Constitutional Hill

Freedom of expression

Mr Landers, a public interest defence is possible and widely accepted in democracies

Sep 20th, 2011
by Pierre De Vos.
113 comments

This morning as I was driving to work, I heard Mr Luwellyn Landers, a member of the ad hoc Parliamentary Committee tasked with debating and rewriting the Secrecy Bill, talk about the impossibility of including a public interest defence in the Secrecy Bill. A public interest defence would protect whistle-blowers and journalists from wrongful prosecution for exposing corruption and maladministration in the public interest — even when they leak or publish the content of classified documents and even if these documents were classified top secret to protect national security.

Mr Landers claimed that it had been impossible for the Committee to include a public interest defence in the Secrecy Bill as this would turn the Bill into a useless document that would lose all effectiveness. Such a move would also go against “international practice”, he claimed.

Because I was listening to the radio, I could not see whether Mr Landers’ nose was growing longer as he spoke.

Mr Landers must be unaware of (or must deliberately be misleading the public about) the fact that the Council of Europe Convention on Access to Official Documents contains a public interest override. Article 3 of that treaty allows member states to deny citizens access to documents where this is ”necessary in a democratic society” and where it is “proportionate to the aim of protecting”, inter alia, national security, defence and international relations; public safety; the prevention, investigation and prosecution of criminal activities; privacy and other legitimate private interests; and  the economic, monetary and exchange rate policies of the State.

However article 3(3) of this treaty states that:

Access to a document may be refused if the disclosure of the information contained in the official document would or would be likely to harm any of the interests mentioned [above], unless there is an overriding public interest in disclosure.

Moreover freedom of information organisations such as article 19 hold that a public interest override is ”crucial to the effective functioning of a freedom of information regime. It is simply not possible to envisage in advance all of the circumstances in which information should still be disclosed, even if this might harm a legitimate interest, and to address these through narrowly drafted exceptions or exceptions to exceptions.”

Thus that organisation has published the Principles on Freedom of Information Legislation which makes it clear that a public interest defence is pivotal for any legal regime dealing with the classification of information, stating that:

Even if it can be shown that disclosure of the information would cause substantial harm to a legitimate aim, the information should still be disclosed if the benefits of disclosure outweigh the harm. For example, certain information may be private in nature but at the same time expose high-level corruption within government. The harm to the legitimate aim must be weighed against the public interest in having the information made public. Where the latter is greater, the law should provide for disclosure of the information.

These Principles were endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression, in his report to the 2000 session of the United Nations Commission on Human Rights as well as the Organisation of American States (OAS) Special Rapporteur on Freedom of Expression in his 1999 Report to the Inter-American Commission on Human Rights. A claim that “international practice” holds otherwise can therefore at best be said to be factually incorrect.

Mr Landers must also be  unaware of (or must deliberately be misleading the public about) the fact that the Canadian law dealing with state secrecy includes just such a public interest defence. The Security of Information Act of 1985, which regulates the classification of state secrets in Canada and also criminalises the leaking of  documents and possession of documents classified as secret, contains a specific public interest defence in section 15 of that Act.

I thought it might be helpful to discuss this section of the Canadian Act to assist the ad hoc committee in its possible future deliberations on the Bill. Section 15(1) of the Canadian Act states that no person is guilty of an offence even where that person reveals “special operational information” if the person establishes that he or she acted in the public interest. “Special operational information” includes classified information about such serious state security issues as the identity of spies, plans of military operations, and information about the operation of intelligence services.

Section 15(2) states that a person acts in the public interest if

(a) the person acts for the purpose of disclosing an offence under an Act of Parliament that he or she reasonably believes has been, is being or is about to be committed by another person in the purported performance of that person’s duties and functions for, or on behalf of, the Government of Canada; and (b) the public interest in the disclosure outweighs the public interest in non-disclosure.

Subsection 15(4) of the Canadian Act contains a set of factors that a court must weigh up when deciding whether the public interest in the disclosure outweighs the public interest in non-disclosure. These factors include:

(a) whether the extent of the disclosure is no more than is reasonably necessary to disclose the alleged offence or prevent the commission or continuation of the alleged offence, as the case may be;
(b) the seriousness of the alleged offence;
(c) whether the person resorted to other reasonably accessible alternatives before making the disclosure and, in doing so, whether the person complied with any relevant guidelines, policies or laws that applied to the person;
(d) whether the person had reasonable grounds to believe that the disclosure would be in the public interest;
(e) the public interest intended to be served by the disclosure;
(f) the extent of the harm or risk of harm created by the disclosure; and
(g) the existence of exigent circumstances justifying the disclosure.

The section also provides for other safeguards that would prevent the disclosure of information that would harm the security of the state without having satisfied the public interest criteria. However, even then these safeguards do not apply if the communication or confirmation of the information was necessary to avoid grievous bodily harm or death.

Were the South African Constitutional Court to be asked to consider whether the drastic infringement on the right to freedom of expression and the right of access to information currently contained in the Secrecy Bill were justified in terms of the limitation clause of our Constitution, it would ask what was “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. It would then have to consider whether the absence of a public interest override defence is usually included in legislation of democratic countries. The Court will probably find that it is usually included, given the fact that the inclusion of such a defence is required for all countries in Europe, endorsed by officials of the United Nations and included in Canadian legislation.

Mr Landers may of course argue that South Africa is a special kind of democracy and that our government requires more stringent secrecy laws to protect it from exposure … I mean the disclosure of sensitive information — even if it is in the public interest to do so. He may argue that we should not be measured against other democracies but rather against only partly democratic or authoritarian countries where secrecy is the norm instead of the exception. But I suspect that such an argument would not be politically palatable. No wonder he is wrongly claiming that including a public interest defence in our Secrecy Bill would be impractical and would not be required by “international practice”.

Why the Secrecy Bill is probably (still) unconstitutional

Sep 19th, 2011
by Pierre De Vos.
24 comments

If newspaper reports (and the non-denial denial by an ANC spokesperson this morning) can be believed, the ANC caucus in Parliament might well refer the Secrecy Bill back to the ad hoc committee who had worked on it to iron out some of the serious problems that remain with the Bill. It must be said that the Bill now before Parliament is a much improved version of the shockingly draconian version first introduced (and laughingly certified as constitutionally compliant by the State Law Advisor) earlier this year.

Instead of an absurdly broad provision that would have allowed for the classification of documents for almost any purpose, the Bill now restricts valid classification of documents to cases where national security is threatened. National security is now defined far more narrowly than before and includes:

(a) the protection of the people of the Republic and the territorial integrity of the Republic against: the threat of use of force or the use of force;
(b) the following acts:
(i) Hostile acts of foreign intervention directed at undermining the constitutional order of the Republic;
(ii) terrorism or terrorist related activities;
(iii) espionage;
(iv) exposure of a state security matter with the intention of undermining the constitutional order of the Republic;
(v) exposure of economic, scientific or technological secrets vital to the Republic:
(vi) sabotage; and
(vii) serious violence directed at overthrowing the constitutional order of the Republic;
(c) acts directed at undermining the capacity of the Republic to respond to the use of, or the threat of the use of, force and carrying out of the Republic’s responsibilities to any foreign country and international organisations in relation to any of the matters referred to in this definition, whether directed from, or committed within, the Republic or not, but does not include lawful political activity, advocacy, protest or dissent.

If this Bill is passed and if documents are going to be classified in terms of the new Act in an honest way and in compliance with the provisions of the Act, it will not be possible to classify material merely with the aim of hiding corruption and maladministration or embarrasing details about policy cock-ups, nepotism or the wasteful and venal misuse of state funds for personal glory or enrichment.

