Freedom of expression

Secrecy Bill less about media freedom, more about national security state

Jan 31st, 2012

Not enough South Africans understand that the Protection of State Information Bill (also popularly known as the Secrecy Bill) now being considered by the National Council of Provinces (NCOP) is not primarily aimed at muzzling the media. Although in its current form the Bill will have a chilling effect on the media and would probably stop many whistleblowers from leaking sensitive or embarrassing information to the media, the Bill is primarily aimed at shielding the various intelligence agencies and structures from too much scrutiny and at ensuring that the ordinary constitutional checks and balances that apply to other organs of state that exercise public power would not apply to the intelligence services.

Because we get most of our information about the Secrecy Bill from the media, it is not surprising that members of the media have focused on their own short-term interests and have argued (not entirely correctly) that the Bill was primarily aimed at muzzling the press and at hiding corruption. But this view fails to consider the broader context within which the Secrecy Bill is being discussed.

One must recall that this Bill originated with (and was drafted by) members of the intelligence services and is primarily aimed at creating a legal regime that would provide a veil of secrecy behind which our spies would be able to hide. As long as our intelligence services do what they are constitutionally mandated to do and do not abuse their powers, the Bill will, in my opinion, not have as dramatic an effect on the media landscape in South Africa as some commentators have argued.

(Of course, if the Minister of State Security misused this Bill and extended the power of classification to many of the more than 1000 organs of state — as he is empowered to do in terms of the current draft — the Bill may well be used to hide corruption and maladministration on a vast scale, but that was not the primary objective of the Bill.)

Section 199 of the Constitution contains several provisions that signal an understanding on the part of the drafters of the Constitution that security services could easily be misused by the government of the day. Thus it states that the security services must act, and must teach and require their members to act, in accordance with the constitution and the law; that national security must be pursued in compliance with the law, including international law; and that no member of any security service may obey a manifestly illegal order. The security services are obliged to respect constitutional rights and they are prohibited from prejudicing or furthering the interests of political parties.

Dr Laurie Nathan, who has written extensively on the South African Intelligence Services and was also a member of the Ministerial Review Commission on Intelligence (along with Joe Matthews, a former Deputy Minister of Safety and Security, who chaired the body, and Dr Frene Ginwala, the first Speaker of our democratic Parliament), has warned that:

There is ample historical evidence that politicians and intelligence officers can abuse these powers [of intelligence agencies] to infringe rights without good cause, interfere in politics and favour or prejudice a political party or leader, thereby subverting democracy. They can intimidate the government’s opponents, create a climate of fear and manipulate intelligence in order to influence state decision-making and public opinion. Given these dangers, democratic societies are confronted by the challenge of constructing rules and controls that prevent misconduct by the intelligence services without constraining the services to such an extent that they are unable to fulfil their duties. In short, the challenge is to ensure that the intelligence agencies pursue a legitimate mandate in a legitimate manner.

The Review Commission (which reviewed the National Intelligence Agency (NIA); the South African Secret Service (SASS); the National Intelligence Coordinating Committee (NICOC); the National Communications Centre (NCC); the Office for Interception Centres (OIC); and Electronic Communications Security (Pty) Ltd)) reported that the intelligence agencies in South Africa have not fully embraced the constitutional system with its requirements for openness, transparency and accountability and have not always adhered to the letter and spirit of the Constitution and the law.

Although South Africa’s intelligence legislation and governance arrangements have undergone dramatic transformation since the end of apartheid in 1994 and now compare favourably with those in established democracies, there seems to be a disconnect between what the law requires and what happens in practice.

For example the Review Commission found that the Minister of Intelligence has issued secret regulations that are known only to the intelligence community. The intelligence legislation permits the Minister to do this despite the constitution’s clear statement that regulations must be accessible to the public. Similarly, the Constitution provides that the Auditor General’s reports must be submitted to the relevant legislature and must be made public. Nevertheless, the audit reports on the intelligence services are presented only to the parliamentary Joint Standing Committee on Intelligence (JSCI) and are classified.

As the Report points out (and as Dr Nathan has pointed out elsewhere), despite the fact that the Constitution states that national budgets and budgetary processes must promote transparency and accountability, the annual budgets of the intelligence services are secret; they are reviewed by the JSCI but are not presented to Parliament.

By executive decision the members of the intelligence services are excluded from the labour rights in the Bill of Rights, but this limitation of rights is not covered by legislation as required by the constitution. The Review Commission argued that these deviations from the Constitution are unsound and impermissible. This view was shared by the National Treasury with respect to the intelligence budgets; by the Auditor General with respect to the audit reports on the intelligence services; by the Inspector General and the State Law Adviser with respect to labour rights; and by the Inspector General with respect to the use of intrusive measures.

Most seriously, the Review Commission found that intelligence services regularly infringed on the right to privacy through intrusive methods that are unconstitutional. For example, it found that the NCC, which intercepts electronic signals such as cell phone conversations, is engaged in eavesdropping that is unconstitutional and unlawful. This is because the centre fails to comply with the requirements of the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002, which prohibits the interception of communication without judicial authorisation.

It is in this context that the Secrecy Bill must be evaluated. It may be that the Review Commission Report was acted upon decisively and that the culture of secrecy and lawlessness reported on in the Commissions finding have been addressed in a bold and decisive manner. But, given the fact that it is always difficult to change a culture of secrecy that is deeply entrenched, it will not be surprising if the serious problems with the Intelligence Services (which threaten the health of our constitutional democracy) have persisted or have even become worse.

Imagine what would happen if the Intelligence Services tapped your phone (or the phone of any other person considered — rightly or wrongly — to be an “enemy of the state”), if they abducted you (or any other person considered — rightly or wrongly — to be an enemy of the state”) and “rendered you to Pakistan, the USA or Syria to be tortured and maybe killed. What would happen if these institutions with access to mountains of information and the technology and manpower to run disinformation campaigns and terrorise people, embarked on secret projects to destabilise civil society groups, social movements, labour movements or opposition parties who they perceive to be threatening the stability of the state?

If the state were then to be conflated with the government of the day, what will emerge is a national security state in which the normal laws of the country may not apply as strictly to the intelligence community, while its abuse of power and flouting of the law would be difficult if not impossible to expose without facing arrest and eventual imprisonment for between 2 and 25 years. The Secrecy Bill will then become a powerful weapon to protect this national security state and will protect its agents and the institutions who act in such illegal ways from exposure in the media.

When Moloto Mothapo, from the Office of the ANC Chief Whip, wrote late last year that the Secrecy Bill was essentially a security Bill, not a media Bill, “aimed at protecting the national security of the Republic of South Africa”, this reassurance might have been more illusory than most people might have realised.

It is in this context that claims of the security establishment that the Bill is firmly in line with best international practice must be interrogated. During a National Assembly debate on the Bill late last year, State Security Minister Siyabonga Cwele said: “We have looked at international best practices and there is no country which practises such reckless practice.” He said that even Britain’s Official Secrets Act did not include a public interest defence.

Putting aside the fact that — unlike Britain – South Africa has a written Constitution that contains a set of fundamental human rights which can be enforced by our courts, these claims are not as plausible as one might at first believe them to be. For example, those who claim the Bill contains international best practice, might either be unfamiliar with (or might deliberately be misleading the public about) the fact that in 1995 a group of experts in international law, national security, and human rights, the International Centre Against Censorship, in collaboration with the Centre for Applied Legal Studies of the University of the Witwatersrand, adopted the Johannesburg Principles on National Security, Freedom of Expression and Access to Information in Johannesburg and that the Bill in no way measure up to these principles.

The Principles have been endorsed by Mr. Abid Hussain, the UN Special Rapporteur on Freedom of Opinion and Expression, in his reports to the 1996, 1998, 1999 and 2001 sessions of the United Nations Commission on Human Rights, and referred to by the Commission in their annual resolutions on freedom of expression every year since 1996.

Principle 15 state that:

No person may be punished on national security grounds for disclosure of information if (1) the disclosure does not actually harm and is not likely to harm a legitimate national security interest, or (2) the public interest in knowing the information outweighs the harm from disclosure.

This principle thus captures the so called public interest defence, something that our politicians say is foreign to international law. This claim clearly is not sustainable. This principle is further supported by a whistle blowers provision in principle 16 which states that “[n]o person may be subjected to any detriment on national security grounds for disclosing information that he or she learned by virtue of government service if the public interest in knowing the information outweighs the harm from disclosure”.

Furthermore, principle 18 states that the “[p]rotection of national security may not be used as a reason to compel a journalist to reveal a confidential source”.

If one reads the Johannesburg Principles and one evaluates the provisions of the Secrecy Bill against these principles then it is clear that the Secrecy Bill does not, as our Minister of Secrecy and other officials claim, comply with international best practice (best practice captured in the Johannesburg Principles).

Even if we had no worries about the possible abuse of the Intelligence Services (which would be naive, even in the most progressive state), the Secrecy Bill should therefore raise serious concerns about the power and influence of the security services and the corruption of the state by the various spy agencies whose job it is to obfuscate, lie and hide information (sometimes for a worthy cause and often for a nefarious cause).

