Constitutional Hill

democracy

Why define myself as part of an “Afrikaner” minority?

Oct 11th, 2011
by Pierre De Vos.
224 comments

There is a great paradox at play in political discussions and arguments about the manner in which “Afrikaners” and other “ethnic minorities” should position themselves and should behave in post-apartheid South Africa. This discussion has recently exploded into the open in the aftermath of judge Colin Lamont’s “Kill the Boer” judgment.

First, Adriaan Basson, Deputy Editor of City Press  wrote an open letter to Kallie Kriel, the CEO of Afriforum, about the manner in which the organisation has positioned itself as a defender of “minority Afrikaner interests”. Basson berated Kriel because:

[Y]ou see yourself firstly as part of a minority group, whose constitutional and human rights are being disregarded by the ANC. The premise of AfriForum’s campaigns is one of victimhood. You regard the Afrikaners as a group under threat, a people whose basic rights to expression, association and movement are constantly being undermined by the black majority.

Basson suggested that one should position oneself as a South African first and only then, as an afterthought perhaps, as a person who happens to be Afrikaans speaking and white. Basson seems to suggest that “Afrikaners” should not view themselves as a minority at all, but if they do, they should recognise that “Afrikaners must be one of the most powerful, wealthy and diverse minorities on the planet”. In Business Day, Steven Friedman, similarly criticised the “Kill the Boer” judgment because it reifies the white minority’s economic and cultural dominance.

“Afrikaners”, this group argue, should not claim a special status for themselves as they are relatively privileged as a group and are thriving — both economically and culturally — in democratic South Africa. There are so many other, far more pressing, political and ethical issues that people in South Africa should be concerned about — hunger, unemployment, homelessness, to name but a few. In order to make South Africa a more just and equitable place, “Afrikaners” should rather make common cause with marginalised and oppressed groups. They should change their minds and their hearts and should stop acting liking perpetual victims — stop exuding the we-can-never-forgive-blacks-for-apartheid mentality — as this mentality will just have a polarising effect on politics in South Africa.

Others, including Kriel, Wessel Ebersohn and Herman Giliomee point to the deep sense of anxiety and fear amongst many “Afrikaners” about their future in South Africa. These feelings relate to fears about the “Afrikaner’s” continued economic prosperity and the physical safety of members of this “minority” as well as an unease or even deep unhappiness regarding the loss of status of their language (Afrikaans) and their diminished political influence.

They warn against the totalising effect of an ideology that valorises “unity” and abhors difference and diversity. If I understand these arguments correctly, they are based on the premise that “Afrikaners” are indeed very different from other South Africans, because of their race, because of their language, because of their wealth (and perhaps – but this is never stated – because of their intimate involvement in the oppression of black South Africans during apartheid) and that people like Basson must be naive to think that one could be a South African first and an “Afrikaner” second.

The paradox is that many people who valorise “Afrikaner” identity in this way and see “Afrikaners” as physically or existentially threatened, also warn that one of the greatest threats to our non-racial constitutional democracy (and, by implication, to the “Afrikaner” minority) is the tendency of many black Africans in South Africa to see themselves as black first and as South Africans second. The very people who fearfully condemn the deployment of an ethnic or racialised identity by black Africans when they criticise affirmative action, claim a semi-racialised ethnic identity for themselves and argue for its preservation and protection through militant legal and political action.

Why is it acceptable for “Afrikaners” to embrace their “Afrikaner” identity and view themselves as “Afrikaners” first and South Africans second, but it is not acceptable for black South Africans to embrace their racial identity and to view themselves as Africans first and South Africans second? After all, “Afrikaners” were the main (but not only) beneficiaries of affirmative action during the last 40 years of apartheid and used their semi-racialised ethnic or cultural identity in the most devastating way to oppress the majority of South Africans. It is dishonest and conceptually treacherous to claim that this identity is somehow more benign than the racial identity that some black Africans embrace. Either identity politics itself should be problematised and its effects minimised or its should be embraced, with all the negative consequences that flow from this for a supposed “minority” identity group.

Some might argue that there is a difference as “Afrikaners” is a minority and black Africans is a majority, but as Adriaan points out, the vast majority of the members of this so called minority have done rather well in the democratic era. There has been an explosion in creativity amongst “Afrikaners”, finally freed from the shackles of Afrikaner Nationalism. Goodness, there is even a DSTV channel dedicated to Afrikaans music (some of it admittedly rather pedestrian, but some of it hard-assed, vibrant and moving).

But the fact is that identity politics is popular in South Africa because it seems to work. If one wished to resist oppression, economic exploitation and white racism, one would be wise to embrace an African identity and to advocate the implementation of special legal and political measures to “protect” or “advance” the identity group one feels one belongs to. Similarly, if, as an “Afrikaner”, one wished to harness the economic power amassed on the back of apartheid and if one wanted to be taken seriously by the ANC, one would be well-advised to show a united “Afrikaner” face to the so called “enemy”: the black majority. President Jacob Zuma has never gone out of his way to meet with progressive “Afrikaners” like Adriaan Basson, but he did join Steve Hofmeyer – that “Afrikaner” opportunist par excellance – for a braai.

Of course, if one has far more sympathy for Adriaan Basson’s view (as I do), one is not completely left off the hook. We usually talk about the past and the devastating effects of apartheid and many of us support some kind of race-based affirmative action. Yet, we claim that these identity categories (on which race-based affirmative action policies must rely and which are perpetuated by those very policies), should stop defining who we are and should be no more than one of the many distinct factors that help to paint a picture of who we are.

We like to say that there are no ethnic minorities or majorities in South Africa and that there are only temporary political majorities and minorities. We argue that we might happen to be white and Afrikaans speaking, but that this does not define who we are. We are also male or female, gay or straight, rich or not so rich, HIV positive or not, ANC supporters or DA supporters, liberals or socialists, readers of good books or watchers of Glee, rugby fanatics or kwaito bedonnerd, nature lovers and city slickers.

However, I would contend that there is a fundamental difference between the two positions. Given the fact that South Africa is a country still haunted by the economic and social effects of racial discrimination and apartheid, given that whiteness as an ideology is deeply implicated in the continued marginalisation and oppression of black South Africans and given, further, that the white minority in general and “Afrikaners” in particular benefitted enormously as a group from apartheid, it is both ethically and practically unconscionable for whites in general and “Afrikaners” in particular to define themselves as a victimised and threatened minority in order to try and retain some of the special privileges they acquired during apartheid.

On the other hand, the effects of past and ongoing racism and discrimination against black South Africans can only begin to be addressed if well-designed and targeted race-based corrective measures are enthusiastically pursued. While some of us who agree with Adriaan Basson will therefore support race-based corrective measures, we do so not because we are ideologically or emotionally wedded to the identity categories that the “Afrikaner” group seem to valorise (in other words, we are not wedded to the idea that race or ethnicity is the defining characteristic that determines our moral worth), but rather because we believe that for the moment the deployment of race is required to right the wrongs of the past.

Our end goal might be to move away from a society in which there are seemingly permanent and monolithic racial or ethnic minorities and majorities, but we understand that this goal will not be achieved if the fundamentally unjust and skewed racialised division of economic and social opportunities available to people of different races in our country are not addressed.

Like Adriaan,  I also see myself as a South African who happens to be white and Afrikaans-speaking, one who refuses to trade on his semi-racialised ethnic identity to gain special protection or retain for myself or my group special privileges. I proudly speak Afrikaans, I read Afrikaans novels and listen to Afrikaans music, I have attended the Klein Karoo Nasionale Kunstefees (and as long as I stayed away from the Huisgenoot tent – o jirre, that place is scary! - and the more macho drinking establishments, I had a great time there), but I feel I have less in common with Kallie Kriel than with Jay Naidoo, Jacob Dlamini, Dikgang Moseneke or S’busiso Zikode, the President of the  Abahlali baseMjondolo.

I do not wish to be part of an ethnic minority, some of whose members seem to be overwhelmed by a permanent sense of victimhood and grievance because of their loss of political power and influence in South Africa. Rather, my humanity is defined by how I interact with other South Africans of all races, genders, sexual orientation and classes and how I respond to the vast injustices I see around me — much of it caused by the lingering effects of a system put in place and maintained by people who proudly and chauvinistically called themselves “Afrikaners”.

What is going on in Swaziland?

Oct 10th, 2011
by Pierre De Vos.
18 comments

South Africa recently granted a R2.5 billion bailout to the government of Swaziland’s King Mswati III to stave-off a financial meltdown in that country. However, news reports suggest that the king and his government (headed by Prime Minister Sibusiso Barnabas Dlamini) has now cooled to the idea and left the Memorandum of Understanding (MOU) associated with the loan unsigned and the loan in limbo.

The first tranche of the three-tranche loan was scheduled to be released in August 2011, but among the loan conditions were “confidence-building measures” on democracy, human rights and fiscal reform, as well as the “overhaul of its budgetary systems”. Although these conditions were criticised by the COSATU for being too vague and dismissed by pro-democracy activists in Swaziland as a “betrayal” of the Swazi people, the Swazi government nevertheless balked at the idea of actually having to become slightly less autocratic in return for receiving the handout from South Africa.

As far as we know, the South African government has therefore not yet transferred any money to Swaziland and is unlikely to do so in the near future.