But the assumption here is that everyone involved in classifying documents and reviewing such classifications will act like proverbial angels. This is not a plausible assumption to make. Section 3(2) of the Bill states that the provisions of the Bill regarding classification and reclassification only applies to security services, unless an organ of state (which will include any government department or ministry and any municipality) is given permission to classify documents. Currently any Minister can and does classify documents and there is little doubt that Ministers would not want to lose this power, which gives them the appearance of glamour, status and power. (I mean, how James Bond can you get: the glamour of letting slip over drinks that one has just classified a documents as secret or top secret would surely seduce all but the most upright and no-nonsense individual.)

Although the Natal Sharks Board or the University of Cape Town will probably not apply for an exemption in terms of section 3(2), all the important institutions (those who might want to use the provisions of the Act to hide important information from the public and could be trusted the least to apply the Act honestly) will probably apply for permission to use the Act to classify documents it thinks the public should not have access to. Big municipalities will want to classify documents that might reveal how many open toilets it had built or how much money it has spent on upgrading roads in the posh suburbs and Ministers would want to classify documents that reveal long stays at the Mount Nelson Hotel and exorbitant trips to go and visit drug dealing girlfriends in prisons in Switzerland.

Now, it must be conceded that section 19 of the Bill allows anyone to make a request for access to documents which have been wrongly classified. The head of an organ of state must then review the classification of the documents. Section 19(3) contains an excellent provision which states that the head of the organ of state concerned must declassify the classified documents and must grant the request for state information if that state information reveals evidence of ”a substantial contravention of, or failure to comply with the law; or an imminent and serious public safety or environmental risk; and the public interest in the disclosure of the state information clearly outweighs the harm that will arise from the disclosure”.

Where Ministers are honest, diligent and prepared only to act in the public interest and not only in the interest of themselves, the governing party or officials aligned to the governing party (and are equally prepared to act with no concern for their political futures), this clause will go a long way to safeguard against wrong and unlawful classification of documents which were classified only to hide wrongdoing or corruption (although it would not address cases where documents were wrongly classified to hide maladministration, wasteful spending, embarrassingly inept governance or shockingly self-important actions on the part of Ministers or officials).

But these provisions assume a rather remarkable and unrealistic degree of honesty and selflessness on the part of the heads of organs of state. Human nature being what it is, these safeguards will probably not do the trick to prevent unlawful classification of documents aimed at hiding nepotism and corruption. One would therefore have thought that the Bill would allow for a credible appeals process to an independent body to protect citizens from the understandably self-serving actions of Ministers. However, section 31 only allows anyone who believes a document had been wrongly classified to appeal to the relevant head of the organ of state (usually the Minister involved). Section 32 allows a person also to approach a relevant court once the appeals process has been exhausted.

But here is where things get tricky. How will such an appeal work in practice? If one claimed that a certain document exists, that the document has been wrongly or unlawfully classified and that one is challenging that classification, one would first have to approach the relevant Minister (in whose department the corruption, maladministration or wasteful expenditure revealed by the wrongly classified document occurred) and then one would have to approach a court. But one might well be told that such a document does not exist. If one argues that the document does indeed exist because one has seen it, one would be confessing to having committed a serious crime or that one is continuing to commit a serious crime – unless one has handed the document to the SAPS as required by section 15 of the Act as soon as one received it (without really taking notes about its content).

This is because section 36 to 38 of the Bill states that it would be a criminal offense unlawfully and intentionally to communicate, deliver or make available state information or to receive such information if it was classified (rightly or wrongly) as confidential, secret or top secret and if one knew or ought reasonably to have known that the documents were so classified. These sections prescribe prison sentences of between 3 and 25 years for leaking such documents or for receiving such leaked documents.

A whistle-blower would be either suicidal or exceedingly stupid to try and leak wrongly classified documents as that whistle-blower would face a prison sentence of up to 25 years – even in cases where the documents were wrongly classified in order to hide corruption, criminality or nepotism. And a journalist or member of – say – COSATU or the Public protector’s office – would equally be monumentally stupid to receive such information as he or she might face the same Kafkaesque situation in which he or she would risk a long prison sentence if it transpires that the document (whose classification he or she is challenging) is in fact in his or her possession.

The option would remain to immediately hand the leaked document to the police and then to challenge the classification in terms of section 19(3) or section 31 or 32 of the Act. Of course, it is not clear how the police would react when handed such a document. A journalist who hands in a document that is classified top secret will surely be asked where he or she got this document from and if the journalist then refuses to confess who the whistle-blower was, that journalist would face severe pressure to reveal his or her source. Would any whistle-blower take the risk of trusting a journalist by leaking documents – even wrongly classified ones – to that journalist if that whistle-blower could face a very long jail term indeed if it ever transpired what his or her identity is.

The chilling effect on a free press and on the right of access to information will be severe. The more trouble a government finds itself in the more likely it would be that it would try and misuse this Act to cover up maladministration and corruption. The end result would be that open, accountable and transparent government would be fatally undermined. Although the Bill as it stands is a vast improvment on the Bill which was first considered, it is not yet clearly compliant with the Constitution.

Because our Constitutional Court does not only look at the provisions of an Act in isolation when it considers the constitutionality of an Act, but also at the impact of those provisions on the impugned rights, the practical concerns (some of them raised above) will loom large in any constitutional challenge to this Bill. In doing so the Court will not assume the worst of our public representatives, but nor will it assume that these representatives will have super-human abilities to act selflessly and against their own personal ambitions and interests.

I suspect that applying such a test, the Court might well find that the Bill as it stands will have an unnecessary chilling effect on the right to freedom of expression and the right of access to information as the stated goals of the Bill could be achieved by employing potentially less restrictive means that would provide better safeguards against abuses of the classification system.

Malema judgment: A re-think on hate speech needed

Sep 12th, 2011
by Pierre De Vos.
218 comments

There are many interesting as well as perplexing aspects to the judgment handed down today by Justice Colin Lamont in the South Gauteng High Court in which he found that Julius Malema had engaged in hate speech when he sang the song “Awudubula (i) bhulu… Dubula amabhunu baya raypha” (translated as “shoot the Boer/farmer”, “shoot the Boers/farmers they are rapists/robbers”).

The first aspect of the judgment that struck me is the fact that this judgment gestures towards some aspects of the philosophy purportedly espoused by our new Chief Justice, Mogoeng Mogoeng. Judge Lamont invoked the notion of ubuntu (just like justice Mogoeng did in the McBride case earlier this year) to help justify the drastic limitation on the freedom of expression of all South Africans. For judge Lamont (as for justice Mogoeng), the protection of dignity and adherence to the values of ubuntu requires a radical limitation on the right to freedom of expression.

It is a drastic limitation because Judge Lamont did not only find that the singing of the song by Julius Malema in specific contexts constitutes hate speech. Instead he ordered that both Julius Malema and the ANC be interdicted and restrained from singing the song known as Dubula Ibhunu ”at any public or private meeting held by or conducted by them”. It is not clear how an organisation as such could be interdicted from singing a song as one would have imagined that the ANC (not being a person) cannot sing a song and that only members of the ANC could be interdicted in this way. I would therefore assume that the order interdicts any ANC member from singing the song — even at a private meeting or gathering of its members.

This means that if ANC members congregate at a party at which they reminisce about the struggle days and one of its members then sing this song, that person will be in contempt of this ruling and might be found guilty of contempt of court. This, in my opinion, constitutes a rather absurd and drastic infringement on the right to freedom of expression not warranted by the Equality Act — even given the broad provisions of that Act.

Judge Lamont also found that the “morality of society dictates that persons should refrain from using the words” and  ”singing the song” and seemed to suggest that anyone singing the song could well be found to have contravened the hate speech provision in the Equality Act, arguing that:

Persons who are not parties to the proceedings must be dealt with by way of structuring the order so that society knows what conduct is acceptable. Persons who are aware of the line which has been drawn by the Court are as a matter of both law and ubuntu obliged to obey it. There may be no immediate criminal sanction. Their breach of the standard set by this Court will however surely result in the appropriate proceedings under the Equality Act being taken against them. Non participants are bound by orders setting such standards. The Equality Act contemplates that they will be so bound. The orders of the Court which set the law are no different from any order of any Court which determines what the law is. The course open to a non participant who is aggrieved is to try to persuade the Court hearing his particular matter that the order of the other Court is clearly wrong.