But given the content of the Intelligence Review Report (a report authored by a credible expert and two people intimately connected with the ANC and the government it leads), the fact that our Minister of State Security is so adamant on passing a piece of legislation that almost certainly infringes on the right of access to information and the right of freedom of expression protected in the Constitution, must be truly worrying. And the worry stems less from the narrow concerns raised by the media and more from a broader concern about the securitisation of South Africa’s democracy and the potential devastating effect this may have on social movements and other grassroots democratic forces who might pose a challenge to the entrenched interests of a certain faction of the governing party who controls the state.

Siessa Patricia!

Jan 30th, 2012

by Pierre De Vos.

99 comments

When Mitt Romney, the Republican presidential candidate, was criticised for the manner in which he became very rich (by breaking up companies and firing workers), for paying less than 15% in taxes (while the average rate in the US for a low to medium income earner is around 30%), and for sheltering from paying taxes by keeping money in the Cayman Islands and in a Swiss Bank account, he repeatedly said that such criticism was aimed at dividing America.

Lemme tell ya something. America is a great nation, because we’re a united nation and those who are trying to divide the nation as you’re trying to do here and as the president is doing are hurting this country, seriously. The right course for America is not to divide America, and try and divide us between one and another, it’s for us to come together as a nation. And if you’ve got a better model, if you think China is better, or Russia is better, or Cuba’s better, or North Korea’s better, I’m glad to hear all about it. But you know what? America’s right, and you’re wrong!

This argument is often used by the rich, who complain that the so called 99% of the US population (who are not stinking rich) may be stoking “class warfare”. It serves as a handy mechanism for stopping anyone from questioning the inequality, the unearned privileges bestowed on the rich, and the obscene unfairness of the US economic and social system and helps to protect the status quo.

I was therefore surprised when Cape Town mayor, Patricia de Lille (who used to have more progressive principles before she joined the Democratic Alliance), used this same kind of language to attack people who were planning to highlight unfairness and economic inequality in Cape Town by “occupying” the Rondebosch common (a piece of untidy, windswept grass and bushes in the middle of the leafy middle-class suburbs of Cape Town).

Last week, in a speech delivered by the mayor in the city council chambers, De Lille called the leader of the protest (a guy with the wonderful name of Mario Wanza) and his supporters “agents of destruction” and then continued:

There are those who would sooner see this city destroyed, driven in two by violence and aggression, than be a part of a shared destiny. I tell this council now, those agents of division will not win. I think here in particular of Mario Wanza, a would-be but failed public servant, who claims to speak on behalf of the people of the Cape Flats. … [I would not allow] these agents of destruction to use their misguided, naive and brutal misunderstandings of the politics of race to divide this city. … I tell the people of Cape Town this: They will not succeed because we will not let them.

Given these fighting words (with De Lille seemingly channelling her inner PW Botha), it was perhaps not surprising that the police refused to give permission for the gathering and declared the gathering “illegal”. The police did so on what appears to be spurious grounds, arguing that organisers arrived “between 15 and 30 minutes late” for their meeting with police officials and that organisers insisted on having all nine elected representatives present in the meeting as opposed to four.

These reasons are, to say the least, completely spurious, suggesting that the police had a mandate to stop this gathering at any cost. In fact this kind of reasoning has a rather authoritarian ring to it and seems to be based on the assumption that taking part in a protest is not a right, but a privilege that can be bestowed and can also be taken away by a police officer if an organiser of a gathering does not behave “properly”. This used to be the legal situation in apartheid South Africa, but as we now live in a constitutional democracy it is no longer the case. Somebody should tell the police (and mayor De Lille)

The Regulation of Gatherings Act makes it very clear that the responsible police officer has a duty to negotiate with organisers of a gathering and to do so in a way that would help the organisers to conduct a peaceful protest march or gathering. Where a police officer fails to do everything in his or her power to ensure that a peaceful and orderly gathering can take place, that police officer is breaking the law and is also infringing on the constitutionally guaranteed rights of citizens.

Reading the various provisions of the Gatherings Act, it is impossible to see how the police could validly have declared this gathering illegal and how they could reasonably have believed that they had the right to do so. The relevant police officers either have difficulty with basic English comprehension or they deliberately decided to flout the provisions of the Regulation of Gatherings Act in order to get this gathering declared illegal (which happened to comply with the wishes of mayor De Lille).

One would have hoped that De Lille would have condemned this apparent abuse of power by the Police. After all, she is a leader of the DA, a political party who has often (rightly) expressed outrage when ANC-aligned government officials flout the law. The DA is also a party who has presented itself as a champion of the Rule of Law – even challenging the unlawful appointment of Menzi Simelane as National Director of Public Prosecutions in court. But alas, when the fears and short term interests of upper-middle class DA voters clash with respect for the law and adherence to democratic principles, one should not expect principle to hold sway. The mayor thus made statements which endorsed the dubious notion that this gathering was an “illegal” one.

The Regulation of Gatherings Act makes it clear that every person has the right to assemble with other persons and to express his or her views on any matter freely in public and to enjoy the protection of the State while doing so. As such, this Act gives expression to the right of everyone (guaranteed in section 17 of the Bill of Rights), peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.

This right is an important one for any democracy as it helps to even out the political playing field. Given the fact that access to money and a proximity to the powerful often give certain people or pressure groups disproportionate influence over the politicians and the political process, this right to protest can be viewed as a right that is of particular importance for the poor, the powerless and the dispossessed. How else will people living in poor and marginalised communities have their voices heard and their concerns listened to?

My guess is that the rather reactionary tone of De Lille’s statement and the heavy-handed and probably illegal actions of the police stem from the fear that a protest on the Rondebosch common would indeed provide a voice to the voiceless and would challenge the cosy elite pact between the politicians and the rich (the very rich whose donations keep the major political parties afloat).

Because the right to protest is fundamental to the proper functioning of a democracy, the Gatherings Act assumes that gatherings and protests will almost always be allowed and that technicalities will not be used to ban protests that would make the powers that be uncomfortable. Thus section 3(5)(c) of the Act even requires the relevant police officers to try and identify organisers of protests and gatherings and then engaging with those organisers – even if no notice was given of the protest or gathering by its organisers. Furthermore, section 4(1) places a legal duty on the responsible officer to engage with organisers of a gathering or protest to try and reach agreement about how the gathering or protest would be conducted.

Section 4(4)(b) of the Act also allows the responsible officer to impose certain conditions on the gathering or protest if there are reasonable grounds to do so in order to minimise traffic disruptions, to ensure continued access for others to their places of work and property, to prevent injury to any person and to prevent the destruction of property. When an officer imposes such conditions he or she is required by law to give written reasons for this.

Section 5 of the Act makes it clear that a gathering or protest may only be prohibited in extreme cases. This section states that:

When credible information on oath is brought to the attention of a responsible officer that there is a threat that a proposed gathering will result in serious disruption of vehicular or pedestrian traffic, injury to participants in the gathering or other persons, or extensive damage to property, and that the Police and the traffic officers in question will not be able to contain this threat, he shall forthwith meet or, if time does not allow it, consult with the convener and the authorized member, if possible, and any other person with whom, he believes, he should meet or consult, including the representatives of any police community consultative forum in order to consider the prohibition of the gathering.

Only after such a meeting would a responsible officer be able to prohibit a gathering, if he or she is convinced “on reasonable grounds” that no amendment to the conditions of the gathering would prevent serious disruptions or extensive damage to property.

Now, people who are familiar with Cape Town would know that no person could reasonably claim that a gathering on the Rondebosch common would seriously disrupt traffic or that it would pose a serious risk to people or that extensive damage to property would ensue. There are no buildings on the common and nobody lives or works on the common, so how the police could have decided that the gathering posed a serious risk to the safety of people or to damage of property is beyond me. In fact, I would go as far as saying that the police acted illegally (perhaps spurred on by the incendiary comments of the mayor?) by banning the gathering. The subsequent heavy handed actions against those who chose to gather on the common and the arrest of all those who took part was therefore in all likelihood illegal.

A liberal administration would never have made the kind of statements that De Lille made and would never have suggested that the protestors should be stopped. A liberal administration would have championed the right of protesters to gather and convey their message (even in a suburb where rich DA voters predominate) and would have done everything in its power to ensure that a peaceful protest with the least amount of disruption took place. But then again, the DA administration in Cape Town can probably only be said to be liberal in name.

PS: The headline is an ironic quotation of a headline which appeared in Die Son newspaper a few years ago when it reported on the fact that “singer” Patricia Lewis “acted” in a soft porn movie.

Should a court help to make the state’s case for secrecy?

Nov 29th, 2011

by Pierre De Vos.

157 comments

The right of every person to have access to any information held by the state is guaranteed by section 32 of the Constitution. The Promotion of Access to Information Act (PAIA) gives effect to this right. Unfortunately, many state officials (as well as private bodies) undermine respect for the Rule of Law by refusing to adhere to the provisions of PAIA, either by not responding to requests for access to information at all, or by refusing access to information where this refusal is not clearly justified by the provisions of PAIA.

Most people who request access to information do not have the resources to approach a court to challenge this culture of secrecy which is deeply entrenched in our society (in both public and private institutions). When an individual or institution therefore approaches a court to challenge the denial of access to important information held by the state or a private body, the court should be careful not to bend over backwards to assist state officials in denying access to information, information which is the lifeblood of any democracy.

