Constitutional Hill

DA

Political parties must be more open and democratic

Jul 14th, 2011
by Pierre De Vos.
8 comments

Can political parties in a multi-party democracy rightfully claim that they have a right to privacy and can such political parties refuse to share information with the public at large regarding their inner-workings or about dealings between their leaders and private individuals or institutions?  Should political parties not be legally compelled to be more open, democratic and accountable to ensure that voters are adequately informed about their actions inside and outside government?

For example, should voters be able to gain access to information about donations made to political parties and about how that money is spent? If voters want to find out whether Premier Helen Zille does receive a second salary from the DA as claimed by Tony Eihrenrich, should voters not be entitled to get access to this information? And if voters wish to know whether the ANC has taken donations from the Gupta’s or from Muhammar Ghadaffi, should they not be entitled to this information?

Political parties seem reluctant to share information about their finances as well as other information that might show them or some of their leaders in a bad light. When Idasa requested information about party funding from the DA and the ANC both parties refused to provide such information and when Idasa went to court to compel the parties to provide such information the Cape High Court, in the case of  Institute for Democracy in South Africa and Others v African National Congress and Others, rejected this application.

Access to such information is regulated by the Promotion of Access to Information Act (PAIA). PAIA was adopted to give effect to section 32 of the Constitution, which states that everyone has the right of access to any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights.

The Act makes a distinction between public bodies (whose information – in theory at least – is easier to access) and private bodies (whose information is more tightly guarded by the Act). The practical sig­nificance of the distinction is that, as far as private bodies are concerned, one can only gain access to information if, inter alia, one can show that the information is “required for the exercise or protection of any rights”.

In the Idasa case, the High Court – after analysing the relevant sections of PAIA – found that the definition of “public body” is a fluid one and that the division between the categories of public and private bodies is by no means impermeable.

The Act recognises the principle that entities may perform both private and public functions at various times and that they may hold records relating to both aspects of their existence. The records being sought can thus relate to a power exercised or a function performed as a public body, in which event Part 2 of PAIA is applicable, or they can relate to a power exercised or a function performed as a private body, in which event Part 3 of PAIA is applicable.

As information that was sought by Idasa related exclusively to the fundraising activities of the political parties, the High Court found that when a political party dealt with its fundraising it was acting as a private body. It also concluded – wrongly in my opinion – that this information sought by Idasa was not required for the exercising or protection of any rights. (What about the right to vote, I would ask? Surely one cannot exercise that right properly if one is not informed about the funding sources of political parties?)

This history came back to me when I read in the media that the ANC is opposing an application lodged by the Cape Argus to compel the party to hand over documents in its possession that relate to the so called brown envelope journalism scandal. The “brown envelope” saga relates to an allegation made in an affidavit by former Cape Argus journalist Ashley Smith that he and former colleague Joseph Aranes had been paid by then ANC office-bearers in the Western Cape administration, under former premier Ebrahim Rasool, to write articles designed to promote the “Rasool faction” in the party’s regional branch.

It seems to me that the ANC is on shaky grounds in refusing access to these documents. As the documents relate to actions allegedly taken by ANC officials while in government, I suspect that it would not be possible to argue that in this case the documents relate to or was generated by the ANC when it was performing a private function. As Premier, Ebrahim Rasool is alleged to have used public funds to influence positive coverage of a particular ANC faction in government.

Chapter 4 of PAIA does contain a long list (too long to discuss here) of grounds on which a body can refuse access to information and I would guess that the ANC would rely on one of these grounds to justify its refusal to part with documents that could incriminate some of its leaders.

But the larger question remains: why would the ANC refuse to hand over such information of they have nothing to hide? And why would both the ANC and the DA refuse to provide information about their donors if they have nothing to hide? Political parties – especially parties like the ANC and the DA who are in government – are hungry beasts who require donations and positive publicity. The temptation for such parties to be corrupted to gain such donations and publicity are great. The present scandal in the UK regarding the untenable influence of Rupert Murdock and his media empire on politicians in that country, reminds us of just how democracy can be corrupted by money and by the influence of the media.

It seems to me what is needed is separate legislation on democracy and political parties which will compel political parties to adhere to a degree of openness and transparency regarding their finances as well as their internal workings and which will set minimum norms and standards for political parties to ensure internal party democracy, openness and transparency. As we vote for parties and not for individual candidates at national and provincial level, the manner in which political parties select candidates are crucial for our democracy. Such a law may help to limit the potential corruption associated with both party funding and – related to this – with the selection of candidates that will appear on party electoral lists.

In all of this, the most important principle must be openness and transparency. As the Rasool saga and the Idasa funding case have both shown, these things are in short supply in our political system.

And the winner is…..

May 20th, 2011
by Pierre De Vos.
35 comments

This Business Day cartoon sums up the election rather well. Maybe local government officials and politicians of both the DA and the ANC will now begin to treat people with dignity and respect. Maybe they have learnt from the toilet scandals that one cannot only tell people what they want and what is best for them, but that one must also listen to what they say and take their needs seriously. One lives in hope – despite evidence to the contrary.

20110519

More thoughts on election results

May 19th, 2011
by Pierre De Vos.
90 comments

In the absence of exit polls asking voters why they voted for their party of their choice, it is not possible to explain large swings in voter support with any certainty. In the Western Cape, making sense of the large swing to the DA is further complicated by the fact that the ID did not stand in the 2011 local government election. As the ID is in the process of merging with the DA and fought the election with the DA, one would have to know how many ID supporters decided to vote for the DA and what percentage threw their weight behind the ANC.

In KwaZulu/Natal where the IFP is in decline, the new kid of the block, the NFP, seems to be rising and where President Jacob Zuma’s presence as leader of the ANC has boosted the ANC.

