Constitutional Hill


Crayfish boiling in a pot of Zuma water

In 1991, Andre P Brink published a novel entitled An Act of Terror. It is a long and relentless expose of the brutality of the Apartheid regime, telling the story of Thomas Landman, an Afrikaner whose political allegiances change over time and who eventually becomes a freedom fighter. The Afrikaans version of the book is strikingly entitled “Die Kreef Raak Gewoond Daaraan (“The crayfish gets used to it”). As I recall, this strange title comes from the idea that even a crayfish dumped live into a pot of boiling water has no choice but to deal with its surroundings.

Humans can also get used to (and can even begin to accept) things that should, in fact, be intolerable. During the Apartheid years we got used to living in a godforsaken country. Many of us – black and white – went about our business, despite the obscenity of the injustices around us. We might not have liked it, many might have suffered because of it, but most of us got used to it in our own peculiar ways.

Times have changed. We live in a democracy with a relatively free press now. All of us can vote and can travel freely throughout the country – if we have the resources to do so. And those of us who are middle class and have access to resources can feel relatively safe in the knowledge that the police will probably think twice before assaulting, torturing or killing us.

But we are nevertheless in danger of getting used to things that no one in a democracy should ever be required to get used to. Increasingly, President Jacob Zuma is our pot of boiling water and ordinary citizens are the crayfish.

Remember that President Zuma avoided criminal prosecution for fraud and corruption because he allegedly provided the National Prosecuting Authority (NPA) with recordings of illegally taped phone conversations, which showed that there was some strategising about when to formally charge him. The then-acting head of the NPA, Mokotedi Mpshe, claimed that the NPA had obtained separate recordings of these conversations and used them to justify the dropping of charges. The Supreme Court of Appeal (SCA) ordered the NPA to hand these recordings and transcripts over to the applicants, pointing out that the “NDPP will be obliged to make available whatever was before Mr Mpshe when he made the decision to discontinue the prosecution”.

As the SCA pointed out in that judgement (which was only necessary because the NPA abused the legal process to stall the review), the NPA had to hand over all the relevant material, because without this record a court would not be able to perform its Constitutionally entrenched review function. The SCA thus ordered the NPA:

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

Unless the NPA is lying, it inexplicably and illegally handed over the only copy of the recordings and transcripts of recordings obtained from the NIA to Mr Hulley, (President Zuma’s lawyer), instead of handing it over to the applicants. The NPA was not authorised to do this. The refusal by the Acting Head of the NPA to hand over the recordings must surely spell contempt of court.

Mr Zuma himself is not in contempt of court because he was not ordered to hand over the documents and recordings to the applicants. And talk of his possible impeachment is a waste of time. Section 89(1) states that the National Assembly can impeach the president on the grounds of a serious violation of the Constitution or the law, serious misconduct or incapacity. But this can only be done if two thirds of the members of the National Assembly support the removal from office. As the ANC commands more than 65% of the seats in the National Assembly and as President Zuma inexplicably remain the leader of the ANC, Zuma is not going to be impeached. It’s a waste of time and energy to talk about it.

But President Zuma is not above the law, and is not allowed to abuse his power to protect himself from prosecution or from revelations that the original decision to drop the charges was based on lies or half-truths. He cannot put pressure on an independent body like the NPA to ignore a court order. Neither can he keep quiet while others break the law to protect him without adverse inferences being drawn about his conduct and his character.

Let’s face it, President Zuma and his lawyer have serious explaining to do. (Giggling and pretending that you know nothing about anything stops being plausible and believable after a certain point.)

Was any pressure placed on the NPA illegally to hand over the recordings and transcripts to Hulley? Given the fact that these recordings and transcripts were supposedly independently obtained from the NIA, they should never have been given to Mr Hulley, who has absolutely no right to keep them. Why has Mr Zuma not ordered his lawyer to hand back the NIA recordings and transcripts to the NPA? Do these recordings and transcripts even exist, or was the existence of these recordings part of a big lie cooked up by Zuma, his lawyers and the NPA to justify the dropping of charges against him?

Is it plausible that the NPA would hand over these recordings and transcripts made by the NIA (if these recordings and transcripts exist at all) to a private person (Hulley) without making any copies? If so, who instructed this to be done? Who could possibly believe that the NPA would have handed over all recordings and transcripts without making copies unless they were ordered or pressurised by Mr Zuma or those working on his instructions to do so?

Somebody is trying to cover up something. The question is: who is doing the covering up and on whose instructions are they doing this? As is often the case with political scandals (shall we call it Corruptiongate or Zumagate or Mpshegate or NPAgate?), one of the biggest questions would be: what does President Zuma know, and when did he come to know of it?

Not that any of these crooked manoeuvres would do President Zuma and his protectors any good in the long run. As the SCA pointed out, the NPA and Zuma are between a rock and a hard place. The less information they provide to the applicants, the more likely it is that a court would look at this scant information provided and conclude that the decision of the NPA to drop charges against Zuma was itself corrupt and/or irrational.

In the absence of the recordings and transcripts supposedly independently provided to the NPA by the NIA, the court will almost certainly find that the original decision to drop charges against Zuma was unlawful. This would resurrect the charges, and President Zuma would once again stand accused of fraud and corruption.

President Zuma will then have to stand trial. Unless, of course, somebody manages to cook up another story to get the charges against the president dropped. But maybe by then we would have become so used to the manipulation of the criminal justice system that no one would notice.

Unified opposition maybe not such a bright idea

Calls by Helen Zille (and by several commentators) for the Parliamentary opposition to unite in order better to take on the increasingly floundering and seemingly corrupt ANC at the ballot box, are seductive. But given the distinct nature of our electoral system and the composition of political parties, in the long run a united opposition might do more harm than good.

 The idea behind such calls is that a united opposition would be stronger than the sum of its parts. It is argued that such a “super opposition” – coming together under the flag of “constitutionalism” – would be better at holding the ANC government to account and would stand a better chance of reducing the ANC’s electoral dominance across the country.

The argument, so it seems to me, misdiagnoses the fundamental pathology underlying our political system. In South Africa the most successful political parties (the ANC and the DA) are “broad church” parties that try to cater to an assortment of ideologically distinct and socially diverse groups. The truth is that despite protestations to the contrary, there is little ideological coherence in either the ANC or the DA.

DA voters and public representatives include many deeply conservative former Nationalists, traditional liberals, rabid free market fundamentalists, fearful and sometimes racist social conservatives, forward-looking social democrats and some members of the emerging black elite disillusioned with the ANC and the increasingly corrupt government it leads. The DA talks about creating an equal opportunity society, but what really holds this coalition together – so it seems to me – is a fear of (and a feeling of antipathy towards) the governing ANC as well as the promise of access to power and resources that derives from DA incumbency in the Western Cape Province, Cape Town and other big towns across the Western Cape.

The ANC, on the other hand, has a tendency to paper over its ideological differences with talk of pursuing the National Democratic Revolution and racial redress. However, its voters include tribal chauvinists, patriarchs, communists, feminists, unionists, former Nationalists, social progressives, social democratic free market supporters, liberals and anti-capitalists. What holds this coalition together is the ANC’s fading allure as the party of liberation, the fear of a return to white domination and – increasingly – the patronage and power that is derived from being associated with the party that leads the government who dishes out tenders to friends and supporters.

In this context, political parties fulfil a peculiar and rather destructive role in our governance system: they act as empty vessels within which individual voters pour their fears, anger, hopes and sense of belonging. They increasingly attract ambitious (but often unprincipled) individuals to leadership positions and are forced to accommodate ever-more disparate ideological tendencies within their ranks. Concomitantly, they serve as repositories of the racial identities of many voters: many DA voters will never vote for a political party led by a black person while many ANC voters will never vote for a party led by a white person.