Unfortunately today a majority of judges of the Constitutional Court handed down a judgment in the case of President of the RSA and Others v Mail & Guardian Media Ltd, in which they came to the assistance of the Presidency who had utterly failed to make out a case for why a report prepared by two judges sent to Zimbabwe by then President Thabo Mbeki to look into that country’s troubled election should not be made public.

This was a close run affair with 5 judges (including an acting judge who might still one day be appointed to the highest court) overturning the High Court and Supreme Court of Appeal judgment, and 4 judges supporting a strong dissent. The majority judgment, authored by former Chief Justice Sandile Ngcobo (and concurred in by Froneman J, Mogoeng J, Mthiyane AJ and Yacoob J), makes all the right noises about the dangers of state secrecy by emphasising the importance of the right of access to information, stating that the importance of this right in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid.

It is impossible to hold accountable a government that operates in secrecy. The right of access to information is also crucial to the realisation of other rights in the Bill of Rights. The right to receive or impart information or ideas, for example, is dependent on it. In a democratic society such as our own, the effective exercise of the right to vote also depends on the right of access to information. For without access to information, the ability of citizens to make responsible political decisions and participate meaningfully in public life is undermined.

The majority also correctly points out that PAIA places an evidentiary burden on the party denying access to information to demonstrate that its denial of the information is justified. The Presidency had argued that the denial was justified, first, because the report would reveal information supplied in confidence by or on behalf of another state or an international organisation. This explanation merely recounted the wording of section 41(1)(b)(i). Secondly, the Presidency argued that stated that the record contains an opinion, advice, report or recommendation obtained or prepared for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law. This likewise recounted the wording of section 44(1)(a).

The Presidency failed to produced any plausible evidence by those directly involved in the matter, namely the President (at the time, this was Thabo Mbeki), or the two judges (Justices Moseneke and Khampepe, who both recused themselves from hearing the case), all of which could have confirmed the bold (but unsubstantiated) assertions made by the Presidency about why they were justified in denying access to the report. As an afterthought, so it seems, the Presidency argued that it could not provide a more persuasive justification for its refusal, as section 25(3)(b) and section 77(5)(b) of PAIA provide that a person who refuses access must exclude from the reasons stated “any reference to the content of the record”.

In order to give the Presidency another bite at the cherry to justify that which it had failed to justify before the High Court, the Supreme Court of Appeal and the Constitutional Court, the majority relied on section 80 of PAIA which allows a court to call for additional evidence in the form of the document to which access was denied to have a secret “judicial peek” at that document itself. Section 80 allows the court to conduct a secret review of the document to determine whether the justification for the denial of access was valid or not.

The majority warned that courts should exercise their discretion to call for additional evidence in the form of the contested record only where there is “the potential for injustice as a result of the unique constraints placed upon the parties in access to information disputes”. This injustice may arise, said the court, “because either the requester or the holder of information is prevented by factors beyond its control from presenting the evidence necessary to make its case”.

Because the officials in the Presidency who made submission to the court were not directly involved in the commissioning or production of the report, the majority found that they were required to study the report itself and come to a conclusion about whether it should be made public. The state was therefore “hamstrung” from presenting further evidence in support of its claim to the exemptions. The majority therefore found that the High Court and the SCA should have demanded to have a “judicial peek” at the document to decide whether the refusal was justified in terms of the provisions of PAIA relied upon. The majority therefore referred the matter back to the High Court to do just that. This means the process will start afresh – if the Mail & Guardian has sufficient funds to fight the whole battle anew.

As I read the majority judgment, it assumed — without any credible evidence being presented by the Presidency to that effect — that the Presidency was unable to make a proper case for secrecy because its officials could not quote directly from the report. This did not wash with the minority.

The strongly worded minority judgment, authored by Justice Edwin Cameron (Jafta J, Nkabinde J and Van der Westhuizen J concurring), provides cogent arguments for why the Presidency had to hand over the report immediately. The minority argued that the Presidency had failed to justify its refusal of the record under PAIA, and further failed to provide a plausible basis for a plea that the statute made it impossible for it to provide adequate reasons for its refusal.

The Presidency’s information officer had made no reference in his reasons to the provisions of the statute that prohibit a decision-maker from making any reference to the content of the record when giving reasons for a refusal. Moreover, the pivotal submission by Frank Chikane contained no more than “bald assertions” — which did not constitute evidence at all. Chikane did not state why he claimed to have personal knowledge of the issue. Justice Cameron then proceeded to argue as follows:

As the Supreme Court of Appeal pointed out, one can gain personal knowledge of an event in three very different ways: by experiencing it directly; by receiving a report that it happened (which is hearsay); or by deducing from other signs that it took place. Mr Chikane does not tell us in which of these ways he acquired personal knowledge. This leaves a court unable to perform its most elementary function, which is to assess the quality, strength and reliability of his knowledge in determining whether the fact to which he deposes is true. The mere assertion that he has personal knowledge gives no help in that duty. It follows that his assertion is without value as evidence of the fact in issue. …

The Court rightly noted that the Presidency‘s case amounts to “little more than rote recitation of the relevant sections and bald assertions that the report falls within their terms”. The witnesses offered not reasons, but perfunctory conclusions. This, the Court said, provided a stark contrast with the culture of accountability and transparency that our constitutional era promised. Indeed, the Supreme Court of Appeal likened the approach in the affidavits of the Presidency‘s witnesses to that under apartheid, where government officials exercising wide powers were able simply to assert that they had fulfilled the requirements of the statute, without offering any evidential basis for this.

The minority further pointed out that it was inexplicable that neither the President at the time, or any of the judges involved provided evidence that would support the denial of access to the document.

Neither former President Motlanthe nor President Zuma could cast light on the judges‘ mission. President Mbeki could, but there was no affidavit from him. So the question is — why did President Mbeki not testify? Was he asked or not asked? If asked, did he refuse? Or if not asked, why?

Perhaps even more telling was the absence of evidence from the two judges. They, like former President Mbeki, are living and seemingly available. Why did they not testify? Were they asked? If not, why? A simple affidavit from any of them may have put a quick end to the issues.

The Presidency‘s hands were not tied. It could have obtained direct evidence from any one of the three people most intimately involved in the mission. It failed to do so. More even, it failed to explain why.

The minority also cautions against the use of section 80 of PAIA that would allow the court to have a secret “judicial peek” at the document. It should only be as a last resort that judges should demand to have a “judicial peek” at the document to which access is being denied, said the minority. Moreover this section “should not be used to help government make its case when it has failed to discharge the burden the statute rightly places on it”.

There are good reasons for a court to avoid reliance on section 80 to have a secret peek at the document being denied to come to a secret conclusion based on a secret process. Although it might be necessary to do so, the risks inherent in resorting to secret judicial examination are so grave that it should be avoided if at all possible. Quoting from the Supreme Court of Appeal judgment, Cameron pointed out the dangers of the majority’s approach:

Courts earn the trust of the public by conducting their business openly and with reasons for their decisions. I think a court should be hesitant to become a party to secrecy with its potential to dissipate that accumulated store of trust. There will no doubt be cases where a court might properly make use of those powers but they are no substitute for the public body laying a proper basis for its refusal.

Nor should the public ever fear that courts may assist in suppressing information to which the Constitution says they are entitled. To give secret judicial examination of disputed records a central place in deciding claims to exemption, instead of enforcing the burden government rightly bears to justify withholding information, is in my view a grave error.

The minority would therefore have ordered the immediate release of the document as the Presidency had utterly failed to justify it being kept secret.

The two judgments handed down today present starkly different attitudes towards secrecy and the role of the executive in keeping secrets. The majority bent over backwards to find ways of not ordering the immediate release of the report, despite the fact that the executive had utterly failed to make a plausible case for keeping the document secret. The minority looked at the evidence provided by the Presidency, determined that it had not provided any cogent reasons for keeping the report secret and would have ordered its release.

The first judgment can therefore be read as displaying a rather touching (or perhaps naive) trust in the inherent honesty and probity of the executive and its commitment to an open and democratic society based on openness, transparency and accountability. The minority looked at the facts and applied the law as it relates to the facts presented to the court. It took the law at face value and interpreted and applied it in a manner that would inhibit state officials from denying access to important documents and then justifying it by making bald and unsubstantiated assertions of their right to do so.

How to fix the Secrecy Bill and make it constitutionally compliant

Nov 24th, 2011

by Pierre De Vos.

90 comments

The South African democracy is founded, inter alia, on the values of “universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”. The notion of open, accountable and transparent government runs like a golden thread through the Constitution which contains several specific provisions to give effect to these values. To this end the Bill of Rights contains two specific clauses that guarantees open, transparent and accountable government.

Section 16 of the Bill of Rights guarantees for everyone the right “to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research”. Section 32 guarantees for everyone the right to access ”any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights”.

The Bill of Rights, it must be noted, does not say that only some people have a right to access information held by the state, neither does it state that everyone has a right to access only that information held by the state which the government of the day believes the population could be trusted with. These provisions are sweeping and all-encompassing, giving substance to the notion of an open and democratic society established by our Constitution. Any legislation that curtails the freedom of the media to inform the public and (just as important) the freedom of ordinary people to access or receive and impart information, infringes on the right guaranteed in section 16. Legislation that prohibits people from accessing any information by the state similarly infringes on section 32 of the Bill of Rights.