Because there had already been a swing in the Western Cape from the ANC to the DA in the 2009 general election, it further complicates any analysis of the 2011 local government elections. Merely comparing 2006 results with 2011 results and drawing conclusions from that might well not give the full picture.

And of course, what happens in the Western Cape will not be replicated in Mpumalanga, KwaZulu/Natal or Limpopo. For me the two most interesting provinces to watch is the Western Cape (perhaps because I live here) and KwaZulu/Natal (where the IFP seems to be imploding and the ANC seems to be making steady gains).

Did the DA’s largely positive campaign sway undecided voters in the Western Cape? Was there a “Jimmy Manyi backlash” in the Western Cape amongst voters alienated by the ANC?  Did local factors, including allegations of corruption and mismanagement play a role in the swing to the DA in many towns across the Western Cape? Did infighting in the ANC in the Western Cape play a role by dissuading traditional ANC voters from going to the polls? Did voters actually buy the relentlessly punted message of the DA that it was the party that “delivered for all”?

Without exit polls it is really impossible to say. All one can do is speculate.

Taking the Breede Valley (Worcester) election results as an example, it is clear that the DA won a larger percentage of the vote than the DA/ID combined vote of 2006.

In 2006 the ANC won 18 seats with 46% of the vote, while the DA received 33.3% of the vote and 13 seats and the Independent Democrats won 5 seats with 11.4 percent of the vote. Preliminary results suggest the DA won Breede Valley (Worcester) in 2011 with 55.03% (22 seats), with the ANC second with 34.09% (14 seats), while 5 seats were shared among smaller parties.

About 75% of residents of this region is said to be “coloured”, 17% is said to be “African” and the rest is said to be “white”. A further swing to the DA (from 2009) would suggest that the “Jimmy Manyi factor” might have played a role here. But because the IEC website is frozen I could not check the results for this region for the 2009 election. It is therefore impossible to ascertain right now whether the DA did better in 2011 than it and the ID did together in 2009.

At the moment, results in large parts of Johannesburg are also unavailable. It is thus not possible to verify the DA claim that it has made some inroads into traditional ANC voting areas. Ultimately it might well be that the ANC overall portion of the vote would not have dropped as much as some pundits predicted before the election. Because of its success in KwaZulu/Natal, the ANC might well do better overall than some expected.

Whatever happens, the emerging narrative among chattering class pundits is that the DA is the big winner of the election while smaller parties have been the big loser. Money and the organisation it can buy, wins elections. The ANC and the DA had money. Smaller parties had none. Imagine Azapo or the PAC had the same funds as the DA. I suspect they would then have done far better than their dismal performance so far indicates.

Time, perhaps, to revisit the entire manner in which political parties are funded in South Africa?

Election results update

May 19th, 2011
by Pierre De Vos.
27 comments

Watching the SABC and ETV coverage of the election results is a bit like trying to watch a rugby game blindfolded with very loud and drunk spectatiors sitting all around you. There is a lot of noise but one is not able to gather much hard information from this exercise. And if one analyst or presenter says “It’s early days yet,” I am going to scream.

The leaderboard at the IEC results centre also provides utterly meaningless statistics because one does not know which wards or municipalities have reported their results, whether more results have come in from traditionally DA than ANC strongholds and which province has reported the largest percentage of those results so far. Idiotic. 

In any case, this is a local government election, so what happens in each Metro and in each town is far more important than the overall vote tallies for the parties. If one wants to get real information one must go to the Internet. Unfortunately the Electoral Commission site is outdated and is far too complicated to use and unless one is a serious number crunching geek it does not seem of much use.

News24 has probably the best and easiest to use page. It contains a map with both 20o6 and 2011 results, which gives one a far better picture of what is going on than the TV reports. Otherwise, for those on Twitter, it is very useful to search for #LGEResults or #LGER2011 and follow those feeds. From what I gather from my sources the DA did very well in Cape Town and will win in a landslide, while the ANC probably did better than expected in Johannesburg. (And, no, I am not going to caution that it is early days yet.)

What about the “Steve Hofmeyer” vote?

May 16th, 2011
by Pierre De Vos.
51 comments

This weekend I watched the DA’s final election rally on ETV-news and it was quite enlightening. The rally was clearly aimed at projecting the image of a party of the future that embraces people from all races and cultures. (The SABC decided not to broadcast this rally live, which probably means it was in breach of the law that requires it to treat political parties equitably during election campaigns.)

I also watched the ANC’s final election rally (this time on SABC) and it, too, was enlightening, as the ANC seemed to want to project the image of a party of the past, harping on about apartheid and what the ANC had done before and saying very little about how it will fix the mess that many municipalities find themselves in.

Tentative conclusions.

The ANC is much better at the razzmatazz of election rallies than the DA and its core voters appear to be more emotional  and enthusiastic – at least on TV. Packing the FNB stadium with tens of thousands of supporters was very impressive and until President Jacob Zuma started his speech, things were going very well for the ANC (with a little bit of help from SABC TV reporters who acted as if they were at a World Cup Soccer match, not at a political rally which they had to report on as neutrally and objectively as possible).

But President Jacob Zuma’s speech was once again a huge disappointment. Helen Zille is a far better public speaker than President Jacob Zuma, whose speech was – as usual – so boring that I was considering painting the walls of my house and watching the paint dry instead of watching him stammer through a list of achievements of the ANC in government that (although impressive) had very little to do with local government and the election at hand. The ANC’s election campaign seems to be based on the argument that the DA is a white apartheid party and that the ANC is not too bad at national level, so let us just forget local government and vote for the ANC in any case.

