While the learners of rich parents attending the better schools were probably assisted and while their parents probably bought their own textbooks, those who really need the textbooks are having their education sabotaged by people who could not care less. Surely this is far more obscene than one painting could ever be?

Politicians with their disgustingly large ego’s (often far larger, it seems, than their sense of pride in who they are and in their country or their sense of responsibility as elected servants of the people) and their small tolerance level for hard work have overseen this mess, while enjoying the perks of the Ministerial Handbook and while feeling important about being politicians whose dignity the rest of us are supposed to respect. Stuff the dignity of the poor! Stuff the dignity of the school children being denied a proper education! Let’s rather get into a blue light convoy and drive around Limpopo to show how important we are and to demand respect and to insists that OUR dignity be respected!

Bureaucrats have been playing Tetris on their computers, filing their nails or scheming to land more government tenders by corrupt means (or whatever those bureaucrats do instead of doing their jobs), while indecently neglecting the interests of school children who have been forced to go to school without access to textbooks.

It took Section 27, an NGO engaged in promoting social and economic rights, to approach the North Gauteng High Court to do something about this disgrace. That is why last week Judge Kollapen ordered the delivery of textbooks to schools in Limpopo and the implementation of a catch-up plan for Grade 10 learners. Judge Kollapen ordered the DBE and the Department to deliver textbooks to all schools in Limpopo by no later than 15 June 2012.

He further ordered that a catch-up plan must be formulated and a copy lodged with the court and the applicants by 8 June 2012. The catch-up plan must identify gaps in curricula and the extent to which the quality of teaching and learning has been prejudiced by the lack of textbooks. The Court ordered the Department to indicate what remedial measures will be put in place to address these problems. They are also required to lodge monthly reports with the court and the applicants on their compliance with the catch-up plan, which must be concluded by the end of this academic year. In addition, Grade 10 learners throughout the Province will benefit from the catch-up plan, which will assist them in closing the gaps in their syllabi caused by the late delivery of textbooks.

While many South Africans seem to have gotten rather upset (in a choreographed expression of moral outrage) about the supposedly inhuman, racist, degrading and humiliating painting of our President because the painting depicts – gasp! – a penis, the real inhuman, racist, degrading and humiliating neglect of our government selling the school children of Limpopo down the drain goes unremarked on. Why worry about a few million starving children when one can get cross about the Presidential willy.

I guess it would be too shameful to feel disgusted by this criminal neglect of our government, because then we would have to confront the immorality of the very system which we often condone or benefit from. We would have to confront the fact that millions of South African children are not only denied decent schooling but also grow up hungry and exposed to preventable disease and that as a society we can do something about it but that – collectively – we do not care enough to take action or to force our government to take action. Far easier to howl in anger about the depiction of a Presidential willy than to confront the real moral decay at the heart of our society, namely our collective disgust and hatred of the poor and our blind celebration of those who acquire material things and our own mad chase after money and material things that might, momentarily, make us feel as if we are worthy of the kind of respect we demand being shown to a second rate politician.

(In any case, what is so special about a man’s penis? Unless one is a patriarch who sees the penis as a symbol of male power and unless one believes a man deserves special treatment and can demand special respect merely because he happens to have a little willy, that organ is a rather silly, inconsequential and laughable appendage, not much different from the belly button or the small toe. Those who invest it with so much meaning - which includes the artist in question - are really just perpetuating male domination and a belief in male superiority by investing the phallus with an almost mystical importance – I almost wrote impotence.  How ridiculous and irrelevant.)

What kind of a country do we live in where so many people can get so angry about a painting of a silly willy, but can blithely ignore the disgusting and even criminal neglect by our government of the education system in one of the poorest provinces in South Africa? Why are we not marching to the President’s house demanding answers about the fact that a new Unicef report - yet to be released – found that 11.5million of the country’s 19 million children are living in poverty. The report states that 7 million children are living in 20% of the poorest households and shows that poor children are 17 times more likely to experience hunger and three times less likely to complete school than children from wealthier backgrounds.

Why are we not outraged at the fact that the government is sabotaging the future of hundreds of thousands if not millions of (mostly black) children (in Limpopo and elsewhere) because government officials and politicians are either too lazy, or too lacking in respect for themselves and their fellow citizens, to do their jobs properly and because those who have money and power (also those working in the private sector) are too greedy to pay more taxes and so many others are too scared of speaking out about the injustices and coprruption around us for fear of being ostracised by friends and family who continue blindly to support the ANC government?

We live in a country where the human dignity of millions of people are daily disrespected in a systematic and structural manner. What kind of dignity is it that we supposedly are so respectful of if we allow, through our silence or our greed, a situation to continue in which many South Africans are dying of hunger or go to bed at night shivering in the cold and wet under a bridge? Surely, we should all feel ashamed and disgusted that so many of our fellow citizens have very little freedom and cannot make meaningful life choices because they are unemployed, hungry and sometimes homeless? The immorality of the social and economic inequality and the depravation around us is something that should anger us all.

Surely if we are going to get angry (and we should), it should not be because of a self-righteously fake morality conjured up by patriarchs about something as utterly banal as a (not-real) depiction of a rather small part of the human anatomy? So where is the anger about the true immorality that is at the heart of this society we live in?

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

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

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

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

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

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

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

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

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

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

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

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

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

Tribalism has bedevilled politics in many parts of Africa, referring as it does to the possession of a strong cultural or ethnic identity that separates one member of a group from the members of another group, an identity often deployed to facilitate political mobilisation of that tribe against perceived enemies and threats. Often tribalism goes hand in hand with chauvinism, the notion that one’s own tribe is culturally, spiritually and morally superior to those who do not belong to ones tribe. Tribalism is thus obviously divisive and exclusionary and Nelson Mandela, preaching unity in diversity, warned of the dangers of tribalism in our democratic state.

Tribalism is also, on a personal level, stifling and oppressive and not easily squared with the notion of the protection of human dignity, which assumes that we all have some agency to decide for ourselves who we are and how we want to live. It assumes that because one shares certain characteristics, cultural attributes, a language or a particular kinship bond with others, one should think and behave like the group and associate with it. It demands loyalty to the group and conformity to its beliefs and its political project – no matter how obnoxious, oppressive or downright murderous that political project might be.

