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A 75% majority needed to amend powers of Constitutional Court?

Feb 17th, 2012
by Pierre De Vos.
66 comments

The statement by President Jacob Zuma about the need to “review” the powers of the Constitutional Court has elicited much comment. The Black Lawyers Association (BLA) has issued a welcome statement in which it argued – as I did earlier this week – that an amendment of the powers of the Constitutional Court would mean that we would be abolishing the current constitutional democracy “and remarry the parliamentary sovereignty”. On reflection, I suspect that I was wrong and that the powers of the Constitutional Court can be amended in such a way that we would not return to a system of parliamentary sovereignty, but which would return us to a system in which the supremacy of the Constitution as well as the Rule of Law is not upheld.

Let me explain.

The BLA correctly points out that such an amendment would be unlikely to hold water as it might require a 75% majority of members in the National Assembly to vote for it. The ANC at the moment has 65.9% of the seats in the National Assembly (3 seats short of a two-thirds majority)and the DA, Cope and the IFP (who would presumably all be opposed to such an amendment) holds 28.5% of the seats in the National Assembly. This means that the ANC will not be able to garner the necessary 75% majority to validly change this aspect of the Constitution.

This argument might, at first, seem strange as the powers of the Constitutional Court are contained in chapter 8 of the Constitution and the provisions in this chapter can be amended by a two thirds majority of members of the National Assembly (and six of the nine delegations in the National Council of Provinces). Section 165(5) states that “an order or decision issued by a court binds all persons to whom and organs of state to which it applies”, based on the assumption that an order or decision is made by the majority of judges sitting in a case.

Section 167 of the Constitution sets out the powers of the Constitutional Court, confirming that the Constitutional Court is the highest court in all constitutional matters; that it may decide only constitutional matters, and issues connected with decisions on constitutional matters; and that it makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.

Section 167(4) states that only the Constitutional Court may decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state; and may decide on the constitutionality of any parliamentary or provincial Bill referred to it by the President or Premier or Acts referred to it by 30% of the members of a legislature. That Court also has exclusive jurisdiction to decide on the constitutionality of any amendment to the Constitution; and to decide that Parliament or the President has failed to fulfil a constitutional obligation.

The pivotal section is probably section 167(5) of the Constitution, which states that:

The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court, or a court of similar status, before that order has any force.

How could these powers be amended? One possibility is that the Constitution could be amended to remove the power of the Constitutional Court (as well as other courts) to review acts of the President and/or other members of the executive. This would mean that the Constitutional Court would retain the power to declare invalid acts of various legislatures but that it would not be allowed to inquire into whether the President or perhaps other members of the executive have infringed the rights of anyone or have acted in breach of their constitutional or other legal duties.

This would not make Parliament supreme again, but two other very serious and deeply problematic consequences would inevitably flow from such a possible amendment.

First, the executive would become more powerful and we would move in the direction of creating an imperial Presidency (much like the imperial Presidency created by the 1983 tricameral Parliament under PW Botha). This is because, in controversial matters, the majority party in Parliament will try to circumvent judicial review by the courts by delegating more and more power to the President and/or his executive. Although our courts have argued that unlimited delegation of powers by the legislature to the executive is not allowed as it infringes on the separation of powers (hence the declaration of invalidity of the provision on which the President relied to try and extend the term of office of the former Chief Justice), the Parliament would obviously delegate as much power as it legally can to the President.

As the President is not democratically elected (but elected by the National Assembly, which in effect means at the moment that it is elected by just over 4000 delegates at the ANC elective conference), such a move has the possibility of eroding the democratic nature of our system of government.

Second, the President would no longer be subject to the Constitution and the law and would, in effect, be above the law. If the President failed to exercise his powers as dictated by the Constitution or other legislation (as he was found to have done in the Menzi Simelane case) or if he acts in a way that infringes on the rights of others, his actions would not be reviewable and the President would then potentially become a law unto himself.

This would result in an indirect amendment of section 1(c) of the Constitution, which states that our democracy is founded, inter alia, on the value of the supremacy of the constitution and the rule of law. There will no longer be a supreme Constitution and neither will there be full respect for the Rule of Law. Even if section 1(c) of the Constitution is not itself amended, such an amendment to section 167 would result in an effective scrapping of section 1(c). This would, I contend, require a 75% majority in the National Assembly.

If Parliament amended section 167 in this way but relied on a two-thirds majority in the National Assembly in terms of the section 74(3) process, the Constitutional Court would be able to review this amendment and would be able to declare it invalid on the ground that the amendment should have been passed in terms of the section 74(1) process which requires a 75% majority in the National Assembly.

What the Constitutional Court would almost certainly not be able to do is to review an amendment on grounds not related to the question of whether the correct procedure (as prescribed in section 74) was used when the Constitution was amended. Some commentators seem to have suggested that the Constitutional Court can declare invalid a constitutional amendment because it clashes with other provisions in the Constitution. This is not correct. In the floor crossing case the Constitutional Court made this clear when it found that:

Amendments passed in accordance with the requirements of section 74 of the Constitution become part of the Constitution. Once part of the Constitution, they cannot be challenged on the grounds of inconsistency with other provisions of the Constitution. The Constitution, as amended, must be read as a whole and its provisions must be interpreted in harmony with one another. It follows that there is little if any scope for challenging the constitutionality of amendments that are passed in accordance with the prescribed procedures and majorities.

The curious part of this statement is that the part where the Court stated that there is “little if any” scope for such a review. This phrase probably gestures at the obiter dictum (not binding opinion) by Justice Mahomed in the Premier, KwaZulu-Natal v President of the RSA judgment, in which he raised the possibility that amending the basic structure of the Constitution would itself not be permissible. In that case he stated that:

It may perhaps be that a purported amendment to the Constitution, following the formal procedures prescribed by the Constitution, but radically and fundamentally restructuring and re-organizing the fundamental premises of the Constitution, might not qualify as an “amendment” at all.

But this statement was made with reference to the Interim Constitution, which did not contain a super-entrenched founding values section similar to section 1 in the 1996 Constitution. I would think that our Constitutional Court would argue that an amendment of the provisions of section 167 which would remove some powers from the Constitutional Court would amend the “basic structure” of the Constitution, but that the essence of this “basic structure” is contained in section 1 of the Constitution and therefore requires a 75% majority in the National Assembly.

The consequence of this is that the ANC dominated Parliament will not be able validly to amend the Constitution to radically reduce the powers of the Constitutional Court. If it did, the Constitutional Court will declare that amendment invalid. What would happen after that is, of course, anyone’s guess.

On accountability, transparency and the “bribing” of journalists

Feb 9th, 2012
by Pierre De Vos.
120 comments

It is a rather inconvenient fact (inconvenient for some people, at least) that the notion of an open, transparent and accountable government runs like a golden thread throughout our Constitution. Rejecting the secretive and often lawless bureaucratic managarialism of the apartheid era, in which citizens were more often than not treated as disembodied entities to be ordered around, controlled and sometimes dispensed with (and not as human beings with an inherent human dignity), the Constitution – also in this regard – demands a fundamental break with our apartheid past.

Thus section 1 of the South African Constitution states that the Republic of South Africa is founded on the values, inter alia, of “[u]niversal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”.

These founding values are amplified in several sections of the Constitution to help create governance institutions that are truly open and transparent, that share information about their work, serve people, listen and respond to the concerns of voters, and do not shy away from scrutiny but invite it in order to improve the way in which they serve the public.

Thus section 55(2) of the Constitution states that the National Assembly must provide for mechanisms to ensure that all executive organs of state in the national sphere of government are accountable to it and to maintain oversight of the exercise of national executive authority, including the implementation of legislation; and any organ of state. Section 56 also states rather boldly that the National Assembly or any of its committees may summon any person (including any Minister or the President) to appear before it to give evidence on oath or affirmation, or to produce documents and may require any person or institution to report to it. When ministers claim that they have better things to do than account to Parliament or that information cannot be provided to Parliament for “national security” reasons, they are flouting the letter and the spirit of the Constitution.

Section 96(3) confirms this obligation to account by stating that ministers “are accountable individually to the President and to the National Assembly for the administration of their portfolios, and all members of the Cabinet are correspondingly accountable collectively for the performance of the functions of the national government and for its policies”. Section 195 of the Constitution extends these obligations to civil servants by stating that Public Administration must be accountable and that transparency must be fostered in the public service by providing the public with timely, accessible and accurate information.

To beef up this system of openness and accountability, section 32 of the Bill of Rights guarantees for everyone “the right of access to any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights”.

It is against this background that one should evaluate the legal wrangling between Independent Newspapers and the ANC regarding the so called “brown envelope scandal” report prepared by the now Deputy Minister of Justice. Recall that the scandal centres around the alleged attempts by former Premier Embrahim Rasool (now safely “deployed” as South Africa’s ambassador to the USA), to bribe journalists in order to get their co-operation in smearing his political enemies inside the ANC and to provide positive news coverage for his ANC-led administration in the Western Cape.

This saga should really give some ammunition to those ANC and SACP leaders who complain that members of the media, civil society groups and other powerful role players are not required to adhere to the same standards of openness and transparency and are not subject to the same forms of accountability as members of the government is. Who guards the guardians, they ask. But curiously, this scandal has not been mentioned at all when these kinds of arguments have been put forward.

(Of course, in extreme cases, the argument is put forward that the constitutionally imposed rules should not be applied to politicians at all because others are not held to the same rules. Like school children caught smoking behind the bicycle shed they say the equivalent of: “But the teachers also smoke.” As such an argument defies logic, I will leave it aside for the moment.)

Nevertheless, this saga does raise serious questions about the ways in which politicians or other powerful and rich individuals or groups could pervert the democratic process by bribing journalists, columnists or other opinion-makers.

Last week judge Bennie Griesel released an internal ANC report (after having a so called “judicial peep at it in terms of section 80 of the Promotion of Access to Information Act (PAIA)) along with a short judgment giving reasons for this. It is very surprising, to say the least, that Griesel J released the report, despite the fact that the ANC might have wanted to appeal his judgment.

