Constitutional Hill

Freedom of expression

Hlaudi weather: The fog is even thicker than it looks

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

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

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

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

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

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

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

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

The report quotes Mr Motsoeneng as telling the public protector:

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

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

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

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

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

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

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

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

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

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

Three perplexing questions arise form this sorry saga.

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

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

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

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

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

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

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

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

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

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

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

Censoring Malema seems to have no basis in law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pistorius and the controversial Twitter ruling: questionable at best

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

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

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

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

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

However, he proceeded to make the following observation:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

All hail independent thought

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

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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.