Helen Zille, trying to get away from the liberation deficit her party suffers from and from the linger perceptions created by past anti-black election campaigns, hammered home the point that the election was about local issues. Ok, there is the small problem with the TV add which turned out not to be entirely true and the claims about service delivery which might have stretched credulity, but she skirted these controversies and stuck to her guns, using three languages in an impressive display of respect for diversity. And she wore a nice purple dress, too, which would have made Lindiwe Sisulu quite envious (and reminded me of the witty slogan of 1989 after the police blasted protesters with purple water: “The purple shall govern”).

Pity about the often hysterical and self-righteous tone taken by DA spin doctors, who often seem incapable of rising above the pettiness and the selfrighteousness that has infected the DA in the past. The stubborn refusal to admit mistakes also remains a big stumbling block for the party and the management of its image. Sometimes logical aruments are not enough: one needs to manage perceptions and one needs to act humble, not only say that one is humble. If only the DA’s spin doctors and advisors could rise to the same level as their leader, quite a few more people would vote for the party.

In any case, as I was watching Helen Zille trotting out her best Xhosa and Afrikaans and the DA faithful dancing and singing for all they are worth, I was suddenly struck by a question which has not really been raised in this campaign. Would the DA lose some of its traditional support amongst right-wing white South Africans because it has been aggressively courting the vote of all South Africans – also those who are not white?

Will some of the “Fight Back!” and “Stop Zuma” voters (the Steve Hofmeyer’s of this world who are deeply racist and have given their vote to the DA because they perceived the DA to be fundamentally anti-ANC and anti-black) desert the DA and vote for the Freedom Front Plus, or will they stay at home, crack a Castle and put a tjop on the braai while they complain about the country going to the dogs?

I have no idea how such voters will react. I do know that quite a few white voters are deeply racist and might be put off by the DA’s inclusive new image. If I was a DA strategist I would not worry about this possibility.

Those people belong to the past. Like Steve Hofmeyer, who is famous for singing Neil Diamond cover versions (I mean, he was not even hip enough to choose Abba) and for singing an apparently autobiographical song about a Pampoen” (“pumpkin”), they represent a small minority with little political clout.

After all, if one ever wished to be politically relevant in South Africa, one would be advised to distance oneself from these people. But if these people fail to vote for the DA or vote for the Freedom Front Plus, it might shave one or two percent from the DA’s vote. Instead of 20% the DA might end up with 18% nationally, say.

I for one, will be watching the results to see if the Freedom Front Plus has been boosted by the DA’s turn to the centre of the political spectrum in South Africa. Once again, before the results start flowing in, I would not make any predictions about the final tallies.

Notes on the “toilet election”

May 12th, 2011
by Pierre De Vos.
89 comments

Because no accurate public polling data is available in South Africa to measure the voting intensions of members of the electorate, it is impossible to make any meaningful predictions about the outcome of the local government election, which will be held next Wednesday. In the past, available public polling data had consistently underestimated support for the African National Congress (ANC) and had overstated support for the Democratic Alliance (DA), so even if polling data had been available this data would have been less reliable than similar data in the USA.

I will therefore refrain from playing the ignorant pundit by making any predictions about how well the various parties will do in the upcoming election. In any case, as a middle class white person living in Cape Town, I do not have sufficient information about what is happening in various communities to make any sensible comments on the outcome of the election. Nevertheless, I will venture a few preliminary thoughts about the manner in which the election was fought — based on the manner in which the media has reported on the campaigns and on the election debates broadcast on radio and television.

(I make no comment about the nature of the practical aspects of the campaigns and the efforts made by political parties to get their voters to the polls, something that might be crucial as a low voter turnout by traditionally ANC supporters or DA supporters might well make a huge difference to the outcome of the election in various municipalities.)

Bearing these caveats in mind, the following aspects stood out for me.

  • The DA has run by far the best election campaign of any political party in terms of formulating a simple, positive and coherent message, ensuring that everyone in the party stays on message and managing the media aspects of its campaign. Whether one supports the DA or not, one has to admire the discipline of the DA team and the manner in which it has managed to begin the long and difficult process of repackaging itself as a party for all South Africans and not just for white elite interests. I have seen more pictures of Helen Zille with scores of black supporters in blue DA T-shirts in the last two months than in the previous 10 years.
  • The ANC, on the other hand, has not run as good an election campaign as it has shown itself capable of in the past. It lacked a coherent and simple positive message and often came across as desperate and, hence, it failed to dictate the terms of the campaign as it has done in previous elections. It is unclear whether this was because of divisions within the ANC, weak leadership, or because it is faced with the challenges inherent to any party who has been in power for a long time. The fact that — for the past two years — we have been bombarded with so many stories about ANC corruption and misgovernment, which have created a narrative that was difficult to change, might also have made the task of the ANC in this election more difficult than before.
  • Judging from the media, smaller parties have almost completely disappeared from the electoral radar screens. This election was presented in the media as a two-horse race between the ANC and the DA, which probably benefited the DA (whose stature was enhanced by being treated as being in the same league as the ANC) and for obvious reasons disadvantaged the ANC.
  • More generally, I have been disheartened by mind-numbing superficiality of the way in which the political parties have generally engaged with very serious and important local government issues. It seems to me that there are several structural problems with the way municipalities are organised and run in South Africa. The tax base for many municipalities are so low that even if they were governed efficiently, they would not be able to deliver on their mandates. The “pay-as-you-go” principle for the delivery of services (which is implemented by both the ANC and the DA run municipalities) are fundamentally anti-poor and the band-aid solutions currently in place do not address the larger question, namely that the very poor can often not afford to pay for the basic services like water and electricity which municipalities are constitutionally and legally required to provide them with. Yet, we all seem to be obsessed by open toilets and by election stunts such as the ANC claim that it was laying criminal charges against the DA for the alleged DA pamphlet which quoted Trevor Manuel’s own criticism of the ANC.

