Constitutional Hill

Freedom of expression

James Bond and the National Key Points Act

The National Key Points Act, passed by the apartheid Parliament in 1980 to protect the PW Botha regime and those who collaborated with it, is a constitutional abomination. Yet, when civil society groups requested the list of National Key Points from the Minister of Police in terms of the Promotion of Access to Information Act (PAIA), this request was refused on the grounds that making the list public would provide information to “dark forces” out to destabilise South Africa. The Gauteng High Court had no problem in rejecting this laughable claim and ordered the release of the list.

Secrecy becomes a habit for those with something to hide. No wonder the apartheid state was notoriously secretive. Although the rumour that PW Botha’s matric certificate was classified information could never be confirmed (let’s just say that he was no academic overachiever), much else in apartheid South Africa was classified information. When the apartheid state finally came crashing down in the early 1990ties the paper shredders worked overtime to destroy the (secret) evidence on extra-judicial killings, torture and other state crimes.

The National Key Points Act played its part in creating this web of secrecy and deceit. Although the list of National Key Points was never made public, citizens could be prosecuted for revealing information about security measures at National Key Points, creating a Kafkaesque world in which you could be sent to prison for something that you could not have known was a crime.

Sadly (but perhaps not surprisingly) the Act was never repealed or amended after the advent of democracy. It has, instead, been enthusiastically (but only selectively – more on this later) used to suppress information about facilities about which the public may ask awkward questions. A certain private home in rural KwaZulu-Natal comes to mind.

The Act allows the Minister to declare any place a National Key Point, among other reasons “whenever he considers it necessary or expedient for the safety of the Republic or in the public interest”. As the High Court pointed out this gives the Minister (now the Minister of Police) almost unfettered discretion to declare places National Key Points if he or she wants to keep information about it secret.

The declaration of a place as a National Key Point has some interesting consequences. Section 3 of the Act states that once declared a Key Point:

the owner of the National Key Point concerned shall after consultation with the Minister at his own expense take steps to the satisfaction of the Minister in respect of the security of the said Key Point.

Famously this provision was ignored after President Jacob Zuma’s private home was declared a National Key Point. It was argued that a cabinet decision on security upgrades at Presidential homes governed the Nkandla renovations. However, it is unclear how a policy decision taken by one branch of government, can trump legislation passed by another.

The Constitutional Court ruled in Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others that the executive cannot amend the provisions of an Act of Parliament as this would breach the separation of powers. The cabinet policy therefore could not amend the provisions of the National Key Points Act.

A fascinating legal question is whether a cabinet policy can be invoked to justify state-funded “security upgrades” at a National Key Point, given that the Act requires the owner to carry the cost of any security upgrades. In her report the Public Protector assumed that it could. But I would be surprised if a court found that the peremptory provisions in an Act of Parliament could be overridden by a cabinet policy.

Section 3B of the Act also requires the establishment of a “Special Account” which can be used to render financial assistance – including loans – to the owners of National Key Points required to improve the security on the property. This Special Account has never been created. This means another pivotal section of the National Key Points Act has not been complied with.

Section 10 of the Act further creates several criminal offences regarding National Key Points. Amongst others, it prohibits any person from furnishing “any information relating to the security measures applicable at or in respect of any National Key Point”.

When the list of National Key Points is kept secret it means that ordinary citizens may not know when they commit a crime relating to a National Key Point. The High Court correctly found that keeping the list of National Key Points secret was in conflict with one of the basic tenets of the principle of legality.

This is so because there can be no secret laws. “One of the central tenets underlying the common-law understanding of legality is that of foreseeability – that the rules of criminal law are clear and precise so that an individual may easily behave in a manner that avoids committing crimes.” For this reason alone, according to the High Court, the list of National Key Points had to be made public.

The state also had an obligation in terms of PAIA to make the list public. Section 11(3) of PAIA makes it clear that a requester of information need not justify a request for information held by the state. In contrast, if the state refuse to provide the information requested it is the state who has to justify its refusal.

In this case, the state failed to provide any evidence of why it was justified to keep the list of National Key Points a secret.

The High Court quoted extensively from the Constitutional Court judgment in President of the Republic of South Africa and Others v M & G Media Ltd to explain what was required from the state to justify a refusal to provide information held by it.

In order to discharge its burden under PAIA, the state must provide evidence that the record in question falls within the description of the statutory exemption it seeks to claim. The proper approach … is therefore to ask whether the state has put forward sufficient evidence for a court to conclude that, on the probabilities, the information withheld falls within the exemption claimed. The recitation of the statutory language of the exemptions claimed is not sufficient for the state to show that the record in question falls within the exemptions claimed. Nor are mere ipse dixit affidavits proffered by the state. The affidavits for the state must provide sufficient information to bring the record within the exemption claimed.

“Sufficient information” was never provided in this case to justify the secrecy. Instead the state alluded to “dark forces” that are out to destabilize peace-loving countries, like our own. By way of illustration, the state referred to the bombing of the mall in Nairobi as this supposedly shows “how vulnerable countries and their citizens are.” As the High Court remarked:

This is, self-evidently, an ill chosen example; ie, to compare a shopping centre being exposed to politically inspired violence, where the public congregate en masse, with a key point, is inapposite. However, it may be supposed that, upon a generous interpretation of the remark, it was intended simply to illustrate the generic exposure to unexpected violence that everyone experiences. Nevertheless, to give voice to a bland truism contributes nothing to a justification under PAIA.

In fact, the court found that the state wholly failed to provide any evidence for denying access to the list. The state claimed that making the list public would endanger the lives of people and was likely to endanger state security. But it did not provide any facts to back up this bold claim. On the contrary, the state itself had on previous occasions revealed that some places have been declared National Key Points, rendering its argument that such revelation threatens the security of individuals or the state difficult to accept.

As the High Court wryly remarked:

The rationale offered by the respondents is spoilt by the conduct of the Government itself, because evidence was adduced of ministers having furnished details of key points to Parliament for the whole world to know, including, presumably, those dark forces that lurk in wait to disturb our tranquillity. A further example of public disclosure of a key point adduced by the applicants includes the very public announcement that Nkandla, the private home of President Zuma, has been declared a key point.

The Court also rejected the state’s “James Bond defence”. Perhaps answering the question on whether the law has a sense of humour first posed by Justice Sachs in the Laugh it Off case, the High Court rejected this defence in the following manner:

In argument, counsel for the respondents, quite properly, was driven to concede that there was no evidential material disclosed in the papers to support the refusal. He contended that the predicament of the respondents was illustrated by the experiences of that well known gentleman adventurer and upholder of noble causes, James Bond, who, albeit it must be supposed, with his customary charm and grace, declined to disclose a fact to a questioner, because were he to do so, he would have to kill him. This is an interesting submission, which, alas, is spoilt by the absence of such an allegation under oath.

Hopefully the state will not appeal the judgment. If it does appeal, it will almost certainly lose again, wasting taxpayer’s money in the process.

But this judgment is only a partial victory for common sense and openness. The case did not deal with the larger question of whether the Key Points Act was unconstitutional. Given the untrammelled discretion given to the Minister to declare places National Key Points, aspects of the Act will almost certainly be declared unconstitutional if they were to be challenged.

But that question will only be definitely answered when the constitutionality of the Act is challenged in court. Hopefully the court will get the opportunity to answer this question in the near future.

Why everything you think you know about free expression is false

Steve Hofmeyr and his supporters claim that a puppet called Chester Missing has infringed on his right to freedom of expression by challenging his racist statements and by challenging his sponsors for supporting his racism. They do not seem to understand that your right to freedom of expression does not always give you a right to freedom from the consequences of your expression.

The protection of freedom of expression is a prerequisite for the proper functioning of a democracy. When the state or individuals use the law to supress the free flow of ideas and information needed to make informed political choices, the quality of the democracy is diminished. We are then forced to make partially informed or uninformed decisions about whether to vote and if we vote for whom to vote.

A world in which books, movies or songs are banned; comedians are censored; prophets, artists, writers or poets jailed; academics gagged; critical voices silenced; or cultural conformity imposed through court orders or threats of violence is a world in which the human dignity of every person is not respected. This is so because our agency as human beings is diminished when we do not have at least the possibility of being exposed to life changing forms of artistic, religious or intellectual expression.

The problem with these lofty sounding principles is that not all forms of expression have equal value. But it is difficult to distinguish between forms of expression that enhance democratic debate and enrich our lives, and forms of expression that have little or no value or harm people and sabotage democratic debate.

For this reason people who are strong supporters of freedom of expression often claim to endorse the view (attributed to Voltaire) that “I may disapprove of what you say, but I will defend to the death your right to say it”.

Underlying this view is the assumption that we cannot trust anyone or any institution to decide impartially and fairly what types of expression are worthy, enriching and democracy-enhancing and what types of expression have little or no value. We therefore need to protect all types of speech in the hope that democratic deliberation in the so-called “free marketplace of ideas” will help us to establish the “truth” about a matter.

But if you scratch below the surface you soon realize that this view of freedom of expression is false. The degree of support we offer for the right to free expression of others depends partly on whether we believe the expression has value or not; whether we believe it forms part of a legitimate debate or whether the speech is so objectionable that it extends beyond what we are prepared to defend. This is not easy to admit because it robs the right to freedom of expression of some of its moral clarity.