There can therefore be little argument that the Secrecy Bill infringes on these two rights which the Constitutional Court has stated is pivotal for the proper functioning of the democracy. However, no right is absolute and can be limited but only to the extent that the limitation is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose”.

At the heart of the Secrecy Bill debate is whether the limitation on our rights contained in it conforms to what is acceptable in an open and democratic society and whether less invasive measures could have been employed to achieve a legitimate purpose of restricting some state information in order to protect South Africans from terrorism and other attacks and to protect us from attacks agains the constitutional order itself (attacks, it might be add, which can easily emanate form the security and intelligence services itself – just as the people of Egypt). Any restrictions that go beyond this will not pass constitutional muster. Where the restrictions are over broad, they cannot be justified. That is why the Secrecy Bill, in my view at least, is clearly unconstitutional. Let me explain.

Section 12 of the Bill allows various organs of state (the military, the police, the intelligence services and any other government department or organ of state given permission to do so) to classify documents when it could cause harm to South Africa’s national security. The first problem with the Bill is that “national security” is defined too broadly. It states that “national security” includes the protection of the people of the Republic and the territorial integrity of the Republic against various threats, including “exposure of economic, scientific or technological secrets vital to the Republic”. This definition is over broad in three distinct ways.

First, the word “includes” must be deleted as it suggests that the definition does not contain a closed list of factors that constitutes national security but is open ended. This gives classifying bodies the right to “invent” other national security concerns as it sees fit — even when these have not been included in the definition contained in the Bill.

This must be read with section 14(3), which must also be deleted. This section states that:

Specific considerations with regard to the decision whether to classify state information may include whether the disclosure may-

(a) expose the identity of a confidential source, or reveal information about the application of an intelligence or law enforcement investigative method, or reveal the identity of an intelligence or police source when the unlawful disclosure of that source would clearly and demonstrably damage the national security of the Republic or the interests of the source or his or her family;

(b) clearly and demonstrably impair the ability of government to protect officials or persons for whom protection services, in the interest of national security, are authorised;

(c) seriously and substantially impair national security, defence or intelligence systems, plans or activities;

(d) seriously and demonstrably impair relations between South Africa and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the Republic;

(e) violate a statute, treaty, or international agreement, including an agreement between the South African government and another government or international institution; or

(f) cause life threatening or other physical harm to a person or persons.

Read with the open-ended definition of “national security”, this section invites spies, the military and the police to turn South Africa into a secretive police state. It allows the security services to classify almost any document about its activities. If rogue elements in the security services use underhand methods to spy on citizens; to use dirty tricks against legitimate political opponents and social movements and to target them unfairly for criminal investigation; to undermine opponents of one or another faction within the governing party, these provisions would allow them to classify all documents relating to that.

It would also allow ministers and the top brass of the military and the policy to draw a veil of secrecy over their own activities, including their travel and their spending on hotels and other luxuries. Lastly, it would also allow the state to hide any information about money donated by a foreign government to the governing party or to ministers, state officials or the President; bribes given by a foreign company to government officials, ministers opt the President or any information about any contract concluded with a foreign company — which in future would include almost all aspects of arms sales by or to South Africa.

Section 3 should also be amended. At the moment it allows all security services (including those trusted police commissioners who seem to be so fond of crooks) from classifying documents and also allows the MInister of State Security to give permission to any other organ of state (from each municipality and government department, to the Natal Sharks Board) to classify documents. Only the Minister of State Security should be given this power and only for documents in possession of the intelligence services.

Section 15 and 43 are also over broad and hence unconstitutional. Section 15 states that a person who is in possession of a classified “record knowing that such record has been unlawfully communicated, delivered or made available other than in the manner and for the purposes contemplated in this Act… must report such possession and return such record to a member of the South African Police Service or the Agency to be dealt with in the prescribed manner”. Anyone who fails to do so commits a crime for which he or she could be sent to jail for 5 years. Section 43 prohibits many categories of people (excluding whistle-blowers in the employment of the state who complies with the strict provisions of the whistle-blower act, but including all members of the media) from disclosing the content of classified documents and anyone who contravenes this section could be sent to jail for 5 years.

Thus a person would be criminally liable if he or she is in possession of the document or makes that document public even if the document was wrongly classified to cover up corruption, authoritarian actions by the security services or to hide illegal activities or maladministration by the securocrats or the police. There are two ways to deal with this. Both are plausible and easily achievable by the legislature.

First, a limited public interest defence can be written into the Bill which will set out criteria for when classified documents could be lawfully possessed and published because it was in the public interest to do so. Such a section could list situations in which possession and publication will be allowed. This could include when documents are classified merely to cover up corruption or maladministration; where it reveals criminal activity on the part of individuals inside and outside the government; where documents reveal actions by officials or politicians that have the potential to undermine the constitutional democracy; or when the documents reveal actions which endanger the lives of citizens. This could all be made subject to a very carefully crafted limitations stating that this publication will only be justifiable if the public interest in publishing the information outweighs the interest of the state in keeping it secret.

Alternatively the Bill could state that where documents are wrongly classified to cover up corruption, illegal activity or activities that undermine democracy or where the classification was never justified in terms of the act (something that can be determined by a court on objective grounds), a person could not be prosecuted for leaking or publishing the documents. I prefer the first option but perhaps the second option would go some way to limit the far-reaching effects of this legislation.

Lastly, the sections on the Classification Review Panel will have to be redrafted, especially sections 22(3)-(5) and section 24. This panel is empowered to review classification decisions and in order for it to provide the intended safeguard against wrongful or criminal classification of documents, it would need to be absolutely independent. These sections allow the majority party in the National Assembly to appoint the panel and to remove any of its members. This means that the panel van never be perceived to be independent and will be prone to political manipulation. To fix these sections, it could be rewritten to allow for the appointed (and the removal) of members of the review panel by 75% majority of members of the National Assembly. Alternatively, some other mechanism requiring consensus of all the major parties in the National Assembly to appoint and remove the members of the Review Panel is needed.

I believe these amendments would go a long way to restrict the ambit of the Act and if these amendments are made by the NCOP (or by the National Assembly after the President has referred it back to the National Assembly because of its unconstitutionality) it might pass constitutional muster. If not, the President must not complain that the Constitutional Court unlawfully makes policy by declaring invalid acts passed by the Parliament when it finds aspects of this Bill unconstitutional. All that is needed is for cool heads to listen to sound advice. It was offered here and elsewhere. Now it must just be acted upon.

Who can we trust?

Nov 22nd, 2011

by Pierre De Vos.

166 comments

Very few people implicitly and unconditionally trust all government officials, all members of the cabinet and all the members of the intelligence services of their country. Few, surely, believe that they will always act scrupulously, honestly and in strict accordance to the law and the Constitution. (Hell, I am not even sure President Zuma fully trusts all his own ministers.)

One might well implicitly trust ministers and government officials if they belong to the politically party that one passionately supports. Thus, some DA members might blindly trust Helen Zille, while some ANC members might blindly trust Jacob Zuma. But very few of those DA supporters would blindly trust Zuma and very few of those ANC supporters would blindly trust Zille.

And whether one is a die-hard ANC supporter or a die-hard DA supporter, there cannot be too many people around who would blindly trust the members of the intelligence services (in other words the spies whose job it is to deceive, to keep secrets, and to obfuscate, all in the name of protecting national security). Given the way in which our spies have been implicated in various political plots relating to various ANC factions, only a fool will tell you that he or she believes our spies always respect the letter and the spirit of the law and always act honestly, and in the best interest of the Constitution and us citizens.

Most would worry that our spies might at some point act in the interest of one or other faction in the ruling party, in the interest of members of the police or the military (as some did in attempts to try and protect the corrupt former Police Commissioner) or merely in their own interest. After all, members of the intelligence service have often acted unlawfully and unconstitutionally over the past few years and quite a few were eventually fired as a result.

This is why a discussion of the dangers of the Protection of State Information Bill passed by the National Assembly today (and now to be discussed by the National Council of Provinces), raises difficult questions. On the one hand the Bill on its face is not nearly as draconian as members of the media keep arguing. The Bill represents a vast improvement on the truly draconian Bill first tabled in Parliament last year and — at least on paper — now contains many safeguards to protect us against the emergence of a secretive national security state or the abuse of the Bill to cover up corruption, maladministration and other kinds of criminality in government.

However, on the other hand, the Bill cannot be judged on paper only, but must be judged in the context in which spies and politicians have often been revealed over the past few years to be less than honourable and respectful of the law.

The problem with the new “improved” version of the Bill and the safeguards included in it, is that it assumes that we can blindly trust all government Ministers, state officials and spies to understand the intricacies (and seemingly contradictory aspects) of this Bill and to always apply it in accordance with this perfect understanding of the various provisions of the Bill. It also assumes that those who are empowered to classify documents and review the classification of documents will do so with one eye on the Constitution. Furthermore, it assumes rather optimistically, that the Minister of State Security (whose wife was recently convicted of drug running), other Ministers authorised to classify documents and the spies whose job it is so sow confusion, spread lies and generally to deceive others while hiding behind a cloak of secrecy, will not abuse their powers and will only act in accordance with the letter and spirit of the Bill.