It is true that section 82 of PAIA states that the court hearing an application for access to information may grant any order that is just and equitable including orders confirming, amending or setting aside the decision which is the subject of the application. However, section 80(2) of PAIA states that when taking a “judicial peek” a judge may not disclose to any person “including the parties to the proceedings concerned” the contents of the document he or she had a “judicial peek” at.

As I understand these provisions of PAIA, what should have happened is that the learned judge should have ordered the ANC to hand over the report to Independent Newspapers and the ANC would then have had the opportunity to decide whether it wished to appeal the decision or whether it would hand over the report as ordered.

In my opinion the judge committed a serious blunder and the ANC had every reason to complain – on legal grounds – about the premature release of the report. The problem is that the blunder cannot be corrected as the report now forms part of the judgment and can be read by anyone.

However, two further questions arise from this saga. First, the “interim report” noted that the facts uncovered by the investigators raised serious questions about possible impropriety which had to be investigated further. The investigators could not determine the exact nature of the relationship between the Premier and his government on the one hand and the journalists and the company they were involved in on the other hand.

These questions were apparently never further investigated, despite the recommendations of the investigators that it should. The question is: why not? Given the concern expressed by some ANC leaders about the alleged unaccountability of journalists and about the corruption of journalists by money or political interests, it is curious that the party never bothered to find out whether its own Premier had bribed at least two journalists.

Surely, if the ANC was truly concerned about the lack of openness and accountability of the media and if it was prepared to act on its principles, it would have completed this investigation and would have taken firm action against Rasool if it had found that he had indeed bribed some journalists and would have handed the matter over to the police for possible criminal prosecution of the journalists (and of Rasool).

Does this mean the purported concerns expressed about the unaccountability of journalists and civil society leaders only relate to a concern about journalists not reporting favourably on the ANC or concern about civil society leaders who expose ANC government corruption or maladministration? And why was the ANC so desperate to keep this report secret? Surely, if the party was really respectful of the rights of citizens to have access to information, it should have volunteered to make this report public? Somehow it never did and would, so it now says, have even spent even more money to appeal the Griesel judgment had the judge not blundered and made the report public. Why all this secrecy if the party had nothing to hide?

The second, far more complex, question is whether journalists are indeed sufficiently transparent and accountable. How do we know that journalists report honestly and fairly about issues and how do we know that they have not been corrupted by both public and private money and power? When a journalist or columnist say nice things about a political leader, is this because the journalist or columnist was given some shares in a company or given a bribe? If a reporter claims that a new model car is the best in its class, is this perhaps because the vehicle manufacturer has showered the journalists with freebies?

Clearly, journalists and columnists are not in exactly the same position as politicians. Politicians are elected, journalists and columnists are not. Politicians make decisions about how our money should be taxed and how the taxes should be spent, journalists and columnists do not. Politicians can ride the gravy train, journalists cannot. Some politicians have enormous power: they can give instructions to the police to shoot and kill people, they can order the invasion of Lesotho (and how did that one work out for you honourable Mangosutho Buthelezi?), they can legally instruct spies to spread lies about perceived enemies of the state. Journalists and columnists can do none of these things.

The argument that journalists, columnists and civil society leaders should therefore be held accountable in exactly the same way as politicians can therefore not be sustained. Claiming that they exercise more power than the President who can make life and death decisions about our future is, quite frankly, absurd and also obviously self-serving.

Yet, as the brown envelope saga demonstrates, journalists, columnists and civil society leaders do potentially wield considerable power, their words and deeds influence public perceptions and can influence how the electorate vote. And we know that they can all be corrupted. Should we really trust that the “market” will hold them accountable (yeah right!) or that internal ethics rules will ensure that they are never corrupted by those in the public and private sector with the most money and or power?

And if we do not trust them to regulate themselves, how do we ensure some transparency and accountability on the part of journalists, columnists and civil society leaders, without endorsing a system of political control by the very politicians from whom we all need serious protection?

Secrecy Bill less about media freedom, more about national security state

Jan 31st, 2012
by Pierre De Vos.
120 comments

Not enough South Africans understand that the Protection of State Information Bill (also popularly known as the Secrecy Bill) now being considered by the National Council of Provinces (NCOP) is not primarily aimed at muzzling the media. Although in its current form the Bill will have a chilling effect on the media and would probably stop many whistleblowers from leaking sensitive or embarrassing information to the media, the Bill is primarily aimed at shielding the various intelligence agencies and structures from too much scrutiny and at ensuring that the ordinary constitutional checks and balances that apply to other organs of state that exercise public power would not apply to the intelligence services.

Because we get most of our information about the Secrecy Bill from the media, it is not surprising that members of the media have focused on their own short-term interests and have argued (not entirely correctly) that the Bill was primarily aimed at muzzling the press and at hiding corruption. But this view fails to consider the broader context within which the Secrecy Bill is being discussed.

One must recall that this Bill originated with (and was drafted by) members of the intelligence services and is primarily aimed at creating a legal regime that would provide a veil of secrecy behind which our spies would be able to hide. As long as our intelligence services do what they are constitutionally mandated to do and do not abuse their powers, the Bill will, in my opinion, not have as dramatic an effect on the media landscape in South Africa as some commentators have argued.

(Of course, if the Minister of State Security misused this Bill and extended the power of classification to many of the more than 1000 organs of state — as he is empowered to do in terms of the current draft — the Bill may well be used to hide corruption and maladministration on a vast scale, but that was not the primary objective of the Bill.)

Section 199 of the Constitution contains several provisions that signal an understanding on the part of the drafters of the Constitution that security services could easily be misused by the government of the day. Thus it states that the security services must act, and must teach and require their members to act, in accordance with the constitution and the law; that national security must be pursued in compliance with the law, including international law; and that no member of any security service may obey a manifestly illegal order. The security services are obliged to respect constitutional rights and they are prohibited from prejudicing or furthering the interests of political parties.

Dr Laurie Nathan, who has written extensively on the South African Intelligence Services and was also a member of the Ministerial Review Commission on Intelligence (along with Joe Matthews, a former Deputy Minister of Safety and Security, who chaired the body, and Dr Frene Ginwala, the first Speaker of our democratic Parliament), has warned that:

There is ample historical evidence that politicians and intelligence officers can abuse these powers [of intelligence agencies] to infringe rights without good cause, interfere in politics and favour or prejudice a political party or leader, thereby subverting democracy. They can intimidate the government’s opponents, create a climate of fear and manipulate intelligence in order to influence state decision-making and public opinion. Given these dangers, democratic societies are confronted by the challenge of constructing rules and controls that prevent misconduct by the intelligence services without constraining the services to such an extent that they are unable to fulfil their duties. In short, the challenge is to ensure that the intelligence agencies pursue a legitimate mandate in a legitimate manner.

The Review Commission (which reviewed the National Intelligence Agency (NIA); the South African Secret Service (SASS); the National Intelligence Coordinating Committee (NICOC); the National Communications Centre (NCC); the Office for Interception Centres (OIC); and Electronic Communications Security (Pty) Ltd)) reported that the intelligence agencies in South Africa have not fully embraced the constitutional system with its requirements for openness, transparency and accountability and have not always adhered to the letter and spirit of the Constitution and the law.

Although South Africa’s intelligence legislation and governance arrangements have undergone dramatic transformation since the end of apartheid in 1994 and now compare favourably with those in established democracies, there seems to be a disconnect between what the law requires and what happens in practice.

For example the Review Commission found that  the Minister of Intelligence has issued secret regulations that are known only to the intelligence community. The intelligence legislation permits the Minister to do this despite the constitution’s clear statement that regulations must be accessible to the public. Similarly, the Constitution provides that the Auditor General’s reports must be submitted to the relevant legislature and must be made public. Nevertheless, the audit reports on the intelligence services are presented only to the parliamentary Joint Standing Committee on Intelligence (JSCI) and are classified.

As the Report points out (and as Dr Nathan has pointed out elsewhere), despite the fact that the Constitution states that national budgets and budgetary processes must promote transparency and accountability, the annual budgets of the intelligence services are secret; they are reviewed by the JSCI but are not presented to Parliament.

By executive decision the members of the intelligence services are excluded from the labour rights in the Bill of Rights, but this limitation of rights is not covered by legislation as required by the constitution. The Review Commission argued that these deviations from the Constitution are unsound and impermissible. This view was shared by the National Treasury with respect to the intelligence budgets; by the Auditor General with respect to the audit reports on the intelligence services; by the Inspector General and the State Law Adviser with respect to labour rights; and by the Inspector General with respect to the use of intrusive measures.

Most seriously, the Review Commission found that intelligence services regularly infringed on the right to privacy through intrusive methods that are unconstitutional. For example, it found that the NCC, which intercepts electronic signals such as cell phone conversations, is engaged in eavesdropping that is unconstitutional and unlawful. This is because the centre fails to comply with the requirements of the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002, which prohibits the interception of communication without judicial authorisation.

It is in this context that the Secrecy Bill must be evaluated. It may be that the Review Commission Report was acted upon decisively and that the culture of secrecy and lawlessness reported on in the Commissions finding have been addressed in a bold and decisive manner. But, given the fact that it is always difficult to change a culture of secrecy that is deeply entrenched, it will not be surprising if the serious problems with the Intelligence Services (which threaten the health of our constitutional democracy) have persisted or have even become worse.

Imagine what would happen if  the Intelligence Services tapped your phone (or the phone of any other person considered — rightly or wrongly — to be an “enemy of the state”), if they abducted you (or any other person considered — rightly or wrongly — to be an enemy of the state”) and “rendered you to Pakistan, the USA or Syria to be tortured and maybe killed. What would happen if these institutions with access to mountains of information and the technology and manpower to run disinformation campaigns and terrorise people, embarked on secret projects to destabilise civil society groups, social movements, labour movements or opposition parties who they perceive to be threatening the stability of the state?