In doing so, Judge Lamont relied on the majority judgment in the controversial Dey judgment (a judgment which Chief Justice Mogoeng – as well as Deputy Chief Justice Moseneke, it must be said — signed on to), to argue that in order to determine whether hate speech occurred one must take into account how the words would have been interpreted by various audiences. In the Dey judgment, the Court stated that:

It may be accepted that the reasonable person must be contextualised and that one is not concerned with a purely abstract exercise. One must have regard to the nature of the audience. In this case the main target was the school children at the particular school, but it also included at least teachers.

This means, according to judge Lamont, that where some South Africans (who would largely, but not exclusively, be black) would not reasonably construe the song to have had the intention to be hurtful to whites, but others (who would largely, but not exclusively, be white) would indeed do so, “each meaning must be considered and be accepted as a meaning…. If the words mean different things to different portions of society then each meaning, for the reasonable listener in each portion of society, must be considered as being the appropriate meaning”. In this way the judgment avoided dealing with a difficult legal problem, namely that the song would be viewed differently, depending on the audience. He could thus dispense with the requirement to establish how a reasonable South African (as opposed to a reasonable white or black South African) might view the impugned words.

Flowing from this is a second aspect of the judgment that might elicit adverse comment. Judge Lamont divided South Africa into the majority and a minority and suggested that minorities (defined as white South Africans or as white Afrikaners) are therefore in particular need of protection from words that could be construed as having the intention to be hurtful to that minority. Hinting that white people might well in the future be in danger of facing a genocide, Judge Lamont stated that:

It must not however be forgotten that minority groups are particularly vulnerable. It is precisely the individuals who are members of such minorities who are vulnerable to discriminatory treatment and who in a very special sense must look to the Bill of Rights for protection. The Court has a clear duty to come to the assistance of such affected people. Minorities have no legislative or executive powers and are compelled to approach the Court to protect their rights. They are particularly at risk due to the expense involved in such approaches. The fact that they are minorities and experience such difficulties frequently results in them being driven to protect their identity by invoking and enforcing within their group, customs practices and conventions which are believed to be appropriate. In addition, they are fragile in that they are readily assumed by the mass and lose their identity. A Court which hears a matter must, while balancing the rights in question take into account in the construction of what hate speech is the fact that it is directed at a minority.

This means that religious and sexual minorities, say, might be entitled to special protection in terms of this Act and that a court should take note of the sensibilities of such groups when they judge whether a reasonable homosexual or a reasonable Muslim would have viewed a specific communication as having the intention to be hurtful to them as Muslims or as homosexuals. Almost any cartoon that depicts the prophet Mohammed, say, might therefore constitute hate speech. Statements by a pastor that homosexuals are perverts that will burn in hell would also, most probably, constitute hate speech if this line of reasoning is followed. I am also fearful that if I were to call devout Christians “bigots” because of their views on homosexuality, I might be found to have had the intention (judged by these religious fundamentalists) to be hurtful to them and hence that I am guilty of hate speech.

This rather essentialistic and simplistic division of South Africans into different race groups could be viewed as problematic. Instead of dealing with South Africans as South Africans and instead of demonstrating a blindness to race (as required by opponents of affirmative action), the court relied on racial assumptions and stereotypes to justify its finding. One would assume that all the critics of race-based affirmative action would be quick to condemn this judgment on the basis that it invokes apartheid era race categories and assumes that one would have a different reaction to words depending on one’s race and/or the language that one speaks. Surely the principled DA supporters who complain about affirmative action will have to reject this judgment because of its purported unholy valorisation of race?

A third aspect of the judgment that might require a rethink by the legislature is that in terms of the extremely broad definition of hate speech contained in the Equality Act and given the facts of this case, a finding that Julius Malema had engaged in hate speech might well have been warranted on the facts before the court. It seems to me as if Judge Lamont had little option but to find that Malema had contravened the Act. Although the sweeping order made in this case was, in my opinion, not warranted by the wording of the Act, the finding against Malema might well have been warranted — given the way in which hate speech has been defined by our legislature. As Judge Lamont explained:

The message which the song conveys namely destroy the regime and “shoot the Boer” may have been acceptable while the enemy, the regime, remained the enemy of the singer. Pursuant to the agreements which established the modern, democratic South African nation and the laws which were promulgated pursuant to those agreements, the enemy has become the friend, the brother. Members of society are enjoined to embrace all citizens as their brothers. This has been dealt with more fully above in the context of the written laws and agreements. It must never be forgotten that in the spirit of ubuntu this new approach to each other must be fostered. Hence the Equality Act allows no justification on the basis of fairness for historic practices which are hurtful to the target group but loved by the other group. Such practices may not continue to be practised when it comes to hate speech. I accordingly find that Malema published and communicated words which could reasonably be construed to demonstrate an intention to be hurtful to incite harm and promote hatred against the white Afrikaans speaking community including the farmers who belongs to that group. The words accordingly constitute hate speech

As the Equality Act – passed by the democratic Parliament – does not allow a court to take into account historical practices, the defence put up by Mr Malema’s excellent legal team held no water in this case. Because the hate speech provision in the Act was drafted in such sweeping terms and because the Act only allows for exceptions in cases of “bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution”, the defence of the ANC that this song had to be judged in its historic context was dismissed.

The judgment therefore once again places on the table the question of whether the hate speech provision in the Equality Act is constitutionally valid or not. As I have argued before, I suspect that the hate speech provision in the Act is unconstitutional as it defines hate speech in much broader and open ended terms than section 16 of the Constitution, which merely states that “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm” is not protected by the Constitution.

For some reason (perhaps relating to the politics of the case) Mr Malema’s lawyers did not challenge the constitutionality of the hate speech provision in the Equality Act. Whether they will try to raise this issue on appeal remains to be seen. This does not mean that the ANC dominated legislature cannot amend the legislation to bring it in line with the freedom of expression guarantees in our Constitution. In my view Parliament made a mistake when it passed these sections of the Equality Act and there is no reason why they cannot rectify the mistake without waiting for the Constitutional Court to order them to do so.

Maybe this judgment will lead to a re-think on the manner in which our law deals with cases of alleged hate speech. If it does, some good might yet come of it.

A vile attack on a successful black woman

Aug 1st, 2011
by Pierre De Vos.
301 comments

As readers of this Blog know, I am not a great fan of the hate speech provisions in the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), as I think these provisions are used far too often by people who wish to shut up others with whom they do not agree. In South Africa, it has become fashionable to shout “hate speech” whenever somebody says anything one does not like.

That is why I have argued that the hate speech provisions in PEPUDA should be interpreted narrowly to try and bring it in line with the Constitution, whose hate speech provisions are far more narrowly tailored than the provisions in PEPUDA.

But when I read the opinion piece by one Eric Miyeni in The Sowetan today I immediately thought that this is the kind of hateful and deeply reactionary and sexist drivel which qualifies as hate speech. Mr Miyeni is of the race-is-destiny school of thought, the school of thought which thrives on racial generalisations and assumes that one has no individual moral agency. One IS one’s race. One has no life, no moral core, no complex emotions and beliefs that are unique to oneself — one is only one’s race.

In this world, if one points out that a person is corrupt or has said something stupid, and that person happens to be black, one is automatically a racist. In this world view black people are not really individuals at all, but merely representatives of their race. This is scary stuff as it mirrors the racism of some white people who see one corrupt black person and then make assumptions about black people as a group. Instead of rejecting racial generalisations, it embraces such generalisations.

