Canadian politicians seem to be slightly more mature about being depicted in a work of art with their private parts hanging out. The large oil on canvas painting, which Canadian Prime Minister Stephen Harper did not pose for, by Kingston, Ont.,-based artist Margaret Sutherland shows the prime minister reclining on a chaise lounge wearing nothing but a subtle smile, surrounded by people in suits, whose faces can’t be seen. A dog rests at his feet as a woman in business attire offers him what looks like a Tim Hortons cup on a silver platter.

As reported rather tongue in cheek by the Canadian press, the piece appeared to draw out the art critic in many Canadians. ”This is just too funny – think she painted him a bit skinny – he should really be wearing his vest,” Myrtle Graham posted on Facebook.”This made my day. Nude Stephen Harper is ART,” tweeted Denise Balkissoon.

Other’s weren’t as amused: “Oh dear lord: may have to pluck eyes out now,” tweeted Paula Schuck. “I don’t know whether to laugh or be horrified,” added Kelsey Rolfe.

The Prime Minister’s Office also took to Twitter to voice a reaction to the piece. ”On the Sutherland painting: we’re not impressed. Everyone knows the PM is a cat person,” tweeted Harper spokesman Andrew MacDougall, referring to the canine on the canvas.

Others on Parliament Hill took a similar tongue-in-cheek approach.”This is one case where I think we really do need a Conservative cover-up,” said Liberal MP Scott Brison. “I guess you could say in this painting it’s quite obvious that the Prime Minister has very little to hide.”

So far no one has threatened to obtain an urgent interdict to have the painting removed or destroyed. Not even cat lovers.

Did they not watch the movie Howl, about the trial of the publisher of Allan Ginsberg’s long poem of the same name, who was charged with obscenity for publishing the poem. If they had watched this movie, they might have remembered how ridiculous all the state witnesses were made to look during that trial while these witnesses tried to measure a work of artistic expression against a moral standard that was at best vague and at worst impossible to pin down.

I was thus quite amused to read in an ANC press statement that the party ”is extremely disturbed and outraged by the distasteful and indecent manner” in which the artist Brett Murray and the Goodman Gallery in Johannesburg “is displaying the person (sic) of Comrade President Jacob Zuma”. The ANC is not happy. Patriarchs like to use their penises for all kinds of things, but usually do not like to have them made fun of in a work of art. It insults one’s manhood, I am told.

Hence the ANC tirade which continues: “This disgusting and unfortunate display of the President was brought to our attention by one of the media houses and we have physically confirmed this insulting depiction of the President”. The ANC does not say what this physical confirmation entailed or whether it had determined whether the penis displayed in the art work is sufficiently similar to that of the President to warrant the conflation of art with reality.

I provide a copy of work of art causing all the trouble below so that those who might not have read City Press on Sunday have the chance to enjoy this provocative piece of art and to consider its meaning and esthetic value for themselves. (Feel free to copy it and send it to all your friends! After all, in a democracy making up one’s own mind about something – also the meaning and value of a work of art – is a human right.)

Afterthought: The poster of which this painting is a parody may not be known to everyone, so I repost it here:

The ANC may not be aware of the fact that section 16(1)(c) of the Constitution states that everyone has the right to freedom of expression, which includes ”freedom of artistic creativity”.  It is true that no right is unlimited but even where the right to free expression is limited an exception is usually made for artistic expression. Our law often distinguishes between real depictions of individuals and art works and hardly ever allows for the censoring of the latter. For example, section 12 of the Promotion of Equality and Prevention of Unfair Discrimination Act (which prohibits hate speech) explicity makes an exception for a “bona fide engagement in artistic creativity”. Section 3 of the Film and Publications Act contains a similar exception.

The fact that the ANC seems incapable of distinguishing between a work of art and real life will probably ruin their legal case they are planning to launch. The ANC statement says that it has instructed its lawyers to approach the courts to compel Brett Murray and Goodman Gallery to remove the portrait from display as well as from their website and to destroy all printed promotional material relating to the work. But given the protection for artistic freedom in the Constitution and the many exceptions in our law made for the expression of such artistic creativity, I am am almost 100 percent certain that the ANC’s proposed legal action will not be successful. In a democracy, courts seldom order the censoring of a work of art – even if that work of art makes fun of the President and his philandering patriarchal ways. I quote the rest of the ANC statement in full for your further gratification.

We have also detected that this distasteful and vulgar portrait of the President has been displayed on a weekend newspaper and its website, we again have instructed our lawyers to request the said newspaper to remove the portrait from their website. It is in our view and we remain steadfast in that the image and the dignity of our President as both President of the ANC, President of the Republic and as a human being has been dented by this so-called piece of art by Brett Murray at Goodman Gallery. We are also of the view that this distasteful depiction of the President has violated his individual right to dignity as contained in the constitution of our country.

The same gallery has displayed the logo of the ANC without the permission of the ANC, with the inscription FOR SALE on it, both these portraits are a clear calculation to dismember and denigrate the symbols and the representative of the ANC, chief amongst them, the President of the ANC. The ANC believes in both freedom of the press and artistic expression. The vulgar portrait and the dismembering of the ANC logo by Brett Murray is an abuse of freedom of artistic expression and an acute violation of our constitution, apart from being defamatory. That is why we have instructed our lawyers to approach the courts in-view of these violations and the defaming nature of the so-called President Zuma portrait titled ”The Spear”.

Issued by:
Jackson Mthembu
African National Congress

As this is a work of art, there is no chance that any half decent judge would grant the orders requested by the ANC, first, because there is no law that prohibits an artist from making such a portrait and second, because if there were such a law it would be unconstitutional. That is why I have taken the liberty to reproduce the artwork here and why I have invited my readers to distribute it widely. There is no place in our democracy for this kind of Christian Nationalist-like moral outrage and the concomitant attempts at censorship of artistic expression.

