Constitutional Hill

defamation

On Woolworths and freedom of conscience

Nov 2nd, 2010
by Pierre De Vos.
65 comments

An interesting debate has been raging – especially in the Afrikaans press – about the decision of Woolworths to stop selling certain religious magazines in its stores. The retailer decided to restock the magazines after an outcry last week by fundamentalist Christians. One report suggested that Woolies decided to stop selling these magazines because of two articles in Joy! magazine, which reportedly had offended a senior Woolies executive. The articles were about the subject of “Judaizers”.

Judaizers are apparently Christians who observe certain Jewish customs, like having the Sabbath on the Saturday. The articles, written by an alleged “missionary” called Peter Hammond, described the behaviour of Judaizers as “unchristian”. Hammond is controversial because he had been accused of smuggling guns to Renamo during the civil war in Mozambique and more recently to rebels in Sudan. During the nineteen eighties there were also persistent rumours that he was working with the South African military to destabilise Mozambique.

I have no idea whether these rumours are true, but having read stuff he had written, I am of the opinion that he is a rather scary and deeply reactionary man. But that is besides the point. The larger issue centres on our understanding of section 15 of the Constitution, which guarantees for everyone the right to “freedom of conscience, religion, thought, belief and opinion”.

In the one corner defenders of Hammond and Joy! magazine argue that Woolies showed a contempt for their Christian faith and that the decision not to stock the religious magazines (as well as subsequent criticism of such magazines and of people like Peter Hammond) at best display intolerance towards Christianity and at worse infringe on the freedom of religion of those few Christian believers who read Joy! magazine every month to keep up to date with news about the deep and abiding faith of people like Joost van der Westhuizen and Amore Vittone.

In the other corner, there are those who argue that Woolies should not have capitulated to religious fundamentalists who insist on their right to see (but seldom to buy) these magazines while standing in the queue at Woolies. Why, they ask, did Woolies not stand up to these religious bullies? How can we be a completely free country if a handful of religious fanatics can dictate to a large retailer what goods they should and should not stock? Are we not on the slippery slope to a Christian dictatorship where Christian values and beliefs (instead of, say, Sharia Law) determines how we live our lives?

Well, the text of section 15 makes it pretty clear that the first group has nothing to complain about. Section 15 does not only guarantee the right to freedom of religion, but also the right to freedom of thought, belief and opinion. We are all entitled to think what we want, believe what we want and express any opinions that we want — as long as we do not defame somebody else or break some other constitutionally valid provision of the criminal law.

Anyone is therefore perfectly entitled to criticise religion in general or the tenets of a particular religion specifically. If I want to say that the beliefs underlying Christianity or Islam are absurd, demonstrably untrue, oppressive and deeply offensive to any conception of freedom, I am entitled to do so. Granted, blasphemy is still a criminal offense in terms of our common law, but I cannot imagine that if challenged this provision will not be declared unconstitutional. The Broadcasting Complains Commission of South Africa has already accepted that blasphemy as defined in our law will not waistband constitutional scrutiny.

Blasphemy is usually defined as the unlawful and intentional insulting or showing contempt or lack of reverence for God/Christianity/Islam. There is no equivalent law criminalising contempt for atheism because if there were the Pope, and thousands of other religious leaders would have had to be locked up long ago. Anyone who challenges the prohibition on blasphemy will therefore have every possibility of being successful as the blasphemy law infringes on the right of non-believers (or the believers of those religions whose God was not targeted) to not only privately believe what  they wish, but to state their beliefs in public.

I obviously have sympathy for the second group, but their complaint does not seem to touch directly on a constitutional issue. In a capitalist state where everyone is free to complain if a retailer stocks or does not stock certain products and is free to urge a boycott of that retailer, the pressure put on Woolies was probably not unlawful or unconstitutional. One could argue that Woolies had caved in to bigotry by deciding to stock these magazines and then one is free not to shop at Woolies because of its cowardly capitulation to right wing bigots. That is what freedom means.

But this question is rather complex.

The fact of the matter is that if one is an atheist, agnostic or if one believes in Judaism, Islam of Hindu religion one is part of a small minority in South Africa. The vast majority of South Africans claim to be Christians (which usually means they go to Church for christenings, weddings and funerals and otherwise ignore religion until they are in big trouble in which case they say a silent prayer to Jesus our Lord).

This does not mean that Christians can demand that their views be accepted by the majority. In the Pillay case, in which the Constitutional Court found that the schools code of conduct was unconstitutional because it failed to accommodate the practices of the Hindu culture and religion, the court made it clear that rules or codes which seem neutral, but which are really based on Christian values, often marginalises and oppresses minority groups and may discriminate against them.

But I suspect there is a difference between a public institution like a school or university or a workplace environment dealing with the behaviour of employees on the one hand, and a private business dealings on the other.  The former can never discriminate. The latter cannot discriminate against individuals it employs but in conducting its business it can probably take decisions that would favour one group or another without fear of being taken to the Constitutional Court.

There is a grey area here between the public and the private and it will not always be easy to decide when the religious views of some could be relied on by a private institution when it made decisions about its business practices. While the Woolies example probably does not implicate the right to freedom of conscience, other examples will be far more problematic. For example, if a Golf club decides, based on the views of its members, not to allow Muslims to join this will probably be unconstitutional (as well as an infringement of the Promotion of Equality Act). But where that same Golf club decided that its members should not play golf on a Sunday I am not sure whether one would be able to challenge this if one happened to be  Jew or an atheist.

It is always complex to deal with (and respect) the widely held superstitions of the majority while also protecting the minority from discrimination and oppression. The  line will not always be easily drawn between permissible Christian influence on the one hand and impermissible marginalisation and oppression on the other.

“We can never forgive black South Africans for apartheid”

Oct 14th, 2010
by Pierre De Vos.
224 comments

The South African Constitution protects freedom of expression in very clear terms. Every South African is guaranteed the right to speak their minds on almost any topic and can say almost anything – even if what one is saying is deeply offensive to others or challenges their most cherished beliefs. One can argue that organised religion is an oppressive presence in our society or even that those people who believe in a god at all are delusional. One can argue that homosexuals will burn in hell or that god will punish women who do not know their place and do not want to serve their husbands diligently and with respect.

This right is, of course, not without its limits. Propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm, are explicitly excluded from protection by the Bill of Rights. The common law also protects the dignity of everyone by allowing an aggrieved person to sue somebody else for defamation. The Constitution and the law also places other limits on free speech by prohibiting anyone from interfering with the functioning of courts and chapter 9 institution and by placing a duty on organs of state to protect the dignity and independence and impartiality of these bodies.

