Constitutional Hill


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.

FW de Klerk reveals dark underbelly of white South Africa

The interview on CNN with FW de Klerk, South Africa’s last apartheid President, has gotten many South Africans hot under the collar – and rightly so. In the interview, De Klerk refuses to admit that apartheid as a concept was immoral and wrong. Claiming that he did apologise for the “injustices wrought by apartheid”, he empahises that what he has not apologized for “is the original concept of seeking to bring justice to all South Africans through the concept of nation states (essentially creating two separate states, one black and one white)”.

He then proceeds to explain why the system of racial segregation and the subjugation of black South Africans by the white minority had “failed” in the following rather cold-hearted and unemotional manner:

But in South Africa it failed. And by the end of the ‘70’s, we had to realize, and accept and admit to ourselves that it had failed. And that is when fundamental reform started…. There are three reasons it (apartheid) failed. It failed because the whites wanted to keep too much land for themselves. It failed because we (whites and blacks) became economically integrated, and it failed because the majority of blacks said that is not how we want our rights…. I can only say in a qualified way. Inasmuch as it trampled human right, it was – and remains – and that I’ve said also publicly, morally reprehensible. But the concept of giving as the Czechs have it and the Slovaks have it, of saying that ethnic unities with one culture, with one language, can be happy and can fulfil their democratic aspirations in an own state, that is not repugnant.

The attitude displayed by De Klerk is shared by many (but thankfully by no means all) white South Africans and to my mind it illustrates quite emphatically why white South Africans are still widely viewed with some scepticism by many black South Africans. It is a timely reminder that many white South Africans do not “get” race and that they do not know or, worse, do not care that they are not getting it.

What De Klerk cannot admit or what he is incapable of admitting is that apartheid was not wrong – a moral abomination – because it had “failed” or merely because the human rights of black South Africans were trampled on in order to enforce the system of white domination. It was morally reprehensible because it was born out of a profound racist attitude towards black South Africans, and its logic was based on the dehumanising belief, at best, that white people were morally, intellectually and culturally superior to black people and, at worst, that black people are not fully human and do not deserve to be treated with even a modicum of concern and respect.

Apartheid was the logical result of the ideology of racism enforced by the state and could only be implemented because white South Africans believed then (as many continue to believe today – even if they are not aware of this and will deny it) that they are infinitely superior as a group to black people as a group.

Apartheid can therefore not be compared with what has happened in the former Czechoslovakia. Neither can it be compared with the impulse in Belgium for French and Flemish speakers to want to govern themselves. In these countries, different language, cultural or ethnic groups have chosen to be goverened by those who are like them, not because of the inherent belief that they are intellectually, culturally and morally superior to another group and because of the fear and hatred towards that group. Unlike with the apartheid system, the founding belief of these societies are not that its members would be tainted, subverted or defiled if they had to mix with another group whom they believed to be inferior.

The system of apartheid was not only tainted by racism or skewed by it, leading to human rights abuses against black South Africans. Racism – the fear and hatred of black South Africans by white South Africans born out of a sense of imperious superiority – was the very reasons for the creation and enforcement of apartheid.

One of the most deeply problematic aspects of life in post-apartheid South Africa is that so many white South Africans continue to deny this fact and seem incapable of confronting their own deeply ingrained sense that as white people they are generally intellectually, culturally and morally superior to most black people – although they think that by making an exception for Nelson Mandela and Archbishop Desmond Tutu they have overcome the racism within them. Fact is: we have not dealt with our own racism, no matter how progressive we are and no matter how we claim to be non-racist. Many of us may not use the “k”-word and may express our abhorance of racism, but we cannot “unwhite” ourselves and cut ourselves loose from the racists culture and world in which we live. How could we, as racism is embedded in Western culture as a defining characteristic of that culture, a culture which helps to define who we are and where we are supposed to “belong”.

That is, perhaps, why so many white South Africans get so defensive when one talks about racism, and when one calls someone out on his or her own blatant or latent racism and why excuses are so often made for racists. Because if as white South Africans we are all morally tainted because we are white, if because being white necessarily implies that we carry within our bodies the virus of racism born out of a false sense of racial superiority, then we stop being who we think we are and we lose our sense of identity as whites who by definition are superior.