All the ANC has done is to make themselves (and our President) the laughing stock of the country. In fact, if I was a conceptual artist I would have taken the ANC statement, superimposed it over the ANC logo, and framed it before asking the Goodman Gallery whether it wanted to display my work of art. My work would be humorous, yes, but would also make an important point about artistic expression. I am sure I could have gotten a few thousand Rand for it, too.

After all, they had a right to express their views, no matter how repugnant, bigoted, bizarre and superstitious I might have found these views — just as I had the right to demonstrate my love and affection to the person dearest to me. That is one of the advantages of living in a constitutional democracy. As long as one does not break the constitutionally valid laws of the country, one is free to do and say what one wants.

Section 17 of the South African Constitution states that: “Everyone has the right peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” This right forms part of the bouquet of rights aimed at securing a democratic space in which individuals can express their views, can demonstrate in support of those views, can listen to others and consider changing their minds. If these rights are not vigilantly protected, democracy itself is diminished.

If one is intolerant of the views of others to the extent that one would take action to prevent others from expressing these views or trying to spread their views by holding marches or handing over petitions, one is intolerant of democracy itself. If one disagrees with a view expressed by others and promoted via a peaceful march, then one should counter that view with better arguments and holding another, larger, peaceful march. Not by trying to deny others their democratic rights.

That is why the actions by the Cosatu leadership as well as Cosatu members today must be condemned in the strongest terms. First Patrick Craven of Cosatu (and the ANC) called on the DA not to exercise their democratic right to demonstrate. Then the National Union of Metalworkers of SA (Numsa) and its affiliates vowed to “swamp the streets outside Cosatu House”.

Numsa spokesman Castro Ngobese complained that: “This mass gathering is informed by the provocative, deceitful and cheap political blackmail from the chief representatives of white monopoly capital and apartheid apologists the DA.” Ngobese said the DA was trying to coerce the ANC-led government, particularly its ally Cosatu, to agree to the neo-liberal proposal of a youth wage subsidy.

(Ironically the march was aimed at promoting a youth wage subsidy, a policy supported by the ANC government.)

Then this morning Cosatu members intimidated DA marchers and threw stones at them (with some reports of the DA marchers retaliating) and at journalists, injuring several people.  Patrick Craven incredibly justified this action by stating: “We showed [the DA] we would not be intimidated.” Mouthing platitudes about supporting the right to peaceful protest (as Vavi did in a tweet) after you have called on your supporters to stop a DA march from getting close to your headquarters, merely illustrates than one is a hypocrite, not that  one is a man of principle.

There is no place in our democracy for such anti-democratic intolerance. The argument that the marchers “provoked” Cosatu members who were by implication justified in using violence to stop the march, does not hold water. No one has a right to bring a violent end to a march because they believe the message of the marchers is wrong or that the marchers have no right to demonstrate close to where they work. If they had, the rights protected in section 17 of the Constitution would be illusory. Leaders have a special duty to ensure that their followers do not deny the rights of fellow citizens and they must not instigate unlawful and undemocratic action by their followers.

It is deeply disappointing that Cosatu leaders like Zwelenzima Vavi, somebody I have always held in high regard, would stoop to such a low.

Some commentators have argued that the DA was irresponsible to march on the Cosatu headquarters and that it was strategically wrongheaded. But this is a red-herring. One might well believe that it was unwise for the DA to march on Cosatu headquarters (or that they will not win any votes in this way), but there is no law in South Africa prohibiting one from being unwise. In fact, the Constitution requires the Police to protect even those who we believe are acting unwisely from the intolerant and undemocratic attacks by fellow citizens.

The Police also has a duty to protect marchers from intimidation and attack. There might be cases where intolerant citizens spontaneously begin to threaten marchers and the Police must then step in to protect the marchers. If they cannot do so, they may try to defuse the situation by diverting the march. But where leaders in effect call on supporters to deny other citizens their democratic rights, the Police has a positive duty to deploy the necessary resources to protect such marchers. The Police did not (or could not) stop Cosatu members from massing and attacking the DA marchers, suggesting that the Police is partly to blame for the ensuing bloodshed.

Lastly, I am not an economist so I do not have a strong view about whether the youth wage subsidy is a good thing or a bad thing. But if Cosatu wants to convince people like myself that it is a bad idea, they will have to present arguments to that effect. They sure as hell will not convince me of their view by stopping others from expressing the contrary view.

In fact, responding to a peaceful protest march with violence would suggest that Cosatu does not have a sound and convincing argument that it thinks will convince the millions of unemployed youth that a policy aimed at creating youth employment is a bad thing. Maybe there are such arguments, but in the absence of a cogent and sound response from Cosatu, many people will be left with the perception that Cosatu is protecting the interests of its members and do not care much about the unemployed who, after all, are not constituents of Cosatu because they are unemployed and cannot join a union.

A company called Bosasa is suing Basson and the Mail & Guardian for publishing a story headed: “Very brave for a young man”. The article relates the facts around a chilling phone call received by Basson from communication strategist Benedicta Dube. Basson was perturbed by the phone call because it transpired that Dube knew where and what Basson had studied, where he was born, and what his ID number was. She also read to him the names of some of Basson’s friends and their professions. During their conversation of almost 18 minutes Dube also threw in lines such as: “You are very brave for a young man” and said she would “kill” Basson if he told anyone about their conversation. She has not sued Basson for reporting this phone call, so one must assume that his version of the phone call is true, which is kind of scary.

Bosasa did sue, because in the article Basson claims that he had exposed in the Mail & Guardian over a period of three weeks “the corrupt relationship between facilities management company Bosasa and the Department of Correctional Services”. Bosasa did not like being called corrupt (or perhaps it is the claim that the corruption originated from a relationship with the Department of Correctional Services that got them upset) and as part of its pre-trial manoeuvres, it demanded some documents from Basson and the Mail & Guardian. They provided the relevant documents but with the names of their sources redacted.

In a preliminary legal skirmish the parties asked the South Gauteng High Court to determine whether Basson and the Mail & Guardian had a legal right to protect their sources in this way – despite having a defamation case brought against it. In a judgment written by Tsoka J, which seems to deal with the potentially dry legal question of the correct interpretation of Rule 35 of the Uniform Rules of Court, the learned judge made an important ruling in defence of the freedom of the media.