Of course we know that a number of Ministers, including Defence Minister Lindiwe Sisulu and State Security Minister Siyabonga Cwele, have refused to answer questions about their travel costs and hotel stays on the grounds that this would compromise their personal security, displaying a rather authoritarian view on keeping secrets in the interest of so called “security” and abusing the excuse of security to evade accountability for possible wasteful expenditure (or worse). One will therefore have to be an eternal optimist to believe that Ministers, spies and other officials authorised by this Bill to classify documents as secret or top secret will not abuse that power at some point or another.

(And even if one is such an optimist as well as a member of the ANC, one should remember that no government remains in power for ever and that this Bill will one day also be applied by people who are not ANC members.)

Having said that, it is clear that the main aim of the Bill is not to protect Ministers or the government more generally from exposure for corrupt and other nefarious activities. Section 3(2) of the Act states that the classification, reclassification and declassification provisions of the Bill apply to the security services of the Republic (in other words, the Army, the Police and the Intelligence Services).

However Section 3(2)(b) also allows any organ of state (including any government ministry) to ask the Minister of State Security to empower them to classify documents that could supposedly threaten “national security”. If the Minister exercises this power prudently, the scope of the Bill will be much reduced. However, given the paranoid and defamatory statements by the Minister that those who oppose passage of the Bill are being funded by foreign spy agencies, and given that there is a serious question mark over the Minister’s probity and judgment, it is not clear that he will not abuse this power.

Section 12 of the Act states that state information may be classified as confidential “if the information is sensitive information, the disclosure of which is likely or could reasonably be expected to cause demonstrable harm to national security of the Republic”. State information may be classified as secret “if the information is sensitive information, the disclosure of which is likely or could reasonably be expected to cause serious demonstrable harm to national security of the Republic”, while state information “may be classified as top secret if the information is sensitive information, the disclosure of which is likely or could reasonably be expected to demonstrably cause serious or irreparable harm to the national security of the Republic”.

‘‘National security’’ is defined as including (and one therefore presumes, is not limited to) the protection of the people of the Republic and the territorial integrity of the Republic against the threat of use of force or the use of force; as well a hostile acts of foreign intervention directed at undermining the constitutional order of the Republic; terrorism or espionage; exposure of a state security matter with the intention of undermining the constitutional order of the Republic; and exposure of economic, scientific or technological secrets vital to the Republic. It explicitly excludes lawful political activity, advocacy, protest or dissent.

With the exception of the subsection dealing with economic or technological secrets, this list looks innocuous. But the list is not a closed list, which opens the door wide for any crook or authoritarian to abuse the provisions of this Bill to keep secrets relating to the undermining of democracy or the hiding of corruption. Moreover, this definition must be read together with section 14(3) of the Bill which states that those classifying Bills as secret must consider whether the disclosure may

expose the identity of a confidential source, or reveal information about the application of an intelligence or law enforcement investigative method, or reveal the identity of an intelligence or police source when the unlawful disclosure of that source would clearly and demonstrably damage the national security of the Republic or the interests of the source or his or her family;
clearly and demonstrably impair the ability of government to protect officials or persons for whom protection services, in the interest of national security,are authorised;
seriously and substantially impair national security, defence or intelligence systems, plans or activities;
seriously and demonstrably impair relations between South Africa and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the Republic;
violate a statute, treaty, or international agreement, including an agreement between the South African government and another government or international institution; or
cause life threatening or other physical harm to a person or persons.19

If a spy (or a Minister who wishes to hide the fact that he or she has been living it up at the Mount Nelson or has visited a girlfriend in a Swiss jail) read section 14(3) in isolation, he or she may well classify information that would clearly have very little to do with national security. What is therefore limited by the definition of “national security” might well be smuggled back into the act via the back door in section 14(3) of the Bill.

I can already imagine Minister Lindiwe Sisulu from pointing to the second bullet point above to justify the classification of all sorts of documents that might embarrass Ministers or might expose the corruption they have been involved in. Because the Bill is so complicated, it would be difficult to make plausible arguments in the public domain that the Minister is abusing the Bill. Some executive minded judges might even agree with the interpretation by a Police Chief (remember the two most recent ones have both fallen under the bus because of corruption), a Minister or a spy relying on section 14(3).

But this is not the end of the matter. Section 32(1) does provide a safeguard which could in certain circumstances be effective. It states that a person who wants to gain access to a classified document may apply to a court for appropriate relief after the requester has exhausted the internal appeal procedure against a decision of the relevant Minister of the organ of state in question. If one has every reason to know that a document exists (for example, that a document exists which sets out the cost of a Minister’s travel and Hotel stays) , this avenue will be costly but mostly effective (unless one is unlucky enough to have to argue one’s case before a slavishly pro-executive judge).

The problem arises where one receives a document that is classified and the only way one would have known of its existence is if one had been leaked the document. One must then immediately hand back the document to the Police before one can challenge the wrongful classification. If one fails to do so, one could be prosecuted and sentenced to jail. If one holds on to the document, the Minister might say that such a document does not exist and one would not be able to contradict him or her as this would amount to an admission of committing a crime. Moreover, how one would convince a court that a document should be declassified if one does not have access to the document, is not clear.

In short, on paper the Bill that was passed today is not as bad as many in the media argue. But in practice it might be devastating as it might protect our spies and our politician from scrutiny, the very scrutiny required to keep them on the strait and narrow. It might set us on the slippery slope towards a secretive national security state — as Steven Friedman argued today in Business Day. As an afterthought, it might also help to protect the venal and the corrupt.

Although safeguards do exist in theory, in practice these safeguards will often be illusory (especially for anyone without access to very clever lawyers and pots of money) unless those entrusted with applying the law will always act absolutely honestly, with brilliant insight into the law and with one eye towards the Constitution. The chances of this happening is about as slim as the chances of me winning the Miss World Competition.

This means, for example, that where activists of Abahlali baseMjondolo or the Landless People’s Movement are illegally targeted by the security services because they are perceived to be a threat to the ANC government and their phones are bugged, their houses attacked or their leaders tortured and murdered, it would be almost impossible for the organisation to prove this when all the documents that could do so are classified. Ironically, only the media will have the resources to expose such abuse of power, but this would require the media (targeted at middle class readers) to display far more concern for the well-being of these social movements whose interests do not always align with the interests of the middle classes served by the serious media.

In a state in which trust has been eroded, a Bill like the one passed today becomes even more scary than it otherwise would have been. The strong reaction of civil society to the Bill therefore says just as much about the specific provisions of the Bill than it says about the fact that the governing party and state institutions have squandered the trust and goodwill it had acquired over many years of struggle. No wonder the ANC politicians are so upset.

Mail & Guardian case raises difficult questions

Nov 19th, 2011

by Pierre De Vos.

28 comments

News that Presidency spokesperson Mac Maharaj’s attorneys laid charges against the Mail & Guardian and two of its journalists on Saturday, comes as a bit of a surprise. The Mail & Guardian reports that attorneys acting on behalf of Mac Maharaj, laid charges against Mr Sam Sole, Mr Stefaans Brümmer and the Mail & Guardian newspaper for contravening the provisions of section 41(6) of the National Prosecuting Act of 1998.

This follows the “censoring” of the Mail & Guardian on Friday after it wanted to publish an article based on in interview conducted with Mr Maharaj by the now defunct Scorpions while it was investigating charges of corruption against Maharaj in connection with the awarding of a tender to produce credit card drivers licences to a company associated with fraudster Schabir Shaik. (If you are sympathetic to Mr Maharaj, you might argue that the Mail & Guardian was not censored but merely forced to comply with the provisions of the NPA Act – as any law abiding citizen would be expected to do.)

Section 28 of the NPA Act empowers the NPA to summons any suspect or witness who is then required to appear and to testify truthfully about any matter relating to a criminal investigation. The suspect or witness is also legally required to produce any book, document or other object in his or her possession or under his or her control which he or she has been summoned to produce. A persons who fails to answer fully and to the best of his or her ability any question lawfully put to him or her; or who gives false evidence knowing that evidence to be false or not knowing or not believing it to be true, is guilty of a crime and if found guilty would be liable to a fine or to imprisonment for a period not exceeding 15 years or to both such fine and such imprisonment.

I have no idea what allegations were contained in the blacked out report in the Mail & Guardian. However, if the newspaper had information in its possession that Mr Maharaj had lied to the NPA, this would be an explosive development as it would mean that Mr Maharaj had committed a crime for which he would be liable to a sentence of up to 15 years in jail. It would then clearly be in the public interest to publish this information because one has a legal duty to report the commission of a crime (and a cover up by the NPA or the Police who had failed to pursue it). If the newspaper has information which proves that there was a discrepancy between Mr Maharaj’s testimony and the proven facts, Mr Maharaj would have no leg to stand on.

However, if the report dealt with allegations levelled against Mr Maharaj during the criminal investigation, allegations which were never pursued in a court of law, the newspaper would be on more shaky grounds and Mr Maharaj might have been justified in stopping the newspaper from publishing its report. There are good reasons to prohibit the publication of documents in possession of the NPA or of the interview conducted with suspects and witnesses in terms of section 28 of the NPA Act. Confidentiality would normally be required to protect the NPA and to safeguard its work to ensure the successful prosecution of criminal offences. If documents and information dealing with a criminal investigation that is in possession of the NPA are routinely leaked, it would make it almost impossible for the NPA to do its job properly and may well sabotage criminal investigations and prosecutions — which would lead to many criminals being left off the hook.

