Constitutional Hill


The emotionally charged Hlophe case, revisited

It has become very difficult to have a rational discussion about either the legal issues or the issues of principle underlying the way in which the complaint lodged collectively by judges of the Constitutional Court against Judge President John Hlophe are being dealt with. Emotions are running so high among both vehement critics and ardent supporters of Hlophe that both sides seem to believe their opponents hold bizarre and even shockingly immoral views damaging to the judiciary and to the country. The truth probably lies somewhere between these two extreme views.

When Constitutional Court Justices Chris Jafta and Bess Nkabinde testified under oath before a Judicial Service Commission (JSC) hearing in 2008, they both denied that undue or inappropriate pressure from other judges of the Constitutional Court coerced them into being part of a collective complaint lodged by the Constitutional Court against Judge President John Hlophe.

At the time these denials seemed strange if not completely implausible. This is so because after the Constitutional Court announced that it was laying a complaint against Hlophe because of his alleged improper attempt to try and influence judges to rule in favour of President Jacob Zuma in a case dealing with the validity of search and seizure warrants on Zuma’s properties and those of his attorneys, the two judges issued a remarkable joint statement.

In this statement they recorded that they “have not lodged a complaint and do not intend to lodge one.” They placed on record further that they had told other judges of the Constitutional Court “on a number occasions” that “we were not intending to lodge a complaint and neither we were willing to make statements about the matter.”

For some as yet unexplained reason the judges changed their mind and endorsed the joint compliant of the Constitutional Court. At the time, giving the two judges the benefit of the doubt, it appeared to me as if they did this because they realised that if indeed an improper approach was made to them to try and influence a judgment of the Constitutional Court, this was by no means a private matter only affecting them, but a matter of the highest public importance potentially affecting the legitimacy of the Constitutional Court and of the judicial system as a whole.

Their testimony before the JSC at the time said as much. Thus Jafta told the JSC:

Once it had been explained clearly, the distinction between, on the one hand the interest of an individual judge, and the integrity of the institution on the other hand, we were willing to participate in the complaint at that level so as to protect the integrity of the Constitutional Court.

When Nkabinde was asked why she did not want to be an individual complainant against Hlophe she said:

Mr Commissioner, I think in retrospect, one could have done that. This thing happened at the time when one was busy doing all sorts of things. My mind was not clear at the time as to really what is the right thing to do, and given that complexity, I didn’t see it very clearly.

When asked if she was a willing participant in the collective complaint of all the Constitutional Court justices she told the JSC: “Oh yes, I didn’t have a problem.”

But last week the two justices once again seemed to change their minds. They were again reluctant to testify, the integrity of the Constitutional Court seemingly no longer of concern to them. The justices raised a defence that they are not obliged to subject themselves to the new proceedings (ordered by the Supreme Court of Appeal (SCA)) as the proceedings is a nullity because the relevant regulatory framework upon which the proceedings are predicated is a nullity. They intend to take the decision to reject their argument on review, suggestion that they are now extremely reluctant to testify.

From the outside, and without access to all the facts, this new U-turn seems truly bizarre. I cannot see how this serves either the interest of the Constitutional Court or the interest of the two justices (nor, I would add, the interests of Judge President Hlophe). Their present course of action cannot possibly be squared with their testimony given to the JSC under oath in 2008. Does this mean they lied under oath to the JSC back in 2008? Or does this mean they did not lie in 2008, but that they have decided to that it was not worth it for them to try and protect the integrity of the Constitutional Court by testifying at a hearing because of the political pressure brought to bear on them?

This exposes the judges to questions about their own integrity. There may be other reasons for their many U-turns, but in the absence of a full and plausible explanation from the two justices, they run the risk of appearing to be either spineless and weak or unprincipled and perhaps dishonest.

The U-turns are particularly strange in the light of the damning (but contested) evidence given by the two Justices against Hlophe at the original JSC hearing.

When the two judges in 2008 proceeded to give evidence before the JSC under oath they made claims which, if true, would show that Hlophe had tried to influence them in an inappropriate manner. Jafta testified under oath that Hlophe had told him that Zuma was innocent, that he was wrongly prosecuted; and “sesithembele kinina” (we are relying on you, you are our last hope). Hlophe denied (again under oath) that he ever uttered these words.

Nkabinde similarly testified that Hlophe had told her there was no case against Zuma “that he has connections with the minister” whom he advises, that he has a mandate and that he “had a list of names from intelligence containing names of people involved in the arms deal who may lose their jobs. Once again Hlophe denied many of these allegations.

If these allegations are true and if the denials issued by Hlophe are not accepted by the Judicial Conduct Tribunal, then it would be difficult not to conclude that an impeachable offence was committed by Hlophe. It would amount to a shocking attempt to influence the highest court in the land in order to protect the President from criminal prosecution. It would constitute an attack on the constitution and as it would amount to an attempt to subvert the highest law of the land. The JSC (in a pre-Zuma guise) found as much.

After all, if a judge of one court – claiming to have political connections and a mandate to protect a politician – approaches judges of a higher court in an attempt to influence their judgment in order to try and protect the President of the country from criminal prosecution, it would strike at the heart of the integrity of the legal system. It is difficult to shy away from this stark conclusion.

I would think that for many lawyers who have experienced the systemic racism in the legal profession and in our wider society, it would be emotionally very difficult to accept this conclusion. This would be so, not because they do not believe in the importance of safeguarding the integrity of the Constitutional Court or of the judiciary, but because the carefully cultivated image of Hlophe as a champion for racial transformation, as the one black judge who had been brave enough to challenge racism in the legal profession head-on, is difficult to square with allegations of this magnitude. How can a champion of redress and justice also be a man of rank dishonesty who lacks even the basic integrity required for a sitting judge?

After all, after it emerged that Judge Hlophe had been paid money by an insurance company with a rather unsteady reputation before finally granting that company permission to sue a fellow judges (after the company increased the payments), he authored a report on racism in the Western Cape legal fraternity and the judiciary which he sent to the then Chief Justice. And is it not the oldest trick in the book to try and discredit those who speak out about racism and in favour of transformation by starting to question their credibility and integrity? Did Prof Malegapuru William Makgoba not face this very same tactic when he started challenging the racism of white liberals at Wits?

But regardless of these political dynamics which have (understandably, in my opinion) brought much sympathy and also fervent support for Judge President Hlophe, and regardless of the various technical legal arguments raised in the case, I believe some facts cannot be avoided.

Fact one: given the directly conflicting testimony given under oath at the previous JSC hearing, either Hlophe is a liar or Jafta and Nkabinde are liars. Fact two: a judge who lies under oath cannot and should not be allowed to serve on any court. Fact three: the allegations made by Jafta and Nkabinde, if true, constitute an impeachable offence.

Fact four: unless the appropriate body (whether the Judicial Conduct tribunal or the JSC) makes a finding on which version of events must be believed, the credibility of all three these judges would be fatally compromised. Fact five: unless there is a full hearing in which all parties can give evidence and can be cross-examined, we will never know whether pressure was brought to bear on Jafta and Nkabinde to testify against Hlophe and neither will we know if they were improperly influenced NOT to testify against Hlophe.

One or more people lied. But the person or persons who lied is not an ordinary grubby politician and the lie is not a little white lie about having one drink too many at an office Christmas party. It is in the interest of every litigant who appears before our courts – from the indigent person resisting an unlawful eviction for his or her shack, to the President of the country – that the integrity of judges should be beyond reproach. Once a belief starts taking hold that judges cannot be trusted to make decisions impartially – without being influenced by politicians who trade in power or private business parties who trade in bribes – the legal system ceases to serve the interests of the most vulnerable and marginalised and start serving only the interests of the well-connected and the rich.

It is for this reason that it, surely, cannot be in anyone’s interest not to go ahead with a full hearing in which a credible body would, once and for all, decide where the truth lies. Given the fact that some of the usual suspects (who also resist transformation of the judiciary) have lined up against Judge President Hlophe, it might be tempting for some of us to try and sweep this whole sorry saga under the carpet, to let sleeping dogs lie and to hope that whatever happened in this case was an aberration that would not permanently taint the integrity of the judiciary.