We accord different value to different types of expression and grant different levels of protection to the expression depending on the value we attach to it. We value some forms of expression so much that we actively promote it and jealously guard the space within which it can be expressed. We attach little or no value to other forms of expression and do not mind if these ideas are not given wide publicity. Other forms of expression – inciting people to commit mass murder, or child pornography, for example – are so objectionable that we have no problem in having these ideas suppressed.

We may claim to be prepared to defend all views to the death, but we lie when we do so. We all tolerate different kinds of expression to different degrees depending on our political and ethical commitments. While we may defend some views vigorously, we will defend other views more tentatively while we will be prepared to have other views censored entirely.

Let us look at a few examples to illustrate this point.

Very few South Africans will vigorously defend and actively seek to provide a platform for the views of paedophiles who argue for the legalization of sex with young children. This is so because as a society we have decided that adults who force children to have sex with them harm those children – we do not need further debate on the issue to decide whether this is true or not.

While some of us might, at a push, defend the right of paedophiles to state their views without being arrested or censored, few of us will not object if we discover Pick & Pay or Landrover is sponsoring the paedophile’s activities. Those who claim that the right to free speech of the paedophile is being infringed by those who ask sharp questions of Pick & Pay and Landrover for sponsoring the paedophile, will reveal that they believe reasoned debate about the value of paedophilia is possible and desirable.

Similarly, in a democratic society based on the value of human dignity and equality the views of a racist, sexist or homophobe might similarly be legally tolerated while also not actively being promoted or accepted. This is because most of us do not believe that there are two valid sides to the argument. If you are a bigot who believes that black people are inferior to white people most of us think your belief has no value in a democracy – arguing about it would only give credence to the bigotry.

This means that those who object to targeting Pick & Pay and Landrover for sponsoring Hofmeyr are saying that while they might not agree entirely with Hofmeyr they are relatively tolerant of racism and bigotry and believe that there is a valid argument to be made in support of the contention that black people are inferior to white people. This is a political and ethical choice (in my view a despicable choice, it must be said) which implicates Hofmeyr’s defenders in tolerance of bigotry.

Defending some forms of free speech is not always value neutral.

The same principle applies to those who deny the Holocaust or argue that the Nazi’s did a great job by exterminating 6 million Jews. As a society we have decided that there is no value in debating whether the Holocaust occurred or whether the mass murder of the Jews was a good idea. Why debate something that is so obviously evil – it will just give credence to the disproved and harmful views of a few lunatics? We may or may not criminalise Holocaust denial, but few of us are going to champion the rights of denialists to make money out of their hatred and bigotry from sponsorships by private companies.

Some forms of expression – expression that is defamatory or contains hate speech, for example – are also regulated by law. Few if any of those who say they will defend to death your right to have your say have ever defended to the death the right of everyone to defame others or to incite violence against them.

These examples illustrate that we tolerate or protect different types of expression to different degrees. Our Constitution protects speech (apart from narrowly defined forms of hate speech), which means it would seldom be constitutionally valid to use the law to censor or suppress expression. That is why no one has used the law to censor Hofmeyr’s racism.

But there is a huge difference between using the law (with the full might of the state behind it) to silence someone and for private individuals to challenge the speaker and those who support him or her financially or otherwise about their views.

When the speech is of a kind that has little or no value for the democracy (and I contend that racism and bigotry has little value for a democracy), it may be tolerated without being accepted and promoted. When a large company accepts and promotes such bigotry and racism, that company should therefore not be surprised if it is called out about it and pressurized to stop its support for speech that is both bigoted and racist.

There is another reason why those who claim to be prepared to defend to death the right of everyone to say what he or she wishes, are talking nonsense. This is because the “free marketplace of ideas” – on which this notion depends – is of course a ridiculous fiction. Not all views are treated equally in any society or by anyone and none of us give all views a fair and equal chance to be heard.

The free marketplace of ideas is not only a fiction because as a society we have already judged some types of expression as worthless or positively harmful and therefore not worthy of protection or worthy of only minimal protection. It is also a fiction because there cannot be free and fair competition of ideas in a capitalist society.

Ideas can only compete freely with each other if people are exposed equitably to these ideas and are given a fair opportunity to consider them. But many worthy (and many not so worthy) ideas are not given a fair opportunity to be heard because these ideas threaten the status quo or is considered harmful to society.

How often have you heard the views of a paedophile arguing in favour of sex with small children broadcast on television? Not that often, I would guess, because the “market” has decided to censor those ideas because they are viewed as harmful to society.

Moreover, where those who distribute information (via radio, television, in the print media, or on internet websites) have a vested interest in retaining the status quo they will seldom promote ideas that challenge the status quo. And for commercial reasons, the media often tone down criticism of their advertisers or of the politicians and political parties their customers support. Financial considerations play an important role in determining what ideas we are exposed to and in what way we are exposed to these ideas.

Think about this: Pick & Pay is not going to allow you to take up position in one of its stores to tell customers that Pick & Pay must be boycotted because it supports an Afrikaans music festival where a racist “artist” (I use the word expansively) will be performing. And will the local shopping centre in Sandton allow the Economic Freedom Fighters to hold a rally in its food court to drum up support for the next election? I suspect not.

Those who defend Hofmeyr on the basis that by targeting his sponsors we are censoring him, are really saying we are distorting the free marketplace of ideas. We are exploiting the fact that big companies want to make a profit in order to limit the extent to which bigoted and racist views are given a platform in the marketplace.

This is a nonsense argument as there is no free marketplace of ideas to start with. A company supports an “artist” because it believes the sponsorship will enhance its brand. It will never support ideas – say the ideas in support of paedophilia – that it knows will harm its brand. By alerting the company to the damage caused to its brand by its support for bigotry, we are helping it to make the kinds of choices it makes every day. Besides, no one has a right to make a profit out of his or her bigotry and racism. I have checked the Constitution and can confirm that no such right is contained in it.

So, tough luck Mr Hofmeyr. The more racist nonsense you talk, the less likely it is that you will retain any sponsors and the more likely it is that you will not be invited to appear at festivals. If you want to make money out of your bigotry you might have to record another karaoke CD. I am sure there are still some sad people out there who support you and will buy your records.

When some rights are more equal than others

Over the weekend, in a speech lauding the right to freedom of expression, President Jacob Zuma reportedly cautioned that rights — such as freedom of expression — should be balanced with responsibilities and that no one should assert their rights while trampling on the rights of others. The idea that you cannot (or should not) exercise your rights when this infringes on the rights of others is widely held. But the idea is wrong. Here is why.

Human rights are not always the best prism through which to view our responsibilities in the world we live in. This is so because what you have a right to do and what is right to do is not always the same thing. In other words, a Bill of Rights does not contain a complete set of ethical rules that can guide us on how to live a virtuous or ethically responsible life.

In political arguments the right to do something is often conflated with whether it is right to do it.

So, when an artist produces a controversial work of art, some of the defenders of the artists will argue that the artist has a right to artistic freedom and that any criticism of the artists therefore amounts to an attempt to censor the artist. Conversely, some of those who believe the work of art reflects racist, sexist or homophobic sentiments will argue that the artist had no right to produce the work of art and that the work of art should thus be destroyed or the artist should be prohibited from exhibiting it.

Instead of engaging in a discussion about the merits of the work of art, of its political intent or effect, or of whether it was ethically defensible for a museum to exhibit it at all, some people will invoke artistic freedom to defend the artist and his or her work while others will invoke the rights of those wounded by the work of art to argue in favour of censoring the work of art.

A political or ethical disagreement becomes a fight about rights and an opportunity is lost to engage meaningfully with each other about the disagreement at hand.

But this juridification of political and ethical disagreements is not the main reason why it is wrong categorically to state that no one should assert their rights while trampling on the rights of others.

Instead, the heart of the problem is that rights often clash with one another and it is therefore not always possible to respect all rights equally at the same time. Sometimes the very essence of your right will encompass the “right” to trample on the rights of others. Depending on the rights involved and the context in which they are being exercised, one right must give way to another.

For example, the right to freedom of religion will often clash with the right to equality. When the Catholic Church asserts its right to appoint only heterosexual, male priests, it asserts the right to discriminate against women, gay men and lesbians. Either the right to freedom of religion must give way to the right to equality, or the Catholic Church must be permitted to trample on the rights of a majority of citizens.

Similarly, the right to freedom of association will often clash with the right to equality. When the owner of a Bed and Breakfast or a holiday resort asserts her right not to open the doors of the establishment to black people or to gay men or lesbians, this will trample on the rights of black people or gays and lesbians. In such a case, it is impossible to respect the right to equality and the right to freedom of association at the same time. One right must trump the other. There is no other way out.

Moreover, the right to freedom of expression will often clash with the right to dignity. If you call somebody dishonest, or question his or her intellect, or claim that he or she is a pervert, it may well infringe on the dignity of the person you have insulted in this manner. Either your right to free expression must give way and you must be prohibited from making such a statement (even if possibly true and even if making the statement may be in the public interest) or the other person’s right to dignity must give way to your superior right to freedom of expression.

These examples illustrate that in some cases you will have no choice but to trample on the rights of others in order to assert your own rights. In such cases a claim that somebody should not trample on your rights when he or she asserts his or her own rights is no more than a claim that your rights should trump theirs. When a politician makes such a claim it will often sound suspiciously like he or she believes his or her rights should trump the rights of ordinary citizens.

Sometimes the text of a Bill of Rights would give an indication which of the clashing rights should be upheld. But when it does not, difficult questions arise.