This kind of identity politics is by its very nature conservative and intolerant of difference (differences within the group as well as differences between the group and those who do not belong to it). Tribalists usually do not embrace the full spectrum of human possibilities as it sees identity primarily or – in extreme cases exclusively – in tribal terms. But in order to live meaningful lives it is important to embrace and celebrate the multiplicity of overlapping identities that make us who we are.

That is why I am not a great fan of “Afrikaners” (or Zulu’s for that matter) organising around their tribal identity, as if the architects of apartheid were correct and as if there are only minority groups in South Africa – all members of different tribes – who must therefore organise around their tribal identities to protect or advance their own financial and political interests.

I am a white, Afrikaans speaking South African. But I am also a gay, HIV positive, constitutional law professor; a citizen of the world who travels widely and reads the poetry of Wislawa Szymborska and Wally Serote; a rugby supporter who listens to Zahara and Ntando in my spare time; a loving brother of four sisters; an atheist who would never dream of joining the ATKV and would laugh out loud if I were ever to be confronted by the bizarre exhortations of the local NG Kerk dominee.

Although I am proudly Afrikaans speaking, I am decidedly not an “Afrikaner”. In my eyes an “Afrikaner” is a highly political concept and a problematic one at that; it is an exclusionary identity as it refers to a group of white Afrikaans speaking people who more or less share a political orientation, cultural habits and assumptions, religious beliefs and a persecution complex that would even make Judge President John Hlophe blush. By saying that I am not an Afrikaner, I am not trying to pretend that my forefathers did not enthusiastically enforce apartheid and that I am still benefiting from it as a result. But I am saying that I reject the political label of Afrikaner because it says nothing about who I am, what I think, how I behave, who I am friends with and what makes me comfortable.

So when I read in the papers that the ANC has met with a group of “Afrikaners”, purportedly conveying to the ANC the views of “Afrikaners” about what is wrong with current day South Africa, I wonder who these people are speaking for and I wonder why the ANC is humouring them. It does not help that Afrikaans groups at the meeting included all the usual suspects, the very institutions which developed and implemented and championed apartheid: the Afrikanerbond, the NG Kerk, the Voortrekker Monument, the Afrikaanse Taal en Kultuurvereniging, the Afrikaanse Taalraad and the Federation of Governing Bodies of SA Schools.

Maybe it says something about the rightward turn inside the ANC under Jacob Zuma that the ANC has deemed it important enough to meet with this tribal group and is, in effect, endorsing this kind of tribalism. Maybe it says something about the racism embedded in our society. Why is it that when rich white Afrikaans speakers complain, the ANC is prepared to send a high-powered delegation to speak to them, but when social movements like Khulumani, the Landless People’s Movement or Abahlali baseMjondolo complain, they are mostly ignored.

Maybe it says something about the power of money and the economic power of white Afrikaans speaking South Africans that the ANC jumps when the so called “Afrikaners” complain, but will never bend over backwards like this if the complaints emanate from powerless and economically vulnerable groups.

There are lots to complain about in South Africa and, goodness knows, the ANC has a lot of explaining to do. But I would prefer a non-tribalist engagement with the ANC, one that would not be made possible only because the ANC is able to neatly put me in a box as somebody who fits the political description of an “Afrikaner”. The kind of engagement I am talking about is the engagement by NGO’s and social movements, academics and civil society interest groups – and of course, by all people who know that our Constitution allows them to be active citizens (as citizens, not as members of a tribal group), to protest and engage and argue and ridicule the arrogant and the cynical holders of political power.

Given the fact that section 1 of the Constitution states unequivocally that the Republic of South Africa is one, sovereign, democratic state founded, inter alia, on the values of non-sexism, universal adult suffrage, and a multi-party system of democratic government to ensure accountability, responsiveness and openness, section 211 guarantees no more than a symbolic or ceremonial role for traditional leaders. This is because traditional leadership is by its nature undemocratic and not accountable, responsive or open and hence not compatible with democracy if such leadership is going to be given a governance role.

As Prof Christina Murray pointed out, the fact that traditional leadership has survived at all in the democratic era is quite remarkable. This is because – as in most other parts of Africa – South Africa’s traditional leaders were co-opted by the colonial powers to help it govern rural areas. Ugandan academic Mahmood Mamdani famously described colonial tribal rule as “rule by decentralised despots”. This was also the case in South Africa. In particular, from the early 1950s under the apartheid government, the development of legislative and administrative structures in the Bantustans saw traditional leadership used to enforce apartheid and to act as local government rulers in Bantustans and retain control over black South Africans living in rural areas.

The central government’s power of patronage (which remains to this day in the form of the payment of large “salaries” to traditional leaders) was encapsulated in the apartheid government’s power to depose and install chiefs, making the chiefs an effective tool in implementing apartheid policies. Under the corrupt apartheid system the rewards for compliance could be great. As Maloka and Gordon relate, in the Transkei, where 30 chiefs were deposed between 1955 and 1958 for resistance to the demands of the apartheid government, Kaiser Matanzima of the lesser Thembu royal house won the favour of the apartheid authorities and later became president of the Bantustan.

Murray again:

Colonial and then apartheid structures also meant that chiefs increasingly turned to the government rather than their subjects for support. Van Kessel and Van Oomen say: ‘[S]tate recognition [became] more vital for the chieftaincy than popular support. Chiefs had become civil servants, to be hired, fired, paid and, if necessary, created by the government’. Expected to deliver services with no real sources of income, they used some of apartheid’s most vicious laws to support their enterprise. For instance, under apartheid’s system of migrant labour, African men recruited from rural areas to work on the mines had to have their ‘passes’ and permits renewed annually in their home village. Chiefs administered the pass book system and ran the labour bureaux where permits were renewed – and they received a ‘registration fee’ for their efforts.

Given these facts it is surprising that traditional leaders have managed to ingratiate themselves with the African National Congress in the post-apartheid era. It did so by forming the Congress of Traditional Leaders of South Africa (CONTRALESA) in 1987, just as the uprising against the apartheid state was reaching a new intensity. Chiefs saw the writing on the wall for the apartheid system (and was also being impoverished because of the collapse of the pass law system which generated much of the Chiefs’ income) and turned to the ANC. Nevertheless, during the constitutional negotiations, gender activists and “modernists” completely outwitted and outvoted the Chiefs.