But there is an important matter of electoral design that has also been highlighted by this election. This election campaign has been largely run as a national campaign and has not focused much on pressing local issues. We are often told that one reason why our national and provincial legislatures are not working as well as they should is because of the electoral system which makes those representatives accountable to their political parties and not to the electorate. If we brought back the constituency-based system, so some analysts argue, our representatives would be more responsive and accountable.

But at local government level half of the councillors are elected to represent geographical constituencies, and one would have imagined that those standing in these wards would try to demonstrate to voters in that ward how they would improve the lives of their constituents. Yet, although I stay in a fairly affluent area in Sea Point, I do not have a clue what the names of the ANC or DA representative is who is standing in the election for this ward. I have had no communication from the prospective ward councillors about how they intend to serve me and why I should vote for him or her. All I know is that my previous councillor is not standing for re-election. (Trust me, I was looking forward to see his face smiling at me from the lampposts!)

Which goes to show, even if one has a constituency-based electoral system very little would change as far as accountability is concerned. As long as elected representatives are in effect appointed by political party leaders, they will be accountable to those leaders and not to the electorate.

Because the ANC is not going to win this Sea Point ward (like most wards in South Africa, my ward is dominated by one political party), the DA leadership has in effect decided who will represent me and that leadership will also decide whether this councillor will serve another term after the next election.

Changing the electoral system will therefore probably not make provincial and national legislative representatives more accountable and effective unless the voting patterns of the electorate changed dramatically and the elections in most wards or constituencies became far more competitive. Even then, as long as party leaders in effect had the right to impose or remove candidates representing the party, the accountability might not be as strong as one would wish.

Predictions? Nah – I will leave that for the professional pundits.

Dancing on the grave of apartheid

May 9th, 2011
by Pierre De Vos.
45 comments

News that the DA-run municipality of Midvaal had removed a statue of former apartheid prime minister Hendrik Verwoerd after the ANC had pointed to the statue as evidence that the DA was an apartheid-loving party, made me think about the ways in which we deal with the physical and symbolic manifestations of colonialism and white domination in our democracy.

Let us leave aside for the moment the fact that the ANC complaint seemed rather opportunistic as the party had not removed the statue when it was in control of the Midvaal municipality. Let us also not comment on the curious manner in which the statue was removed in the dead of night by a man only identified as “Piet”.

Let us instead focus on the broader issue relating to the manner in which we deal with this symbolic aspects of our past, our present and our future. All over South Africa rivers, mountains, towns, streets and squares are still called by the names given to them by those who colonised the country. Driving over another Black river, past another Landsdown, over another Retiefskop, one is reminded of the fact that for many of those who arrived in South Africa from Europe, the people who originally lived here and named these places before the arrival of the colonists were at best invisible and at worst less than fully human.

One also finds statues, museums and monuments which celebrate not only the language and culture of the colonists but also the very racial domination which subjugated the majority of South Africans.

Obviously, to leave everything as it was in 1994 is not tenable. The vast majority of South Africans do not want to honour HF Verwoerd and PW Botha, Jan Smuts and Jopie Fourie, DF Malan and Piet Retief. Renaming some towns, streets, mountains and rivers therefore seems advisable and even laudable. It is also necessary to decide how to deal with the many monuments and museums erected in years gone by in memory of some or other aspect of colonialism or apartheid. Surprisingly some people seem to feel rather strongly about the need to keep things exactly as they are and resit any form of symbolic adjustment that would allow for changes to the names we give to things in our world, better to reflect the diversity of the people who live in our country.

I am not sure whether this resistance to any kind of change is born out of sheer arrogance that sometimes comes with a white skin, or whether it speaks of other – as yet unmentionable and unexamined – fears and worries. I am sure those who are opposed to any kind of change represent only a very small minority, so we can leave their weird anxieties aside for the moment.

It is not very interesting or relevant to ask whether there should be changes to the world around us, better to reflect the diversity of cultures, languages and races in South Africa. Far more interesting and relevant is to ask how this should be done.

One way to deal with this problem is to try and erase the colonial past completely and to impose a new rather self-serving and distorted version of our history on all South Africans by renaming everything after the heroes of the political party who happens to have won the last few elections. This is always a tempting option. After all, as George Orwell wrote in 1984: ”Who controls the past controls the future: who controls the present controls the past.”

This kind of wholesale rewriting of history is not very helpful or wise as it seems to reflect a mirror image of the way in which arrogant colonialists dealt with their surroundings. One version of the past is then held up as the only version of the past – which is both untrue and politically self-serving.

Another option is to pretend that we have no past and to rename everything after bland and uncontroversial things like flowers and trees and to remove all traces of the memorials and monuments of the past regime and not to create new memorials for a new world. This approach calls for a kind of moral, cultural and political amnesia, which would in effect rob us of part of our identity as South Africans. In any case, this approach would not satisfy too many people.

A third option is to be a bit more creative and to play with the often absurd, shocking, contradictory, delightful and moving aspects of our past and of the ways we are grappling with how to deal with our different perceptions of ourselves, our pasts and our futures. Sometimes such attempts will not be very successful. I mean, what can be more absurd than to drive past the Mandela-Rhodes building in Cape Town. These people must have a rather perverse sense of humour: commemorating the arch imperialist, racist and colonialist in the same breath as the father of our nation.

But sometimes the weird juxtapositions can work wonderfully. This usually happens when complexity and nuance wins out over slogans and ideological certainties and platitudes. Where there is a willingness to remember the horrid aspects of our past in an open, honest and inclusive manner – to remember without erasing, to memorialise without monumentalising - the effects can be rather startling.