Instead of relatively unified political parties with a more or less clear ideological programme, the ANC and the DA have largely become parties who are held together not by what they stand for and support, but by what they are against and oppose. Party politics in South Africa has become a game in which scaremongering trumps ideology. Vote for the ANC and they will take your property and destroy the Constitution while stealing your taxes! Vote for the DA and they will re-impose racist, white domination and Apartheid!

Patronage and corruption thrive in this political environment. Many individuals do not join political parties out of ideological fervour and a principled commitment to a cause they view as noble, but rather because they seek access to power and financial rewards. The ANC, which has become ever more ideologically incoherent as it has attracted more opportunists and skelms into its ranks, is finding it increasingly difficult to control its members and preventing a drift to materialistic excess. And the government it leads can no longer afford to be seen to take decisive action against corruption in high places for fear of the ANC being torn apart by factions vying for power and access to tenders.

But mark my words: the more successful the DA (or an amalgamation of the DA and other opposition parties) becomes and the more opportunities it provides to its members to gain access to political power and financial rewards, the more often some of its leaders will be caught in tender scandals and the more one will read in the Mail & Guardian about how corrupt the party has become.

In the long run, would a newly unified opposition party, composed of ideologically diverse groupings from different classes and races, really be able to withstand the temptations of increased access to power and resources? In the absence of a clear ideological programme and a principled set of policies that go far beyond the empty slogan of defending the Constitution, I am not sure such a party could be kept together except through scaremongering and the dishing out of tenders and positions. (Anyone want to become the ambassador to TjikiTjikistan?) In other words, such a party is likely to be kept together by the same impulses that keep the ANC together: a hatred of the opposition and a fear of losing power and access to public resources.

Politicians in opposition are always great defenders of a justiciable Constitution because it limits the power of their opponents in government and can help to check the abuse of power by the government and can force it to be more open, transparent and accountable. But once in power, former opposition parties have a tendency to be less enthusiastic about the Constitution which they suddenly discover places pesky limits on their ability to do as they please.

For example, in the Western Cape, civil society groups have been trying or months to get access to a so called “confidential” Western Cape education department report on pupil transport in the province. This despite the fact that the DA government regularly lambasts the ANC government for suppressing so-called confidential reports. Once in government in the Western Cape, the DA has discovered that transparency is not always in its interest – no matter what the Constitution might say.

In any case, this call for a unified opposition also fails to appreciate that one of the advantages of a purely proportional representation electoral system like ours is that it potentially provides voters with meaningful choices, as they can choose to vote for any number of smaller parties they feel represent their interests. Where voters have limited electoral choices and where those choices appear unpalatable (I mean, a choice between the ANC and the DA, really), many voters will become apathetic and will abstain from voting.

Where an ideologically incoherent hodgepodge of forces join to oppose the party in power, many voters may be turned off by those aspects of the new party which they cannot stomach. Some white DA voters will be turned off by an influx of Cope members. And many Cope voters will be turned off by the remnants of the old National Party, that lurks in the DA like an egg inside a soufflé.

School closures law unconstitutional?

When Donald Grant, the MEC for Education in the Western Cape, announced earlier this week that his department would close 20 schools in the province at the end of this year, the ANC in the province immediately criticised the move and vowed to challenge the decision in court. This might seem surprising, as ANC members in government often complain that opposition parties abuse the courts in an effort to thwart policy decisions of the government. But the real question is whether such a challenge can succeed.

In my opinion there is nothing wrong with political parties challenging the Constitutionality of government actions in court — whether the challenge is launched by the ANC opposition against the Western Cape government or the DA opposition against the national government. When courts intervene in such cases, they are usually not interfering in an unwarranted manner with the policy decisions of the democratically elected government. When courts interpret and apply the Constitution in line with the precedent set by the Constitutional Court, all they are doing is enforcing the provisions of the Constitution.

ANC provincial leader, Marius Fransman, indicated that the party would challenge the closing of the 20 schools in the Western Cape, saying: “We have decided that we will not leave it as is. All the reasons that they’ve given are wrong and we will take this matter up, and the first thing we will do is to get legal advice and litigate – even if it means an interdict.”

Legal advice provided to Mr. Fransman would obviously focus on Section 29 of the Bill of Rights and on the provisions of the South African Schools Act. Section 29(1)(a) of the Constitution states that “everyone has the right to a basic education, including adult basic education”. Unlike the right of access to housing, health care, food and water, the right to basic education is an unqualified one. The failure of the government to provide everyone with basic education could therefore not be justified with arguments that, given its limited resources, the government is taking all reasonable measures to improve access to better quality schooling over time and is complying with its Constitutional duties.

The Constitutional Court confirmed this principle in the case of Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others, pointing out that — unlike some of the other socio-economic rights — the right to education was “immediately realisable”. This meant, said the Court, that the right to a basic education in section 29(1)(a) may be limited only in terms of a law of general application which is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.

Where the government fails to provide basic education to learners (for example, by not delivering textbooks to learners almost nine months after the start of the academic year), it would be in breach of its Constitutional duties. That is why the North Gauteng High Court could order the department to deliver school textbooks by a certain date. (Ironically, the department recently took out an advertisement that, in effect, boasted that it was delivering school textbooks to some learners in Limpopo almost a year late.)

Similarly, where the government takes steps to limit the existing enjoyment of the right to education by closing down or merging existing schools and where this would make it more difficult for learners to attend school, it might be in breach of its Constitutional obligations not to limit the rights of learners in an unreasonable manner. Unless such a move was authorised by law and was reasonable and justifiable in an open and democratic society, the closing down of schools would be unconstitutional.

Any “deliberately retrogressive measures” (in other words, measures that would disturb the existing enjoyment of education by learners) “would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for” in the Constitution.

Three questions will have to be asked in a case like this. First, is the closure of schools authorised by law? Second, was the procedure prescribed by the law followed before the decision to close a school was taken? Third, if the closure was authorised by law, is the law authorising the closure compliant with section 29(1)(a) of the Constitution?

The closure of public schools is authorised by section 33 of the South African Schools Act. This is not surprising to hear. After all, according to South African Institute of Race Relations, since 2000, 1,116 schools have been closed in the Free State, 648 in North West, 590 in the Eastern Cape, 215 in Mpumalanga, 173 in Limpopo and 111 in the Northern Cape.

Section 33 requires the MEC to give notice to the school governing body and conduct hearings to enable the community to make representations on the proposed closure. By all accounts this was done in the cases under discussion. After considering representations, the MEC decided to close 20 schools but to keep a further seven schools open.

The section requires the MEC to consider all representations before ordering the closing of a school. However, the MEC is granted a wide discretion to close a school after following the requisite procedure. The Schools Act does not place any substantive limits on the power of an MEC to order to closing of a school. This means the MEC could close a school without taking into account the effects of such a decision on the ability of the government to provide basic education to everyone. The MEC need not take into account whether learners can be accommodated at a nearby school — something MEC Grant claims he took into account when ordering the closure of the schools. Nor does the MEC need to take into account whether the school closure will have a negative impact on the ability of learners to go top school.

The potential impact of school closures on learners could be devastating. Where an MEC is motivated solely by cost considerations (perhaps inspired by a free market ideology), he or she would be able to close down many rural schools that might be costly to run — even if this would make it very difficult for especially poor rural children to continue with their education. Where small schools catering for poor children in deep rural areas are closed down and where no reasonable alternative schooling opportunities are available, children could in effect be denied an education. For example, where the nearest alternative school is situated many kilometres from where children live, the cost and practical difficulty to get to the alternative school could deny such children real access to an education.

