Constitutional Hill

Dignity

Silence = Death

Feb 2nd, 2012
by Pierre De Vos.
73 comments

Yesterday, more than six years and about 50 postponements later, four of the men who brutally murdered Zoliswa Nkonyana because she was a lesbian were finally sentenced to an effective fourteen years in jail. On the same day, in another part of South Africa, three men were sentenced to 25 years imprisonment by the Phalaborwa Regional Court for poaching Rhino. Decisions on the sentencing of serious criminals is not an exact science, but on its face, the difference between the relatively light sentences imposed on Nkonyana’s killers compared to the sentences imposed on the Rhino poachers, seems rather stark.

There is strong anecdotal evidence (as well as some research from South Africa and the USA), that suggests the race, the gender, the class, the HIV status, the sexual orientation or the education level of both the killer and of the victim sometimes play a role in the severity of the sentence imposed on a killer. A white farmer who kills a black labourer may sometime receive a lighter sentence than a black unemployed youth who kills a blonde young woman. A heterosexual man who kills a lesbian may sometimes receive a lighter sentence than a poor gay man who kills a rich heterosexual banker. And if one kills a tourist who lives in Europe one might well get a far heavier sentence than if one kills a poor black woman living in a rural area.

Given the serious delays in the Nkonyana case, coupled with reports of sloppy investigation and the stalling tactics used by the lawyers representing the killers, it is a bit of a miracle that the four men were indeed convicted and sentenced yesterday. From personal experience I know that not all members of the police are eager to investigate hate crimes against gay men and lesbians and often fail to investigate reports of assault against gay men, lesbians and transgendered persons. And if they do investigate the crimes they often fail to do so with the same diligence than they would investigate, say, the murder of a foreign tourist or a blond girlfriend of a rugby player.

This is not to deny that we have made progress over the past 15 years. At least the case was investigated and brought to court, the accused received a fair trial and the presiding officer was prepared to convict the killers and sentence them to jail – despite the fact that they “only” killed a black lesbian.

For example, some years ago Judge President John Hlophe allowed Christopher Moses “to get away with murder” because his victim was HIV positive. Moses had killed a gay man called, Gerhard Pretorius, and then claimed that, on the night of the murder, he and the deceased had unprotected penetrative sex for the first time. He also claimed that after the sex, Pretorius told him that he had HIV.

Moses’s defence, as stated by his psychiatrist, was that he flew into “an annihilatory rage” beyond his control. The state psychiatrist demonstrated that Moses could not have lost total control because the evidence demonstrated a sustained “complex and goal- oriented” attack. Academic critics argued that Hlophe should have found Moses guilty of murder and that he had misapplied the doctrine of criminal capacity to the case. The murderer’s personal circumstances indicated a reduced sentence would have been appropriate. Instead, Hlophe found that knowingly exposing a person to HIV was sufficient reason to murder them with an excuse of “uncontrollable rage”. He ignored the undisputed objective evidence of premeditation, including fetching two different knives to finish a murder and then setting about creating an alibi.

In any event, it is impossible to say whether the sentences imposed on Zoliswa Nkonyana’s killers would have been significantly lighter if the court had not made a ground-breaking ruling that the killing was motivated by homophobic hate and if this was not taken into account as an aggravating factor in sentencing. Section 28 of the Equality Act states that when the state proves that unfair discrimination on the grounds of race, gender or disability played a part in the commission of the offence, this must be regarded as an aggravating circumstance for purposes of sentence, but the court yesterday extended this to sexual orientation. This section does not mention sexual orientation discrimination or any other criminal attacks animated by hatred for gay men or lesbians

Interesting, while looking at this aspect of the Equality Act, I have been unable to determine whether the provisions of this part of the Equality Act (which deals with the Promotion of Equality by the State and private individuals) have indeed come into operation. My LexisNexis legal database states that the date of commencement of these sections is “still to be proclaimed”. This means that the positive obligations imposed by the Equality Act to promote equality and thus deal with the causes of prejudice and discrimination have never been put into force, which would be strange, given the professed commitment of our government to the achievement of equality.

Section 25 of the Equality Act spells out some of the positive obligations placed on the state by this Act to promote equality.

(1) The State must, where necessary with the assistance of the relevant constitutional institutions (a) develop awareness of fundamental rights in order to promote a climate of understanding, mutual respect and equality; (b) take measures to develop and implement programmes in order to promote equality; and (c) where necessary or appropriate: (i) develop action plans to address any unfair discrimination, hate speech or harassment; (ii) enact further legislation that seeks to promote equality and to establish a legislative framework in line with the objectives of this Act; (iii) develop codes of practice as contemplated in this Act in order to promote equality, and develop guidelines, including codes in respect of reasonable accommodation; (iv) provide assistance, advice and training on issues of equality; (v) develop appropriate internal mechanisms to deal with complaints of unfair discrimination, hate speech or harassment; (vi) conduct information campaigns to popularise this Act.

(2) The South African Human Rights Commission and other relevant constitutional institutions may, in addition to any other obligation, in terms of the Constitution or any law, request any other component falling within the definition of the State or any person to supply information on any measures relating to the achievement of equality including, where appropriate, on legislative and executive action and compliance with legislation, codes of practice and programmes.

(4) All Ministers must implement measures within the available resources which are aimed at the achievement of equality in their areas of responsibility by: (a) eliminating any form of unfair discrimination or the perpetuation of inequality in any law, policy or practice for which those Ministers are responsible; and (b) preparing and implementing equality plans in the prescribed manner, the contents of which must include a time frame for implementation of such plans, formulated in consultation with the Minister of Finance.

Once these sections become operational (if ever) the state will have a legal duty to take the lead in educating the public around issues such as racism, sexism, homophobia, religious intolerance (including intolerance against non-believers), and prejudices against disabled persons.

The fact that this has not happened to the degree envisaged by the Constitution (and by these seemingly inoperable provisions of the Equality Act), suggests that not all members of our government (at both national and provincial level) are fully committed to the eradication of all forms of hatred and prejudice and to the promotion of a world in which all kinds of differences between people are respected and even celebrated.

What is needed to turn the tide against prejudice and hatred based on sexual orientation (as well as race, sex, gender and disability) is political leadership from the highest level. Unless the President, the Deputy President and Ministers (as well as Premiers and MEC’s and Mayors) regularly speak out against homophobia (and other forms of prejudice) and against the violence and threats of violence that haunt especially working class, black, gay men, lesbians and other sexual minorities, attitudes will not begin to change.

Just like Helen Zille needs to speak out regularly against racism and the racial utterances of people like Steve Hofmeyer, so Jacob Zuma should speak out against the homophobic statements that are regularly made by other politicians, community leaders and religious leaders.

Until these leaders stop feeling embarrassed about the fact that we have different sexual orientations and until they stop – through their silence – from condoning the hatred and prejudice that too often spill over into violence against gay men and lesbians, attitudes will not begin to change.

A good place to start a campaign that would foster respect for difference would be in our schools. School principals need to be trained in diversity management and should only be promoted if they can demonstrate that they have taken steps to create a school environment in which racial, gender, sexual orientation and religious diversity is not only tolerated but celebrated. An environment should be created in which teachers begin to realise that they have a duty to promote the values contained in our Constitution – including the value of respect for the human dignity of everyone, regardless of his or her sexual orientation.

The truth is that most politicians are uncomfortable about sexuality issues and would rather never have to think about the fact that gay men and lesbians exist and that they are our brothers and sisters, our mothers and fathers, our sons and daughters, our comrades and colleagues. They will not speak out against injustice because they are scared that they will be viewed with suspicion (and might be suspected of being gay or lesbian themselves), so they keep quiet while people like Zoliswa Nkonyana get harassed, assaulted, raped and murdered.

White South Africans have a specific duty to speak out against racism whenever it is expressed or perpetrated by fellow whites. When they keep silent around braaivleis fires, in boardrooms, at dinner parties when somebody tells a racist joke or makes racist statements about black South Africans, they become complicit in the perpetuation of racism. Similarly, if we remain silent in the face of implicit or explicit homophobia amongst our friends we become complicit in homophobia and, ultimately, in the killing of gay men and lesbians.