And no wonder, because even the South African government — not a government who has had too many scruples about supporting tyrants and turning a blind eye to the oppression taking place in countries perceived to be “friendly” to South Africa —  might have been slightly embarrassed by recent events in Swaziland.

Given the fact that unlike China (whom our government desperately wants to be exploited by and hence whose instructions we seem to slavishly obey no matter how embarrassing and unprincipled this might be), Swaziland is a small country with an annual budget only slightly bigger than the annual budget of the National Youth Development Agency, even the South African government might think it cannot afford to be seen to support the total subversion of the rule of law in Swaziland. Unfortunately our government has not made a statement regarding the status of the loan in the light of the seemingly unlawful dismissal of a Swaziland High Court judge.

This weekend Praveen Sham and Nano Matlala issued a statement on behalf of the  Law Society of South Africa (LSSA) adding its voice to the utmost alarm expressed by the SADC Lawyers Association (SADCLA), the Law Society of Swaziland and other civil society organisations at the clear contempt for the rule of law and the debasement of Swaziland’s judicial system, signalled by King Mswati III’s removal of High Court Judge Thomas Masuku from office last week.

Last month, the LSSA joined other legal organisations calling on the Judicial Service Commission of Swaziland to hear the charges brought against Judge Masuku by Swaziland’s Chief Justice Michael Ramodibedi in public, which was not done. It was widely believed that the charges brought against Judge Masuku were vague, unsubstantiated and spurious. The charges included a claim that Justice Masuku had insulted the King in one of his rulings and that he had an illicit affair with a female judge.

Justice Masuku has been harassed and suspended in the past for challenging unlawful royal decrees. His rulings have helped protect human rights and his resistance to government pressure on the judiciary has been crucial to maintaining its independence.

As pointed out by the organisations observing the hearing, the disciplinary hearing itself was not conducted in compliance with fundamental principles of justice and fairness. The Chief Justice refused to recuse himself, notwithstanding the fact that he acted both as accuser and judge; the application for the hearing to be held in public was denied and the opportunity to cross-examine deponents to the affidavits attesting to Judge Masuku’s alleged misconduct was also refused. No reasons were provided for these decisions.

In response to these events, Swaziland’s lawyers recently took the unprecedented step of marching through the streets of Mbabane to highlight their frustration at the JSC’s unwillingness to receive their complaint against Chief Justice Ramodibedi. The march follows an instruction by the Chief Justice to the magistrates’ courts to proceed with criminal cases despite the lawyers’ current boycott of the courts which has resulted in the convictions of unrepresented accused.

The Law Society of Swaziland has complained about several directives issued by the Chief Justice. The most controversial one determines that no summons may be issued against the King’s office. This leaves several parties, including those who have engaged in commercial transactions with the King’s office, without remedy.

The Swazi Minister of Justice and Constitutional Development, David Matse, has been suspended, apparently because he refused to sign the dismissal letter of Judge Masuku.

South African newspapers have not given much attention to the events in Swaziland, perhaps because white farm owners are not involved in this fundamental attack on the rule of law in a neighbouring country. If this had happened in Zimbabwe it would have been splashed on the front pages of most newspapers. With the exception of the Mail & Guardian, I have not read anything in our media about the dismissal of the judge in Swaziland.

The Law Society should be commended for issuing a statement and for trying to draw attention to these events in a country who in theory is still in line to receive a huge loan from the South African government. It would be helpful if various Bar Councils add their voices to that of the Law Society to demonstrate that they, too, support the rule of law in neighbouring countries.

Our government should also state unequivocally that no loan will be granted to the autocrats in Mbabane unless judge Masuku is reinstated and unless Swaziland demonstrates a clear commitment to democratise.

A problematic limitation on the right to freedom of assembly

Oct 6th, 2011
by Pierre De Vos.
151 comments

One of the most effective ways in which South Africans – through organisations like the UDF and Cosatu – could mobilise support for the anti-apartheid struggle in South Africa and could demonstrate its resistance to the continued existence of an illegitimate state was through protest marches and demonstrations. No wonder that the apartheid state tightly regulated such marches and often banned them outright. During the various States of Emergency in the nineteen eighties “illegal” protest marches were often broken up violently by the police who used teargas, rubber bullets, water cannons and live ammunition to stop citizens from protesting against the National Party regime.

In order to “normalise” political activity in South Africa in preparation for the first democratic election, the apartheid Parliament adopted the Regulation of Gatherings Act 205 of 1993. This Act for the first time affirmed that citizens had a right to take part in demonstrations and protest marches and provided for an elaborate procedure — requiring negotiations between the authorities and the organisers of a march or a demonstration — to ensure that such demonstration and marches were conducted in an orderly fashion to ensure that these marches and demonstrations caused the least disruption to other members of the public.

The right “peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions” was also enshrined in section 17 of South Africa’s 1996 Constitution. This right is pivotal for the proper functioning of a democracy. If political organisations, civil society groups and members of the public are not free to demonstrate and to take part in protest marches, the participatory aspect of our democracy would be fatally weakened. We vote every five years, but we get to participate in our democracy in the five years in-between elections, amongst others, by taking part in demonstrations and protest marches.

It is against this background that a recent judgment of the Supreme Court of Appeal in the cash of The South African Transport and Allied Workers Union v Garvers and Others must be evaluated. The case dealt, amongst others, with the question of whether a Union under whose auspices a gathering or demonstration was held and then degenerated into a riot causing damage to others could be held liable in terms of the Gatherings Act.

The respondents in this cased sued the South African Transport and Allied Workers Union for damages in terms of section 11(1) of the Act because of damages which resulted from a Union march held in 2006. The march in the Cape Town City Bowl arose out of a protracted strike in the security sector by members of the Union. As the march proceeded, in the Union’s own words, it “descended into chaos”, with admitted extensive damage caused to vehicles and shops along the route.

Section 11(1) of the Act states that “[i]f any riot damage occurs as a result of a gathering, every organisation on behalf of or under the auspices of which that gathering was held, or, if not so held, the convener; a demonstration, every person participating in such demonstration, shall, subject to subsection (2), be jointly and severally liable for that riot damage which occurred”. Riot damage is defined as “any loss suffered as a result of any injury to or the death of any person, or any damage to or destruction of any property, caused directly or indirectly by, and immediately before, during or after, the holding of a gathering”.

The potentially broad scope of this section is somewhat limited by section 11(2) of the Act which sets out three factors that a defendant to such an action has to prove in order to escape liability for the damage caused by the marchers. Section 11(2) reads as follows:

It shall be a defence to a claim against a person or organisation contemplated in subsection (1) if such a person or organisation proves (a) that he or it did not permit or connive at the act or omission which caused the damage in question; and (b) that the act or omission in question did not fall within the scope of the objectives of the gathering or demonstration in question and was not reasonably foreseeable; and (c) that he or it took all reasonable steps within his or its power to prevent the act or omission in question: Provided that proof that he or it forbade an act of the kind in question shall not by itself be regarded as sufficient proof that he or it took all reasonable steps to prevent the act in question.

In defending the action, the Union (in addition to denying liability in general terms) also contended that s 11(2)(b), particularly the part highlighted above, places too great a burden on trade unions and other organisations and individuals who intended to assemble to protest publicly. It was submitted that it has a chilling effect on the rights set out in s 17 of the Constitution.

In other words, the Union argued that faced with the onerous task of proving what is required by s 11(2)(b), unions, other organisations and individuals would be deterred from organising marches, protests and other gatherings for fear of financial ruin. Section 11(2)(b) was unconstitutional in that it offended against the right entrenched in s 17 of the Constitution. Because the onus was placed on the organisers of the march to prove all three requirements set out in section 11(2) and because this would be difficult to do, the section would — if regularly invoked — prevent organisations from holding legitimate protest marches and demonstrations for fear of facing financial ruin.

The SCA, in a judgment written by Navsa JA, rejected these arguments. The Court argued that this section did not differ much from the common law position. In terms of our common law, liability ensues if a reasonable person or institution would foresee the reasonable possibility that the conduct would injure another in his person or property; would take reasonable steps  to guard against such an occurrence; and the defendant failed to take such steps. Despite the fact that section 11(2) states that an organisation would need to prove the existence of all three factors mentioned, Navsa JA stated:

Apart from being couched in the negative, because it relates to the setting up of a defence, I have some difficulty in understanding why the provisions of s 11(2)… differ radically or even significantly from the common law requirements for liability for negligence. It was submitted that the conjunctive nature of the provisions of s 11(2) (b)  relating to a defendant was especially pernicious, because at common law all a defendant needed to show to escape liability, when sued in a delictual action based on negligence, was that a reasonable person in his or her position would not have foreseen the reasonable possibility of his or her conduct injuring another in their person or property, causing damage to be sustained. The absence of that factor alone would usually mean that a defendant would escape liability.  Even though the conjunctive nature of the defence set out in s 11(2)(b) of the Act, on the face of it, seems burdensome one can only take reasonable steps in respect of conduct that is reasonably foreseeable. It does appear that unless the act complained of ─ leading to the riot ─ was reasonably foreseeable, a defendant would probably in all of the instances set out above escape liability. One can only take steps to guard against an occurrence if one can foresee it.