But in reality freedom of expression is a more complex beast than the provisions of the Bill of Rights would suggest. Not all South Africans are tolerant of opinions with which they disagree and often take steps either to prevent a person from expressing his or her views or to try and intimidate a person to ensure that the person refrains form expressing a particular view in future. This can take a physical form, for example, by preventing a politician from speaking at a public gathering. But the silencing also takes many other, more subtle, forms.

In this post I wish to focus on this subtle kind of silencing (knowing full well that intolerance of the opinion of others often take a far more violent form). In our society (like any other), who is provided with a public platform to speak, what one is allowed to say on such a public platforms and who is actually listened to and who is ignored, depends on a complex web of factors.

The race and gender of a speaker, his or her status, position and educational achievements, the economic status of a speaker, whether the speaker lives in a city or a rural area, and whether the speaker uses English or not, can all contribute to whether a person is given a public platform to disseminate his or her ideas. And of course, what a person has to say can either legitimise or delegitimise the speaker and what he or she has to say. In the so called marketplace of ideas “the market” is not neutral. “The market” silences some and amplifies the voices of others.

In this marketplace everyone is not given an equal voice and not all ideas are taken equally seriously. Individuals who challenge the conventional wisdom or “common sense” views of members of the media elite, or criticise the underlying (but often unexamined) assumptions of the various economic and/or political elites in society, will find it very difficult to have their voices heard.

An economist who believes that a market economy is a fundamentally evil system that benefits a few and exploits the majority, who questions the conventional wisdom about the need for (and the unquestioning beneficence of) foreign investment, or who rails against the absurdity of the stock market, will probably not become a media pundit often quoted in the financial press in South Africa.

The political and economic elites are quite effective at policing what can be said in public. Sometimes this can seem like quite a good thing. For example, it has become more difficult to find public platforms from which to make overtly racist or sexist statements. Sometimes this silencing can be highly problematic. The views of rural women, say, or the views of those who criticise popular political leaders, challenge the dominance of patriarchy or the assumed superiority of white Western thought and civilisation are often silenced or (at best) caricatured.

Some of us are fortunate enough to have a voice. I, for example, can write what I like (as Steve Biko might have said) and can publish my thoughts on this Blog. Because I am white and privileged, because I am well educated and relatively conversant in English, because I am for some reason or another viewed as some kind of “expert”, because my views are not considered so dangerous that I am viewed as a threat to the elite consensus, my views are sometimes quoted in the media and (so it seems to me at least) are often taken relatively seriously.

It is therefore striking that almost every time I highlight the failure of some white South Africans to deal with their complicity in our apartheid past or their lingering racial prejudices, many readers of this Blog are incapable of engaging in any constructive or logical manner with the argument that I present. Instead of  pointing out why my views might be misguided or presenting an alternative analysis, some readers get so offended that they can only spew vitriol. Your view, they seem to say, may not be expressed. By expressing this view you have forfeited any claim on civility. For such individuals, the only way to respond is to try and kill the messenger.

In apartheid South Africa the “marketplace” would have ensured that my views would not have entered the mainstream. But in our democratic state, it is impossible for those offended to censure these views. The only option open to those who would not want to be confronted by these ideas is then to try and convince themselves that the speaker has no legitimacy. To do that, personal attacks and bizarre but irrelevant assertions about the intellect, credibility or motives of the speaker are all that is left.

The message is clear: “In our view what you are saying may not be said. Your view poses a threat to our sense of self, our continued well-being and belief in our own moral purity, our belief that whites are pure and blameless and that everything that is wrong in our country can be blamed on the ANC.“

A German colleague joked today about how some Germans would like to say: “We can never forgive the Jews for Auschwitz”. When some white South Africans respond so vehemently, so irrationally, so vindictively to any mention of the apartheid past and their complicity in it, it sounds as if they are saying: “Us whites can never forgive black South Africans for apartheid.” This is of course a rather sad state of affairs as it reminds us of how broken and how morally confused many white South Africans are and how incapable they are of dealing with the past. For those white South Africans, the only option is to try and erase the past. (As anyone who can read and wants to understand would have noticed, I talk about some white South Africans, not all white South Africans.)

But we live in a democracy now. There has been fundamental changes to what can and cannot be said and heard in the public space. Although many voices are still not heard, others who would not have been heard now occupy a space in the public square. Those who exercised almost complete control over the public discourse during apartheid cannot do so any longer. When what was not allowed to be said during apartheid is said now, it leads to severe anger and indignation. “How very dare you!” This anger comes from a place of insecurity, moral weakness and an acute and painful awareness of a loss of power to dictate what may and what may not be said.

In my view this anger is to be pitied, rather than feared. It does not come from a position of power, but from a position of fear and resentment. I am reminded of the paintings of Francis Bacon: those open mouthed screams of agony that says so much about the vulnerability of his subjects.

(Not even) the Queen Bee is above the law

Oct 11th, 2010
by Pierre De Vos.
130 comments

Maybe it is true that in any set-up there can only be one Princess, but that does not mean that there is no place for other Royalty in our politics. We all know in South African politics the role of Princess has been taken on by Lindiwe Sisulu: her royal highness, her imperial and impervious majesty who rules over her (ever-expanding) chamber of secrets with her iron fist (and with the assistance of a fugitive from justice).

But now we also have a Queen Bee in the guise of Western Cape Premier Helen Zille, throwing her Royal weight around and acting like a spoilt sovereign. Like Sisulu, Zille also seems to think that she is somewhat above the law and far too good to follow the rules that she insists others adhere to.

Good heavens, Royalty MAKE the rules, they do not need to follow them. 

According to Zille the South African Human Rights Commission (SAHRC) has been doing the bidding of the ANC,  becoming a “political hit squad” orchestrating an ANC-inspired “smear campaign” against the poor, poor (much misunderstood and vilified)  DA. According to her Royal Highness (that Queen of Bees with the sting to match), this institution, stuffed with ANC deployees such as Janet Love, only investigates complaints against the DA-led institutions, choosing not to pursue complaints against the ANC-led institutions (see here and here for the words of the wise one).

The SAHRC hates the DA, see. No wonder they make legal findings against DA-led municipalities. But these attacks come as something of a surprise. Less than two weeks ago the DA-led Cape Town city government accepted an award from the SAHRC, saying the following in a media release in relation to the award:

The City of Cape Town was commended for outstanding work in putting the necessary mechanisms in place to promote openness and responsiveness within the establishment. The City was further recognised for its ‘sterling work in going beyond the call of duty in implementing PAIA and putting other mechanisms in place that not only influence the implementation of PAIA, but also influence the responsiveness and openness of other municipalities in South Africa as well.