I grew up with many such people. They enthusiastically supported apartheid and propagated the most vile and vitriolic racist beliefs about black people. For them all white (Afrikaners) were good and pure and right (except if they joined the UDF or the ANC, in which case they became communists and traitors), while all black South Africans were dirty, stupid and dangerous criminals. (Vile nonsense, I know, but beliefs that are still quite prevalent amongst some white people in South Africa – even today.) If one criticised the National Party these people also invoked the power of the mob to discipline you, just like Miyeni did in his piece. I see very little difference between the hatred and prejudice of Miyeni and the hatred and prejudice of those white racists.

Today Miyeni attacked the editor off City Press, Ferial Haffajee, in an attempt to divert attention from the very awkward questions being asked about Julius Malema and the sources of his money. Fair enough — we are all entitled to our political opinions as we live in a democracy now. But when, in doing so, one descends into the dangerous waters of racial generalisations, one probably does not deserve respect from anyone. Thus Miyeni states:

Who the devil is she anyway if not a black snake in the grass, deployed by white capital to sow discord among blacks? In the 80s she’d probably have had a burning tyre around her neck. We know where she comes from.And today we must believe that Haffajee’s utter hatred of ANC politicians is based on journalistic integrity. Quadruple crap. I am more inclined to think that people like Haffajjee, who edits City Press, are most likely to be the kind that wakes up in the morning, sees their black faces in the mirror only to feel a wave of self-hatred rising up to nauseate them.

Of course, the (male) reporters who wrote the stories that Miyeni is upset about are not attacked. Neither are the black, male editors and columnists who often criticise the ANC and members of the tenderpreneurial black elite. Why not? Because they are not women, one assumes. Maybe Miyeni is still getting used to living in a country where women are “allowed” to succeed and where they do not have to obey the men of this world and make tea for them?

Can it be that Miyeni is a modern patriarch who cannot stand that a strong black woman is successful? So what does he do? He attacks her and hints that she should be necklaced. If ever there was a case of hate speech this is it. Recall that hate speech occurs where it can reasonably be construed that the author had the intention to be harmful or hurtful to somebody based on, amongst others, their race and sex.

Well, the hatred for Haffajee as a black and female editor who has dared to publish in her paper critical comments about another black person, oozes out of this vile piece. No reasonable person would doubt that the author had the intention to hurt Haffajee as a black woman.

The “opinion piece”, which sounds like it was written after the author might have had one or two cups of Motata tea, then proceeds with a justification for corruption — as long as the corruption is perpetrated by black businessmen (no women in sight here) and by black politicians. I quote:

The only real source of business for us is our government. Are we now being told that if we make money through government contracts, our only hope, we cannot use that money to help fellow black people who are in politics, who need private funding to function? Where then should black politicians get financial support?

Miyeni must not have heard of the Prevention and Combatting of Corrupt Activities Act, passed by the democratic Parliament in 2004, which criminalises the kind of activity he defends. If one is a “businessman” (black or otherwise) and if one bankrolls a politician who may be seen to have influence over the granting of tenders, then one is more likely than not committing a crime.

Even if one thinks about this in naked racial terms — like Miyeni does — this piece of legislation makes sense, because if such corrupt activities were not prohibited, only those black businessmen (and the businesswomen who Miyeni treats as invisible) who paid the right politician would ever get a tender. If one did not have the right connections or if one did not have the money to pay into the right trust account, one would not be able to get any tenders from the government — even if one happened to be black AND a man (women, once again, not really featuring in the world of Eric Miyeni).

So, that is why Miyeni’s rant is not only hateful and vile, but also illogical — even on its own terms. It is not a principled criticism of business practices in South Africa. It is not a principled argument for Broad Based Black Economic Empowerment. It is not about opening up the business world (dominated for so long by white interests) to all those who have been denied this opportunity under apartheid.

It is, instead, no more than a defence of a small group of well-connected tenderpreneurs who have the money and the connections to bribe politicians in order to get tenders. What about all the other hard-working men (and women) who wish to obtain tenders from the state but do not have the money and the connections to pay the bribes that Miyeni seems to support?

Well, for Miyeni they and their kind can go to hell, it seems, whether they are black or not.

The past is very much part of the present

Jun 28th, 2011
by Pierre De Vos.
77 comments

In the movie A Reasonable Man director Gavin Hood (whose movie Tsotsi won the best foreign picture Oscar) tells the story of a young Zulu herd boy, Sipho (Loyiso Gxwala) who is on trial for killing a baby. Based on an actual court case, the movie depicts Sipho’s interaction with Sean Raine (played by Woods himself) and the way in which the case affects Raine’s view of the law and forces him to rethink his long held views about the law and about himself.

Sipho insists throughout that he thought he was killing an evil spirit otherwise known as the tokoloshe in popular folklore. The prosecutor, Linde (played by Vusi Kunene) is ready to send him straight to jail and the defense wants him to plead insanity. Gavin Hood’s character, Sean Raine doesn’t believe that he is insane, he sincerely believes that he was killing an evil spirit.

In a pivotal scene Linde (the prosecutor) asks Sean: “Why are you so keen to keep this country in the grip of the past?” to which Sean replies, “the past is very much a part of the present”.

The movie asks profound questions about the way in which judges apply the law in a multicultural society like South Africa. Did Sipho genuinely believe that he was killing an evil spirit and if so, was this belief reasonable in terms of our law? And on what basis must a judge decide whether an accused acted reasonably or not? In the movie, Hood, who himself studied law, explores these questions in a provocative and complex manner.

I was reminded of Hood’s movie this morning as I took part in a discussion on hate speech and struggle songs on Radio Sonder Grense (RSG). Of course, the discussion took place in the context of the singing of a very specific struggle song by Julius Malema. That song, which in the mainstream media has become known as the “Kill the Boer” song, came to renewed prominence when Malema sung it shortly after City Press reported that companies which he had been associated with had allegedly been involved in “dodgy tenders” in Limpopo.

The lyrics of the song sang by Malema included the following passages:

Ayasab’ amagwala (the cowards are scared)
dubula dubula (shoot shoot)
ayeah
dubula dubula (shoot shoot )
ayasab ‘a magwala (the cowards are scared)
dubula dubula (shoot shoot)
awu yoh
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)

awe mama ndiyekele (mother leave me be)
awe mama iyeah (oh mother)
awe mama ndiyekele (mother leave me be)
awe mama iyo (oh mother)

aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
…..
awe mama ndiyekele (mother leave me be)
awe mama iyo (oh mother)
awe mama ndiyekele (mother leave me be)
awe mama iyo (oh mother)

aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)

Ziyarapa lezinja (these dogs are raping)
dubula dubula (shoot shoot)
ay iyeah
dubula dubula (shoot shoot)
Ziyarapa lezinja (these dogs are raping)
dubula dubula (shoot shoot)
ay iiiyo
dubula dubula (shoot shoot)

On RSG this morning, after I gave my usual spiel that section 10 of the Equality Act requires us to ask whether the person who sang the song could reasonably be construed as having had the intention to be hurtful or harmful to white South Africans, one after the other, listeners called in to express their opposition to the song and to demand that the song be banned. One could hear the genuine fear, anger and frustration in many of the voices of those who called in. The barely concealed contempt, disgust and hatred of Mr Malema also bubbled to the surface.

I have no doubt that the singing of the song by Mr Malema is experienced as hurtful and very scary by the vast majority of white South Africans. This view is often sincerely held – also by people who are not overtly racist. For the reasonable white farmer or the reasonable white person who never took part in the struggle and do not speak Zulu, it must be as clear as day that this song constitutes hate speech.

But for the reasonable ANC member, the reasonable black (or white) person who took part in the struggle against apartheid, or for the reasonable person whose first language is Zulu, the song might arguably convey a completely different message.

Which highlights the difficulties faced by the judge who is currently contemplating whether he should find Julius Malema in breach of section 10 of the Equality Act because he sang this song. (As Afriforum had – correctly – not asked the court to ban the song outright, the demand by callers that the song should be banned, will therefore never come to pass.)

