Constitutional Hill

Freedom of expression

Those intolerant of bigotry do not invite bigots to speak

One of the favourite mantras of some free speech fundamentalists is that “the cure for bad speech is more speech”. But sometimes it is counter-productive, even wicked, to continue debating an issue when such a debate serves to promote and legitimise beliefs and practices that lead to the assault, rape and murder of marginalised and vulnerable people. Sometimes the only cure for bad speech is to isolate and delegitimise those who engage in such speech or who give it a platform.

When I was invited by the African Arts Institute to take part in a panel discussion on “Same sex love in Africa”, I reluctantly agreed. I find it somewhat tedious and politically problematic to be asked to talk about the African continent and its people as if it is a monolithic space inhabited by people who are identical in every way.

The manner in which “Africa” (as a colonial construct) is deployed in the Western imagination to erase the beauty, vibrancy, individuality, vitality, agency and multiplicity of vastly different individuals living in different parts of our continent is galling and arrogant.

(This habit of thinking and speaking of “Africa” as a gigantic, blank space inhabited by smiling people patiently waiting under acacia trees for Madonna or Brangelina to adopt their children while lions roar prettily in the distance is perfectly captured by the mocking title of the magnificent website called “Africa is a Country”.)

I nevertheless agreed to take part in the discussion at the Artscape Theatre in Cape Town because I believe it is important to engage critically with how we think about same sex love and how we deal with hateful but deeply entrenched beliefs and dogmas about the sexuality of the previously colonised and the marginalised and oppressed in society.

I do not, in principle, have a problem to talk about the harms caused by religious dogma and how we can begin to address the corrosive effects of this dogma on people living in different societies, cultures, and in different towns, cities and countries.

A good place to start is to recognise that the colonial conquest of the African continent facilitated the spread of Christianity and Islam throughout the continent.

If you are thus the kind of person who likes to show your disproval of certain beliefs or practices that you do not know or that you fear by claiming that they are “un-African” you might well need to start by conceding that Christianity and Islam are “un-African”.

The colonisers (animated by racist fears) invoked beliefs and dogmas borrowed from these religions to stigmatise as dangerous and degenerate sexuality and desire that did not conform to problematic, idealised, Western, norms in order to justify the policing of sex and desire through the enforcement of Western style criminal law and through the enforcement of religious dogma.

Reactions to Brett Murray’s The Spear painting reminded us again of this shameful history and the problematic ways in which colonial conquest stigmatised sexuality and desire (and pathologised black bodies more generally) in many parts of our continent.

In the original email I received from the African Arts Institute I was told the discussion was aimed at gaining “a deeper understanding of perspectives on same sex love in relation to culture, tradition, identity politics and human rights”.

I assumed the discussion would occur in a relatively safe space in which my basic humanity, my right to exist and flourish as a human being and my right not to be killed would not be treated as subjects open to legitimate discussion and debate.

On Monday afternoon I received a call from one of the organisers and for the first time was alerted to the fact that I would share the podium not only with an artist and with a fellow academic but also with an Imam. The organiser told me that they foresaw sharp conflict as the Imam would argue that same sex love was un-African and against Islam.

Although irritated by what I perceived to be a dishonest ambush, I nevertheless agreed to continue with my participation out of politeness and out of respect for those who would go to the trouble of attending the event. I assumed that Mike van Graan, who chaired the panel, would not allow the event to degenerate and would create and defend a safe space in which rational and respectful discussion would remain possible.

This did not happen.

The Imam spoke about diseased fishes (what this had to do with the topic never became clear), quoted disapproving passages from the Koran and (as is often the case with men of the cloth) generally displayed a morbid obsession with the mechanics of sex.

A questioner stated as fact that Islam required homosexuals to be stoned to death and asked whether this was indeed what was required of Moslems in South Africa. The Imam said that this was indeed the majority view but that most South African Moslems would follow the minority view that holds that homosexuals should be re-educated to get us to turn away from our “perverted” practices.