So, two weeks ago the SAHRC gave the DA-run City of Cape Town an award, which the DA bragged about. Now the DA believes that the SAHRC is a lackey of the ANC. The same SAHRC who took a stand against the Secrecy Bill (in opposition to the ANC) and bestowed an award to the DA City Council is part of a plot by the Dark Lord Sauron himself to discredit Zille and her sidekick, the tongue tied Dan Plato. (I am reliably told that Smiegel, that slimy ANC-lackey from Lord of the Rings, is also plotting to get his grubby little hands on Zille’s – white - halo and that Zille is up half the night thwarting these devious plans. )

The reason why Premier Zille is now attacking the credibility of the SAHRC is not too difficult to determine. In one of her Thabo Mbeki-like Internet letters (has anyone noticed how she is turning into a DA version of Thabo Mbeki: intelligent, energetic, fearless, paranoid, vindictive and with a penchant for breaking the law), she claimed that the SAHRC is quickly becoming as discredited as the Public Protector was when Lawrence Mushwana held that office and noted:

One just has to read the extraordinarily biased and factually inaccurate report of the HRC on the Makhaza toilet saga to understand the agenda. The report’s analysis and conclusions are impossible to explain rationally. The inevitable inference is that the report’s purpose is to embarrass the DA and benefit the ANC. There is no other credible explanation in the light of the facts.

Well, with respect to Helen Zille, she is either very badly informed or she is lying. The SAHRC report on the Makhaza toilets, while embarrassing to the DA-run city, is very logical and easy to explain “rationally” (or on any other legal basis).  The report conforms perfectly with the Constitution, the jurisprudence of the Constitutional Court and the relevant legislation. Only Zille and her overtly defensive advisers (Gareth, are you there?) seem to think otherwise.

Maybe they need a constitutional lawyer to help them see past their own paranoia and hypocrisy to help them face the fact that the DA has broken the law. Then the party may start respecting the Constitution and its leaders will stop saying things that seem not only untrue but, in the long term, politically rather counter-productive.

The SAHRC Report took into account several rights – including the right to dignity, housing and the right to sufficient food and water – and found that while the City’s project to provide flush toilets for all residents was “reasonable and indeed commendable, the manner in which the project was implemented (no enclosures or walls for the toilet facilities) was not reasonable”. It also found that the City had infringed on the human dignity of  complainants and that there was not adequate consultation around the implementation of the project.

For anyone with even a passing knowledge of the jurisprudence of the Constitutional Court, these findings would not be controversial. The same cannot be said for a paranoid and defensive Premier who sees a Communist/ANC-lackey under every bush. In the Grootboom case Justice Yacoob said the following about the interrelationship between the right to human dignity and social and economic rights:

The proposition that rights are interrelated and are all equally important is not merely a theoretical postulate. The concept has immense human and practical significance in a society founded on human dignity, equality and freedom. It is fundamental to an evaluation of the reasonableness of state action that account be taken of the inherent dignity of human beings. The Constitution will be worth infinitely less than its paper if the reasonableness of state action concerned with housing is determined without regard to the fundamental constitutional value of human dignity.

In this particular case the right to dignity and the right of access to housing and water must be read together (as required by the Constitutional Court and as done by the SAHRC in its Report) to determine whether a breach of the Constitution occurred. As is clear from other case law, where these rights are further amplified and protected in legislation, the obligation on the state (in this case the Cape Town Municipality) becomes even more clear-cut.

Well, it so happens that section 3 of the Water Services Act no 108 of 1997 states that “everyone has a right of access to basic water supply and basic sanitation”. Section 5 states that “if the water services provided by a water services institution are unable to meet the requirements of all its existing consumers, it must give preference to the provision of basic water supply and basic sanitation to them”. The Act therefore requires municipalities to give priority to the provision of basic water and sanitation to all before given the best services to some and not the minimum service to others.

The minimum standard for basic sanitation services which a municipality is constitutionally and legally required to provide is defined in the regulations accompanying the Act as:

the provision of appropriate health and hygiene education; and a toilet which is safe, reliable, environmentally sound, easy to keep clean, provides privacy and protection against the weather, well ventilated, keeps smells to a minimum and prevents the entry and exit of flies and other disease-carrying pests.

So, apart from being in breach of the constitutional provisions that guarantee human dignity, privacy and access to housing and water, the DA-led Cape Town City Council has also been flouting the provisions of the Water Services Act when it built open toilets without any walls for the people of Makhaza.

The Act does not provide a City Council with the right to give residents a choice of an open toilet for every household or a closed toilet to be shared by several households. A city council has a legal duty to provide toilets for all and these toilets must comply with minimum standards which require that the toilets be enclosed. Legally, the option of open toilets is not open to the DA or any other party. (Even in an open oportunity society, the law requires municipalities not to provide residents with the opportunity to relieve themselves in public.) The DA broke the law by building those toilets. Zille probably knows this. Now she is attacking the SAHRC to try and deflect attention away from this embarrasing illegal act.

One does not have to be an ANC lackey to know this. One must just have a working knowledge of the Constitution and the law. To claim, as Zille did, that the SAHRC Makhaza report’s “analysis and conclusions are impossible to explain rationally” is therefore not a statement that could, by any strech of the imagination, be called true. Either Zille is clueless, or she is being dishonest. And once it is conclusively established (as I did above) that the SAHRC Report is legally sound, the allegations of a dark plot by the SAHRC also become rather absurd and juvenile.

Goodness knows, the SAHRC is not perfect. Like our judiciary its actions or ommissions can and must be criticised. Zille has every right to criticise the reasoning of the SAHRC in their Makhaza report. Sadly this she never did. She just claimed the report was so irrational that it had to have been prepared as part of a dark ANC plot. We are still waiting to hear why it is irrational. What legal principle was wrongly applied? Does the Water Services Act not apply in the Republic of the Western Cape?  Zille has never said. This is not a surprise because her claim is spurious and demonstrably false.