Thus the tepid endorsement of traditional leaders in Chapter 12 of the Constitution as well as several provisions in the Bill of Rights which made clear that cultural rights as well as customary law would henceforth be subject to the discipline of the other provisions of the Bill of Rights – including section 9 which prohibits unfair discrimination on any ground – including sex, gender and sexual orientation.

These provisions were unsuccessfully challenged by CONTRALESA during the certification of the 1996 Constitution by the Constitutional Court. In that judgment the Court made the following statement about the difficulties of marrying a system of traditional leadership with democracy:

In a purely republican democracy, in which no differentiation of status on grounds of birth is recognised, no constitutional space exists for the official recognition of any traditional leaders, let alone a monarch. Similarly, absent an express authorisation for the recognition of indigenous law, the principle of equality before the law … could be read as presupposing a single and undifferentiated legal regime for all South Africans with no scope for the application of customary law – hence the need for expressly articulated CPs [Constitutional Principles] recognising a degree of cultural pluralism with legal and cultural, but not necessarily governmental, consequences.

But despite the incompatibility of undemocratic traditional leadership with a constitutional democracy, some elements of traditional leadership and customary law were retained. This attempt to accommodate the chieftaincy – despite its tainted past as enforcers of apartheid – was animated by both emotional as well as a practical considerations.

Given the colonial encounter and the devastation it wrought on Africans, traditional leaders have been able – despite their dark, collaborationist past – to promote themselves as symbols of the dignity of African communities and cultures – supposedly untainted by colonialism. Although it is, of course, not possible to return to a pre-colonial era in which traditional leaders, applying customary law untainted by the ravages of capitalism and the greed and dishonesty that always accompanies it, there is a strong yearning – sometimes expressed and sometimes unspoken and unexamined – for such a symbolic return to a different way of life which would signal some kind of rejection of colonialism and European imposed structures and legal regimes.

Second, millions of South Africans still live under a system of customary law, which often provides an easy and cheap mechanism to resolve disputes. Given the fact that many rural citizens are not able to gain access to magistrates courts because such courts are far away from where they live and because they lack resources to make effective use of such courts, and given the fact that, culturally, the common law or the legislation passed by Parliament do not always speak to the ways they live, organise their lives or their attitudes towards those in their community, customary law still thrives in some parts of South Africa.

It is against this background that traditional leaders (who are the main interpreters and enforcers of customary law) are making a political comeback. But because many aspects of customary law are incompatible with the Constitution, given that traditional leaders are not democratically chosen and are in no way independent (as they are paid and can be removed by the government) and given, further, the fact that many traditional leaders have been corrupted by money and greed, there are serious problems with the system relied on by so many people living in rural areas. While the system works relatively well in some places, in others it has been abandoned.

It is therefore curious that with the Traditional Courts Bill, the government is seeking to re-impose a fundamentally undemocratic system that is incompatible with the separation of powers and an independent judiciary – even on those communities who have rejected it. Why our democratic government would propose to pass a law that would potentially bolster the autocratic powers of unelected Chiefs remains difficult to fathom.

Perhaps the answer lies in naked electoral politics. The move therefore might have much to do with the perception among some ANC leaders (which might not be true) that by cosying up to Chiefs the ANC will be gaining more votes in rural areas. It presupposes that Chiefs are universally popular – which they are not – and that rural people by and large will not or cannot think for themselves and will allow themselves to be told how to vote by their respective Chiefs.

Where Chiefs are wise and benevolent and where loyalty to a Chiefs is strong, a Chief might well have an important influence on his “subjects”, but in other areas it is far from clear that support for the ANC by corrupted and unpopular Chiefs will translate into a mass vote for the ANC.

In any event, the Traditional Courts Bill in its current form is clearly incompatible with the Constitution and even if it is passed it will never stand the test of constitutionality. Why some in the ANC therefore seem to be hell-bent on passing this law – despite the dubious gains – remains a mystery.

Today, 18 years later, many South Africans are not free — at least not in the sense that they have access to the necessary financial and human resources to make the kind of life choices that could help them to live meaningful and dignified lives.  But it is important to remember how bad things were for most citizens during the apartheid era, not to excuse or justify the excesses and arrogance of some in government today, but to remind ourselves that the glass is at least (still) half full.

I am always amused when I read some of the most outrageous and angry posts on Blogs which accuse our government of almost everything from genocide to Nazism (the latter insult is usually hurled at anyone supporting redress measures based on race, sex or disability).  If these posters had written the same kind of thing during the apartheid era they would soon have received a visit from the Security Branch. They may even have been arrested or, worse, would have disappeared, never to be heard of again (or their charred bodies found in shallow graves years later).

During the various states of emergency one would never have known what was happening in the country if one only read the newspapers or — god forbid — watched the propaganda on the SABC news programmes. These were all heavily censored and the SABC actively spread false propaganda as part of its total strategy against what the Nats called the “Total Onslaught”. (How quaint and far removed from reality this kind of fascist language sounds today.)

It was only through whispered conversations and by experiencing the disconnect between what was happening around one and what the papers said was happening, that one could get a sense at all of how vicious and brutal the apartheid state was acting in order to try and repress an ever spreading revolt against the state.

Today it would be unthinkable that our government would announce a State of Emergency, that it would send in the army to suburbs around the country to terrorise the majority of citizens and that it would close down newspapers critical of the government. Goodness knows, for those of us who somehow thought South Africa is a special nation (why I can’t for the life of me remember), our government has been a huge disappointment. We expected so much, only to be confronted by a government run by ordinary politicians. After a few years in power, our government started behaving like people in power in many other parts of the world, instead of like the paragons of virtue and the champions of the poor and the marginalised like they promised us they would.

We are just another developing country struggling with the demons of colonialism — albeit one with lots of potential.

