Dikgang Moseneke

Invitation to Claude Leon Human Rights Lecture

UCT Law Faculty invites you to the second annual Claude Leon Human Rights Lecture to be delivered by

Deputy Chief Justice Dikgang Moseneke

on 29 September 2011 at 17:30 in LT1 in the Kramer Law Building, Middle Campus, UCT, on the topic:

“Striking a balance between the will of the people and the supremacy of the constitution.”

Snacks and drinks will be served after the lecture. Please RSVP to Rene Francke at 021 6503072 or rene.francke@uct.ac.za

SPONSORED BY JUTA PUBLISHERS

A tale of two judges

Sep 5th, 2011

by Pierre De Vos.

150 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What we talk about when we talk about transformation

Aug 29th, 2011

by Pierre De Vos.

107 comments

“Transformation” has become one of the most used but least examined words in our political discourse. It is a word often bandied about by people in a way that suggests a rather narrow understanding of the word – as if transformation is about replacing reactionary middle aged white patriarchs with reactionary middle aged black patriarchs. If this is what we mean by “transformation”, then we do not understand the word as it has been developed by the Constitutional Court and academics.

We are then also demonstrating that we have a rather narrow and less than inspiring imagination and have little ambition to fundamentally change the nature of power relations in our country away from an authoritarian apartheid past to a more inclusive and egalitarian future.

This does not mean that transformation – even in the constitutional sense – is not a complex and sometimes contested term. We might not all agree on the exact nature of the end goal of transformation, but we must surely agree that transformation cannot mean a harking back to the values and beliefs held dear by those who governed the apartheid state or acted as their hand-maidens. If we were to take the notion of transformation seriously, we cannot use it to mean the opposite of what it was intended to mean.

Thus, even though Deputy Chief Justice Dikgang Moseneke once remarked that ”the meaning of transformation in juridical terms is as highly contested as it is difficult to formulate,” support for transformation must surely mean that we understand that patterns of discrimination, disadvantage and harm are still perpetuated by the way in which society was structured by and during apartheid and remains structured – to some degree – even today. No wonder that in the context of talking about a transformative constitution, former Chief Justice Pius Langa approvingly quoted the following passage dealing with the need for transformation:

[Transformation] requires a complete reconstruction of the state and society, including a redistribution of power and resources along egalitarian lines. The challenge of achieving equality within this transformation project involves the eradication of systemic forms of domination and material disadvantage based on race, gender, class and other grounds of inequality. It also entails the development of opportunities which allow people to realise their full human potential within positive social relationships.

This means that one cannot credibly support any notion of transformation while opposing equality for all social groups regardless of their race, gender, religion or sexual orientation. Belonging to an organisation which promotes hatred of individuals based on their race, gender, religion or sexual orientation or which propagates the idea that people are not as worthy of respect and concern as others because of such attributes (and hence have to be forced to change who they are as human beings to be accepted and respected by society), would mean that one cannot be viewed as a supporter of transformation. Rather one, must be viewed as being anti-transformation.

Former Chief Justice Langa also pointed out that transformation – in the constitutional sense – requires the establishment of a culture of justification, “a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force of its command. The new order must be a community built on persuasion, not coercion”.

Thus a person who fails to justify decisions – especially controversial decisions – taken as a politician or a judge, or a person who tries to silence those who disagrees with him or her by using ad hominem attacks against those critics and opponents (claiming that the opponents are yearning for apartheid, hate the President or the Premier, is plotting against the opposition, is a deployed cadre, or do not support transformation), is not a person who can be said to have embraced the ideal of transformation as embodied by the Constitution. As Chief Justice Langa said:

The Constitution demands that all decisions be capable of being substantively defended in terms of the rights and values that it enshrines. It is no longer sufficient for judges to rely on the say-so of parliament or technical readings of legislation as providing justifications for their decisions. Under a transformative constitution judges bear the ultimate responsibility to justify their decisions not only by reference to authority, but by reference to ideas and values.

Where judges, politicians and those who take part in the public discourse, fail to provide cogent reasons for their arguments, instead, thrashing their opponents on completely spurious grounds by questioning their right to speak or to be heard, then such judges, politicians and debaters are opponents of transformation – not supporters of it.

But, credible support for a transformative vision of the Constitution requires us to do even more. As Chief Justice Langa remarked, this approach to transformative constitutionalism requires us to view the law differently from the way it used to be viewed by the supporters of apartheid and by the legal conservatives who are – alas – still very much with us and among us (in University lecture halls, in law firms, at the Bar and on the Bench). This is because the transformative vision of the constitution requires an acceptance of the politics of law.

There is no longer place for assertions that the law can be kept isolated from politics. While they are not the same, they are inherently and necessarily linked. At the same time, transformative adjudication requires judges to acknowledge the effect of what has been referred to elsewhere as the ‘personal, intellectual, moral or intellectual preconceptions on their decision-making. We all enter any decision with our own baggage, both on technical legal issues and on broader social issues. While the policy under apartheid legal culture was to deny these influences on decision-making, our constitutional legal culture requires that we expressly accept and embrace the role that our own beliefs, opinions and ideas play in our decisions. This is vital if respect for court decisions is to flow from the honesty and cogency of the reasons given for them rather than the authority with which they are given.

This means that we have to accept that the beliefs, values, and history of a judge will be important for the way in which she or he does his or her job and that these factors will play a role in the interpretation and application of the Constitution and of other law.

That is why it will always be important and relevant to ask whether a judicial candidate belonged to the Broederbond or some other secret organisation; whether a candidate opposed apartheid or defended the policies of the apartheid state or of an apartheid Bantustan; whether the candidate has demonstrated a commitment to the values enshrined in the Constitution by word and deed; whether the candidate belongs to a racist, sexist or homophobic organisation; whether the prospective judicial candidate has demonstrated an appreciation of the need to persuade others through reasoned debate by providing reasons for a decision and by engaging in a measured and logical manner with opponents.

For all the above reasons the discussions on the suitability of appointing Justice Mogoeng Mogoeng as Chief Justice is important. It helps to remind us that “transformation” is not only about replacing white faces with black faces (although changing the racial and gender composition of the bench is important) - it is also about the values and beliefs; about what is best for all South Africans, for the poor, for women, for religious minorities, for gays and lesbians, for people living with HIV and people living in rural areas who are often being subjugated by patriarchal chiefs.

For those who wish to run away from the transformative vision of the Constitution and those who actively oppose transformation, the nomination of Justice Mogoeng will come as a godsend. Just to remind us why Justice Mogoeng appears to be an anti-transformation judge, here are some of the concerns raised about him:

The National Association of Democratic Lawyers claims that, in 1988, Mogoeng pushed for a convicted man, whose legal team did not represent him properly, to be executed in the Bophuthatswana Supreme Court and that this happened while Mogoeng was a prosecutor serving a Bantustan government;
The Johannesburg Bar Council criticised Mogoeng for not giving reasons for dissenting when other Constitutional Court judges ruled that a person could not be defamed by being a labelled a homosexual. This would seem to indicate a prejudicial attitude towards the gay community, the bar council said;
Civil society organisations such as Section27, the Lesbian and Gay Equality Project, the Sonke Gender Justice Network, the Tshwaranang Legal Advocacy Centre and the Treatment Action Campaign have lodged submission with the Judicial Service Commission (JSC) about Mogoeng’s nomination, questioning his approach to gender-based issues;
City Press reported that Mogoeng is a counsellor of Winners’ Chapel International, Johannesburg. The church claims to cure “deviations” such as homosexuality by prayer and counselling and this means Mogoeng is a member of an organisation that discriminates against a social group.

Now, if one sees transformation only as a race issue and if one is opposed to the restructuring of South African society along more egalitarian and humane lines, then one might well dismiss these concerns. That is why the “nomination” of Justice Mogoeng has been defended by some - usually by attacking the motives of those who have expressed these concerns, and by trying to discredit and silence those who raise concerns about the nominees transformation credentials by absurdly suggesting that raising questions is anti-transformative in itself.

For me, whether one is prepared to consider these concerns or not says much about one’s politics and whether one supports a progressive or a reactionary vision for our country. This does not mean that I am suggesting those who support justice Mogoeng’s nomination has no credibility and should have their views dismissed out of hand. I am merely claiming that they cannot pretend to be progressive or to speak in support of a progressive cause.