As Section 33 of the South African Schools Act, which empowers an MEC to close schools, does not require the MEC to take such factors into account, the section might well constitute an unreasonable and unjustifiable limitation on the right to basic education in section 29(1)(a) of the Constitution and might therefore be unconstitutional. Although the Western Cape MEC stated that he did take these factors into account before making his decision on the school closures, this would not save an otherwise unconstitutional provision on which he relied to close down the schools.

Once small step for Parliament, one giant leap for Ambrosini

On paper the National Assembly, whose members are democratically elected, is a powerful body. It elects and can fire the President. It is empowered to pass legislation and to hold the members of the executive to account. But because the electoral system allows party leaders to exercise control over individual MPs, the Assembly often acts as a rubber stamp for decisions taken by the executive, turning MPs into glorified messengers for party bosses. A recent judgment by the Constitutional Court may begin to address this problem.

Section 73(2) of the Constitution allows any member of the National Assembly to introduce a Bill in the Assembly – even if that member is not a Cabinet Minister and even if that member belongs to an opposition party. However, the rules of the National Assembly (adopted in 1998) stated that this could only happen if a majority of members of the Assembly had given “permission” to an MP to initiate such legislation. In practice this meant that members of the opposition could never introduce any Bills in the Assembly. All they could do was to criticise the Bills introduced by the relevant Cabinet Minister. Their own legislative proposals had no chance of being debated by the relevant Portfolio Committee in the National Assembly.

In Oriani-Ambrosini v Sisulu the Constitutional Court, in an excellent judgment authored by Chief Justice Mogoeng Mogoeng, declared these rules of the National Assembly unconstitutional. The judgment serves as a reminder that ours is a constitutional democracy “that is designed to ensure that the voiceless are heard”, one in which the “views of the marginalised or the powerless minorities” cannot be suppressed.

Quoting from a previous Constitutional Court judgment, Mogoeng reaffirmed that:

[T]he Constitution does not envisage a mathematical form of democracy, where the winner takes all until the next vote-counting exercise occurs. Rather, it contemplates a pluralistic democracy where continuous respect is given to the rights of all to be heard and have their views considered. . . . The open and deliberative nature of the process goes further than providing a dignified and meaningful role for all participants. It is calculated to produce better outcomes through subjecting laws and governmental action to the test of critical debate, rather than basing them on unilateral decision-making.

When individual MPs have the power to initiate legislation and introduce Bills in the National Assembly it provides them with an opportunity “to promote their legislative proposals so that they could be considered properly”. The members of both the majority and minority parties in the Assembly will then be required “to deliberate critically and seriously on legislative proposals and other matters of national importance”. These deliberations will then happen in the relevant Portfolio Committee before the Bill is submitted to the National Assembly for a vote.

There is a good reason for the Constitution’s inclusive approach to democracy. As Justice Mogoeng reminded us:

South Africa’s shameful history is one marked by authoritarianism, not only of the legal and physical kind, but also of an intellectual, ideological and philosophical nature. The apartheid regime sought to dominate all facets of human life. It was determined to suppress dissenting views, with the aim of imposing hegemonic control over thoughts and conduct, for the preservation of institutionalised injustice. It is this unjust system that South Africans, through their Constitution, so decisively seek to reverse by ensuring that this country fully belongs to all those who live in it.

This does not mean that the will of the majority party in the Assembly can ultimately be thwarted. The majority party can always vote against a Bill after it had been discussed and debated by the Portfolio Committee. Some might say the right of opposition MPs to introduce their own Bills would therefore be of little more than ceremonial significance. However, as the Constitutional Court pointed out, this is not so as it will give opposition MPs the opportunity to go beyond an obstructionist oppositional role, allowing them to submit constructive proposals of their own about how to solve a particular legislative problem and allowing these proposals to be discussed seriously by the members of the National Assembly.

Our electoral system — which requires us to vote for political parties and not for individual MPs – renders it difficult for voters to hold individual MPs accountable. Unless we join a political party and unless we actively take part in the election processes for the leadership of that party, we have little or no say in who represents us in Parliament and who is elected as our President. This diminishes transparency and accountability in the governance and law-making processes.

Given these limitations, rules of the National Assembly which would make it impossible for individual MPs to have their alternative legislative proposals tabled and discussed by the Assembly diminishes our democracy and robs voters of the opportunity to judge whether they support the legislative proposals of the governing party or of any given opposition party.

Chief Justice Mogoeng emphasised that in providing such alternatives it “allow for a legislative proposal to be debated properly and in a manner that is open to the public, before its fate is decided”. Furthermore:

public participation, so as to cultivate an ‘active, informed and engaged citizenry’, is also facilitated by rules that allow even minority party members, who are not ordinarily represented in Cabinet, to initiate or prepare legislation and introduce a Bill. This is because the public can only properly hold their elected representatives accountable if they are sufficiently informed of the relative merits of issues before the Assembly.

For example, imagine what might have happened if an individual member of the opposition had been allowed to introduce an alternative Protection of State Information Bill into the National Assembly. We would then have had the opportunity to compare this alternative Bill with the Secrecy Bill punted by the securocrats in the government. The relevant Committee would then have had two Bills before it containing different approaches to dealing the protection of state information.

If the version of the Bill introduced by the opposition MP turned out to be frivolous or unworkable, it would have exposed the opposition party to criticism and might have created the impression in the minds of voters that the party is not ready to govern the country. If, however, the Bill provided a workable (but human rights friendly) solution to the problem of how to protect state information, it would have embarrassed the majority party and would have enhanced debate — both in Parliament and by the public — about what is at stake with the passing of the Bill.

Of course, this does not mean the majority party would have changed course and would have ditched the Secrecy Bill in favour of an alternative Bill proposed by Lindiwe Mazibuko. The majority party would remain entitled to make the final decision on which Bill to pass into law — no matter how unpopular or how unwise that Bill might be with the electorate.

But in the long run its MPs would have been forced to engage seriously with an alternative Bill proposed by the opposition. A failure to do so in a serious and competent manner would have run the risk of turning away more informed voters and would have eroded the voting majority of the dominant party. On the other hand, if the MPs of the majority party had managed to show up the Bill proposed by the opposition as frivolous, unworkable or unpopular, the party would have been able to gain more support from voters currently supporting an opposition party or not supporting any party at all.

The judgment will not cure all the ills that beset our democratic Parliament. The culture within political parties, which requires strict party discipline and control of individual MPs by party leaders, are too strong for this. But it is a first small step towards making our democratic Parliament relevant once more.

Some thoughts on the Marikana massacre

On Thursday at least 36 miners were killed by members of the South African Police Service (SAPS) in an ongoing labour dispute (apparently between rival Unions and between the Unions and management) at Lonmin’s Marikana mine. By the time Police opened fire on striking miners with automatic weapons, the dispute at the mine had already been dragging on for several days. Ten people (including two Police officers) had been killed before the massacre occurred on Thursday. This means that almost 50 people have been killed in the past few days in this dispute.

The Independent Police Investigative Directorate (IPID) has announced that it will investigate the killings and “will seek to establish if the police action  was proportional to the threat posed by the miners”. President Zuma has now also announced that he will appoint a Commission of Enquiry. Any investigation worth the time and effort will have to determine why the trouble started, why our government was so slow to respond appropriately to the crisis and why Police with automatic weapons were deployed to a volatile area and why they seemed so desperate to disperse the strikers.

But I am not sure that any investigation — no matter how thorough and impartial — will get to the bottom of these events and will provide us with some of the broader insights into why this happened and what it means for our country. This is because there are many lenses through which one could view the massacre and the events that led up to it and, depending through which ideological lenses one looked, one might well come to entirely different conclusions.