How anyone can justify his or her silence in the face of racism and sexism and homophobia, I really do not know.

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?

Should we always trust officials who remove children from their parents?

Jan 12th, 2012
by Pierre De Vos.
48 comments

We live in a world in which elites of every stripe (including many journalists, social workers, police officers, politicians and judges) often assume that poor people are dishonest, irresponsible and lacking in the basic ability to care for others – including their children. There is a deeply ingrained assumption amongst many (but, of course, not all) members of the chattering classes that poor people are to blame for their poverty and that they are prone to be less responsible and less worthy of concern and respect than middle class or rich people.

Meaning well, some often endorse interventions by the state that are aimed at “protecting” poor people from themselves (regardless of what their real needs and wishes might be) and protecting the children of poor people from assumed neglect by their parents. Acting on the questionable assumption that state officials will be better placed than parents to determine what is in the best interest of children, they endorse potentially drastic interventions by state officials to “save” or “protect” children from their poverty stricken parents.

In Australia this kind of paternalistic authoritarianism gave rise to the scandal of the Stolen Generations. Between approximately 1869 and 1969 children of Australian Aboriginal and Torres Strait Islander descent were removed from their families by the Australian Federal and State government agencies and church missions, under acts of their respective parliaments, ostensibly to protect the children and enhance their life chances.

In the South African context, how destructive this can be of the basic dignity of the poor is well illustrated by the facts that gave rise to the various judgments handed down by the Constitutional Court yesterday in the case of C and Others v Department of Health and Social Development, Gauteng and Others.

On Friday 13 August 2010, Mr C was repairing shoes on a street corner – as he does every day – but unlike other days he had his daughter with him because his partner (who normally looked after the child) had been hospitalised to give birth to another child. Ms M, a blind person, was accompanied by her two daughters while begging.

On that day designated social workers removed the children from both Mr C and Ms M and placed them in the Department’s care facilities, without notifying the parents of where they were. The social workers (along with other Tshwane officials) were taking part in a well-planned operation involving the removal of children from people found to be begging while accompanied by children. No court order had been sought for the removal of these children.

Section 152(1) of the Children’s Act empowers a social worker or police official to remove a child and place the child in temporary safe care, without a court order, if it is reasonably believed that: (a) the child is in need of care and protection and needs immediate emergency protection; (b) the delay in obtaining a court order may jeopardise the child’s safety and well-being; and (c) removal is the best way to secure the child’s safety and well-being.

In terms of the Act, a social worker is required to compile a report on whether the child is in need of care and protection in terms of section 152 within 90 days, after which the child must be brought before the children’s court for a determination of whether she or he is indeed in need of care and protection. There is no provision for automatic court review before compilation of the report and if parents are unable to appear in court or get help from an NGO to assist them, chances are that their children would permanently be deprived of the care and love of their parents.

In two separate decisions Skweyiya J (Froneman J concurring) and Yacoob J (Moseneke DCJ, Khampepe J, Nkabinde J and Van der Westhuizen J concurring) both agreed, for slightly different reasons, that the provisions of the Children’s Act that authorised this removal of children from their parents without court supervision were in breach of section 28 and section 34 of the Constitution and that this was not justifiable in terms of the limitations clause.

Although a social worker or police official is empowered by the Act to remove a child from his or her parents only if, in their reasonable belief, immediate emergency protection is so necessary that the delay in obtaining a court order may jeopardise the child’s safety and well-being, and then only if the removal of the child is the best way to secure that child’s safety and well-being, the danger is that a social worker or police officer will exercise this discretion on the basis of prejudicial assumptions about poor people and their ability and willingness to look after their children.

As Justice Yacoob emphasised, the purpose of the impugned provisions is to protect, secure and prevent the violation of the constitutional rights of children. One may well ask (if one takes an overtly formalistic view of constitutional interpretation or if one harbours the deeply paternalistic view that state officials will often be better placed that poor citizens to decide what is in the best interest of their children): how can the legislative provisions here in issue that are palpably designed to protect the constitutional rights of children be inconsistent with section 28 of the Constitution?

The answer is simple: there exists always the possibility that a removal would be wrongly made (because of overzealousness on the part of social workers or police officers or because of the prejudices against the poor harboured by many social workers and police officers. As Yacoob  therefore stated:

It is in the interests of children that an incorrect decision by a court made without hearing the child or the parents, or by a designated social worker or police official be susceptible to automatic review by a court, in the ordinary course, in the presence of the child and the parents. It follows from this that sections 151 and 152 [of the Act] do not provide for this and are therefore constitutionally wanting. Sections 151 and 152 of the Act, though their positive provisions are aimed at the best interests of children, fall short of achieving this result. They carry the potential of being counter-productive because they fail to provide for a Children’s Court automatic review in the presence of the child and the parents. In this sense, and to this extent, the laws are not in the best interests of children. They therefore limit the rights contained in section 28(2).

Having found the provisions unconstitutional, the question remained how to correct this problem. If the sections were merely declared invalid, social workers and police officers would have no power to protect children and remove them from parents (even when this was clearly required) until such time as Parliament had remedied the defect. If the order of invalidity was merely suspended and Parliament provided with one or two years to fix the problem, there would be no guarantee that the sections would not be abused.

The majority therefore endorsed a radical remedy of reading a whole new section into the Act, requiring that a social worker place the removal of children before a Children’s Court for review within 48 hours after the removal and must ensure that the child concerned and the parents, guardian or care-giver as the case may be are, unless this is impracticable, present in court for this review.

Both Skweyiya and Yacoob were at pains to say that this reading in of words into the statute by the court should not be seen as an infringement of the separation of powers doctrine because the court is now writing legislation on behalf of the legislature. As Skweyiya eloquently stated:

By making a final order of this kind, however, I do not suggest that the Court has crowded-out Parliament’s role in further investigating how best to serve the interests of children, for whom a removal from the home is necessary, and in enacting appropriate legislation. Indeed, a final order of reading-in does not give the judiciary the ultimate word on pronouncing on the law. Instead it initiates a conversation between the Legislature and the courts, for Parliament’s legislative power to amend the remedy continues to subsist beyond the granting of the relief, and may be exercised within constitutionally permissible limits at any future time. I would therefore encourage the Legislature to exercise its entitlement to alter the remedy, should it see fit to do so, in view of its specialist expertise and, of course, subject to its constitutional mandate.

For Constitutional Court watchers the minority decision in this case might be of much interest. Although the minority decision was authored by Justice Chris Jafta, it was also supported by Chief Justice Mogoeng Mogoeng. To my mind there are two serious problems with the reasoning of the minority. First, the reasoning is extremely formalistic. There is no purposive interpretation of the provisions of the Bill of Rights at all and the impact or effect of the impugned provisions on the best interest of children is never considered. Second, the assumption underlying the minority judgment seems to be that social workers and police officers will always act in the best interest of the child and that their own prejudices and assumptions about poor people will never cloud their judgment.

Thus Jafta focuses on the text of section 28 of the Constitution and notes that it does not include a requirement that any decision to remove children from their parents should automatically be reviewed. Consequently, he argues, it cannot be used as a constitutional standard for determining the validity of legislation.

In the context of section 28(1)(b) read with section 28(1)(d) and section 28(2), the scope of the right to parental care cannot include parental care that is harmful or detrimental to the safety and well-being of a child. It cannot be claimed that section 28(1)(b) entitles a child to parental care that is harmful to its safety and well-being. It follows that the right to parental care envisaged in section 28(1)(b) is limited to parental care that is beneficial to a child. In other words, this section does not protect harmful parental care. Consequently, legislation which authorises a removal of a child from harmful parental care cannot limit the right in section 28(1)(b).

Completely failing to ask how these provisions would be applied and what impact this might have on the rights of the child to parental care, the minority merely focuses on the wording of section 28 – as if the provisions of the Bill of Rights have not been written in broad and general terms and are not in need of interpretation and amplification by the Constitutional Court – and concludes that these provisions do not prohibit Parliament from empowering officials to remove children from their parents, as long as those officials believe that this is warranted.