Sub rule 2 of Rule 35 states that a party is not expected to produce documents or tape recordings “in respect of which he has a valid objection”. Tsoka pointed out that all the relevant documents were indeed disclosed. The only question was whether Basson and the Mail & Guardian had a valid objection against revealing the names of their sources. The Rule, said the judge, had to be interpreted in the light of section 16 of the Constitution which guarantees freedom of expression, which includes freedom of the media. Bosasa claimed that if it were denied access to the names of the confidential sources its right to a fair trial would be infringed.

As an aside: the latter claim by Bosasa is a peculiar, one might think perhaps a Freudian, slip on the part of Bosasa as it is not facing criminal charges and its right to a fair trial is thus not implicated at all. This is a civil case in which it is claiming damages from Basson and the Mail & Guardian for alleged defamation for damage to its reputation. (Basson and the newspaper claims, rather cheekily, that Bosasa has no reputation that could have been damaged by the article as the company is widely associated with corrupt activities.)

Tsoka J, quoting extensively from the important Constitutional Court case in Khumalo v Holomisa, emphasised the important role played by the print, broadcast and electronic media in the protection of freedom of expression in our society. The media are key agents in ensuring that the right to freedom of expression is enjoyed by all citizens. The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate. The media are also important agents in ensuring that government is open, responsive and accountable to the people as the founding values of our Constitution require.

In order for the media to do its job, it is imperative that journalists are able to keep their sources confidential. In the absence of a guarantee of confidentiality, many sources would not co-operate with the media and ordinary citizens would be the poorer for it.

Tsoka then looked at the facts of the present case, noting that the contention between the parties is not whether the Mail and Guardian had acted with malice. It was therefore not relevant to its case who the confidential sources of the allegations of corruption were. The story was either true or it was untrue. The judge also rejected arguments that an Australian case which found that a journalist had to reveal his sources had to be applied here, presenting several arguments to justify this rejection. To my mind the best argument raised by the judge why the Australian judgment would not help Bosasa is neatly captured in the following statement by Tsoka J: “In any event, there is no Bill of Rights in Australia.” How it warmed my heart to read those words.

In any case, Tsoka found that the issue in each case would be whether the names of the sources would be pivotal to the case made by the party suing for defamation. Given the fact that Bosasa has to prove that the statements are defamatory and that Basson and the Mail & Guardian then has the onus to show that its defences against a claim of defamation is valid, the names of the newspaper’s sources at this stage is wholly irrelevant. The sources are allegedly employed by Bosasa and are fearful of reprisal, should their identities be revealed. As Bosasa has a duty to deal with the question of whether the allegations made are true or false, it is neither here nor there who the sources are who gave the information to the newspaper.

Although there is not a blanket journalistic privilege never to reveal one’s sources when one is sued for defamation to the contrary, in this case the sources should be protected as their identities are not central to the case and as they exercised a “laudable civic duty” by acting as whistle-blowers in a case of alleged corruption involving the state. The case may be different where a journalist receives information about the commission or pending commission of a serious crime, a journalist would be foolhardy to claim that it had to protect its sources providing such information. But this is not such a case.

Reading the judgment I could not help but wonder about the possible Oscar Wilde effect in a case like this where an institution like Bosasa sues a newspaper for defamation. Had Bosasa considered the risk it is taking? What happens if, during the trial, it becomes clear that the company was indeed embroiled in a corrupt relationship with the Department of Correctional Services? Has the Directors considered the risk of being arrested for corruption if this were to happen?

And why is Bosasa so adamant about getting accesses to the names of those who had leaked information to the Mail & Guardian? Is there any connection between this eagerness of the company to obtain this information and the implicit threat made to Adriaan Basson that he might get killed for investigating Bosasa? As things stand, this case has already been damaging to Bosasa as it has placed some doubt in the minds of reasonable individuals about its behaviour. It might not be corrupt (and this will only be ascertained during the trial), but has it not shot itself in the foot by its heavy handed legal approach to the case?

Is Bosasa and its directors the ones being brave for taking on the Mail & Guardian? After all, cross examination can often be devastating to those who try to hide things. Only time will tell.

Now it has ruled that it cannot make any ruling on whether completely misleading and dishonest government adverts promoting the Secrecy Bill contravenes the Code. The Right2Know campaign had complained about these ads, invoking section 4.2.1 of the Code. This section states that:

Advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer.

In refusing to consider the merits of the case, ASA invoked section 2.4 of part I of the Code which states that:

To the extent that any advertisement:

· Expresses an opinion on a matter which is the subject of controversy; and
· That controversy involves issues within the areas, broadly defined, of public policy and practice, then that opinion shall not be subject to the provisions of the Code relating to misleading claims.

This exclusion is obviously aimed at those ads in which a controversial opinion is expressed about matters of public policy to the extent that such opinions are expressed. Thus, if an add expresses the opinion that etolling is a bad thing, that motorists should oppose the introduction of etolls and that etolls are being imposed by a government with no respect for citizens, it will not be possible for the government to complain about the add on the basis that the opinions expressed in the ads are incorrect. This is because opinions, by its very nature, are not easily verifiable as either true or untrue.

But surely the Secrecy ads are fundamentally different. If the adds promoted the Secrecy Bill by expressing the opinion that South Africa needed this law to protect the national security of the state, ASA would have been prevented from considering whether the ads are misleading or not, because the adds would express an opinion about whether the Bill is needed or not. Reasonable people may well differ about whether this is indeed the case.

But this is not what the ads do. They do not purport to express an opinion only, but also purport to inform the public about facts, namely what the Secrecy Bill is in fact aiming to achieve. They make what appear to be factual assertions about the scope and nature of the Bill. One of the television adverts presents a seven year old child (see below) saying that: “My government knows who I am because my government protected my birth certificate.” It then continues that the “Protection of State Information Bill is about getting serious, serious about protecting your information.”