Confidentiality also allows witnesses and suspects to speak truthfully to the NPA when they are interviewed without fear of having their words twisted or of being exposed unfairly by a newspaper for something the suspect might never have done. Publishing untested allegations against a person — especially if it emanates from a supposedly credible source like the NPA – could well ruin that person’s reputation. Where the information is credible and corroborated by various sources or by authentic documents, the situation will of course be very different and a newspaper will then more often than not be justified in publishing the documents — even if it risks damaging the reputation of the suspect. (That is why the Mail & Guardian could surely not be faulted for publishing information about the encrypted fax which implicated President Zuma in criminal activity.) However, where the allegations are not credible or backed up by other evidence, the suspect would need to be protected and confidentiality would have to be respected.

I have to admit that providing for a 15 year sentence to be imposed on anyone breaching these provisions is rather draconian, but any court asked to sentence a person found guilty of this section would surely take this into account and will never impose such a harsh sentence — unless the judge has absolutely no sense of justice or fairness and the values of openness and transparency enshrined in the Constitution.

Section 46(6) of the NPA Act prohibits an NPA investigator from disclosing to any other person any information which came to his or her knowledge in the performance of his or her functions as an investigator. The section also prohibits any person from disclosing to any other person the contents of any book or document or any other item in the possession of the prosecuting authority (such as the infamous encrypted fax which implicated Jacob Zuma in bribery and corruption); or the record of any evidence given at an investigation done in terms of section 28 of the Act.

The National Director of Public Prosecutions can, however, give permission for such a disclosure. One assumes that this is what happened when the content of the encrypted fax implicating President Zuma was leaked to the Mail & Guardian and then published in that newspaper. If it was not, then the newspaper committed a crime that could have landed its journalists and editor in jail for 15 years.

A court of law can also require a person to hand over the above information or to disclose it. It is unclear whether the Mail & Guardian could rely on this section to approach a court for an order allowing it to publish the alleged incriminating evidence against Mr Maharaj. In the context of the Act, it might well be that this provision relates to the power of a court to order the release of information to other affected parties (like the accused) or to the court itself. I suspect the Mail & Guardian would not be able to rely on the right to freedom of expression to argue that a court has a duty to order the Mail & Guardian to disclose the information. That would be a rather novel interpretation of the section.

At the same time, the section does NOT prohibit anyone from possessing the said documents or from being in possession of information about the interview conducted in terms of section 28 of the NPA Act. This means the provisions of the NPA Act differ markedly from the provisions of the (still) rather draconian Protection of State Information Bill, which criminalises the mere possession of secret documents. Mr Maharaj is therefore barking up the wrong tree when he says the newspaper committed a crime. The newspaper would only have committed a crime if it had disclosed the content of the interview, something which it did not do because Mr Maharaj’s lawyers stopped them from doing so.

A question that arises is whether section 41(6) of the NPA Act may be declared unconstitutional. It clearly infringes on the right to freedom of expression as it prevents newspapers from publishing information about public figures like Mr Maharaj – even when such information may expose the public figure as a criminal or cast doubt on that persons probity or honesty. The only question would be whether the section is nevertheless constitutes a justifiable limitation on the right to freedom of expression in terms of the limitations clause contained in section 36 of the Constitution.

I suspect the issue here is not as clear cut as the Mail & Guardian suggests. As I noted above, there are very good reasons for protecting the confidentiality of NPA documents. However, I nevertheless suspect that there might well be a problem with the constitutionality of section 41(6) of the NPA Act. It places an absolute ban on the disclosure of the information and prescribes a maximum sentence of 15 years for anyone contravening the section. It does not allow for any exception to be made — even when the disclosure would be in the public interest and even when disclosure would be mandated by law (as our law places a legal duty on anyone to report the commissioning of a crime).

It is true that the National Director of Public Prosecutions (NDPP) may waive this provision if he believes that this would be appropriate. However, there is dark cloud hanging over the current NDPP and his credibility, honesty and respect for the law and the Constitution has been questioned by the Ginwala Inquiry and by our courts. The SCA may well soon find that his appointment was unlawful. In these circumstances, and given the fact that the President appoints the NDPP (the very President whose spokesperson is allegedly implicated in the Mail & Guardian story), the safeguard involving the NDPP might be illusory and of no use. In fact the safeguard may well be abused by a NDPP who might only allow the disclosure of documents relating to criminal investigations against individuals (inside and outside the governing party) who happened to be political opponents of the President.

Although this is a relatively close call, I would guess the Constitutional Court will find that the section is not justifiable in terms of the limitation clause because it is over-broad. A more limited provision, providing for confidentiality in most cases but also creating a more credible safeguard to ensure the confidentiality provision is not used to protect liars and crooks from exposure, might be required to safe the section from unconstitutionality. But the case may well go the other way in some of our courts. Judges who are not imbued with the values of openness and transparency, who take for granted the integrity and honesty of the NDDPP or are overly executive-minded, might well find this provision justifiably limits the right to freedom of expression as it allows the NDPP to allow for publication.

No wonder the editor of the Mail & Guardian did not publish the information which would have forced him to take his chances in court later on. He was probably advised that there is a real risk that he would be convicted and sentenced to imprisonment and that it was not an absolute certainty that a challenge to the impugned section would be successful.

On freedom of expression and the censorship of magazines

Nov 2nd, 2011

by Pierre De Vos.

25 comments

When Chief Justice Mogoeng Mogoeng was nominated to that position, it was revealed that he happened to be a pastor in a Church that propagated hatred against certain segments of society and also espoused views that were so bizarre and so blatantly untrue that it would be difficult for a reasonable person of moderate intelligence not to conclude that the Church is run by a bunch of money-grabbing charlatans.

Although some questions were asked about his membership of this Church (whose doctrine might even be more bizarre than, say, the doctrine of the Dutch Reform Church, where a decision was recently taken that believing in the Devil was optional but that dominees had the right to drive out the very Devils their fellow dominees had a right not to believe in), the members of the Judicial Service Commission (JSC) hardly gave him a grilling on issues which really mattered: his judicial philosophy and his knowledge and understanding of the Constitution and the jurisprudence of the Constitutional Court.

No one asked the nominee whether he agreed with the Justice Moseneke or Justice Mokgoro judgments in the Van Heerden case (which dealt with affirmative action in marginally different ways); or whether he agreed with Justice Sachs and O’Reagan or with Justice Skweiya in the Volks v Robinson case (dealing with the rights of unmarried long term heterosexual partners); or whether he agreed with the reasoning of Sachs in the Fourie judgment (on same-sex marriage).

Neither did anyone ask Justice Mogoeng how he would explain the difference in approaches taken by the Constitutional Court in the Mazibuko case (dealing with an unsuccessful challenge to the installation of pre-paid electricity meters) and the Joseph case (in which the court declared invalid the cutting off of electricity); or whether he believed that freedom of religion should always trump the right not to be discriminated against and if not, on what basis one should decide when the one right trumped the other; or whether he believed that the value of ubuntu (not actually found in the text of the 1996 Constitution) should sometimes trump the right of freedom of expression and if so according to what set of criteria.

(This is not a criticism of the Chief Justice. After all, he had no obvious choice in what members of the JSC would ask him and, for all I know, he might have answered all the proposed questions in an intelligent and enlightening manner. Rather it is a criticism of the members of the JSC, who has seldom asked informed and intelligent questions of candidates appearing before them.)

As a result, although we now know that our new Chief Justice does not take kindly to criticism, we have no clue whether he has the requisite knowledge of the constitutional jurisprudence of South Africa required to be a passable Chief Justice. Nor do we know whether he has the ability to analyse complex constitutional issues in a nuanced, intelligent and principled way.

Well, a test case will reach the Constitutional Court next year that might well reveal something about the values and legal abilities of our new Chief Justice (if – unlike in the Dey case – he decides to write a judgment in this case at all). Last week the South Gauteng High Court, in a judgment written by Judge R Mathopo, declared invalid recent amendments to the Film and Publications Act in the case of Print Media South Africa and Another v The Minister of Home Affairs and Another. The declaration will now have to be confirmed or rejected by the Constitutional Court.

The newly amended section 16(2) of the Film and Publications Act requires any publication – except newspapers who fall under the press ombudsman – to submit themselves to pre-publication censorship with the Film and Publication Board if their publication contains “sexual conduct” which, inter alia, violates or shows disrespect for the rights to human dignity of a person; degrades a person or advocates hatred. Sexual conduct is widely defined in the Act to include all kinds of depictions (and, seemingly, descriptions) of sexual situations. A failure to submit to pre-publication censorship would constitute a criminal offense in terms of section 24A of the Act.

Unfortunately the amendments to the Films and Publications Act were very badly drafted, to say the least, and there was some dispute between the parties about whether section 16(2) would apply to magazines and novels containing descriptions or allusions to sexual conduct or only to publications that contained actual visual depictions of said sexual conduct.