Why should the right of religious organisations to discriminate trump the rights of citizens not to be discriminated against? Why should the right to equality trump the right of racists, sexists and homophobes to associate with whom they wish? Why should the right of citizens to be kept informed about the nefarious doings of politicians or powerful businessmen and women trump the right of the politician or businessman or woman to have his or her dignity respected?

The court sometimes answers these questions in favour of one group because the views of that group is widely accepted or because of the overwhelming political power and influence of the group. As Justice Sachs pointed out the Prince v Law Society of South Africa when explaining why the religious practices of dominant religious groups are often upheld even when it infringes on the rights of others:

all over the world religiously motivated circumcision of infant boys has survived even the most stringent of child protection laws. Powerful religious organisations support it and it has become an everyday and accepted part of the social scene. This suggests that what matters is not the intrinsic nature of the act, but the degree of official acceptance of the actors.

Sometimes the court answers the question by looking at the aim to be achieved by the right and by asking how important this aim is for society as a whole. For example, in open and democratic societies the dignity of politicians will almost always yield before the right of citizens accurately to be kept informed about matters in the public interest. Freedom of expression is pivotal for the safeguarding of democracy and where politicians are allowed to invoke their right to dignity to protect them against criticism and against the exposure of wrongdoing, the quality of the democracy will be fatally compromised.

Lastly, the court sometimes answers to question with reference to the particular history of a country and political context in which rights are asserted. For example, given South Africa’s colonial and Apartheid past, its history of gender discrimination and its past vilification and marginalisation of sexual minorities, the right to equality will usually trump the right to freedom of association. This means that the court will almost always reject the claim by the owner of a Bed and Breakfast that his or her right to freedom of association should trump the rights of citizens not to be discriminated against based on race, sex or sexual orientation.

Of course, it is important to note that in some cases the claim that you are trampling on the rights of an elected politician by asserting your own rights is itself spurious. When you criticise a an elected representative (especially one holding high office) for not doing his or her job; when you ask difficult questions about that person’s conduct; when you demand that the person obeys the law, you are not infringing on his or her rights. What you are doing is engaging in democratic debate and contestation.

In such cases, the argument that no one should assert their rights while trampling on the rights of others becomes a plea to be excused from being held accountable by the voters who elected you.

Why is Afriforum threatening to censor a work of art?

Afriforum, an organisation that fights for the preservation of white privilege, is threatening to go to court to have the song of a Cape Town based hip-hop collective called Dookoom declared hate speech. The song (deploying Afrikaans in all its exquisite richness) is entitled “Larney, jou poes”. The threat by Afriforum raises several interesting questions – only some of a legal nature.

It is trite to say that racism remains deeply entrenched and widely practiced in South Africa. Some forms of racism are structural in nature, but sadly many “white” South Africans who perpetuate it and benefit from it often deny its existence. (By “white” I mean to refer to those of us who benefit from being perceived by ourselves or by others to be members of the constructed category of “white”)

This denial is probably based on a genuine belief that structural racism does not exist. After all, not everyone understands the direct link between power and racism.

Having no theory (or an impoverished theory) of power and little understanding of how history, social and economic factors and cultural context influence how we experience the world and how we are seared by the words and actions of others, such individuals do not have the intellectual tools to identify injustice in its complex multiplicity.

They do not understand that questions of power – who has it and why; who are able deploy it and to what effect; what is the context in which it is being deployed and to what end; is it being deployed to challenge or to reinforce deeply entrenched patterns of privilege and advantage – loom large when we try to understand what racism is and why some forms of denigration can be racist while other forms can be anti-racist.

For many (but not all) “white” South Africans their racial privilege thus remains comfortingly invisible – much like the air they breathe. When somebody claims “not to see race” I try to give that person the benefit of the doubt and to assume he or she does not have the intellectual tools to realise that such a denial helps many of us “white” South Africans to remain soothingly blind to the structural racism from which we benefit – whether we choose to do so or not.

This does not mean that we are not mired in a cesspool of more crass forms of racist hatred. You only have to visit the comments section of most news websites or the Facebook page of alleged singer Sunette Bridges (the page optimistically refers to her as an “artist”) to know that some “white” South Africans, using their economic and social power (if not always their intellect), regularly indulge in the most hateful forms of racist speech.

If Afriforum were truly concerned about racist hate speech it would, of course, long since have threaten people like Sunette Bridges and some of her ardent followers with court action for alleged hate speech published on her site.

But Afriforum has not done so because it is not concerned about the words or actions of “white” racists. Instead it is concerned about the words and actions of those who criticise “white” racists; of those who challenge “white” privilege; of those who threaten the social status and economic dominance of “white” people who identify themselves as “Afrikaners” (a political term for a certain group of Afrikaans speaking “whites” who strongly identify with a romanticised version of the history of “white” Afrikaans-speakers).

Because of the self-serving hypocrisy inherent in the threat issued by Afriforum against Dookoom, it is tempting to dismiss Afriforum’s threat out of hand. But that would be making the mistake (so commonly made by those who engage in political “debate” in South Africa) of conflating motive with the merits of an argument. Just because Afriforum usually takes up the cudgels in defence of white privilege does not necessarily mean that in this particular case it may not have a legally valid (if possibly an ethically tenuous) point.

To explore whether this is the case, it is important to say a bit more about the song that caused all the trouble. “Larney jou poes” is a hip-hop track, a genre of music that is steeped in anger against the status quo; in aggression; in feelings of alienation and torment. In this case the song’s intent is signalled by the banging beat and industrial-strength synths over which the angry lyrics are rhymed.

Invoking a biblical imagery the song starts as follows: “Farmer Abrahams has many farms / Many farms has farmer Abrahams / I work one of them / And so do you / So let’s go burn them down.” In another verse the political context of the song is made more explicit:

Bra, remember you came here in 1652 / You a skollie too / You were fokken sentenced with a convict crew / You robbed and screwed the natives / Now who’s the savage?

The chorus underlines the anger of the song by repeatedly exclaiming, “Jou poes, my larney”.

I can imagine that this form of artistic expression – displaying a level of originality and talent lacking in many other South African “artists” – would upset many privileged South Africans, especially “white” South Africans who own farms or have family members who own farms.

I might be wrong, but I suspect most people in South Africa won’t like being called a “poes” (and not only because the term is sexist), and won’t like to be told that they are “skollies” and thieves. Nor, I imagine, would many farm owners – whether a “larney” like Deputy President Cyril Ramaphosa, a larney” like Transvaal Agricultural Union President Louis Meintjes, or a “larney” like Julius Malema (before he lost his farm to SARS) – appreciate lyrics of a song that talks about the burning down of farms.

But does it constitute hate speech?

Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) states that no person “may publish, propagate, advocate or communicate words” based on any prohibited ground like race, sex, gender, sexual orientation, language or culture “against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; promote or propagate hatred.

Afriforum will only be successful in getting a court to censor the song if it could convince a court that the song targeted a group of people based on their “race”. (Ironically, those who claim to believe that race as a lived reality does not exist and that they do not see it, will therefore not be able to rely on this section). In addition, it will have to show that a reasonable person (a person who has an understanding of racism and how power works, is not too thin-skinned and self-righteous and thus not your average member of Afriforum) would believe that the song was intended to hurt or harm a group of people based on their race.

The High Court has not interpreted this section contextually as it was supposed to do. Neither has it interpreted the section with reference to the link between racism and power. It was for this reason (much criticised by legal academics) that it found against Julius Malema in the Dubul’ ibhunu judgment. As the case was never appealed, we do not have the benefit of a more informed and nuanced analysis of the hate speech provisions of PEPUDA by the Constitutional Court.

Given the narrow and a-contextual interpretation of section 10 provided by the High Court, I would have to assume for the moment that Afriforum would be able to convince a court that the relevant factors existed and that in terms of section 10 of PEPUDA the song constitutes hate speech.

But because these are not the words of a politician shouted at a political rally, but words contained in a work of art, that would not be the end of the matter This is so because section 12 of PEPUDA excludes “bona fide engagement in artistic creativity” from the hate speech prohibition in section 10.

Anyone who watches the video and listens to the (very angry but very clever) lyrics of “Larney, jou poes” would agree that this song is indeed a bona fide engagement in artistic creativity. This means that it is difficult to see how a court could find that this song constitutes hate speech. Just because a work of art is upsetting to a section of the population (as art often is) does not mean that it can be censored on the basis that it constitute hate speech.

Of course, some of the same people who shouted “freedom of speech!” when people complained about the implicit racism in the painting of Brett Murray’s “The Spear”, would now demand that the song be banned. Similarly, some of the same people who demanded that “The Spear” be banned will now champion this song and vehemently oppose it being censored.

But, sadly, not many South Africans seem to have the ability to be consistent or to take positions not based on the person involved in a case but rather based on the applicable principle or legal rule. This inability to be principled is sad, but also so tediously predictable that nothing else need to be said about it.

Far more interesting would be to engage in a debate about the merits of the song.

Is it a brilliantly angry and clever hip-hop track or mediocre at best? Does it express a profound truth about the injustice of capitalism and white privilege or is it a cheap and uninteresting form of sloganeering? Will it help to conscientise farmworkers about their exploitation at the hands of many (but not all) black and white farm owners or will its bristling anger and anarchic spirit alienate the very people it aims to politicise? Does it express a political truth that too many people are afraid to verbalise or is its artistic merit diminished by prejudiced generalisations? What’s up with the misogyny of certain hip-hop artists?

