Constitutional Hill

Freedom of expression

Pistorius and the controversial Twitter ruling: questionable at best

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

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

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

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

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

However, he proceeded to make the following observation:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

All hail independent thought

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Twitter has changed all this.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Campaign fever: the ground rules

On Friday President Jacob Zuma announced that South Africa would go to the polls on 7 May this year. In the next three months political parties campaigning for our “dirty votes” (to quote a certain Premier) will promise us the world (and give some of us the odd T-shirt or food parcel) while accusing their opponents of the most shocking motives and vilest behaviour. It may therefore be helpful to familiarise ourselves with the ground rules of political campaigning set out in the Electoral Act before the fun starts in all earnest.

In South Africa, the legal rules governing the conduct political parties and the electoral behaviour of members of political parties are surprisingly permissive. Perhaps because post-Apartheid elections have so far been relatively peaceful, because the main political parties in the past have not advanced any truly controversial or radical policies and because the outcome of the election had never been in doubt, the election rules do not place major restrictions on what political parties and candidates may say and do during an election campaign.

For example, there are no rules regulating the raising or spending of money by political parties, either before or during an election. In theory this means a political party could receive a donation of R10 billion from the CIA, from the Chinese government, from an arms manufacturer or from a large mining company and can spend all that money on an election campaign in exactly the manner the party sees fit.

Furthermore, unlike in some democracies (like Germany), at present South African electoral law does not prohibit a political party from advocating the overthrow of the democratic system of government or from advocating the illegal and undemocratic suspension of the Constitution.

A political party who promises voters that it will undemocratically and unlawfully suspend the Constitution and will never conduct democratic elections again “to protect the revolution” are just as free to campaign as parties who pledge their solemn support and allegiance to the Constitution.

There is therefore currently nothing in the electoral Act that would disqualify Julius Malema’s Economic Freedom Fighters (EFF) from taking part in the election because a clause in its Constitution states that:

The basic programme of the EFF is the complete overthrow of the neo liberal anti-black state as well as the bourgeoisie and all other exploiting classes; the establishment of the dictatorship of the people in place of the dictatorship of the bourgeoisie and the triumph of socialism over capitalism. The ultimate aim of the EFF is the realisation of socialism through people’s power and the establishment of a state that responds to the needs of its people.

When the EFF in effect promises to ignore the Constitution by expropriating land without compensation (in conflict with the provisions of section 25 of the Constitution), this is similarly not in conflict with the electoral laws.

However, in terms of section 16 and 17 of the Electoral Commission Act, the Electoral Commission must refuse to register a political party or must cancel the registration of a political party if the name, abbreviated name, or symbols of the party

portrays the propagation or incitement of violence or hatred or which causes serious offence to any section of the population on the grounds of race, gender, sex, ethnic origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language; or which indicates that persons will not be admitted to membership of the party or welcomed as supporters of the party on the grounds of their race, ethnic origin or colour.

This section does not refer to the Constitution or policies of the political party. Nor does it refer to the utterances of its leaders or members – only to the various forms of its name and its symbols.

This means a political party cannot be deregistered in terms of these sections of the Electoral Commission Act because its leaders engage in hate speech or make statements that upset certain sections of the public. The leaders may, of course, be found to have contravened the hate speech provision of the Equality Act and may be prohibited by the Equality Court from indulging in forms of hate speech.

Every party contesting the election and every candidate taking part in the election is required to subscribe to the Electoral Code of Conduct and is legally required to comply with it.

Every registered party must also instruct its candidates, persons who hold political office in the party, and its representatives, members and supporters, to comply with the provisions of the Code and the applicable electoral laws. Candidates have a similar obligation to instruct their representatives and supporters to comply with the Code. It is highly debatable whether political parties and their leaders do enough to ensure that everyone is familiar with the provisions of the Code.

However, the Code of Conduct focuses narrowly on the kind of statements and conduct of political parties and candidates that could actually may have a negative effect on the peacefulness, freeness and fairness of the election. Within these parameters the Code allows political parties and their candidates a wide margin of appreciation to say and do what they want to impress or sway voters.

Quite frankly, it’s a bit of a free-for-all.

Thus the Code prohibits registered parties and candidates from using language or from acting in a way that may provoke violence during an election. This section is narrowly tailored and does not refer to hate speech or other forms of incendiary or hurtful or harmful speech that might target a specific group based on their race, sex, gender, sexual orientation, belief or opinion.

These permissive provisions of the Code of Conduct thus allow robust, forceful – even painful and (for some) scary – political rhetoric to flourish during an election campaign, perhaps in the belief that such forceful electioneering will allow voters freely to make up their own minds on who to vote for (or not to vote for), unhindered by the heavy hand of an election censor.

For example, if a candidate for the African Christian Democratic Party (ACDP) – does the party still exist? – were to channel his or her inner bigot by railing against “perverted   homosexuals”, there is nothing in the Code of Conduct that would prohibit such speech.

Similarly, if an EFF candidate were to warn that the “honeymoon is over for whites”, this too won’t fall foul of the Electoral Code.

The Code is far stricter in regulating the behaviour of parties and candidates in order to ensure that voters are not intimidated, misled or bribed to vote for a specific party. Once again the aim seems not to limit robust and event rambunctious campaigning, but rather to prevent an abuse of the system.

The Code thus prohibits registered parties and candidates from intimidating other candidates, members of parties, representatives or supporters of parties or candidates, or voters. Publishing false or defamatory allegations about a party, its candidates, representatives or members is also prohibited.

A much-abused section of the Code prohibits any person from offering “any inducement or reward” to another person to join or not to join a party; to attend or not to attend a public meeting, march, demonstration, rally or other public political event; to vote or not to vote, or to vote or not to vote in any particular way; or to refuse a nomination as a candidate or to withdraw as a candidate.