Over this past week I myself flirted with this idea. But the facts keep getting in the way. As the Supreme Court of Appeal (SCA) remarked when it set aside the decision of the JSC not to decide whether it was Hlophe or the two reluctant complainants who had been lying:

It is alleged that a very high ranking judge, the head of one of the biggest divisions of the high court, attempted to influence two of the judges of another court to decide a matter in a particular way. The allegation was considered to be so serious as to constitute gross misconduct which if established may justify the removal of the judge from office. It cannot be in the interests of the judiciary, the legal system, the country or the public to sweep the allegation under the carpet because it is being denied by the accused judge, or because an investigation will be expensive, or because the matter has continued for a long time.

I am fearful of the damage this Conduct Tribunal will do to the reputations if all concerned. What if Justices Nkabinde and Jafta had completely overreacted to the approach by Hlophe and if they had embellished their testimony before the JSC? In that event, Hlophe would have been wrongly persecuted and the two judges would have perjured themselves and would certainly have to face a Judicial Conduct Tribunal of their own for their rank dishonesty. What if they were originally pressured to testify? What if they were now improperly pressurednot to testify?

But what is the alternative? Should we ignore the elephant in the room and pretend that nothing went very badly wrong in this case? It seems to me, no matter how painful and potentially damaging to some of those involved in this case, the only responsible course of action is to have an exhaustive and credible process to find exactly where the truth lies. Anything else will leave a festering sore at the heart of our judiciary.

When a joke is not a joke

There are not many people who would happily agree that they are humourless. (Idols judge Randall Abrahams may be one of the few people who, in public, at least, pretend to be humourless.) This is why people who unthinkingly perpetuate racist, sexist or homophobic stereotypes often defend themselves by depicting their critics as humourless.

Comedy can be squeezed from the most shocking and bleak events. Earlier this year the Cape Town Holocaust Centre hosted a play, The Timekeepers, about a flamboyant gay German and a conservative elderly Jew befriending each other while working together repairing watches for the Nazi’s. On the night I attended the performance, the audience at first responded uncomfortably to the humour in the play. Like others in the audience, I too at first shifted around uncomfortably. Can we really laugh about these things, I wondered? But as the actors skilfully won us over (with the help of a clever script), the laughter became louder and more sustained. Humour, in this case, became a powerful weapon to affirm the humanity of the victims of Nazi atrocities.

But humour (or what is presented as humour) can sometimes be used by the economically, culturally and socially dominant as a vehicle to endorse harmful stereotypes and to promote prejudices (often invisible to them) about groups who are less powerful and influential in our culture. It can also be used to assert control over what we may and may not think and say.

In such cases the unstated aim of the supposed humour is often to re-enforce the idea that the prejudices and stereotypical assumptions on which the “joke” are based are normal or natural and therefore entirely harmless. “This,” implies the person who makes the so called joke, “is just the way the world is and if you do not find it funny you are a dour and self-righteous prig, one that is too stupid or too lacking in joie de vivre to laugh at yourself and at your own oppression.”

If you happen to not be part of the economically, socially and culturally dominant group, you will probably find it hard to mask your own prejudices by silencing others with the defence that you were merely joking when you expressed these prejudices. You just do not have the power to dictate what is funny and what is not funny. Your view of the world is not the dominant view, so if you tried to assert your dominance by dictating what should be regarded as funny and what is not, you will only dig a deeper hole.

However, those whose prejudices, irrational beliefs, interests and assumptions form the basis for how the world is structured and how knowledge is produced and legitimated, often hold immense sway in society. Because of this dominance they often manage to control the discourse and to make their own prejudices, irrational beliefs, interests and assumptions appear normal and inevitable.

For such people, invoking a supposed superior sense of humour is therefore an excellent strategy to delegitimize those who challenge their prejudices, irrational beliefs and unexamined assumptions. One way to do this is to decry others who criticise you as humourless and to justify your sexism, racism or homophobia on the basis that you were “only” making a joke.

On the one hand this “it’s only a joke” defence is a powerful tool in the hands of those who benefit the most from the normalisation and entrenchment of cultural prejudices and stereotypes. It helps to assert their power to decide what all of us are legitimately allowed to think and feel and when we are allowed to laugh and when we are not. On the other hand, it reassures everyone who holds the view that these stereotypical beliefs and prejudices are true and therefore not stereotypes or prejudices at all, and are worthy of jokes.

This phenomenon was recently on display in an article published on the front page of the Cape Times, a Western Cape publication presenting itself as a serious newspaper. The article, reporting on the results of a household survey, stated: “If you want a tidy house for the rest of your life, never make a Western Cape woman your wife.” This was obviously a play on the 1963 song by Jimmy Soul entitled: “If you wanna be happy for the rest of your life, never make a pretty woman your wife”.

After reading the article, I jotted down an email to the editors pointing out the sexist and patriarchal stereotypes being perpetuated in this introduction. In a puerile response the editors basically said: “It’s a joke, get over it.” (Translation: “Shut up you humourless cow. How very dare you tell us that we harbour any prejudices”.) This kind of response often reflects unadulterated hubris on the part of the person who made the “joke”. It also often reflects the unquestioning belief of those who use the joke defence that they are the final arbiters of what is funny and what is not.

People whose world view is dominant and who benefit from the way in which society is structured and how “knowledge” is produced, often resort to the joke defence in an attempt to re-assert what they believe is their unquestioning right to control the discourse, and thus to control what those who are not like them are allowed to think and feel.

The joke defence is not unlike the retort often used against people who criticise racist statements and actions by white people. When you call out somebody on his or her racism you are often told that you are “over sensitive” or that you should stop playing the “race card”. Those who use the race card defence do so in order to silence others who dare to complain of racism and racial discrimination. It is used to re-assert the right of the culturally dominant group to be the final arbiters on what constitutes racism and what not.

Decrying others for using the race card, therefore, often amounts to no more than an attempt to re-assert cultural white baasskap. It is often aimed at taking back control of the situation in order to shield the racists from criticism and exposure. It is often no more than an obvious attempt to deploy the power of “whiteness” to dictate what may and may not be spoken about.

Those who invoke the race card defence to try and silence those who criticise racism are really saying: “have the right to decide what is racism, but you ­– the possible victim – never do. In my own mind I am, after all, die baas van die plaas.

People who complain that others “play the race card” often contradict themselves and play the race card themselves when white people are criticised, or when the notion of whiteness is exposed and critiqued. According to this bizarre view, only those who complain about the racism of white people can ever play the race card. According to this belief, white people who complain about racial prejudices in black people are merely using their power to decide what is racist. Apparently they never play the race card because they are the ultimate arbiters of what constitute racism. It is a textbook example of how white privilege is deployed in our discourse.

Similarly the defence that a clearly sexist article was just a joke (albeit one that relied on a harmful stereotype about the appropriate role of women in heterosexual relationships) relies on the power of patriarchy. It asserts the right of the editors (either men or, if not men, then women who accept the oppressive gendered nature of relationships much like hostages with Stockholm Syndrome sometimes accept the authority of their capturers) to decide what is funny and what is not. The article in the Cape Times obviously normalizes patriarchal and oppressive gender roles. It is based on the assumption that women do the housework and men marry women partly to enslave them into doing their housework for them.

In our society housework has a low status and where it is done for pay, the remuneration is low. (In excessively gendered relationships such work is often done for free.) Many men still expect women to do the housework and work hard to maintain the traditional exploitative gendered structure of intimate relationships. Men who help with housework are often ridiculed as hen-pecked and depicted as feminized and therefore less worthy of respect, as less powerful. (This is an indispensable source of hilarity for some sexist comedians.)

Many women in South Africa still find themselves in such exploitative relationships in which strict gender roles are enforced, sometimes through violence or the threat of violence and sometimes through the power of “tradition” and societal expectations policed or promoted by the kinds of people who seem to be editing the Cape Times. The article in the Cape Times took this state of affairs for granted, as if this was the most normal thing in the world, and made fun of it. The “joke” was not aimed at challenging the idea that housework should be done by women or to critique the way in which gender roles are used to exploit women to do work for little or no reward. The “joke” was based on the assumption that we all agree that it is perfectly normal and acceptable that wives do the housework while their husbands edit newspapers.

When they were caught out, they had to re-assert their power by invoking the joke defence. This is all about power. Who has the power to decide what is sexist? And what is a joke? A first step in challenge this insidious working of patriarchal power is to unmask it, even at the risk of being called humourless by those who wish to protect their own power.