The possibilities that state officials will be influenced by anti-poor attitudes and will not always know better than the poor parents (who will be “legally” robbed of their children) what is in the best interest of their children, are never considered. This paternalistic attitude is surprising, to say the least and, to my mind, displays the kind of attitude that is difficult to square with a progressive, pro-poor and pro-transformation vision of the Constitution.

Get up, stand up for your rights!

Jan 5th, 2012
by Pierre De Vos.
87 comments

Most people think,
Great god will come from the skies,
Take away everything
And make everybody feel high.
But if you know what life is worth,
You will look for yours on earth:
And now you see the light,
You stand up for your rights, jah!

Get up, stand up! (jah, jah! )
Stand up for your rights! (oh-hoo! )
Get up, stand up! (get up, stand up! )
Don’t give up the fight! (life is your right! )
Get up, stand up! (so we can’t give up the fight! )
Stand up for your rights! (lord, lord! )
Get up, stand up! (keep on struggling on! )
Don’t give up the fight! (yeah! )

- Bob Marley

The more things change, the more they stay the same. It might be a new year, but we are still talking about the same things we talked about in 2011…. and 2010…. and 2009. One of the things we keep on talking about is the seemingly never ending question of whether the Premier of the Western Cape, Helen Zille, is fatally addicted to Twitter. Another, and somehow related, question we cannot seem to get away from is the question of whether Cape Town is a racist city or not. 

At the end of last year Premier Zille (who has not learnt yet that one cannot have a sensible political argument in 140 characters at a time and whose Tweets often create the impression that she lacks an appreciation of the political sensibilities and the life experiences of the vast majority of South Africans who happen not to be white and upper-middle class like herself) got involved in another spat on Twitter about alleged racism in Cape Town.

In the Mail & Guardian online Verashni Pillay wrote a beautiful piece, in which she responded quite appropriately to this spat. Writing about her time living in Cape Town she remarked:

What drove me slowly mad was how racism was an elephant in the room that you could not talk about. How white Capetonians would cringe and turn away when the topic came up, or look at you in blank confusion and ask why you were so obsessed with race. It was how, yes, there is racism everywhere in South Africa but in Cape Town it is not possible to even discuss it. And how Cape Town, with its pristine beaches, its lofty Parliament buildings and history of activism, was somehow supposed to be better than that.

Yep, my experience exactly. When my former partner was the victim of racial discrimination several years ago and we challenged the discrimination in the Equality Court, many people in Cape Town continued to argue with us that we were being “overtly sensitive” and that what we experienced were not racism at all but “something else”. (What this “something else” might be, was never made clear to me and when several years later I landed up at a party with one of the owners of the club that discriminated against my partner, the co-owner admitted that racial discrimination indeed occurred that night – on the instructions of the club owners.)

But that is not what I want to talk about in this first post of the new year. Instead, I wish to pose a different (and, perhaps, difficult) question: why is it that so many people – even middle class people who are otherwise empowered and confident – complain about experiencing racism and racial discrimination (in Cape Town and elsewhere in South Africa), but seldom challenge this discrimination in the Equality Court?

In the racist world in which we still live in South Africa, fighting to achieve a non-racial society is always going to entail a long-term struggle. If one is never prepared to stick one’s neck out and to take on the racists, the sexists, the homophobes, the ethnic chauvinists, things will never change – or they will not change as fast as they should and as fast as we are entitled to.

Some people seem to think that now that we have achieved our democracy and our freedom, there is no need to struggle against the injustices that still haunt our land. If one experiences racism or racial discrimination in Cape Town, for example, one can just give up on Cape Town and move back to Johannesburg, thus avoiding places where one suspects one will be discriminated against.

Instead of living like truly free and equal citizens who confidently assert their right to be treated with equal dignity and respect on every square centimetre of land in South Africa - whether in Cape Town, in Pofadder or in Polokwane – some people still avoid confronting the racists, the sexists, the homophobes, and never try to force them to change. Some people do not seem to think that one must first get mad and then get even by making these racists pay for their actions, actions which affront the human dignity of others.

This can – theoretically, at least – be done quite easily. The Promotion of Equality and Prevention of Unfair Discrimination Act designates most Magistrates Courts as Equality Courts and one can approach any such court when one believes one has been discriminated against. The clerk of the Equality Court will then assist one to ensure that the case is brought before the Equality Court (in terms of section 20 of the Act).

Although not all clerks of the Equality Court are as well trained as they should be and although it can be difficult to get hold of these clerks (perhaps because they are required to deal with so few cases each year and are assigned other duties), a little prodding and nagging would usually do the trick. One does not need to engage the services of a lawyer in order to win an Equality Court case and the clerk of the court is supposed to assist any claimant to ensure that one’s documents are prepared properly  and papers are served on the alleged discriminator.

The form that must be completed is also available on the internet (see here) and is easy to fill in. The Act also assists the complainant by stating that as long as one has made out a prima facie case of discrimination the onus shifts to the other party who will have to convince the court that no unfair discrimination took place. This is so because discrimination is notoriously difficult to prove as those who discriminate will always have another reason for the different treatment (“there is a private function”, “only members are allowed”, “the flat has already been rented out”, “the dress code was not complied with”, “there is a waiting list for housing opportunities”).

To circumvent this problem one only has to show that a policy, law, rule, practice, condition or situation directly or indirectly imposed burdens, obligations or disadvantage on; or withheld benefits, opportunities or advantages from, a person on one or more of the prohibited grounds, including race, sex, gender, language, ethnicity and sexual orientation.

In other words once one has shown that one was treated differently than others in some way and that one of the differences between oneself and those treated differently was one’s race, sex, gender or sexual orientation, one has provided prima facie proof of discrimination and the discriminator will then have to justify this discrimination by showing that it was not unfair. This will not be easy to do.

And if one wins the case, the Equality Court is given wide powers to make an appropriate order which may include:

  • an order making a settlement between the parties to the proceedings an order of court; an order for the payment of any damages in respect of any proven financial loss, including future loss, or in respect of impairment of dignity, pain and suffering or emotional and psychological suffering, as a result of the unfair discrimination, hate speech or harassment in question; 
  • after hearing the views of the parties or, in the absence of the respondent, the views of the complainant in the matter, an order for the payment of damages in the form of an award to an appropriate body or organisation;
  • an order restraining unfair discriminatory practices or directing that specific steps be taken to stop the unfair discrimination, hate speech or harassment;
  • an order for the implementation of special measures to address the unfair discrimination; an order directing the reasonable accommodation of a group or class of persons by the respondent; 
  • an order that an unconditional apology be made;
  • an order requiring the respondent to undergo an audit of specific policies or practices as determined by the court: an appropriate order of a deterrent nature, including the recommendation to the appropriate authority, to suspend or revoke the licence of a person.

Yet, few South Africans ever approach the Equality Courts for assistance. Why there should be such a discrepancy between the large number of acts of discrimination experienced by South Africans, on the one hand, and the number of cases brought to Equality Courts on the other, is difficult to explain.

Can it be that some of us have been so brainwashed by apartheid that we do not all believe that we have a right never, ever, to be discriminated against? Have we been made to accept the fact that discrimination against us will occur and that it is best not to make a fuss and just to “move on”? Are too many of us afraid that the economically and socially dominant racists will brand us as overtly sensitive or as people who are “playing the race card”?

The law does not always serve ordinary people well. Sometime, instead of helping us to achieve justice the law may perpetuate injustice. But the Equality Act is a powerful tool to help every individual in South Africa who has experienced discrimination to reclaim their dignity and to achieve a semblance of justice. It is time that more South Africans stand up for what is right and use this law as it was intended to be used.

The (moral) Wasteland

Nov 21st, 2011
by Pierre De Vos.
115 comments

Over the past few days I have been thinking again about The Reader (Der Vorleser), a novel by German law professor and judge Bernhard Schlink, published in Germany in 1995. The Reader is a parable of sorts, as it deals with the difficulties the post-war German generation have had in comprehending the Holocaust. How should modern Germans deal with the knowledge that their parent’s generation perpetrated (or acquiesed in the perpetration of) the Holocaust?