This means political parties who offer potential voters free food, free T-shirts, free panties or other free goodies to lure them to rallies or other election events act in breach of the Code. However, this section is difficult to enforce because political parties argue that the free food or T-shirts are not given as “inducement or reward” to lure people to rallies, but are handed out to voters who would have attended the rallies in any case.

Political parties can probably only be pursued for breaching this section of the Code if the inducement or reward is provided to the potential voter before he or she arrives at the rally.

(Section 87 of the Act also prohibits anyone from intimidating a voter to vote or not to vote for a political party or to attend or not to attend its rallies.)

The Code, aiming to ensure peaceful campaigning, also prohibits any person from carrying or displaying arms or weapons at a political meeting or in any march, demonstration, rally or other public political event.

In practice, the biggest challenge to conducting a free and fair election at grassroots level is the political intolerance displayed by the supporters of one political party against other political parties. For this reason the Code of Conduct prohibits any person from unreasonably preventing any other person access to voters for the purpose of voter education, collecting signatures, recruiting members, raising funds or canvassing support for a party or candidate.

All these provisions are difficult to enforce against political parties and those who work formally or informally to promote the interests of a specific political party across the vast expanse of South Africa. The law, alas, is a blunt instrument to create and enforce a tolerant political culture.

But in theory the law can be used to protect the space within which free and fair campaigning can take place. The Electoral Court plays an pivotal role in this regard. It has wide powers to “impose any appropriate penalty or sanction” on a person or party who contravenes the provisions of the Act or the Code of Conduct when it believes it is in the “interest of a free and fair election”.

In terms of section 96 of the Electoral Act such penalties and sanctions can include: a formal warning; a fine not exceeding R200,000; and the forfeiture of any deposit paid by that person or party.

The Electoral Court may also issue an order prohibiting that person or party from using any public media; holding any public meeting, demonstration, march or other political event; entering any voting district for the purpose of canvassing voters or for any other election purpose; erecting or publishing billboards, placards or posters at or in any place; publishing or distributing any campaign literature; electoral advertising; or receiving any funds from the State or from any foreign sources.

The Electoral court even has the power to issue an order reducing the number of votes cast in favour of an offending person or party; an order disqualifying the candidature of that person or of any candidate of that party; or an order cancelling the registration of that party.

In theory this means that where a political party or its representatives systematically abuse the system and refuses to adhere to the Electoral Act and its Code it can effectively be disqualified from the election by having its registration cancelled. This is an extreme sanction which may affect the legitimacy of the election and I would be surprised if the Electoral Court ever makes use of this power.

Ideally political parties themselves should promote political tolerance and should educate their members about the need to adhere to the provisions of the Electoral Code. Whether they always have the political will to do so is another matter.

Let’s talk about freedom of speech

It’s time to talk about the right to freedom of expression and the fake arguments about alleged infringements of this right, which are often advanced by those who are used to have their own opinions heard and respected, but are not used to having their arguments confronted or even ridiculed in heated debate.

In a constitutional democracy, debates, arguments and other forms of disagreement about political or social issues can often be raucous, messy, chaotic, infuriating, irrational and even upsetting.

People sometimes shout slogans at one another (SOMETIMES, IN PRINT, THEY USE CAPITAL LETTERS AND EXCLAMATION MARKS IN THE BIZARRE BELIEF IT WILL HAVE A BIGGER IMPACT!!!!!!!). People also call one another names, or – oh so very pleased with themselves and exuding the hubris far too prevalent among those who have never been Othered or systematically discriminated against – they re-state questionable ideological beliefs or demonstrably false facts as if these are absolute and incontestable truths of shattering originality.

While arguing a point, some inadvertently or even unknowingly reveal their bigotry (their racism, sexism and homophobia, their class prejudices which blame the poor for being “lazy” or suffering from a “sense of entitlement”) for the entire world to see and judge.

Sometimes, people are too lazy or angry or lacking in the ability or will to construct a counter-argument to engage in the substance of the dispute, in which case they often try to shut up an opponent by deploying mechanisms to discredit their opponent instead of trying to discredit the opponent’s arguments.

Sometimes an opponent who raises an awkward point is labelled a secret agent for the DA (if the person wishes to defend the ANC) or an ANC lackey (if the person blindly follows the DA). An opponent can also be shut up by telling him or her that he or she is “playing the race card”, or is acting like an “angry feminist” or “shrill homosexual”, or lacks a sense of humour.

Nevertheless, and quite surprisingly, important and interesting opinions and insights (on both sides of an argument) can emerge from these chaotic exchanges – despite all the noise, the empty threats and red-herrings and numerous other techniques used to end debate or avoid engaging with the substance of an argument.

I would contend that this is so because it is surprisingly difficult always to draw a bright-line boundary between ad-hominem attacks and substantive arguments.

A person who holds strong opinions and is willing to construct plausible counter-arguments may launch carefully chosen (and sometimes witty) insults to “frame” the debate and the issues or to “place” the opponent on the ideological spectrum, which assists bystanders to understand what the disagreement is about and what is at stake in the exchange.

For example, when an opponent stereotypes black people or presents arguments steeped in patriarchal views, a first step to dismantling such arguments may well be to point out that the opponent, in your view, holds racist or sexist views. By doing so you lay the groundwork for a more substantive engagement with the opponents arguments.

Of course, sometimes, the ideological views of an interlocutor would be so outrageous or morally offensive, the factual basis for their argument so obviously false, or their prejudices so disgusting, that you feel ethically compelled to name and shame the person as a racist, sexist, homophobe or somebody harbouring class prejudices.