Qwelane: still a homophobe, but his challenge to hate speech clause is sound

Jon Qwelane, South Africa’s Ambassador to Uganda (that bastion of respect for the human dignity of all), is a self-confessed homophobe. He also used to be a spectacularly unaccomplished columnist. His Sunday missives often read like the first draft of a stag party speech written in a bar on the back of a cigarette box. But he must have a talent for constitutional law, because his contention that the hate speech clause in the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) is unconstitutional, is sound.

In 2011, former Sunday Sun columnist, Jon Qwelane, was found guilty of hate speech for contravening section 10 of PEPUDA. The Court found that an article he wrote (as well as an accompanying cartoon) propagated hatred and harm against gay men and lesbians and ordered him to apologise unconditionally and to pay a R100,000 fine to the Human Rights Commission.

In the article Qwelane fumed against “gays” and “lesbians”, stating in apparent horror: “nowadays; (sic) you regularly see men kissing other men in public, walking holding hands and shamelessly flaunting what are misleadingly termed their ‘lifestyle’ and ‘sexual preferences’”. He concluded:

I do pray that some day (sic) a bunch of politicians with their heads affixed firmly to their necks will muster the balls to rewrite the constitution of this country, to excise those sections which give licence to men ‘marrying’ other men, and ditto women. Otherwise, at this rate, how soon before some idiot demands to ‘marry’ an animal, and argues that this constitution ‘allows’ it?

I assume when Qwelane referred to men kissing other men in public he was not referring to Premier League Football players regularly celebrating the scoring of a goal by hugging, kissing each other and flaunting their joy at “scoring” with such gay abandon. Neither am I sure why flaunting one’s love for another adult human being in public would horrify anybody – unless it stimulates delightful longings in them that they would rather like to repress.

I regularly see heterosexual couples kissing and holding hands in public and shamelessly flaunting their so called heterosexual “lifestyles” and it does not bother me at all. Really, it does not. (I may have issues with the way in which some heterosexual suburban couples decorate their houses – I mean, really, a braai inside the house – but after serious soul searching I have concluded that this horror I have of suburban kitsch is not enough to warrant support for discrimination against all heterosexuals.)

I assume my broad-mindedness stems at least partly from the fact that I have no secret yearnings (suppressed by religiously instilled self-hatred) to engage in a so called heterosexual lifestyle myself. I am relatively ambitious, so I obviously do not aspire to the heterosexual lifestyle (I tend to aim a bit higher) but I firmly support equal rights for all heterosexuals.

Neither do I believe just because the constitution prohibits the law from discriminating against heterosexuals and allows them to marry that one of these days an idiot heterosexual would demand to marry an animal (of a different sex, I would assume). This is because – unlike Qwelane – I do not associate sexual intimacy with having my way with a goat. Call me old fashioned or unadventurous, but usually when I think of sex I imagine this to be between two human beings. Qwelane must have a more fertile imagination.

Qwelane has been stalling ever since he was found guilty of hate speech, but last week he announced that he was challenging the constitutionality of the relevant PEPUDA provisions.

Contrary to popular belief, the Constitution does not prohibit hate speech. Section 16(1) of the Constitution allows “everyone” (even homophobes like Qwelane) the right to enjoy freedom of expression. However, section 16(2) excludes certain forms of speech from protection and thus allows the legislature to limit these excluded forms of speech. Section 16(2)(c) – sometimes referred to as the hate speech exclusion – thus states that advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm, is not protected by section 16(1).

It would therefore be impossible to challenge the constitutionality of any legislative provision that mirrors the wording of section 16(2)(c). But PEPUDA goes much further than section 16(2)(c) and imposes a far more drastic limitation on freedom of expression than that allowed by section 16(2)(c).

Section 10 of PEPUDA states that a person may not “publish, propagate, advocate or communicate” words against any person based on prohibited grounds such as race, sex, gender, disability, sexual orientation and religion “that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; promote or propagate hatred”.

Although bona fide engagement in artistic creativity, academic and scientific inquiry and fair and accurate reporting in the public interest are excluded from this prohibition, it would still include many forms of expression, including much of what is written in opinion pieces in newspapers and on blogs as well as much of what is preached in religious institutions. The provision may well therefore be overbroad and unconstitutional – just as Qwelane argues.

Unlike the exclusionary provision in the Constitution, section 10 does not require the speech to constitute “incitement to cause harm”. All that is required is that a reasonable person must believe that the speech had the intention to be hurtful to a designated group. Unlike the exclusionary provision in the Constitution, section 10 does not only deal with speech based on race, gender, ethnicity or gender. It limits potentially hurtful speech based on all 16 grounds listed in section 9 of the Constitution, as well as all similar grounds. These include sexual orientation, age, marital status and disability.

Section 10 does not require the aggrieved party actually to show that the person who engaged in the speech had the intention to be hurtful or to harm anyone. Neither that the speech actually incited or caused harm. All he or she will have to show is that a reasonable person, looking at the context within which the words were spoken, would have construed the person who uttered the words as having such an intention.

Of course, the age-old problem about how we decide what a reasonable person would have thought when it seems impossible in a diverse society like ours to postulate a single universal standard of reasonableness, will raise its head in each case. Are we going to rely, yet again, on the view of the so-called reasonable, middle-class, white, heterosexual man when we must decide what a reasonable person would have thought – as the courts explicitly did until recently and often still do implicitly?

A criticism levelled against the judgment in the Julius Malema hate speech case in which he was found guilty of hate speech on the basis of race when he sang “Awudubula (i) bhulu… Dubula amabhunu baya raypha”, is exactly that the judge used such a reasonable white man standard in concluding the words constituted hate speech.

But even if we could overcome this problem and could, miraculously, conjure up a completely neutral standard against which to judge what is reasonable, section 10 of PEPUDA would still potentially have a severe chilling effect on freedom of expression (as well as on freedom of religion). Much of the teaching of mainstream religious groups on homosexuality, for example, would almost certainly fall foul of the hate speech provision.

When a priest or imam targets “practicing” gay men and lesbians (as if we need any practice) in a talk and brands us as “sinners”, many so called reasonable people will surely assume that they had the intention to be hurtful to gay men and lesbians. After all, people who are hurting are more vulnerable and more likely to believe what you have to sell to them.

Much of the less sophisticated rhetoric of (some, but not all) religious leaders are aimed at putting the fear of God into people and at making them feel bad about who they are and how they live their lives in order to present some sort of Messiah as the alternative that would cure you of your fear and your (religiously-instilled) self-disgust. How can this simplistic rhetoric so often employed by religious groups not be aimed at hurting gay men and lesbians?

But should such speech be banned? I am far from certain that it should. After all, when someone peddles his or her sad and petty hatred of others because who they love, I pity the person and feel slightly embarrassed on his or her behalf. Why ban certain forms of speech just because it reveals that those who engage in it are wretched (and often lost and unthinking) fools?

Of course, some speech may pose a threat to the constitutionally mandated objective of building the non-racial and non-sexist society based on human dignity and the achievement of equality. Such speech can and should be limited in a constitutionally permissible manner – even if it falls outside the exceptions carved out in section 16(2). But such a limitation on freedom of speech cannot be overbroad.

Given the fact that section 10 clearly limits the right to free expression, that the reach of the section is extremely broad and that a more narrowly tailored provision would probably be able to serve the same important purpose of protecting our democracy against speech that hatefully incite harm against others, I suspect that Qwelane might just have gotten lucky and that his constitutional challenge will be successful.

Mogoeng v Hoffman: Better not to roll around in the mud with the pigs

The unseemly and racially charged row which has erupted after Paul Hoffman laid a complaint against chief justice Mogoeng Mogoeng at the Judicial Service Commission (JSC) for remarks the chief justice made about judicial transformation provides a textbook example of the manner in which race often colours our judgment and determines how we view a specific event. Whenever the matter of racial transformation is raised, most protagonists become blind and deaf to reason, choosing racial solidarity over rational debate and critical reflection.

In his (now infamous) address to Advocates for Transformation, chief justice Mogoeng Mogoeng delivered a spirited defence of the JSC, while also arguing for the need to change briefing patterns to help open up the legal profession to more women and black South Africans. He also pointed out – correctly in my view – that “standards” are often invoked by those who oppose transformation in a blatantly racist manner that associates high standards with white men and a lowering of standards with the opening up of the profession to women and black South Africans.