Many South Africans are deeply conservative or even reactionary in their politics – as regular posts by contributors to this Blog demonstrate – and it is important that their voices are heard. But when engaging in debate, they should not try and mislead the public by claiming they are progressive when, instead, they are seemingly yearning for a society that (apart from the issue of race) looks quite similar to the closed, patriarchal, socially reactionary and authoritarian society we suffered under during the apartheid era.

Meanwhile justice Mogoeng will have the opportunity to respond to the sustained criticism and to questions about his fitness to lead the South African judiciary for the next ten years when he appears before the Judicial Service Commission on Saturday. Whether he lashes out at his critics in a desperate attempt to evade scrutiny and be held accountable; whether he evades answering difficult questions by playing the court jester; or whether he commits himself to a truly transformative constitutional project will determine whether he regains some legitimacy and public confidence in his abilities or whether he completely destroys trust in himself and in the judiciary which he might be appointed to lead.

A shallow argument not entirely based on the facts

Aug 24th, 2011

by Pierre De Vos.

64 comments

The FW de Klerk Foundation’s Executive Director, Dave Steward, has responded to a previous post on this Blog in which I argued that the imposition of a wealth tax would probably be constitutionally valid and criticised the Foundation for stating that our Constitution prohibits laws that distinguish between people based on race. In the interest of open and frank debate I posted the reply in the Seminar Room and I invite readers to study this response.

Unfortunately the response is not as rigorous and informed as it could have been. But the debate will not be taken further if I did not show the Foundation the curtesy of engaging with its response, something I am happy to do below.

The Foundation admits that it based its original response “on a face value reading of the [relevant sections of the] Constitution” and not on the interpretation of those provisions by our Constitutional Court, which is the body that definitively interprets the provisions of the Constitution. This was, of course, an oversight by the Foundation as the provisions of the Constitution can only properly be understood with reference to the binding interpretation of the relevant provisions by the Constitutional Court. Relying on an ostensible “face value reading” of the provisions of the Constitution is a rather risky exercise as one then assumes that one’s own supposedly common sense interpretation trumps the authoritative interpretation provided by our highest court.

The Foundation then proceeds to make the following statement:

The judgment [in the Van Heerden case], written by Deputy Chief Justice Moseneke is, indeed, singularly devoid of any concern for the constitutional rights of the white people. He goes through a number of judicial contortions to exclude the right of white citizens to protection against unfair discrimination in Section 9(3). He comes up with the remarkable idea that all and any discrimination against whites in terms of 9(2) is fair provided only that it is not so egregious that it would threaten the long-term achievement of equality.

This statement is surprising and, I have to say, in my opinion not entirely in line with the facts.

First, the claim that the judgment shows no concern for the constitutional rights of white people is impossible to square with the judgment of Deputy Chief Justice Moseneke. As anyone familiar with the judgment would know, Moseneke’s judgment does display concern for the rights of white people – although the concern might arguably not meet the special standard expected by the FW de Klerk Foundation.

I would argue that justice Moseneke engages in a serious and responsible manner with the question of redress by taking the text of section 9 of the Constitution seriously and by trying to balance the constitutional demand for racial redress with the constitutional demand to respect and protect the rights of everyone – including, obviously, white South Africans. The Foundation might feel aggrieved that this balance was not struck differently, but implicitly claiming that no balance was struck at all is at best misleading and at worse an outright falsehood.

Justice Moseneke makes the entirely uncontroversial point (quoting from the Bato Star judgment written by former Chief Justice Sandile Ngcobo) that:

In this fundamental way, our Constitution differs from other constitutions which assume that all are equal and in so doing simply entrench existing inequalities. Our Constitution recognises that decades of systematic racial discrimination entrenched by the apartheid legal order cannot be eliminated without positive action being taken to achieve that result. We are required to do more than that. The effects of discrimination may continue indefinitely unless there is a commitment to end it.

As all the judgments in the Van Heerden case make clear, this will sometimes require the imposition of race-based corrective measures. I think the judgment of justice Yvonne Mokgoro (agreeing with justice Moseneke) expresses this idea most crisply:

Another aspect of section 9(2) is that it allows a person or categories of people to be advanced. This is important because of the nature of the unfair discrimination that was perpetrated by apartheid. The approach of apartheid was to categorise people and attach consequences to those categories. No relevance was attached to the circumstances of individuals. Advantages or disadvantages were metered out according to one’s membership of a group. Recognising this, section 9(2) allows for measures to be enacted which target whole categories of persons. Therefore a person or groups of persons are advanced on the basis of membership of a group. The importance of this is that it is unnecessary for the state to show that each individual member of a group that was targeted by past unfair discrimination was in fact individually unfairly discriminated against when enacting a measure under section 9(2). It is sufficient for a person to be a member of a group previously targeted by the apartheid state for unfair discrimination in order to benefit from a provision enacted in terms of section 9(2).

No one can surely deny that black people were previously targeted by the apartheid state for unfair discrimination. This means that race based measures aimed at addressing the effects of these apartheid policies will be permissible and will, indeed, sometime be required. But this is not the end of the enquiry, as justice Moseneke made clear that the measures that are aimed at redressing the effects of past racial discrimination and which are aimed at black South Africans may not be abused. Courts must therefore also consider the rights and interests of those not targeted to benefit from the redress (in others words, the very white people whose rights the Foundation wrongly claims justice Moseneke is not concerned about).

This must be done by focusing on the effect of the corrective measures on the group that is not benefiting from the redress measures. As Justice Moseneke stated in the judgment:

However, it is also clear that the long-term goal of our society is a non-racial, non-sexist society in which each person will be recognised and treated as a human being of equal worth and dignity. Central to this vision is the recognition that ours is a diverse society, comprised of people of different races, different language groups, different religions and both sexes. This diversity, and our equality as citizens within it, is something our Constitution celebrates and protects. In assessing therefore whether a measure will in the long-term promote equality, we must bear in mind this constitutional vision. In particular, a measure should not constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened.

Although the FW de Klerk Foundation may argue – wrongly in my view – that Justice Moseneke’s judgment fails to show sufficient concern for the rights of white people, the claim that it shows no concern is therefore clearly false. One hopes that a retraction in this regard will be forthcoming. The interpretation provided by Moseneke does not strip white people of their rights. Where, to use an extreme example, Parliament passed legislation that prohibits all employers from promoting white candidates for the next 20 years, such a provision would clearly be unconstitutional as it would impose an undue burden on white South Africans.

My view is that a one-off tax aimed at redress would not impose such an undue burden. The almost negligible effect of the imposition of such a tax is neatly illustrated if one recalls that wealthy Germans (initially almost exclusively living in Western parts of Germany) have been paying a solidarity tax of up to 5.5% since 1991 in order to finance the reconstruction of East Germany. This money is directly transferred to states in the Eastern parts of Germany. It disproportionately affect West Germans, but so far I have not read anything suggesting that Germans living in the Western part of their country are rioting or are arguing that the tax demeans them or undermines respect for their human rights. That may be why the German Constitutional Court has also declined to hear a petition from a lower court on this matter.

The Moseneke judgment is therefore clearly in line with the views of Sachs, quoted approvingly by the Foundation, that to “allow section 9(2) to be interpreted in a way which says: provided the measure affecting the advantaged persons (whites, men, heterosexuals, English-speakers) is designed to advance the disadvantaged, the former can be treated in an abusive or oppressive way that offends their dignity and tells them and the world that they are of lesser worth than the disadvantaged.” Moseneke does not interpret section 9(2) in that way – that is why Sachs concurred in the judgment of Moseneke.

Second, the idea that it might be acceptable for one group (in this case whites) to be treated differently from another group (in this case blacks) in order to achieve the realisation of substantive equality is not remarkable at all. The Supreme Court of Canada as well as courts in many other constitutional democracies embrace this idea. Apart from the US Supreme Court – who is working with a text that is more than a hundred years old – there are very few courts in modern constitutional democracies who do not embrace the substantive notion of equality postulated by Moseneke, Mokgoro, Sachs and Ngcobo (and indeed endorsed by all the other judges of the Constitutional Court) in the Van Heerden judgment.