At no point did the Imam explicitly condemn (as outrageous and criminal) the idea that men and women who engage in same sex sexual practices should be stoned to death. Instead, he suggested that there were two legitimate schools of thought (one in favour of murdering homosexuals, the other not) but, when pressed he did concede reluctantly that he belonged to the more “moderate” school of thought and do not personally endorse murder.

(As an aside, it is strange that there is not more outrage in society and from the state about religious teachings that endorse the murder of fellow human beings. Why do those who espouse criminality in the name of religious doctrine so often get a free pass? Is it because we have not entirely rejected the notion prevalent in European nations during the pre-Enlightenment theocratic era that religious rules trump the ordinary laws of the land?)

When a fellow panellist as well as other attendees objected to this line of discussion, they were told that they were being intolerant of the views of others who happened to disagree with them.

The Imam and one of his supporters even claimed to feel victimised because members of the audience expressed their distaste of his bigotry and his spectacular lack of basic decency and humanity. (This is not surprising as bullies often claim to be victims when they are called out on their intimidation and persecution of others.)

After the event I felt tarnished and degraded for being forced to defend my right to exist in South Africa without fearing that I will be murdered in the name of God.

It is unthinkable that in 2015 a body like the African Arts Institute would host a panel discussion which raised the question of whether men and women of different races who engage in sex should be stoned to death or whether they should rather be re-educated.

It is also unthinkable that the African Arts Institute would invite Dan Roodt to take part in a panel discussion on whether black people are inherently intellectually and morally inferior to white people.

Whether such speech constitutes hate speech or not (and as I have argued many times before, I am not convinced that hurtful speech is best countered by using hate speech legislation), it is not the kind of speech that belongs in a respected (supposedly progressive) public space.

This is so because the speech has no value. It does not enlighten. It does not help us to think critically about how better to live in the world. It does not educate or allow us to understand how to deal with oppression and bigotry.

It merely reinforces and perpetuates the most narrow-minded, and hateful types of fear mongering and persecution. It provides a platform for speech that directly threatens the well-being and survival of a vulnerable section of South African society.

By hosting such an event, an organisation such as the African Arts Institute further legitimises widely held hateful views that create the environment in which many people believe it is justified to assault, rape and murder those of us who choose to love members of the same sex.

It has potentially deadly consequences.

To say that these views should not be given a platform by the African Arts Institute is not to be intolerant of free speech. It is to be intolerant of hate, bigotry and dehumanising language used by those who claim to speak on behalf of a cruel and vengeful God. In any case, it is not speech on behalf of any God I recognise.

There is nothing wrong with being intolerant of the type of hatred and bigotry that may well have real and fatal consequences for some of our brothers and sisters, mothers and fathers and sons and daughters who happen to love differently from the colonial-cum-religiously imposed norm.

It is an entirely different question whether the law should prohibit such speech and allow for the prosecution and imprisonment of those who engage in such hateful bigotry. To support the legal prohibition of certain types of speech would, to some extent, be intolerant of free speech.

Except for the most extreme forms of hate speech, I am not in favour of such regulation because I am not sure it would achieve much and I fear regulation could be abused to limit speech which may well turn out to be of value.

However, who is allowed to speak on a specific platform speaks volumes about the ideology and political commitments of those who control the platform. When those who make such decisions believe it is entirely appropriate to host a discussion on whether gay men and lesbians are fully human and whether they should be murdered or “merely” re-educated, it says just as much about their own lack of humanity and their moral failure as human beings and political actors than about those they invited onto the platform to spread their hatred.

It is for that reason that I will not, under present conditions, accept an invitation  to appear at an event organised by the African Arts Institute.

SONA and the EFF – What is the Speaker authorised to do?

The State of the Nation Address (SONA) – usually no more than a dry, uninspiring and pompous event showcasing the wealth, power and tawdry glamour of South African political elites – has this year taken on a sharply different meaning. This is due to vague threats by the Economic Freedom Fighters (EFF) to disrupt the event. Can the Speaker prevent EFF MP’s from carrying out their threat? If so, what legal basis is there for preventing EFF MP’s from asking the President questions he had failed to answer when he last appeared in Parliament?