Such a naming and shaming, in my view, is more effective if you then proceed to develop an argument explaining exactly why you have labelled a person a racist, sexist, homophobe or classist. But the naming and shaming itself fulfils a purpose over and above that of vilifying your opponent – it asserts the moral framework within which your criticism of the opponent is being made.

While I bemoan the fact that those who disagree with an argument often do little more than shout angry insults at opponents in an attempt to discredit them, I understand that democracy is often messy and chaotic and that this cannot be entirely avoided.

It is therefore a good idea to develop a thick skin when entering debates. It is also advisable to inform yourself about the the subject matter of debates and read up on concepts and ideas employed by others. Most importantly, it may save you much embarrassment if you develop an understanding of the way in which your own experiences (and your ignorance about the experiences of others) influence your worldview and your opinions about the world.

But it is also a good idea to remember that in a democracy we all have a voice and a right (within the limits of the law) to express our views and opinions – no matter how daft they may appear to others.

No one has an inherent right not to be labelled, ridiculed or attacked for expressing a particularly controversial or unpopular opinion or an argument that those with less social and economic power than yourself may view as bigoted or plain dumb.

Neither do the racists, sexists, homophobes or classists have a right not to be called out on their racism, sexism or homophobia or class prejudices.

Like any other person in South Africa, those who have actually experienced homophobia, racism, sexism or class prejudice have a right to take issue with a person whose views seem to be embedded in prejudice or who is blind to the ways in which racism, patriarchy, heterosexism and class elitism continue to exert a powerful influence on the way the world is structured and social status and economic benefits are distributed.

Strangely, it is often those who (as a group) are the most privileged members of our society – white, heterosexual, middle class men – who seem incapable of dealing with the rough and tumble of robust and messy debate. (Of course, I am not claiming that all or even a majority of white, middle class, heterosexual men play the victim card when they are called out on the bigotry that frequently goes hand in hand with privilege.)

Suddenly turning themselves into victims, they claim that those who call them out on their prejudices are “calling them names”, are “strident”, and are “angry” or “shrill”. Instead of constructing a coherent argument, based on their stated worldview and ideological commitments, explaining why their argument is not bigoted, they complain that they are being censored. Their opponents are branded as enemies of free speech for daring to point out what appears to be deeply embedded and (often unacknowledged) prejudice.

This is obviously nonsense.

Now it might well be that a person who is vigorously attacked for espousing racist, sexist, homophobic or class prejudices, will be able to counter the accusations by setting out a coherent explanation of what racism, sexism, homophobia or class prejudice entails and demonstrating that his views cannot plausibly be classified as such.

In doing so it will of course not be helpful merely to assert – from your position of privilege – that you just do not yourself see the prejudice and that, hence, the prejudice does not exist. It is never a good argument to tell those who actually experience racism, sexism, homophobia and class prejudice every day that their own experiences are just not true. Such an argument is no more than an attempt to assert your privilege by denying others their lived experience. More would be required.

But freedom of expression cannot thrive where people try to stop others from expressing their views merely because these views are unkind or strident, or because it casts you in a bad light.

Yes, this chaotic exchange of ideas, vigorous criticism and even the hurling of insults can be difficult to handle if you are insecure or uninformed. But it’s time we all buck-up and grow a backbone.

And how do I suggest we do that? Not by acting out your macho fantasies and intimidating those with less testosterone than ourselves. Rather by reading more, by learning more about how other people feel and think, by being more self-critical and self-reflexive.

After all, few people who are confident of their own opinions – because they know their opinions are informed by sustained critical thought (and not inherited platitudes), copious reading (and not self-referential experience), and an ability to reflect on their own lives and the views of others (and not on the prejudices of their mates shared around the braaivleis fire) – will be intimidated by criticism or even vicious attacks by others.

E-toll civil disobedience reveals lack of respect for democracy

As the start of the levying of e-tolls in Gauteng looms, many motorists are saying that they will refuse to buy e-tags, implying that they will also refuse to pay the tolls once they are charged double the price for driving on the toll roads without an e-tag. In other words, they are implying that they will refuse to obey a validly passed law that does not infringe on the fundamental human rights of anyone. This refusal to obey a constitutionally valid law passed by a democratic government, displays a worrying lack of respect for (and understanding of) democracy.

The Rolling Stones might as well have had the voters in a democracy (or in any other system of government) in mind when they sang “you can’t always get what you want”. No citizen has a right to always get what he or she wants from the democratically elected government – whether he or she voted for the governing party or not.

You can hope for the best, but you cannot expect to agree with every single decision a democratically elected government takes. Sometimes a democratically elected government will adopt policies and pass laws that some (or even a majority of) voters will not like.

When this happens, unhappy voters who respect the democratic process cannot normally break the law to try and subvert otherwise validly passed policies or laws. When they do this, they subvert the democratic process by using non-democratic and unlawful methods to achieve an outcome that they could not achieve through the democratic process.

Such behaviour undermines democracy by subverting democratic processes and by undermining the democratically elected government and its ability to govern.

As long as the policies or laws do not infringe on the rights of anybody and do not undermine the democratic freedoms that secure meaningful on-going participation of all citizens in the democratic process, those who are committed to democracy have a moral and legal duty to obey the policies and laws with which they do not agree.

The situation may be different when the democratically elected government undermines democracy by moving to limit your democratic freedoms. When the government changes laws or policies to draw a veil of secrecy over its activities in order to avoid accountability or when it changes the rules of democratic engagement to give the incumbent party an unfair advantage in elections, citizens (as custodians of democracy) may have to resort to more drastic action to protect democracy itself. In such cases, ignoring the law is aimed at protecting democracy itself and would be morally justified.

