Constitutional Hill

Helen Zille

DA, why not admit wrongdoing and move on?

May 15th, 2012
by Pierre De Vos.
19 comments

When newspapers first published reports alleging that Julius Malema might have enriched himself by taking bribes in return for influencing the awarding of tenders to certain companies, Malema rejected this claim, arguing that he does not sit on any tender committee and can therefore not influence the awarding of tenders in his home Province of Limpopo.

Whether he did or did not take bribes with the understanding that he would influence the awarding of tenders in Limpopo, his defence was not plausible. This is because one does not have to sit on a tender committee to influence a tender. All one needs to do, is to ensure that one has influence or power over those who sit on the tender committee. One can obtain influence or power over those who sit on such a committee by ensuring that that political underlings sit on the committee or by bribing its members or by ensuring loyal political allies sit on the committee or by obtaining a hold over those who sit on the committee by letting it be known that one has damaging information about them which might be leaked to the media.

It is therefore not too difficult unfairly or even corruptly to influence the awarding of tenders without formally breaking the law. This is because it is very difficult to insulate the procurement process from informal loyalties and political considerations. That is why – with tenders – perceptions can be almost as important as the reality.

Not that the Constitution and South African legislation do not attempt to address these problems as best it can. Section 217(1) of the Constitution therefore states that:

When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective.

Section 217(2) qualifies this general statement as it states that organs of state are allowed to implement a procurement policy providing for categories of preference in the allocation of contracts; and the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination. But this has to happen in a manner that is fair, equitable, transparent and competitive.

In terms of section 76(4)(c) of the Public Finance Management Act (PMFA) the National Treasury may make regulations or issue instructions concerning the determining of a framework for an appropriate supply chain management at national or provincial level which is fair, equitable, transparent, competitive and cost-effective. However, according to section 38(1)(a)(iii) of the Act it is the responsibility of the accounting officer/authority of a department, trading entity or constitutional institution to have and maintain an appropriate procurement and supply system which is fair, equitable, transparent, competitive and cost-effective. Where a procurement system is established that is not fair, equitable, transparent, competitive and cost effective, the awarding of a tender through that system would be unlawful.

Which brings us to the curious case of the Western Cape government’s curious politicisation of the tender process in a case that implicates the government at best in improper behaviour.. During 2011, the Department of the Premier in the Provincial Government of the Western Cape contracted with a company for the provision of various communications services. Two special advisors of Premier Helen Zille were appointed to the Committee tasked with evaluating the various bids for this contract. In a draft report by the Public Protector regarding the alleged improper or unlawful participation of these special advisors in the evaluation of the bids, it was concluded that these appointments was unlawful and had rendered the adjudication management and the entire procurement process invalid and constituted improper conduct and maladministration. One of these special advisors, Ryan Coetzee, is often referred to as the political brains trust of the DA and during the last national election he was the party’s main election strategist and Chief Executive.

The DA’s obtained legal advice to try and counter this preliminary finding. The legal advice, prepared by Geoff Budlender, distinguishes between conduct which is unlawful because it is in breach of a prescription of the law and may affect the legal validity of the conduct in question on the one hand and improper because it is inappropriate in some way. The fact that conduct has been improper does not necessarily affect its legal validity.

Budlender then argues – correctly as far as I can tell – that there is no provision in the law which explicitly prohibits the participation of Special Advisers as members of a Bid Evaluation Committee. He also, rather technically and formalistically, argues that the Constitution, read with various guidelines and regulations, do not implicitly prohibit the participation of a special advisor in a bid evaluation committee. Although the involvement of Zille’s special advisors might have been improper, it may not have been unlawful. But the legal advice is not nearly as unequivocal as the DA presented it as being, as Budlender writes that the question whether the appointment of the Premier’s special advisors to the bid evaluation committee was unlawful or not “may be in some doubt”:

In this matter, however, the situation is somewhat blurred by the fact that there is no explicit prohibition of Special Advisers being members of Bid Evaluation Committees. If there is such a prohibition, it is one which is to be inferred from other provisions of the law. It seems to me that this weakens the applicability of the general proposition that the legislation contemplates that a failure to constitute the BEC lawfully is to result in a nullity.