I am not sure this is a plausible argument. What happens in a case where the riot was not reasonably foreseeable but the Union was unable to prove that it connived in the (not reasonably foreseen) act or omission which followed and which caused injury or damage to property? What happens if the riot was not reasonably foreseeable but the Union was unable to prove that when it occurred it took all reasonable steps to stop it? For example, where a Union organises a march and reasonably believes that the march would be peaceful and this belief turns out to be wrong, it would still have to prove that during the march it did everything it could to prevent the march from turning into a riot and did not — trough omission — “allow” the riot to ensue.

It seems to me this would indeed be very difficult to prove as one would have to prove that one has done certain things and that one has not done other things.

There may be good policy reasons to place such a heavy burden on the organisers of a march and such policy reasons may come into play when deciding whether the limitation of the right to assembly has been justifiable in terms of the limitation clause. But to find, as the SCA did, that this section places no limit on section 17 at all does not seem plausible to me. At the very least, a plausible judgment would have had to find that section 11 of the Gatherings Act places a limitation on the right to assemble peacefully but that this limitation was justifiable in terms of the limitation clause.

The SCA pointed out that section 17 only protects peaceful and unarmed marches. However, the impugned section deals exactly with situation where a peaceful and unarmed march turns nasty. Would an organisation not think twice before organising what it believes will be a peaceful march because of a fear that it would be held liable for damages that might occur because a peaceful march turns ugly? Would this not have a “chilling effect” on the right guaranteed in section 17? This is exactly what the Union argued in this case, but the argument was dismissed by the SCA:

The chilling effect of s 11(2)(b)described on behalf of the Union is not only unsubstantiated but is contradicted by the police and the City of Cape Town, who presented unchallenged evidence that in their extensive experience the provisions of the Act have not deterred people from public assembly and protest. If anything, the regularity of public assembly and protest in the 15 years of the existence of the Act proves the contrary. The chilling effect that the provisions of the Act should rightly have is on unlawful behaviour that threatens the fabric of civilised society and which undermines the rule of law. In the past the majority of the population was subjected to the tyranny of the state. We cannot now be subjected to the tyranny of the mob.

I am not sure this is a plausible argument either as the provisions of section 11 of the Act have seldom if ever been invoked. If the provisions of section 11 are invoked regularly it may well have a chilling effect on the freedom of organisations to hold peaceful marches. In a different political climate in which Unions find themselves in opposition to the government of the day, this section may well be invokers by that government to harass and even destroy the union involved. On reflection, I am therefore not so sure that section 11(2) should have been found to be constitutionally valid at all.

I am not contending that it should not be possible to hold the organisers of marches liable for damage that occurs during a march. Clearly, organisers of marches should be held liable for irresponsible and reckless behaviour by march organisers that lead to injury or damage to property. This would be necessary to ensure that citizens are not subjected to “the tyranny of the mob”.

But by doing so by placing a reverse onus on march organisers to prove that it could not reasonably have foreseen the damage and that it had not taken all reasonable measures to prevent the damage, section 11 limits the rights of ordinary citizens in a sweeping manner. Surely the same goal may be achieved by using less restrictive means?

I would imagine that many South Africans tired of the lawless behaviour of some union members would applaud this judgment. But I am worried that this section might well be open to abuse by a government hell bent on repressing dissent.

If a strong social movement rises up in South Africa and mounts increasingly large protest marches against service delivery problems, corruption, police brutality and state repression, such a movement may be hamstrung or even destroyed by the state who could invoke this section against the movement who may genuinely have lost control of protestors at a march organised by it.

The movement will then have to come to court and prove that a riot was not reasonably foreseen, something that might be difficult to do if the police is known to be highly antagonistic towards the marchers or if it is foreseen that fanatic supporters of the ruling party was out to sabotage the march by provoking marchers. It might then be reasonably foreseen that marchers will be provoked by the police or by citizens to try and get them to riot, which would mean that march organisers will then be held liable for any damage caused.

This is not an easy issue, but I fear that the SCA has only considered the current political situation and its judgment may have been clouded by its impatience with the irresponsible behaviour of some union leaders. When one considers the constitutionality of a legal provision one has to look past the present towards the future and should ask whether — in different circumstances — the impugned provision would still be viewed as so harmless. In this case, I am far from sure that it would.

Revisiting “whiteness”

Sep 30th, 2011
by Pierre De Vos.
156 comments

Earlier this week I took part in a workshop at Wits University where the timely and brave article of Samantha Vice on white shame and political humility was discussed. This is an edited version of my remarks at the workshop. Regular readers of this Blog might note that I have modified my views on Vice’s piece slightly.

The arguments put forward by Samantha Vice regarding the position of white people and whiteness in South Africa, reminds me of the intervention in 1997 of conceptual artist Kendel Geers at a right wing celebrations at Fort Klapperkop outside Pretoria.

Geers had declared the event an “art happening” but an angry spokesperson for the right wing organisations denied this, stating that their celebration was definitely not art. To which Geers responded: “They cannot un-art themselves.”

I am sure this was not the intention of Samantha Vice’s intervention, but I fear that her intervention might well be read as constituting an attempt to deal with the racial hierarchy in South Africa as yearning to “un-white” herself and others; in other words, to do the impossible, namely to live well in this strange place despite our whiteness, despite being the continued beneficiaries of privilege.

The problem seems to me that Samantha might have misdiagnosed or only partly correctly diagnosed the ethical dilemma that we have to live with, that we will continue to have to live with and that no work on the self will allow us to escape from confronting day after day, hour after hour.

As I see it, because Samantha focuses on the self, on a project of remaking oneself with an awareness of the structural privilege one embodies because of one’s race and an awareness of the habits of white privilege that ineluctably forms part of who one is, because she asks how we — as white South Africans – can live (and perhaps can even dare to hope to live well) in what she calls this strange place, given the structural privilege that we enjoy, that we live every minute of every day because we are white, she misses or ignores the broader context in which each of us live here in South Africa. This South Africa, I contend, is a strange place but perhaps not only or exactly in the way envisaged by Samantha.

If we want to engage with the question of how we can live in this strange place, I contend, we need to look at South Africa not only and exclusively as a place haunted by racism, racial discrimination and by the (admittedly pervasive) problem of whiteness. Yes our lives and our selves are haunted by race — how can it not be, given our history — but it is also haunted by many other ethical concerns. These concerns may be affected by race but not exclusively so.

We live in a country where some people live and others die because some (because of their wealth) have access to the best medical care and others (because they are poor and rely on the erratic public health system) do not. We live in a world in which some children have access to the best schooling which provide them with the life chances and opportunities denied others whose schooling is dismal. We live in a world in which some gay men and lesbians live in fear of humiliation and are raped and killed because of their sexual orientation. We live in a world where some of us has never gone hungry while others often do not know where their next meal might come from and how they might feed their children.

In the light of these injustices — yes, all haunted by the ghosts of our racialised  past but not exclusively and uniquely  following the logic of race — one must ask whether this project of working on the self — of, in essence trying to work on oneself to become a better person, a person that feels appropriate shame for being white and being part of a system that has benefited one and continues to benefit one materially and also in non-material ways by bestowing on one a certain social status and power because of the colour of one’s skin — is not essentially (despite Samantha’s pointed protestations) an essentially narcissistic and slightly self-indulgent one?

Shame, guilt and agent regret seem like a rather hopelessly inadequate responses to the very real and serious larger ethical challenges faced by any middle class person in South Africa – even when the ethical call is more acutely and insistently addressed to white South Africans? Surely this project of turning inward and of working on the self is ethically deeply problematic? Our habits of white privilege, the social capital we embody because of our white skins, and the consequences this has for our fellow South Africans is just part of the larger picture. A more nuanced understanding of the problem of trying to live an ethical life in this strange place is required.

I worry that this turning inward, this essentially self-centred project will focus too much on the self, on the WHITE self, rather than focusing on the system that produced whiteness and the racial hierarchy that is continually being perpetuated by all of us. Can one really, by turning inward, escape from the very system that produces the racial hierarchy and can one really escape from being complicit in it’s perpetuation? By turning inwards and by focusing so obsessively on ones shame and ones whiteness, is one not affirming the racial hierarchy and the very structures that produce white privilege which one needs to undermine and subvert in order to begin to address the structures that produce “whiteness” and “blackness” and continues to do so in a hierarchical manner? This is not only a personal problem but also a structural problem. How does one address whiteness without perpetuating the racial hierarchy?

 Can one even begin to escape one’s whiteness? Gesturing at Geers, I would contend that one cannot “un-white” oneself.

Samantha Vice also advocates for white people at least a partial silence and a political humility which would prevent white people from engaging in the politics of the day. White people have power. When they speak, they speak with the authority and arrogance that inevitably flows from their whiteness. Hence, says Vice, it is morally risky to speak publicly in our society if one is a white person. I have three responses to that:

First, do we not have the duty to take this risk? Is it not a bit precious — showing perhaps inadvertently too much concern for ones own ethical purity and ones status as a not so bad person — by not wanting to take risks and not wanting to make mistakes?  Is this not a move to avoid exposing oneself to ridicule, hatred, criticism, accusations of racism and arrogance, of sexism and homophobia, which might well be levelled against some of us by others who, surely, we must be careful not wish to construct as utterly powerless victims of whiteness and of what white people do and say?