The applicants argued that it did refer to both types of depictions of sexual conduct and provided examples from various novels and magazines like Huisgenoot, Drum and You and foreign magazines like Vanity Fair, Time, and The New Yorker (only one of which I, admittedly, personally subscribe to) to demonstrate that these publications included descriptions of sexual conduct that complied with section 16(2). The High Court agreed with this view, suggesting that the publisher of widely read novels (such as Disgrace, say), and any number of other award winning works of fiction would be required to submit the work to the Film and Publication Board for pre-publication classification or censorship.

The Minister argued that even if this was so, this did not constitute an infringement on freedom of expression because in most cases the magazines or novels would not be prohibited, but would only be properly classified, which would allow it to be sold in the correct venue under the right conditions. This would be done to protect children and to assist adults to make informed choices about what kind of depictions of sexual conduct they wished to be exposed to when they read smutty magazines like the New Yorker or smutty novels like Disgrace.

Although the judgment is not a model of clarity and coherence, it finds (as far as I can tell) that these sections would indeed impose a severe restriction on the right to freedom of expression of everyone in society. As there was no indication how long it would take before pre-publication classification would be concluded and as practical considerations might well force publishers to censor themselves before they even publish anything, the freedom of expression of everyone would be drastically interfered with by this section. This amounted to prior restraint, which was severely criticised by the Supreme Court of Appeal in the Midi Television judgment.

It is a constitutional imperative that society or public must receive current or fresh news as soon as possible. Any delay because of bureaucratic means amounts to a limitation on freedom of expression….. News is a perishable commodity and to delay even a shorter period may well deprive it of its value and interest.

Democracy cannot survive in the absence of freedom of expression and while the right is not absolute there are other, less restrictive, means that could have been used to achieve the goal of protecting children. For that reason these sections were declared unconstitutional.

The Constitutional Court will now have to decide whether the High Court was correct to give this broad interpretation to section 16(2) of the Act and whether the infringement on freedom of expression sanctioned by this section was justifiable in terms of the limitation clause.

I would imagine that for individuals and judges who strongly believed that God would judge one harshly if one allowed society to degenerate into a cesspit of pornography and gratuitous descriptions of sexual lust, this section would come as a godsend, so to speak. For those who believed that sex was often a dirty thing, that sexual conduct should only happen between one man and one women who are married in the eyes of God and wanted to make babies for Jesus, and who believed that through prayers a baby could be brought into the world after the mother had been pregnant for five years and seven months, section 16(2) of the Act might appear rather benign. After all, one might argue that the limitation on freedom of expression imposed by this section could be justified in order to protect the broader society from the evil and disgusting depictions of sex in smutty magazines like The New Yorker.

But for individuals and judges – people like judge Mathopo and the long line of judges from the Constitutional Court – who embrace the notion that freedom of expression is at the heart of a vibrant democracy and that pre-censorship would only be justifiable in the most extreme cases, this section would clearly be overbroad and not justifiable.

It will therefore be interesting to see how the various judges of the Constitutional Court deal with this case.

Now angels can’t even have sexual feelings

Oct 26th, 2011

by Pierre De Vos.

55 comments

The printed media in South Africa, under pressure from the government and the ruling party, has touted self-regulation via the Press Ombudsman as a model of how to deal with complaints from the public about unethical, untrue or sloppy journalism. But self-regulation is not always a success, especially where the code in terms of which such regulation is conducted is vague or where the code fails to embody the values associated with an open and democratic society in which freedom of expression is respected and the principle of diversity is celebrated.

A recent decision by the Advertising Standards Authority of South Africa (also known as the ASA) demonstrates this point rather starkly. ASA is an independent body set up and paid for by the marketing communication industry of South Africa tasked to regulate the advertising industry of South Africa.

Last week it ruled in favour of Mr Dawie Theron, who lodged a complaint against a television commercial for Axe deodorant. The commercial opens with a little boy witnessing a winged creature falling from the sky. Following this, many more of these creatures are shown falling to earth, ultimately getting up and approaching a man who is somewhat unsure of what is happening. The closing scene shows the man spraying the deodorant and a subsequent thud sound is heard. The voice over says, inter alia, “New Axe deodorant. Even angels will fall.” The text on screen states, “EVEN ANGELS WILL FALL.”

In essence, Mr Theron said that he was offended by the use of angels in the commercial. The fact that these winged creatures fall from the sky suggests that they are heavenly creatures. According to the Bible, angels are God’s messengers, and the suggestion that angels will fall for a man wearing this deodorant is incompatible with his belief as a Christian. (I am not sure whether Mr Theron was also perhaps uneasy because angels are usually depicted as men and that the advert could hence be seen to promote homosexuality if one was really paranoid and easily offended.)

ASA invoked the following rule to justify its decision:

No advertising may offend against good taste or decency or be offensive to public or sectoral values and sensitivities, unless the advertising is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

In its ruling ASA acknowledged that South Africa was a multi-cultural society and recognised that it is important to ensure that all religious faiths and beliefs, no matter how large or small the communities that practice them, are treated with the same consideration and respect. Noting that the ”commercial is metaphorical and that the angels are meant to represent something more than simply beautiful women” (the power of deduction is quite impressive!), ASA found that “the commercial sets out to communicate that the new Axe fragrance is so irresistible that even angels will be enticed by it”. It then went on to provide the following reasons for banning the advert:

An angel, according to Christian beliefs is God’s heavenly messenger who obeys His commands. Angels also symbolise purity and goodness while “fallen angels” symbolise wickedness. Fallen angels are generally as angels that rebel against God, and are permanently banned from God’s glory and presence. The Directorate is also mindful of the fact that the angels are not simply coming to earth, or descending on earth, but falling, effectively crashing to earth, which supports the notion that they are fallen angels, presumably banished. When it becomes apparent that they are falling from heaven over a man who wears this deodorant would be considered disrespectful and offensive to the core beliefs of Christians, as angels are known to be celestial beings regarded as divine and pure. The commercial therefore communicates that saintly creatures would give up their heavenly status and fall from grace for a man… As such, the problem is not so much that angels are used in the commercial, but rather that the angels are seen to forfeit, or perhaps forego their heavenly status for mortal desires. This is something that would likely offend Christians in the same manner as it offended the complainant.

In coming to its decision ASA failed to take into account sub-clause 2 of the same part of the code which states:

Advertisements should contain nothing that is likely to cause serious or wide-spread or sectoral offence. The fact that a particular product, service or advertisement may be offensive to some is not in itself sufficient grounds for upholding an objection to an advertisement for that product or service. In considering whether an advertisement is offensive, consideration will be given, inter alia, to the context, medium, likely audience, the nature of the product or service, prevailing standards, degree of social concern, and public interest.

If it had taken this clause into account, it would at the very least have asked whether a reasonable Christian (of who, I am told, there are many) would have been offended by the advert. It would not have asked whether the particularly narrow-minded and easily offended segment of the Christian population would have found the advert offensive, but would have asked instead whether the advert would have caused serious and widespread offensive.

It also failed to interpret the code against the background of the South African Constitution as, I would argue, it was required to do. If it had been a bit more sober and informed, ASA might have known that the Constitutional Court in the Islamic Unity Convention case endorsed the idea that the right to freedom of expression is:

applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. . . . . Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.

Of course, the standard that should apply to advertisements flighted on television might be stricter than the standard applied to other kinds of speech in the public arena. Viewers cannot easily tune out of adverts they find offensive and it would therefore be permissible to restrict the kinds of themes that can be relied upon in adverts targeted at television audiences.

But this does not mean that it should cave in to the bizarrely thin-skinned viewers who are so easily offended when an advert contains any material with which he or she does not agree. A code regulating advertising cannot endorse close-mindedness or the unhinged personal feelings of some South African who demand that their personal beliefs are so precious yet so frail that these beliefs had to be protected at all cost.

The logic of this ruling would lead ASA to ban adverts for many churches and other religious organisations. Although I am personally not easily offended, I imagine that many atheists would feel deeply offended every time they have to watch an advert (talk about false advertising) that says one will burn in hell if one did not follow the Lord Jesus or states that only that religious group has the answer to what constitutes a meaningful life on earth.

In an open and democratic society based on human dignity, equality and freedom, it is impossible to protect every person from ever feeling offended — even by adverts. If we are going to prohibit adverts on the basis that it offends one or two religious crackpots, we will not have many adverts flighted on television or the radio.

Confronted by the “reasoning” of ASA, one cannot but suspect that the person who made this decision is himself a rather intolerant Christian who believes that the values of a narrow band of people should be enforced on all of us. This is not the kind of open society envisaged by our Constitution, but a society in which the beliefs and feelings of a few people dictate to the rest of us.

What shall we do about the Reverend?

Oct 21st, 2011

by Pierre De Vos.

80 comments

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

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

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

Asked about his comments he said:

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

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

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

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

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

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

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

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

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

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

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

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

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

A problematic limitation on the right to freedom of assembly

Oct 6th, 2011

by Pierre De Vos.

151 comments

One of the most effective ways in which South Africans – through organisations like the UDF and Cosatu – could mobilise support for the anti-apartheid struggle in South Africa and could demonstrate its resistance to the continued existence of an illegitimate state was through protest marches and demonstrations. No wonder that the apartheid state tightly regulated such marches and often banned them outright. During the various States of Emergency in the nineteen eighties “illegal” protest marches were often broken up violently by the police who used teargas, rubber bullets, water cannons and live ammunition to stop citizens from protesting against the National Party regime.