The advertisement therefore states as fact – both in words and through visual presentation – that the Secrecy Bill is about protecting information relating to birth certificates. This is a factual claim which is untrue. To put it differently, this is a blatant lie. The exclusionary rule explicitly states that the exclusion only applies to the extent that it expresses an opinion. Where an advert contains both opinion and assertions of fact, the assertions of fact remain to be considered by ASA in terms of its rules. But What ASA has done is to refuse to adjudicate on the fal;se assertions because the advert also contains opinion. That is a blatant and obvious misreading of its own Code.

In fact the Secrecy Bill says absolutely nothing about Birth Certificates. Another law, the Births and Deaths Registration Act 51 of 1992, deals with this matter. Section 29 of this Act protects the secrecy of our Birth Certificates, prohibiting any person from publishing or communicating to any other person any information obtained from a birth certificate.

Section 31 of this Act states that it is a criminal offense for any person who has custody of a birth certificate to damage it or destroy it; to make false copies of a birth certificate or a reproduction. The Secrecy Bill does no such thing. The factual claim made in this advertisement is therefore false and is in contravention of section 4.2.1 of the Code. Because the advert purports to make true factual statements, ASA could not plausibly argue that the adverts merely deal with the expression of controversial opinions.

I will give an example to illustrate the distinction I am making but which ASA seemed unwilling or incapable of making. If someone produces an advert stating that President Jacob Zuma is a bad President because he is soft on corruption, that advert would be expressing an opinion and ASA would not be able to make a finding about the advert on the basis that it is misleading. Whether President Zuma is soft on corruption or not is itself a matter of opinion.

However, if that advert stated instead that President Zuma is a bad President because he has been convicted of rape, then the advert would include an assertion of fact that is demonstrably false and ASA would then not be able to invoke section 2.4 in order not to make a ruling on the advert. President Zuma has never been convicted of rape and the advert would therefore be false and misleading.

Similarly, the Secrecy Bill adverts state as fact that the Secrecy Bill is about matters with which the Secrecy Bill does not deal at all. It is therefore not a matter of opinion about whether these adverts are false and misleading. It is a matter of fact.

I guess one should not expect any semblance of logic to emanate from a body who seems to be prepared to believe that angels exists, but it is rather troubling that ASA has been too cowardly or subservient to make a ruling on these false and misleading adverts merely because this would have been politically awkward.

Any political party or faction in a political party who captures the SABC has a huge propaganda advantage over its opponents. No offense to the Times with its 100 000 daily circulation, but it is really not that important that the Times told me this morning of all the shocking revelations made yesterday against crime intelligence boss Richard Mdluli at an inquest hearing into the murder of his ex-girlfriends husband. Unless these allegations are accurately reported on the vernacular radio stations and on the isiZulu TV news, it is almost as if the inquest hearing did not really happen.

No wonder then that the SABC has placed its group chief executive of news, Phil Molefe, on “special leave” (whatever that may mean), allegedly after he defied his senior executives’ orders to stop giving too much air time to the ANC’s enfant terrible, Julius Malema. The Star reports that Molefe allegedly refused to obey orders given to him by SABC CEO Lulama Mokhobo and the acting chief operating officer, Hlaudi Motsoeneng, this week and that the root of the conflict was Molefe’s decision to give full coverage to rallies which were addressed by the expelled ANC Youth League president Malema. (Whether this report is entirely correct, is not clear – except for the bit about Molefe being on “special leave”, which is definitely true.)

The SABC is supposed to be a public broadcaster that serves all South Africans and reports news as fairly and impartially as is possible. This is not always the case. Sometimes the SABC acts more like a state broadcaster or like the mouthpiece of the government or of a faction within the ruling party than like a public broadcaster. It must be said that is not nearly as bad as it used to be during the apartheid years when the SABC was a slavish National Party propaganda tool. Commercial considerations now prevent the SABC from turning into a full-on propaganda machine.

(Koedoe Eksteen, a slavish Nationalist who served as the CEO of the SABC during the nineteen eighties tells the bizarre story of how then State President PW Botha phoned him up demanding that the SABC immediately stop broadcasting the science fiction series called “V”. The series told the story of a group of aliens who came to earth and revealed themselves at night as horrible reptile like creatures. These aliens look like humans (but need to wear dark glasses against the sun) but they later reveal themselves as carnivorous reptilian humanoids. As PW Botha’s nickname was “Die Groot Krokodil” (The Big Crocodile) he believed the programme was meant to mock and humiliate him. Eksteen then arranged for the screening of all the “V” episodes in one go to placate the State President.)

Interestingly enough, the ANC negotiators at the Constitutional Assembly made sure that the Constitution avoided any mention of the SABC or of an independent public broadcaster, despite the insistence of the National Party and other smaller parties that the independence of the public broadcaster be protected in the Constitution. Instead, negotiators agreed on section 192 of the Constitution which states that:

National legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society.

Nevertheless, on paper, the 1999 Broadcasting Act provides some guidelines supposed to ensure that the SABC will provide a vibrant, fair and impartial news service. Thus section 6 of the Act states that the SABC must encourage the development of South African expression by providing, in South African official languages, a wide range of programming that:

(a) reflects South African attitudes, opinions, ideas, values and artistic creativity;

(b) displays South African talent in education and entertainment programmes;

(c) offers a plurality of views and a variety of news, information and analysis from a South African point of view;

(d) advances the national and public interest.

Moreover, as part of its mandate as a public broadcaster the SABC is required by section 10(1)(d) of that Act to “provide significant news and public affairs programming which meets the highest standards of journalism, as well as fair and unbiased coverage, impartiality, balance and independence from government, commercial and other interests”.

However, this happens in line with policies developed by the SABC Board, which (in terms of section 13 of the Act) is selected by members of the National Assembly (by a simple majority vote) after which they are appointed by the President who also selects one of the Board members as the Chairperson of the Board.