Who is this “reasonable person” that the law requires the judge to invoke and to rely on when he makes his decision? Is it the reasonable farmer? The reasonable white, middle class South African who only speaks English and Afrikaans? The reasonable ANC member? The reasonable person who took part in the struggle? Is the reasonable person a man or a woman, gay or straight, rich or poor? Does this reasonable person speak Zulu or only English and Afrikaans?

When I was a student at Stellenbosch University many years ago, our Professors did not speak of the “reasonable person” when they invoked this supposedly objective test that forms an integral part of our legal system. They referred to the “reasonable man”, by which most of them probably meant a reasonable white man who happens to have been a lawyer in apartheid South Africa for many years and had then been appointed – along with other white men – as a judge to one of our high courts. (In 1990 there were no black judges serving on any court in South Africa, while only 1 female High Court judge – Leonora van den Heever – served on the bench.)

When some of us – congratulating ourselves on our virtuous adoption of feminism – muttered in a self-satisfied manner that this “reasonable man” was a sexist concept, at least one professor scoffed and said: “What would be next – the reasonable dog or the reasonable criminal?”

The truth is that the reasonable person relied on by section 10 of the Equality Act (and in our common law rules and other legislation) is a fictitious person that is imbued with the values, assumptions, beliefs and ideologies of the judges who have to apply and develop this concept. This is one of the reasons why Julius Malema’s hate speech trial has evoked such different responses from different people in South Africa. We experience the singing of this song by Julius Malema differently depending on our own experiences, fears, beliefs, values and ideological commitments. (A more extreme manifestation of this phenomenon is perhaps the vastly different ways in which different people responded to the allegations of gross misconduct leveled against Judge President John Hlophe.)

Perhaps, as the composition of the bench changes and more women, gays and black South Africans are appointed to it, the concept of the reasonable person might change radically. Then again, one should not underestimate the disciplining power of legal education and of peer pressure in the legal community, which might instill in these judges the same beliefs about what constitutes a “reasonable person” as those currently in fashion.

Like Linde, the prosecutor in A Reasonable Man, judges who happen not to be white, male and heterosexual might reject the idea that we should rethink what we mean when we invoke the reasonable person. When confronted with difficult questions about how we should interpret the meaning of struggle songs, they might also ask: “Why are you so keen to keep this country in the grip of the past?”

Like Sean, the lawyer in A Reasonable Man, I might very well reply: “The past is very much a part of the present”.

Manyi’s adspent plan probably unconstitutional and illegal

Jun 15th, 2011
by Pierre De Vos.
11 comments

The announcement by Mr. Jimmy Manyi, CEO of the Government Communication and Information System (GCIS), that the Cabinet has decided to consolidate all media spending by government departments — worth about R1bn a year — under the Government Communication and Information System (GCIS) to achieve economies of scale and “more bang for its buck”, has created a predictable furor in the media. Predictable, because the move would threaten the profitability of newspapers and their owners and shareholders would obviously not like this.

When making the announcement, Mr. Manyi said that the government was concerned that its message was not getting through to the populace. He insisted that as long as the media performed its function of passing on government information, as well as acting as government watchdog and critic, then there was no need to worry. Allocations of advertising would be decided on the basis of which media outlets were most effective in passing on the information about government programmes and service delivery and would be based on a segmentation of the different audiences. “We want to make sure that government information is out there,” Mr Manyi said.

The people who are going to put out our content more effectively to the public of SA are the people we are going to focus on. I can tell you this right now. To the extent that government information gets passed on, we will work with those people… We just want the truth. Government has programmes of action and would like citizens to know the truth about service delivery, opportunities in government, etc. Once you have done this, you can do what you like, you can criticise as much as you like. We want criticism. Criticism will help us improve.

The question is whether this move would be constitutional and whether it would be legal to make decisions about where to place government adverts based on the content of the particular publication. Can the government “reward” publications for reporting more comprehensively (or less critically) on its activities and “punish” publications who do not?

I suspect that it could not and that the plan is both unconstitutional and illegal.

Of course, Manyi is correct that newspapers do not always report comprehensively on what government does or what it says it is doing (which, sadly, is not always the same thing). There is a good reason for this. Most of the announcements emanating from government departments are neither sexy nor controversial while much of government communication is so boring that not even the most slavishly pro-government publication would want to carry news of it for fear of boring their readers to death. Perhaps the only reason why newspapers would carry news of these many unremarkable if worthy government initiatives were if they were “bribed” to do so.

The problem is that Mr. Manyi seems to conflate two completely different issues.

The first issue is whether newspapers report comprehensively and fairly on government initiatives.  Many newspapers probably do not. This would often be because the information is of little interest to a newspaper’s readers, who would prefer to read about Julius Malema’s latest outrageous statement aimed at making  him sound like a radical revolutionary with a Breitling watch or to read about the latest Idols racism controversy. Sometimes newspapers do not report on government initiatives and plans  because government communicators are not doing their jobs properly and are communicating the information in such an amateurish and dry fashion that it would make reports of the World Curling Championships look exciting and sexy.

If the government wishes to address this issue it would surely have to advertise in exactly those newspapers who had not reported comprehensively and fairly on its activities in the first place. If it advertised in those newspapers who had already reported comprehensively and fairly on its activities, it would be wasting taxpayers money because it would be targeting the very audience who may already be sufficiently informed  about government activities.  But Manyi seems to suggest that it might do exactly the opposite and that the government would advertise in the newspapers who had already informed its readers as a way of “punishing” those newspapers who had not.

A second issue is whether the government is getting “bang for its buck” in the sense that the advertising reaches those people at whom it is aimed. If one wants to advertise jobs at the National Treasury, say, one would obviously target the Mail & Guardian or the Sunday Times as these two publications are known for carrying these kinds of job adverts and those in the market for a job would read these publications. One would get “bang for one’s buck” only if one advertises in these publications read by job seekers and not if one advertised in the Polokwane Observer or the Atlantic Sun. If the government made decisions on where to place such advertisements based on whether a newspaper had reported comprehensively and fairly on its other activities, it would again be wasting taxpayers money because it would be advertising in publications in which the advert would not have the desired effect.

In both cases, this move would probably be unconstitutional and illegal. Section 217(1) of the Constitution states that when an organ of state – which would include the GCIS – contracts for goods or services, “it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective”. This section must be read with section 16 of the Constitution, which guarantees freedom of expression, including freedom of the press and other media.

Where the government made decisions on how to spend its advertising budget not based on considerations related to whether it was effectively targeting the intended audience, but on the content of the newspaper involved, it would, in effect, be  “punishing” newspapers for not writing what the government wishes it to write. Using its financial muscle in this way to try and influence or censor the media would amount to imposing indirect limtations on the freedom of the media. This might well be found to be unconstitutional.

This is not the end of the matter. The Public Finance Management Act, giving effect to the provisions of the Constitution, contains strict requirements for the spending of public funds and prohibits “unauthorised expenditure”, which is defined as expenditure not in accordance with the purpose for which the money was allocated, or “fruitless and wasteful expenditure”, which is defined as expenditure which was made in vain and would have been avoided had reasonable care been exercised.

If money was allocated to advertise the work done by the government, it would have to be spent in a cost effective and targeted manner for this purpose and not for the purpose of rewarding those publications who published news of a government minister opening a day care centre in Lusikisiki or visiting the Bredasdorp agricultural show. If money was allocated for a more specific purpose – say to advertise government jobs – this money once again had to be spent cost effectively to ensure that the advert would attract the widest and most qualified pool of applicants and not to “punish” or “reward” a newspaper.

Section 38 of the Act makes clear that the Director General or the head of the Department – in this case Jimmy Manyi – had a duty to maintain “an appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost-effective”. Such a person is also responsible for the “effective, efficient, economical and transparent use of the resources of the department, trading entity or constitutional institution”.