In this novel, the struggle of the post-war generation to come to terms with the past, and its difficulties in deciding how it should view the generation that took part in, or witnessed, the atrocities committed by the Nazi regime is problematised and the complexity (or perhaps impossibility) of the task, is explored.

Michael – the young “reader” of the title – who had an affair with a much older woman called Hannah many years after the war (a woman who is later implicated in Holocaust atrocities), finds it impossible to imagine what Hannah was like “back then”.  He feels a difficult identification with the victims of Hannah’s deeds when he learns that Hannah often picked one prisoner to read to her, as she chose him later on, only to send that girl to Auschwitz and the gas chamber after several months. Did she do it to make the last months of the condemned more bearable? Or to keep her secret safe? Michael’s inability to both condemn and understand springs from this. He asks himself and the reader:

What should our second generation have done, what should it do with the knowledge of the horrors of the extermination of the Jews? We should not believe we can comprehend the incomprehensible, we may not compare the incomparable, we may not inquire because to make the horrors an object of inquiry is to make the horrors an object of discussion, even if the horrors themselves are not questioned, instead of accepting them as something in the face of which we can only fall silent in revulsion, shame and guilt. Should we only fall silent in revulsion, shame and guilt? To what purpose?

I have been thinking about this novel because of a broedertwis (a friend joked that it was actually a sustertwis) raging on the pages of Rapport newspaper between myself and those (including an English novelist called Dr. Marie Heese) who argue that one of the most egregious injustices is being perpetrated at the University of Stellenbosch because some classes are now being conducted in both Afrikaans and English (alternating between the two in the same class).

I responded (rather sharply) to an assertion by Dr Heese that she was “die bliksem in” (“bloody outraged”) about my previous writings on this topic, arguing that this sudden moral outrage is rather rich, coming from a person who supported apartheid and never expressed any moral outrage about the oppression, legalised racial discrimination, torture and murder perpetrated by the apartheid regime in order to sustain a system, imposed in the name of the preservation of white Afrikaners, and branded a crime against humanity by the United Nations. This women, I said, knew nothing about justice, honesty and plain common decency. (Ironically, in the same issue of Rapport Dr Heese offered a partial defence of Bantu Education - which she enthusiastically took part in — rather underlining the point I was making about her immoral, apologist, view of apartheid.)

Elsewhere in that august paper Pieter Malan (one of its editors) took exception: “Met wie praat jy, professor? Ek kom uit ’n ordentlike huis. Ek laat my nie so behandel nie.” (“Who are you talking to, Professor? I come from a decent family. I do not allow myself to be treated in this manner.”) While admitting that we should not close our eyes to the “faults” of our parents, Malan argued that Afrikaners have a lot to be proud of: the industrialisation of the country, creating the best infrastructure on the African content and building Afrikaans into a fully fledged academic language (albeit not one in which Dr Heese wishes to publish her novels) were all achievements of Afrikaners who now face a grave threat to their future because their children (even those who fight for Afrikaans at Stellenbosch) choose to write their post graduate dissertations in English and dream of living in Sydney or London.

Which brings me back to The Reader.

What does it mean to come from a “decent” Afrikaans family? Can one credibly call that family “decent if its members actively or passively participated in the perpetuation of a crime against humanity? How should we deal with the “faults” of our parents — if those faults include the enthusiastic support for the systematic dehumanisation, denigration, oppression and (at times) torture and murder of fellow citizens — all based on the belief in the racial superiority of whites?

Is it morally defensible (and factually correct) to argue that Afrikaners created the modern capitalist state in South Africa and to suggest that this is something to be proud of? What does it say about the nature of the moral universe inhabited by these children of apartheid, when some of them express moral outrage about the manner in which Afrikaans is treated (although this treatment complies with the provisions in the Constitution), but have consistently failed to express similar moral outrage about the injustices related to our apartheid past in which their parents were implicated, or the injustices of hunger, homelessness and inequality that haunts present day South Africa?

These are not easy questions to answer. It is emotionally and intellectually challenging even to begin to contemplate the past in an honest and fearless manner. After all, none of us wish to think of ourselves as being morally tainted because of what our parents did (or, yes Dr Heese, because of what we did or allowed to be done). How can we judge our parents when they loved us (even when they hated fellow black South Africans and enthusiastically supported or took part in their oppression), when we fondly recall how — as toddlers — our parents lulled us to sleep at night by humming the well-known Afrikaans lullaby, Siembamba? Siembamba/ mama se kindjie/ Siembamba, Mama se kindjie/ draai sy nek om/ gooi him in die sloot/ trap op sy kop/ dan is hy dood (“Siembamba/ mothers child/ Siembamba/ mothers child/ break his neck/ dump him in a ditch/ step on his head/ then he’ll be dead”.)

No wonder so many of us find it impossible to begin to comprehend the incomprehensible horror of apartheid and the complicity of our parents in this horror. No wonder we shy away from any but the most flippant acknowledgment of the “faults” of our parents and then cover this up by extolling the virtues of a regime that supposedly “created” the current infrastructure and the modern capitalist (albeit a bifurcated) state which was rigged disproportionately to benefit whites. (No matter that the infrastructure was paid for with the taxes generated by white-owned mining companies and businesses who made exorbitant profits because they could rely on the cheap migrant labour that was an inherent part of the apartheid system. No matter that the infrastructure was partly built with the hands of black men paid a pittance because of the racist employment policies embedded in the legal system.)

No wonder so many seem to find it impossible to reflect seriously on what our parents actually were like “back then”, what they were actually thinking and saying and doing while they rode on the “Whites Only” buses and bought stamps at the “Whites Only” counter of the post offices, when they euphorically cheered on DF Malan or HF Verwoerd and JB Vorster and PW Botha (all Chancellors of Stellenbosch University) at National Party or Republic Day rallies while these leaders extolled the virtues of apartheid and argued that black South Africans were essentially sub-humans who did not deserve to be treated equally with whites who, after all, had a duty to protect white civilisation against the black hordes? No wonder those of us who grew up in the apartheid era (and maybe supported it by getting involved in the Bantu education system), prefer to believe that we only meant well — although some “mistakes” were admittedly made.

Yes, in order to preserve our sanity and our sense of ourselves as basically decent and “innocent” people, we might believe that we have no choice but to maintain that we come from “decent” families. We might believe that we have no choice but to insist that nobody treat us as if we are morally tainted. We dare not admit that we lack the moral decency to target our outrage at the real injustices of past and present day South Africa and not at the failure of institutions like the University of Stellenbosch unconstitutionally to preserve the white privileges obtained through the exploitation of black South Africans.

I am not being flippant when I say these are emotionally and intellectually complex and difficult issues to deal with. No person wishes to be told that his father or mother was a moral degenerate and few of us would agree with such a proposition if we could find any way to deny or reinterpret the facts on which such a charge was based. If one lives in a country that underwent a managed transition, a country in which the oppressors were never fully defeated or exposed and humiliated, in which a Truth and Reconciliation Commission granted amnesty to the perpetrators of gross human rights violations and in which there was never an acknowledgment that the evil of apartheid was not perpetrated by a few “bad apples” like Eugene de Kock, but by every person who benefited from the system yet supported or acquiesced in it, this task of at least acknowledging the impossibility of facing up to the past honestly and fully becomes very difficult.

Most of us Afrikaners (and many white English speakers too) live in a moral wasteland: most feel that we must either deny the past and our complicity in it (or at the very least re-write that past to erase our complicity in it), or we must acknowledge the full horror of that past, which seems to mean that we would lose our very humanity, our ability to be human beings with an inherent human dignity with moral agency and the right to express our views on present day injustices in our country.

Some of us try to find another way. We grapple with the impossibility of squaring our love for our parents and our family (and the langue we all speak) — all implicated in the horrors of the past — with attempts to imagine how it was “back then”; what our parents said and believed and did to maintaining a system branded a crime against humanity, all because they loved us and wanted to provide us with a better life, even when this was at the expense of the humanity (and sometimes the lives) of the majority of South Africans.

To square these things is impossible. To stop trying is immoral.