One might view the events through the eyes of a fearful, middle class, law and order, union basher and conclude that this was all the fault of the miners, who were armed with pangas and knives and threatened the lives of the Police Officers. On my Twitter timeline some people even suggested outrageously that the miners deserved to die and that they were taught a good lesson.

In my opinion this view is entirely without merit. First, it prejudges the issue. At this point we simply do not know for certain if the miners were indeed threatening the lives of the Police Officers when they were killed and if so, how serious this threat was. The eNCA report below suggests that the miners who were killed might have been fleeing from tear gas when they were gunned down.

But, second, even if this is not correct, the members of Police would seldom be legally entitled by either the common law or by section 49 of the Criminal Procedure Act to shoot indiscriminately into a crowd with their automatic weapons. As the Constitutional Court reminded us in the case of Ex Parte Minister of Safety and Security and Others v Walters: “[g]reater restriction on the use of lethal force may be one of the consequences of the establishment of a constitutional State which respects every person’s right to life”.

Police Officers are entitled to defend themselves and even to shoot and kill criminal suspects if they directly threaten the lives of anyone. However, a Police Officer may not shoot at anyone unless he or she believes and have reasonable grounds for believing that the suspects poses an immediate threat of serious bodily harm to anyone. Even then, as the Court stated in Walters, where force is necessary, only the least degree of force reasonably necessary to carry out the arrest or protect the lives of others may be used. The force used must be proportional to the threat posed.

In this case two questions will arise, namely: (i) was it reasonable for the Police to believe that their lives were in imminent danger and that they would be killed or seriously injured if they did not open fire; and (ii) did they use the minimum degree of force necessary to ward of the perceived threat. I would be surprised if a court were to find that the seemingly indiscriminate firing of automatic weapons into a crowd (who apparently was not armed with heavy weapons) by supposedly well trained Police Officers would ever constitute the minimum force necessary to ward of a perceived threat.

The situation would be different if the Police Officers had come under consistent fire from semi-automatic or automatic weapons from the crowd in which case they would have been entitled to use all reasonable force to defend themselves. Given that the crowd was not armed with heavy weapons, and given that 36 people were left dead by Police fire, I cannot see how one could say that the force used was reasonable or how it was proportionate to any danger posed by the miners.

I am not suggesting that the Police had no right to protect themselves against imminent attack. Neither am I saying that it will always be unlawful to shoot at protesters with live ammunition or even to kill a protestor in the process. But when 36 people are shot dead in a situation like this, it is difficult to conclude that the force use was reasonable in the circumstances. To hold otherwise would be to give the Police a blank cheque to shoot and kill as many citizens as they wish, if they can claim that they believed their lives were being threatened. Next stop Syria.

One might, of course, also view the events through a political lens. As Nic Borain has pointed out in a must read analysis, the events might well be viewed through the prism of Mangaung. There is militant and growing opposition to the hegemony of National Union of Mineworkers (Num) in certain sectors of the mining industry. Num – an important pillar of support inside Cosatu for Jacob Zuma’s re-election at Mangaung – has drifted towards representing white-collar workers. Now Num has successfully been portrayed as a sweetheart union, increasingly concerned with white-collar workers, and increasingly comfortably with the benefits that come from being romanced by management. Borain argues that the public and the press is likely to understand what happened yesterday through this political prism and concludes:

  • In this narrative Jacob Zuma will be portrayed as the villain, presiding over the gradual abandonment by the ANC of the most marginalised and vulnerable citizens. When political formations inevitably emerge to give voice to those disaffected groups, policemen armed for war will be ordered to use all necessary force to defend the support base of the incumbent political elite.
  • Expect anxiety about the breakdown of the political and social mechanisms that have traditionally allowed our society to negotiate the complicated disagreements and clashes of interest with which it is beset.
  • Finally, this incident is likely to be used against Jacob Zuma in the run-up to the political contest at Mangaung. It might not be strictly fair, but the narrative is compelling, and Zuma’s enemies and competitors will make everything they can of his vulnerability here.

There is yet another — perhaps related — dimension to the events, which have taken place at a time when the voices insisting on the need for a second transition and the need to speed up economic transformation are growing ever louder. In a recently published book, Lost in Transformation, Prof Sampie Terreblanche presents a scathing analysis of the way in which big business “bought off” the ANC during the first transition and how cosy arrangements between the new elite and the apartheid era big business have protected big business from paying its apartheid debt. One may well see these events as an illustration of what happens when the government of the day gets into bed with big business and when it abandons the most vulnerable and needy who might have voted for it in the past, all for short term commercial gain by the political elites associated with or inside the governing party.

In 1973 Conservative Party Prime Minister Edward Heath said about Lonmin that: “It is the unpleasant and unacceptable face of capitalism.” Questions will be asked about the behaviour of the Lonmin management and what it says about the attitude of big business in general to the plight of underpaid miners. Questions will also be asked about why the Police seemed to be more interested in protecting Lonmin’s profits than the lives of South African citizens. Does Lonmin donate money to any of the political parties in South Africa and if so to which ones and how much? Is Sampie Terreblanche correct when he asserts that apartheid era big business struck a deal with the governing party (a deal done far away from the limelight and outside of the constitutional negotiations) and that this agreement is contributing to the growing gap in income and opportunities between the “haves and have nots” in South Africa?

I fear that any enquiry will not be mandated (and will not have the skills) to ask and answer broader questions about how our society is structured and why so many miners, who are often paid as little as R4000 per month to do highly dangerous work, felt that neither the governing party nor the Union affiliated to it, truly represented their interests. Too many people with too much power probably have a vested interest in the status quo for these questions to be interrogated, let alone to have them answered.

Towards a Parliament for the People

On paper, South Africa’s Parliament with its two houses – the National Assembly representing the interests of all people and the National Council of Provinces (NCOP) representing provincial interests – is supposed to be the engine room of democracy. It is also the institution which is supposed to represent the interests of all the people of South Africa.

It is the National Assembly that elects the President and can also fire the President if it loses confidence in the President. The National Assembly is also tasked with looking into allegations that the President is guilty of a serious violation of the Constitution or the law, serious misconduct, or inability to perform the functions of office, and it is the National Assembly who can impeach the President if it finds this to be the case. The President and his or her cabinet are accountable to Parliament and can be summonsed to Parliament to explain their actions. Parliament can in fact summons any person to appear before it to give evidence on oath or affirmation, or to produce documents and can require any person or institution to report to it.

Yet, our Parliament does not always fulfil its task as the engine room of our democracy and cannot be said to be the Parliament of the People. This morning I spoke at a conference on South African Legislatures organised by Civil Society Groups. The conference, entitled “People’s Power, People’s Parliament”, is exploring ways in which civil society (in all its manifestations) can effectively engage with Parliament and can ensure that legislatures truly represent the interests of the people.

I contended that this discussion often happens in a vacuum, in that we ignore the dominant role played by political parties in our system of government. Implicit in our entire system is the view that the locus for influencing politics is through influencing political parties. We speak incessantly about the need for consultation on governance issues and the need to facilitate public involvement in law making, but these procedures and processes are often empty and ineffective because our representatives in Parliament represent political parties and are required (through the strict enforcement of party discipline) to follow the party line come hell or high-water.

Often, change happens because the leaders of political parties have been convinced to change their positions at informal events or forums, far away from the formal Parliamentary processes. Members of Parliament are then instructed to implement these changes, regardless of any input they might have had from ordinary members of the public during the process of public participation.

Often those people elected to the National Parliament or Provincial Legislatures cannot afford to be seen to listen to the voices of ordinary members of the public or to civil society groups if this will clash with a clear mandate decided on by the political party leadership, as they will be accused of ill-discipline and may well be “redeployed” (or whatever the DA equivalent of this might be) to a third rate job in some backwater where they will not be able to thwart the wishes of the party leadership, a party leadership that might be democratically “elected” only in the narrowest sense of the word by a completely unrepresentative selection of members of the relevant political party at an elective conference.