The notion is also accepted in international law, as a quick perusal of the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the jurisprudence of the UN Human Rights Committee, the UN Committee on Economic Social and Cultural Rights and many other quasi-judicial convention bodies required to interpret international human rights treaties will attest.

Anyone familiar with academic writing in the field of equality law will also know that this idea is not remarkable at all and that it is widely embraced and discussed by legal academics and philosophers. A quick perusal of the South African Journal for Human Rights (SAJHR) would have revealed to the Foundation that academics from all over South Africa, as well as academics from other (far from radical) universities such as Oxford, have recently published admirable articles about this concept. Probably the most famous and influential living legal philosopher (and by no means a radical ivory tower academic), Rondald Dworkin, has also written admiringly about this idea.

Now, the FW de Klerk Foundation may want to argue that the conventional wisdom on equality law is wrong and that we should rather turn the intellectual clock back 50 years and embrace a formal notion of equality. Or it may want to make more nuanced arguments – as Prof Henk Botha of Stellenbosch has done in an admirable and thoughtful article published in the SAJHR – about the paradox at the heart of modern equality law, namely that in order to remedy discrimination and redress disadvantage, we have to invoke broad social categories and identities (such as race) which are themselves implicated in relations of inequality and subordination.

Sadly the Foundation did not do any of the above, but instead relied on “common sense”, which sometimes is another word for the shared prejudices and blind-spots of an insular group of privileged but out of touch individuals trying to protect their own interests. The response of the Foundation therefore represents a lost opportunity to engage in an informed and considered manner with the difficult questions around race, redress and equality. Maybe it might want to take another stab at it and produce a more thoughtful and intellectually honest and rigorous argument. I would again be happy to publish it on this Blog in the interest of vigorous and hopefully informed debate.

What happened to reasoned debate?

Aug 22nd, 2011

by Pierre De Vos.

96 comments

The debate about the wisdom of appointing Justice Mogoeng Mogoeng as Chief Justice, given the fact that he has had some ethical lapses in the past, that he appears to have a “gender problem”, and that he belongs to a church that holds extreme views – even by the standards of a modern evangelical church – has revealed much about South Africa’s racial fault-lines and about the very different conceptions about democracy of various groups in South Africa.

This Sunday, City Press uncovered an unreported judgment (now online in the Seminar Room) of the nominee in which Mogoeng, reviewing the case of a woman brutally assaulted by her boyfriend, reduced the man’s sentence from 2 years in jail to a fine of R2000. The woman was tied to a vehicle with wire and dragged at a “fairly high speed” behind the car for some 50 metres on a gravel road. The paper says that after hearing the matter on review in 2001, Mogoeng held that the two years sentence of Eric Mathibe was “too harsh by any standards”, noting, among other things, that he had been “provoked” by the complainant.

Mogoeng noted the complainant did not sustain “serious injuries”. She had several abrasions on her stomach, right leg and both knees. The victim was in pain, but Mathibe refused to let her have medical treatment on the day of the incident. He took her to consult a doctor the following day. The trial magistrate defended the sentence by saying assault on women was a problem in the district and that the crime was “barbaric and ancient”. Mogoeng seemingly did not agree, handing down a judgment that would surely upset any self-respecting gender activist. It would be akin to a judge setting aside a jail sentence of a farmer who had seriously assaulted a farm worker and had dragged the farm worker behind his bakkie on the basis that the sentence was too harsh (something, alas, that is not unknown to our judicial system).

City Press and its sister paper Rapport also reported that Mogoeng belongs to Winners Chapel International church, an institution that believes homosexuality is a perversion and members can buy the Bishop’s book on how to get divine deliverance from it. The church was founded and is guided by Nigerian Bishop David Oyedepo, says the report. It believes in faith-healing for various diseases and has published the testimony of a man whose prayers it claims brought a baby into the world after the mother had been pregnant for five years and seven months, but was unable to deliver the child. Mogoeng is said to deliver “pastoral services” for the church, but does not preach.

Of course, one would not have to look very far to find South Africans who share these views. Many men believe that women “provoke” men into raping them by wearing short skirts or high heels. Other men believe women “provoke” men to assault them by not obeying the orders of their husbands or boyfriends or by flirting with other men. And many South Africans have quite strange and even downright weird religious beliefs while others are athiests or are agnostic.

However, the question is not whether these beliefs are widespread, but whether it is appropriate that the Chief Justice of South Africa should hold such beliefs – given the commitments contained in our Constitution. The beliefs of a nominee for Chief Justice should not be problematic merely because they differ from one’s own. The beliefs should be problematic – as they might very well be in this case – because they cannot be squared with the values enshrined in the Constitution, which values the Chief Justice would symbolically be embodying and would be required to uphold – regardless of his personal beliefs.

If one happens to be a right-wing traditionalist or a patriarch one would be hard pressed not to cheer on this possible appointment of Justice Mogoeng as Chief Justice. (That is why the Freedom Front Plus and Inkatha Freedom Party should find it easy to support this nomination.) If one happens to embrace the progressive values enshrined in the Constitution and if one is honest with oneself and not overtly defensive, one would have to admit that one could not – with a clear conscience – support such an appointment. (Cosatu and the SACP should therefore really be deeply worried about the nomination of Mogoeng as Chief Justice.)

Or so it seems.

But this is not how the debate has unfolded. Many seemingly progressive and respected individuals, people whose views one would otherwise take seriously and respect, have sprung to the defense of the nominee on the basis that he was black and hence could not be criticised because it was not allowed to criticise a black nominee as this would “undermine” him or on the basis that he was nominated by the President and hence that it would be insulting to the President to criticise the nomination. Other conservative voices have criticised the appointment – perhaps because they would criticise any decision that our President makes – no matter how wise that decision might be.

Personally I find the reasons for defending the nominee startling, to say the least. Perhaps it says much about the manner in which we have all been infected and tainted by our apartheid past, that so many South Africans are incapable of making a reasoned assessment about the wisdom of the nomination, based on their values and principles and not based on some other kind of misplaced solidarity, prejudice, hatred or defensiveness.

Not all South Africans seem to have been able to escape the effects of the ideology of apartheid, which was based on the absurd and deeply offensive assumption that white South Africans were morally and intellectually superior to black South Africans and therefore deserved to be treated with more respect and concern than blacks. For such individuals – black and white - there is nothing wrong with believing that black South Africans do not deserve the best and that they should be happy to settle for second or third best.

Why else would so many people support the appointment of Mogoeng Mogoeng, whom no person – as far as I am aware – has stated is the best person for the job of Chief Justice? Have they not read the work of Steve Biko? Have they been so deeply traumatised by apartheid ideology and so bewitched by the on-going propagation of white superiority by white racists, that they do not believe that, as fellow South Africans, they deserve the very best Chief Justice – who just happens to be Deputy Chief Justice Dikgang Moseneke?

By saying this I am in no way trying to minimise the harsh and cruel effects of apartheid. On the contrary, I am taking these effects seriously but asking what can be done to free us all of a deeply ingrained but horribly offensive and corrosive apartheid mind-set that bedevils so much of our private actions and what passes as our public discourse. While many (but by no means all) white people who take part in public debates exude a kind of moral arrogance and superiority that is deeply offensive and hurtful to those who are patronised, subjected to discrimination or ignored, many black South Africans (but by no means all) seem to embrace the mediocrity ascribed to them by those very racists whom we should all surely despise and whose beliefs we should work very hard to undermine.

Secondly, I am really perplexed by the argument that we should not be allowed to comment on the quality of the candidate nominated by the President because that would show disrespect to the President. This view seems, to me at least, deeply undemocratic. Section 174(3) of the Constitution states that the President as head of the national executive appoints the Chief Justice, “after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly”

The President must consult and then – after consulting – must appoint the candidate of his choice after having taken into account the views of the JSC and the leaders of opposition parties. In 1999, in President of the Republic of South Africa and Others v SARFU and Others the Constitutional Court considered the appointment of Constitutional Court judges under the Interim Constitution, which required, inter alia, that the President had to appoint such judges “after consultation with the Chief Justice“. The court held that :

It follows … that this appointment could only take place in good faith after consulting the Chief Justice and giving serious consideration to his views.”