But perhaps, as we celebrate Freedom Day, it is important to remember that living in a fairly normal country where politicians lie and cheat and steal, where most citizens try to make a better life for themselves despite the venality of some of their neighbours and many of the politicians, is not that bad — especially for those of us with jobs and access to food and health care. Although many of us — rather naively, perhaps — hoped for better, the working poor and middle classes — including all the white people moaning and complaining about the country “going to the dogs” — are far better off than we were in 1994 (both economically and in terms of our freedom to live our lives as we please). It is the unemployed who have real gripes with our government, but for the moment there has been no sustained and organised revolt against the revolting greed of the politicians and the business class.

But our Constitution is one of the most magnificent legal documents ever created. The judgments of our Constitutional Court are read and studied across the world and have made a real impact on the lives of many (if not enough) citizens. Civil society seems to be emerging from its post-1994 slumber and is stirring, challenging absurd moves by the governing party like the proposed Secrecy Bill and Traditional Courts Bill.

Despite our giggling President who never did answer the corruption charges against him, despite the racisms and sexism and homophobia that still haunt our land, despite the cesspit of corruption seemingly engulfing our Police Service, many South Africans are getting along with life as best they can. More and more of us are realising that our government is not that special, and that we cannot rely on our government alone to improve our lives, that we have to do it for ourselves.

Siyazenzela!

Happy Freedom Day.

However, the Constitution does more than protect citizens against the abuse of power by the political branches of government – and rightly so. This is because the ability of ordinary citizens to live lives in which they are free to make life choices and to pursue their own interests and advance their well-being (the US Constitution in its characteristically optimistic manner speaks of the “pursuit of happiness”) is not only constrained by the state but also by private institutions and individuals who have the economic power or social status to limit the freedom of citizens, either directly or indirectly. Private institutions or individuals who are not constrained by the Constitution may well act in ways that directly or indirectly infringe on the human dignity of ordinary citizens and will often act to limit the freedom of citizens to make rational choices in their best interest to enable them to live meaningful lives.

Moreover, poor and marginalised individuals (through no obvious fault of their own) often do not have access to the very basic minimum goods and services — housing, health care, adequate education, food,  water, electricity and the like — and have no access to the resources to pay for those goods and services that would provide them with even the illusion of the kind of freedom that would enable them freely to choose how they want to live and who they want to become and how they wish to flourish.

That is why our Constitution contains not only the civil and political rights mentioned above, but also a set of social and economic rights. That is also why the Constitution places both a positive and a negative duty on the state to take steps to protect and realise both kinds of rights.

The state therefore has a negative duty not to interfere with the existing enjoyment of one’s right, say, to freedom of expression. Thus it cannot usually pass a law banning any criticism of the President. Similarly, the state has a negative duty not to interfere with one’s right of access to housing. Thus it cannot usually pass a law that would empower the state to demolish your home to make way for a parking lot for the use of politicians or to evict you from your home to make way for the North Korean Olympic team. Similarly, the state has a positive duty to create and maintain a police force and a judicial system, an education system and an electricity grid and water supply and roads and independent institutions to conduct elections, to ensure that we are all sufficiently free and capable to develop and to try and reach our full potential as a human being.

That is also why the Constitution clearly states that one can, in certain circumstances, enforce rights against private individuals and institutions. What use is my freedom of expression, say, if my cell phone company is allowed to prohibit me from sending sms messages criticising the President (especially when this company is in cahoots with all other telecoms companies in the market)? And what use is my right to life, say, if a private hospital can refuse to treat me even as I lay bleeding to death in the reception area of that hospital?

Radical free market capitalists do not like to hear this, but the kind of freedom they envisage and which they say is protected by narrow civil and political rights is often illusory, as any semblance of freedom is premised on access to education, to employment or, in the absence of this, at least to access to all the basic stuff required to make meaningful life choices.

Civil and political and social and economic rights are thus interdependent and indivisible as BOTH kinds of rights — operating in tandem — guarantee the kind of freedom which would truly protect and enhance the human dignity of all citizens. But for those who support human rights only if it protects the free market and the rights and freedoms of those who have the access to resources that would enable them freely to make choices, freedom is often little more than the freedom of the rich to exploit the poor and to continue doing so without interference by the state.

“The law, in its majestic equality,” said Anatole France, ”forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” This is the kind of legal regime that those who reject social and economic rights seem to favour. Put differently, in the world of radical free market capitalists, we are all free to choose to stay in the Mount Nelson Hotel if we want to — even if many of us are starving and only very few of us can indeed afford to do so and will ever have the money to pay for one night in the Mount Nelson (unless we happen to be the head of the South African Communist Party in which case the taxpayers will foot the bill).

It is exactly because our Constitution embraces a far more nuanced and expansive (and far less selfishly pro-rich) notion of freedom, that the Bill of Rights includes both social and economic and civil and political rights. That is why arguments made by columnists like Ivo Vegter are so wrongheaded and (to me at least) morally repugnant. In a recent column published on Daily Maverick, Vegter sets up a false dichotomy, arguing that there is a need to distinguish clearly between “freedoms on one hand, and entitlements on the other”.

Freedoms are those rights that prevent another person — and in particular the state — from acting in a way that infringes your liberty. Entitlements are those rights that are economic in nature, and implicitly impose a financial obligation upon someone else.

Vegter fails to acknowledge that liberty itself is not something that can be adjudged in isolation. One has no liberty if one is poor and homeless — except if one defines liberty as the freedom to starve and die of hypothermia. But Vegter, over-egging the pudding even further, then proceeds to make the following astonishing claim that seems to be at odds with any modern notion of social solidarity, which is a bedrock principle on which the modern nation state is based.

The problem is this: if I have a right to healthcare, and I cannot, refuse to, or neglect to pay for it, someone else has to either provide it at no charge, or pay for it. If I have a right to housing, then someone has to buy or build me a house. If I have a right to food and water, which are indisputably necessities of life, and I fail for whatever reason to provide these for myself, then someone else is obliged, by law, to provide them for me. This, in effect, means that someone else has to produce that to which I claim a basic human right, guaranteed to me in the Constitution. There’s a word for people who are obliged to work for others without choice or payment. And those people, under the South African Constitution, have the right not to be subjected to slavery, servitude or forced labour.