Surely, despite the structural inequalities and the effects of past and ongoing racism and racial discrimination in our country, it would be highly problematic to hold that white people should be silent because this will be somehow respectful of black people and the powerlessness they experience in the face of white privilege? I do not experience black South Africans as powerless or being in need of my silence and I worry that believing that would be fundamentally patronising and disempowering towards black South Africans.

If I make a mistake, if I talk and my words are seeped in whiteness or the arrogance that is associated with white structural privilege, I know that I will be told so in no uncertain terms by others — and rightly so. And is this not a better way to work on the self? By engaging with the world, with fellow South Africans, by doing so in a manner that is fully aware of ones privilege, by taking the risks, by getting it wrong and reflecting on why one got it wrong and trying again and by demonstrating in word and deed that one is not the font of all wisdom? Is this not how we even begin to embark on a journey of becoming full and equal citizens in this country? Will the silence, then, not be a whitely silence? Silence can appear like a cop out, like and avoidance of the burden of having to take decisions and taking risks, and for taking responsibility for one’s whiteness and for inevitably getting it wrong and taking responsibility for the effects of structural privilege and for doing something about it?

Second, is silence not — whether one intends it to be seen in that way or not — already an attempt  at achieving a kind of inappropriate moral purity, a moral purity that a white person cannot achieve but that our whiteness and the ideology of whiteness has ingrained in us as being our due, as the natural state of being a white person? By being silent, does one nor rather narcissistically hold oneself up as, once again, better. As someone who deserves special consideration because of this noble attempt at goodness?

Third, this silence says Vice should go hand in hand with private acts of justice. But injustice is not only or even primarily about personal relationships and the injustices that result from our inability to interact with others in a responsible and ethically appropriate way. It is about structural problems, about the way in which our capitalist, radicalised, world and our society is organised and the failure of all of us — including our politicians — to take the steps that would begin to dismantle these structures that produce and perpetuate inequality, poverty, marginalization and oppression.

In conclusion, I wonder if this project does not assume  or take for granted the impossibility of being anything else but the sum total of ones racial identity? Does it not reinforce the logic of the apartheid constructed racial hierarchy, assuming that one is only and always exclusively white or black and that this is the sum total of our world and it’s ethical and other problems? But I am also a neighbour called on to show hospitality to my neighbour — even when that neighbour is a foreigner and it is impossible to show real hospitality — a lover, a teacher, an HIV positive middle class man, an Afrikaner who opposes Afriforum, a gay man who might well develop a crush on Julius Malema (if only he lost a few kilograms).

If we ask how we can live in this strange place, then each of us must remember that we — like everybody else in our society — is more than just representatives of our race. We cannot escape the ethical consequences of living in a deeply racist and unjust society and we must take responsibility for this and live with this. A personal project that turns inwards cannot and will not change this.

On Heritage Day

Sep 23rd, 2011
by Pierre De Vos.
104 comments

For some strange reason or another Heritage Day (which we celebrate tomorrow) has turned into national braai day. Maybe it is because South Africans often do not remember the same past and find it difficult to imagine a shared heritage. Some sing that song while others dream of life in England (or, these days, Perth).

Maybe one day, when more white South Africans become capable of imagining the lives and histories of their fellow South Africans who happen not to be white, we will be able to begin to imagine a shared heritage. But this will only happen when more white South Africans realise that their assumption that the world they inhabit is the only legitimate world, that the world they take for granted is the norm to which others must adopt, and that their views and culture are normative and natural, are quite problematic.

In any case, I though the cartoon by Jeremy Nel in The New Age today was quite funny. Happy Heritage Day.

Mr Landers, a public interest defence is possible and widely accepted in democracies

Sep 20th, 2011
by Pierre De Vos.
113 comments

This morning as I was driving to work, I heard Mr Luwellyn Landers, a member of the ad hoc Parliamentary Committee tasked with debating and rewriting the Secrecy Bill, talk about the impossibility of including a public interest defence in the Secrecy Bill. A public interest defence would protect whistle-blowers and journalists from wrongful prosecution for exposing corruption and maladministration in the public interest — even when they leak or publish the content of classified documents and even if these documents were classified top secret to protect national security.

Mr Landers claimed that it had been impossible for the Committee to include a public interest defence in the Secrecy Bill as this would turn the Bill into a useless document that would lose all effectiveness. Such a move would also go against “international practice”, he claimed.

Because I was listening to the radio, I could not see whether Mr Landers’ nose was growing longer as he spoke.

Mr Landers must be unaware of (or must deliberately be misleading the public about) the fact that the Council of Europe Convention on Access to Official Documents contains a public interest override. Article 3 of that treaty allows member states to deny citizens access to documents where this is ”necessary in a democratic society” and where it is “proportionate to the aim of protecting”, inter alia, national security, defence and international relations; public safety; the prevention, investigation and prosecution of criminal activities; privacy and other legitimate private interests; and  the economic, monetary and exchange rate policies of the State.

However article 3(3) of this treaty states that:

Access to a document may be refused if the disclosure of the information contained in the official document would or would be likely to harm any of the interests mentioned [above], unless there is an overriding public interest in disclosure.

Moreover freedom of information organisations such as article 19 hold that a public interest override is ”crucial to the effective functioning of a freedom of information regime. It is simply not possible to envisage in advance all of the circumstances in which information should still be disclosed, even if this might harm a legitimate interest, and to address these through narrowly drafted exceptions or exceptions to exceptions.”

Thus that organisation has published the Principles on Freedom of Information Legislation which makes it clear that a public interest defence is pivotal for any legal regime dealing with the classification of information, stating that:

Even if it can be shown that disclosure of the information would cause substantial harm to a legitimate aim, the information should still be disclosed if the benefits of disclosure outweigh the harm. For example, certain information may be private in nature but at the same time expose high-level corruption within government. The harm to the legitimate aim must be weighed against the public interest in having the information made public. Where the latter is greater, the law should provide for disclosure of the information.

These Principles were endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression, in his report to the 2000 session of the United Nations Commission on Human Rights as well as the Organisation of American States (OAS) Special Rapporteur on Freedom of Expression in his 1999 Report to the Inter-American Commission on Human Rights. A claim that “international practice” holds otherwise can therefore at best be said to be factually incorrect.

Mr Landers must also be  unaware of (or must deliberately be misleading the public about) the fact that the Canadian law dealing with state secrecy includes just such a public interest defence. The Security of Information Act of 1985, which regulates the classification of state secrets in Canada and also criminalises the leaking of  documents and possession of documents classified as secret, contains a specific public interest defence in section 15 of that Act.

I thought it might be helpful to discuss this section of the Canadian Act to assist the ad hoc committee in its possible future deliberations on the Bill. Section 15(1) of the Canadian Act states that no person is guilty of an offence even where that person reveals “special operational information” if the person establishes that he or she acted in the public interest. “Special operational information” includes classified information about such serious state security issues as the identity of spies, plans of military operations, and information about the operation of intelligence services.

Section 15(2) states that a person acts in the public interest if

(a) the person acts for the purpose of disclosing an offence under an Act of Parliament that he or she reasonably believes has been, is being or is about to be committed by another person in the purported performance of that person’s duties and functions for, or on behalf of, the Government of Canada; and (b) the public interest in the disclosure outweighs the public interest in non-disclosure.

Subsection 15(4) of the Canadian Act contains a set of factors that a court must weigh up when deciding whether the public interest in the disclosure outweighs the public interest in non-disclosure. These factors include:

(a) whether the extent of the disclosure is no more than is reasonably necessary to disclose the alleged offence or prevent the commission or continuation of the alleged offence, as the case may be;
(b) the seriousness of the alleged offence;
(c) whether the person resorted to other reasonably accessible alternatives before making the disclosure and, in doing so, whether the person complied with any relevant guidelines, policies or laws that applied to the person;
(d) whether the person had reasonable grounds to believe that the disclosure would be in the public interest;
(e) the public interest intended to be served by the disclosure;
(f) the extent of the harm or risk of harm created by the disclosure; and
(g) the existence of exigent circumstances justifying the disclosure.

The section also provides for other safeguards that would prevent the disclosure of information that would harm the security of the state without having satisfied the public interest criteria. However, even then these safeguards do not apply if the communication or confirmation of the information was necessary to avoid grievous bodily harm or death.

Were the South African Constitutional Court to be asked to consider whether the drastic infringement on the right to freedom of expression and the right of access to information currently contained in the Secrecy Bill were justified in terms of the limitation clause of our Constitution, it would ask what was “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. It would then have to consider whether the absence of a public interest override defence is usually included in legislation of democratic countries. The Court will probably find that it is usually included, given the fact that the inclusion of such a defence is required for all countries in Europe, endorsed by officials of the United Nations and included in Canadian legislation.

Mr Landers may of course argue that South Africa is a special kind of democracy and that our government requires more stringent secrecy laws to protect it from exposure … I mean the disclosure of sensitive information — even if it is in the public interest to do so. He may argue that we should not be measured against other democracies but rather against only partly democratic or authoritarian countries where secrecy is the norm instead of the exception. But I suspect that such an argument would not be politically palatable. No wonder he is wrongly claiming that including a public interest defence in our Secrecy Bill would be impractical and would not be required by “international practice”.