Some defenders of the Premier might argue that the SAHRC has not investigated complaints about ANC abuses as vigorously as it did those complaints of abuses by the DA. If this is true, then the SAHRC must do its job properly and must investigate allegations of ANC abuses. If it fails to do so, Zille is entitled to criticise this failure (without defaming the Commission or the Commissioners and without launching ad hominem attacks against the Commission, of course). Constitutional democrats criticise acts or ommissions by independent institutions, they do not call into question the credibility of those institutions – thereby probably commiting a criminal offence. If one does question the credibility of an independent constitutional institution, one is an enemy of our constitutional democracy.

Of course, the argument put forward by Zille that a perfectly legitimate and – I would say legally incontrovertible – finding by the SAHRC was written merely to embarrass the DA, “cannot be explained rationally”. It is like Y complaining about being prosecuted for bribing a politician because X also bribed a politician and was never prosecuted. That is not a defence. It is merely an admission of guilt masquarading as a plea of innocence. If Zille did not want the SAHRC to make a finding against her party she should have obeyed the Constitution and the law. Surely that is not so difficult to fathom – especially not for the self-styled Queen Bee defender of the Constitution?

In any case, I am a bit worried about Zille, as she might have committed a criminal offence with her scurrilous and unfounded attacks on the SAHRC and its Commissioners. Section 18(d) of the Human Rights Commission Act prohibits any person from “defaming the Commission or a member of the Commission in his or her official capacity” while section 18(i) makes it a criminal offence for a Premier to fail to afford the Commission “such assistance as may be reasonably required for the protection of the independence, impartiality and dignity of the Commission”.

Zille is alleging that the SAHRC and its Commissioners are failing to fulfil their constitutional and other legal duties because of a criminal loyalty to the ANC. That seems pretty defamatory to me and she could probably be prosecuted successfully under section 18 of the Act. But as she has shown in her response to the Makhaza toilets scandal, she thinks she – unlike members of the ANC - is above the law and need not comply with the obligations imposed on her by the Constitution and the ordinary laws of the country.

Unfortunately that attitude is undemocratic, threatens respect for the Rule of Law and for the Constitutions and the institutions created by it, and shows a contempt for the need to be accountable to other independent institutions. According to Zille, only the ANC, so it seems, are required to be held accountable by independent organs, as the DA is already perfect and is therefore not required to account to anyone – especially not an institution who makes a finding that you disagree with. 

Why would one be accountable to the SAHRC if one can discredit them instead? Then one never has to explain why one disregarded the Constitution and disobeyed the law. Surely this kind of behaviour is better suited to an absolute monarchy than to a constitutional democracy.

But we do not live in an absolute monarchy (nor a beehive). We are all bound by the law and the Constitution – even the DA. Now, which of Zille’s advisers are going to pluck up the courage to tell her that she is acting like the Emperor who is not wearing any clothes.

Gareth, are you still there?

Would Media Appeals Tribunal be constitutional?

Aug 18th, 2010
by Pierre De Vos.
51 comments

Many people have asked me whether the proposed Media Appeals Tribunal (MAP) would pass constitutional muster. We already know that the proposal for a MAP is wrongheaded, self-serving, deeply reactionary and unnecessary. But if Parliament passed a law that further limited the freedom of the printed media to publish what it deems important, and if such a law subjected the printed media to the dictates of a MAP, would this limitation on the freedom of expression be justifiable in terms of our Bill of Rights?

The short and somewhat unsatisfactory answer is that it is far too early to answer this question.

The various ANC proposals for a MAP and the various justifications for this Tribunal have been so confusing and contradictory that it is impossible to say what such a Tribunal would actually be empowered to adjudicate on, how it would be constituted and what its powers might be.

Last week Julius Malema stated that the ANC has already decided on such a Tribunal and that it wants Parliament to appoint it. He seemed to envisage that such a Tribunal would prevent the printed media from publishing certain facts which had been denied by politicians (and those lucky individuals connected to politicians) because such facts would be “mere gossip”.

These people [members of the printed media] are dangerous. They write gossip and present it as facts.

President Jacob Zuma, citing his experiences in Russia (that bastion of freedom of expression, respect for human rights and democracy), indicated last week that such a Tribunal would protect politicians from the publication of facts about their “private lives”. This is a contradiction in terms, as in an open and democratic society only the most intimate aspects of a politicians’ life can be said always to be truly private. (Of course, President Zuma has a vested interest in stopping the media from reporting on his private life, given the fact that his private life is rather adventurous and does not always conform to what he claims to believe when he speaks in public.)

He has also argued that the media tramples on peoples rights (by which I take him to mean the rights of politicians and their friends) to human dignity.

He continued by suggesting that the problem with the media was not only that it sometimes reported badly or even wrongly on events: it was ideological. Because some in the printed media do not agree with everything ANC leaders do and say, they are not in tune with the South African public. As President Zuma wrote:

The media must seriously conduct an introspection (sic) and open a constructive debate about the role of this institution in a post-apartheid South Africa. Is the media a mirror of South African society? Is it in touch with what the majority of South Africans feel and think? Does this institution actually know and understand South Africans? Why was it surprised by the explosion of national pride during the Soccer World Cup tournament? Why did South Africans decide to rise above the daily diet of negativity and defeatism that they are fed daily in the media?

So what is it to be? Will a Tribunal take over the role of the Press Ombudsman – but with enhanced powers? Will it censor journalists to stop them reporting “gossip” or other facts that are routinely denied by the well connected and the powerful? Will it be used to ensure that the media change its ideological stripes so that it becomes more compliant and in touch with what the majority of South Africans (read, members of the ANC) feel and think?

Before we have answers to these questions (on which the various ANC cadres who have commented on the need for a MAP seem to differ) it is not really possible to say whether the MAP has any chance of passing constitutional muster. A few preliminary points may be of interest though.

First, a MAP empowered to adjudicate on and punish members of the printed media will have to be independent. If it is not independent, it will be unconstitutional. A body appointed by Parliament will not be independent as it will in effect be appointed by the majority party.

If the proposed law therefore creates a MAP appointed by Parliament and that law empowers the MAP to punish journalists and newspapers, the law would be dead in the water. The limitation on press freedom would be so egregious that it could never be justifiable in an open and democratic society (although it might be well received in Russia) and would therefore not be found to be justifiable by our Constitutional Court.

Second, a MAP – even an independent one – that is empowered to address the perceived ideological impurity of some sections in the media will also be dead in the water. The very essence of media freedom hinges on the prohibition of state interference with the ideological content of what the media publishes. If the President does not like the attitude or ideological perspective of some in the media he has every right to complain and moan and shout about it. He can also make reasonable arguments about why the media is too cynical, hysterical or negative about South Africa.