Where the version of our past held up by the white minority at the time as the only and official version of our history is not completely erased, but overlaid with other versions of our past that commemorate the struggle against oppression, where the lives of ordinary (previously invisible) human beings are remembered, where memorials are living testomonies to our people, where monuments and memorails excavate the histories that were so successfully erased by the colonial rulers, then the names and memories create a complex tapestry that reflect the complicated nature of our society.

On a recent visit to Freedom Park, I was deeply moved when I read the inclusive list of names of all those who had fallen in the name of a struggle and then looked up and spotted the Voortrekker Monument, commemorating a very different and more problematic kind of past. That is where we are coming from, I thought, looking at the Voortrekker monument, and let us not forget that. But this is the way we really want to be, I thought as I quietly wandered around Freedom Park.

Of course, when it comes to statues the problem is rather daunting. If we remove all the statues that commemorate colonialism and apartheid we would be erasing an aspect of our past and would be pretending it never happened. Cecil John Rhodes, Queen Victoria and all those ugly busts of Prime Ministers will have to be carted away and melted down for scrap metal. How will we be able to remember not to repeat the mistakes of the past if we have erased it? But if we leave every statue of Verwoerd and his cronies in place, are we not saying that we find it quite normal and acceptable that this man should be honoured and remembered – even in a democratic South Africa?

Perhaps we can deal with this issue on a case by case basis. But where we decide to remove a statue, I would plead that the statue should NOT be locked up somewhere in a cellar. Perhaps, following the example of the Hungarians after the fall of communism, we could create an apartheid cemetery where all these statues could be taken and placed in their proper context.

Imagine a vast park at the Voortrekker monument littered with busts of DF Malan, HF Verwoerd, Louis and PW Botha, Jan Smuts, JBM Hertzog and the like along with other statues commemorating the Groot Trek and other parts of our dubious pasts. One could attach informative signs to each statue with information about the original place where the statue was erected and something about the person commemorated so that we can remind ourselves what bizarre and oppressive place South Africa used to be.

I am sure the Freedom Front Plus would not like my solution, but I for one would love to visit such an apartheid graveyard at the Voortrekker Monument. Imagine, one could have a rave or a fabulous queer fancy dress party or a rock concert there between those statues. We would all be dancing on the grave of apartheid, so to speak. Now that would be lekker.

When people are treated as ideological tools

May 3rd, 2011
by Pierre De Vos.
87 comments

The judgment in Beja and Others v the Premier of the Western Cape and Others makes for interesting reading, most notably because it emphasises the importance of participatory democracy and sends a warning to local government officials and politicians to stop treating residents as the passive and powerless recipients of the occasional government handout. Neither the DA nor the ANC comes out of this saga – relating to the building of open toilets at the Makhaza informal settlement outside Cape Town – smelling like roses. As judge Nathan Erasmus pointed out:

The Mayor of the City of Cape Town … Mr Dan Plato and second applicant, Mr Andile Lili, who purports to be a political leader and an Executive member of the African National Congress Youth League, … simply failed to rise above their political contest as opposed to their duty towards those that need to benefit the poor and vulnerable.

To me, the Makhaza toilet scandal is illustrative of a much larger problem with the attitude towards governance in South Africa. Officials and politicians – of both the ANC and the DA – tend to believe in a top-down bureaucratic style of governance which treats people not as active citizens with an inherent human dignity but as passive recipients of the largess’s of government. “We know what is best for everyone,” politicians seem to think, “and will therefore make decisions in the best interest of residents – regardless of their personal circumstances and regardless of what their needs might be.”

The City of Cape Town obviously wanted to think outside the box when it built the open toilets. But its officials seemed blissfully unaware that some people hardly have money to buy food – let alone to build enclosures for toilets. Perhaps pumped up with an ideological free-market fervour which assumes that individuals will flourish where they are given choices and opportunities, officials decided to build open toilets for all, rather than closed toilets that had to be shared. In this ideological universe, no one thought that some residents would not have the “opportunity” to enclose their toilets because they hardly had the “opportunity” to eat.

Officials never seemed to consider the possibility that some residents might not be able to enclose their toilets, which suggests a rather surprising lack of knowledge about, and empathy with, the lives of poor Capetonians. And as the judgment in this case makes clear, officials were never going to learn about the conditions under which the poorest residents live because they never really made an effort to engage in a structured and sensitive manner with all the residents.

According to Premier Helen Zille, an agreement of sorts was reached on an ad hoc and informal basis between officials and the community. There was, however, never a formal decision at executive or council level about the provision of open toilets and it seems as if the engagement process was left to officials (some of them ANC leaders) who had an own agenda and who did not do what the Constitution required of them. 

This delegation of engagement with the community to underlings and “hired help” – which suggests that there was a lack of respect for the community which the city was supposed to serve – would come back to haunt the city. Premier Zille conceded that the provision of unenclosed toilets, absent an agreement for enclosure, would be an affront to human dignity. The Court found that no proper agreement was in place and hence that the human dignity of residents had been infringed. This finding is in line with the Constitutional Court’s jurisprudence on meaningful engagement.

The Constitutional Court has, on several occasions, stated that the Constitution placed a duty on municipalities to engage meaningfully with affected people before and during any attempts to realise the social and economic rights of individuals and communities. In the case of Olivia Road Justice Yacoob stated that it was “precisely to ensure that a city is able to engage meaningfully with poor, vulnerable or illiterate people that the engagement process should preferably be managed by careful and sensitive people on its side”.