But in the absence of such anti-democratic moves by a governing party the options for voters to influence the laws and policies of a government are limited to legal steps that respect the legitimacy of the democratically elected government and the democratic process itself.

In a democracy you vote for a political party who may or may not get enough votes to form the government. If the party of your choice fails to gain a majority of votes in an election, you have to wait until the next election in the hope that the party of your choice will be able to convince a majority of voters to vote for it.

Even if the party of your choice won the election, it may well adopt policies or pass laws with which you disagree. You can hold the governing party accountable by threatening to withdraw (or by actually withdrawing) your support for that party in the next election. After all, when you vote for a party in an election, you are merely lending your vote to that party on the condition that it acts in a manner that guarantees it your support in the future. When it acts in ways that breaks the relationship of trust with the party, you must change your vote and lend it to another party.

This does not mean that democracy requires citizens to remain passive bystanders in-between elections. All citizens have a right to participate in the democratic process by making submissions on proposed laws and policies, by organising opposition to those aspects of laws or policies they disagree with, by expressing their displeasure of laws or policies in the media, by challenging the laws or policies in court and by taking part in peaceful protests against specific laws and policies of the government.

It is clear that many middle class people living in Gauteng are very upset about the introduction of e-tolling by the government. They argue that the system of financing the upgrading of highways is inefficient and unwise and that there may well have been better and more cost-effective ways to finance the upgrading of the roads. These arguments appear to be valid, but the government of the day has decided to ignore all the objections and to go ahead with the implementation of e-tolling.

Several courts have declined to interfere with the decision to impose e-tolling on Gauteng freeways, suggesting that the laws and policies are constitutionally valid. While perhaps unwise, the imposition of e-tolls does not infringe on the human rights of anyone and neither does it subvert the democratic process. It’s a bummer, but e-tolling has been validly introduced and citizens who respect democracy must therefore obey its prescripts.

A democrat faced with such a situation is not powerless. First, he or she can decide that the government who introduced e-tolling must be punished at the next election and can lend their vote to another political party. If enough voters show their unhappiness in this manner, a new political party will gain the majority of votes and will become the governing party who will be able to scrap the introduction of e-tolls.

Secondly, he or she can take part in massive peaceful demonstrations to demonstrate to the government of the day that the policy is unpopular with citizens. I have no doubt that if a million people gathered outside the Union Buildings and remained there for a week or two to protest against the imposition of e-tolls, the government would be forced to rethink the policy.

But this has not happened. Most South Africans who oppose the introduction of e-tolls appear to be too lazy or too wedded to their own comforts to take part in a prolonged mass protest against e-tolls. Citizens want the government to listen to their protests but they could not be bothered to protest in a manner that would force the governing party to take the protests seriously.

Instead, the vast majority of those who oppose e-tolls seem to be choosing the easy, but essentially anti-democratic, way of protesting against the validly imposed and constitutionally sound policy: they are going to refuse to buy e-tags and then to pay for the tolls when they are required to do so.

But there is no moral or legal basis for opponents of e-tolls to disobey the law. They are, in fact, promoting lawlessness, the very lawlessness that members of the chattering classes complain about when strikers break the law or mini-bus taxi drivers refuse to obey traffic rules. They demand a right to be lawless in order to oppose e-tolls, while criticising others who are lawless, displaying a hypocrisy that is all too familiar.

Democracy is not something you can switch on and off as it pleases you, going along with democratic rules when you get your way and subverting the democratic process when you do not. Gauteng residence must heed the advice of Mick Jagger and accept that they cannot always get what they want – especially if they are not prepared to make the sacrifices associated with prolonged mass protest.

Is this now a criminal offence?

Minister of state security Siyabonga Cwele today warned that the publication of pictures of Nkandla is unlawful. This is rubbish. There is absolutely nothing in the (unconstitutional) National Key Points Act that prohibits the publication of pictures of a building declared a National Key Point. Otherwise the publication of all pictures of the SABC building would also be unlawful. So here it is again.

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And another version.

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Nkandla Report “censorship”: It is all about PW Botha’s law

“National security” is a much-abused term, often deployed by governments to prevent the publication of information that would embarrass the government or it’s leaders. The attempt by the state to pre-censor the Public Protector’s Report on the use of more than R200 million of public funds to improve the private home of president Jacob Zuma on “national security” grounds, is a clear and reprehensible case in point.

The United States of America’s obsession with national security – and the security of its President – is easy to lampoon. Getting through airport security in the US can make you feel as if you have landed in the middle of a Jason Bourne movie. When its President visits a foreign country, a convoy of special bulletproof cars is flown in to transport the leader and his entourage. At a recent talk by President Barack Obama at the University of Cape Town we had to stand in a queue for hours to get through the excessive security check points.

Yet, the White House – the US President’s official home and office – offers self- guided as well as virtual tours to members of the public. Its website contains a floor plan of some parts of the White House. Of course some parts of the White House remain off limits to the public for security reasons. But even the security-obsessed Americans see no threat to their national security or to the security of their President when details of his home are made public.

It is difficult to see why South Africans – who are supposed to be a little less paranoid and arrogant than the world’s largest super power – are not entitled to know a little bit more about the private house of the President whose cost they so generously contributed to.

Even if that house is a private residence and upgrades just happened to have been justified on “security” grounds, knowing a few details about the house is not going to threaten the security of the President. And, to claim that it will endanger national security is beyond laughable. To use apartheid era legislation that embodies the spirit and ethos of PW Botha and his “state-of-emergency” government to do so, is beyond words.

As we have actually paid for most of what is now widely known as Nkandla, it would be nice to know how many rooms were added to the President’s private enclave to enhance “national security”; how many soccer fields were built to keep our president safe from attack by unscrupulous terrorists; how many tuck shops erected to serve our vital national security interests; how many other luxury fittings paid for by taxpayers to ensure that South Africa’s enemies will not be able to threaten our collective security as a nation.