I would argue that in deciding whether the presence of Zille’s special advisors were unlawful or not, one should look at the purpose of section 217 of the Constitution and the relevant provisions in the PFMA in order to judge whether a tender procedure complies with it and that one should also take into account the specific context of each case (as the Constitutional Court often does). One should therefore not look at this question in the abstract (as Budlender seems to do), but should look at the facts of each case and ask whether the system set up to evaluate the tender was in a particular case indeed fair, equitable, transparent, competitive and cost-effective as required by the Constitution and the PFMA.

As I see it, the purpose of section 217 of the Constitution, the PFMA and the procurement regulations set up to give effect to it, is to prevent corruption and to establish a fair tender system in which political or personal financial considerations would play no role in the decision-making of the committee called upon to evaluate and award tenders. Where one of the Premier’s special advisors happens to be a highly controversial and profoundly political appointee (how could he not be, given that he was one of the leading political strategists of the DA during the last national election and that he stood for the position of the Parliamentary leader of the DA a few years ago), it is clearly improper that the special advisor should be part of a tender bid evaluation committee.

As Budlender suggests, it is arguably also unlawful as the participation of such a political animal, someone who advises the Premier and the leader of the DA and is known to be politically highly influential, would sabotage the integrity of the procurement process and would create the reasonable perception that the system is not fair and equitable. Luckily for the DA government, the Premier’s special advisors were not particularly effective and did not manage to sway the committee to support the bid of their choice, which means that the government would probably not have to cancel the contract even if it had followed an unlawful process in awarding the tender.

However, these seem to me to be a rather technical and unnecessarily formalistic approach to a matter of impropriety (or, perhaps, unlawful conduct). What, I wonder, would the DA have said if Paul Ngobeni, the then special advisor to Minister Lindiwe Sisulu, had been appointed to a bid evaluation committee of the Department of Defence? Or if Gwede Mantashe had been appointed to a bid evaluation committee in the Office of the Presidency?

Even if, following the formalistic narrow reasoning of the DA’s legal opinion, such appointments would not be deemed unlawful, they would be wrong and improper and the DA would have had a field day painting the ANC government as corrupt because of the involvement of such highly controversial individuals with clear and unwavering political commitments and loyalties to a bid evaluation committee. The same rule should therefore surely apply to the DA in this case.

It is not appropriate for a special advisor to a politician to sit on a bid evaluation committee, full stop. It is even more inappropriate if that special advisor is controversial and is perceived to be and is in fact, a politician him or herself and is widely viewed as representing the views of the politician he or she supposedly advises.

The DA would do well to stop parsing words and drop the reliance on the formalistic technical legal arguments and admit that what the Western Cape government did was wrong. Although there is no evidence of corruption, it does not make an otherwise improper or unlawful process proper and lawful.

What was Ryan Coetzee doing on this bid evaluation committee in any case? Why did he, unlike everyone else, favour a different bidder? Was he improperly pushing for the awarding of a tender to the bidder favoured by his political boss, Helen Zille? There might be innocent answers to these questions, but because of his high political profile, the perception is necessarily created that something is fishy with his involvement in this process. That is why special advisors, especially special advisors of this kind, should never sit on bid evaluation committees. Why the DA cannot just admit this and move on is beyond me.

Law, politics and party disciplinary processes

Jan 26th, 2012
by Pierre De Vos.
47 comments

Over the past few months President Jacob Zuma and other ANC leaders have complained about the courts interfering in the policy decisions of the executive, arguing that one can distinguish between legal decisions on the one hand (the realm of the judiciary) and policy choices and political decisions on the other hand (the realm of politicians).

This complaint probably stems from the fact that President Zuma, other Ministers, MEC’s, Mayors as well as the Judicial Service Commission (JSC) have all suffered embarrassing legal defeats before our courts over the past year. It is unclear why they have lost so often and so badly. One possibility is that they had received appalling legal advice from their advisors (or in the case of the President, from the Minister of Justice). Another is that they had failed to follow the sound legal advice provided to them.

This distinction between legal issues and policy decisions is, of course, difficult if not impossible to maintain. For example, clearly the President has a wide political discretion to appoint a man or woman of his choice as the National Director of Public Prosecutions (NDPP). But if he were to appoint a convicted fraudster to that position this would be unlawful as the National Prosecuting Authority Act (passed by the ANC dominated Parliament) requires him to appoint a “fit and proper ” person as NDPP.