In a modern state, the notion of social solidarity leads to the formation of a government that raises money through taxes. In return, the state is required to take such steps as to allow all citizens to flourish. Without this basic solidarity, this notion that we are all in it together and that we have a right to demand that our taxes are spent on roads and electricity production and water purification and education and a police force, there is no need for a modern state.

For citizens to flourish they must be free to make real choices about their lives and how they want to advance their own interests. Without roads, without schools, without a criminal justice system and a police force, without the institutions that safeguard our right to vote, without access to basic health care, no one has any semblance of freedom and the rights that are supposed to guarantee this freedom. Freedom, in essence, is an expensive commodity as are all the rights protected in a Bill of Rights – even in a liberal Bill of Rights that contain no social and economic rights guarantees.

The distinction between rights and entitlements made by Vegter is a false one. None of us can provide everything we need to flourish for ourselves. We need the state to assist us, in essence to provide us with what Vegter calls “entitlements”.

We can have no freedom and no rights, for example, if we have no legal system, no police force, no judiciary, no system of roads, no telecommunications infrastructure, no regular safe and clean water supply and supply of electricity. Without these state subsidised institutions, life would indeed be “nasty, brutish and short” for most people. Yet we have a right to life, a right to freedom of movement, a right to freedom of speech — all derived from the system and the infrastructure paid for by all taxpayers. In the same way, those who do not have money to pay for education of health care should have a right to demand these from the state. If they do not have access to such things, they are not free in any meaningful sense of the word and they have no rights — including the precious civil and political rights, Vegter champions.

All rights are limited by budget constraints. Vegter approvingly quotes someone who claims that: “Rights are not limited by budget constraints, but entitlements are. So, rights are universal but entitlements are not.” This is false. My right to freedom of expression and assembly is limited by budget constraints, just as my right to housing is. For if I want to have my say and if I want to take part in a protest march then I might need the police to protect me from others who might want to kill me for expressing my view. The police service costs quite a lot of money to run and it has limited resources, so it will not be possible in every single case to insist on exercising the right to free speech and assembly and be protected by the police. In any case, how will I be able to protest freely, if I am too hungry to do so? What kind of right is that if my lack of access to food makes its exercise impossible.

Human rights — whether they are civil and political in nature or social and economic in nature — is not to be confused with charity. Vegter seems to argue that whenever rights cost money they are no more than charity. This is conceptually wrong and ideologically reactionary.

Unless one lives in a totalitarian state, rights are a prerequisite for the exercise of one’s freedom. Without the protection of these rights — which are interdependent and indivisible — everyone except the most wealthy and powerful will have no chance of living a meaningful life, a life of dignity, which is the ultimate aim of human rights. It is not charity when the state pays the police to protect me. Neither is it charity when the state pays a doctor to save my life. This is because in both cases, without the intervention of the state, I might not be capable of living a meaningful life or, worse, I might be dead.

Now it has ruled that it cannot make any ruling on whether completely misleading and dishonest government adverts promoting the Secrecy Bill contravenes the Code. The Right2Know campaign had complained about these ads, invoking section 4.2.1 of the Code. This section states that:

Advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer.

In refusing to consider the merits of the case, ASA invoked section 2.4 of part I of the Code which states that:

To the extent that any advertisement:

· Expresses an opinion on a matter which is the subject of controversy; and
· That controversy involves issues within the areas, broadly defined, of public policy and practice, then that opinion shall not be subject to the provisions of the Code relating to misleading claims.

This exclusion is obviously aimed at those ads in which a controversial opinion is expressed about matters of public policy to the extent that such opinions are expressed. Thus, if an add expresses the opinion that etolling is a bad thing, that motorists should oppose the introduction of etolls and that etolls are being imposed by a government with no respect for citizens, it will not be possible for the government to complain about the add on the basis that the opinions expressed in the ads are incorrect. This is because opinions, by its very nature, are not easily verifiable as either true or untrue.

But surely the Secrecy ads are fundamentally different. If the adds promoted the Secrecy Bill by expressing the opinion that South Africa needed this law to protect the national security of the state, ASA would have been prevented from considering whether the ads are misleading or not, because the adds would express an opinion about whether the Bill is needed or not. Reasonable people may well differ about whether this is indeed the case.

But this is not what the ads do. They do not purport to express an opinion only, but also purport to inform the public about facts, namely what the Secrecy Bill is in fact aiming to achieve. They make what appear to be factual assertions about the scope and nature of the Bill. One of the television adverts presents a seven year old child (see below) saying that: “My government knows who I am because my government protected my birth certificate.” It then continues that the “Protection of State Information Bill is about getting serious, serious about protecting your information.”

The advertisement therefore states as fact – both in words and through visual presentation – that the Secrecy Bill is about protecting information relating to birth certificates. This is a factual claim which is untrue. To put it differently, this is a blatant lie. The exclusionary rule explicitly states that the exclusion only applies to the extent that it expresses an opinion. Where an advert contains both opinion and assertions of fact, the assertions of fact remain to be considered by ASA in terms of its rules. But What ASA has done is to refuse to adjudicate on the fal;se assertions because the advert also contains opinion. That is a blatant and obvious misreading of its own Code.

In fact the Secrecy Bill says absolutely nothing about Birth Certificates. Another law, the Births and Deaths Registration Act 51 of 1992, deals with this matter. Section 29 of this Act protects the secrecy of our Birth Certificates, prohibiting any person from publishing or communicating to any other person any information obtained from a birth certificate.

Section 31 of this Act states that it is a criminal offense for any person who has custody of a birth certificate to damage it or destroy it; to make false copies of a birth certificate or a reproduction. The Secrecy Bill does no such thing. The factual claim made in this advertisement is therefore false and is in contravention of section 4.2.1 of the Code. Because the advert purports to make true factual statements, ASA could not plausibly argue that the adverts merely deal with the expression of controversial opinions.

I will give an example to illustrate the distinction I am making but which ASA seemed unwilling or incapable of making. If someone produces an advert stating that President Jacob Zuma is a bad President because he is soft on corruption, that advert would be expressing an opinion and ASA would not be able to make a finding about the advert on the basis that it is misleading. Whether President Zuma is soft on corruption or not is itself a matter of opinion.