Police Minister Nathi Mthethwa and Publics Works Minister Thulas Nxesi seem to hold a slightly different view. Last week they approached the court to stop the release of the Public Protector’s Report into the publicly funded upgrade of President Zuma’s private house because they claimed one week was not sufficient for their army of lawyers to read a 357-page report and to identify any aspects of it that revealed facts about the security arrangements at Nkandla.

At first blush, this may seem surprising, to say the least. I have, of course, not seen the report, but would be surprised if the report actually revealed much about the security arrangements at Nkandla. Would it really reveal information such as details of the exact location of the now not-so-secret bunker; plans for the evacuation of the premises in case of an attack; the number and positioning of guards on duty to protect the President and the secret codes to activate the secure telephone line. And if it did, how long could it take to identify these on the report pages?

Yet, the Ministers seem to believe the very life of the nation is being threatened by this report about the use of public funds to upgrade the private house of a person who will again be a private citizen in no less than six years time.

The release of the Public Protector’s provisional report, warned Mthethwa “without prior authorisation of the [security cluster] is unlawful and carries with it a criminal penalty…. If the provisional report is released in its current form as intended by the [Public Protector], the [security cluster] will suffer irreparable harm and the safety of the president will be severely compromised.”

Nxesi was even more adamant: “We reserve our right to take the necessary legal actions to preserve the security of the state as well as part of the national key points.”

But if one peruses the legal basis for these claims one soon realizes that the legislative sections invoked to justify this intimidation of the Public Protector has very little to do with either national security or the security of the President and everything to do with using draconian apartheid era legislation to suppress the truth.

This is also why the state requires more time to censor the report: it has nothing to do with national security and everything to do with wanting to determine exactly which phrases in the report fall foul of apartheid era censorship provisions in the National Key Points Act and the Protection of Information Act. But as I will presently show, these provisions are so broad that they virtually invite the state to censor all the embarrassing bits from the Nkandla Report.

In their application to stop the release of the report to other affected parties, the true reason for the approach to the court becomes evident. They are asking the court not only to give them more time to tell the Public Protector which parts of the Report she needs to censor. They also ask the court to require the Public Protector to submit a revised (censored) Report to the security cluster “for the purposes of determining whether or not the security concerns raised by the” security cluster Ministers have been attended to. They also seek leave to approach the court to stop the publishing of the Report if their alleged security concerns had not been addressed (in other words, if the Report had not been censored as instructed by them).

In effect, the Ministers are asking the court to give them the right to decide which aspects of the Report are related to security (it is unclear whether they are referring to “national security” or the personal security of the President) and to provide them with a veto right that would allow them to insist on the censoring of all the aspects of the Report they believe the apartheid era legislation gives them the right to censor – regardless of whether these aspects relate in any way to the security of the President or to national security.

In his affidavit, Minister Mthetwha confirms this when he claims that the Public Protector is obliged to give them reasonable opportunity to identify aspects of the Report “which must be omitted from her provisional report due to the breach of state security and the compromise to the security of the President”. He claims the report contains classified, top secret and confidential information that would compromise the security of the state if released to anybody else.

But it is in the correspondence between the Public Protector and the Ministers of Public Works in which the cat is let out of the bag. Minister Nxesi claims that the report must be censored because it contains information in breach of section 4 of the National Key Points Act and section 4 of the Protection of Information Act (both pieces of legislation passed during the PW Botha era).

It is not clear why the Minister refers to section 4 of the National Key Points Act. This section states that the Minister may order any person to furnish him with any information at his or her disposal relating to or in connection with a National Key Point. A person who makes known such information to anyone else is guilty of an offense.

Now unless the Minister ordered his officials to furnish him with such information and relied on section 4 of the National Key Points Act when he did this, or unless the Minister ordered the President to furnish him with such information in terms of the section, section 4 of the Act cannot apply.

Surely, it is highly unlikely that the information provided to the Public Protector was gathered by using section 4 of the National Key Points Act? Most of the information must surely already have been available to the Minster through the officials in his Department? And would the Minister really formally instruct the President – his boss – to hand over information about Nkandla?

But maybe the Minister will provide the public (or at least the court) with written proof that the information he provided to the Public Protector was indeed formally gathered in this fashion. Until then, I will remain slightly skeptical about the claims made by the Minister in this regard.

In any event, it is telling that the Minister is invoking this bizarrely overbroad and clearly unconstitutional provision of an apartheid era piece of legislation to claim that the Public Protector’s Report contains information that could threaten the security of the state or of the President. The fact that the section does not merely prohibit the release of information that actually threatens the security of the state or that of the owner of a National Key Point, but any information that the Minister had ordered must be provided, suggests that the Act is being used to cover up the Nkandla scandal.

Section 4 of the Key Points Act can be used by the Minister to order somebody to provide information about any trivial aspect about a building – how many toilet rolls are being used in that building; how many rose bushes have been planted in the garden; what is the colour of the walls; what bathroom fittings can be found in the guest bedroom; how much water is being used in the building – and if this information is provided to the Minister and is then made public by anyone else this is in breach of the Key Points Act on the basis that it threatens national security – even if the information clearly does not threaten national security at all.

This means if the Minister had been devious enough and had formally used section 4 of the National Key Points Act to “order” officials and the President to provide him with all the information about Nkandla needed by the Public Protector, he would (with the stroke of a pen) have drawn a veil of secrecy over the whole Nkandla scandal – courtesy of PW Botha.