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It is unclear why so much attention (and money) is lavished on the President’s State of the Nation Address (SONA) every year. Speeches delivered by politicians seldom have a direct impact on the lives of voters. Speeches do not put food on the table of the hungry or provide shelter from the elements for the homeless.

Perhaps politicians, media elites and the punditocracy pretend that such speeches really matter more than they actually do to bolster their own sense of (self)-importance. They can tell the rest of us that only they have the tools to identify the strengths and weaknesses of the speech and know how the speech will affect our lives.

Although SONA will almost certainly have no effect on the quality of governance in South Africa, we are asked to pretend that it has the potential to change our lives dramatically. I will prefer not to have to pretend that this is true.

Not that the antics of the EFF will have any effect on the quality of our lives either. At most it will provide some bread and circus to amuse an inquisitive public hungry for some entertainment. That is, if Eskom manages to keep the lights on, of course.

But what happens in the joint sitting of Parliament on Thursday will arguably raise significant constitutional questions. Does the Speaker have untrammelled power to make up rules as she goes along? Can the constitutional right of MP’s to freedom of expression in Parliament be limited and if so, can it be done via arbitrary rulings of the Speaker?

In Speaker of the National Assembly v De Lille the Supreme Court of Appeal (SCA) gave some indication that in a Rule of Law based system like ours, the actions of the Speaker have to be guided by legislation and the rules of Parliament. If legislation and the rules of Parliament do not explicitly authorise the Speaker to limit MP’s right to freedom of expression, conventions and habits cannot do so.

The SCA found that the threat that a member of the National Assembly may be suspended for something said in the Assembly inhibits freedom of expression in the Assembly and must therefore adversely affect the guarantee of free expression. Legal rules must therefore be interpreted to detract as little as possible from this right to free expression enjoyed by MP’s in Parliament.

The Constitution does authorise the adoption of national legislation which will itself clearly and specifically articulate the “privileges and the immunities” of MP’s. The question is whether the legislation or rules clearly and specifically authorise the Speaker to prevent MP’s from asking questions or raising points of order when the President delivers the State of the Nation Address.

Section 7 of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act prohibits a person from improperly interfering with or impeding the exercise or performance by Parliament or a House or committee of its authority or functions. It also prohibits a person from creating or taking part in any disturbance within the precinct of Parliament while it is meeting.

If it were assumed that the definition of “a person” includes an MP and is not restricted to non-MP’s (something that is far from clear), section 7 would thus prohibit an MP from disrupting Parliamentary processes. An MP would be disrupting a Parliamentary process if he or she causes such a disturbance or disruption in a manner not authorised by the rules of Parliament.

If an MP swears in Parliament, assaults another MP, sings songs in the chamber, reflects on the competence or honour of a judge during a debate or continuously interrupts the Speaker and refuses to follow her lawful orders, he or she would be in breach of the rules and the Speaker would have every right to order the MP to leave the House.

But what would happen if an MP raises a point of order or attempts to ask the President a question when the President rises to deliver the State of the Nation Address on Thursday?

In terms of Joint Rule 13 an MP will not have a right to make a speech during a joint sitting of Parliament unless invited to do so by the presiding officer or unless having obtained the permission of the Speaker and the Chairperson of the Council before the meeting.

But what about an MP not wishing to make a speech, but wishing to raise a point of order or ask a question instead? The joint rules of Parliament do allow MP’s to raise a point of order during a joint sitting as Joint Rule 14U states that: “A member may speak [during a joint session such as SONA] (a)  when called upon to do so by the presiding officer; or (b) to a point of order.”

Joint Rule 14L, which states that at a Joint Sitting a member “may only speak from the podium, except to raise a point of order or a question of privilege” or in other circumstances not relevant here, confirms the right of MP’s to raise points of order.

This means the Joint Rules do not allow MP’s to ask questions of the President when he rises to deliver his State of the Nation Address. However, at the same time the Joint Rules do clearly allow MP’s to raise points of order when the President delivers his State of the Nation Address addresses to a Joint Sitting of Parliament.

In fact Joint Rule 14S requires that when such a point of order is raised the person delivering the speech (in this instance it would be the President) must go back to his or her seat. After the point of order has been stated to the presiding officer by the member raising it, the presiding officer must then give his or her ruling or decision thereon either forthwith or subsequently.