The heart of the matter – as also confirmed by many other judicial authorities – is that the President must consider other views meaningfully, and give them serious consideration, although it is clear the final decision rests with him. In doing so, the views of the public must necessarily play a role. If, say, the JSC informs the President that his nominee for Chief Justice lacks the gravitas, judicial stature, belief in the values enshrined in the Constitution and/or support of the judiciary as a whole and that such an appointment would be unwise – something the JSC clearly is entitled to do – the President may nevertheless proceed with the appointment.

In the absence of political consequences the President will never take the views of the JSC seriously and in the absence of a democratic debate there can therefore not be meaningful consultation between the JSC and the President. What would force the President to reconsider the appointment he wishes to make is the court of public opinion. But that court – which is conducted in the democratic space itself by all citizens - would only be able to make an informed decision on whether it supports the decision of the President if there is widespread discussion and debate about the merits and the demerits of the President’s preferred candidate.

To suggest, as some have done, that we should not be allowed to discuss – in a considered and responsible manner – whether the nominee is suitable for appointment merely because our “great leader”, our “wise father”, our “benevolent patriarch” has decided that he should be appointed, is profoundly anti-democratic and deeply insulting to the South African voters.

This does not mean that we should gratuitously insult the nominee in the process. I therefore agree with Paul Berkowitz that Zapiro’s cartoon about this matter was a deeply problematic one. As Berkowitz wrote in the Daily Maverick:

This cartoon falls far short of that standard – it may in fact be my least-favourite cartoon of his to date. In contrast to his normal scalpel-sharp analysis, this was a hatchet job. Mogoeng is painted as a sycophant, an obedient servant of the president who is being rewarded for his pliancy.

But surely it is possible to find the middle ground in between the “hatchet job” done by Zapiro on the nominee, and the sycophantic and often completely mindless and anti-democratic arguments put up in defence of Justice Mogoeng’s nomination as Chief Justice? Surely we can talk in a relatively civil and reasoned manner about what characteristics a good judge and a good Chief Justice should possess and then proceed to analyse Judge Mogoeng’s record to determine whether he indeed possesses these characteristics. Surely, in a democracy we all have both a right and a duty to apply our minds to the matter and not to jump to conclusions based on our racial insecurities, our apartheid-imposed sense of shame and self-hatred or our knee-jerk hatred of the President and the ANC?

When we engage in this discussion we are not undermining the nominee. On the contrary, we are treating the nominee with the requisite respect by taking his or her views seriously and by not treating the nominee as a disembodied symbol respresenting a specific race or gender, but as an individual human being with strenghts and weaknesses, with his own ideas and values, with an agency which the apartheid system wanted to deny all black South Africans.

Personally – for reasons provided in this and previous post - I am deeply concerned about the possible nomination of Justice Mogoeng Mogoeng as Chief Justice. In my view there is ample evidence that he is not the best person for the job and that his value system is not in line with that embodied by our Constitution. Unlike the appointment of Chaskalson, Langa and Ngcobo – which I all supported enthusiastically – I cannot support this appointment. Saying so is difficult because it exposes one to attack and accusations of racism, treachery and worse. It also possibly bedevils future interactions with the new Chief Justice and other members of that court. I would have preferred not to have to make this argument, but I would surely have been a coward if I had kept silent. Keeping silent would also have been deeply patronising to the nominee.

But in engaging in this debate it would have been nice to hear reasoned arguments that support the opposite view, arguments which analyse the nominees strengths and attempts to demonstrate why the values displayed by the nominee in his interviews and judgments are admirable and more or less in line with the values embodied in our Constitution.

So far we have been ill-served by those who defend the nomination. Their failure to make reasoned arguments in favour of his nomination impoverishes the debate and disrespects the democratic space which our Constitution envisaged would be used wisely by all citizens with the power to speak so that we can debate the issues and so that those who are required to make these difficult decisions can hopefully make the wisest possible choice.

Where are you going to stand, my fellow white South Africans?

Aug 15th, 2011

by Pierre De Vos.

492 comments

One of the things I most admire about Archbishop Desmond Tutu is that he is an equal opportunities offender. A few years ago he offended then President Thabo Mbeki for saying that there was a lack of debate inside the ANC, given that it was verboten to talk about succession inside the ANC or to question the President’s views on any number of topics without expecting some serious, flame-throwing, nuclear slap-down in return. Mbeki then, as was his wont, wrote a rather sarcastic letter in response, which I would summarise (only somewhat in jest) as telling the Arch: “You know f#k-all, and I know everything”.

Now the former Truth and Reconciliation Commission (TRC) chairperson and Archbishop has caused another stir by dusting off a recommendation of the TRC which proposed the imposition of a “prosperity tax” to raise money for redress. Addressing an audience in Stellenbosch, the former Archbishop stated that white people should campaign for the imposition of such a tax as reconciliation gesture. He explained that although today’s white population was not necessarily directly involved in apartheid, they nevertheless derived benefits from an unjust system through opportunities, lifestyles and access to services. “South Africa is infamous as one of the worst examples of inequality between the rich and poor,” he said.

The FW de Klerk Foundation, doing what it does best, jumped to defend the economic interests of white people and shot down this idea. In doing so, it made statements that are so obviously wrong — as a matter of Constitutional Law - it made me wonder whether the Foundation is not being advised by the Chief State Law Advisor or by those clever lawyers who told the President that section 8(a) of the Judges’ Remuneration and Conditions of Employment Act is constitutional. The Foundation, predictably but depressingly, rejected the idea of a reparations tax imposed on white South Africans and then made the following quite astonishing set of claims:

One of the principles [on which the post-apartheid society is based] is non-racialism and the idea that we should no longer adopt laws that are aimed at one or another racial group. It would accordingly be unconstitutional to impose a wealth tax only on one of South Africa’s racial groups. It would require the reintroduction of racial classification and of many of the other demeaning racial distinctions that were associated with apartheid. It would also be unfair. Would whites who opposed apartheid be expected to pay the same as those who supported it? Would there be different tax scales for whites who supported the ANC, the DP and the old National Party? And what about the many blacks who held well-paid positions in homeland governments? To be constitutional, a wealth tax would have to be applied to all South Africans regardless of their race.

As any second year Constitutional Law student (as well as any regular reader of this Blog) knows, the statement on the unconstitutionality of a wealth tax imposed on white South Africans is pure nonsense. Maybe the folks at the FW de Klerk Foundation have been reading too many of Ken Owens’ letters in Business Day and forgot to read either the text of the Constitution or the applicable Constitutional Court judgment on affirmative action. If they had read section 9(2) of the Constitution as well as the judgment in Minister of Finance v Van Heerden they would surely have avoided embarrassing themselves by making false statements about South African (as opposed to American) Constitutional Law.

In that judgment the Constitutional Court, (in a judgment written by Deputy Chief Justice Dikgang Moseneke) held that equality is something that must still be achieved in South Africa and that section 9 of the Constitution places a duty on all organs of state ”to protect and promote the achievement of equality” by implementing corrective measures that target groups disadvantaged by past discrimination. We cannot merely pretend we now live in a non-racial society and therefore ban all references to race in our law because if we do we will merely be entrenching white privilege — which is what the FW de Klerk Foundation’s position essentially boils down to.

The Court pointed out that “when our Constitution took root a decade ago our society was deeply divided, vastly unequal and uncaring of human worth”. Many of these “stark social and economic disparities” (much of it linked to a person’s race) will persist for a long to come. According to the Constitutional Court, corrective measures which target specific race groups are therefore constitutionally valid and in many cases even constitutionally required in order to “start a credible and abiding process of reparation for past exclusion, dispossession, and indignity within the discipline of our constitutional framework”.

The implementation of race-based measures (like the imposition of a once-off wealth tax on white South Africans to advance reconciliation and make token reparation for the wrongs of the past) is therefore not an exception to the general guarantee of equality or to a general endorsement of non-racialism. Such measures are not “reverse discrimination” or “positive discrimination” but are rather “integral to the reach of our equality protection”.

For race-based corrective measures to comply with the constitution, one must ask whether “an overwhelming majority of members of the favoured class are persons designated as disadvantaged by unfair exclusion” and whether the measures “constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal [of the achievement of equality] would be threatened”.