Why the Secrecy Bill is probably (still) unconstitutional

Sep 19th, 2011
by Pierre De Vos.
24 comments

If newspaper reports (and the non-denial denial by an ANC spokesperson this morning) can be believed, the ANC caucus in Parliament might well refer the Secrecy Bill back to the ad hoc committee who had worked on it to iron out some of the serious problems that remain with the Bill. It must be said that the Bill now before Parliament is a much improved version of the shockingly draconian version first introduced (and laughingly certified as constitutionally compliant by the State Law Advisor) earlier this year.

Instead of an absurdly broad provision that would have allowed for the classification of documents for almost any purpose, the Bill now restricts valid classification of documents to cases where national security is threatened. National security is now defined far more narrowly than before and includes:

(a) the protection of the people of the Republic and the territorial integrity of the Republic against: the threat of use of force or the use of force;
(b) the following acts:
(i) Hostile acts of foreign intervention directed at undermining the constitutional order of the Republic;
(ii) terrorism or terrorist related activities;
(iii) espionage;
(iv) exposure of a state security matter with the intention of undermining the constitutional order of the Republic;
(v) exposure of economic, scientific or technological secrets vital to the Republic:
(vi) sabotage; and
(vii) serious violence directed at overthrowing the constitutional order of the Republic;
(c) acts directed at undermining the capacity of the Republic to respond to the use of, or the threat of the use of, force and carrying out of the Republic’s responsibilities to any foreign country and international organisations in relation to any of the matters referred to in this definition, whether directed from, or committed within, the Republic or not, but does not include lawful political activity, advocacy, protest or dissent.

If this Bill is passed and if documents are going to be classified in terms of the new Act in an honest way and in compliance with the provisions of the Act, it will not be possible to classify material merely with the aim of hiding corruption and maladministration or embarrasing details about policy cock-ups, nepotism or the wasteful and venal misuse of state funds for personal glory or enrichment.

But the assumption here is that everyone involved in classifying documents and reviewing such classifications will act like proverbial angels. This is not a plausible assumption to make. Section 3(2) of the Bill states that the provisions of the Bill regarding classification and reclassification only applies to security services, unless an organ of state (which will include any government department or ministry and any municipality) is given permission to classify documents. Currently any Minister can and does classify documents and there is little doubt that Ministers would not want to lose this power, which gives them the appearance of glamour, status and power. (I mean, how James Bond can you get: the glamour of letting slip over drinks that one has just classified a documents as secret or top secret would surely seduce all but the most upright and no-nonsense individual.)

Although the Natal Sharks Board or the University of Cape Town will probably not apply for an exemption in terms of section 3(2), all the important institutions (those who might want to use the provisions of the Act to hide important information from the public and could be trusted the least to apply the Act honestly) will probably apply for permission to use the Act to classify documents it thinks the public should not have access to. Big municipalities will want to classify documents that might reveal how many open toilets it had built or how much money it has spent on upgrading roads in the posh suburbs and Ministers would want to classify documents that reveal long stays at the Mount Nelson Hotel and exorbitant trips to go and visit drug dealing girlfriends in prisons in Switzerland.

Now, it must be conceded that section 19 of the Bill allows anyone to make a request for access to documents which have been wrongly classified. The head of an organ of state must then review the classification of the documents. Section 19(3) contains an excellent provision which states that the head of the organ of state concerned must declassify the classified documents and must grant the request for state information if that state information reveals evidence of ”a substantial contravention of, or failure to comply with the law; or an imminent and serious public safety or environmental risk; and the public interest in the disclosure of the state information clearly outweighs the harm that will arise from the disclosure”.

Where Ministers are honest, diligent and prepared only to act in the public interest and not only in the interest of themselves, the governing party or officials aligned to the governing party (and are equally prepared to act with no concern for their political futures), this clause will go a long way to safeguard against wrong and unlawful classification of documents which were classified only to hide wrongdoing or corruption (although it would not address cases where documents were wrongly classified to hide maladministration, wasteful spending, embarrassingly inept governance or shockingly self-important actions on the part of Ministers or officials).

But these provisions assume a rather remarkable and unrealistic degree of honesty and selflessness on the part of the heads of organs of state. Human nature being what it is, these safeguards will probably not do the trick to prevent unlawful classification of documents aimed at hiding nepotism and corruption. One would therefore have thought that the Bill would allow for a credible appeals process to an independent body to protect citizens from the understandably self-serving actions of Ministers. However, section 31 only allows anyone who believes a document had been wrongly classified to appeal to the relevant head of the organ of state (usually the Minister involved). Section 32 allows a person also to approach a relevant court once the appeals process has been exhausted.

But here is where things get tricky. How will such an appeal work in practice? If one claimed that a certain document exists, that the document has been wrongly or unlawfully classified and that one is challenging that classification, one would first have to approach the relevant Minister (in whose department the corruption, maladministration or wasteful expenditure revealed by the wrongly classified document occurred) and then one would have to approach a court. But one might well be told that such a document does not exist. If one argues that the document does indeed exist because one has seen it, one would be confessing to having committed a serious crime or that one is continuing to commit a serious crime – unless one has handed the document to the SAPS as required by section 15 of the Act as soon as one received it (without really taking notes about its content).

This is because section 36 to 38 of the Bill states that it would be a criminal offense unlawfully and intentionally to communicate, deliver or make available state information or to receive such information if it was classified (rightly or wrongly) as confidential, secret or top secret and if one knew or ought reasonably to have known that the documents were so classified. These sections prescribe prison sentences of between 3 and 25 years for leaking such documents or for receiving such leaked documents.

A whistle-blower would be either suicidal or exceedingly stupid to try and leak wrongly classified documents as that whistle-blower would face a prison sentence of up to 25 years – even in cases where the documents were wrongly classified in order to hide corruption, criminality or nepotism. And a journalist or member of – say – COSATU or the Public protector’s office – would equally be monumentally stupid to receive such information as he or she might face the same Kafkaesque situation in which he or she would risk a long prison sentence if it transpires that the document (whose classification he or she is challenging) is in fact in his or her possession.

The option would remain to immediately hand the leaked document to the police and then to challenge the classification in terms of section 19(3) or section 31 or 32 of the Act. Of course, it is not clear how the police would react when handed such a document. A journalist who hands in a document that is classified top secret will surely be asked where he or she got this document from and if the journalist then refuses to confess who the whistle-blower was, that journalist would face severe pressure to reveal his or her source. Would any whistle-blower take the risk of trusting a journalist by leaking documents – even wrongly classified ones – to that journalist if that whistle-blower could face a very long jail term indeed if it ever transpired what his or her identity is.

The chilling effect on a free press and on the right of access to information will be severe. The more trouble a government finds itself in the more likely it would be that it would try and misuse this Act to cover up maladministration and corruption. The end result would be that open, accountable and transparent government would be fatally undermined. Although the Bill as it stands is a vast improvment on the Bill which was first considered, it is not yet clearly compliant with the Constitution.

Because our Constitutional Court does not only look at the provisions of an Act in isolation when it considers the constitutionality of an Act, but also at the impact of those provisions on the impugned rights, the practical concerns (some of them raised above) will loom large in any constitutional challenge to this Bill. In doing so the Court will not assume the worst of our public representatives, but nor will it assume that these representatives will have super-human abilities to act selflessly and against their own personal ambitions and interests.

I suspect that applying such a test, the Court might well find that the Bill as it stands will have an unnecessary chilling effect on the right to freedom of expression and the right of access to information as the stated goals of the Bill could be achieved by employing potentially less restrictive means that would provide better safeguards against abuses of the classification system.

Why the Constitution is not a conservative document

Sep 7th, 2011
by Pierre De Vos.
55 comments

Prof Jane Duncan has taken issue with a post on this Blog in which I criticised the views expressed by Deputy Minister Ngoako Ramatlhodi regarding the perceived problems with our Constitution. Over at the SACSIS Blog Prof Duncan provides a relatively nuanced and interesting (but in my view misguided) analysis, in which she seems to argue that the Constitution is a major stumbling block standing in the way of addressing the major structural problems in our society which keeps poor people poor and rich people rich:

Ramatlhodi’s arguments are clearly self-serving, and reinforce a trend in the ANC’s behaviour to attack fundamental rights and freedoms. But aspects of his argument ring true, and the standard constitutionalist argument made by the likes of de Vos are inadequate to the task of responding to these criticisms. The contradictions of the type of transition that South Africa chose led to a constitution that is not nearly as transformative as they make like to think. In fact, in certain respects, the Constitution is a profoundly conservative document.

She correctly points out that the South African Constitution is a negotiated document that embodies compromise and that the Constitutional Assembly (who drafted the 1996 Constitution) was bound by 34 constitutional principles which were negotiated by an undemocratic and unelected body at CODESA. She claims that the manner in which the Constitution’s parameters were developed has limited the democratic form and content of South Africa’s constitutional order and notes that:

A clause was also inserted guaranteeing the right to property, where property may only be expropriated for a public purpose and in the public interest, and subject to compensation. So in a cruel twist of fate, the ANC government took on the responsibility of paying for the property that black people had been historically dispossessed of by the white minority. The consequences of this concession to the white minority are starkly apparent. Property relations have remained largely untransformed and land redistribution through the ‘willing buyer, willing seller’ mechanism has been largely a failure. The socio-economic rights regime in the Constitution is not geared towards changing these structural problems.