Now, it is argued that a convention has been established over the years that MP’s do not raise points of order when the President delivers his State of the Nation Address.

However, Joint Rule 4 is very clear that such a practice cannot extinguish the right of MP’s to raise points of order at a joint sitting. The Rule states unequivocally: “No convention or rule of practice limits or inhibits any provision of the Joint Rules.”

In short, EFF MP’s will be within their rights to raise points of order during SONA. However, they will not be authorised to pose questions to the President.

But is it possible to argue that the Speaker retains a residual power to make rulings about the conduct of MP’s, regardless of whether the conduct is authorised by the rules of Parliament or not?

In this view, the Speaker would be able to enforce a convention established over many years by ruling that no MP may raise a point of order during SONA, because the Speaker has the ultimate authority to control matters in Parliament and to enforce discipline.

This view would be in conflict with the Rule of Law, a founding value in our Constitution, which requires that public power can in general only be exercised if the Constitution, legislation or other legal rules authorise it.

The Joint Rules of Parliament do authorise the Speaker and the Chairperson of the National Council of Provinces (NCOP), acting jointly, to “give a ruling or make a rule in respect of any matter for which the Joint Rules do not provide”.

As the Joint Rules do not provide for the asking of questions, the Speaker and Chairperson of the NCOP can rule that no questions will be allowed during SONA.

But the Joint Rules do provide for the raising of points of order by MP’s during a joint sitting of Parliament. SONA is such a joint sitting of Parliament. Nothing in the Rules provide for treating SONA as different from any other joint sitting of Parliament.

If I am correct in this reading, it means that the Speaker (acting alone or jointly with the Chair of the NCOP) is not legally authorised to make a ruling to disallow points of order because this would amount to an unlawful attempt to circumvent the written Joint Rules of Parliament, which do allow MP’s to raise points of order.

(The Joint Rules can of course over time be amended. But they cannot be amended unilaterally by fiat of the Speaker.)

Of course, if EFF members do not only raise points of order as they are legally authorised to do by the Joint Rules of Parliament, but bang on tables, sing songs or otherwise create a grave disorder, the Speaker is authorised by Joint Rules 14K to “adjourn the sitting” or to “suspend the proceedings for a period to be stated by him or her”.

It is unclear whether the Speaker has the legal authority to have MP’s physically removed from Parliament if they create a disturbance. Section 11 of the Powers Privileges and Immunities of Parliament and Provincial Legislatures 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.

The Act generally distinguishes between “members” (in other words MP’s) and “persons” (non-MP’s), so whether the section applies to MP’s is not clear. It is also unclear whether exercising your right as an MP to free speech in Parliament by asking questions or raising points of order could ever be viewed as creating a disturbance.

I suspect in the months to come our courts may well have to give clarity on this question. What is clear that raising points of order will not fall under section 11, as one cannot take part in a disturbance by exercising one’s rights in terms of the Joint Rules.

In any event, despite the fact that a State of the Nation Address is probably going to have no impact on the quality of governance in South Africa and, hence, will have little impact on the lives of ordinary citizens, it is an event that is invested with much importance by politicians, media elites and the punditocracy.

It may therefore be strategically unwise for a political party to disrupt this event. A party who disrupts this flagship event runs the risk of inviting the wrath of the “opinion-formers” and media bosses who control the quality and the quantity of publicity a political party receives. Whether the EFF would be wise to take on the establishment in this way, thus remains an open question.

DA SMS judgment: what the court really found

How robust are politicians and political parties allowed to be when they engage in election campaigning? In the absence of a court finding to that effect, can one party call another party or its leaders racist? Can one candidate call another dishonest or callous without clearly stating that this was just his or her opinion and then setting out the factual basis for such an opinion? In the recent Constitutional Court judgment of Democratic Alliance v African National Congress and Another the majority of judges held that the Electoral Act and Electoral Code would normally allow such robust forms of speech. The minority judgment had a more restrictive view.

Last year before the general election the Democratic Alliance (DA) sent out an SMS during the election campaign which stated: “The Nkandla report shows how Zuma stole your money to build his R246m home….”