The Act provides wide powers to the National Assembly to fire individual Board members on account of misconduct or inability to perform his or her duties efficiently. This last criterion for removal is so vague that, in effect, the majority of members of the National Assembly can remove any member of the Board which it has lost faith in. The National Assembly can also dissolve the Board if it fails to discharge its fiduciary duties; fails to adhere to the Charter; or fails to carry out its duty to control the affairs of the Corporation and enforce compliance with the Charter of the SABC.

In effect, this means that the SABC is governed by a group of people selected by the majority party in the National Assembly. If the majority party does not like what the Board is doing or if it thinks the SABC is not adhering to its mandate, it can fire the Board. The Board therefore has a very strong incentive to please the governing party, a failure of which would mean that the members of the Board might well be fired. Sometimes these members see the writing on the wall and then they resign, creating the atmosphere of permanent crisis at the SABC which we have become used to.

It is no wonder that instability inside the ANC, with various factions vying for leadership positions and access to tenders, have led to instability at the SABC. This instability, along with reported nepotism and corruption which created a huge cash flow problem as the Broadcaster was haemorrhaging money, have led to a legitimacy crisis for the SABC. This means that more and more people are watching or listening to the SABC with a slightly jaundiced attitude. If one happens to be in, say, the Jacob Zuma faction inside the ANC, one will recall how the SABC favoured then President Thabo Mbeki in its coverage and censoring embarrassing events affected the President or those in his inner circle and one will know that one should not believe everything one hears or sees on TV. (Not that one should believe everything one reads in the newspapers, but that is another story.)

In my view the only way to fix the SABC is to change the way the SABC Board (and the senior managers at the SABC) is appointed. As long as the Board is beholden to the majority party in the National Assembly and as long as party loyalists are appointed to key positions inside the SABC, the SABC will not be able to fulfil its mandate as public broadcaster.

There is obviously no political will to detoxify the SABC and to rid it of factionalism and the narrow party politics which is currently bedevilling the Broadcaster. But if there were such political will, there are several ways in which the Board could be appointed to ensure that it remains at arms length from direct party politics. The Board can be appointed by a super majority of members of the National Assembly to try and prevent the selection of a Board that only represents the interests of one faction of the dominant political party. Or the Board could be appointed on the basis of suitable consensus being reached, with horse-trading between various political parties to ensure that the different constituencies are represented.

Another innovative way to appoint an independent body can be found in the Electoral Act which governs the selection of the Electoral Commission. The Electoral Act requires a panel of eminent persons to select a list of three more people than the number of members to be appointed for recommendation to the National Assembly. The body of eminent persons is composed of the Chief Justice as chairperson; a representative of the Human Rights Commission; a representative of the Commission on Gender Equality; and the Public Protector. A committee of the National Assembly then selects the appointees from this list.

Until this happens, the SABC is likely to continue making news instead of reporting it fairly and impartially.

A few years ago Zuma announced that he was going to sue Zapiro for R5 million because he claimed the cartoonist had defamed him after the cartoonist had published a cartoon in which he suggested Zuma was violating the justice system to avoid facing fraud and corruption charges.

It therefore comes as no surprise that the National Disciplinary Committee (NDC) of the ANC – ostensibly acting completely independently of President Zuma (yeah right!) – announced this morning that it was temporarily suspending Julius Malema from the ANC with immediate effect. The purported reason for this suspension is that Malema allegedly brought the ANC into disrepute. (Malema had already been expelled from the ANC earlier, but his appeal regarding the expulsion is to be heard only later this month.)

Apparently the ANC as an organisation is brought into disrepute if one of its members criticises the leader of the party in public. (Criticism might be the lifeblood of any democratic culture, but public criticism of leaders has now suddenly become alien to the culture of the ANC – at least if that criticism is levelled at President Zuma.) How any political party can remain democratic and how it can renew itself and correct mistakes, when its members are not allowed to criticise the party leader in public, is unclear. Maybe criticism can be communicated in secret messages with the assistance of the intelligence services?

Of course, this ban on any public criticism of a sitting leader is not based on a principle that was followed by President Zuma and his supporters during his fight with former President Thabo Mbeki. But I guess consistency and an abiding respect for high principles is not really what is in play here. What is at play is President Zuma’s future survival. Remember, he might well believe that he will either get a second term or he will go to jail for 15 years, so (in his eyes) there might not be time for niceties such as respect for democratic debate inside the party.

Malema now faces fresh disciplinary charges, which will obviously lapse once the ANC Appeal Committee confirms Malema’s expulsion – surely only a formality. This is after Malema criticised Zuma on Friday in the following terms:

It is under President Zuma that we have seen the youth of the ANC being traumatised, being expelled from their own home. It is under President Zuma we have seen a critical voice being suppressed We have seen under President Zuma, democracy being replaced with dictatorship. We have seen an intolerance….people, who become impatient with the youth….

The NDC did not say who complained about the utterances made by Malema. It did stipulate the following (once again rather draconian and probably not entirely enforceable) conditions that Malema will be required to comply with during his suspension:

• He will not exercise any duty in his capacity as an ANC member, President of the ANC Youth League and/or Member of the Provincial Executive Committee of the ANC Limpopo Province;
• He will not attend any meeting of the ANC or any of its structures, including the Leagues, except for the purpose of the NDCA hearing and the pending disciplinary proceedings to be instituted against him.

• He will not address any meeting of the ANC or any of its structures, including the Leagues, whether as an invited guest, in his capacity as President of the ANC Youth League and/or as a member of the ANC; and
• He will not make any public statement on any matter pertaining to the ANC.

Of course, the first thing to note is that this will bring the clash between the Youth League and the mother body of the ANC to a head, as Malema is forbidden from attending any Youth League meeting, which the League insists can operate free from the discipline of the ANC.

Members of the Youth League Executive (with or without Malema) will now have to decide either to defy this order of the disciplinary committee or face disciplinary charges and expulsion themselves. What happens if they continue arguing that the Youth League Executive members cannot be ordered around by the mother body and cannot say whether Malema should sit on the League’s Executive or not? What if the Executive continues meeting with Malema as its President? Surely they will all then have to be suspended as well and then ultimately expelled.