Works of art are meant to trouble, provoke, disturb, anger, inspire or move those who are exposed to them.

It is therefore a pity that members of Afriforum either do not have the intellectual tools to engage in such a vigorous debate, or are too scared that they will lose the debate if they do, to engage in it. Instead they are threatening to approach a court to help it censor a work of art because the work of art troubles and disturbs them.

Can Parliament act against EFF MPs for demanding answers in Parliament?

Can members of National Assembly (NA) who belong to the Economic Freedom Fighters (EFF) be suspended from Parliament for breaching the rules of the National Assembly? And if they “disrupt” proceedings by insisting that the speaker acts impartially and that the President answers the questions validly posed to him, can they be arrested – as suggested by a slightly unhinged Gwede Mantashe last week?

Parliament is supposed to be the engine room of South Africa’s democracy. Apart from considering and passing (constitutionally valid) legislation, Parliament is also required to hold the executive accountable, to oversee its activities and to provide a platform for debate about important issues of the day.

For members of the majority party there is an inherent conflict between fulfilling these constitutional obligations as elected representatives (and hence acting as servants of the people) and submitting to the strict discipline of the party who they represent in Parliament and following the instructions of their party leaders.

How do you hold the members of government accountable if they are leaders of your party who may have a decisive say in whether your name appears on the electoral list at the next election? How do you insist on accountability when you know Gwede Mantashe might call you in for a tongue lashing if you dare to ask the right questions? How do you insist on holding the executive to account if you run the risk of being “redeployed” as third assistant secretary to the South African ambassador of Tjkitjikistan?

Nevertheless, section 58 and 71 of the Constitution states that both Cabinet members and members of the National Assembly (NA) and the National Council of Provinces (NCOP) enjoy enjoys freedom of speech in Parliament and in its committees, “subject to its rules and orders”.

This means freedom of expression can only be limited if authorised by the rules and orders of Parliament. It cannot be limited by arbitrary rulings of the speaker not explicitly authorised by the rules and orders of Parliament.

As the Supreme Court of Appeal (SCA) ruled in the De Lille judgments many years ago, customs that apply in the British Parliament do not form part of South Africa’s Parliamentary rules and cannot be applied here without being incorporated into the rules and orders of our own Parliament.

The need for clearly defined, precise and narrowly tailored written rules on what kinds of speech can be limited in Parliament is important in a system like ours in which the speaker is neither independent nor impartial but a political leader of the majority party with a vested interest in protecting members of government against any accountability and criticism.

In the absence of clear rules, the speaker will have a blank cheque to make-up rules or to misapply vague rules to stop debate and to protect the members of cabinet from being held accountable by MPs who have a constitutional duty to do so.

It is for this reason that many of the rulings made by the speaker disallowing so-called “unparliamentary statements” by MPs are probably illegal and unconstitutional. There is no rule or order that authorises the speaker to limit “unparliamentary” statements and when she does make such a ruling it is therefore not authorised by law and almost certainly infringes on section 58 (or 71 if done by the Chairperson of the NCOP) of the Constitution.

Besides, the notion of “unparliamentary statements” is so vague and incomprehensible that it all but invites the speaker and other presiding officers to invoke it to stifle debate and free speech in Parliament in order to protect the members of the executive from criticism, scrutiny and accountability.

However, the rules of Parliament as well as the Powers, Privileges, and Immunities of Parliament and Provincial Legislatures Act do regulate some forms of speech and conduct in Parliament.

Thus rule 49 of the NA requires members of the NA to take their seats when the presiding officer rises to speak. Rule 50 allows the presiding officer to order a member to stop his or her speech when the member persists in irrelevance or repetition of arguments. Rule 63 prohibits members from using “offensive or unbecoming language”. Rule 66 prohibits members from reflecting “upon the competence or honour” of a judge or a member of a Chapter 9 institution.

It is important to note that rule 72 of the NA makes clear that every member of the NA has a right to raise a point of order and may speak to do so. (Where a speaker refuses to hear a member who raises a point of order – as she did during the debate in which President Zuma refused to answer questions put to him by the EFF – she is in breach of the rules which she is supposed to uphold.)

Despite this, the speaker does have broad powers. She has a right to order a member to withdraw from the chamber where there is a breach of the rules or, in serous cases, to suspend the member. If the speaker is presiding this cannot be done after the fact, but must be done while the house is sitting. This means the speaker does not have the authority to suspend members of the EFF for what happened in the House last week, as she did not suspend them at the time – she merely suspended proceedings of the House, as she was entitled to do.

This does not mean that members of the EFF may not still potentially face legitimate suspension, as the Powers, Privileges and Immunities Act provides for suspension of members for up to 30 days and for a docking of an MPs pay for up to one month if they are found guilty of contempt of Parliament.

Contempt includes, amongst other things, improperly interfering with or impeding the exercise or performance by Parliament or a House or committee of its authority or functions; assaulting or threatening another MP; while Parliament or a House or committee is meeting, creating or taking part in any disturbance within the precincts; bribing MPs or taking a bribe; or hindering or obstructing a staff member in the execution of the staff member’s duties.

A “disturbance” is defined as “any act which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings of Parliament or a House or committee”.

This definition is vague: does it include statements made by MPs in which they raise points of order to demand that the President answer questions posed to him, when the President is illegally protected by the speaker from having to answer? And if it is a disturbance, is it an improper disturbance as required by the Act? Is an improper disturbance not only related to threats, violence and destruction of property and not to disturbances caused by the exercise of freedom of speech by MPs?

Given the fact that the Constitution guarantees the right of MPs to free speech in Parliament, these provisions have to be given a narrow interpretation to limit their scope. It may therefore very well be that an impartial body would find that what the EFF MPs did, does not amount to an improper disturbance of Parliament.

But who exactly caused the disturbance in the case relating to the (non) answering of questions by President Jacob Zuma in the NA? Was it the President who refused to answer the questions posed to him? Was it the speaker who bent the rules of Parliament to protect the President? Or was it the EFF members who refused to obey the rulings of the speaker and insisted that the president answer the questions? Or was it perhaps all three groups?

In terms of section 12 of the Powers, Privileges and Immunities Act, a standing committee of the NA (the Powers and Privileges Committee) must now decide these questions. An ad hoc Committee of the NA cannot decide on these questions as this would be in breach of section 12 of the Act read with section 191 of the rules of the NA.

The Act requires this committee to “enquire into the matter in accordance with a procedure that is reasonable and procedurally fair” and then to “table a report on its findings and recommendations in the House”. The House can then act against individual MPs if the standing Committee on Powers and Privileges makes a finding against them, based on the relevant facts, after having conducted a fair hearing.

It would obviously not be procedurally fair for the Committee to prejudge the matter or for the majority of the Committee members from the governing party to make decisions on the “guilt” or “innocence” of the EFF MPs based on the instructions of their party leaders. Where a perception has been created that the matter has been prejudged by some members of the Committee the fairness of the hearing will be called into question.

Given the statements made by some ANC leaders (and especially the Secretary General of the ANC) calling for strong action against EFF MPs, it is difficult to see how the Committee can actually conduct a reasonable and procedurally fair inquiry with ANC MPs present on the Committee. The Chief Whip of the ANC may very well have created a reasonable apprehension of bias on the part of ANC members of the Committee because of his premature statements about what happened in a branch of government.

Ironically, by commenting so hastily on the matter, the ANC leaders may well have provided the EFF members with a valid legal argument to nullify the work of the standing committee.

Lastly section 11 of the Act states that:

A person who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.

If this section applies to MPs as well as other persons who are not MPs and if “disturbance” includes a disturbance made through rowdy and unpopular speech, the section is clearly unconstitutional. This is so because section 58 and 71 of the Constitution prohibits MPs from ever being arrested for anything any of them has said in either of the houses of Parliament or its committees (even if what they have said was disrespectful, disruptive or in breach of the rules and the orders of Parliament).

These sections are not limited in any manner, providing MPs with an absolute right against arrest for what they say in Parliament.

But the section could also be read in conformity with the Constitution by reading it as not applying to MPs and I suggest this is the correct interpretation of the section. It is for that reason that the statement by Gwede Mantashe that EFF MPs should have been arrested and any suggestion by so called “Security Cluster” Ministers that MPs could be arrested for what they say in Parliament is dangerous and unconstitutional nonsense.

All this does raise an important question: has the time not come to consider the need to appoint a more independent and impartial person as speaker to apply the rules fairly and in a more even handed manner?

Should an MP who is elected as speaker not give up membership of the party or any leadership positions in that party for the duration of his or her speakership? Surely, a more fair and impartial speaker would instil more respect from all MPs, would ensure impartial rulings and may well prevent a recurrence of the kinds of actions taken by EFF MPs last week.

Hlaudi weather: The fog is even thicker than it looks

The appointment of Hlaudi Motsoeneng as the SABC’s Chief Operating Officer (COO) despite his dishonest and prima facie criminal behaviour raises serious questions about the willingness of public institutions and our government to respect constitutional institutions and to obey the law. It suggests that instead of viewing the public protector as an ally who can assist in rooting out dishonesty, maladministration, corruption and criminal behaviour, some public institutions and government ministers view the public protector as an irritating impediment to impunity.

Some days I yearn for the time before the National Assembly selected Thuli Madonsela as public protector. In those more innocent and altogether more soothing times, I could read a report of the public protector without having my remaining trust in the basic decency and honesty of most human beings shaken to the core.