In such a case the court would have a duty (if called upon to do so) to enforce the law and would have to declare the appointment invalid. If the court did not have the power to enforce the prescriptions of any law, the law could be ignored and then we would potentially live in an anarchic and lawless state. But in declaring the appointment unlawful, the court would interfere with the policy choice of the President – albeit a choice that was exercised in a manner that flouted the law. In a case like that the distinction between policy and legal considerations would dissolve and would become meaningless — unless one really believed that law was not binding on the executive at all and that a court should therefore not ever have the power to enforce the provisions of a law that was passed by the legislature. Such a system would be akin to an absolute monarchy or a dictatorship in which the legislature would perform a symbolic function as a pretend-democratic chamber whose decisions would be ignored at will by the President.

But two recent decisions by the ANC and the DA do actually demonstrate the problem of purely political decisions masquerading as quasi-legal decisions. Purely political decisions recently instigated by Zuma and Zille have been dressed up as disciplinary cases in order to provide a fig leaf of respectability and legitimacy to the witch-hunts against the recalcitrant party members who have challenged the authority of the respective party leaders.

The first case is well known: a selected number of the “top six” leaders of the ANC (which happened to include Jacob Zuma and Gwede Mantashe who were both known enemies of the accused) decided to have Julius Malema charged with contravening certain provisions of the ANC Constitution. Malema was then “tried” before an ANC disciplinary committee. The committee comprised of “disciplined members of the ANC” and can in no way be considered to be independent or impartial as it lacked even the most basic safeguards that would have secured its independence and impartiality. The conviction of Malema was a foregone conclusion but in order to give this outcome a semblance of legitimacy the disciplinary hearing was conducted as if it was a legal one.

The legitimacy of the process was, however, compromised (despite the pretence at legality) because the disciplinary committee members who previously had run-ins with Malema did not recuse themselves and the committee also “forgot” to hear evidence in mitigation after it found Malema and other members of the ANC Youth League guilty of the charges.

The DA has meanwhile launched disciplinary proceedings against DA MP Masizole Mnqasela, after he angered its leader Helen Zille. This he did because during a heated internal party election contest for Parliamentary leader of the DA he stated on prime-time radio that Lindiwe Mazibuko was not black enough to become the DA’s parliamentary leader. Mr Mnqasela had dismissed Ms Mazibuko’s candidacy as “window-dressing” in the lead-up to the DA parliamentary caucus election.

Zille was not amused by this and launched a scathing attack on Mnqasela by saying he had “made a fool of himself and the party”. Writing in her weekly newsletter, Zille equated Mnqasela’s controversial remarks to “Verwoerdian thinking”, referring to the architect of apartheid, Hendrik Verwoerd. “Even in the DA, Verwoerdian thinking sometimes rears its ugly head … I may have missed something, but not once during her campaign did Lindiwe or her supporters ever say she should be elected leader of the caucus because she is black,” Zille wrote.

The DA Constitution allows for a disciplinary committee to hear such a case. Such a committee is not independent but is elected by politicians who are also leaders of the party (on a regional basis) and its members will in all likelihood not wish to upset the party leadership – at least not if they had any thoughts of getting ahead in the party and maybe even becoming a shadow minister of bottle washing or of Zille praise singing. The committee is therefore neither independent nor does it have the necessary characteristics of a body that would act impartiality (or that one could reasonably be expected to act impartially). Zille (like Zuma) has made it clear what outcome is expected of this quasi-legal DA disciplinary process and I, for one, would be very surprised if Mnqasela is not found guilty of some or all of the charges against him.

Ironically, these two examples illustrate (to some degree, at least) the legitimising power that the law still exerts over our imaginations. It reminds us of the dominance in our culture of the liberal view that the law is (almost) always a neutral and objective mechanism for the fair resolution of disputes (even though the presiding officers might get it wrong in exceptional cases and might rely on their own personal ideological views when they resolve a dispute).