In the Van Heerden case the Constitutional Court had to decide whether a Parliamentary pension scheme, which — for a period of five years — provided better benefits to parliamentarians who first joined parliament in 1994, was constitutionally valid. Mr Van Heerden, an old apartheid era parliamentarian, complained that the scheme discriminated against whites because the vast majority of new parliamentarians in 1994 were black and those who served before 1994 were mostly white. The court rejected this argument, pointing out that Mr Van Heerden was still going to be far better off in terms of his pension than any parliamentarian who entered parliament in 1994 for the first time.

One question was whether the affirmative action scheme might not comply with section 9(2) because some white people also first joined parliament in 1994 and was benefiting from the scheme. Moseneke stated that as long as the overwhelming majority of those targeted are from the disadvantaged group (or, by implication and conversely, as long as the overwhelming majority of those disadvantaged are from the former or continuing privileged group) the scheme would meet the criteria for a valid scheme. So while placing a wealth tax on all people earning a certain amount would be constitutionally valid, so would a tax only aimed at white South Africans who earned a certain amount every year.

A once-off wealth tax imposed on white South Africans who earn more than a certain amount as a small gesture towards reconciliation and redress would almost certainly pass the Van Heerden threshold because whether one supported apartheid or struggled against it, one invariably benefited from it if one is a white South African (whether born before or after 1994). If I had been born black and poor, I almost certainly would not have gone to University and I would almost certainly never have been a Law Professor at UCT, earning quite a nice salary, thank you.

This does not make me feel guilty, but it does make me feel humble and aware of the injustices of the past which I benefited from. It also spurs me on to do my small bit (no matter how small) for reconciliation and redress, not out of a misplaced sense of moral superiority (how can I be morally superior if I am just another human being with my own faults, petty and probably unexamined prejudices and any number of other foibles), but this is the only way I can make sense of living as a white person in this strange place in which our apartheid past lingers like a bad smell — despite all the denials of many who benefited from it.

The fact that some whites were too lazy or stupid to get rich during the days when affirmative action only benefited white people, is of course irrelevant for this argument. (Of course today we still get affirmative action for whites in the form of rules that require children to live in the area which serves as the feeding area of certain schools who happen to be well resourced and well run or the rules of schools which say that if one’s parents or siblings went to that school one would get special treatment in admission to that school.)

But not only is a wealth tax on white South Africans who earn a minimum amount of money constitutionally valid. It is also an important and welcome idea that must be supported by all right-thinking South Africans with even a smidgen of a conscience or common sense. (By saying this I am not claiming to be better than, or morally superior to, anyone else – I am merely suggesting that whether for reasons of conscience or for pragmatic reasons, it is the right thing to do.)

Why not impose such a tax of — say — 2% or 3% of one’s annual income for a period of a year or two and then divert that tax into a special fund, administered by a respected panel of experts with the brief of funding and administering projects that would begin to address the shockingly bad facilities at many government schools frequented by the poorest of our citizens — a state of affairs indisputable caused by apartheid.

How many school libraries could be built with that money? How many fully stocked laboratories could be built with that money? How many soccer fields and pavilions could be erected with that money? How many new computer labs with internet access could be provided to students who now can only dream of having access to computers and the internet? To avoid the argument, offered by some white people, that such a scheme would be a waste of money ”because ‘they’ (always wondered who ’they’ were and if ‘they’ included white businessmen who rake in obscene bonuses paid out of the profits made possible by exploiting workers) will only steal the money”, the money could be administered separately by a well-respected panel or independent institution, headed by Mamphele Ramphele, for example.

The problem is, of course, that some white people — out of shame or ignorance or maybe a bit of both — do not want to admit that white South Africans almost all benefited from apartheid vis-à-vis black South Africans. (I have always thought that many of those who attack me and charge that I am ashamed of being white, are projecting their own sense of suppressed racial shame onto me.)

Some benefited directly through affirmative action for whites which reserved most government and many private sector jobs for whites and boosted the education of white children by spending vastly disproportionate amounts of money on the education of white children. Others benefited indirectly, by living in a society where cheap black labour was always available to look after children and clean the toilets of even relatively poor whites or by being born white to parents who benefited from apartheid and could therefore provide a better life for their children.

Before we all accept this obvious fact, show a willingness to face up to it and begin to do something about it, and resist the temptation to want to sweep it all under the carpet because of embarrassment, misplaced anger or ignorance, we are never going to be able to embark on the true road to reconciliation. Insisting on reconciliation based on a denial of the past is not doing us any good. Such a “reconciliation” is no more than an attempt to rewrite the past in order to try and ensure that the laughable but very deeply entrenched notion so central to white identity — the idea of white moral superiority — remains intact.

I am dreaming of a world in which the notion of moral superiority based on race has no place. In this world — in which every human being has an inherent moral worth but (perhaps influenced here, against my will, by my Calvinist upbringing) where human beings are never perfect — making claims about the moral superiority OR inferiority of an individual based on their race is so absurd and immoral that anyone making such a claim, defending such a claim or implicitly relying on such an assumption has forfeited the right to be taken seriously. And in yours? Where are you going to stand in this war of ideas, my fellow white South Africans?

How not to criticise a court judgment

Mar 28th, 2011

by Pierre De Vos.

14 comments

Reasonable lawyers may well disagree on whether the majority or minority decisions of the Constitutional Court judgment in the Glenister case (dealing with the unconstitutionality of the Hawks) is the more cogently argued and which of the majority or minority decision reached the desired outcome. Although the public clearly supports the majority opinion (last night on Interface on SABC TV 95% of respondents indicated that replacing the Scorpions with the Hawks was a mistake), this is of little import when lawyers discuss which of these decisions is to be preferred.

Of course, when lawyers discuss these questions one would hope that they would do so with some understanding of the unique nature of the South African Bill of Rights and that their arguments would be based on an honest and fair assessment of the judgment. American Law Professor Ziad Motala took a stab at this in yesterday’s Sunday Times, but alas, I fear his slavish pro-executive views and his rigid ideological commitments tripped him up and led him to misconstrue aspects of the judgment and to present arguments more appropriate for the United States context (with its liberal Bill of Rights) than the South African context (with its post-liberal Bill of Rights).

The same mistake has often been made by both reactionaries and authoritarian critics of our Constitutional Court.

Prof Motala argues that the majority in the Glenister case failed to consider either the text of the Constitution or the principle of the separation of powers in its judgment. “The constitution does not mandate to parliament where to locate the anti-corruption unit,” writes Motala. This is a curious statement which does not seem to conform to the facts as the majority has not ordered the parliament to locate the anti-corruption unit anywhere. It has – appropriately - left this question open to parliament to decide.

Motala also expresses concern at the manner in which the majority dealt with the various international treaties which bind South Africa and which require the SA government to create a sufficiently independent corruption fighting unit. Motala argues that:

the majority ignored all precedent and said international agreements, even though not made self-executing, create an obligation to create an independent anti-corruption entity. What makes the majority approach particularly egregious is there is no single international law text which supports their conclusion on the relationship between the anti-corruption unit and the executive. More importantly, there is not a single precedent from any country in the world which the majority could cite to support their interpretation that international law required an anti-corruption unit in terms of the framework they posited.

Motala seems not to have followed the main argument of the majority. It did not find that the duty to create an independent anti-corruption unit flows directly from South Africa’s international law obligations. Instead the majority argued (as it has done in countless previous cases) that section 7(2) of the South African Constitution places a positive obligation on the state to protect, promote and fulfil the various rights in the Bill of Rights. (Of course, the US Constitution does not contain an equivalent provision to that of section 7(2), so one might forgive the learned Professor for his mistake.)

The majority then found that corruption infringes on the rights to achieve equality, human dignity, freedom and security of the person, administrative justice and socio-economic rights. In order to comply with its positive obligation to protect, promote and fulfil these rights, the state therefore had a duty to create a sufficiently independent anti-corruption entity as only such a body would be able to fight corruption effectively.

International treaties were only used by the majority in order to help the court to interpret the text of the Constitution and to establish the scope and content of the obligation to protect, promote and fulfil this obligation to fight corruption to protect the various rights mentioned above. The majority thus turned to international law as it has done in countless other cases – including the famous Grootboom case – to assist it with its interpretation of section 7(2), read with section 9, 10, 1226,27 and 33 of the Constitution.