President Zuma seems to have learnt well from the “mistakes” of Thabo Mbeki and he is taking no chances with those who might oppose him. Cut off their heads before they can gather steam, seems to be his motto. Whether this is a democratic attitude or closer to the dictatorial style that Malema spoke about, I leave to the judgment of the readers.

Secondly, an order purporting to ban Malema from making any public statements on any matter pertaining to the ANC infringes on Malema’s right to freedom of expression. Our Bill of Rights can also bind private individuals, organisations and political parties and I am almost certain that when an organisation bans a member from making any statements about that organisation in public that organisation is in breach of the Bill of Rights. For this reason, the probably unconstitutional censoring of Malema by the NDC seems troubling, to say the least.

A further irony is of course that this immediate suspension and the draconian (and partially unconstitutional) nature of the “conditions” imposed on Malema during this latest suspension nicely seems to illustrate the point Malema was making in his speech about the intolerance of Zuma to dissent and the inability of the leadership to listen to and accept criticism of ANC leaders and policies.

By making these points I am not arguing that Malema was wise to make the statements that got him into trouble today. Neither am I claiming that I believe Malema is an eternal democrat who is saying these things because he really has the best interests of the ANC at heart. Yet, as I warned before, one must be careful to cheer on this silencing of debate and dissent inside the ANC merely because the person being silenced is someone with whose views one does not agree and whose downfall one might applaud.

Today they come for Malema. Tomorrow they might come for you or me.

If Obama can implicitly criticise the judges of the US Supreme Court, why can’t President Zuma say that he wants to review the powers of the Constitutional Court? Why can’t Gwede Mantashe say that our judges threaten the stability of the country and act in their own self-interest because they are hostile to the ANC-led executive? Why can’t Ngoako Ramathlodi say that because of the Constitution “the black majority enjoys empty political power while forces against change reign supreme in the economy, judiciary, public opinion and civil society”? Why can’t he say that the courts in our judiciary “the forces against change still hold relative hegemony”?

They may be emboldened by this line of reasoning if they read the column by liberal New York Times columnist Maureen Dowd who lashed out at the five right wing judges who form a majority on the nine-member US Supreme Court in the following manner:

This court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once they give the last word, is well on its way to becoming one of the most divisive in modern American history. It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes. All the fancy diplomas of the conservative majority cannot disguise the fact that its reasoning on the most important decisions affecting Americans seems shaped more by a political handbook than a legal brief.

But this possible shadenfreude by South African critics of the Constitutional Court would be unjustified and more than a tinge dishonest. Very few people argue that judges and the decisions they make should never be criticised – even in harsh terms. I myself have often criticised various judgments of the Constitutional Court as well as many judgments delivered by judges in other courts in South Africa. Criticism of judgments of the judiciary is not the issue. For example, a critical analysis of the Constitutional Court judgment which refused to hear the Hlophe appeal would be potentially valuable. I for one would engage vigorously with such a critical analysis and will try to demolish any kind of argument put up (which, I believe, would not be too difficult to do).

This kind of criticism of judicial decisions is par for the course for any academic.

What we object to is the conservative  attacks on the judiciary masquerading as radical concern for transformation. Some of us take issue with Jacob Zuma, Gwede Mantashe, Ngoako Ramathlodi and others, not because they criticise court judgments or because they attack specific judges (based on the conservative or even reactionary judgments handed down by those judges). We take issue with these self-serving and undemocratic attacks, first, because the attacks on the judiciary (the Constitutional Court, in particular) and on specific judges are not based on fact at all and are mostly based on, (how shall I put this nicely), an adventurous and creative engagement with the truth.

It is not as if the Constitutional Court cannot and should not be criticised. But then it should be based on the judgments of that court and the reasoning employed in the specific judgements of that court by an individual judge.

I have yet to see any critic of that court explaining which judgments exactly demonstrate that the Constitutional Court is hostile to the ANC or that it opposes transformation.

Can it be the judgment in which the court found that search warrants in the Zuma case were valid? No, that case dealt a blow to Jacob Zuma’s attempts to stay out of jail, but obviously had nothing to do with transformation.

Can it be the judgment that declared invalid the law on which President Zuma relied when he extended the term of office of the former Chief Justice? No luck there either, as that judgment was based on a protection of the separation of powers and the independence of the judiciary (which the ANC says it will defend to the bitter end), so that judgment was actually pro-ANC.

Was it the judgment which invalidated the government’s HIV mother to child transmission policy? No, that judgment promoted the well-being of poor and vulnerable women and their children.

And what judgment exactly threatened the stability of the country? Not one judgment comes to mind or has ever been mentioned by the critics of the Constitutional Court.

But there is a second reason why most of these attacks on the judiciary and the Constitutional Court are not just wrong, but also dangerous. They often seem to come from a deeply reactionary and undemocratic place. What is being objected to is not the politics or ideology of a specific Constitutional Court judgment or whether the judgment is pro-transformation or anti-transformation (after all, if that was the issue, the current Chief Justice – the most conservative member on that court – would never have been appointed by President Zuma).

Instead, the aim of those who attack the Constitutional Court often seems to be to create a scapegoat for the governance failures of the government. Without ever being able to name one Constitutional Court judgment which has stopped textbooks from being delivered to a school, which has stopped the government from replacing mud schools with brick and mortar schools, which has stopped the government from taking back control of schools from the out of control labour unions, attackers claim that it is the fault of the Constitutional Court that for some people little has changed in South Africa since 1994.

But it was not the Constitutional Court that imposed the GEAR policy on the government; that imposed a willing-buyer willing-seller land reform policy on the government; that forced the government to buy R40 billion worth of arms; that forced the government Ministers to stay at the Mount Nelson and buy million Rand cars. No, that was our government who did this all by itself.