Now, because South African journalists who are not employed by the SABC often hunt in packs (journalists from the SABC seldom hunt at all) they often manage to create a negative image of an individual that accords with their own agendas, anxieties and prejudices.

Once the pack identifies a public persona as worthy of scorn, the good publicity ends and the relentless, predictable vilification continues apace. Nuance, even-handedness, and any consideration of the other side of the story seldom come in to the equation. I therefore try to be circumspect and not to assume the worst of a public official or politician in the absence of clear evidence that he or she is a scoundrel.

Over the past week, as the hysteria around the appointment of Hlaudi Motsoeneng reached a crescendo, I wondered whether Mr Motsoeneng may not have been unfairly targeted in this way because of his (authoritarian-sounding) support for the licencing of all journalists. Maybe it is not such a big deal that Mr Motsoeneng does not have formal qualifications – as long as he does his job diligently and with the necessary integrity?

I therefore went back to the report published by the public protector earlier this year on the shenanigans at the SABC to determine whether Mr Motsoeneng was not being unfairly painted as a dishonest, bumbling, scoundrel. Sadly, in this instance, the report of the public protector suggests, if anything, that journalists have been too kind to Mr Motsoeneng.

The public protector found that when Mr Motsoeneng first applied for a job at the SABC he completed an application form in which he indicated that he had passed Standard 10 (“matric”) in 1991 at the age of 23. However, he only provided symbols for 5 subjects (in which he indicated he had attained 4 E and one F symbols).

During an interview with the public protector, Mr Motsoeneng admitted falsifying his matric qualification and blamed others, whom he said told him to make up his matric symbols from the top of his head, which he did. With regard to the matric certificate, the form says “outstanding”, giving the impression that the certificate exists and would be submitted in due cause.

The report quotes Mr Motsoeneng as telling the public protector:

From me … for now because I do understand all the issues, I was not supposed, to be honest. If I was … now I was clear in my mind, like now I know what is wrong, what is right, I was not supposed to even to put it, but there they said, “No, put it”, but what is important for me Public Protector, is everybody knew and even when I put there I said to the lady, “I’m not sure about my symbols” and why I was not sure Public Protector, is because I go, a sub, you know I remember okay in English I think it was “E”, because it was you know after … it was 1995.

The report quotes from several letters sent by the SABC HR Department in which Mr Motsoeneng is requested to provide a copy of his outstanding matric certificate. It also quotes an undated response from Mr Motsoeneng, in which he indicates that he was still not in possession of the said certificate. He undertook to provide it as soon as he received it.

Now, in law, you commit fraud – a criminal offence – when you unlawfully make a misrepresentation with the intention to defraud which causes actual prejudice or which is potentially prejudicial to another.

It would not be a defence to claim that another person had told you to commit fraud, just as it would not be a defence to murder to claim somebody else told you to kill a person. Neither is it a defence to fraud to say that your fraudulent representation was known to be fraudulent by many people.

Where you persist in your misrepresentation (as Mr Motsoeneng did when he promised to provide the “outstanding” matric certificate) it will be easier for the state to prove that you had the intention to defraud.

In law, the actual or potential prejudice need not be financial but can also be to reputation or dignity. More importantly it exists where some aspect of public administration is materially inconvenienced.

The fraudulent nature of the misrepresentation was confirmed by a 2003 SABC Group Internal Audit, which confirmed that Mr Motsoeneng had misrepresented himself by stating that he passed matric in 1991. The Group Internal Audit also established that when Mr Motsoeneng applied for an Executive Producer’s post at Lesedi FM in 2003, the requirements for the post was a Degree or Diploma in Journalism with eight years’ experience in the production of Radio Current affairs programme.

Given this overwhelming evidence and given the admission of wrongdoing by Mr Motsoeneng himself the public protector concluded:

The allegation that Mr Motsoeneng committed fraud by stating in his application form that he had completed matric from Metsimantsho High School is substantiated. By his own admission during his interview, Mr Motsoeneng stated in his application form that he had passed standard 10 (matric), filled in made-up symbols in the same application form and promised to supply a matric certificate to confirm his qualifications. He did so knowing that he had not completed matric and did not have the promised certificate. His blame of Mrs Swanepoel and the SABC management that stating that they knew he had not passed matric, is disconcerting. If anything, this defence exacerbates his situation as it shows lack of remorse and ethical conduct.

What seem particularly disconcerting is that Mr Motsoeneng persisted in his dishonest behaviour, first lying to the public protector by denying he misrepresented his matric results but then, after being confronted with the employment application, admitting to the fraudulent misrepresentation.

Three perplexing questions arise form this sorry saga.

The first is why Mr Motsoeneng had not been prosecuted for fraud. Why had the relevant authorities at the SABC not requested the police to investigate the alleged fraud perpetrated against the SABC by Mr Motsoeneng?

The second question that arises is why so many people – including the previous and current chair of the SABC Board – have been eager to support the employment of a confidence trickster like Mr Motsoeneng in one of the most important positions at the corporation?

The previous Chair told the public protector in writing that “the SABC perused Mr Motsoeneng’s file and could find no evidence that he misrepresented his qualifications.”. This could not have been true as Mr Motsoeneng left the SABC under a cloud in 2003 after its own Group Internal Audit investigation found that he had misrepresented his qualifications.

Now, as Prof Burchell states in his textbook on Criminal Law: “Fraud is the crime of the liar, the cheat, the confidence trickster”. Why have so many people – some of them of high standing – been prepared to support and protect a “liar”, a “cheat”, a “confidence trickster”? Was there political pressure on them to do so, or did they do so because of their own lack of a moral compass?

The third question that arises is why the newly appointed Minister for Propaganda, Faith Muthambi, would ignore the recommendations by the public protector that the SABC should take disciplinary steps against Mr Motsoeneng for his dishonesty, abuse of power and improper conduct. This failure is almost certainly irrational and I would be extremely surprised if a court does not set aside the decision to confirm Mr Motsoeneng’s appointment.

The failure is also in conflict with the stated policies of the governing party to be serious about rooting out maladministration and corruption. The office of the public protector was created to assist public officials – including ministers – to adhere to the law and to act in a manner that would enhance trust in public bodies like the SABC. Yet, in the case of Mr Motsoeneng the Minister ignored the findings of the public protector and acted in a way that further eroded public trust in the SABC. It cannot be in the interest of the governing party to destroy the credibility of the SABC as it would then be far less likely to be believed by ordinary voters.

The Presidency issued a carefully worded statement claiming that President Jacob Zuma “has no role to play in the appointment of SABC management or staff and did not play any role in the said appointment”. This non-denial denial did not state that the President had not communicated his wishes about the desired appointment to Minister Muthambi or had not “requested” her to ensure the appointment of Mr. Motsoeneng as COO.

Whether the appointment was done to comply with the wishes of President Zuma is not clear. In any event, the statement by the Presidency does not deny it.

What is very clear is that the bizarre statement by Minister Muthambi that an independent law firm’s legal opinion to the board “cleared Mr. Motsoeneng of wrongdoing” and thus renders the appointment rational is a legal nonsense.

In fact, the claim by the Minister that the opinion of a private lawyer can trump the official findings of a constitutional body like the public protector may arguably open the Minister to criminal prosecution for contempt of the public protector in contravention of section 9 of the Public Protector Act.

Why would a new Minister risk her career to endorse a clearly illegal decision that opens her up to criminal prosecution? Could it be that she was merely complying with the request/instructions of the person who appointed her as Minister? Only the minister and the president would be able to enlighten us.

Censoring Malema seems to have no basis in law

Last week Economic Freedom Fighters (EFF) leader Julius Malema was ordered to withdraw an “unparliamentary” remark made in the National Assembly (NA) and was then ordered to leave the NA when he refused to withdraw a remark accusing the ANC of murdering mineworkers in Marikana. It is unclear whether the ruling by the presiding officer to censor Malema was legally valid. Here is why.

At a joint sitting of the NA and the National Council of Provinces (NCOP), Thandi Modise ruled that the remarks about the Marikana massacre made by Julius Malema were “unparliamentary and do not accord with the decorum of this house.”

But the rules of Parliament do not prohibit MPs from making “unparliamentary” statements. Nor do the rules prohibit an MP from making statements that detract from the decorum of the house.

It is in any case unclear what would constitute “unparliamentary” statements and whether arbitrary rulings by a presiding officer (relying on a vague and easy to abuse concept such as “unparliamentary” speech) could legally limit the right of MPs to freedom of speech as guaranteed in the Constitution.

Section 58 and 71 of the Constitution now explicitly guarantee the freedom of speech of all Members of Parliament subject only to “its rules and orders”. The sections further state that members of the NA and the NCOP are not liable for any defamatory statements made before the NA or NCOP or any of its committees.

The question in this case – as in previous cases where presiding officers censored the speech of MPs – is whether there are valid “rules or orders” that limit the right of MPs to make statements that are critical of the governing party or of members of the government. I contend that there are none.

There are no written Parliamentary rules that prohibit MPs – either in the NA or NCOP or at a joint sitting – from making critical statements about a political party or its members, even when these statements are controversial, incendiary or arguably untrue. Neither are there any written Parliamentary rules that prohibit the making of “unparliamentary” statements. Neither are there any written rules of Parliament that regulate alleged breaches of Parliamentary privilege by MP’s.