The African National Congress (ANC) approached the High Court for an interdict and other relief on the basis that the DA was not entitled by our law to distribute the SMS. The ANC relied on section 89(2)(c) of the Electoral Act and/or item 9(1)(b) of the Electoral Code, which prohibit any registered political party or candidate from publishing any “false information” with the intention of influencing the conduct or outcome of an election.

The majority of judges of the Constitutional Court have now rejected the ANC claim. Five judges (Justices Cameron, Froneman, Khampepe, Moseneke and Nkabinde) found it unnecessary to answer the question of whether the statement contained in the SMS was false or not. Instead, it found that the SMS expressed an opinion, not factual information, and was hence not prohibited by section 89(2)(c) of the Electoral Act or item 9(1)(b) of the Electoral Code.

The approach of these five justices towards the importance of freedom of speech during an election campaign differed markedly from that of the minority judgement. The five judges argued that the suppression of speech during an election would have “severely negative consequences” on an election, as it would “inhibit valuable speech that contributes to public debate and to opinion-forming”.

As the judges pointed out:

Political life in democratic South Africa has seldom been polite, orderly and restrained. It has always been loud, rowdy and fractious. That is no bad thing. Within the boundaries the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible.

The justices argued that during an election campaign, assertions, claims, statements and comments made by one political party will be “countered most effectively and quickly by refuting them in public meetings, on the internet, on radio and television and in the newspapers”. The robust protection of freedom of expression during elections thus enhances, and does not diminish, the right to free and fair elections. That is why the relevant sections of the Electoral Act and the Electoral Code had to be interpreted in a manner that would limit freedom of expression as little as possible.

A minority of three judges (Justices Zondo, Jafta and Leeuw) seemed to focus more on the alleged threats posed by robust but potentially untrue or difficult to prove expression on the running of free and fair elections. For these judges elections cannot be free and fair where political parties or politicians are allowed to make statements about opponents that are not factually true, or not clearly couched as opinion based on true facts that are either well known or that are mentioned by the speaker when he or she expresses an opinion.

To provide a pertinent example: the minority seems to believe that a free and fair elections would be endangered if a politician was allowed to state that X was racist or that party X was racist – unless the politician clearly stated that he or she was expressing an opinion and referred to the factual basis for the expression of the opinion.

Whether this view is at all plausible in a vibrant democracy is not clear to me. If the minority view were to be sustained many of the views expressed by politicians during an election campaign would become illegal. If the minority view were upheld, many politicians (of all political parties) would face a ten-year prison sentence for expressing views that are false, partly false or that are impossible to prove as being true. As Justice Van der Westhuizen pointed out (in a separate majority opinion in which Madlanga concurred):

In a pre-election environment people are generally aware that political slogans can be highly exaggerated interpretations of facts and that they come from a partisan and subjective viewpoint. In modern-day democracies spoilt by a multitude of media opportunities, political parties formulate punchy, provocative and less-than-accurate sound bites all the time, and are given a wide berth to do so. Perhaps fairly little of what electioneering politicians say is wholly incapable of being labelled as ‘false’ in one way or another.

For me what lies at the heart of the disagreement between the two majority opinions, on the one hand, and the minority opinion, on the other, is the trust the majority judges place in political parties to debunk the wild accusations of their opponents andthe trust they place in voters to take many of the claims made by politicians with a pinch of salt. The two majority judgments seem to accept that political discourse is often infused with rhetoric and false or only semi-true claims or claims that cannot easily be proven, but that voters are aware of this.

The minority judgment seems to be premised on the idea that the law should prohibit such forms of expression to protect voters from the political rhetoric that flies around during election campaigns. In my view the minority holds a slightly patronizing view of voters – as if we are unable to distinguish between political rhetoric masquerading as fact and actual fact. As if we must be protected by the law from being exposed to such rhetoric.

In any event, the five judges who delivered the main judgment for the majority interpreted the relevant provisions of the Electoral Act and the Electoral Code narrowly to limit the kind of speech that would be prohibited by it.