Section 4 of the Protection of Information Act reveals the same scope for abuse to cover up whatever the government wants to be covered up. It states, inter alia, that any person who has in his or her possession a document “kept, used, made or obtained in a prohibited place” who then discloses such document is guilty of an offence. The President, in terms of section 14 of the Act, can declare any place a prohibited place. One assumes the place where the Nkandla documents have been kept has been declared a prohibited place.

This means, once again that the claim made is not necessarily that the Nkandla Report actually reveals anything that actually would threaten the security of the state or that of the President. Instead, the claim seems to be that the Report contains information, regardless of whether it actually threatens the security of the state or of the President, which apartheid era legislation allows the government to censor for any reason they please.

I would speculate the reason why the state’s lawyers need so much time to study the draft Nkandla Report is so that they could make effective use of these two apartheid era legal provisions to force the Public Protector to censor her Report in order to protect (shall we call him) Number One from political embarrassment.

Media freedom is a right that benefits all

Some members of the media and some opponents of media freedom sometimes wrongly suppose that media freedom is a right primarily enjoyed by (and for the benefit of) journalists. A recent Constitutional Court judgment, which rehearses arguments that are also germane to the fight about the constitutionality of the Secrecy Bill, reminds us that media freedom is primarily a right enjoyed by and for the benefit of ordinary citizens.

The Mail & Guardian must be spending quite a handy sum of money on lawyer’s fees. But this money is largely well spent. The newspaper has been involved in several groundbreaking court cases, which have clarified important aspects of media freedom (as well as an important case dealing with the obligations of the Public Protector to investigate maladministration and corruption).

In Mail & Guardian Media Ltd and Others v Chipu N.O. and Others, the seemingly mundane question of whether a provision of the Refugee Act, which imposes absolute confidentiality in the handling of applications for refugee status and the information contained therein, allowed the newspaper to raise important questions about how secrecy can work against the public interest.

In finding that this absolute secrecy imposed on the refugee granting process by the Refugee Act constituted an unjustifiable limitation of the right to freedom of expression, the Constitutional Court in a unanimous judgment authored by justice Raymond Zondo, reaffirmed the important purposes served by the right to freedom of expression.

The Court recalled that the infringement of the right to freedom of expression was used in the Apartheid era “to achieve the degree of thought control conducive to preserve Apartheid and to impose a value system fashioned by a minority on all South Africans”. It thus re-affirmed that this right must be zealously guarded because it was integral to “democracy, to human development and to human life itself”. One of the many differences between the Apartheid era and our current dispensation was exactly that freedom of expression is now constitutionally protected.

A key purpose of this right is to enable the public to form and express opinions on a wide range of matters. The purpose of the right therefore goes far beyond the protection of journalists to write what they like. Quoting from a previous judgment, the Court stated that freedom of expression“lies at the heart of democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters.

As is the case with many other rights in the Constitution – including the social and economic rights – 
the right to freedom of expression is of fundamental importance to safeguard the human dignity of everyone. Where the right is not vigorously protected, ordinary people will be robbed of the ability to make important life choices. Their ability to exercise many of their other rights guaranteed in the Constitution would also negatively affected.

For example, freedom of expression empowers members of communities to expose maladministration and corruption, and to demand better service delivery from those elected to serve the people. When the right to freedom of expression is not protected, it becomes very difficult to be an active and responsible citizen, as you cannot hold elected servants of the people accountable for fear of being muzzled, intimidated, censored or harassed.

Although the protection of this right is of fundamental importance to safeguard the dignity of ordinary citizens, the media plays a key role in society, and is therefore not only protected by the right to freedom of expression but is also a key facilitator and guarantor of the right.

As the Constitutional Court once again affirmed, members of “the media are important agents in ensuring that government is open, responsive and accountable to the people as the founding values of our Constitution require.” The media therefore have an “obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture. As primary agents of the dissemination of information and ideas, they are, inevitably, extremely powerful institutions in a democracy and they have a constitutional duty to act with vigour, courage, integrity and responsibility.”

This means that when the right is limited – as is clearly also the case with the Secrecy Bill – a court will ask hard questions about whether the limitation is overbroad. This is because the limitation is not only imposed on the media, but on citizens who depend on the media to become informed about what goes right and what goes wrong in the country.

Put differently, the court will ask whether there are not less restrictive means of achieving the stated purpose of a piece of legislation that limits the right to freedom of expression (and by extension, the media).

In this case, the provision that imposed absolute secrecy on the asylum process obviously served several important purposes. Secrecy protected the integrity of the asylum process; it encouraged applicants for asylum to disclose information truthfully; and it protected asylum applicants and their families and friends in their countries of origin from possible dangers or threats to their lives and safety that could arise if the fact of the application for asylum and the information contained therein were disclosed.

But the imposition of absolute secrecy was not justifiable as it was clearly overbroad and imposed secrecy where the purposes set out above would not be served or would be trumped by the public interest.

As the Court pointed out, no purpose was being served by an absolute imposition of secrecy on the asylum process in the case of a person who, after arriving in South Africa, discloses publicly, maybe in a press conference, the reasons why he fled his country of origin and other information that is relevant to the asylum application. In such a case no purpose would be served by the absolute secrecy imposed by the provision of the Refugee Act.

Similarly where the asylum applicant has committed a crime against humanity or a crime against peace in his or her country of origin, refugee status would not be granted. There was no logical reason why the Refugee Act should impose absolute secrecy on the application for refugee status or for asylum. In such a case, the public interest in knowing that a person who has committed a crime against humanity is applying for refugee status would trump the interest of the applicant to have the process kept secret. What was required in each case was to ask whether the imposition of absolute secrecy was essential to achieve the important purpose of protecting innocent asylum applicants.