The chief justice did not say anything that many of us have not been saying and writing for ages.

Paul Hoffman of the Institute of Accountability (which I thought consisted of no more than one man and a fax machine, but whose website indicates that a gaggle of white men and women are associated with it), took umbrage at these remarks, arguing that the chief justice had brought the judiciary of South Africa and the high office which he holds into disrepute because he had descended into the arena of contestation and controversy in respect to issues which are pending in the High Court.

But upon closer inspection of the complaint against the chief justice, the real complaint is not that he forcefully (and undiplomatically) spoke about judicial transformation. After all, our judges often speak out about controversial legal issues. Just two weeks ago I lauded the late justice Pius Langa for a speech he made in Stellenbosch in favour of “transformative constitutionalism”, a highly controversial and contested concept. No one complained when Langa made this speech, perhaps because it dealt more broadly with transformation and did not directly threaten the interests of the white men who remain the largest financial beneficiaries of the legal profession.

In the past, other judges have been lauded for speaking up about the need to respect the rule of law, for example. As far as I know, no one lodged a complaint with the JSC against a judge for doing so. A senior judge even has his own TV programme in which he quizzes panellists about highly controversial political matters. Hoffman, as far as I’m aware, has not lodged a complained about any of these judges with the JSC.

One might argue that this instance is different because the issue of whether the JSC implements its section 174 mandate in a constitutionally valid manner might still come before the Constitutional Court. But this does not seem like a plausible argument, as the chief justice (as head of the JSC) would have had to recuse himself from hearing such a case in any event. He was therefore never going to hear a case dealing with the JSC, whether he said anything about its work in public or not.

This suggests that the disagreement is not about a profound matter of principle (should a judge ever comment on a controversial constitutional issues) but rather about the ideological substance of the views expressed by the chief justice. This disagreement is, of course, fuelled by self-interest and by the protection of the status quo. Judges can speak up, the attitude seems to be, as long as they say what we want them to say and do not say anything that threatens our financial and other interests.

According to Hoffman’s complaint, the remarks of the chief justice are premised on an untenable legal interpretation of section 174(2) of the Constitution, a section which requires the JSC to take into account the need for the judiciary to reflect broadly the racial and gender composition of South Africa. According to Hoffman, these remarks conflicted with the provisions of section 9 of the Constitution, which proscribes “unfair discrimination against ‘white’ male lawyers”.

This is, of course, uninformed nonsense. Whatever one may personally think of the merits of race-based redress measures (and I know the usual suspects will froth at the mouth and spew entirely uninformed nonsense about equality and discrimination after reading this column), no one with even a modicum of knowledge of the Constitutional Court jurisprudence of section 9 of the Constitution will be able to argue with a straight face that robust measures to transform the racial and gender composition of the judiciary in line with section 174 of the Constitution (read with section 9, especially section 9(2)) are constitutionally impermissible.

(Here is a dare: why doesn’t anyone tempted to comment on issues of race-based affirmative action first read and study the Constitutional Court judgment of Minister of Finance v Van Heerden? Once they have done so, I promise to engage in a reasoned and calm discussion with them on whether our Constitution endorses such forms of affirmative action.)

What the chief justice said about the transformation of the judiciary might upset some people. But it is not constitutionally controversial. Only the blind, the dishonest or those who are completely ignorant of the relevant judgments of the Constitutional Court (and of the wealth of academic literature on affirmative action written by both traditional liberal scholars like Ronald Dworkin, and by more progressive legal scholars) will claim otherwise.

The principles enunciated by the chief justice are therefore entirely uncontroversial (at least for the well informed). Of course, whether the JSC in fact always fulfils this constitutional mandate prudently and with the necessary wisdom to ensure the long-term legitimacy of the judiciary is another matter. Reasonable people can differ on this point.

Once we have all accepted that the Constitution not only allows, but requires, the JSC to pay regard to race and gender equity when it makes appointments to the bench, and that the legal profession has a special duty to advance transformation in the profession in order to safeguard the legitimacy of the judiciary (also by reviewing briefing patterns, as I have argued on numerous occasions), we could begin to have a productive debate about how the JSC should fulfil this mandate, and whether it is currently doing so in a astute and sensible manner.

By laying a complaint against the chief justice because he forcefully argued in favour of race and gender transformation of the judiciary, Hoffman muddied the waters and made it more difficult to have a real, reasoned, and level headed discussion about what the JSC is doing right, and what it is doing wrong.

This does not mean that I think the chief justice did himself any favours when he couched his valid concerns in such highly emotive language, indulged in sweeping generalisations and attacked unnamed individuals and groups. Nor was it helpful that he expressed what appear to be anti-democratic sentiments when he referred to those who disagree with him as indulging in an “illegitimate neo-political campaign” (whatever a neo-political campaign might be). In a democracy, people have a right to talk nonsense, so calling what they say illegitimate displays a rather worrying lack of respect for freedom of expression.

A wise judge always deals with specifics, not vague conspiracy theories. A wise judge – one of stature – does not insult unnamed NGO’s and commentators, but demolishes specific remarks and specific arguments made by commentators or NGOs with calmness, understatement and cold reason. He or she eschews emotional language and couches trenchant criticism in a diplomatic manner.

Such a judge understands that his or her stature as a judge grows when his or her remarks rise above the petty politics and narrow self-interest that people like Paul Hoffman wallow in. When you roll around in the mud with the pigs, you are going to get dirty. A wise judge knows this and avoids getting down with the pigs. He or she also knows that one’s stature as a judge is diminished if one appears to take criticism too personally and if one is too thin skinned.

Of course, it is not an impeachable offense for a judge to make a speech on a politically charged matter relating to the Constitution. The rule of law is a highly politically charged matter, as most Marxists will argue, but few of us would raise an eyebrow if a judge forcefully defends the rule of law in a speech before lawyers. Neither is it an impeachable offense to use emotive language when doing so. It might be unwise and counter-productive. But impeachable? Please, don’t make me laugh.

Luckily for the chief justice, the anti-transformation complaint lodged against him by Hoffman in defence of the (financial and other) interests of some white men detracted attention from the rather undiplomatic and otherwise stature-diminishing tone of the speech. Ironically, by attacking the chief justice and lodging a complaint, Hoffman enhanced the credibility of chief justice Mogoeng in the eyes of many of us. In fact, maybe justice Mogoeng should think of hiring Hoffman as his PR representative.

Such are the politics of race and redress in South Africa.

In a world in which racism is deeply entrenched and in which the power and privilege of whiteness perpetuates and defends itself aggressively, it is difficult for most of us to choose sides in favour of white privilege (read, Hoffman). That is why we choose the side of the chief justice, even as we acknowledge that he could have presented his argument in a manner that displayed more wisdom, high-mindedness and maturity.

Women’s day – just another day for men to call the shots?

The notion of “celebrating” women’s day (or the whole month) has always struck me as a rather odd and, to a large degree, an unproductive one. Not because sex and gender are not experienced as real by people (despite sex and gender being cultural constructions) or because patriarchy is not deeply oppressive and harmful to all of us (but most acutely to women), but because it is unclear how these often sentimental and patronising celebrations will actually disturb or challenge destructive and dominant male power in our society.

In theory, spending an entire month focusing on the myriad of ways in which patriarchy (culturally embedded male domination) silences, disempowers, marginalises, physically harms and kills women in South Africa and across the world, sounds like a good thing. If we all utilised this day (or the month) to challenge the gender hierarchy and the powerful misogynist culture it reproduces (as some people laudably do), we might make progress in eradication gender discrimination, marginalisation and oppression in our society.

Racial and gender oppression is about power. Until late into the twentieth century it was taken for granted that white men of a certain class and geographical origin had the divine right to decide how our lives ought to be structured, what rules we ought to live by, what we ought to think, say and do and – just as importantly – what we are not allowed to think, say and do.

To this day, who is given a platform to speak, who is listened to on that platform, whose ideas are promoted and celebrated and whose ideas are vilified and de-legitimised, all still depend to some degree on the colour of your skin, on your sex and gender, on your sexual orientation and on how much money you have in the bank. It is no accident that a white man like me has acquired a modicum of influence in the South African media.