If the state were then to be conflated with the government of the day, what will emerge is a national security state in which the normal laws of the country may not apply as strictly to the intelligence community, while its abuse of power and flouting of the law would be difficult if not impossible to expose without facing arrest and eventual imprisonment for between 2 and 25 years. The Secrecy Bill will then become a powerful weapon to protect this national security state and will protect its agents and the institutions who act in such illegal ways from exposure in the  media.

When Moloto Mothapo, from the Office of the ANC Chief Whip, wrote late last year that the Secrecy Bill was essentially a security Bill, not a media Bill, “aimed at protecting the national security of the Republic of South Africa”, this reassurance might have been more illusory than most people might have realised.

It is in this context that claims of the security establishment that the Bill is firmly in line with best international practice must be interrogated. During a National Assembly debate on the Bill late last year, State Security Minister Siyabonga Cwele said: “We have looked at international best practices and there is no country which practises such reckless practice.” He said that even Britain’s Official Secrets Act did not include a public interest defence.

Putting aside the fact that — unlike Britain – South Africa has a written Constitution that contains a set of fundamental human rights which can be enforced by our courts, these claims are not as plausible as one might at first believe them to be. For example, those who claim the Bill contains international best practice, might either be unfamiliar with (or might deliberately be misleading the public about) the fact that in 1995 a group of experts in international law, national security, and human rights, the International Centre Against Censorship, in collaboration with the Centre for Applied Legal Studies of the University of the Witwatersrand, adopted the Johannesburg Principles on National Security, Freedom of Expression and Access to Information in Johannesburg and that the Bill in no way measure up to these principles.

The Principles have been endorsed by Mr. Abid Hussain, the UN Special Rapporteur on Freedom of Opinion and Expression, in his reports to the 1996, 1998, 1999 and 2001 sessions of the United Nations Commission on Human Rights, and referred to by the Commission in their annual resolutions on freedom of expression every year since 1996.

Principle 15 state that:

No person may be punished on national security grounds for disclosure of information if (1) the disclosure does not actually harm and is not likely to harm a legitimate national security interest, or (2) the public interest in knowing the information outweighs the harm from disclosure.

This principle thus captures the so called public interest defence, something that our politicians say is foreign to international law. This claim clearly is not sustainable. This principle is further supported by a whistle blowers provision in principle 16 which states that “[n]o person may be subjected to any detriment on national security grounds for disclosing information that he or she learned by virtue of government service if the public interest in knowing the information outweighs the harm from disclosure”.

Furthermore, principle 18 states that the “[p]rotection of national security may not be used as a reason to compel a journalist to reveal a confidential source”.

If one reads the Johannesburg Principles and one evaluates the provisions of the Secrecy Bill against these principles then it is clear that the Secrecy Bill does not, as our Minister of Secrecy and other officials claim, comply with international best practice (best practice captured in the Johannesburg Principles).

Even if we had no worries about the possible abuse of the Intelligence Services (which would be naive, even in the most progressive state), the Secrecy Bill should therefore raise serious concerns about the power and influence of the security services and the corruption of the state by the various spy agencies whose job it is to obfuscate, lie and hide information (sometimes for a worthy cause and often for a nefarious cause).

But given the content of the Intelligence Review Report (a report authored by a credible expert and two people intimately connected with the ANC and the government it leads), the fact that our Minister of State Security is so adamant on passing a piece of legislation that almost certainly infringes on the right of access to information and the right of freedom of expression protected in the Constitution, must be truly worrying. And the worry stems less from the narrow concerns raised by the media and more from a broader concern about the securitisation of South Africa’s democracy and the potential devastating effect this may have on social movements and other grassroots democratic forces who might pose a challenge to the entrenched interests of a certain faction of the governing party who controls the state.

Siessa Patricia!

Jan 30th, 2012
by Pierre De Vos.
100 comments

When Mitt Romney, the Republican presidential candidate, was criticised for the manner in which he became very rich (by breaking up companies and firing workers), for paying less than 15% in taxes (while the average rate in the US for a low to medium income earner is around 30%), and for sheltering from paying taxes by keeping money in the Cayman Islands and in a Swiss Bank account, he repeatedly said that such criticism was aimed at dividing America.

Lemme tell ya something. America is a great nation, because we’re a united nation and those who are trying to divide the nation as you’re trying to do here and as the president is doing are hurting this country, seriously. The right course for America is not to divide America, and try and divide us between one and another, it’s for us to come together as a nation. And if you’ve got a better model, if you think China is better, or Russia is better, or Cuba’s better, or North Korea’s better, I’m glad to hear all about it. But you know what? America’s right, and you’re wrong!

This argument is often used by the rich, who complain that the so called 99% of the US population (who are not stinking rich) may be stoking “class warfare”. It serves as a handy mechanism for stopping anyone from questioning the inequality, the unearned privileges bestowed on the rich, and the obscene unfairness of the US economic and social system and helps to protect the status quo.

I was therefore surprised when Cape Town mayor, Patricia de Lille (who used to have more progressive principles before she joined the Democratic Alliance), used this same kind of language to attack people who were planning to highlight unfairness and economic inequality in Cape Town by “occupying” the Rondebosch common (a piece of untidy, windswept grass and bushes in the middle of the leafy middle-class suburbs of Cape Town).

Last week, in a speech delivered by the mayor in the city council chambers, De Lille called the leader of the protest (a guy with the wonderful name of Mario Wanza) and his supporters “agents of destruction” and then continued:

There are those who would sooner see this city destroyed, driven in two by violence and aggression, than be a part of a shared destiny. I tell this council now, those agents of division will not win. I think here in particular of Mario Wanza, a would-be but failed public servant, who claims to speak on behalf of the people of the Cape Flats. … [I would not allow] these agents of destruction to use their misguided, naive and brutal misunderstandings of the politics of race to divide this city. … I tell the people of Cape Town this: They will not succeed because we will not let them.

Given these fighting words (with De Lille seemingly channelling her inner PW Botha), it was perhaps not surprising that the police refused to give permission for the gathering and declared the gathering “illegal”. The police did so on what appears to be spurious grounds, arguing that organisers arrived “between 15 and 30 minutes late” for their meeting with police officials and that organisers insisted on having all nine elected representatives present in the meeting as opposed to four.

These reasons are, to say the least, completely spurious, suggesting that the police had a mandate to stop this gathering at any cost. In fact this kind of reasoning has a rather authoritarian ring to it and seems to be based on the assumption that taking part in a protest is not a right, but a privilege that can be bestowed and can also be taken away by a police officer if an organiser of a gathering does not behave “properly”. This used to be the legal situation in apartheid South Africa, but as we now live in a constitutional democracy it is no longer the case. Somebody should tell the police (and mayor De Lille)

The Regulation of Gatherings Act makes it very clear that the responsible police officer has a duty to negotiate with organisers of a gathering and to do so in a way that would help the organisers to conduct a peaceful protest march or gathering. Where a police officer fails to do everything in his or her power to ensure that a peaceful and orderly gathering can take place, that police officer is breaking the law and is also infringing on the constitutionally guaranteed rights of citizens.

Reading the various provisions of the Gatherings Act, it is impossible to see how the police could validly have declared this gathering illegal and how they could reasonably have believed that they had the right to do so. The relevant police officers either have difficulty with basic English comprehension or they deliberately decided to flout the provisions of the Regulation of Gatherings Act in order to get this gathering declared illegal (which happened to comply with the wishes of mayor De Lille).

One would have hoped that De Lille would have condemned this apparent abuse of power by the Police. After all, she is a leader of the DA, a political party who has often (rightly) expressed outrage when ANC-aligned government officials flout the law. The DA is also a party who has presented itself as a champion of the Rule of Law – even challenging the unlawful appointment of Menzi Simelane as National Director of Public Prosecutions in court. But alas, when the fears and short term interests of upper-middle class DA voters clash with respect for the law and adherence to democratic principles, one should not expect principle to hold sway. The mayor thus made statements which endorsed the dubious notion that this gathering was an “illegal” one.

The Regulation of Gatherings Act makes it clear that every person has the right to assemble with other persons and to express his or her views on any matter freely in public and to enjoy the protection of the State while doing so. As such, this Act gives expression to the right of everyone (guaranteed in section 17 of the Bill of Rights), peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.

This right is an important one for any democracy as it helps to even out the political playing field. Given the fact that access to money and a proximity to the powerful often give certain people or pressure groups disproportionate influence over the politicians and the political process, this right to protest can be viewed as a right that is of particular importance for the poor, the powerless and the dispossessed. How else will people living in poor and marginalised communities have their voices heard and their concerns listened to?

My guess is that the rather reactionary tone of De Lille’s statement and the heavy-handed and probably illegal actions of the police stem from the fear that a protest on the Rondebosch common would indeed provide a voice to the voiceless and would challenge the cosy elite pact between the politicians and the rich (the very rich whose donations keep the major political parties afloat).

Because the right to protest is fundamental to the proper functioning of a democracy, the Gatherings Act assumes that gatherings and protests will almost always be allowed and that technicalities will not be used to ban protests that would make the powers that be uncomfortable. Thus section 3(5)(c) of the Act even requires the relevant police officers to try and identify organisers of protests and gatherings and then engaging with those organisers – even if no notice was given of the protest or gathering by its organisers. Furthermore, section 4(1) places a legal duty on the responsible officer to engage with organisers of a gathering or protest to try and reach agreement about how the gathering or protest would be conducted.

Section 4(4)(b) of the Act also allows the responsible officer to impose certain conditions on the gathering or protest if there are reasonable grounds to do so in order to minimise traffic disruptions, to ensure continued access for others to their places of work and property, to prevent injury to any person and to prevent the destruction of property. When an officer imposes such conditions he or she is required by law to give written reasons for this.