But it is even more ironic that by using quasi-legal processes in such a blatant and obvious way to try and legitimise decidedly political decisions, Zille and Zuma run the risk of unmasking the political nature of most legal processes and of helping to delegitimise the liberal version of the law, a version that assumes the law is a neutral and objective mechanism for the imposition of violence on citizens. Because those highly politicised disciplinary processes abuse a quasi-legal process to give some credibility to what are essentially political decisions to act against the members of two different political parties who had dared to cross the leader of the respective parties and threatened the authority of both Zille and Zuma, people might well become cynical about the law more generally.

They might begin to think that law is merely a form of politics perpetrated by members of an unelected clan of legally trained judicial officers. After all, lawyers already know that it can matter a great deal who the presiding officer in a case is. They also know that external political considerations may play a role in the decisions taken by a presiding officer. I recall that in the earlly 1990ties, the Supreme Court of Appeal (SCA) suddenly softened its stance on ANC aligned criminal defendants and reduced Winnie Mandela’s sentence so that the then wife of Nelson Mandela would not have to go to jail. That outcome would have been unthinkable in the mid 1980ties.

This is dangerous terrain for lawyers and judges because political demagogues and populists might easily exploit this ambivalence in the law’s relation to politics to try and delegitimise the courts and the legal process entirely. And this would open up a space for an entirely lawless and authoritarian regime to emerge in which the law on paper would mean nothing more or less than what the President said it meant.

Lawyers therefore face the challenge of producing plausible arguments about the interaction between law and politics, arguments that would acknowledge the fact that legal rules (and the way they are interpreted and applied) can hardly be said to be neutral, but that make strong claims about the ability of such legal rules (to some extent, at least) to constrain the judges that interpret and apply them so that those judges do not merely impose their own personal political preferences on the parties in a dispute before them.

Whiteliness strikes again

Nov 17th, 2011
by Pierre De Vos.
137 comments

It is not always easy to engage in any kind of rational debate about political or social issues in South Africa. Some voters are blindly loyal to the political party of their choice and will defend the leaders of that party no matter what these leaders do or say, perhaps out of a misplaced sense of racial solidarity or perhaps because of a wilful and arrogant blindness bordering on sycophancy. Some politicians are also incapable of admitting that they have made a mistake and will launch ad hominem attacks against those who point out any weaknesses in their arguments. Some will even twist the truth (and sometimes lie outright) in order to try and defend the indefensible.

Helen Zille, leader of the Democratic Alliance, and some of her supporters seem particularly prone to this phenomenon. Recent discussions about Zille’s rather startling comments on HIV and AIDS, illustrate this point rather well. Zille was taken to task by myself as well as by Gavin Silber and Nathan Geffen about her strange comments on HIV. What followed is instructive and may say much about the hold that racial solidarity have on many South Africans – even amongst supporters of a political party who professes to be completely blind to race.

As Silber and Geffen wrote, in her original newsletter Zille had specifically cited people who contract HIV through “irresponsible” behaviour before rhetorically questioning why “taxpayers must foot the bill without asking any politically incorrect questions — enough already!”. She then proceeded to confirm that the Western Cape will continue to provide the most comprehensive HIV-AIDS treatment in the country, but that it would also “ask the necessary questions and make appropriate demands for behaviour change”.

Zille, as is her right, responded to some of the criticism levelled against her by Silber and Geffen stating that:

The article focuses almost entirely on rebutting a statement I never made. It invents a position, falsely ascribes it to me — and then seeks to challenge it. That qualifies as a “sick joke”. It is totally ludicrous to say that I suggested withdrawing treatment from those who contract AIDS “irresponsibly”. How would one know? I have never suggested that the public health system stop treating any person (let alone category of people) with HIV.

This statement is curious and is difficult to reconcile with what Silber and Geffen had actually written and what Zille herself had written on the topic. It reminded me of Thabo Mbeki who first questioned whether a link existed between HIV and AIDS (“a virus cannot cause a syndrome”) and then, when criticised about this, claimed that he had never questioned this link. Silber and Geffen had actually written nothing that was not based on the published writings of the Premier which are easily accessed via the Internet.

Her newsletter, read with various tweets she fired off the next week, makes it clear that she believes that a person who contracts HIV “irresponsibly” should not ask the state to pay for ARV’s but should pay for this him or herself. This assumes, of course that the person would be able to afford to pay for the ARV’s. One assumes the Premier either believes that everyone can afford these medicine, or that those who cannot afford to pay should die.