The arguments presented by Prof Duncan are, in my view, based on a misconception about the nature of the South African Constitution. As I see it, there are at least two problems with the argument presented by Prof Duncan. First, she seems to suggest that the Constitution is somehow at least partly to blame for the fact that the ANC government has not shown any appetite for revisiting the back room deals about the structure of the South African economy – deals reached between the ANC and white capital before the first democratic election in 1994. This ignores the fact that the ANC government has not effected radical change because the new political elite is benefiting just as much from this pre-1994 deal as those white capitalists who struck the deal with them.

Second, she fails to point to those provisions of the Constitution that supposedly give it the profoundly conservative character that she talks about. It is also not clear what aspects of the Constitution she is referring to when she argues that the document has limited the democratic form and content of the South African constitutional order. The only constitutional provision mentioned in the article is the property clause, which she seems to think requires the state to follow a willing buyer willing seller approach to land reform — something the property clause decidedly does not do.

It seems to me Prof Duncan is partly blaming the Constitution for the failures by the ANC government to address the fundamental structural inequalities in our economy — although, to be fair, she does admit that the ANC government should also carry some blame for these failures.

Of course, it must be conceded that the Constitution does contain a property clause which requires just and equitable compensation to be paid to anyone whose property is expropriated to address past land dispossession and to effect land reform. Just and equitable compensation does NOT, however, require the state to follow a willing buyer willing seller policy. That policy was a deliberate policy choice of the ANC government not demanded by the Constitution. Moreover, the Constitution states that the price to be paid must reflect an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including:

  •  the current use of the property;
  • the history of the acquisition and use of the property;
  • the market value of the property;
  • the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
  • the purpose of the expropriation.

A far more radical land reform programme which would allow for the expropriation of unproductive land and would specifically target land which formed the subject of forced removals over the last 50 years of apartheid, while taking into account the need for South Africa to maintain food security, would be admissible in terms of our Constitution. It is not the fault of the property clause that this has not happened.

Although the state is required to pay compensation for all expropriated land, this compensation does not have to equate to the market value of the property and can be far below the market value, depending on the other relevant factors. The fact is that the land reform programme has been a dismal failure so far because the government has stuck to the absurd willing buyer willing seller policy and because it has failed to put structures and mechanism in place to ensure that those who benefit from land redistribution are assisted either to work the land productively or to make sustainable use of the property in some other way.

One of the major arguments used by the left against a constitutional order in which the Constitution is supreme and in which a Bill of Rights is enshrined to protect the rights of everyone, is that it leaves untouched the private wealth and power of those whose actions often far more decisively affect the lives of the unemployed and the working poor. In such a system, so the argument goes, radical structural transformation of the social and economic system is impossible because private wealth and power is protected by the Bill of Rights, but private institutions and individuals who wield this enormous power has no obligation in terms of that Bill of Rights to respect the rights of the marginal, the vulnerable and the poor.

The South African Constitution is different, as it contains some radical provisions that acknowledge the fact that private power is a major stumbling block in transforming the economy and in creating a more egalitarian society. Thus, many of the provisions of the Bill of Rights also apply to private institutions (companies like De Beers; Old Mutual; Anglo-American; SA Breweries and those owned by Patrice Motsepe) and individuals, while section 39(2) imposes an obligation on the courts to develop the common law and customary law and to interpret legislation to bring it in line with the spirit purport and objects of the Bill of Rights. Often private law rules benefit the powerful by assuming that they are engaging with the less powerful in society on equal terms. Our Constitution commands the judiciary to develop private law rules to take account of this (something, admittedly, that many judges — also those appointed as so called “transformation judges” appointed by the ANC dominated JSC — are often reluctant to do).

And the spirit, purport and objects of the Bill of Rights are fundamentally democratic and transformative. It places a positive duty on the state to take steps that would “achieve equality” (making use of racially based redress measures in appropriate circumstances); that would provide more people progressively with better access to housing, health care, social services, water and electricity; and that would protect the environment. It also places a duty on the state to provide anyone with basic education and to do so in an equitable manner (as the right to education must be read in conjunction with the right to equality).

The fact that the government of the day decided to leave the schooling system largely untouched, retaining pockets of excellence in suburban schools, while not addressing (or only addressing around the margins) the poor schooling received by learners in many township schools, was a policy choice not mandated by the Constitution. In fact, an argument could be made that a proper legal challenge might well result in a finding that the present schooling system (a system which benefits the children of the old and new elites, including the children of Cabinet Ministers) and the way it is being funded is unconstitutional.

One of my students is doing fascinating research on the manner in which teachers are funded by the Department of Education and has concluded that the funding model used by the Department is deeply flawed. This is because it has had the effect of ensuring that better performing and better qualified teachers remain in the suburban schools where they teach the children of the old and new elite, all while a majority of South African children receive a substandard education from often badly trained and unmotivated teachers. The Constitution may well be invoked to challenge this system and it definitely will not stand in the way of a radical overhaul of the system — just as it will not stand in the way of the introduction of a National Health Insurance scheme.

It must be conceded that the Constitution may be faulted for adopting an electoral system that bestows far too much power on political party leaders and bureaucrats and far too little power on ordinary citizens, allowing for an often arrogant and technocratic approach to governance encapsulated by the discourse of “service delivery”. Given the racialised nature of support for political parties, the (now slightly fading) moral authority of the governing party, the centralising and sometimes almost Stalinist tendencies of some factions within the ruling party, and the dominance of a discourse which endorses the need for a strong and less than fully democratic state (purportedly to better effect social and economic change in South Africa), it is not clear, however, that another electoral system would have really led to the kind of grassroots democracy that many of us yearn for.

The Constitutional Court has not been unaware of these problems and have developed interesting legal avenues to try and enhance the democratic nature of the way we are governed. In social and economic rights cases the court has stated that for the government to act reasonably (and hence constitutionally) when it take steps to realise the social and economic rights contained in the Constitution, it has a constitutional duty meaningfully to engage with the affected communities — the so called beneficiaries of “Service delivery” and “development”. (This failure to consult with the community affected by an attempt at “development” was one of the reasons why the Cape High Court found that the City of Cape Town had acted unconstitutionally when it built open toilets for the residents of Makhaza.)

Of course, I am not arguing that the Constitution can or will be used in order to fully and decisively address the structural social and economic inequalities in our society. The state is supposed to do that — within the disciplining boundaries of the Constitution. The Constitution can be used by social movements and political activists as well as lawyers to prod the state along and to force the state to act in a less technocratic and heartless manner or to engage in a far more democratic manner with citizens when it does so. There are limits to what the law and our courts can be expected to achieve.

But to argue that the Constitution is deeply conservative and hence that even if the ANC government wanted to it would not have been able to implement radical policies to begin to address the social and economic inequalities in our society  because of constraints placed on it by the Constitution, seems to me to over egg the pudding just slightly.

A tale of two judges

Sep 5th, 2011
by Pierre De Vos.
150 comments

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to heaven, we were all going direct the other way — in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only. - Charles Dickens, A Tale of Two Cities

The revealing interview of Justice Mogoeng Mogoeng by the Judicial Service Commission (JSC) this weekend and the subsequent decision of that body to rubber stamp the decision of the President, reminded me of the famous quote from The Tale of Two Cities reproduced above. We saw the best of judges and the worst of judges sparring with each other. As Xolela Mangcu wrote about this tale of two judges:

Moseneke stood as a symbol of authority and Mogoeng as a beneficiary of power. The question is which, then, will be the real leader of the Constitutional Court: authority or power? By nominating Mogoeng, President Jacob Zuma may well have taken our judiciary down a path where power trumps authority.

We also saw some ordinary citizens, perhaps expecting so little from themselves and from our system of government or deciding to go along with the decision of the President so that they would not alienate the government from which they need to receive work in future, cheering on mediocrity and power for power’s sake. We saw other citizens, animated by a belief in the core values embodied by the Constitution and the belief that as South Africans we deserve the best, who were shocked by what they saw, perhaps unrealistically yearning for authority to trump brute power in our political and legal discourse.

We saw some JSC members prepared to walk in the light of reason and to deal with the painful facts and we saw other members skulking in the darkness of unreason and emotions, displaying a remarkable lack of appreciation for the robust nature of openness and accountability in a system that is worth calling a democracy. And as is often the case when reason clashes with unreason, facts did not stand in the way of those who had no rational arguments to make.

Thus, some commentators and JSC Commissioners have questioned the bona fides of those who have asked critical questions about the suitability of the “nominee” to become Chief Justice, claiming that such people were animated by a hatred of the President and never support any decisions of the President or, worse, claiming that such people confronted the facts because they were racists. This is, of course, a lie. When justice Sandile Ngcobo was “nominated” as Chief Justice, many of us (who have asked questions about the suitability of justice Mogoeng’s appointment) enthusiastically supported the nomination of Ngcobo. Although we might have believed that Deputy Chief Justice Dikgang Moseneke was a better person for the job, we did not say so, but sang the praises of the nominee because he was clearly a man of integrity, somebody with a towering intellect, somebody whose judgments have demonstrated that he is imbued with the values of the Constitution.