PS: I borrowed some of the information about The Reader for this piece  from Wikipedia. See: http://en.wikipedia.org/wiki/The_Reader

Why historical context still matters in South Africa

Nov 16th, 2011
by Pierre De Vos.
103 comments

How should South Africans deal with our troubled past? When we discuss matters such as land reform, race-based affirmative action, or the so called right of students to be taught in Afrikaans, what is the historical lens through which we should view our past? What role should we accord the past (however conceptualised) when we interpret the Constitution? And what does it say about our ethical commitment to social justice and fairness when we choose a particular lens through which to view our past?

The South African Constitution is different from many other Constitutions as it is said to be historically self-conscious. How we view the past and how we frame current human rights and other constitutional issues with reference to our past, will play a role in how we interpret and apply the provisions in the Constitution. Justice Ishmael Mahommed provided a tentative answer to these question when he stated in S v Makwanyane, that the Constitution:

retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic. The past institutionalized and legitimized racism. The Constitution expresses in its preamble the need for a “new order … in which there is equality between … people of all races”.

As I have written before, not all South Africans have a shared understanding of our past and the injustices highlighted by Justice Mahommed in his Makwanyane judgment. Much of the disagreement about Afrikaans at Stellenbosch, about race-based affirmative action and about land reform and property rights, arise because of these often unspoken or unacknowledged differences in the way we conceptualise our past.

Although most South Africans would now profess to repudiate the racism and authoritarianism of the pre-democracy era, they vehemently disagree about the significance of this past for understanding present-day ethical and legal questions. The historical lens through which we view ethical and rights-based legal issues also differ and influence the way in which we view our own position vis-a-vis the rights in the Constitution and our ethical commitment to fellow South Africans.

Some South Africans argue that 1994 represented a clean break with the past. In 1994, so they say, we drew a line through the past and this allowed us to dump and bury all the moral baggage which some of us acquired because we remained silent about the injustices around us or because we actively supported or took part in perpetrating these injustices and enjoyed the fruits of this injustice. Apartheid was terribly wrong, they say, but that is all in the past now. We need to look forward and must forget what happened because we have made a clean break in 1994. Those who harp on about the past are merely trying to take white South Africans on a guilt trip in order to justify the current or possible future exploitation of whites (the very category whose existence they also now deny) and the denial of their rights which are now enshrined in the Constitution.

Closely related to (and sometimes overlapping with) the above is the view about our past based on the notion of moral equivalence. According to this view the past must be seen through the eyes of the white settlers. It allows for an interpretation of our past by relying on the justificatory lens of the cold war and the “fight against communism”, or on the colonialist lens according to which the “white mans burden” required whites to retain political and economic control of South Africa in order to “civilise” the country, build up its infrastructure and “prepare” black South Africans for the democracy which finally arrived in 1994.

This group argues that although racial discrimination was not very nice, white South Africans really had very little choice but to advance their own economic and social interests because the liberation movements were primitive communists who would have killed all whites in their beds had black South Africans been “allowed” to vote. In as much as there was a struggle, the oppressor and the oppressed were morally equivalent – both doing bad things to advance their respective causes. Because both sides did bad things for essentially good reasons, it is morally imperative that we forget about the past and move on. This would mean that we accept that the perpetrators of apartheid were just as much the victims of the human rights abuses of the liberation movements in particular and black South Africans in general as the oppressed were victims of apartheid.

The historical context out of which democratic South Africa was born is therefore irrelevant. So, when we discuss the question of language at Stellenbosch University, it is not acceptable to take into account the fact that the National Party promoted a form of Afrikaner Nationalism in the name of imposing Afrikaans as the dominant language on all South Africans, or that apartheid Premiers – from DF Malan to PW Botha – served as Chancellors of Stellenbosch University, or that most of the parents who now agitate for the right of their children not to have to listen to any lecturer speaking English in a class voted for the National Party, enthusiastically discriminated against black South Africans and sometimes took part in the killing and torture of black South Africans in the name of preserving the white “civilisation” with Afrikaans at the top of the dung heap.

The members of yet another group have turned into historical nihilists. Some people, they argue, always do bad things to other people if they have the opportunity to do so to advance their own economic or social interests. One cannot merely focus on South Africa’s recent colonial and apartheid past because that would single out one group (white South Africans) for moral opprobrium when oppression and exploitation can be traced back all the way to the Garden of Eden.

Where do we draw the line, they ask? Why should we focus on the evils of apartheid when other groups throughout history have exploited and oppressed their opponents? All that matters is the here and now, because if we look back we will only see a series of really unsavoury actions by various groups and we will never be able to make decisive judgements about who the “good guys” and the “bad guys” were.

I differ from the views outlined above. The starting point for any ethical engagement with our country’s past must surely be an acknowledgement of the particularly egregious nature of colonialism and the system of apartheid which logically followed from it. This is an ideological and ethical stance based on the assumption that the particularly unjust social and economic conditions we are confronted with in democratic South Africa can be directly attributed to the colonial conquest of South Africa by white settlers and the merciless economic exploitation of black South Africans and the (often violent) imposition of a European-based culture, religion and languages. This had (and continues to have) a devastating effect on the dignity of indigenous people and on the moral and economic well-being of all South Africans.

This stance is based on the idea that we have a duty to respond to the immediate world around us and that our immediate past which have directly shaped (and misshaped) our world must be responded to, carefully, sincerely and honestly. We cannot sweep the past 100 years under the carpet because these event shaped our world and created much of the injustice we live with now.

When Afrikaners ignore our recent history and claim to have become victims of a terrible injustice because some of their children can no longer enjoy the privilege (not available to the majority of previously oppressed South Africans) to study exclusively in their own language at an institution bankrolled by the democratic state, I see a terrible moral failure at the heart of their argument because of their unwillingness to respond to the immediate past and to face up to it.

Their lack of historical perspective and their failure to appreciate that — given our colonial and apartheid history — the agitation for a dominantly Afrikaans University (instead of a truly inclusive multilingual institution) represents a moral failure on their part. As what they demand would perpetuate the privileges they obtained through exploitation and a dehumanising policy of apartheid, this position is (in my view) deeply immoral — no matter how earnest and sincere the intensions of the agitators.

Of course, this set of assumptions and the lens through which I initially view such controversies is my starting point, but it is not my end point — and this complicates my argument. There are many other lenses through which one could view our past and many of them would be valid. One could embrace a class analysis and note how apartheid functioned for a long time as a handy tool through which cheap unskilled labour were produced to fuel the capitalist machine. Or one could note the gendered nature of much of the exploitation and oppression that occurred in the past and which lingers to this day in the form of patriarchy. One could adopt a “queer” reading of our past and focus on the way in which colonial missionaries, in cahoots with African traditionalists and patriarchs of every stripe, have managed to impose a heteronormative world view on society which (even today) results in the most despicable forms of discrimination and violence agains gay men and lesbians.

Because the hegemonic power of the denialists discourse is so strong, there is a tendency (also on my part) to avoid talking about these complex matters. A hegemonic discourse (denying the relevance of our immediate past) can best be confronted by presenting a counter-hegemonic discourse (noting the moral failure of the oppressor through the lens of colonialism and apartheid). The difficult task is to start by looking at our world through the lens of colonialism and apartheid, but not to get stuck there, to add nuance to our understanding of the world we live in and to confront injustice — also when it is perpetrated in the name of an anti-colonialist and anti-apartheid struggle.

When one engages with an issue such as whether some have a “right” to be taught in Afrikaans, it is difficult to present a nuanced argument because the denial by the taalbulle of the ethical universe which have shaped our world and continues to shape it. The denial of the importance of context and history and of its influence on ethical (and therefore also human rights) issues in present day South Africa forces one to confront and expose the immorality of their position in stark terms, leading to a simplified engagement with the past.

How do we move forward? What the taalbulle do not understand is that a more nuanced engagement with our past, based on the basic premise that the very existence of Stellenbosch University as a dominantly Afrikaans institution, was made possible by a system that oppressed the majority of South Africans. After accepting this, we can have a real discussion about the future. One cannot take the milk out of a cup of coffee and cannot undo the effects of colonialism and apartheid (that is why we cannot all just stop speaking English, or Afrikaans for that matter). But one can try to engage with these issues in a pragmatic and slightly less self-righteous way. Those who do, might find that it is possible to reach compromise solutions.