Pointing out that the Electoral Act imposes tough criminal penalties (up to ten years in prison) on anyone found in breach of section 89 of the Act, the judges suggested that the prohibition on false information needed to be interpreted narrowly. As such, the judges suggested that section 89 was designed to protect the mechanics of the conduct of an election: voting, billboards, ballot papers, election stations, observers, and vote counts.

As the judges explained, the kind of statement that would constitute the provision of “false information” would be a statement falsely informing voters that a voting station had been closed. False statements that a candidate for a particular office has died, or that voting hours have been changed, or that a bomb has been placed, or has exploded, at a particular voting station, or that ballot papers have not arrived, or omit a particular candidate or party, would all have the effect of jeopardising the practical mechanics of securing a free and fair election.

Contested statements whose correctness could not be proven would not, according to this view, derail the free and fair election because voters (with the help of other political parties) would distinguish between wild claims and proven facts.

According to the 5 justices the section was not intended to limit the ability of politicians or a political party to make statements about their opponents that may well be difficult to prove as fact: say, that X or the party she belongs to is anti-poor, or anti-black, or callous, or corrupt.

However, the five judges said that it was not in fact necessary to go as far as finding that section 89(2) does not prohibit the dissemination of any information aimed at influencing voters’ views about opposing parties. As the section only prohibits “false information”, all the court had to do was to decide whether the SMS constituted fact or opinion. If it contained opinion and not a statement of fact, it was not covered by the section and was thus not prohibited.

The justices held that the SMS fell outside the ambit of section 89(2) because it was not a statement of fact but an interpretation of the content of the Public Protector’s Report on Nkandla. The SMS did not state as fact that the Report found President Jacob Zuma guilty of theft. What it did was to say that the Report “showed” how the President “stole your money”. This was the opinion of the DA, not a fact.

The minority disagreed with this view. Relying extensively on apartheid era precedent from the then Appeal Court, the minority argued that the SMS constituted a statement of fact, not an opinion and, hence, contravened section 89(2) of the Electoral Act. A politician or party would fall foul of the relevant section of the Electoral Act and the Electoral Code unless it could clearly indicate that it was expressing an opinion and not stating a fact and it further provided the voters with the information on which the opinion was based.

In terms of this minority view it would be illegal to say that party X or candidate X was racist. But it would be legal to say in your opinion party X or candidate X was racist because, for example, X used the “k” word on such and such a date, or party X only had .01% black members or had no black leaders or party X had such and such a policy that discriminated against black people.

On this basis the minority found that the DA SMS on Nkandla was not phrased as an opinion but as a fact and that its statement of fact was false.

In contrast Justices Van der Westhuizen and Madlanga found that it did not matter whether the statement was one of fact or opinion (as, in any case, it would not always be easy to distinguish between the two), but rather “whether the statement is purporting to describe a readily falsifiable state of affairs which poses a real danger of misleading voters and undermining their right to a free and fair election”.

The judges then examined the content of the SMS to determine whether it could – on a generous interpretation – be said that the claim contained in the SMS was true. Unlike the other judges Van der Westhuizen and Madlanga found that the claim could possibly be considered true. The judges then concluded:

According to the Nkandla Report, there was “misappropriation” of taxpayer money. The President benefitted from it. The misappropriation appears to have been tacitly accepted and in certain circumstances caused by the President, as set out in the Nkandla Report. The Nkandla Report seems to “show” that the President at least accepted actions, which resulted in the misuse of taxpayer money, which should not have been used on the project. It does not indicate that the President intended to return the appropriated money. The conduct alleged in the Nkandla Report does fall under a broadly conceived but reasonably possible meaning of the word “stole”, used in the context of an election campaign.

It is important to note that even justices Van der Westhuizen and Madlanga did not find that President Zuma is a thief. They could not do so as a court had not found the President guilty of theft. Neither has the Public Protector found in her Report that the President had stolen any money.

What the justices did was to say that theft does not only have a technical legal meaning. For example, you can say colloquially that a cell phone company is robbing you blind by imposing their exorbitant rates on you. This does not mean the company has been found guilty of theft or armed robbery, but that you believe the company is wrongly inflating its prices in a manner that disadvantages you.