This does not mean that political parties do not engage with powerful role players and that they are not often willing to change their positions on important issues based on their engagement with non-party groups. Some of us – due to our position and status, our specialised knowledge about the Constitution and the law, our ability to influence the population through our access to the media, and our ability to formulate cogent arguments and disseminate and sell those ideas to others – are seldom entirely ignored by the governing party when we criticise draft legislation or acts and omissions of the legislature.

Some civil society organisations can similarly not be ignored because they have access to financial resources and can use this to help mobilise concerned citizens and (if they are skilful) can create public sympathy for their cause through their organisational muscle, their skills at mobilising public opinion and their ability to prick the conscience of the various factions within the governing party. Then there are local big business, international business interests and foreign governments who often work behind the scenes to promote or sell their ideas to the governing party. Often these institutions make huge donations to governing parties or threaten governing parties that they will end contributing to the party coffers. International companies will threaten disinvestment from the country or will similarly threaten to stop “bribing” the governing party through its donations, placing enormous pressure on the party to take this or that stand on an issue of the day.

In all of this, relatively weakly organised and under resourced civil society groups or civil society groups whose message may not be popular with those in the chattering classes who control access to the media, will not be heard by either political party leaderships or by the representatives of political parties in Parliament who often act as a rubber stamp for the decisions of that party leadership (if the party leadership is not completely paralysed by a fear to make any decisions whatsoever). The voices of individual citizens who lack the required status or the technical legal knowledge to be heard, who have no money to challenge decisions in our courts and do not belong to well-organised civil society groups, who do not serve in powerful positions within the governing party will almost never be heard.

Some people say that we can fix this problem and we can make Parliamentarians truly accountable and responsive to the needs of the people (instead of to the needs of special interest groups and big business bribers) if only we changed the way in which Parliamentarians were elected. If we moved towards a mixed electoral system similar to the one that applies in local government elections, that would change everything. But of course, the fact is that our councillors are not nearly as accountable and responsive as we want them to be (and many of them are even more beholden to the money interests of the tenderpreneurs than our MP’s at the national level), which suggests that merely changing the electoral system will not change much.

It seems to me that other steps would also be needed to address the democracy deficit in our Parliament. First, we need to break the power of political parties and their leaderships over the individual MP’s, by opening up elections for positions as MP’s to all party members in the constituency or the region, by insisting on a level of openness and transparency in the election process and by introducing strict rules to limit the corrosive influence of money on party political elections.

Second, we need to understand that even then political parties in government will only engage seriously with civil society groups or individuals if these groups or individuals are perceived to have power and influence. Only civil society groups that are well-funded, well-organised and transparent, have managed to gain the respect or even trust of members of the media and can easily disseminate their ideas through the media, and have a coherent programme of action that is not based on serving the interests of the rich and powerful, will gain real influence in our democracy. Individual citizens will seldom have a real impact on what happens in Parliament. They will have to join Community Based Organisations, will have to mobilise their constituencies and work out coherent strategies that will force political party leaders and representatives to take them seriously.

In short, in a system like ours in which political parties – for better or for worse – play a decisive role in the governance of the country, the ideal of a People’s Parliament will remain a pipe-dream. But if ordinary citizens became more active and organised and demonstrated a preparedness to mobilise not only inside political parties but also outside them, our Parliament might yet be saved from the corrupting influence of the rich and powerful.

And what is our government doing (about education)?

As thousands of pious (and often well-meaning) citizens across South Africa congratulate themselves for contributing 67 minutes of their time to a worthy cause on Nelson Mandela’s birthday today (perhaps unconsciously trying to absolve themselves from responsibility for redressing the inequality of opportunity in our country on the other 364 days, 22 hours and 53 minutes of the year) I wonder what our government is doing every day of the year to promote the vision of Nelson Mandela to achieve a just, fair and egalitarian society.

Surely, one of the most pressing priorities for any government in South Africa must be the improvement of the education system and the provision of better education to a far larger range of pupils to ensure that the life chances of all children are not largely determined by how much money their parents can spend on their education, but are rather determined by the talent, hard work and enthusiasm of the children themselves.

After 18 years we are still very far from this ideal and might, in fact, have gone backwards. A child who happens to have a Cabinet Minister, Member of Parliament, City Councillor, or tenderpreneur as a parent or whose parents happen to be relatively wealthy because they had benefited from the apartheid system, has every chance of receiving a relatively good education. But many children in South Africa will never flourish and will never achieve their full potential merely because of an accident of birth.

That is why I was rather surprised to hear that the Western Cape government is considering closing 27 schools in the province. It became even more perplexing to me when I read that Western Cape Education MEC Donald Grant had said at a media briefing that he had drawn up a rough estimate on what the cost savings to the department would be should all the schools be closed and “they were insignificant when one compares that with the (provincial) education department’s R14b budget”.

In a fact sheet, the Western Cape Education Department cited a rather surprising Department of Basic Education statistic that between 2006 and 2010 about 1000 schools were closed across the country. Our education system is in a crisis, yet more than a 1000 schools have been closed across South Africa, a fact that warrants further investigation, it seems to me. Mr Grant said it was not his idea to close the schools and that the national department recommended the closures.

Several reasons have been offered for the possible closure of schools. Some of the schools slated for closure in the Western Cape are situated on private land and the argument is that they need to be closed because government finance regulations prohibited any further investment in the facilities by the department.

Why these regulations could not be changed to facilitate investment in schools on private land, is not explained. Why the common law rules on property rights could not be developed to bring it in line with the spirit, purport and object of the Bill of Rights – which guarantees basic education for all – in order to address concerns about investing in school buildings on private property is also not explained. People, we are never going to solve the problems associated with the provision of education to pupils in deep rural areas, if we do not stop thinking like rule-bound bureaucrats and if we do not begin to think innovatively about problems and how to solve them.

Closing smaller schools, so it is argued, would also save cost in terms of services such as water and electricity. But to what extent such a move would effect access to schooling for especially children living in sparsely populated rural areas is not considered. Sometimes one must incur extra cost to ensure equal treatment of all children as far as access to schooling is concerned. The failure to do so would often discriminate against rural children who might not be able to attend school because they are unable to get to and from the school due to lack of transport or lack of funds to pay for the transport.

Some schools are said to face closure because many of their pupils do not live in the area in which the school is situated. But there might be many reasons why parents send their children to a school in an area in which they are not domiciled. The child may informally stay with a grandparent or another family member who lives close to the school, or the school might be closer to the place of work of the parent and it might be easier for the parent to get the child to the school close to his or her work. The school in the catchment area where the parents live might also be dysfunctional. Closing a school and in effect punishing children for not living in the area in which the school is situated (or living in an area where a school is dysfunctional) seems not to take into account the complexities of people’s lives and their needs as parents and pupils.

Other schools are said to face closure (or have been closed in other provinces) because they were identified as consistently having a high failure rate or a high failure rate in core subjects. While closing such schools will “solve” the immediate problem of the failing school (and is much easier to do than actually turning around the culture in the school and making it succeed), it once again seems to ignore the human element, the needs of parents and pupils and the possible complexities of their lives that led to the children being schooled at that particular school in the first place. Even when schools are therefore closed “for the benefit of the pupils”, it is often done using the cold-hearted logic of a bureaucrat and not focusing on the peculiar and often complex needs of children and their parents who attend that school.