Helen Zille, the HIV populist

Nov 10th, 2011
by Pierre De Vos.
66 comments

Political leaders holding executive office (like the President and the nine Premiers) cannot be expected to know everything about every conceivable subject. That is why they employ advisors to assist and advise them. However, sometimes they think they know everything about everything (always a dangerous thing for a politician to think, as we know from experience with former President Thabo Mbeki) and sometimes their advisors fail to do their job properly.

Thus President Jacob Zuma, apparently ill served by his legal advisors, have made some serious blunders over the past two years. First he relied on an obviously unconstitutional provision to try and extend the term of office of a great Chief Justice, then he appointed a retired Constitutional Court judge to lead an inquiry into Bheki Cele’s fitness to hold office when he was legally required to appoint a judge from the High Court or the Supreme Court of Appeal.

It is unclear whether Premier Helen Zille relied on advisors before making truly astonishing statements about the criminalisation of sex or whether she came up with her hare-brained scheme all by herself.

Zille said earlier this week that she was so worried about the spread of HIV and its cost to the government that she wants men who have multiple sexual partners and refuse to use condoms to be charged with attempted murder. Zille told a wellness summit hosted by the provincial health department in Newlands on Tuesday that it was time the government shifted its exclusive focus from treating diseases to preventing them and promoting wellness.

If she was quoted correctly, her statement represents a frontal attack on the Rule of Law and the basic principles of criminal law applicable in any democratic society.

If she said that men who have multiple sexual partners and refused to use condoms should be charged with attempted murder regardless of whether they are HIV positive and regardless of whether they knew that they were HIV positive, she was advocating the criminalisation of conduct that no civilised society based on the Rule of Law and a respect for human rights would criminalise.

A fundamental principle of the criminal law in a country that adheres to the rule of law is that one could only be charged and found guilty of a crime (or attempting to commit a crime) if one could be proven to have had the intention to commit the crime or (in exceptional cases) had the knowledge that his or her actions could have resulted in the commissioning of unlawful action and nevertheless negligently proceeded to act. In South Africa culpable homicide is the unlawful and negligent killing of another. Attempted murder is committed where one inentends to kill somebody else but fails in doing so.

Merely potentially endangering the life of another can never be culpable homicide or attempted murder and one cannot be convicted of attempted culpable homicide. One can only be convicted of attempted murder if it can be proven that one had the intention to kill another but failed to do so. In S v Naidoo the SCA set out the position quite clearly:

What the crimes of murder and culpable homicide have in common is a fatal outcome for a human being. Absent a death, absent the particular crime. What they do not have in common is that absent a death, there may be a conviction of attempted murder but not a conviction of attempted culpable homicide. The reason for the difference lies in the distinction between the two forms of mens rea which are essential elements of the respective crimes of murder and culpable homicide.

The crime of murder cannot be said to have been committed unless the act or omission which caused death was intentionally committed or omitted and death was the desired result, or, if not the desired result, at least actually foreseen as a possible result the risk of occurrence of which the accused recklessly undertook and acquiesced in. In short, dolus in one or other of its manifestations (directus, eventualis, indeterminatus, etc) is the kind of mensrea which must have existed. Where the act or omission is accompanied by such dolus but death does not in fact ensue, it is easy to understand why the accused’s conduct should be visited none the less with penal sanctions. A deliberate attempt to commit the crime of murder cannot be ignored and left unsanctioned simply because the perpetrator has failed to achieve his or her objective.

Where it can be proven that a person intentionally tried to kill another by infecting him or her with the HIV virus (which would be very difficult to prove) a person could be charged with attempted murder. But where someone does not know his or her HIV status and have sex without a condom, it could never lead to a criminal conviction for attempted murder due to the absence of intention. If somebody negligently transmits HIV to another and that person actually dies, the person could theoretically be charged with culpable homicide, but proving the causal link between the sexual act and the death of the person as well as the negligence on the part of the accused would be almost impossible to do.

Given the fact that anti-retrovirals are now widely accessible, a person who responsibly gets tested and take this medicine will in all probability live a long and productive life, which means that it would be almost impossible to prosecute someone for attempted murder as the state would not be able to show the causal link between the sexual act and the death.

In the age of ARVs, deliberately transmitting HIV to another could not be viewed as attempted murder because one’s action would not lead to the death of the other person. Where a person dies of an HIV related illness, the accused charged with his or her murder or with culpable homicide would argue that but for the failure of the deceased to take ARVs death would never have occurred and that there was hence no causal link between the sexual act and the death.

There are good reasons for this. In a constitutional democracy — as opposed to a theocratic state — the criminal law cannot be used to punish individuals merely for not conforming to Judaeo-Christian moral standards regarding sexual behaviour. If one criminalised all unprotected sex with one or several partners, one would be punishing people for something that might never have happened (HIV infection, leading to death) or for something they might not have foreseen at all (as they might not have believed that they were HIV positive at all or might not be HIV positive). One would be punishing people for not behaving in a manner one believes is appropriate — regardless of the consequences or potential consequences.

The criminal law then becomes an oppressive and authoritarian instrument of social control, turning large numbers of ordinary citizens into instant criminals. Where the criminal law punishes behaviour not based on the consequences or potential consequences of said behaviour but for its own sake and without taking into account the guilt of the accused, the Rule of Law is fundamentally undermined.

Perhaps Premier Zille was misquoted or she “misspoke” — as Hillary Clinton famously “misspoke when she said she had to evade sniper fire when she was visiting Bosnia in 1996 as first lady when, in fact, she was greeted by flower-bearing children. Perhaps she meant to say that somebody who has multiple sexual partners and knows that he is HIV positive but nevertheless fails to use a condom and then transmits HIV to a partner who later dies from AIDS related illnesses should be charged with attempted murder.

Even so, this view is quite shockingly misinformed and would have disastrous consequences. It would create an incentive for some men not to get tested for HIV and hence not to take ARVs. Not only would the men then die needlessly but those men would be also far more likely to transmit HIV to their sexual partners. This is because an HIV positive person on ARVs whose viral load becomes undetectable are far less likely of transmitting HIV than one who is not on ARVs and whose viral load is high.

Criminalising sexual behaviour in this way might therefore increase the rate of HIV transmission. It will certainly not decrease it.

Julius Malema is often criticised for being a populist — saying things that are truly idiotic or even dangerous but which he knows would be popular with his constituency. But he is not the only populist politician around. This statement by Premier Zille is a classical populist statement: idiotic and dangerous but quite popular with a certain constituency. She should have known better. And if she did not, she should have known to ask somebody who is a bit more knowledgable than herself to inform her about the legal and medical issues around HIV.

Is it in the public interest to reveal details of the sex lives of politicians?

Oct 31st, 2011
by Pierre De Vos.
45 comments

When revelations were first made that then US President Bill Clinton had sex with an intern called Monica Lewinsky, he famously stated: “I did not have sexual relations with that woman, Miss Lewinsky”. Looking directly into the TV camera and conjuring up what appeared to be genuine outrage, he told a blatant lie to the American people. However, after he survived  an impeachment trial before the US Senate, his-approval rating went up as high as 73% and he eventually retired with an approval rating of 68%.

The American public and media seem to hold their elected representatives (but not always themselves and the Hollywood Stars they seem to be obsessed about) to a very high moral standard. When a politician has sex with somebody (of either the same or of a different sex) who happens not to be his or her spouse, that politician’s career usually comes to an abrupt end because the private conduct of a politician is assumed to say much about the character and integrity of the politician involved. Publishing revelations about the sex lives of politicians are therefore always assumed to be in the public interest.

Yet, the American public seem to have forgiven Clinton for both his sexual dalliance and for lying about it, perhaps because many voters viewed Clinton as a good President and because the economy was booming as his presidency came to a close. This suggests that, despite assertions to the contrary, concerns of American voters about jobs, money and their own prosperity trump concerns about the private sexual conduct of any of their elected politicians.