This line of reasoning, which invokes the public interest as an important factor to justify the waiving of rules which otherwise would have imposed absolute secrecy, might well become relevant when the Constitutional Court considers the constitutionality of the Secrecy Bill. Previous drafts of the (now drastically improved) Secrecy Bill would almost certainly have failed this test, as it made no provision for overriding secrecy in the public interest. Now, section 41 provides a partial public interest defence, amongst other in cases where classified documents reveal criminal activity.

What the Constitutional Court will have to ask is whether this partial public interest defence sufficiently narrows down the scope of the Secrecy Bill to justify the limitation. I am sure the argument will be made that it does not as it does not cover other disclosures of classified information in the public interest that do not rise to the level of criminality but “merely” deals with abuse of power, maladministration or covering up nepotism and other forms of non-criminal abuse.

However, I suspect the aspect of Secrecy Bill most vulnerable to attack is the definition of national security, which is defined in an open-ended manner, allowing the classifier to decide for him or herself whether specific documents would affect the national security or not. This kind of open-ended discretion allowing classifiers a wide discretion on how to define “national security” will almost certainly be abused and will hence be very vulnerable to attack.

In the Mail & Guardian judgment the Constitutional Court referred the impugned provision back to Parliament to be fixed. However, in the interim it provided a closed list of criteria binding on the Refugee Appeal Board whenever it had to decide whether secrecy was warranted or not. This interim remedy suggests that the Court is alert to problems that might arise when officials are granted a broad discretion that could be exercised in a manner that infringes on the fundamental right top freedom of expression.

This bodes well for the success of any future constitutional challenge to certain sections of the Secrecy Bill.

Secrecy Bill: a touch more confusion and a glimmer of hope

The decision by President Jacob Zuma to refer the Protection of State Information Bill (the Secrecy Bill) back to Parliament because of his alleged reservations about the constitutionality of aspects of the Bill raises fascinating constitutional issues. This legal uncertainty around the referral stems largely from the vague and inept language used by the president in his referral letter to the Speaker of the National Assembly. But it also stems from legal uncertainty about the appropriate role of the president in referring Bills back to Parliament for reconsideration.

For a constitutional law nerd like myself, bad legal advice provided to members of the Executive at national and provincial level (as well as the bad faith shenanigans of politicians more generally) provide exciting opportunities to discuss complicated constitutional law questions with fellow nerds. That is why I have spent the weekend engaged in several email discussions with my fellow constitutional law nerds about the president’s referral of the Secrecy Bill back to Parliament.

What all agree on is that President Jacob Zuma is indeed empowered by section 79(1) of the Constitution to refer the Secrecy Bill back to Parliament when he has genuine reservations about the constitutionality of the Bill. We also agree that it is clear from the referral letter that the president has not given Parliament a blank cheque to fix the unconstitutional sections of the Bill and that – as I pointed out before – celebrations about the referral were premature.

In a letter to the Speaker, Max Sisulu, President Zuma stated that the referral was for “reconsideration insofar as sections of the Bill, in particular sections 42 and 45, lack meaning and coherence, consequently are irrational and accordingly are unconstitutional.”

This can mean one of two things. It can mean only section 42 and 45 lack meaning and coherence and that the perceived lack of meaning and coherence is of such a nature that it renders the Bill unconstitutional. Or it can mean that these sections, along with other unnamed sections, lack meaning and coherence in such a way that these unnamed sections are, or the Bill as a whole is, unconstitutional.

If we go with the second, more generous option, it would mean that apart from sections 42 and 45, Parliament could only reconsider those sections of the Bill that actually lack meaning and coherence to the extent that they are unconstitutional. The many other perfectly rational and coherent sections (which might well be unconstitutional on grounds unrelated to their meaning and coherence) cannot be touched. Parliament therefore does not have the power to fix the Secrecy Bill to ensure its constitutionality.

But in the absence of more detailed and comprehensive reasons from the president on why the named (and, possibly, the unnamed) sections of the Bill lack meaning and coherence to the extent that they are perceived by the president to render the Bill unconstitutional, it is difficult – if not impossible – for Parliament to fulfil its constitutional duty to consider the concerns of the president. The president has a constitutional duty to provide clear and detailed reasons for his referral to Parliament to ensure that Parliament can do its job. The fact that he has not provided such reasons is worrying.

Our system of separation of powers is often described as establishing a structured dialogue between the three branches of government. Each branch has the power to check up on the exercise of power by the other two branches. Where the president sends back legislation because of its perceived unconstitutionality, he engages in such a structured dialogue with the legislature. But for a dialogue to be meaningful, the president needs to provide detailed reasons for his referral (in the same way that the Constitutional Court needs to provide detailed reasons for a decision to declare provisions of an Act unconstitutional).

In the absence of such reasons, Parliament may not be capable of attending to the reservations the president has formed about the constitutionality of the Bill because members of Parliament would not know exactly what these reservations are. Cryptic letters like the one sent by President Zuma to the Speaker therefore have implications for the proper functioning of the separation of powers doctrine. And as I will explain later, it also has potential implications for the constitutionality of the amended Bill.

This is so particularly because badly drafted legislation – even legislation that lacks meaning and coherence – is not automatically unconstitutional. A badly drafted Bill, one riddled with grammar and spelling mistakes, or one that fails to give effect to the actual intention of the legislature, will not necessarily be unconstitutional. There would only be a basis for the president to form reservations about the constitutionality of a Bill (a legal prerequisite for a referral back to Parliament) where the lack of meaning and coherence of sections of a Bill could conceivably lead to the Bill infringing on the constitutional rights of people or where a properly constructed provision could conceivably have rendered an otherwise unconstitutional Bill constitutionally valid.