There might well be cases where the only sensible thing to do would be to close a particular school, but surely the assumption must be that this is seldom the right thing to do. Where the National Education Department or Provincial Education Department proposes the closure of a school, the onus should be on them to provide cogent, convincing reasons not merely based on bureaucratic considerations about saving money or about problems with government regulations (which can always be changed). Neither the National Department nor the Western Cape Education Department has really provided cogent reasons, based on the actual needs of the children and their parents, of why these schools have to be closed. (I am not saying such reasons might not exist in individual cases, but if these reasons exist, they have not been properly communicated to the public.)

This, I think, is also what is required by our Constitution. Section 29(1) of the Constitution states that everyone has the right “to a basic education, including adult basic education”, and unlike many of the other social and economic rights in the Bill of Rights, this right is not qualified by the proviso that the state only had to take reasonable steps within its available resources progressively to realise the right. Last year in a judgment in the case of Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others the Constitutional Court confirmed that this means that the right to basic education places an immediate obligation on the state to provide such education to all:

Unlike some of the other socio-economic rights, this right is immediately realisable. There is no internal limitation requiring that the right be “progressively realised” within “available resources” subject to “reasonable legislative measures”. The right to a basic education in section 29(1)(a) may be limited only in terms of a law of general application which is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.

But even if this was not so, section 29(1) places a negative obligation on the state not to interfere with the existing enjoyment of the right to education. Where the Education Department proposes the closure of a school, it will have to demonstrate that this closure is not going to make it more difficult for the children at the school that is to be closed to access education. For children attending farm schools, for example, the closure of a school might well infringe on their right to education by making it more difficult if not impossible for them to attend another school that is far less accessible to the child. And where a child attends a school because it is closer to the place of work of the parent, the closure of that school might well infringe on that child’s right to education because it would become more difficult for the parent to get the child to school and will potentially limit that child’s access to schooling.

Has the Western Cape Department of Education considered the individual needs of the children attending the schools it now wishes to close? And did the National Department do likewise when it closed more than a 1000 schools over the past five years? I can’t imagine that they have, suggesting that there might well be a legal basis for challenging these decisions on school closures. In the absence of clear reasons, based on the actual situation and needs of the pupils and tehir parents, the closure of existing schools will be unconstitutional as it will infringe on the right of access to education.

Of course, this is a small matter compared to the larger, clearly catastrophic, failure of our education system to provide all children regardless of their race and financial circumstances with at least a basic quality education, a failure shockingly illustrated by the Limpopo textbook scandal. But news that so many schools have been closed and that more closures are to follow does seem to illustrate – in its small way – the rather cold-hearted and bureaucratic manner in which various spheres of our government deal with a pivotal issue around the improvement of our education system.

Instead of bending over backwards and working feverishly to provide more pupils with better access to higher quality education, our politicians and bureaucrats fold their hands and shrug their shoulders, pointing to technicalities and blaming others to evade responsibility for the improvement of education. Running up against government regulations, they throw their hands in the air and decide to close a school, rather than to do the obvious thing and change the regulation to allow for investment in schools on private land.

How can our cabinet – both collectively and individually in the form of the Minister of Basic Education – justify this state of affairs? Why are we – as parents, as citizens, as individuals with even a smidgen of humanity – allowing this to happen? Why did the SACP at its recent conference not produce a ten point plan for the improvement of our education system over the next five years and why did it not set an ultimatum for the ANC-led government to implement this plan or face a breakup of the alliance? Why did the ANC delegates at its recent policy conference not take a stand on the failures in education by refusing to leave the conference hall or to endorse any of the resolutions until the Minister of Education and other Cabinet Ministers had provided them with concrete plans for the immediate improvement of the education system (or had promised to resign)? Why did Cosatu not organise an indefinite strike to achieve the same goals?

Oh yes, I forgot, most of our leaders send their children to private schools or to the best government schools and are therefore not affected by the failure of so many of our schools. It’s “only” the poor, the very poor they profess to respect and serve, who are suffering.

In “The Time of the Vulture” we need to pay our judges well

We live in the “Time of the Vulture”, a time in which cowboy capitalists – who have been with us since the discovery of gold and diamonds in South Africa in the nineteenth century – are becoming ever more rapacious and immoral (if that is at all possible), a time in which the Ministerial Handbook has become a Bible of sorts for some people (to justify the self-important and ostentatious lifestyles of Ministers and government officials), a time in which the bribing of state officials and politicians are taken for granted by members of the old and new business elites – all in the service of securing humongous bonuses for executives.

It is a time in which the 50 million South Africans who pay some form of tax are required to subsidise the lavish spending habits and the lifestyles of the few rich and famous individuals who are milking the state dry, all in the name of either respect for the free market or for the need to restore the dignity of those who were cruelly oppressed during apartheid (as if a person’s dignity can ever be measured in money terms and can be bought and sold like designer trinkets at a Houghton flea market).

It is a time in which voters are increasingly becoming more disillusioned with corrupt and greedy councillors; dithering, self-righteous demagogues masquerading as politicians; and smarmy, rapacious and often incompetent captains of big business.

In these times it is perhaps understandable that a politician languishing in the political wilderness in the National Council of Provinces (NCOP) – the sad and ineffectual second house of Parliament where many political has-beens languish in pristine obscurity, secure in the knowledge that they have been rewarded for showing a special talent for mediocrity, blandness and the ability (so prized by politicians) never to allow an original thought to enter their brains, let alone to pass over their lips – that such a politician would take a stab at saying something he or she believes might be popular with voters.

It is understandable, yes, but not wise. Enters the esteemed Denis Joseph, DA MP in the NCOP, who told an ad hoc committee of that august institution during a debate on a draft code of conduct for judges that a strong message needed to be sent out to the members of the judiciary that they were not untouchable.

Nothing stops this parliament reviewing whatever is on the table and coming up with a new package … I get the impression that the judges feel that, because there was such an agreement, it should not be touched, it should be for life…. I think it’s important we tell these judges [that there are] many other laws we are changing, many systems we are changing. The judges must also realise that this new parliament is going to deal with them in terms of fairness and equality [for] all people who work for the state.

The danger is that this populist statement might find favour with the public. After all, are we not wasting money on salaries for judges, money that could be better spent on paying for textbooks and antiretroviral drugs, for houses for the homeless and more free water for those who cannot afford to pay for it?

But in my view this is a dangerous and irresponsible statement. I say so not because I am particularly fond of judges or that I think judges are beyond criticism. When judges act in ways that conflict with the values enshrined in the Constitution, when serving judges resist attempts to force them to declare their financial interests, for example, or when they interpret and enforce legislation, common law or customary law as if the Bill of Rights was never passed, when they apply the law as if male domination and heterosexism is not only accepted but required, they need to be lambasted in a vigorous manner.

But there are very good reasons why the Judges Remuneration and Conditions of Employment Act provides for the continued payment of judges after their retirement, using a complicated formula to determine the exact amount of such a payment. Simply put: without the financial security provided by these provisions in the Act, the independence and impartiality of the judiciary will be seriously threatened. This is why section 76(3) of the Constitution states that: “The salaries, allowances and benefits of judges may not be reduced”.

In De Lange v Smuts the Constitutional Court confirmed that “a basic degree of financial security free from arbitrary interference by the executive in a manner that could affect judicial independence” was an absolute requirement for an independent and impartial judiciary. Quoting from a relevant Canadian judgment, the Court stated that:

The word ‘impartial’ . . . connotes absence of bias, actual or perceived. The word ‘independent’… reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly the Executive Branch of government, that rests on objective conditions or guarantees. Although judicial independence is a status or relationship resting on objective conditions or guarantees, as well as a state of mind or attitude in the actual exercise of judicial functions, it is sound, I think, that the test for independence… should be, as for impartiality, whether the tribunal may be reasonably perceived as independent. Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception. The perception must, however, as I have suggested, be a perception of whether the tribunal enjoys the essential objective conditions or guarantees of judicial independence, and not a perception of how it will in fact act, regardless of whether it enjoys such conditions or guarantees.