It is somewhat unclear whether South Africans believe that it is in the public interest for the media to report on the sex lives of politicians. When, shortly after he took office, it was revealed that President Jacob Zuma had fathered a child with the daughter of one of his old friends, there was widespread outrage amongst members of the public about this news. Very few people argued that the newspapers should not have reported the facts about this affair at all or invoked our President’s right to privacy. President Zuma’s standing was eroded by the revelation, suggesting that many South Africans thought it was in the public interest for the media to report on the extra-marital sexcapades of our President.

This response might have had something to do with the fact that there was already some unease about President Zuma’s values and his sexual behaviour among many South Africans. The revelation seemed to re-enforce concerns some South Africans had about President Zuma and many believed it was in the public interest to publish revelations about his sex life because it said something vital about his character and would affect how people would judge his performance as President of the country.

However, revelations in City Press on Sunday that Sports Minister Fikile Mbalula twice had sex with Joyce Molamu (referred to by newspapers as “a Johannesburg model”) while still supposedly being happily married to someone else and the fact that Minister Mbalula (through his lawyer) first denied to City Press that he had had sex with Ms Molamu, before admitting to other news outlets that he did indeed have sex with her, have been met with far less concern or outrage. For some reason many South Africans now feel that Mr Mbalula’s private life is not relevant and does not say anything worthwhile about his abilities to do his job as the Minister of Sport(s).

In a democracy it is appropriate that public figures are sometimes treated differently than private citizens and that the former sometimes be entitled to a lesser degree of privacy than the latter. In an open and democratic society, voters have a right to be informed about all aspects of the lives of our politicians that they believe are relevant to enable them to make an informed decision about whether to support a particular politician or not. The difficulty is that it will not always be apparent what information voters would deem relevant.

For example, should the sexual orientation of an elected official ever be relevant? Should it be relevant that he or she has had an extra-marital dalliance? Should it be relevant in what house the politician lives, what clothes he or she wears and how he or she treats his friends? I can imagine that for some voters these issues will be deemed relevant, but does this mean the media has a right or even a duty — in the public interest — to publish revelations of this kind about a politician?

As a general rule, I would argue that information about the private life of a politician should not be deemed relevant and it should be assumed that it would not be in the public interest for the media to publish this kind of information about a politician. But this will change when these private aspects of a politician’s life relate directly to the job description of the politician or where the private conduct contradicts the publicly expressed views and professed values of that politician.

When a politician campaigns against same-sex marriage and argues that marriage is a solemn religious pact between two people of opposite sexes (to the exclusion of all others), the fact that the politician had an extra-marital affair with somebody of the same sex or of the opposite sex, would obviously be relevant and publishing such revelations would be in the public interest. But if a politician belongs to a party like the ANC who supports gay rights, then revelations about a politician’s sexual orientation should probably be deemed irrelevant.

But other scenarios are more murky. One may assume that the personal characteristics of a politician like honesty, integrity, diligence and fidelity may affect the manner in which that politician does his or her job. Where the private actions of a Minister suggest that he or she is not honest, is not capable of diligence and lacks integrity, this might well have a potential impact on the manner in which that Minister does his or her job. Thus, if a Minister has been convicted of theft or fraud or is a known and un-rehabilitated alcoholic that would surely always be relevant as it would probably have a very serious impact on the manner he or she does the job the person was appointed to do.

But if a Minister had an extra-marital dalliance, will that always provide an indication of how a Minister will perform his official duties? Personally, I would think not. However, this will depend on the very specific context of each case. Getting this call right will not always be easy as it requires one to make an overall assessment, taking into account all relevant factors and then weighing these up to decide whether the revelation of private information about a politician is in the public interest or not.

What one should guard against, however, is the danger of publishing information about a person for no other reason than to satisfy the prurient interests of the public in salacious information about the sex lives of public figures.

On “Indians”, “Africans” and a lack of emotional intelligence

Oct 24th, 2011
by Pierre De Vos.
89 comments

Almost all of us have had a moment (well, probably far more than one moment) when we were asked an impossibly difficult question or were subjected to an arrogant put-down or cutting remark, but we could not think of the witty, incisive or clever retort that would have saved the day for us. Only much later — after feeling the sting of humiliation for a few minutes or hours — would we think of the clever or witty thing we could have said in response to the question or attack.

I would guess that many candidates interviewed by the Judicial Service Commission (JSC) for judicial posts must have kicked themselves after an interview for not being able to provide the killer answer to members of the JSC to deal with the often hostile questions put to him or her.

One would have thought that Judge Isaac Madondo might have had such a moment during his interview before the JSC for the position of KwaZulu-Natal Judge President and that he would subsequently have thought what he could have said to answer the particularly tricky question in a more astute manner. Sadly, he had either not reflected on the matter; or he had, but had not been able to conjure up a more palatable answer.

Judge Madondo was vying for the post along with acting Judge President of KwaZulu-Natal, Chiman Patel. During his interview Judge Madondo told the commissioners that he did not think an Indian candidate would be suitable to fill the position of Judge President. When IFP MP Koos van der Merwe asked him if it was time to appoint an Indian judge president, Madondo replied, without hesitation: “I don’t think so. We still have things to address, imbalances, all kinds of things which need more insight, which a person who is not [a black] African cannot be privy to…. We were oppressed, but not in the same way.”

Now, this was by no means a subtle, carefully thought through or endearing answer. It could easily be read as the cynical deployment of apartheid race categories in a shameless attempt to realise one’s very personal ambitions: playing the race card to get a job one would not have gotten but for the fact that one happened to be African. On its face, the statement suggests that Judge Madondo believes that Indians have not suffered as much as Zulus during the apartheid era and that this meant that a person who used to be classified as Indian during apartheid cannot become Judge President in KwaZulu-Natal today. The impression created is that the judge is a bit of a racial bigot.

Yet, his answer contains a kernel of truth which an agile mind would easily have been able to mould into a more palatable answer without shying away from the fact that our Constitution allows race to be taken into account by those who must decide on the appointment of judges.

A better answer would clearly have been that any person — no matter what his or her race — who is committed to the values enshrined in the Constitution and has the necessary legal skills and leadership abilities and enjoys the support of his or her colleagues would be suitable for appointment as Judge President. One could then have added (pretending to be humble and unambitious) that one believed that as an African with considerable legal experience and a strong commitment to access to justice, one would bring special insights and skills to the job if one were to be appointed by the JSC.

One could have continued to quote section 174(2) of the Constitution, which states that the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed. Noting that race can never be the only criteria taken into account when appointments are considered and rejecting the idea that a person could be disqualified from appointment merely for being an Indian or any other race, one could nevertheless have emphasised the fact that one believed that it was important to give due weight to section 174(2).

One could have added that this did not meant that one believed that every judge was a prisoner of his or her race or gender or that one believed that all women thought the same, all Africans thought the same, or that all Indians thought the same. On the contrary, one could have said, it is racist and deeply demeaning to Africans and Indians (and to men and women) to assume that a person is no more and no less than the sum total of his or her racial or gender identity, to assume that each person has no autonomy to decide for himself or herself how to respond to a particular situation. Nevertheless, one could have added, it cannot be denied that on the whole one’s life experiences and one’s cultural background and one’s religious beliefs would often play some (but not an overarching) role in how one behaved and what kind of manager one might become.

This would have been a perfectly acceptable answer not shying away from the fact that race does and should play some role when considering appointments to the bench. However Judge Madondo did not provide this answer in his interview and neither did he provide a similar answer much later after he had had a chance to reflect on the matter.

I thought, giving the judge the benefit of the doubt, that the crudeness of his original answer and his inability to discuss the complex issue of racial transformation in the judiciary in a nuanced manner may have been excused because of the stress associated with a JSC interview. On reflection he would surely be able to conjure up the better, constitutionally valid, and more subtle answer — as we all do when we are caught out and we have time to reflect on what we might have said.

But to my surprise, this is not what happened, leaving us with the impression that the judge is not capable of producing the more subtle and constitutionally viable version of his answer. In an interview in the Sunday Times, conducted after his remarks had made headlines, the judge made an even bigger hash of the questions put to him. Here is a sample of his responses:

But you don’t think an Indian judge should be JP? No, that’s misquoted altogether.