Section 5 of the Act makes it clear that a gathering or protest may only be prohibited in extreme cases. This section states that:

When credible information on oath is brought to the attention of a responsible officer that there is a threat that a proposed gathering will result in serious disruption of vehicular or pedestrian traffic, injury to participants in the gathering or other persons, or extensive damage to property, and that the Police and the traffic officers in question will not be able to contain this threat, he shall forthwith meet or, if time does not allow it, consult with the convener and the authorized member, if possible, and any other person with whom, he believes, he should meet or consult, including the representatives of any police community consultative forum in order to consider the prohibition of the gathering.

Only after such a meeting would a responsible officer be able to prohibit a gathering, if he or she is convinced “on reasonable grounds” that no amendment to the conditions of the gathering would prevent serious disruptions or extensive damage to property.

Now, people who are familiar with Cape Town would know that no person could reasonably claim that a gathering on the Rondebosch common would seriously disrupt traffic or that it would pose a serious risk to people or that extensive damage to property would ensue. There are no buildings on the common and nobody lives or works on the common, so how the police could have decided that the gathering posed a serious risk to the safety of people or to damage of property is beyond me. In fact, I would go as far as saying that the police acted illegally (perhaps spurred on by the incendiary comments of the mayor?) by banning the gathering. The subsequent heavy handed actions against those who chose to gather on the common and the arrest of all those who took part was therefore in all likelihood illegal.

A liberal administration would never have made the kind of statements that De Lille made and would never have suggested that the protestors should be stopped. A liberal administration would have championed the right of protesters to gather and convey their message (even in a suburb where rich DA voters predominate) and would have done everything in its power to ensure that a peaceful protest with the least amount of disruption took place. But then again, the DA administration in Cape Town can probably only be said to be liberal in name.

PS: The headline is an ironic quotation of a headline which appeared in Die Son newspaper a few years ago when it reported on the fact that “singer” Patricia Lewis “acted” in a soft porn movie.

Time to stop paying traditional leaders?

Jan 24th, 2012
by Pierre De Vos.
83 comments

Zulu monarch King Goodwill Zwelithini earlier this week reportedly criticised people who engaged in same-sex relationships, labelling them “rotten”. “Traditionally, there were no people who engaged in same sex-relationships. There was nothing like that and if you do it, you must know that you are rotten. I don’t care how you feel about it. If you do it, you must know that it is wrong and you are rotten. Same sex is not acceptable,” he reportedly said.

(The Zulu Royal Household has since criticised what it called a “reckless translation” of Zwelithini’s speech – a “reckless translation” perhaps being one that exposes the “King” as being a bit slow and thus not very familiar with the history of his “subjects”. “At no stage did His Majesty condemn gay relations or same sex relations,” Prince Mbonisi Zulu said.)

I will leave aside for the moment the fact that anyone who is familiar with the academic literature would know that while the notion of “perverted homosexuality” as an identity was probably imported into Southern Africa by European missionaries, no credible historian will now deny the existence of certain kinds of same-sex intimate conduct over the past two centuries in Southern Africa – no matter how shocked the (white) missionaries might have been by this.

Besides, one cannot expect the “King” to read academic journals and popular articles on homosexuality merely because he wishes to express himself on this topic. He must be a busy man, what with having to spend the R883 161 salary he receives annually from the national government, and with having to ensure that the Zulu Royal Household budget of just more than R55-million for the 20011/12 year is spent wisely. (Apparently R34,2m is to be used over the next three years to renovate his palaces who must be in a desperate state of disrepair and this must also keep him busy.)

I would rather focus on a more interesting constitutional question, namely why on earth do we have officially recognised Kings and Queens and Chiefs in South Africa and why are we paying through our noses for their upkeep? After all, traditional leaders (including the Zulu King) are not democratically elected (they inherit their titles) and their exercise of power over between 15 to 20 million South Africans may appear utterly undemocratic. Secondly, traditional leaders are mostly men, which go against the principles of non-sexism that is entrenched in the founding values of our Constitution.

It must therefore come as a surprise that section 211(1) of the Constitution explicitly recognises the “institution, status and role of traditional leadership, according to customary law” – although this recognition is made subject to the other provisions in the Constitution.

Given the fact that most traditional leaders were co-opted by the apartheid state to help the state to control the rural population of South Africa and to administer apartheid policies, one might well have thought that ANC politicians and the supposedly “forward looking” business lobby represented at the time by the so called “reformed” National Party might have wanted to get rid of this undemocratic system of inherited and elitist leadership when they negotiated the 1996 Constitution.

Recall that during apartheid, labour bureaux regulated the supply of labour to the mines, commercial agriculture and industry. In rural villages the administration of the pass book and the running of the labour bureaux, where permits had to be annually renewed, were the responsibility of the chiefs, who charged a fee for this “privilege”.

The 1951 Bantu Authorities Act formed the lynchpin of this system of indirect control of the rural poor by the apartheid government via the system of traditional leaders. Power rested with a hierarchy of (mostly) compliant chiefs, who were made utterly dependent on the patronage of the Department of Native Affairs. Chiefs were no longer accountable to their subjects, but to the Department of Native Affairs. Their powers were increased while their legitimacy was being eroded.

However, this system of co-opted traditional leadership was put under severe strain with the abolition of the pass laws in 1986 as this meant that migrant labourers no longer had to present themselves at the Chiefs office in their home village. Chiefs lost their income from registration fees and, to some extent, their control over the movements of their “subjects”. Because “disobedient” villagers could no longer be punished by withholding labour permits and travel documents and as chiefs no longer had the opportunity to collect arrears from their migrant “subjects”, chiefs often reacted by imposing new taxes to make up for the lost revenue.

One way of increasing their income (and retaining some form of control over “subjects”) was for traditional leaders to seize control over communal land and strictly regulating the use of resources (like water, grazing and fire wood) on that land, thus forcing rural poor people to pay for the “privilege” of using these communal resources. Thus the system of communal living was completely subverted in favour of traditional leaders with none of the checks and balances on the power of chiefs which existed in pre-colonial times. Another way of retaining control over “subjects” was through the role played by traditional leaders in interpreting and enforcing customary law rules in traditional courts.

No wonder the ANC, who in exile seemed rather hostile towards the system of co-opted traditional leadership (including towards King Goodwill Zwelithini who at the time was in the pocket of a Bantustan leader called Magosuthu Buthelezi), changed its mind once back in South Africa. In order to defuse the violence between supporters of Buthelezi’s IFP and ANC supporters in KwaZulu-Natal and to gain support from voters living in traditional areas under the undemocratic yoke of traditional leaders, the ANC started wooing traditional leaders.

In this process, the masterstroke of the ANC was for the national government to take over control over the purse strings. Thus Parliament adopted the Remuneration of Public Office Bearers Act in 1998 which prevented Provinces (like the then IFP controlled KwaZulu-Natal) from paying traditional leaders over and above the payment made by the national government in terms of this Act. (This move – along with the buying off of King Goodwill himself – broke the stranglehold of the IFP over traditional leaders in KwaZulu-Natal and allowed for the current resurgence of the ANC in that province in the light of President Jacob Zuma’s election as President of the ANC.)

Meanwhile the Black Administration Act was finally abolished in 2005 and left a power vacuum as it robbed traditional leaders of some of their authority. This may be why the adoption of a Traditional Courts Bill (tabled for the first time in 2008) is reportedly on the legislative agenda for 2012. The draft Bill authorises a traditional court (led not by a judge or magistrate but by a traditional leader authorised to do so by the Minister) to hear and determine civil disputes arising out of customary law and custom brought before the court where the act or omission which gave rise to the civil dispute occurred within the area of jurisdiction of the traditional court in question.

Thus, instead of speeding up the integration of customary law into mainstream law (as one of the three pillars of our legal system), this Bill will have the effect of ensuring the continued marginalisation of customary law, practiced mostly in traditional courts and seldom in High Courts, where judgements are reported and infiltrate the legal consciousness.

Although the draft Bill requires the traditional courts to respect the provisions of the Bill of Rights, it is unclear whether such safeguards will be respected and to what extent “subjects”, especially women who may depend on the goodwill of the chief to gain access to water, grazing for cattle and housing, (or other unpopular individuals like gay men and lesbians) will be prepared to challenge a decision made in such a traditional court elsewhere.

There are going to be serious constitutional problems with this Bill despite the fact that section 211(2) of the Constitution allows a traditional authority to observe a system of customary law, subject to any applicable legislation and customs. This is because section 34 of the Constitution states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. This must be read with section 165(2) which states that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

Given that the Constitution subordinates traditional leadership functions and structures as well as customary law provisions and their application to other provisions in the Constitution – including the provisions of the Bill of Rights – I would guess that courts staffed by unelected hereditary chiefs will be found to be unconstitutional as they will not be independent and nor will they be likely to administer justice in an impartial manner – especially not to someone who happens to be a women or, god forbid, gay or lesbian.

They would lack independence because they would not enjoy the basic institutional guarantees required for a tribunal or court to be considered as independent. For starters, chiefs are paid by the government of the day and can also be removed as chiefs and they therefore do not have security of tenure. They would also potentially lack impartiality, as those chiefs who happen to be unwise, or are patriarchs or have been corrupted by money interests, might reasonably be perceived as being biased in one way or another.

Which brings us back to King Goodwill and his reported remarks about same-sex relationships: when we talk about transformation and the need to eradicate the vestiges of apartheid thinking, has the time not come for citizens to stop bankrolling the lavish lifestyles of Kings like Zwelithini (with his backward views) and the lifestyles of other unelected traditional leaders? Given the fact that traditional leadership has been totally transformed by the engagement with colonialism and was co-opted by the apartheid government and thus implicated in taking part in the enforcement of sometimes authoritarian controls over rural citizens, should people like King Goodwill not perhaps stop milking the taxpayer and start paying his own way like everyone else?