When we confront the virus of racism that pumps through our veins because we happen to be white, we have to admit that we are not superior to anyone and, in fact, we become, at least, as morally tainted as everyone else, but probably morally far inferior to black South Africans. But as the definition of whiteness implies for many white people a (often unspoken and unexamined) superiority to other racial groups, this acceptance of the fact that we are morally tainted (also) because we are white (of course, no one in the world is not tainted in some way), is literally impossible to comprehend, something that would drive one mad because, for many, it just cannot be true!

No wonder De Klerk has to insist that apartheid was wrong merely because it did not work very well. If he had to admit that the very premise of apartheid made it an evil system, he would have to confront the fact that he was part of a deeply immoral system and this would fatally undermine or even destroy his sense of self – his sense of self as an essentially good person who might (because of circumstances) have made a “few mistakes” but who remains the morally superior white person he implicitly believes himself to be.

This is perhaps also why the Democratic Alliance (DA) is finding it difficult to navigate the troubled waters of racism. Earlier today journalist Osiame Molefe tellingly tweeted: “Taking on racist models is one thing, what says the DA on apartheid denialist de Klerk.” Molefe is right, but I am not sure that the DA will be able to answer him and to respond appropriately because it would create too much tension inside the DA and that party would be at war with itself.

Fact is that the DA is between a rock and a hard place. If it really wanted to confront its image of being a party for whites, a party that arrogantly exudes the values of white superiority, it will have to confront the deeply embedded notion of white superiority that so many of its current voters (and some of its public representatives) fearfully cling to in order to retain the sense that they are essentially decent human beings. It is never easy to admit that one is not as decent as one would have liked.

What the majority of white people in the world do not understand is that it can be rather liberating to throw off the burden imposed on us by the need to feel superior to others. By admitting that it is impossible to be free from racism, given that we live in a world whose economic and social structures are based on the notion of white superiority, one is freed to begin to face up to one’s responsibilities and to begin to address the problem. If one embraces the fact that one is not special, that (like all other human beings) one is incapable of living a truly ethical life but that one has an ethical duty to continue trying to do so, it is easier to let go of the anger and the hatred (and the fear and the shame which produces the anger and the hatred) that poisons one’s life.

And now I wait for the barrage of angry posts by those who prefer to continue living in their denialist cocoon of festering anger and hatred. But whether they really hate others or themselves, only they will be able to tell.

What will we learn from NPA record on Zuma prosecution?

News that the National Prosecuting Authority (NPA) has decided not to appeal the Supreme Court of Appeal (SCA) decision handed down last month in which it declared the decision by the NPA to drop all charges against President Jacob Zuma reviewable on the ground of legality and ordered the NPA to produce the record on which it based its original decision, comes as something of a surprise. I, for one, thought that the NPA would appeal the case because an appeal would have been politically beneficial to President Jacob Zuma who might want this case to drag on as long as possible.

President Zuma was also a respondent in this case and may still decide to appeal the judgment. If he decides not to appeal, the NPA will have to provide the Registrar of the court with the “reduced record” which the NPA relied on to make its original decision. After looking at this record the DA will then have to decide whether it is worth pursuing this case and whether there is merit in having the decision reviewed by the High Court.

The SCA made the following order regarding the production of this “reduced record”:

the first respondent [NPA] is directed to produce and lodge with the Registrar of this Court the record of the decision [to drop charges against Zuma]. Such record shall exclude the written representations made on behalf of the third respondent [Zuma] 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.

When the former acting National Director of Public Prosecutions, Mokotedi Mpshe, announced that the NPA was dropping the charges against President Zuma, he indicated that the representations submitted by the legal representatives of Mr Zuma (as he then was) pertained to the following issues: the substantive merits of the case against Zuma; the argument that Zuma would not receive a fair trial; the practical implications and considerations of continued prosecution; and policy aspects militating against prosecution.

Mpshe made it clear that the NPA “could not find anything with regard to the first three grounds that militate against a continuation of the prosecution”, meaning that the NPA believed it had a winnable case against Zuma and that Zuma would be able to receive a fair trial. The NPA will have to produce the record and the documents which led it to this conclusion.

This means that the documents setting out the strength of the corruption case against Zuma will have to be produced along with legal memorandums dealing with allegations that Zuma would not be able to receive a fair trail because of the way in which the then Scorpions conducted the case. These documents, if made public, could be extremely embarrassing to the President as it might remind South Africans of the fact that a strong prima facie case of corruption exists against President Zuma, a case which he has never answered despite claims at the time that he wanted to clear his name.