However, if that advert stated instead that President Zuma is a bad President because he has been convicted of rape, then the advert would include an assertion of fact that is demonstrably false and ASA would then not be able to invoke section 2.4 in order not to make a ruling on the advert. President Zuma has never been convicted of rape and the advert would therefore be false and misleading.

Similarly, the Secrecy Bill adverts state as fact that the Secrecy Bill is about matters with which the Secrecy Bill does not deal at all. It is therefore not a matter of opinion about whether these adverts are false and misleading. It is a matter of fact.

I guess one should not expect any semblance of logic to emanate from a body who seems to be prepared to believe that angels exists, but it is rather troubling that ASA has been too cowardly or subservient to make a ruling on these false and misleading adverts merely because this would have been politically awkward.

Lurking at the heart of these missives, it seems, is a narrow, completely diminished, understanding of democracy. Minister Nzimande seems unaware of (or he is ideologically opposed to) the fact that our Constitution establishes more than a representative form of democracy in which passive voters are given the opportunity every five years to vote for the party of their choice (which the state broadcaster tells them should be the ANC). In his latest missive, he has the following to say about a supposed liberal ideological third force:

As part of the ideological armoury of the anti-majoritarian liberal offensive are attempts to assemble elite voices in society that appear to be either neutral or authoritative to try and discredit the ANC. The mainstream liberal media, some liberal NGOs, and of late business voices like Reuel Khoza, are all part of an ‘ideological third force’, decrying the ‘threats’ to our constitution and ‘lack’ of leadership in the ANC and society. Similarly, all of our institutions supporting democracy are either affirmed or condemned in the media, purely on the basis of whether they find positively or negatively against the ANC or government, often irrespective of the issues at hand.

That, according to Nzimande, is why the masses should be mobilised behind the ANC/SACP programme of action (as if anyone belonging to the masses are not capable of thinking for themselves and having a view that contradicts that of the movement) and why cadres should not believe a word they read in the print media (the SABC being ideologically less problematic and therefore more believable – unless they report on Julius Malema).

It has not occurred to Minister Nzimande that there might be reasons why the print media are criticising the movement and why NGO’s are taking the government to court. There might be very good reasons for protesting when our government does something reactionary, venal, corrupt or undemocratic. Whether the criticism is provided by an 84 year old granny who voted for the ANC or a newspaper editor – it remains valid no matter what Nzimande thinks. He has not considered the possibility that many of the ANC critics are fighting for a better life for themselves or the communities they serve, something the government is not doing so well because many of its leaders are fighting with each other for positions, which will bring with them the status that a blue light convoy and stays at the Mount Nelson can bestow, along with immense wealth that flows from access to government tenders and bribes by others who wish to access these tenders.

When the President tells an interviewer of The Sowetan: “We don’t want to review the Constitutional Court, we want to review its powers,” a few days before his own case which might revive corruption charges against him is heard by the Supreme Court of Appeal (SCA), one need not have a special ideological hatred for the ANC to worry about a threat to the Constitution. When the President appoints the least qualified and most right-wing member of the Constitutional Court as Chief Justice, and is lauded by the social conservatives and by Blade Nzimande for doing so (Blade saying those who pointed out Mogoeng’s conservative anti-women and anti-gay credentials did so only to spite the President!), then one should surely be aware that liberal and conservative, progressive and reactionary has stopped meaning what it used to mean and that Blade’s rant about an ideological third force is utterly meaningless.

And when North West Human Settlements MEC, Desbo Mohono, says that municipalities need to create stringent by-laws to prevent the “mushrooming” of informal settlements, in effect declaring war on the poor and sounding remarkably like an apartheid era Minister, then any thinking person would surely take Blade Nzimande’s attack against NGO’s and liberals with a pinch of salt. How can one not and begin to think that he is hiding behind his revolutionary language to try and pull the wool over our eyes about the movements true ideology (and ideology that has more to do with wealth accumulation and demonization of the poor than with providing a better life for all)? By the way, the MEC seems to have given the game away on Saturday when he made the following statement:

I would like to urge all local municipalities, to come up with rigid by-laws that would ensure that we do not see another informal settlement mushrooming in our land… We cannot win this battle if we continue to be held to ransom by our people, who continue to occupy land illegally and continue to add numbers to the ever emerging informal settlements.

In this view, it is the people – especially the poor that comrade Blade claims to fight for – who have become the enemy and who is holding the government to ransom by having the cheek of existing and actually wanting to have some kind of roof over their heads every night when they go to sleep. I mean, these people must be part of the liberal ideological third force, cunningly relying on the Constitution which states that everyone has a right of access to housing and placing a positive obligation on the state to take reasonable steps progressively to provide such access to those who need it.

Now, the supposedly liberal NGO’s are the ones who often assist the homeless and those who live in informal settlements and help them to take the government to court when the government that Blade is part of heartlessly evicts the marginalised and vulnerable poor from their often makeshift homes or the dilapidated inner city buildings where they live, often in desperate conditions. The supposedly revolutionary movement of which comrade Blade is a member is often the one who demonises these same people (as the MEC did on the weekend) and who takes steps to try and get them out of sight. (I guess it must be distressing to have to see these informal settlements flash past as one is chauffeur driven in a blue light convoyed R1 million car to another party where one will sip champagne on hehalf of the masses to celebrate the 100 year birthday of the ANC – staying in the Mount Nelson far away from these horrible poor people who dare to want to get a roof over their heads must be so much more soothing and fun.)

In any case, at the heart of all this is a deeply undemocratic attitude to the “masses of our people”, to debate and to criticism of any kind. Citizens are seen as passive voting fodder who must be galvanized every five years to vote for the movement and otherwise must shut up. In the Doctors for Life case, Justice Ngcobo made it clear that this is not the kind of democracy established by our Constitution. The commitment to principles of accountability, responsiveness and openness, wrote Ngcobo, shows that our constitutional democracy is not only representative but also contains participatory elements. This is a defining feature of the democracy that is contemplated. This means that all citizens (even the liberal ones) have a right to have their say and to participate in the discussion. Not even Minister Nzimande can try and shut up anyone who raises concerns about the manner in which the government is “governing” the country.