But in the end – from a constitutional perspective, at least –  he (or the legislature) has no power to interfere with the media to try and change the way it reports on what is happening in South Africa. If a newspaper only wants to report on corruption, crime, and how evil the ANC is, it has a constitutional right to do so (I might not buy that paper, but many others – with money to burn – probably will).

Just as members of the media can complain about the ANC but cannot tell the ANC what to think or do, so the ANC can complain about the media but cannot tell it what to write and what not to write. If the ANC wants to get the media to be more positive and less hysterical it needs to convince the media to do so through persuasion, charm and - just a thought – through good governance.

Third, if the MAP will be empowered to address the possible infringement of the dignity of individuals by the media, this might also be constitutionally problematic. At the moment courts are legally empowered to deal with this through our defamation laws. The Constitutional Court has developed our common law of defamation to bring it in line with the guarantees of media freedom and it is now far more difficult for any person – including any politician – successfully to sue the media for defamation.

If the MAT is required to apply a less onerous standard when it deals with complaints about the infringement of the human dignity of anyone, this would therefore most probably also be unconstitutional. If a court cannot impose a stricter standard to punish the media for defamation, then a MAP – who will always be less indpendent than a court – will never be constitutionally allowed to do so.

These preliminary remarks indicate that there is very little that the proposed MAP could legally and constitutionally do that the existing Press Ombudsman or the courts cannot already do. This suggests that the members of Parliament will waste lots and lots of their time – time perhaps better spent attending to the concerns of constituents about potholes, trigger happy policeman, lack of toilets and running water and dysfunctional schools. The legislature will thus either pass a law creating a MAP that will not change anything, or it will pass a law creating a MAP that would be unconstitutional and therefore would be declared invalid by our courts.

The question to ask (but maybe not of the Chief State Law Advisor) is: why bother?

Boiled chickens pretending to be plumed peacocks

Aug 10th, 2010
by Pierre De Vos.
176 comments

Suddenly there is a lot of (artificially whipped-up) hysteria about the media doing the rounds amongst certain politicians. They want to muzzle the media by introducing a Media Tribunal “with teeth” and are also hell bent on passing the Protection of Information Bill which will criminalize much of what goes for investigative journalism in this country.

When these politicians (who pretend to be hysterical about media “excesses” and “mistakes”) refer to the media, they usually mean those sectors of the printed media who sometimes carry articles that contain allegations of corruption, tender rigging, high-handed and heartless incompetence by politicians and senior officials, the wasting of tax payers money by Ministers who stay in 5 star hotels for 6 months because they are not happy with the bed in their official residence, the fathering of children out of wedlock by our President or articles that do not seem to endorse the National Democratic Revolution as interpreted by Julius Malema and his woodwork buddies.

They do not usually refer to the tabloids (who are now more widely read than the so called “serious” newspapers). This is of course because tabloids seldom report on the alleged work done by politicians, but often print stories about “moffies” who tricked men into having sex with them by wearing dresses and were then stabbed in the gat, church ministers who had allegedly raped congregants, women who allegedly tricked men into buying them expensive presents before running off with their best friends, alleged drug dealers who are terrorizing communities, tik addicts who had sold their mothers gold teeth to buy some drugs and gentlemen of a certain age who allegedly molested young boys.

Some of these stories in the tabloids are published on the basis of the flimsiest of evidence and often reek of bigotry, sexism, homophobia and other attitudes and values not in line with our Constitution. These tabloids sometimes indulge in the most unprofessional and destructive journalism, but as far as I know, not one politician has attacked the journalism practices by these tabloids – although the stories in the tabloids often destroy the lives and reputations of ordinary (often working class or poor) people on the basis of very shoddy journalism.

But because tabloids seldom report negatively on politicians or on party politics at all, they are never mentioned when politicians talk about the need for a media tribunal and the “excesses” and “mistakes” of the media. (Strangely they also do not refer to incidences where the SABC news had failed to report accurately on the booing of a Minister or had wrongly implicated a DA member in some wrongdoing – must have slipped their minds.)

If proof were necessary, this is proof enough that this absurd talk about how evil the media is and how it needs to be regulated for the sake of our democracy has absolutely nothing to do with any principle and everything to do with the most blatant and dangerous forms of self-interest on the part of some politicians. It is a bit like saying we need to stop people eating because they are starving. For the sake of our democracy we need more information and less regulation – not the other way around. Do not believe a word of this talk that the media is the greatest threat to our democracy. We all know that the greatest threat to our democracy is posed by the politicians and senior officials who are stealing our money and failing to address the poverty and vast discrepancies in wealth between rich and poor.

But hey, some people will believe almost anything. So the politicians are trying their luck in the hope that enough of us voters will be so stupid and lazy that we will believe their stories about the evils of the media and that we will not see through their hypocrisy. After all, how many members of the elite really cares if a working class gay man’s life is destroyed by a bigoted and untrue report in a tabloid that he is a child molester? That guy is just an ordinary person, does not drive in a BMW, never stays in the Mount Nelson, has no bodyguards, must do with the bed that was bought 30 years ago, and earns less in a month than the average Minister spends on one dinner party.

When the politicians talk about the need for the media to respect the dignity and privacy of people, they mean that they want the media not to report on scandalous and embarrassing behavior of politicians – even if it is true and in the public interest to do so. The politicians obviously do not care about the dignity and privacy of anyone reading a tabloid or anyone being reported on in a tabloid.

The hypocrisy inherent in these attacks on the “serious” media is therefore breathtaking. Politicians who look like plucked, boiled, turkeys are pretending to be proud, plumed, peacocks.

Of course the media sometimes get it wrong. They make mistakes, they have a tendency to get hysterical and see everything as a constitutional crisis or the end of the world as we know it, they can be sensationalistic and have the tendency to adhere to the motto: “when it bleeds it leads”. If they make mistakes they need to correct this, must apologise and in the most extreme cases must pay damages for defamation.

Some politicians say that the present legal avenues for redress are too expensive and cumbersome and that is why one needs a fast, cheap and efficient mechanism like a Media Tribunal to hold the media to account. Of course this can be said of almost any legal mechanisms to redress harm. At present it is rather expensive to prosecute corruption, so why don’t we just appoint a corruption tribunal to deal with the charges of corruption against President Zuma and dispense with this innocent until proven guilty stuff? Not going to happen, is it?

If the politicians were principled (I know this phrase might sound hilarious and unreal, but I am trying to keep a straight face while typing these words) and were not acting out of naked self-interest and greed, they would have insisted on other tribunals to deal with other excesses and mistakes in our society – most notably the excesses, mistakes and illegal behavior of politicians and senior officials.