But the NPA will also have to furnish other documents which might embarrass former President Mbeki and others who might have plotted against Zuma. This is because the reasons given for the dropping of the criminal charges against Mr Zuma (as he then was), centred on the alleged abuse of the process and as Mpshe’s statement made clear this turned on allegations that there was some manipulation inside the NPA regarding the timing of bringing charges against Zuma.

The NPA decided to drop the charges against Zuma after listening to the recordings of various phone conversations between the head of the Scorpions and other role players. Although Mpshe’s statement is coy on this issue, it appears as if Zuma’s lawyers provided the NPA with these recordings. However, crucially, it appears from Mpshe’s statement that it was not these recordings provided by Zuma’s lawyers on which it relied to drop the charges against Zuma. The following extract from Mpshe’s statement is pivotal:

Although the recordings sounded authentic, the NPA decided to approach agencies that have a legal mandate to intercept telephone calls with a view to ascertaining whether they may have legally obtained recordings of the same conversations.

The National Intelligence Agency (NIA) confirmed to the NPA that it indeed had legally obtained recordings of many of the same conversations which were obtained during the course of its investigation into the circumstances surrounding the production and leaking of the Browse Mole report.

NIA indicated that it was able to share these legally with the NPA for the purposes of the investigation and for reaching a decision in this matter. Thus the NPA was able to make transcripts of the relevant portions of the recordings for this purpose and NIA has declassified these transcripts as they are not directly relevant to its own investigation. The NPA is thus confident that its decision is based on information that was intercepted legally and obtained legally by the NPA.

The transcripts contain material that was of vital importance in the NPA reaching its decision, and the NPA has decided to make its contents public as it believes it is in the public interest to do so. The transcripts have been declassified, the NPA believes that there is no legal impediment to its doing so.

Despite this passage, the NPA never made public all the transcripts in its possession. There are at least 28 different phone calls referred to in the NPA statement. Rather Mpshe’s statement included selected extracts from these transcripts to justify the conclusion that there was an abuse of process which fatally tainted the prosecution. The NPA will now have to provide all the transcripts which, one assumes, will finally be made public.

The extracts provided by the NPA at the time suggested that the major players were in regular contact with then President Mbeki. For example, the following extract from the NPA document refers to the following telephone conversation between Leonard McCarthy (LM) and Bulelani Ngcuka (the comments on the left are the explanatory comments provided by the NPA):

  1. LM: The third issue is, I met with the guy I mentioned, and you know his line is almost like that of Sam
  2. BN: Laughs
  3. LM: But he said he will. He says he will speak to the man but his he is back over the weekend, but he knew, he feels very strongly that I should not see the guy directly
  4. LM: So that he has a shield, so that if this issue comes up then he can say “I don’t know what the fuck you are talking about”
There is regular reference to the need to meet or discuss with “the man”, “the other fellow” or “guy” or “he”. In calls 17, 21, 25, 26, 28 it is clear that it is the President. In most other cases it is not clear who is meant.

To complicate matters further, Bart Ford, a senior commissioner at the CCMA ruled in a separate matter relating to the unfair dismissal application of a former Deputy Head of the Special Investigative Unit that these recordings were illegally obtained and could not be used in the arbitration hearing. It is unclear whether these recordings are the original recordings provided by President Zuma’ and his lawyers (which would suggest that the original recordings were illegally obtained and that our President and/or his lawyer committed a crime) or whether they refer to those allegedly secured from the NIA. In any case, the decision of the CCMA is of course not binding on the High Court, but if the recordings were indeed illegally obtained that would cast some doubt on the decision by the NPA.

So we wait with bated breath for the NPA to produce the “reduced record”. This will not only help everyone to evaluate the strength of the criminal case against President Zuma, it will also give some indication of whether the decision of the NPA to drop the charges against Zuma was legally sound or whether it might have been based on illegally obtained recordings made by lawless members of the intelligence services.

A worrying attack on the Rule of Law

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

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

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

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

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

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

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

  • The continued attempt by the DA to use the Courts to undermine and paralyse government.
  • The granting of blanket permission to political parties to can review any State decisions, using Courts.
  • How the DA will conduct a review of the case when it can`t have access to all the information which informed the NDPPs decision, to withdraw the charges.

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

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

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

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

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

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

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

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

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

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

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

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

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

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