In order to “normalise” political activity in South Africa in preparation for the first democratic election, the apartheid Parliament adopted the Regulation of Gatherings Act 205 of 1993. This Act for the first time affirmed that citizens had a right to take part in demonstrations and protest marches and provided for an elaborate procedure — requiring negotiations between the authorities and the organisers of a march or a demonstration — to ensure that such demonstration and marches were conducted in an orderly fashion to ensure that these marches and demonstrations caused the least disruption to other members of the public.

The right “peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions” was also enshrined in section 17 of South Africa’s 1996 Constitution. This right is pivotal for the proper functioning of a democracy. If political organisations, civil society groups and members of the public are not free to demonstrate and to take part in protest marches, the participatory aspect of our democracy would be fatally weakened. We vote every five years, but we get to participate in our democracy in the five years in-between elections, amongst others, by taking part in demonstrations and protest marches.

It is against this background that a recent judgment of the Supreme Court of Appeal in the cash of The South African Transport and Allied Workers Union v Garvers and Others must be evaluated. The case dealt, amongst others, with the question of whether a Union under whose auspices a gathering or demonstration was held and then degenerated into a riot causing damage to others could be held liable in terms of the Gatherings Act.

The respondents in this cased sued the South African Transport and Allied Workers Union for damages in terms of section 11(1) of the Act because of damages which resulted from a Union march held in 2006. The march in the Cape Town City Bowl arose out of a protracted strike in the security sector by members of the Union. As the march proceeded, in the Union’s own words, it “descended into chaos”, with admitted extensive damage caused to vehicles and shops along the route.

Section 11(1) of the Act states that “[i]f any riot damage occurs as a result of a gathering, every organisation on behalf of or under the auspices of which that gathering was held, or, if not so held, the convener; a demonstration, every person participating in such demonstration, shall, subject to subsection (2), be jointly and severally liable for that riot damage which occurred”. Riot damage is defined as “any loss suffered as a result of any injury to or the death of any person, or any damage to or destruction of any property, caused directly or indirectly by, and immediately before, during or after, the holding of a gathering”.

The potentially broad scope of this section is somewhat limited by section 11(2) of the Act which sets out three factors that a defendant to such an action has to prove in order to escape liability for the damage caused by the marchers. Section 11(2) reads as follows:

It shall be a defence to a claim against a person or organisation contemplated in subsection (1) if such a person or organisation proves (a) that he or it did not permit or connive at the act or omission which caused the damage in question; and (b) that the act or omission in question did not fall within the scope of the objectives of the gathering or demonstration in question and was not reasonably foreseeable; and (c) that he or it took all reasonable steps within his or its power to prevent the act or omission in question: Provided that proof that he or it forbade an act of the kind in question shall not by itself be regarded as sufficient proof that he or it took all reasonable steps to prevent the act in question.

In defending the action, the Union (in addition to denying liability in general terms) also contended that s 11(2)(b), particularly the part highlighted above, places too great a burden on trade unions and other organisations and individuals who intended to assemble to protest publicly. It was submitted that it has a chilling effect on the rights set out in s 17 of the Constitution.

In other words, the Union argued that faced with the onerous task of proving what is required by s 11(2)(b), unions, other organisations and individuals would be deterred from organising marches, protests and other gatherings for fear of financial ruin. Section 11(2)(b) was unconstitutional in that it offended against the right entrenched in s 17 of the Constitution. Because the onus was placed on the organisers of the march to prove all three requirements set out in section 11(2) and because this would be difficult to do, the section would — if regularly invoked — prevent organisations from holding legitimate protest marches and demonstrations for fear of facing financial ruin.

The SCA, in a judgment written by Navsa JA, rejected these arguments. The Court argued that this section did not differ much from the common law position. In terms of our common law, liability ensues if a reasonable person or institution would foresee the reasonable possibility that the conduct would injure another in his person or property; would take reasonable steps to guard against such an occurrence; and the defendant failed to take such steps. Despite the fact that section 11(2) states that an organisation would need to prove the existence of all three factors mentioned, Navsa JA stated:

Apart from being couched in the negative, because it relates to the setting up of a defence, I have some difficulty in understanding why the provisions of s 11(2)… differ radically or even significantly from the common law requirements for liability for negligence. It was submitted that the conjunctive nature of the provisions of s 11(2) (b) relating to a defendant was especially pernicious, because at common law all a defendant needed to show to escape liability, when sued in a delictual action based on negligence, was that a reasonable person in his or her position would not have foreseen the reasonable possibility of his or her conduct injuring another in their person or property, causing damage to be sustained. The absence of that factor alone would usually mean that a defendant would escape liability. Even though the conjunctive nature of the defence set out in s 11(2)(b) of the Act, on the face of it, seems burdensome one can only take reasonable steps in respect of conduct that is reasonably foreseeable. It does appear that unless the act complained of ─ leading to the riot ─ was reasonably foreseeable, a defendant would probably in all of the instances set out above escape liability. One can only take steps to guard against an occurrence if one can foresee it.

I am not sure this is a plausible argument. What happens in a case where the riot was not reasonably foreseeable but the Union was unable to prove that it connived in the (not reasonably foreseen) act or omission which followed and which caused injury or damage to property? What happens if the riot was not reasonably foreseeable but the Union was unable to prove that when it occurred it took all reasonable steps to stop it? For example, where a Union organises a march and reasonably believes that the march would be peaceful and this belief turns out to be wrong, it would still have to prove that during the march it did everything it could to prevent the march from turning into a riot and did not — trough omission — “allow” the riot to ensue.

It seems to me this would indeed be very difficult to prove as one would have to prove that one has done certain things and that one has not done other things.

There may be good policy reasons to place such a heavy burden on the organisers of a march and such policy reasons may come into play when deciding whether the limitation of the right to assembly has been justifiable in terms of the limitation clause. But to find, as the SCA did, that this section places no limit on section 17 at all does not seem plausible to me. At the very least, a plausible judgment would have had to find that section 11 of the Gatherings Act places a limitation on the right to assemble peacefully but that this limitation was justifiable in terms of the limitation clause.

The SCA pointed out that section 17 only protects peaceful and unarmed marches. However, the impugned section deals exactly with situation where a peaceful and unarmed march turns nasty. Would an organisation not think twice before organising what it believes will be a peaceful march because of a fear that it would be held liable for damages that might occur because a peaceful march turns ugly? Would this not have a “chilling effect” on the right guaranteed in section 17? This is exactly what the Union argued in this case, but the argument was dismissed by the SCA:

The chilling effect of s 11(2)(b)described on behalf of the Union is not only unsubstantiated but is contradicted by the police and the City of Cape Town, who presented unchallenged evidence that in their extensive experience the provisions of the Act have not deterred people from public assembly and protest. If anything, the regularity of public assembly and protest in the 15 years of the existence of the Act proves the contrary. The chilling effect that the provisions of the Act should rightly have is on unlawful behaviour that threatens the fabric of civilised society and which undermines the rule of law. In the past the majority of the population was subjected to the tyranny of the state. We cannot now be subjected to the tyranny of the mob.

I am not sure this is a plausible argument either as the provisions of section 11 of the Act have seldom if ever been invoked. If the provisions of section 11 are invoked regularly it may well have a chilling effect on the freedom of organisations to hold peaceful marches. In a different political climate in which Unions find themselves in opposition to the government of the day, this section may well be invokers by that government to harass and even destroy the union involved. On reflection, I am therefore not so sure that section 11(2) should have been found to be constitutionally valid at all.

I am not contending that it should not be possible to hold the organisers of marches liable for damage that occurs during a march. Clearly, organisers of marches should be held liable for irresponsible and reckless behaviour by march organisers that lead to injury or damage to property. This would be necessary to ensure that citizens are not subjected to “the tyranny of the mob”.

But by doing so by placing a reverse onus on march organisers to prove that it could not reasonably have foreseen the damage and that it had not taken all reasonable measures to prevent the damage, section 11 limits the rights of ordinary citizens in a sweeping manner. Surely the same goal may be achieved by using less restrictive means?

I would imagine that many South Africans tired of the lawless behaviour of some union members would applaud this judgment. But I am worried that this section might well be open to abuse by a government hell bent on repressing dissent.

If a strong social movement rises up in South Africa and mounts increasingly large protest marches against service delivery problems, corruption, police brutality and state repression, such a movement may be hamstrung or even destroyed by the state who could invoke this section against the movement who may genuinely have lost control of protestors at a march organised by it.

The movement will then have to come to court and prove that a riot was not reasonably foreseen, something that might be difficult to do if the police is known to be highly antagonistic towards the marchers or if it is foreseen that fanatic supporters of the ruling party was out to sabotage the march by provoking marchers. It might then be reasonably foreseen that marchers will be provoked by the police or by citizens to try and get them to riot, which would mean that march organisers will then be held liable for any damage caused.

This is not an easy issue, but I fear that the SCA has only considered the current political situation and its judgment may have been clouded by its impatience with the irresponsible behaviour of some union leaders. When one considers the constitutionality of a legal provision one has to look past the present towards the future and should ask whether — in different circumstances — the impugned provision would still be viewed as so harmless. In this case, I am far from sure that it would.

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