In the same manner we cheered on the appointment of Deputy Chief Justice Moseneke and of Chief Justice Pius Langa – even if we had our political differences with then President Thabo Mbeki who nominated these candidates (all of whom happened to be black).

I suspect that the interview over the weekend would have been interpreted completely differently by different people, depending on their political views, their knowledge of the law and legal processes, and their ability to get past shallow emotions to a place where facts and reason reside. For the first group, justice Mogoeng might well have emerged as something of a hero, somebody wrongly vilified by nasty people with an axe to grind. After all, the nominee did not come across as the ogre depicted by Zapiro, nor as a bumbling fool, and he passionately, aggressively and sometimes bitterly defended himself against the sharp criticism levelled against his judgements and his judicial philosophy and displayed a moral flexibility much admired in politicians.

I happen to find myself in the second group who was deeply troubled by what emerged at the JSC, based not on emotions but on the facts and an analysis of the issues at hand. In this sense the interview was more revealing than expected.

Justice Mogoeng justified some of his rape judgments and the seemingly patriarchal reasoning employed by him in those judgments by claiming that he was merely following the precedent set by the Supreme Court of Appeal (SCA) to which he was bound as a judge, what I would call “the SCA made me do it” defence. He thus justified his views that women abusers who are “provoked” by the victim deserve leniency, that rapists who know the victim should also be given some leeway, and that child rapists can legitimately be described as having been “tender” to the child he raped because the injuries sustained by the child were not as horrific as in other rape cases, by claiming that this approach is in line with the law. The problem is that these views are not in line with the law as it has developed after the end of apartheid.

These justifications were revealing because they suggested a lack of knowledge of the law and a lack of knowledge and/or lack of respect for the legislature who has spoken quite forcefully on this issue. Thus, in defence of his judgment in S v Moipolai (handed down in 2004, ten years after the advent of democracy) in which Mogoeng stated that it was “highly insensitive of the Appellant firstly, to punch an 8 months pregnant woman, secondly, to punch her so hard that he caused her to fall, and thirdly to punch her because her sense of decency and privacy did not allow her to share the same bed with the father of her children and another woman”, justice Mogoeng relied on a judgment of the SCA in S v N, handed down at the height of apartheid in 1988. In that judgment the Appellate Division (as it was then called), displayed the kind of patriarchal values that was rife amongst apartheid era judges by stating that it was permissible to take into account  as a mitigating factor in sentencing in a rape case that there was an intimate relationship between the rapist and the survivor.

Of course, since 1988 the legal landscape in South Africa was supposed to have changed dramatically. This is what some of us mean when we talk about the “transformative” nature of our legal and constitutional system. We adopted a new Constitution in which the rights of women are now protected. Parliament passed sections 51 and 53 of the Criminal Law Amendment Act 105 in 1997, providing for minimum sentences to be imposed on rapists unless compelling circumstances existed to deviate from this. This was done exactly to prevent judges with patriarchal views from imposing inappropriately lenient sentences on rapist based on criteria that says more about the sexist assumptions of the judge, than on the way in which the survivor might have experienced the rape.

In 2001 the SCA made it clear that knowing the rape survivor would NOT constitute such a compelling circumstance that would allow for a reduction in the minimum sentence. (One could add that ordinarily it should be an aggravating circumstance that the rapist knew the survivor — at least for anyone imbued with the values enshrined in the Constitution – because the effect of being violated in this way by somebody one knew would be devastating for the rape survivor.)

Mogoeng’s justification for his rape judgments is therefore surprising as it suggested that our Chief Justice designate was at the time when these judgments were handed down wholly ignorant of the new legislative environment and the constitutional values embodied by the legislation. It also suggested that the nominee might have been unaware that the SCA had developed our law in this regard to bring it in line with the Constitution and the relevant legislation. Whether ignorance of legal precedent and legislation should be a disqualification for appointment as Chief Justice, I will leave for every reader to decide for him or herself.

Mogoeng’s defence of his “dissent” in the Dey case was perhaps more bizarre and therefore more damaging to his image. Apart from the fact that his defence was less than plausible, it also contained in it a serious admission. Justice Mogoeng claimed that he was given little time to decide on whether he agrees with the other judges of the Constitutional Court that it would never per se constitute defamation to call somebody gay. He did not give reasons for “dissenting” from this view, Mogoeng claimed, because he had not really had time to apply his mind to the issue at hand.

This argument — if indeed true — appears more like an admission of a dereliction of duty on the part of the nominee than as an exculpation for not providing reasons. Surely when a judge sits on the Constitutional Court and indicates that he or she disagrees with the opinion of colleagues and if he or she is then asked to provide reasons for the disagreement but refuses to provide such reasons, one would assume that the judge did apply his mind to the matter but decided for strategic or other reasons not to provide reasons for the disagreement. Can one ever indicate disagreement with others without having applied one’s mind to an issue? To me it sounds a bit like claiming to be half pregnant — not something widely accepted as possible amongst doctors or people with any knowledge of the human body. How could one possibly indicate a disagreement without having thought about why one is disagreeing? To me, at least, this explanation makes no sense and does not ring true.

When one is a judge and is required to decide where one stands on all the important issues before the court, one is required to apply one’s mind to all the issues at hand and if one disagrees with the majority judgement on any issue one is required to provide reasons for this disagreement. A failure to apply one’s mind to the issues at hand would suggest that one has failed to live up to one’s judicial oath of office and, in effect, that one has refused to do one’s job properly.

I imagine that for many non-lawyers justice Mogoeng’s defence might ring true. After all, we have all been in situations where we have been pressed for time and have not given an issue as much thought as one would have liked to. As a member of a tea club one might well have failed to form an opinion on whether the dues of members should be increased or not. But the difference is of course that most of us are not judges and are not required by the Constitution to uphold the law, to apply our minds to the issues raised by a case before us and to provide reasons for our decision.

And what happens now? I have heard talk of civil society groups challenging the constitutionality of the process followed by the JSC on the grounds that the JSC had failed to engage in proper consultation with the President on this issue as required. It is argued that this is so because the JSC had decided that it was impermissible for it to consider whether other candidates may have been more suited for the position. How can there be a meaningful exchange of ideas if the one party exchanging ideas sees its role in such narrow terms, some have asked? This is a plausible, perhaps even strong, legal argument.

However, I am not sure it would be in the interest of the judiciary or the Constitutional Court for this matter to be litigated as it might further damage the credibility of our judiciary. Long drawn out litigation may well turn into a highly politicised and partisan matter, pitting staunch defenders of the President and the candidate against those who believe the JSC must act as a check on the exercise of power by the President when he appoints a Chief Justice.

While it would be good to get some clarity about the meaning of the constitutional provision requiring that the President must consult the JSC BEFORE appointing a Chief Justice, a legal challenge will probably ultimately not change anything as it will be based on procedure and not substance and will not necessarily lead to a different outcome — given the fact that the President does have the constitutional power to appoint a Chief Justice. Would it be possible to approach a court to give clarity on this legal point without asking for the decision of the JSC or the President to be set aside? I am not a procedural lawyer, so I am not sure how to answer this question.

In any event, President Zuma will now appoint Mogoeng Mogoeng as the new Chief Justice, despite the fact that the nominee has been tainted — to some degree, at least — by the process of his appointment. (Depending one one’s view, the nominee would have been tainted either by the “vicious attacks” against and “onslaught” on him by dark forces, or tainted by the close scrutiny of his judicial views and temperament.)

My fervent hope is that the new Chief Justice will be able to demonstrate through his words and deeds over the next ten years that those of us who asked critical questions about his appointment and about his values and commitment to the Constitution have been mistaken. Maybe the gruelling process may have allowed the nominee to reflect more seriously on his commitment to gender equality and the dignity of gay men and lesbians and might have brought a change of heart. Maybe he might have realised that he ought not to rely on his personal religious views — as far as they clash directly with the values enshrined in the Constitution – when he considers cases coming before his court. I, for one, will keep an open mind.

Why Ramatlhodi promotes an autokratic kleptocracy

Sep 1st, 2011
by Pierre De Vos.
156 comments

It is by now trite to note that in South Africa there are very serious, some would say obscene, disparities in wealth between rich and poor, made worse by the recent economic turmoil in the world. More than a million South Africans have lost their jobs over the past two years, joining the roughly 35% of the population that are unemployed or has long since stopped looking for work at all.

Many people continue to live in informal settlements (in shacks that are often flooded and are bitterly cold in winter) and many go to bed hungry. Many cannot afford the pay-as-you-go water and electricity services ostensibly provided to them by the state – if these services are provided to them at all – while many others receive substandard health care and are forced to send their children to dysfunctional schools where teachers are often not in class to teach and where children may well have no access to libraries, laboratories or sufficient computer facilities.

Of course, if one happens to be an ANC leader – inside or outside of government – or if one is one of the captains of industry (who became rich by exploiting black workers during the apartheid era and remain rich today by donating money to the ANC), one would probably not directly be affected by this reality. After all, one will be driving around in a car (who was paid for by tax money that could have fed a starving child) costing more than a million Rand (that is, when one is not renting a fancy car for hundreds of thousands of Rand a year), or one will be living in the Mount Nelson Hotel (if one is not living in a R8 million house provided by the state). Just yesterday it was reported that the state had forked out R183 million on brand new mansions to house cabinet ministers, money that could have been used to house around 2,000 poor families.