Why a ten year old agreement cannot authorise deployment of soldiers in our cities

Jan 19th, 2012
by Pierre De Vos.
52 comments

The South African National Defence Force, the Presidency and the DA Provincial government in the Western Cape do not seem to be bothered by the increased militarisation of South Africa, nor by the dangers posed by unleashing heavily armed soldiers not trained for that purpose on ordinary citizens. They apparently see nothing wrong with undermining the oversight and accountability functions of Parliament either — as long as they can project an image to voters that they are tough on criminals. Neither do they apparently see anything wrong with the routine deployment of soldiers, armed with semi-automatic guns, in residential areas.

What will happen when those soldiers open fire on citizens and ultimately kill scores of citizens (much like soldiers used to kill scores of citizens in the last ten years of apartheid in townships across South Africa)? Who will be blamed for such a massacre? Will soldiers be charged with murder and sentenced to jail for killing innocent civilians? Because mark my words, if the routine deployment of heavily armed soldiers to combat crime and intimidate protestors or ordinary citizens going about their business is not stopped, a massacre will occur at some point. It always does in a state where the government of the day conflates the role of the police with that of the military and routinely uses the military to assist the police with ordinary safety and security work inside the country.

In terms of section 205(3) of the Constitution the police service (NOT the military) is tasked with preventing, combating and investigating crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law. Because we are a constitutional democracy and not a military dictatorship, the military should only assist the police service in exceptional circumstances and, as I pointed out earlier this week, only in accordance with strict procedures.

Last week soldiers were involved in a law enforcement exercise in Johannesburg and reportedly assaulted a businessman by slapping him and throwing him to the ground. With a boot on his chest the soldier then allegedly questioned his nationality. (See picture below, taken by  Ihsaan Haffejee.) As a South African of Indian descent, they probably assumed he was an immigrant from Asia. Luckily they did not shoot or kill anyone with their heavy weapons while they were out there supposedly searching for counterfeit goods.

Curious onlookers to this operation in the bustling CBD of Johannesburg reportedly had stun grenades thrown at them when they gathered to see what was happening. Other onlookers got their faces full of pepper-spray. The Star newspaper reported that one man had his camera confiscated by soldiers after he took pictures of one of them beating a man with the butt of his assault rifle. Do we really want to live in a state where heavily armed soldiers get involved in the assault and intimidation of fellow citizens?

Responding to queries about the legality of the involvement of heavily armed soldiers (allegedly aimed at searching for counterfeit goods, but in reality aimed at intimidating ordinary citizens to prevent them from engaging in political protests), General Ndivhuwo Mabaya stated that the police and the SANDF have a cooperation agreement which covers all their joint operations, that this was approved in 2001 “or so”, and that this blanket agreement allows the deployment of soldiers to assist the Police whenever and wherever.

“The President is not a person,” he said, but “an office”, (albeit an office with several wives, a blue light brigade and a mean singing and dancing routine) “so the agreement and authorisation of cooperation of the two institution signed in 2001 or 2002 is still valid”. He conceded that the President needed to sign an order to deploy soldiers, but argued that the 2001 agreement covers all eventualities. Helen Zille must agree with this argument because her government has requested the deployment of soldiers in several hotspots around Cape Town (in places where poor black people live or which they frequent, of course — I have never seen heavily armed soldiers in Bishopscourt or Bantry Bay).

This is dead wrong — and dangerous to boot. Here is why.

It is a well-established principle of South African constitutional interpretation, that the provisions of the Constitution have to be read together, as the various provisions may relate to one another and often “talk” to each other and has meaning only in relation to other provisions in the Constitution. One cannot determine the purpose of a sub-clause of the Constitution if one does not read that sub-clause in conjunction with surrounding sub-clauses and other related clauses. And as any constitutional lawyer will tell you, constitutional interpretation relies heavily on a “purposive” interpretation of the provisions of the Constitution: one must ask what the purpose of a relevant provision of the Constitution is and then interpret it accordingly to give effect to this purpose.

That is why we must ask what the purpose of section 201 of the Constitution is. That is also why sub-sections 2 and 3 of section 201 of the Constitution must be read together. The purpose is clear: the drafters of the Constitution wanted to avoid a situation in which an unaccountable President (the person, not the office) sent soldiers to fight in foreign wars (without having to declare war on that country). Furthermore they wanted to Prevent an unaccountable President from sending soldiers into the suburbs of South Africa to intimidate protestors and to instil fear in the hearts of citizens in a desperate attempt to cling to power.

The apartheid government did both of these things and no one was ever held accountable for it. The drafters of our Constitution knew better and included section 102 to ensure Presidential accountability for the deployment of troops inside and outside South Africa. Thus, section 102 of the Constitution states:

2. Only the President, as head of the national executive, may authorise the employment of the defence force (a) in co-operation with the police service; (b)in defence of the Republic; or (c) in fulfilment of an international obligation.

3. When the defence force is employed for any purpose mentioned in subsection (2), the President must inform Parliament, promptly and in appropriate detail, of (a) the reasons for the employment of the defence force; (b) any place where the force is being employed; (c) the number of people involved; and (d) the period for which the force is expected to be employed.

4. If Parliament does not sit during the first seven days after the defence force is employed as envisaged in subsection (2), the President must provide the information required in subsection (3) to the appropriate oversight committee.

The President has a duty to authorise deployment of soldiers and when he does authorise such a grave step, to inform Parliament in detail about any deployment of the soldiers, the reasons for the deployment and how many soldiers are deployed in this manner. Reading these sub-sections in isolation, as if the President can provide a blanket authorisation for the deployment of South African soldiers which would cover every possible eventuality, on the condition that he or she provided details of each deployment to Parliament, would completely negate the purpose, meaning and effect of section 201.

Instead of ensuring that the President is accountable to Parliament for what may be life and death decisions, such a reading would require a President (either as a person or as an office) never to have to take responsibility for such a decision and never having to defend it to the democratically elected members of Parliament.

Why this reading is absurd and wrong can easily be illustrated with an example. Recall that section 201 covers situations like the deployment of soldiers as part of an international peace keeping effort or as part of a military campaign that does not involve a declaration of war by South Africa. In the reading of General Mabaya, the President (who, is not a person after all), may in general terms, authorise the deployment of South African troops abroad to fight in wars in which they might well be killed.

When, several years or even decades after such general authorisation, the USA then wishes to invade Iran and asks South Africa to contribute troops to a coalition of the willing or Uganda wishes to invade the DRC and asks South Africa to contribute troops to a coalition of the righteous, this prior “authorisation” (even if given in general terms ten years ago by another administration) would comply with the requirements of section 201(2).

This would render section 201(2) utterly meaningless and would negate its purpose and effect. Section 102(2) requires authorisation by the President because this will hold the President and his or her administration accountable for what would often be highly charged and politically contentious decisions, decisions that might lead to the loss of life of large numbers of South African soldiers. Because a decision of this kind may be politically highly contentious, a President will have to consider all relevant factors — including the possible opposition of voters to sending South African soldiers to die on foreign soil for a cause they do not believe in — before authorising such a drastic step.

Sending troops to Iran, for example, to assist the United States of America (who might be invading a foreign country in order to placate the far-right wing government of Israel or to secure oil supplies for the USA) would probably be opposed by the vast majority of South Africans and by a majority of ANC voters. But if General Mabaya is to be believed, in a case like this our Constitution would only require that a previous President had agreed (in general terms and more than 10 years ago)  that South African troops could be deployed abroad, for section 201(2) to be complied with.

Moreover, this absurd interpretation would also negate the purpose and effect of section 201(3). Why would a President be required to answer to Parliament for a specific deployment after the deployment had already taken place, if that President was never required actually to authorise the specific deployment at all? And would this mean that a junior Defence Official would be able to decide to send troops to Iran because a President had authorised — in general terms — the deployment of South African troops abroad 10 years previously? This would clearly be absurd, yet General Mabaya wants to convince us dat perdedrolle eintlike vye is (that horse manure droppings are really figs).

Read holistically, section 201 requires the President to take political responsibility for each decision to deploy soldiers inside and outside South Africa and then to account to Parliament for this decision by reporting to it on the reasons for the decision as well as on the number of troops to be deployed. Parliament has (at least on paper) the power to stop such a decision as it can threaten to fire the President if he or she authorises the sending of troops to Iran or the sending of troops into townships where citizens have taken to the streets to protest against corruption and service delivery failures. If Section 102 allowed for a blanket authorisation for this kind of thing into the future, Parliament would have no such power and no role to play in holding the President to account, and the reporting obligations would become utterly meaningless.

Generals or military bureaucrats may then make individual decisions about the deployment of soldiers inside and outside South Africa and this will undermine the principle that soldiers are subject to civilian control and that the President, as Commander in Chief , is accountable to the only truly democratically elected national body, namely the National Assembly, for his or her actions.

No, General Mabaya, you are dead wrong. You are also exposing our soldiers to criminal sanction.

Every time heavily armed soldiers appear on our streets and assault and intimidate ordinary citizens, they are doing so unlawfully. Ordering a soldier to take part in such an operation against fellow citizens is thus, arguably, manifestly unlawful. This means that soldiers may well have a legal duty to disobey orders to take part in policing operations inside South Africa, as section 199(6) of the Constitution states that no member of any security service may obey a manifestly illegal order.

If they do not and they are involved in the killing of a civilian during such an unlawful operation which they had agreed to be part of, an individual soldier might well expose him or herself to prosecution for murder. If I was a member of one of the Defence Force Unions, I would be very worried about such a possibility indeed and I would seek clarity on it. Surely Defence Force Unions have a duty to protect their members from possible criminal prosecution? Why are they not taking this up with the leadership of the Defence Force and, if she would deem to talk to them, with the Minister of Defence?

Why are soldiers patrolling the streets of Cape Town?

Jan 16th, 2012
by Pierre De Vos.
72 comments

Are we at war with our own citizens? Why else are soldiers patrolling the streets of Cape Town? I was rather startled when I opened my newspaper this morning and spotted a picture of soldiers with automatic weapons and wearing what looked like full combat gear, parading outside the Khayelitsha District Hospital. For a moment I thought I was back in 1988 and “Boetie” had gone back into the township. The newspaper informs me that soldiers were called in to help control a crowd of protestors outside the hospital. The contingent of soldiers told the Cape Times that they had been diverted to the hospital after being on a routine patrol in the area with the SA Police Services.

