dolus in one or other of its manifestations (directus, eventualis, indeterminatus, etc) is the kind of mensrea which must have existed. Where the act or omission is accompanied by such dolus but death does not in fact ensue, it is easy to understand why the accused’s conduct should be visited none the less with penal sanctions. A deliberate attempt to commit the crime of murder cannot be ignored and left unsanctioned simply because the perpetrator has failed to achieve his or her objective.

Where it can be proven that a person intentionally tried to kill another by infecting him or her with the HIV virus (which would be very difficult to prove) a person could be charged with attempted murder. But where someone does not know his or her HIV status and have sex without a condom, it could never lead to a criminal conviction for attempted murder due to the absence of intention. If somebody negligently transmits HIV to another and that person actually dies, the person could theoretically be charged with culpable homicide, but proving the causal link between the sexual act and the death of the person as well as the negligence on the part of the accused would be almost impossible to do.

Given the fact that anti-retrovirals are now widely accessible, a person who responsibly gets tested and take this medicine will in all probability live a long and productive life, which means that it would be almost impossible to prosecute someone for attempted murder as the state would not be able to show the causal link between the sexual act and the death.

In the age of ARVs, deliberately transmitting HIV to another could not be viewed as attempted murder because one’s action would not lead to the death of the other person. Where a person dies of an HIV related illness, the accused charged with his or her murder or with culpable homicide would argue that but for the failure of the deceased to take ARVs death would never have occurred and that there was hence no causal link between the sexual act and the death.

There are good reasons for this. In a constitutional democracy — as opposed to a theocratic state — the criminal law cannot be used to punish individuals merely for not conforming to Judaeo-Christian moral standards regarding sexual behaviour. If one criminalised all unprotected sex with one or several partners, one would be punishing people for something that might never have happened (HIV infection, leading to death) or for something they might not have foreseen at all (as they might not have believed that they were HIV positive at all or might not be HIV positive). One would be punishing people for not behaving in a manner one believes is appropriate — regardless of the consequences or potential consequences.

The criminal law then becomes an oppressive and authoritarian instrument of social control, turning large numbers of ordinary citizens into instant criminals. Where the criminal law punishes behaviour not based on the consequences or potential consequences of said behaviour but for its own sake and without taking into account the guilt of the accused, the Rule of Law is fundamentally undermined.

Perhaps Premier Zille was misquoted or she “misspoke” — as Hillary Clinton famously “misspoke when she said she had to evade sniper fire when she was visiting Bosnia in 1996 as first lady when, in fact, she was greeted by flower-bearing children. Perhaps she meant to say that somebody who has multiple sexual partners and knows that he is HIV positive but nevertheless fails to use a condom and then transmits HIV to a partner who later dies from AIDS related illnesses should be charged with attempted murder.

Even so, this view is quite shockingly misinformed and would have disastrous consequences. It would create an incentive for some men not to get tested for HIV and hence not to take ARVs. Not only would the men then die needlessly but those men would be also far more likely to transmit HIV to their sexual partners. This is because an HIV positive person on ARVs whose viral load becomes undetectable are far less likely of transmitting HIV than one who is not on ARVs and whose viral load is high.

Criminalising sexual behaviour in this way might therefore increase the rate of HIV transmission. It will certainly not decrease it.

Julius Malema is often criticised for being a populist — saying things that are truly idiotic or even dangerous but which he knows would be popular with his constituency. But he is not the only populist politician around. This statement by Premier Zille is a classical populist statement: idiotic and dangerous but quite popular with a certain constituency. She should have known better. And if she did not, she should have known to ask somebody who is a bit more knowledgable than herself to inform her about the legal and medical issues around HIV.

President Zuma – quite correctly, in my view — stated that “the executive, as elected officials, has the sole discretion to decide policies for Government”. Stating that he respected the powers and role conferred by our constitution on the legislature and the judiciary, he nevertheless insisted that the “executive must be allowed to conduct its administration and policy making work as freely as it possibly can”.

The powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote. We also reiterate that in order to provide support to the judiciary and free our courts to do their work, it would help if political disputes were resolved politically. We must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections. This interferes with the independence of the judiciary.

These remarks are similar to remarks, made a month or two ago, which created some anxiety amongst some constitutionalists who have become anxious about the government’s continued commitment to constitutionalism. Unfortunately, the President’s remarks reflect, at best, a rather simplistic view of the principle of separation of powers. It also lacks the requisite detail and nuance that would allow us to analyse the remarks in a sensible and responsible manner.