The City claimed that it had complied formally with the engagement process because it had collected “happy letters” from residents who might or might not have provided these letters because they were desperate for toilets. (The court makes no finding on this point as there is insufficient evidence about the reasons why these letters were signed.) But these “happy letters” were not sufficient to satisfy the constitutional requirement of meaningful engagement. As Erasmus J explains in his judgment:

These agreements, to be enforceable, ought to at least satisfy four minimum requirements; (i) it must be concluded with duly authorised representatives of the community; (ii) it must be concluded at meetings held with adequate notice for those representatives to get a proper mandate from their constituencies, (iii) it must be properly minuted and publicised. (iv) it must be preceded by some process of information sharing and where necessary technical support so that the community is properly assisted in concluding such an agreement. None of these requirements were met in this matter. Even if an agreement satisfies all four requirements, an agreement cannot be a vehicle through which a majority within a community approve arrangements in terms of which the fundamental rights of a vulnerable minority within that community will be violated.

At the original meeting where “agreement” was reached between officials and some members of the community, 60 people were present. These 60 people therefore in effect were allowed to make a decision that would affect the living circumstances of 6000 people. As there was no proof of who were present at the meeting, who they represented and to what extent the community supported this “agreement” it could not stand.

In any case, such an agreement cannot erase the constitutional right to dignity enjoyed by all residents. As the Court pointed out, the agreement made no provision for those who were particularly vulnerable and poor and would therefore never be able to enclose their toilets. Concluding and implementing this agreement was therefore not reasonable as required by the Constitution.

The City ought to have come to the assistance of those who, due to poverty and their particular disadvantaged socio-economic status could not afford to enclose their toilets. Also no regard was had to persons with disabilities or to issues of safety for those most vulnerable to violence in terms of the structure. The City failed to take into consideration the gender impact on women and girls both in terms of different biological needs as well as their vulnerability to higher levels of gender-based violence. All of these are to be considered as a violation of fundamental rights of human beings and cannot be waived by the agreements, as alleged here.

The judgment is also rather critical of ANC Youth League executive member Andile Lili, whose role in this saga seems to act as a metaphor for everything that is wrong with the ANC as a governing party.  Lili was one of the Community Liaison Officers who supposedly had to liaise between the community and the city. This he did not do. As Judge Erasmus pointed out: 

What has become evident is that [Lili] had a core function of promoting the interests of the Citys contractor. In fact the second applicant was being paid by the contractor and the question arises if the second applicant was indeed a community representative who was taking the communities best interests to heart. Not only was the second applicant in the pocket of the contractor but his role undermined the principle of community participation.

Lili’s role is thus described by Erasmus J - in a rather understated manner – as questionable.  After protracted negotiations the City went to Makhaza again in March 2010 in an attempt to enclose the toilets. 26 toilets were enclosed and then immediately destroyed and broken down by persons claimed to be ANCYL members. On 17 May 2010 the Mayor met with Lili and other members of the ANCYL, the ward councillor and the senior housing officials of the City. The outcome of the meeting was that construction to enclose the unenclosed toilets was to commence once again.

The construction resumed on 24 May 2010 and several toilets were enclosed until the community members once again became aggressive and demolished the structures. Once again the contractors had to leave Makhaza. The Mayor ordered that the unenclosed toilets were to be removed completely and a further 10 toilets were removed thus making the total of 65 toilets removed from Makhaza. 

Reading between the lines, it seems as if Lili was playing a double game. He was taking money from the contractors and making agreements with the city, but then reneged on these agreements, pretending to represent the interest of the community while trying to gain some political capital for the ANC out of the sorry mess and keeping those who paid him on side as well.

The judgment also found that the various pieces of legislation and provisions of the Housing Code did not provide that a city had to provide a minimum of 1 toilet for 5 households only. Cities who could afford to had to provide more and was perfectly entitled to find innovative ways to do so – as long as it engaged in a meaningful manner with the community and as long as it did not infringe on the human dignity of residents. What was required was for the city to engage meaningfully with the community and – within the available resources of the city – progressively to provide better facilities to more people in consultation with the affected community.

The consequence of this judgment is therefore not – as was claimed by the DA – that the city would now be precluded from initiating innovative solutions to benefit the community. If it engaged with the community in a meaningful manner and produced innovative solution in agreement with a community, it could proceed to implement policies that go far beyond the suggested minimum standards prescribed by legislation.

As is the case in most other municipalities run by the ANC, the big problem is that officials as well as politicians do not like the idea that it should provide better services not to passive citizens who should gratefully receive any benefits that flow from bureaucratic planning processes, but rather to active citizens with whom it should continuously engage in a sensitive and structured manner. This will have to change. And the DA as well as the ANC will have to learn that the people they serve must be given the opportunity to engage with officials and politicians in an ongoing manner – or face the legal consequences.

On Lady DA-DA and the shower head man

Apr 19th, 2011
by Pierre De Vos.
52 comments

One of the more shocking (but nevertheless, in retrospect, rather entertaining) judgments to be found in the South African law reports is that of Vermaak v Van der Merwe, a 1981 case dealing with defamation. The Natal High Court (as it was then called) had to decide whether publication of a defamatory statement took place in a case where the recipient of the words did not know what they meant.

A certain Mrs Vermaak had phoned a Mr van der Merwe and asked to speak to his wife to which she received the reply:  ”Het jy nie gehoor dat sy bly by daardie donnerse lesbian nie?” (Haven’t you heard that she is staying with that bloody lesbian?) Mrs Vermaak did not know what a lesbian was and later asked her husband what was meant by these words. Her husband then told her. The question was whether her original ignorance about the meaning of the word “lesbian” meant that no defamatory statement had been communicated.

We have come a long way since then. In the recent case of Le Roux v Dey, in a judgment authored by Justice Cameron and Froneman, the Constitutional Court found that it could not be considered defamatory to call someone gay or lesbian, and reasoned as follows:

The Constitution does not condone individual prejudice against people who are different in terms of race, sex, sexual orientation, conscience, belief, culture, language or birth. These are unfair grounds for differentiation and the equality provision of the Bill of Rights protects against discrimination based on them. It therefore cannot be actionable simply to call or to depict someone as gay even though he chooses not to be gay and dislikes being depicted as gay — and even though stigma may still surround being gay. To hold actionable an imputation based on a protected ground of non-discrimination would open a back-door to the enforcement by the law of categories of differentiation that the Constitution has ruled irrelevant.