In any case, although the judgment of the majority has been hailed as a victory for freedom of expression during election campaigns, I am not sure it will make a big practical difference to the robustness of speech during election campaigns in South Africa.

This is because during past election campaigns in South Africa politicians and political parties have often made claims about their opponents not couched as opinion and not based on clear evidence. Up until now they have not faced any consequences for making often wild and even spurious claims about opponents.

Elections are often fought via sound bites (X is racist!; Y is anti-poor!; Z is corrupt!) and as Justice Van der Westhuizen pointed out “fairly little of what electioneering politicians say” in such sound bites is likely to be completely true.

European Court often condones restrictions on free speech to accommodate “sensitivities”

In the wake of the shocking murder of journalists and innocent bystanders in Paris last week, many commentators have extolled the virtues of the unfettered right to freedom of expression. But freedom of expression is limited in all democracies. The European Court of Human Rights often condone restrictions imposed on freedom of expression by democratic governments across Europe, finding that such restrictions comply with the provisions of the European Convention of Human Rights. I have dug up a few examples to illustrate this rather obvious, but often ignored, point.

In 2013 Chelsey Manning was convicted by a United States court of violating the Espionage Act and other offenses, after releasing classified documents eventually published on Wikileaks. Manning is serving a 35-year prison sentence for her “crime”. But it is not only in the US where freedom of expression is often restricted for political, religious or so called “moral” reasons.

In what follows I provide examples of recent freedom of expression judgments of the European Court of Human Rights that demonstrate that across Europe courts often justify restrictions on freedom of expression and that Europe’s highest human rights tribunal regularly upholds such restrictions.

This means that it may not be accurate to imply (as some – but not all – commentators on the Charlie Hebdo tragedy have done) that any state that imposes limits on freedom of expression to accommodate the religious sensitivities of a section of the population would in effect condone religious tyranny and intolerance.

Otto-Preminger-Institut v Austria (1994)

In 1985, at the request of the Innsbruck diocese of the Roman Catholic Church, an Austrian public prosecutor instituted criminal proceedings against Otto-Preminger-Institut’s manager for “disparaging religious doctrines”, an act prohibited by section 188 of the Austrian Penal Code for advertising and showing a film Das Liebeskonzil (“Council in Heaven”).

The authorities subsequently seized the movie. It was the seizure of the movie and the legal provision that authorised this that was challenged before the European Court of Human Rights on the basis that it unjustifiably infringed on article 10 of the European Convention of Human Rights. Article 10(1) states:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

Das Liebeskonzil portrays God as an apparently senile old man prostrating himself before the Devil with whom he exchanges a deep kiss and calling the Devil his friend. The adult Jesus Christ is portrayed as a low-grade mental defective and in one scene is shown lasciviously attempting to fondle and kiss his mother’s breasts, which she is shown as permitting.

Finding that the seizure of the movie did not infringe unjustifiably on the right to freedom of expression the Court took note of the fact “that the Roman Catholic religion is the religion of the overwhelming majority of” the community in which it was shown.

In seizing the film, the Austrian authorities acted to ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner.

Leroy v France (2008)

In 2002, the French cartoonist Denis Leroy was convicted for complicity in condoning terrorism for drawing a cartoon representing the attack on the twin towers of the World Trade Centre, with a caption which parodied the advertising slogan of a famous brand: “We have all dreamt of it… Hamas did it”.

The conviction was secured in terms of article 24, section 6 of the French Press Act of 1881, which penalises, apart from incitement to terrorism, also condoning (glorifying) terrorism.

The Court argued that through his choice of language, Leroy commented approvingly on the violence perpetrated against thousands of civilians and diminished the dignity of the victims, as he submitted his drawing on the day of the attacks and it was published on 13 September.

According to the Court, the cartoon had provoked a certain public reaction, capable of stirring up violence and demonstrating a plausible impact on public order in the region. In the circumstances the European Court of Human Rights found that the conviction constituted a permissible limitation on the right to freedom of expression protected by article 10 of the European Convention of Human Rights.