So, by all means, criticise the judgments of the Constitutional Court, but be honest when you do so. Do not hide behind vague and untrue claims about the evil courts to try and justify the failures of the government. Do not attack the supremacy of the Constitution – as if this supremacy is to blame for the many “challenges” of government. Be honest about your motives for criticising a judgment. For example, why not come right out and say that the decision by the Supreme Court of Appeal (SCA) nullifying the appointment of Menzi Simelane, has nothing to do with fears of stifling transformation and everything to do with fears that an independent person will be appointed as National Director of Public Prosecutions who will not block the prosecution of well-connected politicians.

Apart from the fact that the government is not supposed to promote a Bill currently still serving before Parliament and not yet passed into law (as Parliament is currently seized of this matter, and the executive has no truck with the Bill until it is actually passed and becomes law), the advertisements are about as honest and truthful as your average Senior Manager at the Department of Public Works testifying at the Bheki Cele Inquiry.

I focus on the English version, which can be played via YouTube:

The text of the advert is as follows:

Female Voice: “Are you following the whole debate about this new law everyone is talking about? Something about state information?”

Male Voice: “Yes. And I see why government worries. All this stuff about identity theft, people being long dead but collecting pensions, the list is endless.”

Female Voice: “But what about corruption? How will the government deal with that?”

Male Voice: “The bill makes it clear that if people try to cover up corruption they will go to jail for up to 15 years, and whistleblowers will be protected.”

Female Voice: “That’s good. But will we still be able to get the information we need from the government?”

Male Voice: “Yes. Our constitution gives us that right. As for the press, the bill doesn’t suppress press freedom at all. When you want information that is classified, you just have to apply for it. If you are still not happy, you can go to court and the judge will decide if it is in everyone’s interest.”

Female Voice: “Yes, sounds reasonable.”

Male Voice: “The thing is that government has to protect its information from criminals. There are spies out there that want to steal our information to develop their own countries at our expense.”

Female Voice: “I see. I want to familiarise myself with the bill more. There’s so much I didn’t know.”

Male Voice: “Great, ‘cause it’s really important that government protects its information. It is about protecting our country and its hard-won freedom. Ensuring that we all live in peace, security and prosperity.”

The thing is, the Secrecy Bill has absolutely nothing to do with identity theft and neither has it anything to do with people fraudulently collecting pensions if they are not entitled to do so. Although section 8 and 9 of the Secrecy Bill deals with the protection of valuable information (which could include personal information about one’s ID held by the state), and although these sections state that such information warrants “a degree of protection and administrative control and must be handled with due care and only in accordance with authorised procedures”, the Bill does not actually criminalise the selling of your ID by a state official and is in no way dealing with identity theft. What a very small part of the Bill does (about 4 of the more than 50 clauses in the Bill) is that it prohibits any person from unlawfully and intentionally destroying, removing, altering or erasing valuable information.

A state official would therefore be punished in terms of this Bill if he or she deleted your ID information from the government database. What the Bill would not deal with at all is identity theft or pension fraud. The law already punishes fraudulent selling of your ID information to others as well as pension fraud, and this Bill has absolutely nothing to do with that. In other words this advert is deceitful and dishonest. This is perhaps not surprising, as the adverts were cooked up by the very spies who, we are told, we should trust with decisions about the need to classify state documents as secret or top secret. I would not trust these people when they tell me what the weather will be like tomorrow – let alone with these decisions that may well hide serious criminality and corruption. (General Mdluli, are you there?)

Ironically, what the adverts do,  is to illustrate beyond all doubt why this Bill is so dangerous. If these people are prepared to deceive the public so blatantly and openly, why would they not lie to us about the existence of wrongly and unlawfully classified documents which we might need to get access to in order to expose corruption or in order to expose the blatant flouting of the law and undermining of our democracy by the intelligence services?

The “safeguards” in the Bill which the advert talks about are therefore illusory. If it is a criminal offense to be in possession of a classified document, and if one tries to get access to a wrongly classified document, the spies will merely claim that the document does not exist, finish en klaar. If one then claims to have seen the document, one will be arrested and charged for possessing a classified document and to admitting to having committed a crime and one could be sentenced to a long period in jail for possessing even an illegally classified document.

It is true that section 43 of the Bill states that a person who is protected by the Protected Disclosures Act may disclose documents despite any provisions in the Bill, which means that a very brave (some would say very stupid) state employee who discovers documents demonstrating criminal activity or corruption by the intelligence services, may leak such documents to, say, the Public Protector.

What the advert does not say is that the Public Protector will then immediately have to take the leaked documents showing serious criminal activity to the nearest Police Station where one of Richard Mdluli’s cronies will be able to receive the document and “deal” with it to protect the intelligence services and those exposed as criminals or crooks in the documents. The Public Protector can then try and get access to the document via various means and after several years – and assuming rather optimistically – that the document had not been “lost” (in other words, destroyed), she might finally get access to that document – long after the crime was committed and the cover up effectively instituted, the witnesses “disappeared” or intimidated into silence or packed off to Tjikitjikistan as the undersecretary of culture.

Moreover, the advert seems to suggest that all active citizens are really no more than potential criminals, suggesting how the paranoid spies view us ordinary citizens. It says that the state has to protect its information from criminals, but it is exactly the kinds of information that we need as citizens that we will be “protected” from accessing. We will not ever again be able to know that intelligence services had concocted another Browse Mole Report to discredit the enemies of the sitting President. We will not ever again be able to know that the spies had taped telephone conversations between politicians or between NPA members. We will not know that senior ANC leaders have been spied on by the intelligence services because the President thought that these leaders might pose a threat to his political ambitions.

Of course, the adverts also display the kind of paranoia that is familiar to students of any fascist police state. Hence it suggests that we need to protect state secrets because if any of these secrets held by the state are ever released, our very freedom (the freedom curtailed by this Bill) will be threatened. Now, I for one cannot imagine what secrets the spies are keeping that are so earthshattering that it would threaten the very life of our nation and our Constitution if it were to be made public. Could it be information about financial donations made by foreign dictators to the President or the governing party? Information about the sex-lives of politicians illegally spied upon by the intelligence services on instructions from the President? Maybe there are documents proving that our spies are plotting to assassinate the President of the United States, which, if revealed, could lead to a US military invasion.