When the Grootboom case was decided, there was also not a single precedent from another country referred to by the Court because the text of our Constitution is rather unique. That did not deligitimise the Grootboom judgment – except, of course, in the eyes of the authoritarian left and the liberal right critics of the Court. At the time, critics of the court also claimed that the Court had involved itself in policy making and that it was therefore infringing on the separation of powers doctrine. Manto Tshabala-Msimang’s lawyers tried to put forward this view in the TAC case but this argument was rejected by a unanimous court.

Of course the argument that the Court should not involve itself in “policy matters” is based on a peculiarly liberal notion of separation of powers and on the traditional liberal assumption – now widely mocked by progressive lawyers – that at least in some cases one can draw a bright-line boundary between law on the one hand and policy on the other. But whenever a court is empowered to declare invalid acts of the executive and parliament and where a court can determine whether the other branches of government have fulfilled its positive obligations to protect, promote and fulfil the rights in the Bill of Rights, policy issues will potentially be implicated. It is not the task of the court to decide what policy the other branches of government should adopt, but it is the task of the court to say when policy choices made by other branches do not conform to the requirements set out in the Constitution (as interpreted by judges, of course).

This is exactly what the majority did here. One might disagree with its reasoning or – for ideological reasons – with the outcome of the majority decision, but to do so on the basis that the court involved itself in policy choices, is to misconstrue the nature of the South African constitutional project. Arguing that the text of the South African Constitution ”is clear on the separation of powers” is also perplexing as the phrase “separation of powers” does not appear in the text of the Constitution and the Constitutional Court has argued that it will – over time – develop its own version of the doctrine. The doctrine can therefore not be clear.

Prof Motala curiously claims an absolute certainty about the contours of our separation of powers doctrine, where there is none. He claims that the text of the Constitution is absolutely clear about this doctrine, when it is not. He claims the interpetation of the text by the majority creates “fringe meanings”, which is true, I guess, if one views it from a very particular ideological perspective, but untrue if one happens to support the creation of a truly independent corruption figting unit to protect, promote and fulfill the rights in the Bill of Rights.

The Constitution must be interpreted by the judges and different judges may well interpret different obligations differently, depending on their assessment of the text of the relevant constitutional provision, the socio-political context and of the purpose and structure of the constitutional text. One may well disagree with the specific interpretation of the text of the Constitution made by a judge (because there are almost always more than one credible interpretation of the often open ended provisions of a constitution). But to argue that the majority opinion was ideological (while the minority opinion seemingly was not) and that the majority opinion showed a great distrust for democracy and disdain for political accountability (while the minority did not), is no more than a political statement based on a particular ideological commitment to the relatively unchecked exercise of executive power.

We all have our ideological commitments, of course. Those of us who actually live in South Africa and experience the consequences of corruption and its corrosive effect on service delivery to ourselves and to others, might therefore be slightly more supportive of the majority decision than others who might have decided to leave South Africa to make a better living elsewhere, untroubled by the daily challenges of our society. We will be naive if we did not admit that ideology will often play a role in how we read and critique judgments of the Constitutional Court. I would argue that in this case the ideological choices are rather stark. Some of us might feel uncomfortable to be seen to stand on the side of the often venal political elites – others might not.

Quite frankly the separation of powers argument is a red herring. As Chief Justice Sandile Ngcobo stated at a public lecture last year, while we are still developing this doctrine we should conceptualise our separation of powers doctrine in terms of a dialogue between the legislature and the executive on the one hand and the judiciary on the other. Because the text and structure of our Constitution requires the Constitutional Court to determine whether certain policy choices of the legislature or the executive comply with the Constitution (as it has done in other cases like the Rail Commuters case, the Treatment Action Campaign case, the Khosa case, the Nicro case, and many other cases) one cannot argue in any credible way that when our Court declares invalid legislation that contains policy choices of parliament they overstep the boundaries of the separation of powers doctrine.

The Court must decide what obligations the Constitution impose (as it did here, providing cogent and reasoned arguments which one might or might not agree with, but which cannot be said to be absurd or illogical) and must then leave it to the other branches of government to comply with these obligations. This is exactly what the majority did in this case. It gave parliament 18 months to fix the problem. When it decides how to fix it, parliament will consider different policy options and one will be chosen. Hopefully it will be a policy option that complies with the positive obligations imposed by the Constitution (as interpreted by the majority of Constitutional Court judges). If it does, that will be the end of the matter. If it does not, the dialogue may continue.

Lastly, the complaint by Prof Motala that the majority rested their conclusions on “public perceptions”, seems revealing as it completely misconstrues what the Court had argued. The court – as it has done in several other cases – argued that the test for independence requires one to ask whether a reasonable person would believe that the institution under review is independent. This, however, is not how Motala presented the argument:

A judge should not be looking at opinion polls nor, for that matter, the ballot box in saying what the constitution represents. If we looked at the passions of the majority, the death penalty would have been introduced a long time ago and gay rights would have gone out the window.

This passage unfortunately does not engage in an honest and fair manner with the majority decision. Either Motala did not understand what the court meant or he has deliberately misconstrued the arguments advanced by the majority. It never said the views of the public had to determine what the Constitution meant. All it said was that one needs to ask whether – from the reasonable standpoint of the public – an independent unit has been created. This is the known test in our jurisprudence for determining independence. The fact that Motala does not know this or that he chooses to ignore it, rather discredits his whole piece of hackery.

To conclude, Prof Motala’s piece represents a lost opportunity to engage seriously and honestly with the majority decision. One may well argue that the minority decision – despite reaching an unpalatable outcome which seems to endorse potential political interference in corruption investigations – was legally the more cogent or politically more advisable. One may also argue that it is inappropriate to establish a truly independent corruption fighting unit in South Africa as this might lead to the prosecution and incarceration of one’s friends or of politicians of a party one happens to support. But then one needs to do so honestly and in a way that does not misconstrues the reasoning of the Court.

Glenister: A monumental judgment in defence of the poor

Mar 18th, 2011

by Pierre De Vos.

110 comments

Corruption is a human rights issue and the only way for a state effectively to combat corruption is through the creation of a truly independent unit that investigates corruption with a view successfully to prosecute all those who have engaged in corrupt activities. I would guess that for most South Africans this is a pretty obvious fact. Sadly, in the past some in the ANC government (and the majority of ANC delegates at Polokwane) have shown itself to be less than enthusiastic about the investigation and prosecution of alleged corruption involving party leaders or involving those closely aligned to the ANC through mutually beneficial financial arrangements and family and friendship ties.

Hence, the Scorpions were abolished and a new unit — the Hawks – were created to investigate “priority crimes”. But yesterday in the judgment of Glenister v President of the Republic of South Africa and Others a majority of judges of the Constitutional Court (in a brave and brilliant judgment authored by Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron), found that the Hawks were not sufficiently independent and that the state had therefore failed to fulfil its obligations to respect, protect, promote and fulfil the rights in the Bill of Rights as required by section 7(2) of the Constitution.

Both the majority and minority judgments emphasised the importance of fighting corruption and the need to establish a body that was sufficiently protected from political interference to do so. The minority held that the Hawks were sufficiently protected from such interference as it seemed to assume that politicians would not interfere with the Hawks (a rather surprising assumption given the allegations of interference with the far more independent Scorpions and given the interference by the intelligence services in the work of the Scorpions) and because there were sufficient checks and balances in the legislation to ensure that it would not be ”subject to undue influence” by politicians.

The majority took a far more robust approach to what was needed effectively to fight the corruption that seems to be engulfing South Africa like a tsunami. The ANC government might be tempted to try and tweak the Hawks legislation without really changing anything in order to comply with the judgment, but in my opinion the approach taken by the majority would doom any attempt merely to make some cosmetic changes to the structure of the Hawks. For the majority the starting point was the evil of corruption and the need to provide effective mechanisms to deal with it wherever it may be found:

There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.

Quoting from a speech by Kofi Anan, the majority also noted that corruption hurts the poor disproportionately by diverting funds intended for development and by undermining a government’s ability to provide basic services. Corruption thus perpetuates inequality (put that in your pipe and smoke it, Jimmy Manyi).

If one understood that section 7(2) of the Constitution requires the state to “respect, protect, promote and fulfil the rights in the Bill of Rights”, it becomes clear that the failure on the part of the state to create a sufficiently independent anti-corruption entity infringes on the rights to equality, human dignity, freedom, security of the person, administrative justice and socio-economic rights — including the rights to education, housing, and health. Corruption was therefore an assault on the poor and on those who have suffered from discrimination in the past.