Unless there is a fundamental change in our culture – in the economic relations in our society, in how our society is structured – white males will enjoy a disproportionate degree of economic and cultural privilege.

Celebrating the women in our lives in a manner that affirms their place as second class citizens (albeit, sometimes loved and respected second class citizens); as warm and fuzzy carers who need the protection of men; or even as exceptional role models who achieved great success; without asking hard questions about the system that continues to perpetuate discrimination, disadvantage and harm based on sex and gender roles, serves to entrench and mask male domination – instead of disturbing it.

I am not saying there is no value in celebrating women’s day or women’s month – just as there remains some value in celebrating gay pride. Such events can help to build solidarity among those who are oppressed and can provide a platform for contestation, affirmation and revolt. If a women’s day (or month) event is used to do some of the hard “political” work – and does not become a tool used by the patriarchs to co-opt women in their own oppression by preventing them from challenging the power relations in society – it might still do some good.

My fear is that women’s day and women’s month celebrations in South Africa are often conceptualised and implemented in ways that do not disturb male power and patriarchy. Is that why a surprising number of men (if by no means all men) embrace the notion of women’s day and women’s month – or at least do not actively oppose it or complain about it, because it supposedly promotes discrimination against men?

It is striking that many of the people who complain bitterly about the official use of racial identities – people who refuse to classify themselves as white, and argue loudly that race-based affirmative action is “reverse discrimination” – remain silent as we are asked every day to classify ourselves in terms of our sex or gender. Few insist that they are neither men or women and that it is inherently dangerous – a bit like Nazi Germany – to insist on classifying people in terms of their sex or gender.

Many men do not complain about the fact that there is a special holiday set aside to celebrate women. But imagine the howls of protest that will follow if there was a special day set aside by the state to celebrate black South Africans and their achievements. The News24 comments sections and Twitter would have exploded with outrage if the government ever were to introduce a special day to celebrate the achievements of black people who, after all, continue to be the victims of deeply entrenched prejudices (just like women) and who continue to be the victims of the systemically entrenched ideology of racism on which Western civilisation is founded.

Why do so many (but of course not all) white South Africans feel so threatened when the cause of the marginalisation and oppression of fellow South Africans is identified as racism and when race is invoked to challenge the continuing patterns of social and economic disadvantage and harm?

Yet a surprising number of the same people embrace the idea that humans are divided into two distinct sexes and genders, voluntarily classify themselves as male or female (when we know that these categories are invented and, in any case, can never accurately capture the full spectrum of sexual characteristics or gender behaviours of individuals), and seldom oppose affirmative action based on sex or gender in the same vociferous tones as they do affirmative action measures based on race.

Until the advent of democracy the law treated women as second class citizens in numerous ways and women continue to be discriminated against today – albeit not often sanctioned by legislation. Why is there then little outcry from the usual suspects about gender-based affirmative action? Is it because the usual suspects are not threatened by gender-based affirmative action because they know patriarchy is so deeply and securely entrenched that affirmative action based on sex or gender has no chance of disturbing their power?

To put it differently, is it perhaps because the sex and gender hierarchies are so entrenched and the power differentials between men and women so deeply embedded in our culture, that the classification of people in terms of their sex or gender and even the celebration of the oppressed group (women) on women’s day do not pose a fundamental threat to the system and to those who control it?

Or is it also partly because the racist narrative of black people being “dangerous”, “unpredictable”, “threatening” – a narrative developed by white colonisers to justify their oppression and marginalisation of black people – is deeply entrenched in the psyche of many white South Africans and determine the way many of them react to demands for redress?

If this is correct, any assertion of a racial identity by a black South African and any use of race as a means to effect redress for past and on-going racism is experienced as an existential threat by those white people who have internalised the racist narrative about “dangerous” black people.

Even as whiteness still dominates in our society – both culturally and economically – to many fearful whites it may well feel as if their very existence is being threatened by a group of people whom they used to oppress but they do not understand, whom they seldom interact with on a truly equal basis, and whom they were taught to fear from the day they were born.

If this is correct – and I am open to reasoned and unemotional debate on this point – it would be striking that many of the fearful and irrational white men would seldom have exactly the same violent reaction to notions of women oppression.

This would not be unsurprising. After all, most men are (at least partly) raised by one or more women. Most people attended school with women, date women and sometimes sleep with women. Many live with or marry a woman.

These interactions with women all occur in the context of a society in which patriarchy and the values associated with it are deeply entrenched, so when women assert their identity as women on women’s day it is probably not experienced in nearly the same threatening manner as when a black person asserts his or her racial identity.

This allows many middle-class men to embrace the sentimental celebration of women’s day. (I am here, for the moment, specifically talking of middle-class white men and wish to avoid engaging with the complex issues that arise in more traditional communities across South Africa.) That is why women’s day events and many of the activities arranged around women’s month often placate rather than disturb men’s dominance and power.

I am sure there must be events and activities arranged around women’s day and women’s month that truly engage with power imbalances and the gendered structures that reproduce them. But, in my opinion, the overwhelmingly sentimental and patronising discourse around the celebration of women on women’s day and women’s month won’t cut it.

As long as women’s day celebrations do not disturb all men, do not make us uncomfortable or fearful or angry (either angry because our power is being challenged or angry because of the injustice of gender discrimination), there can be little use for the day.

Equal Education: the Minister doth protest too much

One of the most important duties of any modern democratic state is to provide all its inhabitants with access to a minimum standard of basic education to allow everyone in society to flourish and to reach their full potential. Nineteen years after the advent of democracy, our government is still not fulfilling this essential responsibility. No wonder the Minister of Basic Education this week launched an ad hominem attack on Equal Education for reminding the Minister of her catastrophic failure to respect the human dignity of all children.

On Tuesday Basic Education Minister Angie Motshekga (also known as the Minister of Broken Promises) accused non-governmental organisation Equal Education of being disingenuous in its battle to get her to promulgate binding norms and standards for school infrastructure as provided for in the South African Schools Act, calling its campaign a “gimmick”. According to a statement, the Minister said:

To suddenly see a group of white adults organising black African children with half-truths can only be opportunistic, patronising and simply dishonest, to say the least.

The irony is, of course, that it is exceedingly patronising of the Minister to assume that “black African children” know nothing about the shockingly unequal and inferior schooling that limit the ability of many children to obtain even a half decent education to prepare them for adult life. Unlike Minister Motshekga and her cabinet colleagues, many “black African children” actually experience the lack of basic infrastructure at their schools every day and suffer the consequences.

It is downright insulting for the Minister to suggest that learners who do not attend posh private schools or well resourced suburban schools are either so stupid or so uninformed that they could easily be misled by a few mythical white adults.

The Minister of Broken Promises apparently believes that many “black African children” (unlike white children perhaps?) lack the ability to think for themselves and to demand that the government respect their basic human rights – unless they are told what to think by white adults. Maybe the Minister never heard of the 1976 Soweto uprising?

But leaving the Minister’s shockingly patronising attitude towards “black African children” aside for the moment, a more fundamental principle is at stake here, namely the duty of our government to respect the basic human rights of all South Africans.

Section 29 of the Constitution guarantees for everyone the right to a basic education. In terms of section 7(2) the state has a duty to respect, protect, promote and fulfill the right to basic education. Unlike other social and economic rights, this right is not qualified and the state has a duty to provide everyone with basic education immediately – regardless of any resource constraints.

This is not a duty to provide access to excellent education for the mostly middle-class white and black learners on the one hand while providing abysmal education to mostly “black African children” on the other. If that were indeed the constitutional duty placed on the Minister, she would not have had as many legal problems as she now has.

The South African Schools Act emphasises the provision of equal education to all and requires the government to eradicate discrimination in the provision of education. One of the ways in which the Act gives effect to this constitutional right is by empowering the Minister to prescribe regulations for minimum norms and standards for school infrastructure.

Neither the Minister nor any of her predecessors have prescribed such minimum norms and standards. While Nkandla was upgraded with remarkable speed with no consideration of the cost involved, when it comes to the well-being of mostly “black African children” the government seems remarkably unconcerned about its failure to respect the right of basic education of all.

As long ago as November 2008, then-Minister Naledi Pandor published draft Regulations for school infrastructure for public comment. Those draft Regulations stated:

These norms and standards will be fully adopted by the end of 2009 and will be implemented in a phased manner starting from 2010.