Mouvement Raëlien Suisse v Switzerland (2012)

The aim of the Raëlien movement is to make the first contacts and establish good relations with extra-terrestrials. The Raëlien Movement’s followers believe that scientific and technical progress is of fundamental importance and that cloning and the “transfer of conscience” will enable man to become immortal. In that connection the Raëlien Movement has expressed opinions in favour of human cloning.

In 2001 the Swiss arm of the movement was denied permission to launch a poster campaign on the basis that the Raëlien Movement was a sect and engaged in activities that were contrary to public order (ordre public) and immoral.

The movement wanted to put up posters with the heading: “The Message from Extra-terrestrials”. At the very bottom was the phrase “Science at last replaces religion”.

The European Court confirmed the legality of the prohibition on the distribution of the posters, noting that the movement were still able to continue to disseminate its ideas through its website, and through other means at its disposal such as the distribution of leaflets in the street or in letter-boxes.

Ï.A. v Turkey (2005)

In 1994 the applicant was convicted of blasphemy against “God, the Religion, the Prophet and the Holy Book” after publishing a book criticising the beliefs, ideas, traditions and way of life of Anatolian Turkish society “by adopting the independent and nonconformist viewpoint of the leaders, thinkers and scientists of the Renaissance in order to enlighten and advise our people as he sees fit”.

The book contained passages that implied “a certain element of humiliation, scorn and discredit vis-à-vis religion, the Prophet and belief in God according to Islam”.

The European Court on Human Rights declined to find that the conviction constituted an unjustifiable infringement on the right to freedom of expression protected in article 10 of the Convention of Human Rights.

Noting that the impugned action against the author was “intended to provide protection against offensive attacks on matters regarded as sacred by Muslims” it held that the measures “may reasonably be held to have met a ‘pressing social need’”.

Wingrove v The United Kingdom (1996)

Mr Nigel Wingrove, a film director, made a video entitled Visions of Ecstasy, which he hoped to distribute to interested people across the United Kingdom. The action of the film centres upon a youthful actress dressed as a nun and intended to represent St Teresa.

It begins with the nun, dressed loosely in a black habit, stabbing her own hand with a large nail and spreading her blood over her naked breasts and clothing. In her writhing, she spills a chalice of communion wine and proceeds to lick it up from the ground.

The second part shows St Teresa dressed in a white habit standing with her arms held above her head by a white cord which is suspended from above and tied around her wrists. The near-naked form of a second female, said to represent St Teresa’s psyche, slowly crawls her way along the ground towards her. Upon reaching St Teresa’s feet, the psyche begins to caress her feet and legs, then her midriff, then her breasts, and finally exchanges passionate kisses with her.

The British Board of Film Classification refused to authorise the lawful distribution or showing of the movie due to its “obscene” nature and because the movie was “blasphemous”. Although it was not blasphemous to speak or publish opinions hostile to the Christian religion if the publication is “decent and temperate”, “the tone, style and spirit” of the movie was “bound to give rise to outrage at the unacceptable treatment of a sacred subject”.

The European Court of Human Rights found that “it was not unreasonable” for the UK authorities to refuse to classify the movie for distribution. Although this amounted to a complete ban on the film’s distribution, “this was an understandable consequence” of the blasphemous nature of the movie.

The Court thus found that the banning of the film was justified as being necessary in a democratic society within the meaning of paragraph 2 of Article 10. This paragraph states that:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

These examples suggest that many states across Europe pass laws or impose judicial limits on free speech to accommodate the religious and moral sensitivities of members of their societies. Europe’s highest human rights tribunal does not always view these restrictions as threatening basic democratic freedoms on the continent. This suggest that reasonable people may well differ on the necessity to limit speech to accommodate religious and other “sensitivities”.

Many of us may well disagree with the latitude shown by the European Court of Human Rights towards such limitations. We may prefer a more expansive interpretation of free speech and a more restrictive interpretation of the justifiable limitations on freedom of expression.

However, any relatively informed person will have to think twice before arguing that any state that limits freedom of expression to accommodate the religious sensitivities of a section of the population would condone religious tyranny and intolerance or that demands for such limitations itself constitute an attack on freedom, liberty and democracy.

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.

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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.