What was therefore required was to create an anti-corruption unit with the necessary independence to be protected from potential political pressure. Although there are many ways in which the state can fulfil this constitutional duty, if the state fails to create a truly independent corruption fighting body it would be in breach of its Constitutional duties.

This is strong stuff. But it gets even better. What are the requirements for such an independent body?

First, the majority indicated that the appearance or perception of independence plays an important role in evaluating whether a corruption fighting body was truly independent. This meant that the state could not create a body that it claimed was independent but that did not appear independent to the reasonable member of the public:

[P]ublic confidence in mechanisms that are designed to secure independence is indispensable. Whether a reasonably informed and reasonable member of the public will have confidence in an entity‘s autonomy-protecting features is important to determining whether it has the requisite degree of independence. Hence, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.

Second, in a passage that may have consequences for our understanding of the appropriate relationship between the Minister of Justice and the NPA, the majority stated that the Constitution‘s requirement that a politician must be responsible for policing does not require that the anti-corruption unit must itself function under political oversight. This did not mean that such a body had to be insulated from political accountability. But it did mean that such a body had to be insulated from “a degree of management by political actors that threatens imminently to stifle the independent functioning and operations of the unit”.

Third, the Hawks are now “ordinary” police officials who enjoyed little if any special job security — a requirement for any truly independent corruption fighting unit. The majority pointed out that the Hawks at present can be fired by the Commissioner of Police for any number of reasons and that it appears as if he can also fire the head of the Hawks.

Although the majority does not say this, the lack of independence of the Hawks due to this provision is highlighted by the fact that our present Police Commissioner has recently been found to have acted in an unlawful manner relating to a highly problematic lease entered into to rent new Police Headquarters. If the Hawks were to investigate any possible corruption relating to this deal, the Commissioner would, in effect, be able to fire those responsible for the investigation for any of a number of reasons not officially related to the investigation.

But even if the National Commissioner of Police were not involved there could be problems with his power to fire members of the Hawks. The majority pointed out that unlike the National Director Public Prosecutions (NDPP) — who selected the head of the Scorpions from amongst the Deputy NDPPs – the Police Commissioner can be re-appointed by the President at the end of his term. As the majority pointed out, a renewable term of office heightens the risk that the Police Commissioner may be vulnerable to political and other pressures. In theory the President could therefore place pressure on the Police Commissioner to fire those Hawks who dared to investigate allegations of corruption against — say — the Guptas or — say — against the President himself.

But for the majority the gravest problem with the Hawks arises from the fact that the new entity‘s activities must be coordinated by Cabinet. The statute provides that a Ministerial Committee, which must include at least the Ministers for Police, Finance, Home Affairs, Intelligence and Justice may determine policy guidelines in respect of the functioning of the Hawks as well as for the selection of national priority offences. The Hawks is therefore not explicitly a corruption fighting unit. It is a unit that fights “priority crimes” and the politicians could decide what these “priority crimes” should be. This creates a risk of political and executive influence over the Hawks. As the majority pointed out:

It is true that the policy guidelines the Ministerial Committee may issue could be broad and thus harmless. But they might not be broad and harmless. Nothing in the statute requires that they be. Indeed, the power of the Ministerial Committee to determine guidelines appears to be untrammelled. The guidelines could, thus, specify categories of offences that it is not appropriate for the DPCI [the Hawks] to investigate — or, conceivably, categories of political office-bearers whom the DPCI is prohibited from investigating.

In other words, at present politicians can in effect decide what crimes the Hawks must investigate and, by implication, what crimes it should stay away from. This line of reasoning makes sense. If a President or other members of the executive are corrupt and wishes to avoid criminal sanction, these provisions would help them to do so. Although parliament is supposed to have some oversight function over this function, the President – as leader of the majority party — have indirect control over the majority of members of Parliament and hence could potentially ensure that no oversight takes place. If this ever happened this would completely subvert the corruption fighting ability of the Hawks – at least as it relates to politically connected individuals and institutions.

The majority made clear that it was not assuming that these powers would be abused by any politician. But where politicians are given powers over a corruption fighting unit that can be abused, that body does not have the requisite independence to make it effective.

From the above it must be clear that it is going to be difficult for the executive and Parliament to comply with the judgment by merely tweaking the existing legislation. A completely new institution with far more safeguards to secure its independence will have to be created. Of course, even such a body will only be as good as the people appointed to it. The professional naysayers will argue that such a body will never be truly independent because fundamentally dishonest or corrupt people will be appointed to it to protect the ANC.

I would disagree with such a pessimistic assesment.

Where a body’s independence is secured and where the body is protected from political interference, those who work for that body often grow in confidence and often begin to embody the values of that body. The pride and respect that comes with such a position often assists an individual to act in a manner not expected by those who might have appointed the person.

I recall the words of an apartheid era Minister of Justice who at that time appointed South Africa’s judges and who complained that “the problem with these judges is that once appointed they think they have been appointed on merit and start thinking for themselves”. Hopefully the members of an independent corruption fighting body will have the integrity to follow this route.

Meanwhile the ball is back in the ANC government’s court. Only time will tell whether it will try to circumvent the judgment with cosmetic changes to the existing legislation or whether it has also realised that corruption — whether committed by an ANC leader, a white businessman or someone who has donated pots of money to the governing party — disproportionally disadvantages the poor and will, if not checked, fatally undermine the credibility and legitimacy of the ANC government.

Why extend the terms of Constitutional Court judges?

May 24th, 2010

by Pierre De Vos.

40 comments

A journalist sent me the most curious draft Bill which – if passed – would amend section 176 of the Constitution. At present that section 176, read with the relevant legislative provisions, limits the terms of Constitutional Court judges to a non-renewable term of between 12 and 15 years (up from 7 years in the interim Constitution).

The proposed amendment of section 176 will extend the term for Constitutional Court judges who will be able to serve until they reach the age of 70 – regardless of how long they had already served on the Constitutional Court. If passed, this will mean that Chief Justice Sandile Ngcobo appointed by Jacob Zuma last year – who currently will have to retire in 2012 – would be able to serve as Chief Justice until 2023 (along with judges Cameron and Froneman who would then also have to retire in 2023).

Deputy Chief Justice Dikgang Moseneke, on the other hand, will then have to retire in 2017 – long before the end of the term of the current Chief Justice. The proposals would therefore make it impossible for him ever to become Chief Justice. Newly appointed Judges Chris Jafta and Bess Nkabinde will then serve until 2029, while Justice Mogoeng Mogoeng, a lay-preacher, will serve until 2030.

The question that comes to this suspicious mind is: why has Minister Jeff Radebe made this proposal now? Did he consult the Chief Justice and the other judges of the Constitutional Court? Why wait with the proposal until after four of the most compassionate and progressive judges have retired from the Constitutional Court and four new judges were appointed by the very guy who has had several run ins with the courts because he took money from a crook and then did favours for that crook?

I for one, smell a rat.

When the Constitution was drafted there were long debates about the term to be served by judges of the Constitutional Court. It was pointed out then that South Africa should avoid the American example, where Supreme Court justices serve for life or until they fall over or retire. Sometimes they serve for 30 years or more, thus ensuring some influence for the President who appointed them many years after that President had retired or even died.

Because judges of the South African Constitutional Court have enormous powers and because the exercise of these powers have political ramifications, it was felt that the Constitutional Court judges – unlike High Court and Supreme Court of Appeal judges – should serve a fixed term of no more than 15 years. In this the drafters of our Constitution followed the wise model of the German Constitution and the Constitutions of many other modern democracies.

The reasoning was simple and clear. Judges of the Constitutional Court exercise power that will have strong political ramifications. They are not in effect appointed by the Judicial Services Commission (JSC) in the same manner as the judges of High Courts but are selected by the President from a list prepared by the JSC. The President also appoints the Chief Justice and Deputy Chief Justice without having to follow the advice of the JSC.

By giving the President a decisive role in the appointment of the judges of our highest court, the Constitution recognises the fact that this court plays a more political role than the other courts. It can declare invalid the actions of the President, has to confirm the unconstitutionality of legislative provisions and, heaven help us ever having to go there, would be able to rule on the validity of an election result.