In 2009 a new set of Draft Norms and Standards for School Infrastructure emerged, which was not gazetted for public comment. This stated:

These norms will be fully adopted by the end of the 2009/2010 financial year and will be implemented in a phased manner during the 2010-2014 Strategic Plan period.

Answering a question in Parliament on 26 Feb 2010, the Minister wrote that the National Minimum Norms and Standards for School Infrastructure existed and that “they [would] be implemented with effect from the 2010 financial year”.

Given these various broken promises, Equal Education launched a campaign in March 2010 to encourage the Minister to do what she and her predecessor had promised to do and to fulfill her legislative and constitutional duties. This is not a frivolous campaign about an unimportant issue, but a campaign to assist the government to begin to transform our education system in order to address the shocking and immoral, Apartheid-inherited inequalities in education in South Africa.

In May 2010 the Minister wrote to Equal Education stating that the National Policy for an Equitable Provision of an Enabling School Physical Teaching and Learning 
Environment (NPEP) was soon to be published. She then stated: “This policy will be followed by the Norms and Standards for School Infrastructure.”

On 20 July 2010 the Director General wrote to Equal Education noting that: “the Minister must develop national minimum norms and standards… by the end of the 2010/2011 financial year” and stating that the regulations “are currently with the DBE Legal Services and will be promulgated as regulations thereafter.”

More delays followed, leaving a string of broken promises in their wake.

In March 2012 Equal Education finally launched a court application after the Minister of Broken Promises completely changed her tune in October 2011, stating for the first time that she was not required to promulgate regulations at all, and that any action regarding norms and standards was a matter for her discretion. She said that instead of making regulations she was going to make non-binding “guidelines”.

After many delays by the Minister in filing an answering affidavit, the Minister finally entered into a settlement agreement with Equal Education, which was signed on 19 November 2012. In this agreement the Minister agreed to promulgate regulations, which prescribed minimum norms and standards for school infrastructure, before 15 May 2013.

This deadline has come and gone but the Minister of Broken Promises has not promulgated the norms and standards as she had agreed and is therefore in breach of the very agreement that she entered into when the court case (which she was almost certainly going to lose) was looming. Herad hominem attack on Equal Education stems from her apparent anger at being held to account for once again breaking her promise to promulgate norms and standards for school infrastructure.

If the Minister has even half competent lawyers, they must also be telling her that she cannot afford to go to court because she will lose the case. Given the many broken promises about promulgating minimum norms and standards for school infrastructure, I cannot imagine the Constitutional Court finding that the minister has fulfilled her unqualified duty to provide access to basic education to all – not only to the rich and well-connected.

This is even more evident when you note that the Treasury has already long ago approved the promulgation of minimum norms and standards for school infrastructure and that resources are not the issue here.

At the very least the court will argue that the minister has a duty to act reasonably to ensure that the basic infrastructure at all schools are of such a nature that would ensure at least the possibility of meaningful education for learners.

It cannot be said that a Minister has acted reasonably where she has made many promises, but kept not a single one of them. It cannot be reasonable for the Minister to have ignored the plight of the most marginalised and vulnerable learners who must attend school in the most abysmal conditions while middle-class and rich children in the suburbs enjoy all the schooling privileges that Apartheid reserved exclusively for white children.

It cannot be reasonable for the Minister to have no clear and comprehensive plan (with deadlines and clearly articulated targets), to eradicate the Apartheid legacy as far as school infrastructure is concerned. It cannot be reasonable to expect 120 learners to cram into one classroom and for all learners in some schools to make use of the most appalling toilets because the Minister cannot get her act together to deal decisively to effect infrastructure upgrades of the most needy schools.

In the light of the above, it is not surprising that the Minister of Broken Promises launched a scathing and untrue attack on Equal Education. She must know that she has no legal leg to stand on and that she will lose any court case on the issue. She must also surely know that her failure to act is morally indefensible.

Every day she dithers, she fails many of the most needy children in South Africa. And when you know you have failed, your only way out is to attack those who are reminding you of your own failure. Her attack on Equal Education is therefore an admission of her failure, and a very eloquent admission at that.

Willing buyer, willing seller works…. if you have a lifetime to wait

Few reasonable people would disagree that the pace of the constitutionally mandated redistribution of land in South Africa has been far too slow. One of the many reasons for this slow progress on land reform is the government’s current “willing buyer willing seller” land redistribution policy. The proposed Property Valuations Bill, read with the provisions of the Expropriation Bill, may begin to address this problem. Unfortunately the Bills are not without their faults, opening up a space for the “we-are-going-the-way-of-Zimbabwe” alarmists to delegitimise these proposed legislative measures which are aimed at speeding up land reform.

The South African Constitution places a positive obligation on the state to “take reasonable legislative and other measures, within its available resources” to effect land redistribution. Section 25 of the Bill of Rights also explicitly allows the state to expropriate property – forcibly, if necessary – to achieve this purpose. This means the state may validly expropriate property (even in cases where the owners of that property are unwilling to part with the property or unwilling to part with it at the price offered), if the expropriation is aimed at redistributing land to address the effects of widespread colonial and Apartheid-era land dispossession.

There is therefore nothing in the Constitution that requires the state to stick to a “willing buyer willing seller” land redistribution policy. This policy has so far allowed property owners to block redistribution efforts, as it allows property owners to refuse to have their property expropriated and also allows them to hold the government to ransom by demanding that the state pay exorbitant prices for property intended for expropriation. (Think of it as a form of tender corruption – but by white property owners.)

Given the slow pace of land reform and the exorbitant cost of the “willing buyer willing seller policy”, it is possible to argue that the existing land reform policy is unconstitutional because the measures are not reasonable in that they do not allow the state to move as expeditiously as possible to address the effects of past unfair (race-based) land dispossession. A new approach – along the general lines of the proposed Property Valuations Bill and Expropriations Bill – is therefore needed to deal with land redistribution.

However, the Constitution also prohibits the arbitrary deprivation of property and states that expropriation is made subject to the payment of compensation, “the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.”

As I have explained before, the Constitution does not require the state to pay the owner of expropriated property the market value for the property when it is expropriated. Instead, the state is required to pay “just and equitable” compensation, “reflecting an equitable balance between the public interest and the interests of those affected”. In deciding what would constitute just and equitable compensation, section 25 of the Constitution requires that the following factors must be considered:

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

Of course, there are many problems with the government’s current land redistribution programme. A lack of support and training for emerging farmers, as well the lack of a coherent long term strategy aimed at redistributing land while enhancing food security, bedevils current efforts to redistribute land in a manner that would enhance economic growth, while speedily addressing the current untenable, racially skewed, distribution of land.

The proposed Bills will not address all these problems.

The Bills are, however, intended to deal with the slow process of the current land reform programme as well as the exorbitant and thus unsustainable cost of the programme. The Expropriation Bill authorises the relevant Minister to expropriate property for the purposes of land redistribution – even without the consent of the property owner. The Bill provides several procedural safeguards in this respect, including the opportunity for the owner of property to lodge an objection to the decision to expropriate his or her property and then to negotiate with the authorities about the intended expropriation.

The Bill then provides for a decision to be taken on the expropriation within 60 days. Even if the owner is not happy with the amount of compensation offered, the Bill provides for the expropriation to go ahead. However, crucially, section 22 of the Bill states that if the owner and the expropriation authority cannot agree on the terms of an expropriation any party to an expropriation has the right to approach a court to decide or approve the following matters:

  • the amount of compensation;
  • the time of payment of compensation; or
  • the manner of payment of compensation.

This means that the Expropriation Bill would allow (but would not require) a court to make a final determination on the compensation paid for expropriated property. Although as it stands section 22 of the Bill provides an important safeguard for owners of property whose property is to be expropriated, it would not prevent the expropriation from being effected before the court makes a final determination on the compensation. In fact the involvement of the court in determining the compensation would be optional, not mandatory.

This is in conflict with the provision in section 25 of the Constitution which requires compensation to be either “decided or approved” by a court when the expropriation is not by agreement.

Although the Bill appropriately allows for the expropriation of property – even without the consent of the owner of the property – it fails to provide for the mandatory involvement of the court in the determination of the compensation. A property owner with the necessary funds would be able to approach a court to challenge the amount or the manner of payment of compensation, but if he or she does not do so, then the court will not be involved in deciding or approving the compensation – in conflict with the Constitution.