But why were soldiers patrolling the streets of Cape Town with members of the Police Service (remember, the Constitution talks about a Police Service, not a Police Force)? Can this be legal? And why were they then diverted from their patrol to get involved in a protest by ordinary citizens? Surely we should be very careful before we use heavily armed soldiers to intervene in political and economic protests by citizens? We do not, as far as I can recall, live in a military dictatorship.

And that is why our Constitution is rather clear on this issue and why it contains provisions that safeguard ordinary citizens from the use of the military against protestors. To avoid the militarisation of our society and to prevent a recurrence of the situation which prevailed in South Africa in the last 15 years of apartheid, when the military played an ever increasing role in suppressing political dissent against the apartheid government, the Constitution sets out strict requirements for the employment of the Defence Force – inside and outside South Africa.

Section 200(2) of the Constitution confirms that the Defence Force should not normally be employed inside South Africa, stating that:

The primary object of the defence force is to defend and protect the Republic, its territorial integrity and its people in accordance with the Constitution and the principles of international law regulating the use of force.

Section 201(2) of the Constitution provides for an exception to this rule, stating that the President, as head of the national executive, may authorise the employment of the defence force in co-operation with the Police Service or in defence of the Republic.

Section 201(3) then states that when the defence force is employed with the Police Service, the President must inform Parliament, promptly and in appropriate detail, of the reasons for the employment of the defence force; any place where the force is being employed; the number of people involved; and the period for which the force is expected to be employed. If Parliament does not sit during the first seven days after the defence force is employed as envisaged, the President must provide the information to the appropriate oversight committee.

In the context of section 200 and 201 it is clear that the Constitution does not allow the employment of the Defence Force inside South Africa in circumstances other than in co-operation with the Police Service. There are good reasons for this.

In a constitutional democracy it is of utmost importance that the role of the Police Service and the role of the Defence Force be kept separate. The Defence Force should normally not be employed inside the country – especially not to control crowds protesting against a lack of employment opportunities or against service delivery failures. It is normally the role of the Police Service to deal with crime and other internal challenges to law and order. A failure to uphold this distinction between the Police and the Military is dangerous as it will run the risk of further politicising the Defence Force and will create an incentive for politicians to deploy the Defence Force, with its arsenal of dangerous weapons, against ordinary citizens.

Did the President inform Parliament that he was employing the Defence Force to patrol townships in Cape Town? If he did, what reasons were given? If not, why is he in breach of the Constitution?

Strangely section 18 of the Defence Act, which I only read for the first time this morning, states, states that “in addition” to the employment of the Defence Force by the President as authorised by section 201(2), the President or the Minister may authorise the employment of the Defence Force for service inside the Republic or in international waters, in order to: (a) preserve life, health or property in emergency or humanitarian relief operations; (b) ensure the provision of essential services; (c) support any department of state, including support for purposes of socio-economic upliftment; and (d) effect national border control.

As I read section 200 and 201 of the Constitution, it does not allow the President to deploy the Defence Force inside South Africa against citizens unless it is done in co-operation with the Police Service. Section 18 of the Defence Act is therefore most probably unconstitutional in as much as it purports to give the President wider powers to employ the Defence Force in South Africa than those provided for in section 201(2) of the Constitution.

As I read it, the Constitution only empowers the President to employ the Defence Force “in co-operation” with the Police Service – never on its own. In as much as the Defence Act states otherwise and allows the employment of the Defence Force on its own, the provisions in section 18 are surely unconstitutional. As section 19 of the Defence Act deals with the employment of the Defence Force in co-operation with the Police Service (as authorised by the Constitution), it seems to me the whole of section 18 of that Act must be unconstitutional as it bestows powers on the President and the Minister of Defence not not bestowed on them by the Constitution.

Section 19(1) of the Defence Act, quite correctly, states that the Defence Force may be employed in co-operation with the South African Police Service in terms of section 201(2)(a) of the Constitution in the prevention and combating of crime and maintenance and preservation of law and order within the Republic.

Section 19(2) requires the Minister of Defence to give notice of such employment by notice in the Government Gazette within 24 hours of the commencement of such employment and, upon such employment being discontinued, within 24 hours of such discontinuation give notice of the discontinuation by notice in the Gazette. This provision also contravenes section 201(3) of the Constitution, which requires the President (not the Minister) to inform Parliament of the employment as well as the reasons for and details about the employment.

Section 19(3) then sets out strict procedures and criteria that must be met for such a deployment.

Service in co-operation with the South African Police Service: (a) may only be performed in such area or at such place as the President may order at the request of the Minister and the Minister of Safety and Security; (b) must be discontinued in such area or at such place as the President may order at the request of the Minister and the Minister of Safety and Security or when the President deems it expedient for any other reason; and (c) must be performed in accordance with:

(i) a code of conduct and operational procedures approved by the Minister;

(ii) such guidelines regarding:

(aa) co-operation between the Defence Force and the South African Police Service; and

(bb) co-ordination of command over and control of members of the Defence Force and the South African Police Service, as the Chief of the Defence Force and the National Commissioner of the South African Police Service may determine.

When soldiers were diverted to the Kayelitsha District Hospital, it could only have been done if ordered by the President – as head of the executive. If the President had not ordered such an employment of soldiers, the employment would be unlawful. Moreover, in terms of section 19, such an employment would require the Minister of Defence to give notice of this employment in the Government Gazette within 24 hours. Section 201 also requires the President to inform Parliament of such an employment immediately. If the Minister of Defence had failed to give notice of this employment and if the President ahd not informed Parliament, they would be in breach of the Constitution and the Defence Act.

These possible breaches of the Constitution and the Defence Act might appear trivial, but flouting the Constitution and the law in this way is deeply damaging to our democracy and to the credibility of the government of the day. First, a government can only command respect from ordinary citizens if its members is generally seen to respect the Constitution and the law and if they do not flout respect for the Rule of Law. Second, a democratic government should not use the Defence Force (with its frightening ability to maim and kill unarmed citizens) against its own people except in the most extreme cases – to assist the Police in the aftermath of a catastrophic natural disaster or in the face of an armed insurrection that threatens the democratic order itself.

It might be that the President and the Minister of Defence have both acted properly and in accordance with the Constitution and the law. An insurrection threatening the constitutional democracy might be underway in Cape Town townships and we might be blissfully unaware of this. What we do not know is whether the President and the Minister have complied with the Constitution and the Defence Act (parts of which are clearly unconstitutional), because we have not heard anything about what steps they had taken to provide legal cover for this employment of the Defence Force and why this employment was needed at all. In the absence of reassurances, all right minded citizens would be excused for becoming anxious about our government’s commitment to the Rule of Law and about its commitment to a democratic state free from interference by a politicised military.

A failure to explain and justify this draconian and scary move to employ heavily armed soldiers against ordinary citizens, must alarm any citizen who loves his or her freedom.

The ANC’s centenary celebrations and internal party democracy

Jan 9th, 2012
by Pierre De Vos.
73 comments

The African National Congress (ANC) celebrated its 100th birthday this weekend with such revolutionary pursuits as a golf day and a prayer service. At the end of a huge mass rally on Sunday Deputy President Kgalema Motlanthe proposed a toast and told the (by then half-empty) stadium that if they did not have champagne, they could take photographs of their leaders drinking, or raise clenched fists. “The leaders will now enjoy the champagne, and of course they do so on your behalf through their lips,” he said.

The ANC has a lot to celebrate and feel proud about (especially about its past), but the quality of its current leaders drinking champagne on that stage (and, directly related to this) the manner in which such leaders are elected, are not part of that which the organanisation can feel proud of. No wonder President Jacob Zuma announced that “the ANC will renew its internal systems and processes in order to prepare and produce new generations of leadership for our country, whose integrity and passion to serve our country is unquestionable”.

The same noises about changes to the internal election procedures of the ANC were made four years ago and nothing came of it, but there is surely an urgent need to address the manner in which party leaders are elected in the ANC – and given recent problems with internal party elections in the Democratic Alliance (DA), also in that political party - to make these processes more democratic and to try and insulate the processes from corruption and the influence of money.

This is important not only for the health of the ANC (and other political parties like the DA) but also for our democracy as a whole. Given the fact that our pure proportional representation electoral system does not allow us to directly elect any public representatives at the national or provincial levels (we can only vote for a party, never for a person), the Mandarins at Shell House might want to consider amendments to the process of electing leaders that would make such elections more transparent and bring them more in line with the democratic values of openness, accountability and transparency set out in the founding provisions of our Constitution.

However, neither the ANC nor the DA had shown an appetite before for developing binding legal rules to force political parties to adhere to minimum standards of internal democracy.  A few years ago when I suggested at an Idasa event that our Parliament should adopt a political party law that regulates the funding of political parties as well as prescribes minimum requirements for internal party democracy for the election of leaders and of representatives to our various legislatures, the then DA Chief Whip, Douglas Gibson, was not amused and accused me of wanting to impose a North Korean style system on South Africa.

Instead of starting to cry like a North Korean, I wrote the following email to Mr Gibson the next day which remains pertinent for this debate:

Last night at the Idasa event on the working of Parliament I asked whether political parties in South Africa would be prepared to consider the adoption of a party law that would, inter alia, regulate the way in which candidates are selected to stand for public office. You replied that this was unacceptable and never happens in any democracy – “only in countries like North Korea”. I thought it might be interesting for you to know that many countries do have party laws, including Germany, Argentina, Mexico, South Korea and as far as I can tell at least 40 others.

In Germany Article 17 of the Party law of 1967 (last amended in 1994) states that: “The nomination of candidates for election to all levels of government must be by secret ballot. The nomination procedure shall be as prescribed by the electoral laws and party statutes.”