You were asked if it was time to appoint an Indian JP and you said, “I don’t think so.” Is that what you said? Yes. I stated my reasons.

So that’s an accurate quote? It’s out of context. What I was saying, in terms of the demographics, I don’t think so. Secondly, there are a number of hardships among the people who suffered. A person from another race may not be in a position to know them in the same way as I do. That’s what I was saying. Not because he’s an Indian.

Because he’s not black? No, that’s nonsense. If someone thinks like that, it’s nonsense.

You’re saying that, as an Indian, he doesn’t have the same insight? Do you have an insight of the rural people in the villages? Do you? Unless you have an insight into the way they live and the hardship of their experience …

So should only Zulus be appointed to the bench in KZN? I don’t even want to answer that question because it doesn’t make sense at all.

Wouldn’t only Zulus have that kind of insight? No. I was not saying that. I’m talking about equal representation in terms of the demographics; I was not saying only Zulus must be appointed judges in KZN. That’s nonsense.

It is not clear why insight of rural people will make one a better Judge President. It might well add something to one’s abilities to perform well as a judge dealing with matters normally brought to court by rural people — after all, understanding the lives of those who appear before one may (but does not always) lead to decisions that are wiser and better informed. But a Judge President’s job is mostly administrative in nature and he or she will seldom if ever hear cases in which the litigants are rural village dwellers. The Judge President decides who is allocated which case and ensures the smooth running of his court, but how his African background would make him  better at this job is not immediately clear. If he had the backing of the majority of judges or of all the African judges in his division, this might have been relevant, but he does not so his race could not be relevant in this manner.

In any case the failure of the Judge to provide a credible and nuanced answer to an admittedly tricky question — not once, but twice — leaves one puzzled. Either judge Madondo has very crude views on race and racial transformation or he lacks the emotional intelligence to reflect on and revise his answers for the better. Either way, based on his responses to the JSC and the Sunday Times, it is not clear that he would make a suitable Judge President for the KwaZulu-Natal or any other division of the High Court.

What shall we do about the Reverend?

Oct 21st, 2011
by Pierre De Vos.
83 comments

Reports that a Cape Town pastor has called gays and lesbians drug addicts and child molesters and said that Archbishop Emeritus Desmond Tutu will burn in hell for supporting the LGBT community will probably be welcomed by some of the more bigoted readers of this Blog. According to the Mamba Online website the Rev Oscar Peter Bougardt, a Christian Minister of the Gospel of Jesus Christ and senior pastor at Calvary H.O.P.E Ministries in Mitchells Plain (what a wonderfully Orwelian name!), launched this attack against gay and lesbian people in unsolicited e-mails to local websites catering to the gay and lesbian community.

Bougardt said that his “mission is to take out all lesbians and gays because they are a bunch of idiots who confuse our children”. The pastor also said that “their lifestyle is an abomination to God and that gays and lesbians should know that they are going to burn in hell”. Apparently the majority of us are also drug addicts and:

offer our teenagers and children drugs and alcohol and once they are drugged and drunk they are seduced and end up having sexual relation with them…. Lesbians and gays are a curse on any community. I believe that a man that sleeps with another man doesn’t deserve to be part of a healthy community and I will mobilise the masses to stop them.

Asked about his comments he said:

If I say take out homosexuals, I mean they must be removed from our communities…You interpret that I am inciting violence against homosexuals, I see it is making our people aware that their lifestyles should not be approved by any healthy community. Just as homosexuals have the right to express their views, I have the right to express mine.

When I read these statements I could not help but laugh and, I have to confess, for a moment it did cross my mind that the pastor might have been smoking or drinking the strong stuff before he made these utterances. Then I felt sad and a bit sorry for the gentleman who styles himself as a man of the cloth.

Why would he have constructed for himself such a warped, perverted and hating religion? Why the obsession with sex and drugs and child molestation? Does he himself perhaps have an issue with his sexuality or with other urges that remain unspeakable to him? After all, the biggest homophobes are often repressed homosexuals. Or is he targeting the gay and lesbian community because he wishes to exploit the prejudices of other members in the community in the hope that the donations would start flowing into his ministry?

I have no way of knowing what his motivations might be for writing to these websites. Maybe he is a sincere person with strong if somewhat bizare views. Or maybe he has been watching too many YouTube videos of Ugandan pastors and feels jealous of them for having cornered the market on hate.

Of course, it would be easy to shut up the pastor and make a few hundred thousand Rand for a gay cause or organisation. After all, the words would almost certainly constitute hate speech in terms of section 10 of the Equality Act. As those who read this Blog know, that provision states that words that could reasonably be construed as having had the intention to be hurtful towards gays and lesbians would constitute hate speech. Advocating the “taking out” of homosexuals from society, sounds like the talk of an apartheid-era hit-squad member.

If Afriforum wanted to demonstrate that it did not only have an obsession with the ANC but was really concerned about hateful rhetoric in our society, it would take the pastor to the Equality Court and get that court to order him to stop making such statements (and to stop making an utter fool of himself too, one must add). His words sound not too different from the singing of the “Kill the Boer” song by Julius Malema. But while Malema invoked the struggle tradition, the pastor will obviously invoke his right to religious freedom (and the religious tradition centred around hate and homophobia) as well as his right to make a fool of himself. (Although, I am not sure the latter right is explicitly written into the Constitution.)

Yet, I for one would not be running off to the Equality Court. While I find his words hateful and deeply obnoxious, I do not think the best way to deal with the “pastor” is to ban him from writing these letters. Far better to mock the poor man or, alternatively (if that is your kind of thing) to show Christian compassion towards this seemingly deeply damaged soul by praying for him in the hope that he will eventually manage to deal with his suspiciously obsessive attitudes towards gay men and lesbians.

Besides, as I have written before, I am almost certain that section 10 of the Equality Act is overbroad (as it includes a far broader definition of hate speech than the definition contained in section 16 of the Constitution) and is hence unconstitutional. I would therefore not want to invoke a section of the law that I believe is unconstitutional. As I criticised President Jacob Zuma for invoking an unconstitutional provision of the Judges’ Remuneration Act to try and extend the term of office of the Chief Justice, it would be rather hypocritical of me now to invoke this provision which I believe is similarly unconstitutional.

But how should relatively reasonable, logical and respectful people deal with this kind of utterance? Am I not being a bit precious by arguing against the hate speech route? I happen to be an upper middle class white man living in the suburbs and I am usually able to avoid weirdo’s who make statements like those uttered by the pastor or who would want to do physical harm to me – unlike some other gay men and lesbians who face the most vile and sometimes lethal homophobia of members of their own communities and do not have the luxury of avoiding the homophobes.

Well, my belief is that banning these kinds of words will not stop homophobia. Neither will it stop homophobic attacks on gay men and lesbians. People will still think these things and they will still say these things – just not on public platforms. Some people will also act on their fears and hatred by attacking gay men and lesbians to make themlseves feel better about their internalised self-hatred.

The only thing that will stop this kind of exploitative hatred is a change of heart on the part of those people brainwashed by religious groups to believe that other human beings supposedly created in the image of God are inherently bad or even evil. In other words, we need to demonstrate how absurdly contradictory the teachings of the more extreme religious groups are and we need to change the way people think.

The only way people will change is if those of us who are more reasonable, more compassionate, more respectful of human difference, convince enough people that these hateful views are illogical, irrational  and immoral. We will only do so by using rational arguments (and the odd bit of ridicule and mockery). When those of us who are empowered to do so stand up for ourselves and for members of our community and if we demonstrate through our words and our deeds that people like Mr Bougardt is at best a deeply damaged souls and at worst, just a populist charlatan, we will begin to win this fight.

Personally, I am going to write to Rev Bougardt (pastor.bougardt@gmail.com) and tell him the good news that it is ok to be gay and that if he has any problems with his sexuality I will be very happy to talk to him about this. After all, it is only the Christian thing to do to help another person to overcome his or her self-hatred.

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