As I pointed out at the time, Justice Mogoeng Mogoeng indicated (without giving reasons) that he disagreed with this view. As Justice Mogoeng had not given any reasons for his disagreement, it was unclear whether his refusal to sign on to this aspect of the judgment was based on the kind of “individual prejudice” mentioned by Froneman and Cameron.

An interesting aspect of the judgment in the case of The Citizen v McBride is that this time justice Mogoeng not only dissented but also wrote a separate dissenting opinion. Unlike the other judges, he found that the rather acrimonious and distasteful campaign by The Citizen against Mr McBride’s appointment as police chief of Ekurhuleni was “part of a well-orchestrated character assassination campaign” waged by The Citizen against Mr McBride and could therefore not be viewed as fair comment.

As I read the judgment, it is premised on the assumption that we have a constitutional duty not to vilify others and that our freedom of expression must be exercised “responsibly” to protect the human dignity of others — even of those found guilty of gross human rights violations. It’s a bit like the LeadSA campaign about a Bill of Responsibilities in that it assumes that our right to freedom of expression must always be exercised politely and carefully. In this world, robust, bitter and acrimonious exchanges and the hurling of clever political insults and witty but cutting asides are not allowed

Truth-telling during the amnesty process was thus not intended to lay the foundation for the endless vilification of South Africans who grossly violated human rights, either in the furtherance of the crime of apartheid or the struggle for freedom from apartheid, in the name of freedom of expression. Nor was the truth, uncovered during the amnesty hearings or even during the trials of those who committed gross human rights violations, intended to be used to undermine the pursuit of national unity and reconciliation What is impermissible is the use of truth revealed to insult, demonise and run down the dignity of self-confessed human rights violators.

Justice Mogoeng contends that our Constitution places a responsibility on us to engage in less heated and bitter public criticism of others — not because it is our ethical or moral responsibility, but because the law requires us to do so. ANC members who wish to criticise Lady DA-DA (as some clever hack called the dancing Helen Zille) or columnists who wish to ridicule the President for fathering children out of wedlock should therefore not be allowed to express their criticism in bitter, sarcastic or vitriolic terms.

At the heart of his view is a very unique and particular view of our shared history and culture. Justice Mogoeng seems to want to hark back to a (possibly imagined and fictional) time when so called traditional values and moral standards still prevailed. (Whether the traditional values and moral standards referred to include respect for the human dignity of gay men and lesbians is not clear.)

We live in an African country which is rapidly being denuded of the values and moral standards which once characterised and defined the very nature of who a substantial majority of its citizens were and what they stood for. Botho or ubuntu is the embodiment of a set of values and moral principles which informed the peaceful co-existence of the African people in this country who espoused ubuntu based on, among other things, mutual respect.Language was used in moderation and foul language was frowned upon by the overwhelming majority. A forgiving and generous spirit, the readiness to embrace and apply restorative justice, as well as a courteous interaction with others, were instilled even in the young ones in the ordinary course of daily discourse. The unforgiving, the arrogant and the unduly abusive were described by the Batswana, and presumably other African communities, as those who are bereft ofbotho.

Ubuntu gives expression to, among others, a biblical injunction that one should do unto others as he or she would have them do unto him or her. The law, order, generosity, peace and common decency that previously characterised many communities in South Africa were attributed to an unwavering commitment to the philosophy of ubuntu. No wonder the drafters of our interim Constitution deemed it meet to cite ubuntu as one of the ingredients essential to the healing of our country. Sadly, a new culture has taken root and continues to cancerously eat at botho.

It seems to me this view is rather idealistic. Anyone familiar with our current political discourse would know that hardly anyone engaged in politics in South Africa adheres to this biblical view in which one should always do unto others as one would like them do unto oneself. According to this view half the statements made by Julius Malema about Helen Zille and members of the DA, say, (or about white people in general) would be viewed as unprotected and hence unlawful defamatory statements. Much criticism of President Jacob Zuma (for example, criticism contained in cartoons depicting our President with a showerhead on his head) would also seemingly become unlawful if this view is adhered to.

The view is also at odds with the liberal notion of freedom of expression which our courts have found is at the heart of a flourishing democracy. It seems to relegate freedom of expression to secondary status in our constitutional dispensation and elevates the human dignity of others — even the human dignity of gross human rights abusers who dehumanised, tortured and murdered opponents of apartheid — above the rights of the victims of those human rights abusers.

As a matter of moral reasoning, one may well agree with Justice Mogoeng that we should all try and be better people and should all try not to be so beastly to one another merely because we disagree with one another.  (Class, as punishment write out one hundred times: “I will not make disparaging remarks about the looks of a certain DA councillor.”)

But as a matter of constitutional law, the principle is deeply flawed. It may well be used by politicians to escape valid and trenchant criticism. Unless criticism is couched in sanctimonious platitudes and caveats, politicians may well be able to sue for defamation and this will invariably have a serious chilling effect on the free expression of views and ideas by ordinary citizens.

Julius Malema is obviously an idiot when he calls Helen Zille a dancing monkey, but should our law really hold him liable for defamation for doing so? And, come to think of it, should I be held liable for defamation for calling Malema an idiot? I think not.

Do we really want to live in a world where Malema “expresses disquiet at the quality of Helen Zille’s less than graceful dancing” and I express the opinion that Julius Malema “might be faced by unfortunate etiquette challenges”? Once again, I think not.