In the absence of such written rules, presiding officers have no legal authority to discipline MPs for statements made in the house because such actions of the presiding officer would infringe on the rights to free speech of MPs as guaranteed by sections 58 and 71 of the Constitution.

Rule 14P of the Joint Rules of Parliament (mirrored by rule 63 of the NA) does prohibit the use of “offensive or unbecoming language” in Parliament. However, this section does not prohibit the content of speech but only the manner in which the speech is delivered. It covers situations like swearing, calling an MP a thief or a crook (instead of saying the member has an adventurous relationship with honesty or the truth truth) or using racist, sexist or homophobic language.

The rules of the NA also allow the Powers and Privileges Committee of Parliament to discipline an MP relating to contempt of Parliament or misconduct by a Member. However, contempt of Parliament is not defined in either the rules of Parliament or in the relevant legislation, while “misconduct” is defined as a breach of the standing rules of Parliament by a member.

But, as I have already noted, the standing rules of Parliament do not prohibit MPs from criticising the government or even from making incendiary or arguably factually dubious claims about the government or any political party in Parliament. In the absence of such rules it is unclear what legal authority a presiding officer will rely on to justify the kind of ruling made against Julius Malema last week.

Section 13 of the Powers, Privileges and Immunities of Parliament and Provincial Legislature Act does regulate speech in Parliament by prohibiting speech that constitutes contempt of Parliament.

However, the section states that an MP is guilty of contempt of Parliament if he or she contravenes various sections of that Act relating, amongst others, to bribing a Member of Parliament and the like. The section also prohibits an MP from assaulting another MP in Parliament.

Section 13 furthermore states that an MP is guilty of contempt if he or she commits an act which, in terms of the standing rules of Parliament, constitutes contempt of Parliament or a breach or abuse of Parliamentary privilege. Section 13 does not prohibit an MP from making critical, incendiary or even false statements about a political party or the government.

The rules of Parliament only limit speech in formal ways, for example, by prohibiting an MP from reflecting on the merits of a pending court judgment or upon the competence or honour of a judge.

Despite this absence of formal written rules that regulate “unparliamentary speech” in Parliament or limit speech considered to be contemptuous of Parliament, subsequent Speakers have curiously relied on customs of the colonial Westminster Parliament to justify imposing limits on the constitutionally guaranteed freedom of speech of MPs. How foreign custom can justify limiting the rights protected in the South African Constitution remains unclear to me.

Subsequent Speakers have thus assumed that something like a “common law of Parliament” (inherited from Britain) still exists in South Africa and that section 58 and 71 of the Constitution (read with the Powers, Privileges and Immunities of Parliament and Provincial Legislature Act) have not extinguished this colonial common law relating to the rights and privileges of MPs.

Invoking what appears to be a non-existent common law of Parliament subsequent Speakers have often ruled that statements made by MPs are “unparliamentary” (once again, I stress this phrase is not found in the rules of Parliament) if they “impute improper motives” to MPs or “cast personal reflection on their integrity as members” of Parliament or “verbally abuse them in any other way”.

Given the judgment of the Supreme Court of Appeal in Speaker of the National Assembly v De Lille I am not sure these rulings have ever had any legal validity. In that judgment Chief Justice Ismail Mahomed (writing for a full bench) affirmed that the Constitution – not Parliament – is supreme and is “the ultimate source of all lawful authority in the country”.

Referring to section 57 of the Constitution the court held that Parliament is authorised to make rules to:

maintain internal order and discipline in its proceedings by means which it considers appropriate for this purpose. This would, for example, include the power to exclude from the Assembly for temporary periods any member who is disrupting or obstructing its proceedings or impairing unreasonably its ability to conduct its business in an orderly or regular manner acceptable in a democratic society.

In discussing section 58 of the Constitution, the court rejected the argument advanced on behalf of the then Speaker that members of the NA would only enjoy the privileges enjoyed by the House of Commons of the Parliament of the United Kingdom. As Justice Mahomed pointed out:

The threat that a member of the Assembly may be suspended for something said in the assembly inhibits freedom of expression in the Assembly and must therefore adversely impact on that guarantee… What section 58(2) does is to authorise national legislation which will itself clearly and specifically articulate the ‘privileges and the immunities’ of the National Assembly which have the effect of impacting on the specific guarantee of free speech for members in the Assembly. It does not contemplate a tortuous process of discovery of some obscure rule in English Parliamentary law and custom justifying the suspension of a member of Parliament…

Given the fact that the national legislation referred to by Chief Justice Mahomed – in the form of the Powers, Privileges and Immunities of Parliament and Provincial Legislature Act – does not in any way regulate or prohibit “unparliamentary” statements made by an MP, it does not seem legally valid for a presiding officer to order an MP to withdraw “unparliamentary speech”.

It is extremely important that rules limiting the free speech of MPs in Parliament are clearly defined and set out in legislation, because in the absence of such clear rules about when speech of MPs overstep the boundaries of protected speech, the presiding officer (who is also a member of the governing party) will be tempted to censor MPs to protect the governing party or its members and to stifle free speech in our legislatures.

It is a fundamental tenet of the Rule of Law in a constitutional democracy that there should be no arbitrary limitations placed on the exercise of constitutionally protected rights. Where a discretion is given to a presiding officer of Parliament to limit the rights of MPs, the rules of Parliament or applicable legislation should spell out in detail how this discretion should be exercised.

As this is not done in either the rules or the relevant legislation and as the presiding officers seem to rely on colonial common law probably extinguished by the provisions of the 1996 Constitution, I would think that most of the rulings of presiding officers in our Parliament ordering MPs to withdraw statements may have been illegal.

Unless the censored speech clearly falls under the category of “offensive or unbecoming language” – which statements like those made by Julius Malema clearly do not – it seems to me presiding officers abuse their power when they order MPs to withdraw statements that they find offensive or problematic.

This does not mean that the rules of Parliament or the relevant legislation may not be amended to further allow for the clear regulation of speech in Parliament. But absent such amendments it seems to me that presiding officers are abusing their power by unconstitutionally limiting the free speech of MPs without the legal authority to do so.

Pistorius and the controversial Twitter ruling: questionable at best

The ruling by Judge Thokozile Masipa on Monday that evidence given by Professor Gert Saayman, the pathologist testifying in Oscar Pistorius’s murder trial, could not be broadcast live on radio or TV and that journalists were prohibited from live tweeting the testimony was both unwise and legally problematic. Here is why.

In his groundbreaking (and in, certain circles, controversial) decision to grant permission to media houses to broadcast the Oscar Pistorius murder trial live on radio and television, judge Dunstan Mlambo made a curious but telling observation.

In a country like ours, Judge Mlambo observed, perceptions continue to persist in the large sections of South African society, “particularly [among] those who are poor and who have found it difficult to access the justice system”, that the justice system treats the “rich and famous with kid gloves whilst being harsh on the poor and vulnerable”.

Judge Mlambo cautiously avoided the fact that the perception also persists among a large section of society that black criminal defendants and black victims of crime are often treated with less care and concern by the criminal justice system than white criminal defendants and white victims of crime. He also avoided mentioning the fact that many South Africans have the perception that politically well-connected criminal suspects receive preferential treatment.

Nevertheless, few observers would dispute the observation by judge Mlambo that many people in South Africa do harbour the perception that all criminal defendants and all victims of crime are (for various reasons) not always treated equally. Judge Mlambo’s remark in this regard was therefore uncontroversial.

However, he proceeded to make the following observation:

Enabling a larger South African society to follow first-hand the criminal proceedings which involve a celebrity, so to speak, will go a long way into dispelling these negative and unfounded perceptions about the justice system, and will inform and educate society regarding the conduct of criminal proceedings.

It may well be true that the broadcasting of the trial will do much to inform and educate South Africans about the conduct of criminal proceedings.

More people may now understand that the state has to prove its case beyond reasonable doubt and that an accused does not have to prove his or her innocence. The important role that cross-examination can play in our adversarial system in order to test the veracity of evidence and the credibility of witnesses, has also become apparent.

But it is far from certain that the broadcasting of the trial will dispel perceptions about possible inequalities in our criminal justice system.

Most criminal defendants are tried in magistrates’ courts or in high courts far away from the media spotlight and trials are often delayed or postponed, sometimes for many years. Justice is often delayed and sometimes completely denied.

In an adversarial system criminal defendants who can afford to hire excellent lawyers may also well have an advantage over undefended or badly defended accused persons. In the absence of a skilled lawyer to cross-examine state witnesses it is less likely that any inconsistencies in testimony will be exposed and that the credibility of witnesses will be properly tested.

The Oscar Pistorius trial is therefore not a typical criminal case. This is so not only because of the intense media attention on the trial, but also because of the fact that both the state prosecution team and the lawyers for the defence are some of the best our system has to offer. In this regard, the trial is something of a showcase for the criminal justice system in South Africa. (However, the less said about the quality of court interpreters, the better.)

Given this larger context, it is not only imperative that the trial be conducted in a scrupulously fair manner. It is also vital that no decisions should be taken by the trial judge that could create the perception among sections of the South African population that the accused or the relatives of the deceased are given special treatment.

The principle of open justice requires that a trial be conducted in public – except in exceptional circumstances, where the interest of a vulnerable victim or witness needs to be protected. Members of the media are usually allowed to report fairly and accurately on a trial and since the inception of Twitter – bar one or two exceptions – journalists have also been allowed to live tweet the evidence of all witnesses who testify in a trial.