Section 86 of the Act states that an accounting officer who “willfully or in a grossly negligent way fails to comply with the provisions of section 38″ is guilty of an offence and liable on conviction to a fine, or to imprisonment for a period not exceeding five years. As the punishment of newspapers for not writing about the government in a manner that the government wishes could never be a deemed to be a constitutionally valid reason for using taxpayers money, any such expenditure would by its very definition be unauthorised and wasteful and hence illegal.

I must stress that these provisions do not mean that the GCIS would not be permitted to spend money on advertising the work done by the government and its various departments. If Mr. Manyi or members of the cabinet believe that some newspapers are failing to report comprehensively and accurately on government’s activities and initiatives, it would be entirely appropriate to buy advertising space in those newspapers who are perceived as failing in their reporting, in order to inform the readers of that paper about the good work done by the government.

Ironically, it would be exactly those newspapers who are perceived not to be reporting accurately or fairly who would have to be targeted in order to ensure that the expenditure on the advertising is not viewed as unauthorised or fruitless and wasteful. The very newspapers whom the government might not like would be the one’s cashing in on the government advertising budget.

My heart says hate speech but my head is not sure

Jun 3rd, 2011
by Pierre De Vos.
44 comments

Sometimes a case comes along that pulls one sharply in diametrically opposed directions: one’s heart in one direction and one’s head in another. Such a case is that of South Africa’s ambassador to Uganda, Jon Qwelane. Ambassador Qwelane – a former newspaper columnist and well known homophobe and bigot – this week was found guilty by an Equality Court of hate speech for writing a newspaper column in which he denigrated gay men and lesbians.

In the column – published in 2008 – Qwelane complained that “you regularly see men kissing other men in public, walking holding hands and shamefully flaunting what are misleadingly termed their ‘lifestyle’ and ’sexual preferences.’” The constitution also came under fire when he wrote that he prayed that politicians would some day have “the balls” to rewrite the constitution “to excise those sections which give license to men ‘marrying’ other men, and ditto women… Otherwise at this rate, how soon before some idiot demands to ‘marry’ an animal, and that this constitution ‘allows’ it?”

As I wrote at the time:

This is hateful stuff. Ignorant stuff. The kind of thing written by a man who is not very secure about his own sexuality. To equate homosexuality with bestiality is the kind of primary school argument used by bullies to denigrate gay men and lesbians and is not worthy of anyone with an IQ of more than 60. We all know most people who like to have sex with animals are heterosexual. (I will rather not talk about the strange morality in South Africa which abhors bestiality while seeing nothing wrong with killing and eating animals!)

David Bullard was fired from the Sunday Times for writing a far less offensive column – albeit on race and not sexual orientation. Qwelane is right, of course: wrong is wrong and being a hateful bigot is always wrong.

It was also wrong of the newspaper to publish this drivel. Maybe illegal too, but that is not the point. Even a tabloid like the Sunday Sun should show a modicum of responsibility and should not propagate hatred of gay men and lesbians. Just last month a Banyana Banyana player was murdered because she was a lesbian. This kind of column gives implicit legitimacy to such crimes and Qwelane and those in charge of the newspaper should be ashamed of themselves. They have blood on their hands – or soon will – because others will be killed in the name of this kind of hatred.

But should Qwelane have been found guilty of hate speech. I have often argued that the provisions on hate speech in the Equality Act are too broadly phrased and that section 10 of that Act which prohibits hate speech may well be unconstitutional. I have also argued consistently that when one determines whether a person can reasonably be construed as having had the intention to be hurtful to others based on their race, sex, or sexual orientation, context is everything.

Part of the context in South Africa is that of a deeply ingrained hatred of gay men and lesbians. 

A few weeks ago Noxolo Nogwaza, a 24-year-old member of an Ekurhuleni gay rights group, was stoned to death in KwaThema outside Johannesburg, apparently because she was a lesbian. She has joined a long list of lesbians – including Banyana Banyana star Eudy Simelane and Cape Town activist Zoliswa Nkonyana – who have been brutally murdered in South Africa, merely because they dared to live openly and proudly as gay men or lesbians.

It can be argued that the kinds of statements made by Qwelane in his column – widely read by those who buy tabloid newspapers – might have encouraged the criminal bigots out there to go out and rape and murder lesbians, or at least might have confirmed their prejudices and might have comforted them by affirming their views about women in general and about lesbians in particular.

And yet…. and yet….

Is the hate speech route the best route to deal with these beliefs – which are, after all, widely shared? Would it not do more good if our government actually fired Qwelane (as it should have done long ago) and if it embarked on a massive education campaign in schools and elsewhere to teach the population how to respect the human dignity of us gay men and lesbians? By making it unlawful for anyone to utter such hateful statements, are we not driving these beliefs underground – instead of addressing them head on and eventually eradicating them?

As was the case with Julius Malema, I would probably not have brought a hate speech claim against Qwelane. Although I feel jubilant that Qwelane’s hateful bigotry has been declared hate speech (my heart talking), I remain unconvinced that the hate speech route will really address the very real and urgent problems relating to sexism and homophobia in our society (my head talking). Can one hold both of these impulses in one’s hands and remain consistent?

Let me tell you a secret…..

May 31st, 2011
by Pierre De Vos.
69 comments

It is much harder to govern an open and democratic society with a free and critical media and an informed citizenry than to govern a secretive, authoritarian state in which cock-ups and corruption by the government and its officials, police brutality and torture of citizens and the looting of state funds by the politically connected business elite can be hidden from the public at large.

In an open and democratic state, information about malfeasance and corruption is often leaked to the media and those responsible for the wrongdoing are exposed as the thieving, lying, brutal crooks they often turn out to be. In a democratic state politicians have to keep one eye on public opinion and have to consult citizens who might oppose the grandiose or corrupt schemes concocted in the name of economic development and progress.

This emphasis on openness, transparency and accountability can be inconvenient and time-consuming and can thwart the bureaucratic plans of state apparatchiks who have decided what people need and how their needs have to be satisfied. Providing citizens with access to information can also be “dangerous” as it can lead those citizens to change their political party preferences and can lead them to vote for another party to form a government – even before Jesus returns to earth.

Just ask the unspeakable Tony Blair, whose career gratifyingly came to an end after his craven and dishonest defence of the illegal invasion of Iraq (on the basis that it was required to protect the national security of the United Kingdom), was comprehensively exposed as a pack of lies - leading to a complete collapse of his credibility.

No wonder the ANC government is hell-bent on passing a draconian Secrecy Bill into law. Although a new version of the Bill – currently being debated by an ad hoc committee of Parliament – is an improvement on the previous version, it remains a truly scary piece of legislation. It is an improvement in much the same way as Prime Minister BJ Vorster was an improvement over Hendrik Verwoerd.

Here is why.

The Bill as it is currently formulated applies to all organs of state. Such organs of state will be required to consider whether any of the documents under its control should be classified as “confidential”, “secret” or “top secret”. Unless the Minister of State Security decides to grant an exemption to an organ of state, the body will be bound by this Act and will be REQUIRED to review all documents to decide whether they should be classified or not. The Minister has the final say on whether to grant an exemption and if he decides not to exempt an organ of state there is no appeal available to challenge his decision. This is the same minister whose wife has been convicted of drug trafficking and who has not resigned or provided any explanation or denial of his own knowledge of, or complicity in, the criminality of his wife.

Thus, a national security state is brought into existence.

The organs of state include (and I am providing a random selection from a list prepared by Idasa of more than 1000 such organs):

the University of Cape Town, the Johannesburg Fresh Produce Market, the Polokwane Housing Association, the Public Protector, the Human Rights Commission, the Medical Research Council of South Africa, the National Gambling Board, the National Lotteries Board, the National Nuclear Regulator, South African Library for the Blind, William Humphreys Art Gallery, the Bushbuckridge Water Board, the Eastern Cape Liquor Board, Blue IQ Investment Holdings (Pty) Ltd, the Natal Sharks Board, Limpopo Roads Agency, Bela-Bela Local Municipality, Ikwezi Local Municipality and Xhariep District Municipality.