Moreover, it is unclear how these provisions fit in with the provisions of the Property Valuations Bill. This Bill would create the Office of the Valuer-General who would be tasked with the duty of valuating all properties that will be expropriated and to develop criteria for the valuation of such properties. These will obviously mirror those listed in section 25 of the Constitution, which means that although a valuation process will always start by considering the market value of the property, other relevant factors might be used to reduce the valuation of the property.

But the problem is that these provisions do not refer back in any way to the provisions of the Expropriation Bill, giving the impression that the drafters of the one Bill had no idea about the provisions of the other Bill being prepared.

But if one assumes that the newly created Valuer-General will finally decide of the amount of compensation to be paid in the event of a forced expropriation, it is unclear how this will be done and to what extent the court would be involved in the decision.

The Property Evaluations Bill provides for an elaborate review process and allows a review committee to review the amount of compensation to be paid for an expropriated property. The Bill states that the decision of a review committee would be deemed “final and binding subject only to a review by a court”. But once again, there is no provision for the automatic involvement of the courts in the establishment or approval of the amount of compensation that will have to be paid, which renders the Bill unconstitutional.

It seems to me the only way the land reform could be speeded up and the cost kept down in a constitutionally valid manner, would be to create a dedicated Valuations Court and to require the new Court to sign off on all determinations of the compensation to be paid to property owners in the event of forced expropriation.

All the elaborate review mechanisms contained in the Property Evaluations Bill therefore seems completely unnecessary. It will only create another layer of bureaucracy without providing for a constitutionally valid mechanism for the determination of compensation to those whose property were forcibly expropriated.

The Constitutional court remarked recently in its judgment in Agri South Africa v Minister for Minerals and Energy that the obligation imposed by section 25 of the Constitution requires it not to “over-emphasise private property rights at the expense of the state’s social responsibilities” to effect land reform.

It must always be remembered that our history does not permit a near-absolute status to be given to individual property rights to the detriment of the equally important duty of the state to ensure that all South Africans partake of the benefits flowing from our mineral and petroleum resources.

But where forcible expropriation occurs, it is important that a credible body (In this case a court of law) always has the final say on whether just and equitable compensation was paid for the expropriated land. In the absence of such a mechanism, land expropriation may well become mired in corruption, which would not further the constitutional interests of speedy but effective land redistribution. It is for that reason that the proposed Bills need to be amended to require a court to approve all forms of compensation in cases of forced expropriation.

Still waiting for Minister Angie Motshekga to announce norms and standards for schools

In April 2013 I accompanied others on a visit to rural schools in the Eastern Capes part of an Equal Education sponsored trip to highlight the need for the promulgation of minimum norms and standards for all schools. This is the video produced of that trip.

Between a rock and a hard place for wives in polygynous marriages

Nkosi Patekile Holomisa, President of the Congress of Traditional Leaders of SA (Contralesa), has slammed a recent Constitutional Court ruling on Tsonga marriages, saying it had the potential to “wreak havoc” in families. The ruling purported to develop Tsonga customary law regarding polygynous marriages, requiring men who marry more than one wife to seek consent from the first wife. But the problem with the judgment is not that it would “wreak havoc” in families, but rather, that it fails adequately to consider the potential negative effects of polygynous marriage practices on the wives involved in such marriages.

I miss Justice Albie Sachs. Sachs, whose term as a Constitutional Court judge came to an end in 2009, was the one judge best capable of engaging with the way in which different forms of power (associated with gender, race, culture, sexual orientation and economic privilege), operate along different axes in our society to marginalise some and benefit others.

Sachs understood that power is diffuse and that we could all potentially be both the beneficiaries and the victims of legal rules which almost always promote the interests of some to the detriment of others (even others who may themselves be relatively marginalised). Legal rules may affect a poor, black, rural women differently from middle-class, black, urban men; just as they may affect middle-class, gay, white, men differently from the way they affect working-class, white lesbians.

When judges in South Africa are called upon to develop the customary law to bring it in line with the spirit, purport and objects of the Bill of Rights (or when called upon to develop the common law relating to the regulation of intimate relationships) they often fail to recognise that overlapping and often conflicting interests loom large in the exercise. Justice Sachs was one of the few judges who consistently managed to identify these often conflicting interests and seriously attempted to resolve the tensions in a manner that recognised the multiple forms of harm caused by the enforcement of certain legal rules.

Unfortunately, both the majority and minority decisions in the Constitutional Court judgment in Mayelane v Ngwenyama and Another fail to display the same kind of sensitivity towards the way in which power operates in South Africa. Even more unfortunately Patekile Holomisa failed to acknowledge the deeply oppressive effects of patriarchal legal rules – whether these rules are sourced from indigenous customary law or from the customary law of the colonisers (also sometimes referred to as common law).

The facts of the case are relatively straightforward. Ms Modjadji Mayelane alleged that she concluded a valid customary marriage with Hlengani Dyson Moyana in 1984. Ms Mphepu Ngwenyama alleged that she married Mr Moyana as his second wife in January 2008. Mr Moyana passed away a year later in February 2009. The legal issue was whether the second marriage was a valid marriage in terms of Xitsonga customary law (and hence, whether the second wife could also legally inherit from the deceased). As Mr Moyana did not obtain the consent of his first wife (Ms Meyelane) when he married his second wife (Ms Ngwenyama), his first wife claimed that the second marriage was invalid (and hence that the second wife had no inheritance rights).

The majority judgement, authored by Froneman, Khampepe and Skweyiya (Moseneke, Cameron and Yacoob concurring), found that the Recognition of Customary Marriages Act does not require the consent of a first wife for the valid conclusion of a subsequent polygynous marriage in terms of customary law. This meant that, in as far as Xitsonga customary law did not require consent from the first wife for the conclusion of a valid polygynous marriage (something the so called “experts” were not in total agreement on), the customary law had to be developed. This development then required the court to declare the second marriage between Mr Moyana and Ms Ngwenya null and void.

In coming to this conclusion the judgment made many wise and relatively uncontroversial statements. The Constitutional court once again endorsed the notion that ours is a living customary law that requires innovation in determining its “living” content, as opposed to the potentially stultified version contained in past legislation and court precedent. It also affirmed the view that:

caution, patience and respect are needed to ensure that, in taking its place as an institution of our democratic dispensation, living customary law reflects the rights and values of the Constitution from which it draws its legal force.

The judgment also focused on the first wife’s rights to equality and human dignity and stated that allowing her husband to marry another woman without her consent would not be compatible with the protection of these rights of a first wife which are protected by our Bill of Rights. While the court must accord customary law the respect it deserves, it cannot shy away from the fact that “even in idyllic pre-colonial communities, group interests were framed in favour of men and often to the grave disadvantage of women and children”.

Where subsequent customary marriages are entered into without the knowledge or consent of the first wife, she is unable to consider or protect her own position. She cannot take an informed decision on her personal life, her sexual or reproductive health, or on the possibly adverse proprietary consequences of a subsequent customary marriage. Any notion of the first wife’s equality with her husband would be completely undermined if he were able to introduce a new marriage partner to their domestic life without her consent.

It is obvious that a wife has no effective autonomy over her family life if her husband is entitled to take a second wife without her consent. Respect for human dignity thus:

requires that her husband be obliged to seek her consent and that she be entitled to engage in the cultural and family processes regarding the undertaking of a second marriage. Given that marriage is a highly personal and private contract, it would be a blatant intrusion on the dignity of one partner to introduce a new member to that union without obtaining that partner’s consent.

In response to these findings Patekile Holomisa warned that the court ruling would have a negative effect on tradition.

Yes, it is desirable that the existing wife be consulted but not give her all the power to decide,” said Holomisa. “There is no limit to polygamy except being able to provide for the family. It’s going to force men to divorce and marry again, which is not how it’s done in African culture.

But it seems to me that both Holomisa and the judges of the Constitutional Court failed to grapple with the effects of customary law rules on polygynous marriages on the purported second (or subsequent third or fourth) wives. The subsequent wives might well believe that they enter into a valid marriage with the man who purports to marry them. But if the first wife does not give consent for the second marriage, no valid second marriage comes into existence. This means that in the absence of consent by the first wife, the subsequent wives would have no rights and therefore would not protected by the law at all.