If the Bill were referred back to Parliament only because of a “litany of spelling errors and bad grammar” (as a source in government told the Sunday Times) the referral would be improper and invalid as it would have been based on a misreading of the president’s powers. The president has no power to refer a Bill back to Parliament merely because he dislikes sections of the Bill, because Parliament drafted it badly, or because Parliament failed to criminalise actions the president thinks need to be criminalised.

I am told the president referred section 42 back because Parliament “accidentally” linked it to a breach of section 15 (and thus rendered a failure to comply with the requirements of section 15 as a criminal offence) instead of section 13 of the Bill. Section 13 requires anyone in possession of classified documents knowing that they were unlawfully communicated to hand such records back. At the moment failure to do so is not criminalised (but it will be criminalised if section 42 is amended to refer to section 13 instead of section 15). Such an amendment will amplify the infringement on freedom of expression as it will criminalise those who fail to hand back classified documents. It would make it more difficult to hold on to information leaked to you by other sources with the aim of exposing corruption or maladministration.

It may be that Parliament intended to refer to section 13 and not section 15 when it drafted section 42 of the Bill, but it is unclear how this failure of Parliament to create a criminal offence in cases where people are in possession of classified documents could have led the president to form reservations about the constitutionality of the Bill. Quite the opposite is true: the failure of Parliament to ensure section 42 referred to section 13 (instead of section 15) renders the Bill less constitutionally problematic because it is less invasive of the right to freedom of expression. I am therefore not so sure the referral of section 42 could rationally be said to fall within the powers afforded to President Zuma by section 79(1).

I have also been told that section 45 was referred back to Parliament because it is thought to have failed to create criminal offenses in cases where an official or Minister wrongly classified documents to hide corruption or to try and protect the government from embarrassment. If the section had indeed failed to criminalise the corrupt classification of documents it would have made the Bill even more unconstitutional than it currently is. A referral by the president would then have been more than competent.

But although section 45 has peculiar grammar and punctuation it is clearly not an unconstitutional provision as it is reasonably capable of being interpreted to create criminal offenses. Our courts have said that where a section is reasonably capable of being interpreted in a manner that would render it (or the piece of legislation) constitutionally valid, it should be interpreted in this way. This is usually referred to as “reading down”. If you use the “reading down” technique as required by the Constitutional Court and you read section 45(1) together with section 45(2) it is clearly reasonably capable of the meaning below:

“Any person who intentionally classifies state information as top secret, secret or confidential in order to conceal corruption; promote or further an unlawful act, inefficiency, or administrative error; prevent embarrassment to a person, organisation or the Agency; or give undue advantage to anyone within a competitive bidding process is guilty of an offence and liable on conviction to imprisonment for a period not exceeding 15, 10 or 5 years respectively.”

I therefore cannot understand why anyone could say section 45 is unconstitutional because of its lack of meaning and coherence. Yes, section 45(1) seems to end mid-sentence. But read with section 45(2) nothing important turns on this (except if you happen to be a grammar Nazi) as it does create criminal offenses as intended.

Of course, it might be that the president’s lawyers are not aware of the Constitutional Court jurisprudence on “reading down” and that they advised the president wrongly. The president would then have formed reservations about the Bill because he was wrongly advised about the constitutionality of section 45. (I am assuming – in a less sceptical mood than Friday and to give the president the benefit of the doubt – that section 45 was not referred back to Parliament because the president wants to stop the criminalisation of classification aimed at hiding corruption.)

An interesting legal question is whether such an error would render the president’s referral to Parliament invalid and would thus render the newly amended Bill invalid in its entirety. Section 79 is formulated in wide terms. If the president refers a Bill back to Parliament because he has rationally formed reservations about its constitutionality, the referral would be competent.

But what happens if the president formed these reservations based on clearly wrong legal advice of lawyers unaware of the “reading down” principle or on advice of lawyers who did not realise that section 79 does not grant the president a general veto power over badly drafted legislation? What if the president’s lawyers actually wrongly believed that all badly drafted legislation is not only irrational but also unconstitutional?

And what happens if the president’s reservations were not in fact with the unconstitutionality of the Bill, but merely with the incoherence not related to the constitutionality of the Bill or with the grammatical and spelling errors in the Bill? Would this mean the president misconstrued his powers and that the referral was incompetent? What happens if Parliament fixes the spelling and grammatical errors in the Bill that could not conceivably have rendered the Bill unconstitutional? Would it then have overstepped its mandate by fixing bad drafting and not fixing unconstitutional aspects of the Bill as they are empowered to do by section 79(2)?

And if the referral was incompetent (or if Parliament wrongly changed aspects of the Bill that could not conceivably relate to its unconstitutionality) would that render the Act eventually passed by Parliament and signed by the President unconstitutional because of the procedural defects in the adoption of the Act?

I am sure these questions will eventually be aired before the Constitutional Court. But it does leave me with a glimmer of hope. What it means is that the inept and badly motivated referral of sections of the Secrecy Bill (sections that are not in the least constitutionally problematic) potentially opens the door for lawyers eventually to argue that the final product in its entirety is unconstitutional because an unconstitutional procedure was followed to pass the Bill. When the constitutionality of the Secrecy Bill is finally considered by the Constitutional Court lawyers will thus be able to go beyond specific provisions to try and torpedo the Bill as a whole.

These arguments would be complicated to make and it is not clear whether the Constitutional Court will agree that an incompetent referral of a Bill to Parliament in terms of section 79(1) (where the incompetence is not based on bad faith) or an incompetent fixing of grammar and spelling in a Bill by Parliament (not done in bad faith) will render the final Act eventually passed by Parliament unconstitutional because of procedural defects. But surely it will at least be worth trying to convince the court that it does.