The initial ruling by Judge Masipa to ban live tweeting of the evidence of the pathologist, apparently to protect the sensibilities of the family of the deceased due to the potential graphic nature of the evidence, was therefore at best ill-advised.

The ruling immediately raised the question in the minds of many South Africans about whether the case was being handled differently because the accused was a famous and rich white man or because the deceased was a blonde middle class woman.

Lay-observers and some lawyers immediately drew comparisons with the trial of the man convicted of raping and murdering Anene Booysen. In that case, journalists were allowed to live tweet extremely graphic testimony about Booysen’s injuries. Booysens was poor and black and, of course, not famous. The possible sensibilities of Anene Booysen’s family were never raised and therefore never considered.

It matters not whether such comparisons are unfair or whether – unlike in the Booysen case – the pathologist requested his evidence not to be reported in this manner. What matters is the perception created by the seemingly different treatment of the two cases (and many others besides) where there are such stark differences in the social status of the victims (based on the class and/or the race of the victims).

After all, justice must not only be done, but must also be seen to be done.

Judge Masipa wisely reversed the decision to prohibit live tweeting of the pathologist’s evidence in the Oscar Pistorius trial this morning, restoring the default position that currently applies in criminal trial across South Africa. This decision will go some way to address perceptions – whether correct or not – that our courts do not always value the bodies of poor black people and those of rich white people equally.

However, the further decision not to allow audio or audio-visual broadcasting of Professor Saayman’s testimony due to the possible graphic nature of the evidence (a decision which was not reversed this morning), raises further questions.

The judgment by Judge Mlambo made a distinction between broadcasts of audio recordings of the trial and broadcasts of audio-visual recordings of the trial.

Judge Mlambo ruled that MultiChoice and Primedia were permitted to broadcast the audio recording of the entire trial in live transmissions, delayed broadcasts and/or extracts of the proceedings.

The order therefore allows for the audio broadcast of the testimony by all witnesses – including those of expert witnesses for the state as well as that of the accused – regardless of whether the witnesses want audio recording of their testimony to be broadcast or not.

It also permitted the media houses to broadcast the audio-visual recording (that is, TV pictures) of portions of the trial under certain conditions. This includes permission to broadcast the audio-visual recordings of the evidence of all experts called to give evidence for the state, as well as the evidence of any police officer or former police officer in relation to the crime scene. The order does not provide for expert witnesses of the state or police officers to decline to have either audio recordings or audio-visual recordings broadcast.

However, the order does allow other witnesses for the state to decline to consent to have audio-visual recordings of their testimony broadcast. It also allows witnesses whose testimony is to be broadcast audio-visually to request that certain reasonable restrictions are imposed on such broadcasts.

The order does provide for an exception to this general rule that not only audio recordings but also audio-visual recordings of all evidence by expert witnesses of the state and all police officers could be broadcast. This exception is couched in the following terms:

“Notwithstanding the above, the presiding judge shall retain a discretion to direct that, in the event that it becomes apparent that the presence of the cameras or the recording and/or transmitting and/or broadcasting is impeding a particular witness’s right to privacy, dignity and/or the accused’s right to a fair trial, MultiChoice and Primedia and the print Media 24 applicants will be directed to cease recording and/or transmitting and/or broadcasting and/or photographing of the testimony.”

In the instance of the testimony of Prof Saayman, there was no indication that allowing either audio recordings or audio-visual recordings of the testimony of would have impeded his dignity or privacy or would have impacted on the fairness of the trial. It is therefore unclear on what legal basis the decision was made not to allow audio recordings and audio-visual recordings of this testimony to be broadcast.

As Judge Mlambo indicated in his judgment, the decision to allow audio recordings of the entire trial to be broadcast and to allow audio-visual recordings of certain parts of the trial to be broadcast is something of an experiment.

Some trial lawyers and procedural law academics I have spoken to expressed some concern that the ruling could impact on the fairness of the trial. This is so, they argue, because future witnesses may listen to or watch the testimony and cross-examination of other witnesses and may be tempted to adjust their testimony accordingly.

Whether this concern is valid in the age in which detailed reporting on the evidence and cross-examination of witnesses are reported on Twitter, is far from clear.

But this is not the point here. The point is that the original order ruled that the trial judge would retain a discretion to prohibit either audio recordings or audio-visual recordings of the testimony of a witness only in cases where the privacy or dignity of the witnesses had to be protected or where the fairness of the trial would be affected.

As none of these concerns clearly applied to the testimony of Prof Saayman, and given that the testimony of many other witnesses are being broadcast live, the decision by the trial judge not to allow either audio or audio-visual recordings of this expert witness of the state to be broadcast is questionable at best.

It may be that in future, courts will rule that the open justice experiment launched in the Oscar Pistorius trial poses too many risks. But as the experiment is in full swing, the trial judge must ensure that the rules (as laid down by Mlambo J) are scrupulously and even-handedly applied to ensure that the trial indeed helps to dispel some (if not all) of the concerns many South Africans have over the fairness of the criminal justice system.

All hail independent thought

Last week Beeld newspaper printed shocking pictures of students at the Potchefstroom campus of Northwest University giving the Nazi “Sieg Heil” salute. It transpired that for many years first year students at this University had been forced by senior students to give this salute as part of a deeply embedded culture of “initiation” at university residences aimed at cultivating “group spirit”. This practice of “initiation” – which forces vulnerable first year students to indulge in acts that border on hate speech – is, of course, incompatible with the true purpose of an institution of higher learning.

Ideally a University is a place where young people will be relatively free to explore new ideas, to question widely accepted beliefs or cultural practices, to experiment, to reconsider received dogma, to make mistakes and to question the wisdom of their elders and those in authority.

Students who attend such an institution are extraordinarily privileged as they are often given the space and the ability to acquire the tools to begin to decide for themselves who they are, what ideological course they want to chart, and according to which norms and values they wish to live their lives.

In such an institution students are free to pursue different forms of knowledge – both inside and outside the classroom. In dorm rooms, in cafeterias, in bars, in political meetings and even in the library, students making the best of the opportunity will pursue new and exciting forms of academic knowledge and ideas as well as knowledge and ideas about themselves and the larger world in which they live.

A good University is also one where the opportunities exist for students to learn more from fellow students who are different from them (because of their race, their sexual orientation, their language or their class) and about the wider world in which they live.

At a mediocre University, on the other hand, these opportunities will not exist or will be curtailed by a semi-authoritarian or group-based culture which may punish or discourage individuality, otherness and creativity.

In such a University the management and student leaders will be scared of free thought and will try to stifle free speech and debate. Older students will try to impose their authority and the culture of loyalty to the “group” on new students through initiation practices and through other forms of social control.

In such a mediocre institution conformity and loyalty to the group will be prized above all else and respect for (certain forms of) authority will be inculcated through fear, group pressure and by playing on students’ eagerness to belong and not to be “Othered”.

That is why, in my opinion, allowing any form of “initiation” of first year students at a University is a sure sign that the institution has embraced educational mediocrity (in the broadest sense) in the name of loyalty to the group and in the name of tradition. “Initiation” is the handmaiden of group conformity and “groupthink” and the enemy of real and critical thought, reflection and deep learning.

Matters are made worse when, as part of the process of enforcing conformity through initiation, first year students – under the guise of “tradition” and of “having fun” – are required to give the Nazi “Sieg Heil” salute to those who are conducting the initiation, as happened at the Potchefstroom campus of North West University as recently as this year.

Defenders of this practice have made the extraordinary claim that students at North West University are not aware that the “Sieg Heil” salute is associated with Adolf Hitler and the Nazis, who killed six million Jews, homosexuals and Gypsies during the Holocaust. Forcing first year students to execute the “Sieg Heil” salute, they claim, was therefore “just” an innocent joke.

It would, of course, be quite a shocking indictment of the quality of Potchefstroom students if they were really ignorant about the fact that the “Sieg Heil” salute is now practically exclusively associated across the world with the most notorious and widely known oppressive regime of the 20th Century.

Given the fact that depictions of Nazism (including the “salute”) permeate popular culture – including in innumerable movies, TV series and books – one would have to be extraordinarily ignorant and cut off from mainstream culture to be unaware that the “Sieg Heil” salute has acquired world-wide notoriety because of its association with Adolf Hitler and the Nazi party’s crimes against humanity.

Making the salute is prohibited in many countries across Europe on the basis that it symbolises the evils of Nazi Germany and because it may be used to re-awaken the bigotry and prejudices which lead the mass killing of millions of people because of their religious or social origin or sexual orientation.

I suspect that in South Africa, some contexts, the giving of the “Sieg Heil” salute would also amount to hate speech in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).

Section 10 of the Act states that no person may publish, propagate, advocate or communicate words based on grounds such as ethnic or social origin, religion or culture against any person that could reasonably be construed to demonstrate a clear intention to be hurtful.

Because words can also be communicated through gestures and because making the “Sieg Heil” salute in a manner that seems to endorse or celebrate – not critique – Nazi gestures is hurtful to many of us who know that we too would have been targeted for extermination by the Nazi’s if we had lived in Europe during the Second World War, giving the salute may very well, in certain context, constitute hate speech against people of Jewish origin or against gay men and lesbians.