It is very difficult to get a politician or a senior official to admit to a mistake and even more difficult to get that politician to correct the mistake. The difference is, of course, that while media reporting can arguably affect the dignity and reputation (if any) of one or two politicians or officials, the corruption, greed, laziness and sheer callousness of politicians and senior officials affect the lives of millions of South Africans. When politicians and officials do not do what we pay them to do, people go hungry, people become homeless, people get sick and die.

We can vote out the politicians, of course (just as we can decide not to buy a newspaper), but by the time the politicians have been kicked out, well 300 000 people might have died of Aids related illnesses or a hundred babies might have died because of a lack of hygiene in our hospitals. Yet the people responsible for these outrages are never going to be brought before any tribunal, are never going to be punished and, in all likelihood, will be given a promotion or at worst a pension for life.

So, please, before politicians start talking about the need for a Media Tribunal – as if this is the most important thing for our democracy – they should clamor for the institution of a Tribunal for politicians and officials where ordinary citizens could go to get these people fired and maybe thrown in jail when they fail us. I propose that such a tribunal should be staffed or appointed by members of the print media (as the ANC is proposing the Media Tribunal be staffed or appointed by members of Parliament). That should ensure that it is independent and impartial!

Now imagine anyone actually seriously making such a suggestion. Imagine the howls of protests from politicians and officials. Now see how these same politicians want to impose on others what they will never accept for themselves and smell, yes smell, the stinking rot of corruption and greed and know that this talk of a Media Tribunal is no more than the hypocritical maneuverings of an elite wanting to protect themselves from being exposed  as heartless, greedy and out of touch with the needs of the people they claim to love and profess to want to serve.

On hate speech and a phone call from prison

Mar 11th, 2010
by Pierre De Vos.
82 comments

I have new respect for ANC spokesperson, Jackson Mthembu, who was arrested on Thursday morning around 7 am for drunken driving in Cape Town but apparently gave a 21-minute telephonic interview to the South African Press Association (SAPA) - while in police custody – 90 minutes later. Now that is what I call a work ethic worth emulating.

During the interview Mr Mthembu passionately defended ANC Youth League leader Julius Malema for singing “shoot the boers, they are rapists” - before bursting into song himself. At this stage it is unclear whether Mthembu was really drunk at 7 in the morning and if he was, whether he had been partying the whole night or had started drinking very early in the morning.

Although I cannot claim that I have never been drunk at 7 am in the morning, I can confirm that I have never been arrested for drunken driving and I have definitely never given a media interview from a prison cell while allegedly under the influence of liquor. Respect bru!

Sadly, the said interview was not his best work as ANC spokesperson. Whether he slipped up because he was drunk or because he was in prison and did not have the Internet handy, is unclear. Malema obviously attacked Zille (she is apparently a Satanist) and De Lille (she is apparently not a fit wife) and sang the “kill a boer” song to detract attention from the fact that Julius has not been paying his taxes and has been lying about his business interests.

The media fell for this ploy hook, line and sinker. Malema is a genius at manipulating the media – a bit like Hitler, but without the mustache and without the scary uniforms and the homoerotic military parades. (Relax, I am not saying Malema is as evil as Hitler – just that he is very good at getting the media to play to his tune.)

Back to Mthembu, who explained to SAPA (while he was either sober or drunk, but definitely in police custody) that the “kill a boer” song did not constitute hate speech as it was an old struggle song:

This song was sung for many years even before Malema was born … Julius doesn’t even know who’s the writer of the song. He got it from us [the ANC]. You must blame the ANC, don’t blame Julius. But when you blame the ANC, then contextualise it.

The problem is that in 2003 the Human Rights Commission Appeal Committee found that chanting the “kill the boer, kill a farmer” did constitute hate speech. In an opinion written by Prof Karthy Govender, the appeal body, relying on the much narrower definition of hate speech in section 16(2) of the Constitution and not on the more expansive definition in section 10 of the Equality Act, rejected the line of reasoning offered by Mthembu from his prison cell.

The liberation effort, including the armed struggle, was directed against the policy of apartheid and against its supporters. One of the slogans used to mobilize people against Apartheid was ‘’Kill the Boer, Kill the farmer’’. It was a rallying call to resistance, defiance and acts of violence in furtherance of the objectives of defeating apartheid. In effect, it called for the ultimate harm to be visited upon persons deemed to be the enemy. It was a slogan created for a particular time and in a particular context. It reflected the intensity of the race based conflict that was raging in South Africa at the time….

There can be no doubt that the slogan, given its content, its history and the context in which it was chanted, would harm the sense of well being, contribute directly to a feeling of marginalisation, and adversely affect the dignity of Afrikaners. The slogan says to them that they are still the enemy of the majority of the people of this country. It contributes to the alienation of the target community and conveys a particularly divisive message to the majority community that the target community is less deserving of respect and dignity. This generalized slogan is directed against an entire community of people. Words convey meaning and do cause hurt and injury. There is a real likelihood that this slogan causes harm.

As apartheid had ended and the political situation had normalized it was not acceptable anymore to say “kill the boer” and if one does it constitutes hate speech on the basis of race.

I would therefore be surprised if an Equality Court, relying on the far wider definition of hate speech in the Equality Act, does not find Julius guilty of hate speech. Of course, it is not clear that the provision in the Equality Act is constitutional as it infringes on the right to freedom of expression and is far wider than the exclusion carved out by section 16(2) of the Constitution. It may be saved by the limitation clause but I am nots ure it will.

If I was Malema’s lawyer I would challenge the constitutionality of the relevant provision of the Act to try and escape responsibility and to appear to be a champion of the Constitution. That would be brilliant public relations and may even teach the media and ordinary South Africans a thing or two about freedom of expression. 

However, if the Equality Court finds Julius guilty of hate speech it has wide powers to impose the appropriate punishment. It could order Julius to pay an amount of money to Solidarity or the Freedom Front (or maybe to donate his watch to one of these organisations?), or to apologise to white South Africans, or to do community service in Orania.

As for Mr Mthembu, I hope the ANC does not fire him. We all make mistakes, but few of us would show his dedication in getting our message – no matter how misguided – out there. If he was drunk as alleged, he should plead guilty and apologise to the ANC and the nation. Then he could continue to act as spokesperson for the ANC, which would allow all of us to snigger at him and make fun of his dedication to the cause of spin-doctoring. As the add says, that would be priceless.