The absurdly broad provisions of the Bill which would have required the classification of documents in the “national interest” have been replaced by new provisions which, while not as patently draconian as the first draft, still allow ample opportunity for organs of state to hide important information from the public. Much of this information will be the kind of information that ordinary citizens would need to be aware of if they wished to be active and democratically responsible citizens, empowered to make informed choices about their political actions, values and beliefs. (Maybe Lead SA could do something worthwhile for a change and could launch a campaign against this Bill aimed at keeping citizens passive and ignorant.)

Thus section 15 of the Bill requires classification (and hence secrecy) of the following kinds of information.

  • Sensitive information which is likely or could reasonably be expected to cause demonstrable harm to the security or national security of the Republic or could prejudice the Republic’s international relations must be classified as confidential.
  • Sensitive information which may endanger the security or national security of the Republic or could jeopardise the Republic’s international relations must be classified as secret.
  • Sensitive information which may cause serious or irreparable harm to the security or national security of the Republic or may cause other states to sever diplomatic relations with the Republic must be classified as top secret.

It is important to note that national security is defined in extraordinarily broad - I would argue even authoritarian - terms. The definition is not compatible with an open and democratic society based on human dignity, equality and freedom and deals with far more than the real concerns about the security of the state. (On the other hand, it is compatible with a national security or Stalinist state, I guess.)

“National security” is defined by the Bill as “the resolve of South Africans as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life”. This includes “protection of the people and occupants of the Republic from hostile acts of foreign intervention, terrorist and related activities, espionage, and violence whether directed from, or committed within the Republic or not, and includes the carrying out of the Republic’s responsibilities to any foreign country”.

In other words, according to this Bill, the protection of national security extends far beyond the protection of the state against internal and external security threats. Issues of inequality, “peace and harmony” (which sounds like something a Miss World would aspire to achieve during her reign and could mean almost anything), and economic development are all incorporated into the definition of national security.

This suggests that any information, which – if it becomes known - is likely to disturb good relations between different communities or within a community, is likely to affect the ability of the state to achieve social and economic equality or hamper economic development, and any information that might upset a foreign government would have to be classified as confidential, secret or top secret.

Such information might well include reports about service delivery failures or plans to implement new employment rules for the civil service to address the “oversupply of coloureds” in the Western Cape, reports of Universities on race-based admissions policies, reports on land redistribution, reports about the state of electricity supply, reports on contaminated water supplies, reports on a crumbling road infrastructure or plans to impose road toll tariffs, reports on the sale of weapons to other countries or reports about South Africa’s involvement in negotiations about the crisis in Zimbabwe or Libya.

The current wording of the Bill is also extremely confusing and in places seem to be contradictory as it requires quite draconian classification of documents overseen by the Minister of State Security while also purporting to provide “safeguards” to prevent the “over-classification” of documents. These safeguards are included in section 17, which states that “secrecy exists to protect the national security” (itself a rather ominous and authoritarian sounding statement).

However, section 17 then proceeds to state that classification may not be used to conceal an unlawful act or omission, incompetence, inefficiency, or administrative error; restrict access to information in order to limit scrutiny and thereby avoid criticism; prevent embarrassment to a person, organisation, or organ of state or agency; unlawfully restrain or lessen competition; or prevent, delay or obstruct the release of information that does not require protection under the Act.

It is difficult to see how the heads of many of the more than 1000 organs of state authorised to classify documents will not focus on the former provisions that demand classification of the most anodyne documents in the name of a laughably broad definition of national security while ignoring the latter safeguards. As there seems to be a great deal of tension between the demand in the Bill to keep secrets of the most trivial kind and the provisions which purport to instruct classification only when it is absolutely necessary, many officials will surely err on the side of secrecy (because governments like to hide things from the public because they intuitively know that it is in their interest to hide the truth) and the “safeguards” are likely to safeguard very little.

Because officials will be called upon to make decisions about what is secret and what not, because governments all over the world almost universally wish to hide rather than illuminate information, and because governments often end up believing that their own political survival should be equated with the survival of the state itself, this Bill – when passed – will provide officials and politicians with the cover they need to turn our country into a secretive security state.

Section 23 also allows a person to request a head of an organ of state to declassify information in furtherance of a “genuine research interest or legitimate public interest”. If the request is denied one can appeal the decision to the Minister of State Security, the very politician whose job it is to keep secrets and who is tasked by the President to keep as many secrets as he possibly can (also, it seems, secrets about whether he knew anything about his wife’s drug trafficking).

But it is unclear who will ever be brave enough to lodge such an application, which will mostly be futile in any case. This is because section 18 of the Bill states that a person who is in possession of a classified record knowing that such record has been unlawfully communicated, delivered or made available, must report such possession and return such record to a member of the South African Police Service or the Agency. If a person fails to comply, that person is guilty of a crime and must be sentenced to a minimum three year prison sentence.

This means that if a brave or foolhardy state official leaks classified information that exposes corruption or important information about the workings of the government to a journalist, that journalist must inform the police immediately. The police will, of course, want to know from whom the journalist had obtained the information. This will expose journalists to severe pressure to reveal their sources, something they are ethically required not to do.

The journalist will also have to hand the documents back to the police and will then have to ask the very head of the organ of state and then the Minister of State Security (who might very well have been implicated by the documents) to declassify the documents. If the journalist decides not to hand back the document, but asks for its declassification, the police will most likely come swooping on that journalist or the newspaper the journalist works for (as it swooped on the Public Protector), because one can only ask for the declassification of a document if one knows about its existence and if one knows about its existence one will be assumed to be in possession of it.

Of course, a request to declassify documents might also be met by a claim that the documents do not exist. It would often be impossible to refute such claims because a journalist would have to admit that he or she is committing a crime and is in possession of the said documents in order to challenge the claim that the documents do not exist.

The journalist can of course hand back the documents and then ask for them to be declassified. But if such a request and subsequent appeal to the Minister of Secrets is turned down – as it is likely to be done – then the journalists would only be able to obtain the documents again if his or her newspaper has a few million Rand to challenge the decision all the way to the Constitutional Court.

The effect of this Bill will be to further limit access of citizens to the kind of information they need to exercise their democratic choices as responsible citizens. It is a draconian piece of legislation based on the Orwellian assumption that secrecy is the bedrock of democracy. It will encourage officials to think about information as something not to be shared with the public; something to which the public is not entitled to have access to; as something threatening that might very well have to be kept secret to protect the state from instability and preserve harmony and peace and friendship until the end of time, amen.

Why the good people in the ANC is remaining quiet while their colleagues plot to turn South Africa into a secretive security state is beyond me. Every person of conscience who belongs to the ANC and serves in a leadership position in the ANC has a duty to speak out against this Bill. Those good people in the ANC who fail to speak out will surely not be able to look themselves in the mirror ever again. This is not a trivial issue on which one can remain tactically silent. Either one speaks out, or one reveals oneself to be a unprincipled, undemocratic or cowardly supporter of censorship or even authoritarianism.

About “unknown unknowns” and hate speech

May 17th, 2011
by Pierre De Vos.
130 comments

Donald Rumsfeld, the former American Secretary of Defence famously said: “[T]here are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns – the ones we don’t know we don’t know.” When a judge clearly does not know that he does not know the applicable law, his or her judgment usually makes for interesting but somewhat depressing reading.

I was reminded of this truism when I read the “judgment” of Judge LP Halgryn in the matter of African National Congress and Others v Harmse and Another. The “judgment” purports to deal with an application of the ANC to appeal a previous consent order granted by the judge to the effect that the singing of the song Dubula Ibhunu was “unconstitutional and unlawful”.