I might be wrong, but I suspect the Potchefstroom students of 2014 may not actually have intended the salute to be hurtful to Jews or gay men or lesbians. While any reasonable person would view the giving of the Nazi salute as shocking and upsetting, wether a reasonable person would construe the enforcement of the salute at Potchefstroom initiation ceremonies as intending to hurt Jews or gay men and lesbians is, in my opinion, not clear. In other contexts the giving of the salute will, however, almost certainly amount to hate speech as defined by PEPUDA.

I would guess that the “tradition” of forcing first year students to make the “Sieg Heil” salute may have more to do with a nostalgic yearning for the “good old days” of Afrikaner Nationalism and Apartheid. After all, during and after the second World War Afrikaner Nationalists – especially those who were members of the Ossewa Brandwag – displayed strong sympathy for the Nazi’s.

But the meaning and effect of this practice may be more complex.

Given its origin and predominant symbolism, some students may also be attracted to enforcing the giving of the “Sieg Heil” salute because it is associated with authoritarianism more generally. The well-known film footage of hundreds of thousands of Germans giving the “Sieg Heil” salute to pledge allegiance to Hitler and the Nazi party (re-enacted in many movies) reminds us of the role the salute played in pledging and affirming (in a theatrical manner) the German nations loyalty to the Nazi party.

As such, re-enacting the Nazi salute may also be a way of inculcating into first year students the belief that they need to belong to the larger group and must display uncritical loyalty to that group – just as Germans were expected to display uncritical loyalty to the Nazis.

I would argue the salute aims to inculcate into students exactly those values that cannot be squared with the well-functioning University. Where it is practiced and defended it reaffirms that the dominant student culture aims to promote  group-think and to discourage critical thinking and reflection. Such a culture makes it more difficult to be different, to think different thoughts, to live a different life from that imposed by the group culture.

This imposition of conformity is not to be squared with encouraging independent thought at an academic institution. After all, education – at its very best – is dangerous: it makes people question authority and conventional wisdom and allows them to start thinking for themselves, unfettered by the shackles of group pressure.

Pistorius on TV: The public’s interest vs. the public interest

On Wednesday, various media groups approached the court for permission to broadcast aspects of the murder trial of Oscar Pistorius live on television and radio. The application raises important constitutional questions about the manner in which the court should deal with the intense public interest (not necessarily to be conflated with the public interest) in the Pistorius case while jealously guarding the right of the accused to receive a fair trial.

When Oscar Pistorius goes on trial on 3 March in the North Gauteng High Court for the killing of his girlfriend, Reeva Steenkamp, an army of journalists from across the world will pack into the courtroom, crouched over their laptops, smart phones and tablets, ready to “live tweet” every detail of the trial to the inquisitive public.

Only a few family members of the accused and the deceased and the journalists seated in the public gallery will be able to witness proceedings in the trial.

BT (Before Twitter), the general public would not have had immediate access to every word and gesture of the prosecutors, the accused and the various witnesses called to testify in the trial. The public would have had to rely on second hand reports provided by journalists during breaks in the proceedings.

Twitter has changed all this.

Following proceedings in a criminal trial on Twitter can have an immediacy and can provide nuance and detail about the testimony and cross-examination of witnesses that can make or break the reputation of witnesses.

As the bail hearing of Oscar Pistorius demonstrated, in the age of Twitter it is very difficult to protect the privacy or the dignity of a witness in a criminal trial. Journalists “live tweeted” the testimony of former detective Hilton Botha, leading to widespread ridicule on social media.

However, this does not mean that the court should allow the broadcasting of proceedings in a criminal trial if this would negate the fair trial rights of the accused. Nevertheless, because there are no jury trials in South Africa and because our courts assume that the judge and assessors will not easily be swayed by media reports on a trial, the dangers posed to fair trial rights by the broadcasting of a trial is probably often overstated.

Those who oppose the broadcasting of criminal trials on radio and television argue that the presence of radio and TV in court could be too invasive, could intimidate or overwhelm witnesses, could infringe on the accused’s right to privacy, could inhibit interactions between counsel and the bench, and could turn the trial into a media circus in which prosecutors, defence lawyers and even the judge “act” for the cameras to the detriment of the accused and his or her right to a fair trial.

To counter this, lawyers for the media groups asking to broadcast the Pistorius trial are arguing that modern technology would enable the operation of TV cameras via remote control, making them relatively unobtrusive. They have also agreed that “unconsenting witnesses” would not be filmed, thus protecting such witnesses against an invasion of their privacy.

Despite these arguments it is not clear that the court will grant permission to the media groups to broadcast aspects of the trial live on radio and television.

In deciding whether to grant permission for the broadcasting of most aspects of the Pistorius trial, the court will have to rely on the general principles set out by the Constitutional Court in South African Broadcasting Corporation Ltd v National Director of Public Prosecutions and Others.

This case dealt with an application by the SABC to broadcast the proceedings before the Supreme Court of Appeal in the appeal of Schabir Shaik against his conviction for fraud and corruption.

The majority of the Constitutional Court explained that when considering whether to broadcast court proceedings, the overriding interest to consider was not that of the broadcasters but that of the public and of the accused.

A strong constitutional consideration to take into account when deciding on whether to grant permission to broadcast court proceedings was the right of South Africans to know and understand the manner in which one of the three arms of government – the judiciary – functioned.

The judicial function should not, said the court, be “shrouded in mystique and protected at all times from the prying eye of the camera or the invasive ear of the microphone”.

The right of the people to be informed of judicial processes presupposes that courts are open and accessible. The fact that courts do their work in the public eye is a key mechanism for ensuring their accountability.

The Constitutional Court pointed out in the Shaik case that section 35(3)(c) of the Constitution includes as one of the aspects of the right to a fair trial, the right to “a public trial before an ordinary court”.

Several advantages could thus be associated with the broadcasting of court proceedings. Open courtrooms are likely to limit high-handed behaviour by judicial officers and to prevent railroaded justice.

Open justice could therefore be said to be an important part of that right to a fair trial and thus served as a great bulwark against abuse.

Courts should in principle welcome public exposure of their work in the court room, subject of course to their obligation to ensure that proceedings are fair. The foundational constitutional values of accountability, responsiveness and openness apply to the functioning of the judiciary as much as to other branches of government. These values underpin both the right to a fair trial and the right to a public hearing (ie the principle of open court rooms). The public is entitled to know exactly how the judiciary works and to be reassured that it always functions within the terms of the law and according to time-honoured standards of independence, integrity, impartiality and fairness.

In the subsequent case of Independent Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of Expression Institute as Amicus Curiae) In re: Masetlha v President of the Republic of South Africa and Another, the Constitutional Court affirmed the constitutional imperative of dispensing justice in the open.

This systemic requirement of openness in our society flows from the very founding values of our Constitution, which enjoin our society to establish democratic government under the sway of constitutional supremacy and the rule of law in order, amongst other things, to ensure transparency, accountability and responsiveness in the way courts and all organs of state function. From the right to open justice flows the media’s right to gain access to, observe and report on, the administration of justice and the right to have access to papers and written arguments which are an integral part of court proceedings subject to such limitations as may be warranted on a case-by-case basis in order to ensure a fair trial.

However, because the Shaik case dealt with an appeal – and not a criminal trial as such – the ringing endorsement of open justice to be found in the Shaik judgment is not directly applicable to the Pistorius case. Neither is the Independent Newspapers case, which dealt with the question of whether certain court documents could be kept secret, directly applicable to the question raised by the Pistorius application.

In fact, the Constitutional Court in the Shaik case suggested that it would be inappropriate to permit radio or television broadcasting of a criminal trial proper, remarking that:

no one suggested that the electronic media should be permitted to broadcast criminal trial proceedings when evidence is led and witnesses are cross-examined. Ordinarily, it will not be in the interests of justice for trial proceedings to be subjected to live broadcasts.

The court reasoned that the right to privacy of each individual witness was of overriding importance. Where this right was infringed, it could lead to an unfair trial and could conflict with “the public interest in a democratic criminal justice system” which brings wrongdoers to book while ensuring that justice is done to them. This was so because there was a real danger that witnesses would be prejudiced, intimidated, inhibited or prevented from communicating sensibly by the thought of having to appear on television.

Nevertheless, the court also quoted with approval a passage from a lower court judgment indicating that where both the State and the defence witnesses consented to the televising of their evidence, this would not necessarily render the trial unfair.

The Shaik judgment was handed down BT (Before Twitter) in 2006. Although there are indeed dangers inherent in the broadcasting of a criminal trial – amply demonstrated by the media circus that developed during the OJ Simpson trial – I would argue that these dangers could easily be managed by a competent judge who is in control of his or her courtroom and is able to manage the media by issuing the appropriate guidance or instructions.

The fact is that even if permission is not granted to broadcast the Pistorius case on radio and television, witnesses are going to be exposed to the immediate reporting allowed by Twitter. As long as the media use Twitter in a manner that does not undermine the right to a fair trial and as long as the presiding judge ensures that the media is kept in check, this will not affect the fairness of the trial.

If you take into account that new technology – including Twitter – has made it almost impossible to shield witnesses entirely from public scrutiny and publicity, and that there is no empirical evidence to suggest that a properly run trial broadcast on radio and television would in fact threaten the fairness of a trial, I cannot see why prelimiary permission should not be granted to broadcast certain aspects of the trial.

But given the mixed signals sent by the Constitutional Court jurisprudence on the matter (discussed above), it is far from clear that such permission would indeed be granted by the court to broadcast aspects of the trial – including the testimony of witnesses who had agreed to it.