First, where Parliament is legally entitled to reduce the salaries or benefits of judges, the judiciary can never be independent or impartial because the absence of financial security for judges would, at the very least, create the reasonable apprehension on the part of the public that judges will be fearful to hand down judgments that might upset the legislature or executive for fear of having their salaries and benefits cut.

In a dominant party system like ours, this problem will be exacerbated because the perception might become a reality and the majority in Parliament might in fact reduce the salaries and benefits of judges to whip them into line, which would automatically bring an end to the independence and impartiality of the judiciary as judges would then be intimidated into making decisions that would not further upset the other branches of government in order to retain their salaries and benefits at a reasonable level.

Amending the Constitution to scrap section 76(3) – something that would be necessary before the honourable Joseph’s threats could be carried out in a constitutionally valid manner – would therefore destroy the independence and impartiality of the judiciary and would bring an end to constitutional democracy with a supreme Constitution as we have come to know it in the past 18 years.

But even leaving this crucial issue aside, I would argue that it was imperative that judges be paid what in effect amounts to a generous pension in order to safeguard the independence and impartiality of the judiciary and secure public trust in the institution. Where no provision is made for the payment of some salary to retired judges, judges would have to provide themselves for their retirement. They would have to do so either by doing extensive consulting work after their retirement or by building up a pension during their service as judges.

In the first instance, the need to quickly make lots of money to finance their retirement after they end their term as judges would leave judges wide open to conflicts of interests during their service as they might well act cautiously so as not to alienate either the government or those in big business for whom they would hope to do lucrative consulting work on their retirement. If a perception were to arise that judges were widely influenced by commercial considerations when they had to decide a case in which a big corporation or the state were involved, it would entirely subvert the system and fatally compromise the independence and impartiality of the judiciary. If a perception were to arise that one would not have a great chance of ever winning a case against a big company or against the government, the independence and impartiality of the judiciary would have come to an end.

Where judges are required to fund their pension from their income as sitting judges, there is a real danger that they would be vulnerable to bribes and to corruption. As the financial pressures mount and as their monthly salaries appear insufficient to fund their lives as well as a generous pension plan, the less scrupulous litigants would perceive judges as vulnerable to corruption and would offer direct or indirect incentives to judges to make decisions favourable to them. Before one were able to say “Oasis” – and even if no or very few judges succumb to offers of bribery – the perception that might arise amongst members of the public would itself fatally undermine respect for the judiciary and with it the ability of the judiciary to act impartially and independently.

In the “Time of the Vulture” I am loath to endorse an expensive and wasteful pension scheme for anyone being paid from the public coffers (in other words for anyone being paid by the 50 million people who pay taxes). But for members of the judiciary I happily make an exception. We need to pay our judges well and look after them in their retirement. It is our insurance policy against widespread corruption, nepotism, the flaunting of the Rule of Law and the abuse of power.

In the absence of competitive party political contestation of elections, approaching an independent judiciary to challenge these inherently undemocratic and unlawful actions by the greedy Vultures remains a last resort. Given the South African context, honest, impartial and independent judges may therefore be a prerequisite for safeguarding the democratic space within which active citizens can enforce their rights and fight back against the Vultures. At the price tag, the paying of pensions for life to judges is a huge bargain.

Cosatu leads an attack on democracy

A few years ago at the opening of the Gay and Lesbian Film Festival in Cape Town, a motley crew of fundamentalist Christians picketed the event, holding up insulting and provocative placards like “Turn or Burn”; “Homosexuals will burn in hell”; and “Homosexuality=perversion”. My then partner and I, encountering these protesters as we left the cinema, turned to each other and kissed each other passionately. I then waved at the protesters, smiled, and wished them well.

After all, they had a right to express their views, no matter how repugnant, bigoted, bizarre and superstitious I might have found these views — just as I had the right to demonstrate my love and affection to the person dearest to me. That is one of the advantages of living in a constitutional democracy. As long as one does not break the constitutionally valid laws of the country, one is free to do and say what one wants.

Section 17 of the South African Constitution states that: “Everyone has the right peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” This right forms part of the bouquet of rights aimed at securing a democratic space in which individuals can express their views, can demonstrate in support of those views, can listen to others and consider changing their minds. If these rights are not vigilantly protected, democracy itself is diminished.

If one is intolerant of the views of others to the extent that one would take action to prevent others from expressing these views or trying to spread their views by holding marches or handing over petitions, one is intolerant of democracy itself. If one disagrees with a view expressed by others and promoted via a peaceful march, then one should counter that view with better arguments and holding another, larger, peaceful march. Not by trying to deny others their democratic rights.

That is why the actions by the Cosatu leadership as well as Cosatu members today must be condemned in the strongest terms. First Patrick Craven of Cosatu (and the ANC) called on the DA not to exercise their democratic right to demonstrate. Then the National Union of Metalworkers of SA (Numsa) and its affiliates vowed to “swamp the streets outside Cosatu House”.

Numsa spokesman Castro Ngobese complained that: “This mass gathering is informed by the provocative, deceitful and cheap political blackmail from the chief representatives of white monopoly capital and apartheid apologists the DA.” Ngobese said the DA was trying to coerce the ANC-led government, particularly its ally Cosatu, to agree to the neo-liberal proposal of a youth wage subsidy.

(Ironically the march was aimed at promoting a youth wage subsidy, a policy supported by the ANC government.)

Then this morning Cosatu members intimidated DA marchers and threw stones at them (with some reports of the DA marchers retaliating) and at journalists, injuring several people.  Patrick Craven incredibly justified this action by stating: “We showed [the DA] we would not be intimidated.” Mouthing platitudes about supporting the right to peaceful protest (as Vavi did in a tweet) after you have called on your supporters to stop a DA march from getting close to your headquarters, merely illustrates than one is a hypocrite, not that  one is a man of principle.

There is no place in our democracy for such anti-democratic intolerance. The argument that the marchers “provoked” Cosatu members who were by implication justified in using violence to stop the march, does not hold water. No one has a right to bring a violent end to a march because they believe the message of the marchers is wrong or that the marchers have no right to demonstrate close to where they work. If they had, the rights protected in section 17 of the Constitution would be illusory. Leaders have a special duty to ensure that their followers do not deny the rights of fellow citizens and they must not instigate unlawful and undemocratic action by their followers.

It is deeply disappointing that Cosatu leaders like Zwelenzima Vavi, somebody I have always held in high regard, would stoop to such a low.

Some commentators have argued that the DA was irresponsible to march on the Cosatu headquarters and that it was strategically wrongheaded. But this is a red-herring. One might well believe that it was unwise for the DA to march on Cosatu headquarters (or that they will not win any votes in this way), but there is no law in South Africa prohibiting one from being unwise. In fact, the Constitution requires the Police to protect even those who we believe are acting unwisely from the intolerant and undemocratic attacks by fellow citizens.

The Police also has a duty to protect marchers from intimidation and attack. There might be cases where intolerant citizens spontaneously begin to threaten marchers and the Police must then step in to protect the marchers. If they cannot do so, they may try to defuse the situation by diverting the march. But where leaders in effect call on supporters to deny other citizens their democratic rights, the Police has a positive duty to deploy the necessary resources to protect such marchers. The Police did not (or could not) stop Cosatu members from massing and attacking the DA marchers, suggesting that the Police is partly to blame for the ensuing bloodshed.

Lastly, I am not an economist so I do not have a strong view about whether the youth wage subsidy is a good thing or a bad thing. But if Cosatu wants to convince people like myself that it is a bad idea, they will have to present arguments to that effect. They sure as hell will not convince me of their view by stopping others from expressing the contrary view.