The past is very unpredictable and may not exist

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sue? Nah, never

Feb 23rd, 2010
by Pierre De Vos.
108 comments

Julius Malema said today that he “will take legal action against the Star newspaper and consider doing the same with other newspapers” because they defamed him. I will donate one months salary to the ANC Youth League if Malema’s defamation suit against The Star is ever heard in court. Unless Malema is really stupid – which I do not think he is – he will never actually follow through on this threat.

The reason is very simple.

If he sues The Star, the central questions in such a case will be whether The Star defamed him, whether the defamatory allegations were untrue, and whether the newspaper was negligent in publishing incorrect and defamatory statements about him. This will be rather traumatic for Juju and will become one of the most sensational trials in South Africa’s history.

Usually it will not be defamatory to claim that someone has paid cash for his home or that he only earns R20 000 per month. Alleging that Patrice Mosthepe, say, or one of the Oppemheimers, paid cash for a house would not be defamatory because paying cash for a house is not a crime and neither does it say anything about the character of that person.

It could be considered defamatory if a court found that the report wrongly implied that Malema was corrupt or that he was a liar by having claimed on TV that his only source of income was his ANC salarywhen it was not. The Star report does imply that he has access to funds over and above his salary, so whether he has other sources of income will become a central matter in the trial.

The defamation trial will then become a very public lifestyle audit of Malema who will be forced to reveal all his sources of income. His bank statements and his lifestyle will go on trial and under cross examination he will have to answer questions about how he can afford a R250 000 watch on an ordinary ANC salary.

The newspaper’s lawyers would request to access to all of Malema’s financial dealings – his salary, his other sources of income, his expenses – which will all be laid bare in court. Malema will be cross examined about his R250 000 watch, his business dealings, his interactions with Polokwane politicians and municipal administrators.

As Oscar Wilde, Jeffrey Archer and Ronald Suresh Roberts found to their detriment, a defamation case can expose one to serious scrutiny and can expose the existence of facts which may well prove the very defamatory allegations which one had approached the court to challenge and disprove and could really destroy one’s reputation

Unless Julius is therefore absolutely clean and really only live on an ANC salary (something very few people would believe) , bringing a defamation case would be a gamble of such irresponsible proportions that Malema, or at least his legal advisor (will he employ black council?), would not want to take that chance. A litigant who sues for defamation better have clean hands. If he does not, he risks losing everything. Even if he does not lose everything, his lifestyle – warts and all –  will be exposed in court and very few litigants will emerge with their integrity in tact.

The threat of legal action reminds one of the threat to sue for defamation which was made by Jacob Zuma and Judge President John Hlophe. In both cases these threats were publicity stunts. We all knew the cases would never go to trial but those making the threats hoped that making such threats would create the impression that they had nothing to hide. It’s an old trick, but I wonder how many still fall for that.

In any event, it has now emerged that Malema has been less than truthful when he claimed yesterday that he has given instructions to lawyers when he became ANC President to deregister his directorships of companies. One company of which Malema is a director was only registered a year after he became Youth League President. He could therefore not have done what he claimed to have done.

In any case, this is not the issue, as one can still benefit financially from a company even if one is not a director. The question is not whether he is a director of companies, but whether he benefits financially from these companies and whether these companies have fairly – without corruption – obtained the government tenders.

To come clean Malema will have to show that these companies tendered in an open and transparent process for government work and obtained the tenders because it was best placed to deliver the work at the most competitive price. I for one would be surprised if this was the case. Given Malema’s political influence, it is not unreasonable to suspect that he used his connections to get the tenders – which would constitute a criminal offense. That is why the allegations are so damning and why Juju is fighting so hard to try and address them. The newspaper reports have now tainted Malema because the stench of corruption hangs over him.

If Malema wants to clear his name he will have to bring evidence that the tenders were awarded to the company with the best track record who offered to do the work at a reasonable price. This he has not attempted to do. His silence on this score, will lead many to draw their own conclusions.

Whatever happens, The Star is safe. They will never have to meet Malema inside a courtroom as Malema cannot afford to have his finances and lifestyle exposed

Yes, we should “Africanise” our law

Jul 13th, 2009
by Pierre De Vos.
33 comments

Controversial Cape Judge President John Hlophe created quite a stir last week when he told a symposium in Durban that South African law needed to be “Africanised” to make it more relevant. I don’t see what the fuss is about. Clearly Hlophe has a point when he says:

I believe that people need law that embodies their own culture and their values. We need to Africanise our law and make it relevant to the masses. There is a huge void in our legal system… If we do not transform the legal system we will have a problem because people will not identify with the system. We need to have the situation where people obey the law not because they fear being sent to jail, but because they feel that it is the right thing to do and something they are proud of.

If I understand him correctly, Hlophe is saying that the law obtains its force not (only) through the violence it can visit upon inividuals through the application of judicial and state power, but (also) through its legitimacy. When people feel that the law reflects, at least partly, their own aspirations and identity, they are more likely to respect and follow it.

Personally I would prefer to talk about the “South Africanisation” or “indiginisation” of our law, given the fact that “Africanisation” is not a term that tells us with sufficient precision what is required. Africa – like Europe – is a large continent with many different legal traditions and systems and it might not be very helpful to talk of the “Africanisation” of our law because it could mean many different things.

My terminology would also avoid the impression that it was possible for our law ever to be fully emancipated from its colonial roots – as if somewhere there was such a thing as “pure” African law that we could fall back on. The romantic notion that there was a “pure” African system of law, uncorrupted by our colonial experience, might be emotionally appealing but does not accord with the harsh realities. Colonialism has for ever changed South Africa (and the rest of Africa) and it would be foolish to deny this.

However, the more interesting (and more difficult and complex) question is how our law could be “indiginised”, given the vast and powerful influence of the Roman Dutch common law on our legal system and the constitutional imperative that  when interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

Luckily, those pesky counter-revolutionaries on the Constitutional Court (and even some judges on the Supreme Court of Appeal) have been grappling with this question for several years now and have, in effect, been “indiginising” (or “Africanising”) our law for many years. Whether judges and lawyers have been taking notice of this fact is, of course, another matter.

For example, the Constitutional Court has relied on the Bill of Rights to begin to refashion the Roman Dutch law principles of ownership which were used during the apartheid era to legitimate the “consequences of manifestly racist and partial laws and policies” in order to strike a better balance between private property rights and the public duties of property owners.