When President Zuma states that the executive must be allowed to make policy “as freely as it possibly can”, it is not clear what is meant by this. It could mean — quite correctly — that the executive has the sole power to formulate and implement policies that are compliant with the Constitution. It could also mean — quite alarmingly — that even when the executive formulates and implements policies that are in conflict with the Constitution, courts should not interfere because (unlike the government of the day) judges have not been elected in a popular vote.

And what does he mean when he warns that people should not try to co-govern the country through the courts? Does he mean that purely political issues should not be brought to the courts, or does he mean that those who disagree with the policies implemented by the government should not approach the courts to have such policies declared invalid — even when the policies are clearly in conflict with the provisions of the Constitution? If it means the former, what exactly does the President understand to be “purely political” issues?

The problem is that it is not possible to draw a clear line between “purely political” matters and questions about whether the Constitution and the law had been complied with. Yesterday, in a radio interview with John Maytham on Cape Talk, Steven Friedman inadvertently illustrated this point quite well. He pointed out that it was problematic when courts became involved in purely political issues and then mentioned the case of the DA challenging the appointment of Menzi Simelane as National Director of Public Prosecutions (NDPP) as a case in point.

Friedman is wrong when he asserts this is not a matter that should be taken to court. In fact, in a constitutional democracy where the rule of law is respected, this kind of appointment might very well require intervention by the courts.

The National Prosecuting Authority Act states that the President can appoint any fit and proper person with the requisite legal qualification as NDPP. But what happens if the President appoints somebody as NDPP who is not fit and proper or does not have the requisite legal qualification? For example, if the President were to appoint Schabir Shaik as NDPP, he would not be acting in accordance with the law and any court would have a duty — if so requested — to declare that appointment unlawful and invalid. If it failed to do so, it would in effect sanction lawlessness and would signal that it believed that the President was above the law.

It would be of no use for the President to asserted that he had the power to appoint an NDPP and that he believed Shaik indeed possessed the requisite qualifications for the job: in a constitutional democracy an action does not comply with the law merely because the President claims that it does.

Parliament can of course amend the NPA Act to change the provision requiring that the NDPP possess a legal qualification and had to be fit and proper and as long as these changes complied with the Constitution – including the requirement, affirmed by the Constitutional Court in the First Certification case, that the NPA had to be independent — the President could then appoint somebody as NDPP who complied with the newly introduced requirements. What the President cannot do is flout the existing law merely because he is the President and has decided that the requirements of the law are not to his liking.

Similarly, if the President in effect delegated the power to appoint the NDPP to his Minister of Justice, this would be unconstitutional and any such appointment would be null and void. Until the Constitution is amended to allow the MInister of Justice to appoint the NDPP, only the President can do so. If the President delegated the power to somebody else, he would be acting unlawfully and the Constitutional Court would have no choice but to declare this purported delegation unconstitutional and hence null and void.

Section 1 of the Constitution also confirms that the exercise of power by the President has to conform to the principle of the Rule of Law. This means, at the very least, that the President must act in a rational manner. There must be a rational connection between the legitimate purpose being pursued by the Presidents and the action taken to pursue that purpose. If the President appointed Evita Bezuidenhout or Nic Rabinowitz as NDPP because he thought it would be lots of fun to have a comedian as NDPP, this would not be a legitimate purpose sanctioned by the law and hence would not be constitutionally valid.

I provide these examples to illustrate that a decision by the President that might appear to be purely “political” might nevertheless raise several legal and/or constitutional questions. When this happens anyone — including the DA – has a right to challenge the actions of the President in court. Surely we do not want to live in a country where the President routinely flouts the very laws adopted by the Parliament dominated by the party he is the leader of?

Of course, no President likes to be told that he had acted unlawfully and that a decision he has taken was null and void. To prevent this from happening a wise President will not attack the judiciary for doing its job, but would rather ensure that his legal advisors provide him with honest, reliable, precise and accurate advice so that he would avoid the embarrassment of having his decisions overturned by a court of law doing its constitutional duty.

Given the less than reliable legal advice provided to our President on several occasions since his appointment, I would contend that President Zuma might have misdiagnosed the problem. The problem is not primarily that our courts do not respect the separation of powers — by and large they do. The problem is that on several occasions the President has acted unconstitutionally or unlawfully because he received really terrible legal advice.

Only time will tell whether the appointment yesterday of Mr Michael Hulley as a part-time legal advisor to the President will solve this problem. Hopefully Mr Hulley is a better legal advisor than a businessman. If he is not, President Zuma will continue to be thwarted by our courts doing what they are constitutionally mandated to do – interpreting and applying the law without fear, favour or prejudice.