A relatively regular turnover of judges of the Constitutional Court would therefore ensure that a new President would have some say in the appointment of the Constitutional Court judges as the 12-15 year terms of Constitutional Court judges come to an end and they have to be replaced. This would ensure that the leader of a defeated political party would not be able to exert undue influence on our legal system by appointing Constitutional Court judges that will serve perhaps far into the future. One would not want judges to serve for 30 or 40 years when that political party whose leader had appointed them had already faded into obscurity or had even disappeared (as the National Party has indeed done).

Imagine these proposals were in place in 1990 and FW de Klerk had appointed 40 year old judges to the Constitutional Court who could then serve until they were 70. That would have meant that the Constitutional Court would have been packed with people appointed by De Klerk and would have been able to serve until 2020 – long after the demise of the National Party. If de Klerk had used his power in a Machiavellian manner to ensure the appointment of judges that were in effect pro-National Party, the Constitutional Court would have been able to thwart much of the ANC’s transformation programme.

Some High Court judges who currently still serve on our courts were appointed before the end of apartheid, but their decisions can always be appealed to the Constitutional Court. Imagine pro-apartheid judges were allowed tos erve on the Constitutional Court for the next 30 years? How undemocratic would that be?

This would have been bad for democracy, bad for the legitimacy of the Courts and bad for the Constitutional project as a whole. It would also have invested the appointment of Constitutional Court judges with so much more significance, as a President would be far more likely to choose a mediocre but reliable party hack for a position on the Court if he or she knew that the appointment would last for 30 or 40 years and might still help to thwart the political programme of a party who defeated the President’s party at the ballot box.

Regardless of how one feels about the judges presently serving on the Constitutional Court – and in my humble opinion there are several brilliant judges serving on that court at the moment, along with a few other judges who one would not be able to describe as intellectual giants – this proposal seems wrong and dangerous.

It upsets the careful balance devised by the constitutional negotiators which recognised the political role played by the Constitutional Court, but limited the term of the judges serving on this court to ensure that one party in power did not pack the court with its supporters to rule South Africa from the grave – so to speak.

In the absence of cogent and plausible arguments for this amendment, it would not be unwise to suspect that there is some inherently undemocratic about this move and that malicious intent might be behind these proposals. Given the fact that these proposals are brough to you curtesy of the same people who engineered the appointment of that ethically challenged guy called Menzi Simelane as head of the NPA, I am deeply suspicious about the motive behind this proposal. Surely, it will be seen by many people as an attempt by some in the ANC to help entrech their power, if not until Jesus comes then at least for the next 30 years.

Moseneke story still no scandal

Nov 20th, 2009

by Pierre De Vos.

32 comments

The Mail & Guardian continues its “expose” of the alleged dubious business dealings of Deputy Chief Justice Dikgang Moseneke in their paper this week. It claims that “the Moseneke family” has Congolese Oil Rights which were facilitated by “an alleged fraudster extraordinaire”, stating that:

Nozi Mwamba, the facilitator who helped pave the way for the Moseneke family’s Encha Group to obtain Congolese oil concessions, is wanted in France on charges that he was key to a multibillion-rand currency swindle. Mwamba, who lives in South Africa and his native Democratic Republic of the Congo (DRC), denies the charges, but has not returned to attend a trial under way in Paris.

After implicitly questioning the ethics of the Mail & Guardian for publishing the story last week and suggesting that there is far less of a scandal here than the sensational headlines suggest (at least a scandal involving the Deputy Chief Justice), I was taken to task by some who suggested that I am merely defending Moseneke because I am a fan of the Deputy Chief Justice.

After the most recent “revelations”, I am even more convinced that the way in which the newspaper has attempted to link Moseneke to unsavoury characters because his family trust owns shares in a company in which Moseneke’s brother is involved and who has done deals with questionable characters, really does not make much sense. I would expect better from my favourite newspaper.

In order for the story to make sense and to have any impact, Moseneke has to be linked to the unsavoury characters and the shenanigans of the people who do business with a company in which his family trust owns 18% of the shares. This is why the story has to fudge the issue by talking about the Moseneke family being involved with an alleged crook - as if the company in which Moseneke’s trust has an 18% stake is a family business in which Moseneke is an active participant – as a prominent member of the family.

But a few paragraphs into the story one finds the following extraordinary statement which really nullifies the attempts of the newspaper to link Moseneke to the shady Mwamba: “There is no suggestion that he [Moseneke] was personally aware of Mwamba’s role.” I also searched in vain for any reference in the story to evidence that Moseneke plays an active role in the company in which his family trust owns 18% (so where is the family business?) or any suggestions that Moseneke as an 18% shareholder in the company, knew that the company were involved with shady characters.

Maybe I am missing something, but I find this rather naughty on the part of the newspaper. The Mail & Guardian has no evidence to link Moseneke in ANY way with the shady people it reports on in the latest story, but it nevertheless proceeds by using deliberately vague phrases like “the Moseneke family” to suggest that Moseneke is involved with a “fraudster extraordinaire”.

Based on the fact that Moseneke’s family trust owns shares in a company that has done business with these shady characters, the paper suggests that Moseneke - as a member of the family – has links with a “fraudster extraordinaire”. However, it states itself that there is actually no evidence that Moseneke is in any way linked to these people. There is no evidence that Moseneke knows these people (despite the suggestions of the newspaper that there is a link), nor that he knows that the company in which his trust owns 18% was linked to these people.

I find this extremely unfair towards Moseneke. Let us use another example to demonstrate how the newspaper makes use of innuendo and hints to link Moseneke to wrongdoing without even a shred of evidence. We all recently learnt that Old Mutual owns a large stake in Zimbabwe Newspapers Ltd., a government controlled newspaper in Zimbabwe that daily prints hateful propaganda to help prop up Robert Mugabe. The company also has some business investments in Chiadzwa, the source of Zimbabwe’s blood diamonds and this means the company is contributing to the exploitation of local labour and the oppression of local communities.

If one follows the logic of the Mail & Guardian in these stories, any judge who owns shares in Old Mutual or (any judge who – like me - have an Old Mutual insurance policy) could therefore be smeared by associating that person with Robert Mugabe and his murderous cronies. I better get rid of my Old Mutual insurance policy because who knows when the Mail & Guardian will report that I own such a policy before trying to link me to the human rights abuses of the Mugabe regime.

One might argue that the two scenarios are different because in the Moseneke case he owns 18% (through a trust) in a company run by his brother. But in the absence of hard evidence that Moseneke is involved in the day to day running of the company in which his family trust holds an 18% share, there is absolutely no scandal here. Just as there is no scandal in me holding shares in Old Mutual because there is no evidence that I was part of an Old Mutual decision to prop up the tyrrant to our North, there is similarly no scandal about Moseneke in the absence of evidence that he was involved in the day to day running of this company.

It seems to me the story would have had some merit if it had shown that: (i) Moseneke was actively involved in some executive capacity in the business in which his trust held a stake; or (ii) Moseneke had used his position or name as a judge (or his brother had used it with Mosenek’s knowledge) to gain some unfair advantage for the company in which his trust held a stake; or (iii) the company in which his trust held a stake had landed the government business or the DRC contracts in a corrupt manner and Moseneke knew about this; or (iv) that Moseneke had decided one or more cases in favour of the government to try and gain a specific advantage for the company in which his trust had a stake.

As the Mail & Guardian does not provide such proof, it remains a story that associates Moseneke with wrongdoing because his family trust invested in a company who might have had shady dealings. If that was the standard applicable to judges, no judge should ever be allowed to own any shares because, lets face it, many companies have been involved in shady deals or have been associated with shady characters or with the government. No Absa shares (as the government banks with them); no mining shares (who knows whether Brett Kebble might be involved or what the safety record is of the mines operated by the company); no Telkom shares; no Sasol shares; no shares in the retail sector (because who knows whether they buy clothes from sweat shops in China). Is Moseneke then not held to a higher standard than other judges?

Maybe it would be better for all South African judges to be forced to place all their shares in a blind trust (as is apparently the case in Canada), but that is not currently the situation. So, in the absence of any evidence that Moseneke did more than invest in a company through a family trust, really, there is no justification for reporting on this as if the Deputy Chief Justice has acted in contravention of the Code of Judicial Ethics.

Dikgang Moseneke