However, without having heard any evidence on the matter and without having considered the factual context within which the words were supposedly communicated, the “judgment” declares that the song is “unconstitutional” and that chanting it “prima facie satisfies the crime of incitement to commit murder”.

Acting judge Halgryn, dismissing the ANC’s application for leave to appeal, has now provided reasons for the original order. That order was, of course, a legal nonsense, but that has not prevented the acting judge from providing a set of rather incoherent and embarrassingly uninformed justifications for granting the order. He has also amended the original order without having received an application in terms of Rule 42(2) read with Rule 42(1)(b) of the Uniform Rules of Court for a rescission or variation of the order.

The acting judge seems unaware that the Constitution itself does not prohibit any speech – be it hate speech or any other kind of speech. He relies on section 16)(2) of the Constitution which defines certain forms of hate speech to which the protection of freedom of expression does not extend. Judge Halgryn then states that section 16(2) of the Constitution “prohibits” hate speech. It does nothing of the sort.

The chanting of Dubula Ibhunu can therefore not be unconstitutional and the original order is therefore legally embarrassing. Although the judge refers to the Islamic Unity Convention decision of the Constitutional Court where the meaning of section 16 is explained rather clearly, he has either not read the judgment he cites or he has not understood its meaning. In that case, then Deputy Chief Justice Pius Langa explained how one had to read section 16 of the Constitution.

Section 16 is in two parts. Subsection (1) is concerned with expression that is protected under the Constitution. It is clear that any limitation of this category of expression must satisfy the requirements of the limitations clause to be constitutionally valid. Subsection (2) deals with expression that is specifically excluded from the protection of the right. How is section 16(2) to be interpreted? The words “[t]he right in subsection (1) does not extend to . . .” imply that the categories of expression enumerated in section 16(2) are not to be regarded as constitutionally protected speech. Section 16(2) therefore defines the boundaries beyond which the right to freedom of expression does not extend. In that sense, the subsection is definitional…. There is accordingly no bar to the enactment of legislation that prohibits such expression. Any regulation of expression that falls within the categories enumerated in section 16(2) would not be a limitation of the right in section 16.

In other words, section 16(2) does not prohibit any speech, but it allows the legislature to pass legislation to prohibit or limit the speech defined in section 16(2). If a legislature passed legislation to limit such speech, that legislation could not be tested against the freedom of expression provision set out in section 16 because it would fall outside the scope of what constitutes protected speech.

The legislature did exactly that, passing section 10 (read with section 12) of the Equality Act, which does place limits on several kinds of speech. If one wishes to enquire whether the singing of a song constitutes hate speech which could legally be banned, one is therefore required to rely on this section – not on section 16(2) of the Constitution.

Because the judge wrongly relies on 16(2) to justify his order, the judge argues that the intention of the person uttering the aggrieved words “is wholly irrelevant”. Section 10 of the Equality Act famously defines hate speech as speech that could reasonably be construed as having the intention to hurt or harm someone based on their race or some other offensive ground. The learned judge claims that “it is not for the maker/ articulator of the expression/declaration under consideration, (nor is it for the Courts), to dictate how the beholder thereof should perceive” the words.

This is of course wrong. It is exactly for the Courts to decide whether a reasonable person would construe the words uttered by a specific person in a specific context as having had the intention to harm a group of persons based on their race or based on some other ground. Whether the beholder of the words perceives the words to be hurtful is not the relevant point that would clinch the deal. This is because the beholder of the words might not be a reasonable person. That beholder might – say – be Steve Hofmeyer or acting Judge Halgryn, in which case a court might well argue that the fact that the beholder has perceived the words as hateful is utterly irrelevant.

It is for the court, applying an objective test, to determine whether the person who uttered the words could reasonably be construed as having had the intention to hurt a group of people based on their race. That is why a judge cannot ban a song as judge Halgryn purported to do in this “judgment”. To decide whether the utterance constitutes hate speech in terms of section 10 of the Equality Act, one would have to look at the specific context to determine whether the intention of the person uttering the song could reasonably be construed as having the intention to hurt a group of people based on their race.

If I sing Dubula Ibhunu at a dinner party as part of an extended riff on the fact that I have a secret crush on Julius Malema and one of my guests takes me to court for hate speech, I am pretty sure I would be able to convince the court that I could not reasonably be construed as having had the intention to hurt white people. This rather obvious legal point which acting Judge Halgryn – in his seeming rush to ban a song that he finds objectionable – has failed to grasp.

The original order stated that chanting the impugned song “prima facie satisfies the crime of incitement”. There is, of course, no such crime as incitement in our law. This did not stop the acting judge from amending the order – without having been requested to do so in the legally required manner – to the effect that the song prima facie satisfies the crime of incitement to commit murder. Quite a novel approach to the law, which would have warmed the heart of Lindiwe Sisulu’s lawyer.

The fact that acting judge Halgryn so obviously did not know that he did not know the law regarding hate speech, makes this “judgment” one of the least plausible judgments I have ever read in my academic career.

When a legal representative makes the case for the opponent

Apr 21st, 2011
by Pierre De Vos.
225 comments

Listening to TAU’s Advocate Roelof du Plessis as he cross-examines Mr Julius Malema in his hate speech case is a bit like sitting on a stage in front of a crowd of people and having one’s tooth extracted without any anaesthetic while having to listen to Steve Hofmeyer songs being played backward. It is painful. It is embarrassing. It is dehumanising. It is stupid.

Du Plessis sounds like Adriaan Vlok or PW Botha giving a speech in 1986 about the dangers of communism and the evils of ANC “terrorism” and the swartgevaar. It is like the baas telling the bloody k*@ffirs how lazy, stupid and evil they are. Talking about Lenin, Marx, communism and the evils of land distribution, is really not the way to win the argument — either inside court or outside court. The fact that adv. Du Plessis thinks this is all relevant, suggests that he does not get out enough and that he has no idea that he lives in a South Africa that is now a constitutional democracy.

Du Plessis’s approach is so tone-deaf and so obnoxious that it manages to do exactly the opposite of what it is intended to do: it creates sympathy for Julius Malema and for the singing of the Kill the Boer song. Instead of dealing with the legal issue — whether the singing of the Kill the Boer song by Julius Malema at a politically charged event constituted hate speech – Du Plessis is seemingly trying to put Julius Malema’s political views on trial, caricaturing these views in the process. But because his own views are so extreme, it is adv Du PLessis’ views that one ends up judging as being unreasonable, paranoid and bordering on racist.

In any case, the court is not the place to deal with such issues. These are political disagreements that run deep. This once again reminds me that it is inappropriate to deal with the singing of the song in a court of law. What is needed is to engage the ANC leadership on this issue so that it could return to its former position that the singing of this song in certain contexts is not helpful and that it should be avoided.

But Du Plessis, alas, is so clueless that he natters on in defence of the old South African flag and other obsessions of AWB types. He seems to suggest that Afrikaners are in danger of becoming victims of genocide. This kind of view is so ignorant of our history and the nature of the democratic transition, that it cannot but alienate any right-thinking or reasonable South African. By performing in the manner that he has, adv. Du Plessis has managed something of a miracle — he has managed to make Mr Malema sound reasonable, level-headed and dignified.

The cross-examination serves as a timely reminder (if any reminder is needed) that some South Africans still do not see the ANC as the legitimate government of South Africa. Seething with anger and suffering from a historic amnesia, he seems unaware that South Africa has emerged from a deeply evil system and that we now live in a democracy in which a legitimately elected government is implementing the policies of the ruling party.

In a constitutional democracy one has a right and a duty to argue about whether the policies of the governing party are wise or not and whether it is good for all of us (by which I do not mean only white South Africans) or bad for all of us. But even if one does not agree with the ANC government’s policies or even if one is critical of the corruption and arrogance of some ANC leaders, this does not make the ANC government illegitimate.

I must say, watching adv. Du Plessis’s performance today is almost enough to make me want to burst out singing: “dubul’ibhunu / dubula dubula”.

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