When the 84 year old granny, Ntombentsha Phama, who welcomed a TV news camera crew into her home and spoke about her plight, and was then berated by a delegation of ruling party councillors sent by Mbhashe Local Municipality Mayor Nonceba Mfecane, they are showing the same kind of lack of understanding or respect for democracy as Blade Nzimande. During a second visit, this time with Mfecane in tow, Phama was again scolded, given two blankets and a business card, and told to call the mayor – not the media – when she had problems.

Like Nzimande the mayor and his cronies never stopped to think that Phama had a RIGHT to invite the TV cameras into her home and that instead of berating her, they might have done something about the criticism. They never thought that the embarrassment to the ANC came not from the granny, but from the way in which the council had behaved. Similarly, Nzimande does not seem to understand that the criticism of the ANC in the media might – at least sometimes – be based on the fact that the ANC is stuffing up. I guess it is far easier to launch a tirade against the granny or against a so called ideological third force, than actually to governing responsibly and effectively and to deal with the criticism. I find that even those evil liberals in the media will praise the government when it does something well. The only problem is that there is not often that much to praise – unless we set our sights so low that anything the government does better than the apartheid state is seen as worthy of praise.

Any political party or faction in a political party who captures the SABC has a huge propaganda advantage over its opponents. No offense to the Times with its 100 000 daily circulation, but it is really not that important that the Times told me this morning of all the shocking revelations made yesterday against crime intelligence boss Richard Mdluli at an inquest hearing into the murder of his ex-girlfriends husband. Unless these allegations are accurately reported on the vernacular radio stations and on the isiZulu TV news, it is almost as if the inquest hearing did not really happen.

No wonder then that the SABC has placed its group chief executive of news, Phil Molefe, on “special leave” (whatever that may mean), allegedly after he defied his senior executives’ orders to stop giving too much air time to the ANC’s enfant terrible, Julius Malema. The Star reports that Molefe allegedly refused to obey orders given to him by SABC CEO Lulama Mokhobo and the acting chief operating officer, Hlaudi Motsoeneng, this week and that the root of the conflict was Molefe’s decision to give full coverage to rallies which were addressed by the expelled ANC Youth League president Malema. (Whether this report is entirely correct, is not clear – except for the bit about Molefe being on “special leave”, which is definitely true.)

The SABC is supposed to be a public broadcaster that serves all South Africans and reports news as fairly and impartially as is possible. This is not always the case. Sometimes the SABC acts more like a state broadcaster or like the mouthpiece of the government or of a faction within the ruling party than like a public broadcaster. It must be said that is not nearly as bad as it used to be during the apartheid years when the SABC was a slavish National Party propaganda tool. Commercial considerations now prevent the SABC from turning into a full-on propaganda machine.

(Koedoe Eksteen, a slavish Nationalist who served as the CEO of the SABC during the nineteen eighties tells the bizarre story of how then State President PW Botha phoned him up demanding that the SABC immediately stop broadcasting the science fiction series called “V”. The series told the story of a group of aliens who came to earth and revealed themselves at night as horrible reptile like creatures. These aliens look like humans (but need to wear dark glasses against the sun) but they later reveal themselves as carnivorous reptilian humanoids. As PW Botha’s nickname was “Die Groot Krokodil” (The Big Crocodile) he believed the programme was meant to mock and humiliate him. Eksteen then arranged for the screening of all the “V” episodes in one go to placate the State President.)

Interestingly enough, the ANC negotiators at the Constitutional Assembly made sure that the Constitution avoided any mention of the SABC or of an independent public broadcaster, despite the insistence of the National Party and other smaller parties that the independence of the public broadcaster be protected in the Constitution. Instead, negotiators agreed on section 192 of the Constitution which states that:

National legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society.

Nevertheless, on paper, the 1999 Broadcasting Act provides some guidelines supposed to ensure that the SABC will provide a vibrant, fair and impartial news service. Thus section 6 of the Act states that the SABC must encourage the development of South African expression by providing, in South African official languages, a wide range of programming that:

(a) reflects South African attitudes, opinions, ideas, values and artistic creativity;

(b) displays South African talent in education and entertainment programmes;

(c) offers a plurality of views and a variety of news, information and analysis from a South African point of view;

(d) advances the national and public interest.

Moreover, as part of its mandate as a public broadcaster the SABC is required by section 10(1)(d) of that Act to “provide significant news and public affairs programming which meets the highest standards of journalism, as well as fair and unbiased coverage, impartiality, balance and independence from government, commercial and other interests”.

However, this happens in line with policies developed by the SABC Board, which (in terms of section 13 of the Act) is selected by members of the National Assembly (by a simple majority vote) after which they are appointed by the President who also selects one of the Board members as the Chairperson of the Board.

The Act provides wide powers to the National Assembly to fire individual Board members on account of misconduct or inability to perform his or her duties efficiently. This last criterion for removal is so vague that, in effect, the majority of members of the National Assembly can remove any member of the Board which it has lost faith in. The National Assembly can also dissolve the Board if it fails to discharge its fiduciary duties; fails to adhere to the Charter; or fails to carry out its duty to control the affairs of the Corporation and enforce compliance with the Charter of the SABC.

In effect, this means that the SABC is governed by a group of people selected by the majority party in the National Assembly. If the majority party does not like what the Board is doing or if it thinks the SABC is not adhering to its mandate, it can fire the Board. The Board therefore has a very strong incentive to please the governing party, a failure of which would mean that the members of the Board might well be fired. Sometimes these members see the writing on the wall and then they resign, creating the atmosphere of permanent crisis at the SABC which we have become used to.

It is no wonder that instability inside the ANC, with various factions vying for leadership positions and access to tenders, have led to instability at the SABC. This instability, along with reported nepotism and corruption which created a huge cash flow problem as the Broadcaster was haemorrhaging money, have led to a legitimacy crisis for the SABC. This means that more and more people are watching or listening to the SABC with a slightly jaundiced attitude. If one happens to be in, say, the Jacob Zuma faction inside the ANC, one will recall how the SABC favoured then President Thabo Mbeki in its coverage and censoring embarrassing events affected the President or those in his inner circle and one will know that one should not believe everything one hears or sees on TV. (Not that one should believe everything one reads in the newspapers, but that is another story.)