It is against this background that one should read the bizarrely immoral opinion article (penned by Ngoako Ramatlhodi, ANC NEC member, chairperson of the ANC National Elections Committee and Deputy Minister of Correctional Services) and published in The Times today.  Mr Ramatlhodi probably knows that the credibility of the ANC and the government it leads is being eroded by lavish and wasteful spending on the perks of party leaders and by the constant revelations of government corruption in our media and by the Public Protector. 

It is therefore not surprising that he is now using the South African Constitution and our indpendent constitutional institutions as scapegoats to try and divert attention from the failures of the government. Our government is failing to address the most basic needs of the poor while government and party leaders live lavish lifestyles at the expense of taxpayers and of the poor, whose lives could have been improved by the money wasted on extravagant perks and the millionaire lifestyles of ANC leaders.

According to Mr Ramatlhodi the Constitution is deeply flawed because while it bestows political power on the ANC (who by virtue of divine intervention will always represent the interests of all black South Africans even when its leaders steal from the very masses it claims to represent and when these leaders misuse funds – earmarked to address the social and economic inequality in our society - to satisfy their own venal and selfish needs), it also supposedly ”immigrates” substantial power away from the legislature and the executive and vests it in the judiciary, Chapter 9 institutions and civil society movements. He bemoans the fact that the ANC ”embraced what one calls the emptying of the state” and then continues:

Apartheid forces sought to and succeeded in retaining white domination under a black government. This they achieved by emptying the legislature and executive of real political power. On the other hand, the liberation movement was overwhelmed by a desire to create a society bereft of any form of discrimination and, as a result, made fatal concessions. We thus have a Constitution that reflects the great compromise, a compromise tilted heavily in favour of forces against change.

Thus the Constitution - interpreted and applied by the judiciary, and Chapter 9 bodies such as the Public Protector - as well as civil society groups fighting for real transformation of our society have been allowed to rob the ANC of its power to govern the country through the legislature and the executive, blocking the “fundamental change” required to turn South Africa into a true kleptocracy. (Ok, I paraphrase the honourable Deputy Minister’s words slightly, but pardon me for interpreting this opinion piece as arguing for more power for the ANC to act in the interest of its leaders without having to account to anyone for how it spends and wastes our money for the benefit of the few.)  

Mr Ramatlhodi is also upset that people challenge unlawful and unconstitutional actions of the government in our courts and that they dare to take part in democratic debates by expressing views with the aim of trying to influence public opinion for the better of society. God forbid that democracy should actually lead to a situation in which the majority of South Africans might disagree with something the governing party – with its divine right to rule - might have said or done. The ANC can surely not allow democracy actually to, well, work. What would become of the cars, the houses, the tenders, the champagne, the whiskey, the farms, the trips to visit drug-dealing girlfriends in Swiss jails?

The other tactic is to challenge as many policy positions as possible in the courts, where the forces against change still hold relative hegemony. The legislature itself has not escaped the encroaching tendency of the judiciary, with debatable decisions taken by majority views, in some instances. Decisions of the Judicial Services Commission have equally been systematically subjected to judicial reviews. The process of delegitimising the commission and its decisions has been initiated through the instrument of “public opinion”.

These views are not only uninformed and demonstrably wrong; they are also callous and dangerous. Blaming the Constitution, the courts and chapter 9 institutions for the failures of the government sufficiently to change the lives of ordinary citizens who suffered under apartheid is like a man blaming an umbrella for making him wet or a white South African blaming black citizens for apartheid. 

First, it is based on the assumption that the government of the day – who currently happens to be led by the ANC – should have a free hand to do what it likes because any check on the exercise of power of the legislature and the executive would turn these branches of government into ineffectual and impotent institution. This is of course nonsense, as the majority party in Parliament can pass any law it wishes – as long as it does not infringe on the rights of the very citizens who vote for it.

Second, it assumes that a majority party will always have the best interest of the country and its people at heart, that it will never act in a selfish or corrupt manner and that it must always be trusted to respect the rights of everyone and to act in a manner that will advance the interests of those who most rely on the state for their survival and well-being. This is a truly bizarre view as governments are formed by people – and not ordinary people but politicians whose job it is to amass power and to act in their own interest while pretending to serve the public - who are not superhuman and will not act like angels unless they are forced to. 

Lastly, this assumes that the ANC government actually always acts in the interests of the poor and the marginalised – even when it spends R183 million on new houses for a few cabinet Ministers, when cabinet Ministers stay at the Mount Nelson Hotel at taxpayers’ expense, when its officials enter dubious and probably corrupt leases with well-connected businessmen and waste billions of Rand in the process, money that could have been spent on really making a difference to the lives of those South Africans who are unemployed and depend on the state for its survival and well-being.

The view of the courts expressed in the Ramatlhodi piece is also either shockingly uninformed or deliberately misleading, which is, I guess, understandable as one needs to manufacture an enemy when one is losing the trust of the electorate because one is so obviously acting in a selfish and venal manner to line one’s own pockets to enable one to live a life of luxury at the expense of the poor. If Mr Ramatlhodi had read only a few judgments of the Constitutional Court, he would have known that our highest court – far more than the legislature and the executive – has been acting as a champion of transformation and of the interests of the poor.

If it was not for that court, the government would not have been forced to provide anti-retroviral drugs to poor, mostly black, pregnant women, thus saving the lives of hundreds of thousands of (mostly black) babies – all while people like Mr Ramatlhodi kept criminally silent. How many hundreds of thousands of babies died as a result of this communal silence, Mr Ramatlhodi? He would have known that thousands of people have been protected from unlawful eviction through the intervention of that court.

He would have known that the Constitutional Court has enthusiastically endorsed affirmative action and land reform and has taken the ANC government to task for not doing anything to scrap some of the most scandalous pieces of racist apartheid era legislation. One wonders whether this oversight might have been caused by the fact that leaders were too busy to benefit from tenders and to wine and dine their friends at taxpayer’s expense at the Mount Nelson Hotel or at their government provided mansions to actually care enough to table changes to the oppressive apartheid laws in our democratic Parliament. 

He would have known that the Constitutional Court declared invalid sections of the truly shockingly named KwaZulu-Natal Slums Act adopted by the ANC government in that province because that Act tried to punish the landless or homeless poor for being landless or homeless (which is understandable, I guess, because a person like Mr Ramatlhodi would probably not want to be reminded of the landless and the homeless when he is sipping champagne in his R8 million government provided house).

He would also have known – just to be fair – that sometimes the Constitutional Court has not been as progressive in its judgments as some of us would have liked but that this have almost always been when it has endorsed government policies or pieces of legislation that are anti-poor, anti-women or anti- the marginalised and the vulnerable. Thus it found that it was ok for the government to cut off the electricity of destitute people and for the government to have pay-as-you-go electricity meters installed in the homes of Joburg residents – even if this was only done in poor areas where black South Africans live and not in rich areas where the ANC leaders and white people live.

It also found constitutionally valid a law which basically left destitute a women who had looked after her partner for more than ten years because that law only required the estate of a deceased partner to support a women if she had been legally married to her partner. That the ANC of Mr Ramatlhodi would support such a law is probably not surprising, seeing that the ANC President has now nominated a man for Chief Justice who has made the following remarks in a case in which a man was found guilty of raping a innocent and defenceless child (in the case of S v Sebaeng (CA 16/2007) [2007] ZANWHC 25 (22 June 2007) about the “shortcomings” in the victim’s evidence:

She claims that the sexual intercourse was very painful but there was clearly nothing about her to suggest that she was in any pain when she arrived home and even during her stay there at her grandmother’s home … When she arrived at her grandmother’s home, the only strange things observed and spoken about by those who saw her were the Simba chips, the R30.00 and the 9 o’clock appointment with the Appellant….

One can safely assume that [the accused] must have been mindful of her tender age and thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and the R30.00.

So, while Mr Ramatlhodi believes we should entrust our legislature and executive with unlimited powers, I do not: not this government, not a DA government not ANY government anywhere in the world. Down that road lies tyranny and oppression of the worst kind. As the ANC government of which Mr Ramatlhodi is a member has demonstrated over and over again, even where the power of a government is limited and even where the Constitution exhorts it to address the needs of the poor and vulnerable, it often acts in the interests of its own members and not that of the broader public whose interests it claims to serve.

Whether the ANC is in power or anyone else is in power, we need the very institutions that Mr Ramatlhodi attacks. These institutions – created by our Constitution – protect us from the government of the day, no matter which party might serve in government.  This is true in South Africa as it is true in the United States, France, India or Nigeria. If  it was not for institutions like our courts – interpreting and enforcing the progressive provisions of our constitution – and of the Public Protector – exposing the scandalous corruption of Ministers and of government officials - how far away would we have been from Muammar Gaddafi’s Libya?

The “opinion” of Mr Ramatlhodi is no more than an argument in favour of an autocratic kleptocracy in which a few well-connected party leaders and businessmen would live an obscenely opulent life, while the rest of us wouldl try to survive in a world that would be nasty, brutish and probably far too short.  

← Earlier Posts Newer Posts →