Article 21 of the electoral law further regulates the matter as follows:

“(1) A person may only be named as a candidate of a party in a constituency nomination if he or she has been elected for this purpose at a members’ assembly convened to elect a constituency candidate or at a special or general delegates’ assembly. A members’ assembly convened to elect a constituency candidate shall be an assembly of members of the party who at the time of their meeting are eligible to vote in the German Bundestag election in their constituency. A special delegates’ assembly shall be an assembly of the delegates elected by such an assembly of members from their own ranks. A general delegates’ assembly shall be a general assembly appointed in accordance with the statutes of the party (Article 6 of the Law on Political Parties) by such an assembly of members from their own ranks in view of forthcoming elections.

… (5) Further details regarding the election of delegates for the delegates’ assembly, the convening and the quorum of the members’ or delegates’ assemblies as well as the procedure for the election of the candidate shall be set forth in the parties’ statutes.

 (6) A copy of the record of the election of the candidate, with details of where and when the assembly took place, the form of the invitation, the number of members present and the result of the ballot shall be submitted with the constituency nomination. In so doing, the chairperson of the assembly and two members present designated by it shall give the District Returning Officer an assurance in lieu of an oath to the effect that the election of the candidate was by secret ballot. The District Returning Officer shall be responsible for accepting such an assurance in lieu of an oath; he shall be considered an authority within the meaning of Article 156 of the Penal Code.

Your assertion regarding North Korea was therefore slightly off the mark.

These provisions illustrate that legislation may well be adopted in a democracy (especially one with some form of proportional representation electoral system) to set minimum standards and criteria for the election of party representatives in the various legislatures, but leaves it open to each political party to arrange their elections in accordance with their own character and traditions within the confines of these minimum standards. There is nothing that prevents such a law also from applying to the election of party leaders.

Such a law will have little effect, however, if it does not regulate the funding of the internal election campaigns of party leaders and if it does not require transparency in the funding of such campaigns and if it does not prohibit influence buying by large corporations or unscrupolous individuals trying to land huge government tenders.

To this day we do not know who financed Jacob Zuma’s campaign to be elected President of the ANC. Was this campaign funded by thousands of small donations by ANC members eager to see the back of Thabo Mbeki, or was it funded by people like the late Muammar Gaddafi of Libya or by Angola’s President Jose Eduardo dos Santos (as some rumours would have it)? Did Roux Shabangu or other tenderpreneurs contribute to this campaign and was Jacob Zuma beholden to these financiers when he eventually became President? Did the Gupta’s have any role in financing President Zuma and his campaigns and if so, what were they hoping to get out of it?

We simply do not know answers to these questions because there are absolutely no legal rules that bind political parties and potential leaders in those parties to reveal the sources of funding used for either internal leadership campaigns or for political party electoral campaigns in general.

If the ANC is serious about renewing its internal systems of leadership elections and if it wishes to become more democratic and to empower ordinary ANC members to have a more decisive say in leadership elections, it will have to address the influence of money on such elections as a priority and will also open up leadership contests and debates to general scrutiny and debate (as has been suggested by Julius Malema). One way of doing so is by passing a law that prescribes minimum criteria for such elections in the manner similar to that applicable in Germany.

Will the ANC bite the bullet and address this elephant in the room? My guess is that too many people with too much money and power have too much to lose from a change in the rules and from a legally enforced transparent system of leadership and public representative elections. But who knows, maybe the ANC will be overcome with a sudden attack of principle and will do the right thing after all. Or maybe a majority of ANC leaders will not act in a principled way but will nevertheless realsie that opening up leadership elections will weaken the incumbent President and his campaign for a second term and will proceed to do the right thing for the wrong reasons?

Should a court help to make the state’s case for secrecy?

Nov 29th, 2011
by Pierre De Vos.
157 comments

The right of every person to have access to any information held by the state is guaranteed by section 32 of the Constitution. The Promotion of Access to Information Act (PAIA) gives effect to this right. Unfortunately, many state officials (as well as private bodies) undermine respect for the Rule of Law by refusing to adhere to the provisions of PAIA, either by not responding to requests for access to information at all, or by refusing access to information where this refusal is not clearly justified by the provisions of PAIA.

Most people who request access to information do not have the resources to approach a court to challenge this culture of secrecy which is deeply entrenched in our society (in both public and private institutions). When an individual or institution therefore approaches a court to challenge the denial of access to important information held by the state or a private body, the court should be careful not to bend over backwards to assist state officials in denying access to information, information which is the lifeblood of any democracy.

Unfortunately today a majority of judges of the Constitutional Court handed down a judgment in the case of President of the RSA and Others v Mail & Guardian Media Ltd, in which they came to the assistance of the Presidency who had utterly failed to make out a case for why a report prepared by two judges sent to Zimbabwe by then President Thabo Mbeki to look into that country’s troubled election should not be made public.

This was a close run affair with 5 judges (including an acting judge who might still one day be appointed to the highest court) overturning the High Court and Supreme Court of Appeal judgment, and 4 judges supporting a strong dissent. The majority judgment, authored by former Chief Justice Sandile Ngcobo (and concurred in by Froneman J, Mogoeng J, Mthiyane AJ and Yacoob J), makes all the right noises about the dangers of state secrecy by emphasising the importance of the right of access to information, stating that the importance of this right in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid.

It is impossible to hold accountable a government that operates in secrecy. The right of access to information is also crucial to the realisation of other rights in the Bill of Rights. The right to receive or impart information or ideas, for example, is dependent on it. In a democratic society such as our own, the effective exercise of the right to vote also depends on the right of access to information. For without access to information, the ability of citizens to make responsible political decisions and participate meaningfully in public life is undermined.

The majority also correctly points out that PAIA places an evidentiary burden on the party denying access to information to demonstrate that its denial of the information is justified. The Presidency had argued that the denial was justified, first, because the report would reveal information supplied in confidence by or on behalf of another state or an international organisation. This explanation merely recounted the wording of section 41(1)(b)(i). Secondly, the Presidency argued that stated that the record contains an opinion, advice, report or recommendation obtained or prepared for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law. This likewise recounted the wording of section 44(1)(a).

The Presidency failed to produced any plausible evidence by those directly involved in the matter, namely the President (at the time, this was Thabo Mbeki), or the two judges (Justices Moseneke and Khampepe, who both recused themselves from hearing the case), all of which could have confirmed the bold (but unsubstantiated) assertions made by the Presidency about why they were justified in denying access to the report. As an afterthought, so it seems, the Presidency argued that it could not provide a more persuasive justification for its refusal, as section 25(3)(b) and section 77(5)(b) of PAIA provide that a person who refuses access must exclude from the reasons stated “any reference to the content of the record”.

In order to give the Presidency another bite at the cherry to justify that which it had failed to justify before the High Court, the Supreme Court of Appeal and the Constitutional Court, the majority relied on section 80 of PAIA which allows a court to call for additional evidence in the form of the document to which access was denied to have a secret “judicial peek” at that document itself. Section 80 allows the court to conduct a secret review of the document to determine whether the justification for the denial of access was valid or not.

The majority warned that courts should exercise their discretion to call for additional evidence in the form of the contested record only where there is “the potential for injustice as a result of the unique constraints placed upon the parties in access to information disputes”. This injustice may arise, said the court, “because either the requester or the holder of information is prevented by factors beyond its control from presenting the evidence necessary to make its case”.

Because the officials in the Presidency who made submission to the court were not directly involved in the commissioning or production of the report, the majority found that they were required to study the report itself and come to a conclusion about whether it should be made public. The state was therefore “hamstrung” from presenting further evidence in support of its claim to the exemptions. The majority therefore found that the High Court and the SCA should have demanded to have a “judicial peek” at the document to decide whether the refusal was justified in terms of the provisions of PAIA relied upon. The majority therefore referred the matter back to the High Court to do just that. This means the process will start afresh – if the Mail & Guardian has sufficient funds to fight the whole battle anew.

As I read the majority judgment, it assumed — without any credible evidence being presented by the Presidency to that effect — that the Presidency was unable to make a proper case for secrecy because its officials could not quote directly from the report. This did not wash with the minority.

The strongly worded minority judgment, authored by Justice Edwin Cameron (Jafta J, Nkabinde J and Van der Westhuizen J concurring), provides cogent arguments for why the Presidency had to hand over the report immediately. The minority argued that the Presidency had failed to justify its refusal of the record under PAIA, and further failed to provide a plausible basis for a plea that the statute made it impossible for it to provide adequate reasons for its refusal.

The Presidency’s information officer had made no reference in his reasons to the provisions of the statute that prohibit a decision-maker from making any reference to the content of the record when giving reasons for a refusal. Moreover, the pivotal submission by Frank Chikane contained no more than “bald assertions” — which did not constitute evidence at all. Chikane did not state why he claimed to have personal knowledge of the issue. Justice Cameron then proceeded to argue as follows:

As the Supreme Court of Appeal pointed out, one can gain personal knowledge of an event in three very different ways: by experiencing it directly; by receiving a report that it happened (which is hearsay); or by deducing from other signs that it took place. Mr Chikane does not tell us in which of these ways he acquired personal knowledge. This leaves a court unable to perform its most elementary function, which is to assess the quality, strength and reliability of his knowledge in determining whether the fact to which he deposes is true. The mere assertion that he has personal knowledge gives no help in that duty. It follows that his assertion is without value as evidence of the fact in issue. …

The Court rightly noted that the Presidency‘s case amounts to “little more than rote recitation of the relevant sections and bald assertions that the report falls within their terms”. The witnesses offered not reasons, but perfunctory conclusions. This, the Court said, provided a stark contrast with the culture of accountability and transparency that our constitutional era promised. Indeed, the Supreme Court of Appeal likened the approach in the affidavits of the Presidency‘s witnesses to that under apartheid, where government officials exercising wide powers were able simply to assert that they had fulfilled the requirements of the statute, without offering any evidential basis for this.

The minority further pointed out that it was inexplicable that neither the President at the time, or any of the judges involved provided evidence that would support the denial of access to the document.