In my view the only way to fix the SABC is to change the way the SABC Board (and the senior managers at the SABC) is appointed. As long as the Board is beholden to the majority party in the National Assembly and as long as party loyalists are appointed to key positions inside the SABC, the SABC will not be able to fulfil its mandate as public broadcaster.

There is obviously no political will to detoxify the SABC and to rid it of factionalism and the narrow party politics which is currently bedevilling the Broadcaster. But if there were such political will, there are several ways in which the Board could be appointed to ensure that it remains at arms length from direct party politics. The Board can be appointed by a super majority of members of the National Assembly to try and prevent the selection of a Board that only represents the interests of one faction of the dominant political party. Or the Board could be appointed on the basis of suitable consensus being reached, with horse-trading between various political parties to ensure that the different constituencies are represented.

Another innovative way to appoint an independent body can be found in the Electoral Act which governs the selection of the Electoral Commission. The Electoral Act requires a panel of eminent persons to select a list of three more people than the number of members to be appointed for recommendation to the National Assembly. The body of eminent persons is composed of the Chief Justice as chairperson; a representative of the Human Rights Commission; a representative of the Commission on Gender Equality; and the Public Protector. A committee of the National Assembly then selects the appointees from this list.

Until this happens, the SABC is likely to continue making news instead of reporting it fairly and impartially.

If Obama can implicitly criticise the judges of the US Supreme Court, why can’t President Zuma say that he wants to review the powers of the Constitutional Court? Why can’t Gwede Mantashe say that our judges threaten the stability of the country and act in their own self-interest because they are hostile to the ANC-led executive? Why can’t Ngoako Ramathlodi say that because of the Constitution “the black majority enjoys empty political power while forces against change reign supreme in the economy, judiciary, public opinion and civil society”? Why can’t he say that the courts in our judiciary “the forces against change still hold relative hegemony”?

They may be emboldened by this line of reasoning if they read the column by liberal New York Times columnist Maureen Dowd who lashed out at the five right wing judges who form a majority on the nine-member US Supreme Court in the following manner:

This court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once they give the last word, is well on its way to becoming one of the most divisive in modern American history. It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes. All the fancy diplomas of the conservative majority cannot disguise the fact that its reasoning on the most important decisions affecting Americans seems shaped more by a political handbook than a legal brief.

But this possible shadenfreude by South African critics of the Constitutional Court would be unjustified and more than a tinge dishonest. Very few people argue that judges and the decisions they make should never be criticised – even in harsh terms. I myself have often criticised various judgments of the Constitutional Court as well as many judgments delivered by judges in other courts in South Africa. Criticism of judgments of the judiciary is not the issue. For example, a critical analysis of the Constitutional Court judgment which refused to hear the Hlophe appeal would be potentially valuable. I for one would engage vigorously with such a critical analysis and will try to demolish any kind of argument put up (which, I believe, would not be too difficult to do).

This kind of criticism of judicial decisions is par for the course for any academic.

What we object to is the conservative  attacks on the judiciary masquerading as radical concern for transformation. Some of us take issue with Jacob Zuma, Gwede Mantashe, Ngoako Ramathlodi and others, not because they criticise court judgments or because they attack specific judges (based on the conservative or even reactionary judgments handed down by those judges). We take issue with these self-serving and undemocratic attacks, first, because the attacks on the judiciary (the Constitutional Court, in particular) and on specific judges are not based on fact at all and are mostly based on, (how shall I put this nicely), an adventurous and creative engagement with the truth.

It is not as if the Constitutional Court cannot and should not be criticised. But then it should be based on the judgments of that court and the reasoning employed in the specific judgements of that court by an individual judge.

I have yet to see any critic of that court explaining which judgments exactly demonstrate that the Constitutional Court is hostile to the ANC or that it opposes transformation.

Can it be the judgment in which the court found that search warrants in the Zuma case were valid? No, that case dealt a blow to Jacob Zuma’s attempts to stay out of jail, but obviously had nothing to do with transformation.

Can it be the judgment that declared invalid the law on which President Zuma relied when he extended the term of office of the former Chief Justice? No luck there either, as that judgment was based on a protection of the separation of powers and the independence of the judiciary (which the ANC says it will defend to the bitter end), so that judgment was actually pro-ANC.

Was it the judgment which invalidated the government’s HIV mother to child transmission policy? No, that judgment promoted the well-being of poor and vulnerable women and their children.

And what judgment exactly threatened the stability of the country? Not one judgment comes to mind or has ever been mentioned by the critics of the Constitutional Court.

But there is a second reason why most of these attacks on the judiciary and the Constitutional Court are not just wrong, but also dangerous. They often seem to come from a deeply reactionary and undemocratic place. What is being objected to is not the politics or ideology of a specific Constitutional Court judgment or whether the judgment is pro-transformation or anti-transformation (after all, if that was the issue, the current Chief Justice – the most conservative member on that court – would never have been appointed by President Zuma).

Instead, the aim of those who attack the Constitutional Court often seems to be to create a scapegoat for the governance failures of the government. Without ever being able to name one Constitutional Court judgment which has stopped textbooks from being delivered to a school, which has stopped the government from replacing mud schools with brick and mortar schools, which has stopped the government from taking back control of schools from the out of control labour unions, attackers claim that it is the fault of the Constitutional Court that for some people little has changed in South Africa since 1994.

But it was not the Constitutional Court that imposed the GEAR policy on the government; that imposed a willing-buyer willing-seller land reform policy on the government; that forced the government to buy R40 billion worth of arms; that forced the government Ministers to stay at the Mount Nelson and buy million Rand cars. No, that was our government who did this all by itself.

So, by all means, criticise the judgments of the Constitutional Court, but be honest when you do so. Do not hide behind vague and untrue claims about the evil courts to try and justify the failures of the government. Do not attack the supremacy of the Constitution – as if this supremacy is to blame for the many “challenges” of government. Be honest about your motives for criticising a judgment. For example, why not come right out and say that the decision by the Supreme Court of Appeal (SCA) nullifying the appointment of Menzi Simelane, has nothing to do with fears of stifling transformation and everything to do with fears that an independent person will be appointed as National Director of Public Prosecutions who will not block the prosecution of well-connected politicians.