Breaching the Constitution not always due to bad faith

Mar 23rd, 2011
by Pierre De Vos.
25 comments

What happens when after an election it transpires that no political party has obtained a majority in a particular Municipal Council? In principle this should not be a problem. A hung council can even be said to be good for democracy as different political parties will be forced to work together to form a majority and elect a Speaker as well as a mayor for that council. A multi-party government can sometimes curb the excesses of the strongest party and may ensure some internal accountability which might be lacking where a single party wins a majority of seats.

In Cape Town after the last municipal election this is what happened and a curious coalition of parties which included the ostensible liberal Democratic Alliance (DA), far right wing parties like the Freedom Front Plus (FF+) and African Christian Democratic Party (ACDP), and other parties like the Africa Muslim Party (AMP), United Democratic Movement (UDM) and United Independent Front (UIF) formed a multi-party government. The FF+ representative was elected Speaker of the Council and Helen Zille, leader of the DA was elected mayor with a slim majority. This was before Patricia De Lille had discovered the wonders of the “open opportunity society”, so at first the ID joined forces with the ANC in the council, but to no avail, as the ANC-ID coalition could not muster a majority.

But sometimes things can go badly awry. Where there is a hung council, where there is some infighting in that council and where the provincial government is controlled by a different party than any of the parties who form part of the multi-party government of the council, things can get messy.

This is neatly illustrated by the Supreme Court of Appeal (SCA) judgement of Premier of the Western Cape and Others v Overberg District Municipality and Others. The Overberg District Municipality is a hung council. The 20 member council consist of 9 members of the African National Congress (ANC), two of the National Peoples’ Party (NPP), eight of the Democratic Alliance (DA) and one of the Independent Democrats (ID). The governing majority consisted of a coalition between the nine members of the ANC and the two representing the NPP.

In terms of the Local Government: Municipal Finance Management Act (MFMA), the council must table its budget at least 90 days before it is passed. The budget needs to be passed by 1 July. When the Overberg council met on 13 April 2010, the speaker suddenly resigned. A speaker was appointed, but for that meeting only, and the budget was approved for purposes of comment and publication. This created a problem as only the speaker can call another meeting of the council. But as there was no speaker, such a meeting could not be called and the budget could not be passed.

What to do? Enter the DA MEC for Local Government in the Western Cape. In terms of section 139(4) of the Constitution:

If a municipality cannot or does not fulfil its obligation in terms of the Constitution or legislation to approve a budget or any revenue-raising measures necessary to give effect to the budget, the relevant provincial executive must intervene by taking any appropriate steps to ensure that the budget or those revenue-raising measures are approved, including dissolving the Municipal Council and — (a) appointing an administrator until a newly elected Municipal Council has been declared elected; and (b) approving a temporary budget or revenue-raising measures to provide for the continued functioning of the municipality.

The DA, which control the Western Cape Province, decided to dissolve the Overberg council, relying on this section which the MEC said left him with no other alternative. The MEC argued — based on legal advice — that he had no option but to dissolve the council as this was what section 139(4) required him do. Of course, this also meant that a council controlled by the ANC would now be dissolved for not passing a budget, a publicity coup for the DA, but there is no evidence that this played a role in the decision of the MEC.

The argument by the MEC was rejected by both the High Court and the SCA. In the SCA judgment, Brand J argued that s 139(4) empowered the MEC to take any “appropriate steps” to deal with a budget crisis like this and that such steps could not be limited to dissolving the council. The interpretation contended for by the MEC, said he SCA, would render the reference to “appropriate steps” in s 139(4) superfluous. If the provincial executive is compelled to dissolve the council what other appropriate steps could there be? The MEC therefore had wider powers to make sure that the council passed its budget and need not have rushed to dissolve a council which happened to be controlled by the ANC coalition.

Besides, said the SCA, the MEC’s argument pre-supposes that the council’s failure to approve a budget is invariably attributable to incompetence or recalcitrance.

The invalidity of the assumption is demonstrated by the very facts of this case. In this case the council was both willing and able to approve the budget timeously but it was prevented from doing so by factors beyond its control. . . In these circumstances it seems not only inappropriate but downright absurd not to allow the council to approve the budget, which has already passed through all the preliminary procedures, but to dissolve the council instead. Of course, one can think of examples of even more glaring absurdity, for instance where the budget was in fact approved, but one day late. What the argument amounts to is that, though the extreme measure of dissolution may be nonsensical in a particular case, it is dictated by the necessity to set an example for others who are indeed recalcitrant and incompetent. My short answer is that I cannot ascribe that intention to our Constitution.

Brand J pointed out that the MEC had therefore misconstrued his powers when he dissolved the Overberg council and that the MEC had therefore offended the principle of legality which is an aspect of the Rule of Law. By deciding to dissolve the council without considering a more appropriate remedy, the Western Cape cabinet had offended the provisions of s 41(1) of the Constitution which requires all spheres of Government to respect the constitutional status, powers and functions of Government in other spheres and ‘not [to] assume any power or function except those conferred on them in terms of the Constitution’.

Intriguingly, the SCA did not state explicitly that the MEC could call the council together to force it to elect a new speaker and then to adopt the budget. Our law is silent on what happens if there is no speaker for a council and whom could call a meeting of that council where the council had no speaker. This seems to be a lacuna in our law which needs to be addressed. Meanwhile councils all over South Africa will learn from this case that they cannot elect a speaker for one meeting only as the speaker plays a rather pivotal role in calling meetings of a council.

The case also illustrates that sometimes a government breaches provisions in the Constitution not because it is wilfully disrespectful of the Constitution, but because it received the wrong legal advice. That is exactly why the courts are there to declare such actions invalid. Where this happens it does not necessarily mean that the party in government disrespects the Constitution – it merely reminds us that reasonable people (of whom some might even be lawyers) can sometimes disagree about the correct interpretations of the provisions of the Constitution.

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