But I doubt that any of these documents exist and even if they did, we will be protected by its disclosure (and disclosure of the unlawful actions by the intelligence services who might have compiled these documents illegally), not by keeping them secret.

This Bill is about protecting the intelligence services and drawing a veil of secrecy over their often unlawful activities in order to enhance the powers of the spies, create a police state within a state and protect the leadership of the incumbent faction inside the ANC from embarrassment and from being ousted in quasi-democratic party elections. It is not about freedom but un-freedom, not about democracy but a threat to our democracy.

If you believe otherwise, I am sure you will also believe me when I say that you should please send me all your banking details (including password) immediately so that I can transfer a few million dollars into your account, which I will do because I need your assistance with transferring fabulous amounts of money into South Africa.

Masetlha, in court papers, called Mbeki a liar in return but lost that battle when his dismissal was confirmed by the Constitutional Court.

Masetlha was blamed for authorising the unlawful surveillance of ANC executive and businessman Saki Macozoma under the pretext that he was involved with foreign intelligence; for being involved in the fabrication of the e-mails that purport to implicate senior government and ANC officials in a plot to side-line and incriminate embattled former deputy president Jacob Zuma; for being highly involved in party political squabbles by colluding with politicians in the divisive succession battle that, at the time, was polarising the ruling party between Mbeki and Zuma camps; and for acting unlawfully in bugging and intercepting individuals’ communications for the same purpose, which could have contributed to the fabrication of the e-mails.

Later it transpired that the intelligence services were bugging the phones of various former and current law enforcement agents, including Bulelani Ngcuka and Leonard McCarthy (we were told this was done legally but no hard proof was ever provided for this claim), which tapes were then mysteriously leaked to the current President and his lawyers and was then used to justify the politically inspired dropping of criminal charges against the President.

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

More recently news reports suggested that several high profile appointees in the intelligence services have resigned after clashes with the Minister of State Security, allegedly in part sparked by disagreements with the Minister about the unlawful misuse of the intelligence services to spy on political opponents of the ruling Jacob Zuma-factions within the governing ANC.

In the intelligence world, a world filled with subterfuge, lies and counter-lies, misinformation and secrets, it is never easy to know which side is talking the truth. But surely all these stories do create a picture of a highly politicised set of South African spy agencies who have, for the past several years, been involved in illegal activity – some of it relating to succession battles inside the ANC.

It is not as if they have not had access to lots of scandalous or suspicious facts (not fabrications) about the political opponents they were targeting for being on the “wrong” side of the ANC factional battles. Zuma was bribed by Schabir Shaik, there were some very ambitious and greedy people who were not happy with Mbeki’s leadership of the ANC, Zuma did have sex with the daughter of an old struggle friend and for undisclosed reasons he did visit Angola and Libya when his legal and political troubles started, former NPA boss Bulelani Ngcuka did chat to the head of the Scorpions about the timing of laying corruption charges against Zuma.

But the fact that the intelligence services were involved in collecting and then, in some cases, leaking this information must surely have had everything to do with them taking sides in the succession battles inside the ANC and absolutely nothing to do with protecting the security of the state.

These facts came back to me when I read the front page story in the Sunday Times yesterday, which reported that Deputy President Kgalema Motlanthe’s partner, Gugu Mtshali, has been implicated in soliciting a R104-million “bribe” to obtain government support for a South African company trying to clinch a R2-billion sanctions-busting deal with Iran. My interest was further piqued by the revelation in the story that the Sunday Times had access to recordings of confidential discussions when the “bribe” was solicited as well as of confidential documents (which was “understood to have also been obtained and analysed by US intelligence agencies”).

Who made these recordings? On whose instructions were they made? Were South African intelligence operates involved? How did the US intelligence obtain the material (or was this a red-herring provided by those who leaked the story)? Why has this information been leaked now, so soon after President Zuma has managed to dispense with his other opponent, Julius Malema? Is it a co-incidence that Kgalema Motlanthe is seen by many is the most credible opponent to face President Jacob Zuma at the party’s election later this year at Mangaung?

Of course if the intelligence services were in any way involved in a smear campaign against the Deputy President (and as always, smear campaigns work best when there is real dirt to smear somebody with), it would suggest that they are firmly in the Zuma camp and that they are prepared to abuse their power to secure another term for their “boss”.

If the Secrecy Bill had been in place it would have been impossible ever to find out whether the intelligence services were involved in this or not. This is because the Bill would prohibit anyone from leaking any information about their involvement (unless that person wanted to spend between 10 and 25 years in jail) in such a case. It would literally pull a veil of secrecy over the work done by the intelligence services and would make it impossible to know or reveal whether they are involved in anti-democratic smear campaigns against the political opponent of the President (or whomever is in control of the intelligence services).

It might be that this information came out now because one of the parties involved in the “bribe” is unhappy because the deal eventually fell flat. But attempting to bribe somebody is already a criminal offense, so it would be very stupid for such a person to leak information to a newspaper about his own criminal activity – unless he is pretty sure that he will be protected, either because he was involved as an agent of the intelligence service from the start as part of a sting operation, or because he knows that the various security services will protect him because this was cleared out with somebody high up in the Zuma camp.

Which just goes to show: there might well be good reasons (apart from taking a principled stand) why Kgalema Motlanthe and other leaders of the ANC are reportedly opposed to aspects of the Secrecy Bill. They might well be worried that when this Bill is passed, the dirty tricks by the intelligence services against anyone who opposes the dominant clique inside the party will be stepped up and that it will become impossible ever to reveal such dirty tricks without facing a very long prison sentence.

And once the out of control intelligence services are protected by the Secrecy Bill, one will only be able freely to take bribes and be corrupt without fear of prosecution or exposure, if one remained a loyal supporter of the political leader who happens to be in charge of the intelligence services. And what a nuisance that would be.