In this instance the second wife was “married” to her husband for only one year. But what would have happened if the second wife had been “married” to the husband for fifteen years, but the first wife had never given consent? If the husband then died or if the husband decided to leave the second wife, she would enjoy absolutely no legal protection.

As the minority pointed out, the majority decision also avoids the question of whether the consent of the second and third wives would be required for the valid conclusion of subsequent marriages by later wives. Because the facts before the court did not raise this problem, the majority decided not to address it, stating that “living customary law should be allowed its own space to adjust”. Meanwhile second and third wives whose husband takes another wife may well have their dignity and equality rights undermined until such time as the customary law develops or such time as someone has enough money to get the customary law developed by the courts to protect the second and third wives.

Judging from the statement of Patekile Holomisa, the lack of power of second and subsequent wives would acutely affect their ability to live lives of dignity and respect. If men who enter in polygynous marriages continue to believe – as Holomisa seemingly does – that women are in effect the property of their husbands (who can do as they please as long as they can provide for their families), the position of subsequent wives would remain precarious. They would run the risk of agreeing to enter into “marriages” thinking it is valid when it is not and they would hence not be protected from further exploitation. They would also not be required to give consent for their husband marrying a third or later wife and would therefore not have any say about how their intimate private relationships are arranged.

The curious case of the pastor punished for honesty

“Prejudice,” warned former Chief Justice Sandile Ngcobo in the judgment of Hoffmann v South African Airways, “can never justify unfair discrimination”. This means that a church can never justify discrimination against a gay or lesbian minister, pastor or priest, because it wanted to protect itself against the homophobic prejudices of its congregants. But this seems to be exactly what South Africa’s Methodist Church did when it fired Reverend Ecclesia de Lange after she announced to her congregation that she was going to marry her same sex life partner.

When the reverend Ecclesia de Lange announced to the congregation of the Brackenfell and Windsor Park Methodist congregations (where she was serving as its minister) that she was going to marry her girlfriend (with whom she was already sharing the official church manse), she was under the impression that the move would be welcomed by the church – in the same manner that it was generally welcomed by her congregants.

Instead of the Methodist Church leadership welcoming her move to stop living together without being married, the leadership suspended reverend De Lange and charged her with breach of the church’s policies when she announced her pending same sex union to the congregation.

Interestingly, she was not charged because she was living with her same-sex partner in the manse. Neither was she charged for entering a same sex marriage. Instead she was charged with announcing her intention to enter into such a marriage on the basis that this pre-empted the outcome of a continuing debate inside the Methodist Church about whether the church should endorse equal marriage rights for all.

In other words, the church was upset by the fact that she wanted to formalise her same sex relationship and that she was honest about this relationship with the members of her congregation. If she had been dishonest and had not announced her impending marriage to the congregation, she might never have been disciplined. This suggests that the Methodist Church was deeply hypocritical and essentially punished its ministers for being honest about their same sex relationships. And there I was, thinking that churches usually insisted on honesty and truth, not on deceit and subterfuge; that they insisted that people who love each other get married rather than live together without getting married.

The reverend De Lange was found guilty and it was recommended that she remained suspended until such time as the church made a binding decision about its position on ministers in same sex unions. On appeal, the original guilty verdict was confirmed and her ministry of the Methodist Church of Southern Africa was discontinued. In other words, she was fired because she was honest enough to announce her wedding to her congregation.

Rule 11.3 of the Methodist Church’s Disciplinary Code states that a minister can be disciplined because of issues relating to his or her character, doctrinal beliefs, fitness for the work of the ministry, or the observance of the Laws and Discipline of the Church. The charges against the Reverend De Lange related to her alleged failure to “observe and implement the Laws and Discipline and all other policies, other policies and decisions, practices and usages of the Church”.

Here is the catch: she was found guilty of breaching the church’s policy and more specifically the provisions of Year Book 2008 2.5.1(vi). The 2008 Year Book paragraph 2.5.1 (vi), captures the official version of the Methodist Church regarding same sex marriage at the time when reverend De Lange was fired:

Conference recognises that any decision and subsequent action on the issue of civil unions between same sex partners must await the outcome of the on-going process of engagement as specified by Conference 2005 and, in the interim, expects Methodist Ministers to continue to offer pastoral care to homosexual individuals.

In other words, she was found guilty of breaching a rule which stated that the church explicitly declined to take a position regarding same sex marriage. It is seldom that somebody is dismissed for breaching a non-existent rule – but this seems to be just such a case. This week she challenged the unfair disciplinary process and the unfair discrimination by the church against her in the Cape High Court. (Full disclosure: my sister, Anna-Marie de Vos, SC, argued her case and I informally advised the legal team.)

One aspect of the case raised before the High Court, was the argument that by firing Ecclesia de Lange because she had announced her marriage to the congregation, the Methodist Church had unfairly discriminated against her in contravention of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). Section 13 of the PEPUDA requires the complainant to make out a prima facie case of discrimination. Once she has done so, the onus shifts to the respondent who must prove that the discrimination was not unfair.

In this instance, the Methodist Church itself had admitted that it had discriminated against Ecclesia de Lange. Its defence was, in effect, that it was justified to do so (and that the discrimination as therefore fair) because the church was merely enforcing the laws and discipline of the church.

Section 14 of PEPUDA lists a whole host of factors that might be relevant when a court had to consider whether the church had disposed of its onus. Two of these factors are of particular relevance in this case. First, the church could show “the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned”. Second, the church could prove that the discrimination had a legitimate purpose and that it actually achieved its purpose. If the church could prove the latter the court would weigh these considerations up against the seriousness of the infringement of the human dignity of the person against whom the church discriminated to decide whether the discrimination as fair or unfair.

Given the guarantee of freedom of religion contained in the Constitution, it could be argued that where a religious denomination had formally adopted a view, based on its own “definitive” interpretation of scripture, that it was a God-mandated requirement for a church to deny some people their human dignity and to discriminate against them because of one of more of their personal attributes or characteristics like race, sex, gender or sexual orientation, this would be found to justify the discrimination.

Such a church could then say that it was an inherent requirement of the job of a minister of that church to be white, to be a man, to be unmarried, to be married to a member of the opposite sex or to lie about being married to a member of the same sex. The purpose of the resulting discrimination could then be said to be the enforcement of the pre-announced, clearly defined, policies of the church, based not on the personal prejudices of the bishops or other church leaders, nor on the prejudices of the members of the church, but on the specific interpretation of the scripture as adopted by the official church bodies.

This would mean that where the highest decision making body of a church had decided (as the Dutch Reformed Church did many years ago) that Apartheid was biblically founded and then invoked specific verses from the Bible to justify this view, that church would (arguably – but I am not sure about this point) be able to convince a court that its requirement that only white men could become dominees in that church constituted fair (instead of unfair) discrimination.

Similarly, a church that had invoked specific Bible verses and had decided that gay men and lesbians deserved to be discriminated against and to have their human dignity affronted, may (arguably) be able to convince a court that its discrimination against gays and lesbians who wished to join the church or wished to get married was fair and therefore legally permissible.

But at the time of Ecclesia’s dismissal the Methodist Church had explicitly decided not to decide whether the scripture (as interpreted by its highest decision making body) would approve of same sex marriage. It would therefore be impossible for it to prove that its discrimination against Ecclesia de Lange was fair and hence legally justified. It could not be said to be an inherent requirement of the job that ministers in the Methodist Church involved in same sex relationships were required to keep such relationships secret. Nor was it an inherent requirement of the job that Ministers of that Church were required to lie about their marital status. The church had not adopted an official policy, backed up by reference to the relevant scriptures, so it had not way of proving that it was advancing the religious doctrine of the church when it discriminated against Ecclesia.

How could it be intrinsic to the activity of being a minister in the Methodist Church not to be married to your same sex life partner, if the church itself had not made any decision about its position on same-sex marriage? It cannot be intrinsic to the activity of being a minister always to act in a way that conforms to the expectations – not explicitly based on religious scripture – of some of the members (or even some of the leadership) of the church. To hold otherwise would hold a minister hostage to the prejudices, fears, fleeting obsessions and predilections of individual leaders of the church that were unrelated to the official interpretation by the church of those scriptures it based its teaching on – even when this will have the effect of discriminating against the minister based on one or more protected grounds.