The court pointed out that traditional Roman Dutch property law  failed to take account of the inherent tension between individual rights to property, on the one hand, and the social responsibilities of property owners, on the other. It was therefore required, said the Court in the First National Bank case “to move away from a static, typically private-law conceptualist view of the constitution as a guarantee of the status quo to a dynamic, typically public-law view of the constitution as an instrument for social change and transformation under the auspices of entrenched constitutional values.”

Similarly justice Sachs and Mokgoro (how they will be missed!) infused the law of defamation with the value of ubuntu – botho by proposing a remedial shift in the law of defamation from almost exclusive preoccupation with monetary awards, towards a more flexible and broadly-based approach that involves and encourages apology. Ubuntu, Sachs wrote:

has an enduring and creative character, representing the element of human solidarity that binds together liberty and equality to create an affirmative and mutually supportive triad of central constitutional values. It feeds pervasively into and enriches the fundamental rights enshrined in the Constitution.

And in the field of criminal law, in the case of S v M, Justice Sachs once again relying on the value of ubuntu read with the right of children to parental care, applied the principle of restorative justice and ordered that a mother of three children convicted of credit card fraud should not be sent to jail.

In these cases the Constitutional Court demonstrated that our constitution contains indigenous values which should permeate our law. Although it was not possible to ditch the Roman Dutch common law in its entirety, when courts developed and applied the common law these values could be used to bring the law closer to the people, so to speak.

I have not had sight of Judge President Hlophe’s full remarks so do not know whether he might have sited these or other similar Constitutional Court judgments to bolster his case. If he did, good for him. If he did not, I hope he (and all other judges) study these cases to see how our law can be indiginised within the disciplining framework of our very homegrown Constitution.

Madness descends on the Western Cape

May 12th, 2009
by Pierre De Vos.
68 comments

Our politics seems to have descended into complete madness – and so soon after the election. Please people, take a deep breath, calm down, and step back from the abyss. We are all trying to give reign to our hopes and not our fears in the post-election glow, but some politicians never got that memo.

First Helen Zille, finding herself in a fix because of her palish, all-male cabinet, fired off a moralistic broadside (better suited to a right wing fundamentalist Christian) against President Jacob Zuma just days after he was sworn in. One would have thought that Zille would have observed the tradition of allowing the new President some sort of political honeymoon in order not to alienate the 11 million voters whom she would like to convert to the DA before the next election.

Making moralistic pronouncements about the President’s private life (who knows what the arrangements and understandings are between Zuma and his wives?) really only hands the ANC a propaganda coup and reminds us of the reactionary tendencies of the DA.

Then the youngsters at the ANC Youth League – perhaps jealous at Zille for stealing the limelight – sunk far, far, lower, with a sexist and defamatory statement so juvenile and ignorant that it is hard to believe the statement was not produced by “dark forces” (maybe the CIA or those “apartheid agents” lurking amongst the Scorpions?) hell bent on embarrassing the ANC, stating:

Zille has appointed an all male cabinet of useless people, majority of whom are her boyfriends and concubines so that she can continue to sleep around with them, yet she claims to have the moral authority to question our President.

If the fake racist girl Zille continues to speak hogwash like she has been doing during elections, we will take militant action against her, and demonstrate to her that she does not have monopoly over the Western Cape. The fake racist girl who was dropped on a head as child should understand that South Africa will never be a Mickey-mouse Republic like she wants to portray it.

If Zille wanted to, she could sue the (short) pants off the Youth League for this absurd and ignorant display of brutal and naked prejudice. Really, robust debate is great, but hurling such infantile insults reflect very poorly on those who had concocted this statement. Ironically the statement displays the very same sexism that the youngsters accuse Zille of.

Then, just when I thought things could not get more absurd, I see that the usually compassionate and sensible Tony Ehrenreich, Cosatu’s secretary in the Western Cape, announced that Cosatu had lodged papers in the Equality Court to challenge the decision by Helen Zille to appoint an all-male cabinet, saying that the make-up of the Cabinet showed disregard for the country’s constitutional and legislative principles.

Oh please, get a grip.

One may very well criticise Zille for appointing an all-male cabinet. Personally I think it reflects very poorly on the DA in general and Zille in particular that she claims not to have been able to find one competent women from among the DA members in the Western Cape Legislature to appoint as an MEC. Either Zille does not want other women in her cabinet because she feels threatened by them, or the DA is so male-centric that it did not attract any competent women to stand for election for the Provincial Legislature. Either way, it provides the ANC with a big stick to hit Zille with and tarnishes her image with the media elites.

But having said that, the Equality Court challenge is so preposterous that I cannot believe any lawyer actually signed off on this idea. This is because the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) clearly states – as if it was necessary to do so – that the Act was subject to the Constitution. And when one reads the Constitution in its entirety it is as clear as day that the kind of political decision to appoint a cabinet will not be subject to PEPUDA.

There are several reasons for this.

Section 132 of the Constitution bestows the power on the Premier to appoint an Executive Council from among the members of the provincial legislature and does not require the Premier to take into account race or gender considerations. Elsewhere in the Constitution, the appointment power is fettered by requiring the appointing authority to consider the need “to reflect broadly the race and gender composition of South Africa”. But this is explicitly not required when the President or the Premiers appoint a cabinet, allowing them a very broad discretion to make the political appointments (or fire members of their cabinets) as they wish.

Unless this discretion was exercised in bad faith, for example, by appointing a person to cabinet after being paid a bribe, no court of law will have the power to interfere with the exercise of this discretion. I cannot imagine any Equality Court judge entertaining this application seriously.

There is a very good reason for this. The President or the Premiers exercise a naked political discretion when appointing (or firing) cabinet ministers and the separation of powers doctrine prevents courts from interfering with the exercise of this power. The party who wins the election forms the government and the head of that government can only govern if he or she can make cabinet appointments based on political considerations. If a court interfered with this, it would require unelected judges to overthrow the democratic will of the people, something we really do not want judges to do when it comes to party political decisions like this.

If one does not like the cabinet appointments one could say so loudly and clearly and could vote for another party come the next election. This is called democracy (a concept the Kortbroek juveniles at the ANC Youth League seems to have a great difficulty in understanding).

Cosatu’s application is therefore dead in the water. I suppose its easier to run to the courts than to unite the ANC and start organising for the next election. One cannot pay expensive lawyers to do that hard political work for you, hence the silly move by Cosatu to run to the courts. The move seems to signal a disregard for the voters and hence for democracy and does not reflect well on the Western Cape leadership of Cosatu.

We might not like it that Zille won the election, but she did, so until next time, get over it and stop running to the courts to try and thwart the will of the people.

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