In fact, responding to a peaceful protest march with violence would suggest that Cosatu does not have a sound and convincing argument that it thinks will convince the millions of unemployed youth that a policy aimed at creating youth employment is a bad thing. Maybe there are such arguments, but in the absence of a cogent and sound response from Cosatu, many people will be left with the perception that Cosatu is protecting the interests of its members and do not care much about the unemployed who, after all, are not constituents of Cosatu because they are unemployed and cannot join a union.

DA, why not admit wrongdoing and move on?

When newspapers first published reports alleging that Julius Malema might have enriched himself by taking bribes in return for influencing the awarding of tenders to certain companies, Malema rejected this claim, arguing that he does not sit on any tender committee and can therefore not influence the awarding of tenders in his home Province of Limpopo.

Whether he did or did not take bribes with the understanding that he would influence the awarding of tenders in Limpopo, his defence was not plausible. This is because one does not have to sit on a tender committee to influence a tender. All one needs to do, is to ensure that one has influence or power over those who sit on the tender committee. One can obtain influence or power over those who sit on such a committee by ensuring that that political underlings sit on the committee or by bribing its members or by ensuring loyal political allies sit on the committee or by obtaining a hold over those who sit on the committee by letting it be known that one has damaging information about them which might be leaked to the media.

It is therefore not too difficult unfairly or even corruptly to influence the awarding of tenders without formally breaking the law. This is because it is very difficult to insulate the procurement process from informal loyalties and political considerations. That is why – with tenders – perceptions can be almost as important as the reality.

Not that the Constitution and South African legislation do not attempt to address these problems as best it can. Section 217(1) of the Constitution therefore states that:

When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective.

Section 217(2) qualifies this general statement as it states that organs of state are allowed to implement a procurement policy providing for categories of preference in the allocation of contracts; and the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination. But this has to happen in a manner that is fair, equitable, transparent and competitive.

In terms of section 76(4)(c) of the Public Finance Management Act (PMFA) the National Treasury may make regulations or issue instructions concerning the determining of a framework for an appropriate supply chain management at national or provincial level which is fair, equitable, transparent, competitive and cost-effective. However, according to section 38(1)(a)(iii) of the Act it is the responsibility of the accounting officer/authority of a department, trading entity or constitutional institution to have and maintain an appropriate procurement and supply system which is fair, equitable, transparent, competitive and cost-effective. Where a procurement system is established that is not fair, equitable, transparent, competitive and cost effective, the awarding of a tender through that system would be unlawful.

Which brings us to the curious case of the Western Cape government’s curious politicisation of the tender process in a case that implicates the government at best in improper behaviour.. During 2011, the Department of the Premier in the Provincial Government of the Western Cape contracted with a company for the provision of various communications services. Two special advisors of Premier Helen Zille were appointed to the Committee tasked with evaluating the various bids for this contract. In a draft report by the Public Protector regarding the alleged improper or unlawful participation of these special advisors in the evaluation of the bids, it was concluded that these appointments was unlawful and had rendered the adjudication management and the entire procurement process invalid and constituted improper conduct and maladministration. One of these special advisors, Ryan Coetzee, is often referred to as the political brains trust of the DA and during the last national election he was the party’s main election strategist and Chief Executive.

The DA’s obtained legal advice to try and counter this preliminary finding. The legal advice, prepared by Geoff Budlender, distinguishes between conduct which is unlawful because it is in breach of a prescription of the law and may affect the legal validity of the conduct in question on the one hand and improper because it is inappropriate in some way. The fact that conduct has been improper does not necessarily affect its legal validity.

Budlender then argues – correctly as far as I can tell – that there is no provision in the law which explicitly prohibits the participation of Special Advisers as members of a Bid Evaluation Committee. He also, rather technically and formalistically, argues that the Constitution, read with various guidelines and regulations, do not implicitly prohibit the participation of a special advisor in a bid evaluation committee. Although the involvement of Zille’s special advisors might have been improper, it may not have been unlawful. But the legal advice is not nearly as unequivocal as the DA presented it as being, as Budlender writes that the question whether the appointment of the Premier’s special advisors to the bid evaluation committee was unlawful or not “may be in some doubt”:

In this matter, however, the situation is somewhat blurred by the fact that there is no explicit prohibition of Special Advisers being members of Bid Evaluation Committees. If there is such a prohibition, it is one which is to be inferred from other provisions of the law. It seems to me that this weakens the applicability of the general proposition that the legislation contemplates that a failure to constitute the BEC lawfully is to result in a nullity.

I would argue that in deciding whether the presence of Zille’s special advisors were unlawful or not, one should look at the purpose of section 217 of the Constitution and the relevant provisions in the PFMA in order to judge whether a tender procedure complies with it and that one should also take into account the specific context of each case (as the Constitutional Court often does). One should therefore not look at this question in the abstract (as Budlender seems to do), but should look at the facts of each case and ask whether the system set up to evaluate the tender was in a particular case indeed fair, equitable, transparent, competitive and cost-effective as required by the Constitution and the PFMA.

As I see it, the purpose of section 217 of the Constitution, the PFMA and the procurement regulations set up to give effect to it, is to prevent corruption and to establish a fair tender system in which political or personal financial considerations would play no role in the decision-making of the committee called upon to evaluate and award tenders. Where one of the Premier’s special advisors happens to be a highly controversial and profoundly political appointee (how could he not be, given that he was one of the leading political strategists of the DA during the last national election and that he stood for the position of the Parliamentary leader of the DA a few years ago), it is clearly improper that the special advisor should be part of a tender bid evaluation committee.

As Budlender suggests, it is arguably also unlawful as the participation of such a political animal, someone who advises the Premier and the leader of the DA and is known to be politically highly influential, would sabotage the integrity of the procurement process and would create the reasonable perception that the system is not fair and equitable. Luckily for the DA government, the Premier’s special advisors were not particularly effective and did not manage to sway the committee to support the bid of their choice, which means that the government would probably not have to cancel the contract even if it had followed an unlawful process in awarding the tender.

However, these seem to me to be a rather technical and unnecessarily formalistic approach to a matter of impropriety (or, perhaps, unlawful conduct). What, I wonder, would the DA have said if Paul Ngobeni, the then special advisor to Minister Lindiwe Sisulu, had been appointed to a bid evaluation committee of the Department of Defence? Or if Gwede Mantashe had been appointed to a bid evaluation committee in the Office of the Presidency?

Even if, following the formalistic narrow reasoning of the DA’s legal opinion, such appointments would not be deemed unlawful, they would be wrong and improper and the DA would have had a field day painting the ANC government as corrupt because of the involvement of such highly controversial individuals with clear and unwavering political commitments and loyalties to a bid evaluation committee. The same rule should therefore surely apply to the DA in this case.

It is not appropriate for a special advisor to a politician to sit on a bid evaluation committee, full stop. It is even more inappropriate if that special advisor is controversial and is perceived to be and is in fact, a politician him or herself and is widely viewed as representing the views of the politician he or she supposedly advises.

The DA would do well to stop parsing words and drop the reliance on the formalistic technical legal arguments and admit that what the Western Cape government did was wrong. Although there is no evidence of corruption, it does not make an otherwise improper or unlawful process proper and lawful.

What was Ryan Coetzee doing on this bid evaluation committee in any case? Why did he, unlike everyone else, favour a different bidder? Was he improperly pushing for the awarding of a tender to the bidder favoured by his political boss, Helen Zille? There might be innocent answers to these questions, but because of his high political profile, the perception is necessarily created that something is fishy with his involvement in this process. That is why special advisors, especially special advisors of this kind, should never sit on bid evaluation committees. Why the DA cannot just admit this and move on is beyond me.