Neither former President Motlanthe nor President Zuma could cast light on the judges‘ mission. President Mbeki could, but there was no affidavit from him. So the question is — why did President Mbeki not testify? Was he asked or not asked? If asked, did he refuse? Or if not asked, why?

Perhaps even more telling was the absence of evidence from the two judges. They, like former President Mbeki, are living and seemingly available. Why did they not testify? Were they asked? If not, why? A simple affidavit from any of them may have put a quick end to the issues.

The Presidency‘s hands were not tied. It could have obtained direct evidence from any one of the three people most intimately involved in the mission. It failed to do so. More even, it failed to explain why.

The minority also cautions against the use of section 80 of PAIA that would allow the court to have a secret “judicial peek” at the document. It should only be as a last resort that judges should demand to have a “judicial peek” at the document to which access is being denied, said the minority. Moreover this section “should not be used to help government make its case when it has failed to discharge the burden the statute rightly places on it”.

There are good reasons for a court to avoid reliance on section 80 to have a secret peek at the document being denied to come to a secret conclusion based on a secret process. Although it might be necessary to do so, the risks inherent in resorting to secret judicial examination are so grave that it should be avoided if at all possible. Quoting from the Supreme Court of Appeal judgment, Cameron pointed out the dangers of the majority’s approach:

Courts earn the trust of the public by conducting their business openly and with reasons for their decisions. I think a court should be hesitant to become a party to secrecy with its potential to dissipate that accumulated store of trust. There will no doubt be cases where a court might properly make use of those powers but they are no substitute for the public body laying a proper basis for its refusal.

Nor should the public ever fear that courts may assist in suppressing information to which the Constitution says they are entitled. To give secret judicial examination of disputed records a central place in deciding claims to exemption, instead of enforcing the burden government rightly bears to justify withholding information, is in my view a grave error.

The minority would therefore have ordered the immediate release of the document as the Presidency had utterly failed to justify it being kept secret.

The two judgments handed down today present starkly different attitudes towards secrecy and the role of the executive in keeping secrets. The majority bent over backwards to find ways of not ordering the immediate release of the report, despite the fact that the executive had utterly failed to make a plausible case for keeping the document secret. The minority looked at the evidence provided by the Presidency, determined that it had not provided any cogent reasons for keeping the report secret and would have ordered its release.

The first judgment can therefore be read as displaying a rather touching (or perhaps naive) trust in the inherent honesty and probity of the executive and its commitment to an open and democratic society based on openness, transparency and accountability. The minority looked at the facts and applied the law as it relates to the facts presented to the court. It took the law at face value and interpreted and applied it in a manner that would inhibit state officials from denying access to important documents and then justifying it by making bald and unsubstantiated assertions of their right to do so.

Whiteliness strikes again

Nov 17th, 2011
by Pierre De Vos.
137 comments

It is not always easy to engage in any kind of rational debate about political or social issues in South Africa. Some voters are blindly loyal to the political party of their choice and will defend the leaders of that party no matter what these leaders do or say, perhaps out of a misplaced sense of racial solidarity or perhaps because of a wilful and arrogant blindness bordering on sycophancy. Some politicians are also incapable of admitting that they have made a mistake and will launch ad hominem attacks against those who point out any weaknesses in their arguments. Some will even twist the truth (and sometimes lie outright) in order to try and defend the indefensible.

Helen Zille, leader of the Democratic Alliance, and some of her supporters seem particularly prone to this phenomenon. Recent discussions about Zille’s rather startling comments on HIV and AIDS, illustrate this point rather well. Zille was taken to task by myself as well as by Gavin Silber and Nathan Geffen about her strange comments on HIV. What followed is instructive and may say much about the hold that racial solidarity have on many South Africans – even amongst supporters of a political party who professes to be completely blind to race.

As Silber and Geffen wrote, in her original newsletter Zille had specifically cited people who contract HIV through “irresponsible” behaviour before rhetorically questioning why “taxpayers must foot the bill without asking any politically incorrect questions — enough already!”. She then proceeded to confirm that the Western Cape will continue to provide the most comprehensive HIV-AIDS treatment in the country, but that it would also “ask the necessary questions and make appropriate demands for behaviour change”.

Zille, as is her right, responded to some of the criticism levelled against her by Silber and Geffen stating that:

The article focuses almost entirely on rebutting a statement I never made. It invents a position, falsely ascribes it to me — and then seeks to challenge it. That qualifies as a “sick joke”. It is totally ludicrous to say that I suggested withdrawing treatment from those who contract AIDS “irresponsibly”. How would one know? I have never suggested that the public health system stop treating any person (let alone category of people) with HIV.

This statement is curious and is difficult to reconcile with what Silber and Geffen had actually written and what Zille herself had written on the topic. It reminded me of Thabo Mbeki who first questioned whether a link existed between HIV and AIDS (“a virus cannot cause a syndrome”) and then, when criticised about this, claimed that he had never questioned this link. Silber and Geffen had actually written nothing that was not based on the published writings of the Premier which are easily accessed via the Internet.

Her newsletter, read with various tweets she fired off the next week, makes it clear that she believes that a person who contracts HIV “irresponsibly” should not ask the state to pay for ARV’s but should pay for this him or herself. This assumes, of course that the person would be able to afford to pay for the ARV’s. One assumes the Premier either believes that everyone can afford these medicine, or that those who cannot afford to pay should die.

This assessment might seem harsh. That is why I went back to Zille’s tweets to see if she might have been misquoted. But, no, there they were, her series of bizarre tweets on HIV, for all to see. (What is it with politicians, the internet and HIV? First there was Thabo Mbeki and now we have Helen Zille.) I quote a few of her tweets:

A nanny state when ppl don’t act responsibly and then expect treatment.

Get off your entitlement horse and pay for your preventable disease yourself.

Keep your preventable illnesses out of the state’s coffers. Pay for your own ARVs.

[A twitter contributor writes….] If you have consensual unprotected sex, fund your own ARVs [and Zille responds…] Absolutely. The state should pay for unpreventable illnesses.

Then don’t come looking for the nanny state when you need treatment.

Be responsible or pay for your own ARVs.

I made the mistake of posting some of these tweets beneath her denial that she had ever suggested irresponsible people should pay for their own ARV treatment and pointed out that:

Helen Zille says: “It is totally ludicrous to say that I suggested withdrawing treatment from those who contract AIDS “irresponsibly“ But in her tweets she suggested that people who do not use condoms should pay for their own ARV’s. Sounds like she is not being truthful. Some might call it a lie.

Pointing out this lack of candour on the part of their hero was not a smart thing to do, it seems. My post outraged some DA supporters. I provide a sample of the entertaining comments below:

If it weren’t so tragic the comments by de Vos et. al would be amusing and witty…

And as for Pierre de Vos, well what can we expect???

De Vos is without a doubt one of the biggest prat’s on the planet.

Pierre de Vos should stick lecturing in his ivory tower up on the hill. Academics get completely divorced from reality. It’s political correctness and the patronising attitudes of guys like Silber, Geffen and de Vos who think they know what’s best for black people that get me down.

De Vos and his ilk will never have time for Zille, after all she calls a spade a spade. Zille should stay off twitter, after all one cannot build an argument in 140 characters, and one’s message can be misinterpreted. De Vos is the worst kind of academic, he llives in a world that should be perfect, which is fine if you stick to theorising to students, but if you want to get involved in real life, come down from the hill.

Now, as that old right wing judge Erasmus (and old friend of PW Botha) reportedly said many years ago, these criticisms “runs of me like ducks water off my back”. Who cares what obsessed DA supporters infected by a serious dose of racial solidarity think? But it is so depressing that none of those who jumped to Helen Zille’s defence (as they have every right to do) engaged with the point I made. None tried to argue that Zille’s denial was truthful. Instead they just attacked the messenger who happened to have pointed out what would appear to be a huge contradiction between her last statement and her previous tweets.

I fear that many South Africans — and judged by these exchanges, many of them DA supporters — are not very good at democratic debate. One might well have tried to parse Zille’s words (as defenders of Thabo Mbeki often used to do, to their credit) to argue that her denial was indeed truthful. Or one might have invoked context to defend her statements in an effort to reconcile them. Or one might have made a sophisticated argument about how Twitter twists the meaning of words. Such interventions might not have been credible, but they would at least have engaged — no matter how bizarrely — in some form of democratic exchange.

Could it be that some people are so used to having their views validated and taken as the gospel truth, so used to be treated as if their views embody rationality and truth and moral goodness (perhaps because they embody white privilege and unthinkingly and arrogantly live  what Samantha Vice calls whiteliness and white cultural dominance), that they are incapable of engaging rationally with somebody who seriously challenge the assumptions and prejudices they embrace (but that they do not even know that they embrace)?

Is this why only ANC supporters and voters are lambasted for voting along racial lines and for displaying irrational racial solidarity with the ANC and its leaders? I suspect for many of the defenders of Helen Zille it will make no difference if she turned into a tree stump or if she were charged with corruption (they will probably say it was all an ANC plot to discredit her): they will defend her because she is their hero, finish and klaar.

What they do not realise is that such blind loyalty is bad for democracy and is also bad for the leader one is prepared to follow so blindly. How can we have real and meaningful debate if some refuse to address the real issues? And surely, if a leader is so adored and blindly defended, there will be a great danger that he or she will begin to believe the hype and will begin to believe in his or her own infallibility? The truth is that we are all fallible and we all make mistakes. But only those who at least try to be responsible citizens will ever admit to this and would show a willingness to be self-critical and to be critical of the leaders they respect or even adore.

Here is a challenge to DA supporters: why not try and engage with the arguments in this post — robustly and sharply if you so wish — in a serious manner? Why not try and debunk my arguments with more than ad hominem invective? (And if you use ad hominem attacks, why not try making these clever and witty, at least?) In short: why not try and act like responsible citizens in a constitutional democracy?

Just a thought.

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