This assessment might seem harsh. That is why I went back to Zille’s tweets to see if she might have been misquoted. But, no, there they were, her series of bizarre tweets on HIV, for all to see. (What is it with politicians, the internet and HIV? First there was Thabo Mbeki and now we have Helen Zille.) I quote a few of her tweets:

A nanny state when ppl don’t act responsibly and then expect treatment.

Get off your entitlement horse and pay for your preventable disease yourself.

Keep your preventable illnesses out of the state’s coffers. Pay for your own ARVs.

[A twitter contributor writes….] If you have consensual unprotected sex, fund your own ARVs [and Zille responds…] Absolutely. The state should pay for unpreventable illnesses.

Then don’t come looking for the nanny state when you need treatment.

Be responsible or pay for your own ARVs.

I made the mistake of posting some of these tweets beneath her denial that she had ever suggested irresponsible people should pay for their own ARV treatment and pointed out that:

Helen Zille says: “It is totally ludicrous to say that I suggested withdrawing treatment from those who contract AIDS “irresponsibly“ But in her tweets she suggested that people who do not use condoms should pay for their own ARV’s. Sounds like she is not being truthful. Some might call it a lie.

Pointing out this lack of candour on the part of their hero was not a smart thing to do, it seems. My post outraged some DA supporters. I provide a sample of the entertaining comments below:

If it weren’t so tragic the comments by de Vos et. al would be amusing and witty…

And as for Pierre de Vos, well what can we expect???

De Vos is without a doubt one of the biggest prat’s on the planet.

Pierre de Vos should stick lecturing in his ivory tower up on the hill. Academics get completely divorced from reality. It’s political correctness and the patronising attitudes of guys like Silber, Geffen and de Vos who think they know what’s best for black people that get me down.

De Vos and his ilk will never have time for Zille, after all she calls a spade a spade. Zille should stay off twitter, after all one cannot build an argument in 140 characters, and one’s message can be misinterpreted. De Vos is the worst kind of academic, he llives in a world that should be perfect, which is fine if you stick to theorising to students, but if you want to get involved in real life, come down from the hill.

Now, as that old right wing judge Erasmus (and old friend of PW Botha) reportedly said many years ago, these criticisms “runs of me like ducks water off my back”. Who cares what obsessed DA supporters infected by a serious dose of racial solidarity think? But it is so depressing that none of those who jumped to Helen Zille’s defence (as they have every right to do) engaged with the point I made. None tried to argue that Zille’s denial was truthful. Instead they just attacked the messenger who happened to have pointed out what would appear to be a huge contradiction between her last statement and her previous tweets.

I fear that many South Africans — and judged by these exchanges, many of them DA supporters — are not very good at democratic debate. One might well have tried to parse Zille’s words (as defenders of Thabo Mbeki often used to do, to their credit) to argue that her denial was indeed truthful. Or one might have invoked context to defend her statements in an effort to reconcile them. Or one might have made a sophisticated argument about how Twitter twists the meaning of words. Such interventions might not have been credible, but they would at least have engaged — no matter how bizarrely — in some form of democratic exchange.

Could it be that some people are so used to having their views validated and taken as the gospel truth, so used to be treated as if their views embody rationality and truth and moral goodness (perhaps because they embody white privilege and unthinkingly and arrogantly live  what Samantha Vice calls whiteliness and white cultural dominance), that they are incapable of engaging rationally with somebody who seriously challenge the assumptions and prejudices they embrace (but that they do not even know that they embrace)?

Is this why only ANC supporters and voters are lambasted for voting along racial lines and for displaying irrational racial solidarity with the ANC and its leaders? I suspect for many of the defenders of Helen Zille it will make no difference if she turned into a tree stump or if she were charged with corruption (they will probably say it was all an ANC plot to discredit her): they will defend her because she is their hero, finish and klaar.

What they do not realise is that such blind loyalty is bad for democracy and is also bad for the leader one is prepared to follow so blindly. How can we have real and meaningful debate if some refuse to address the real issues? And surely, if a leader is so adored and blindly defended, there will be a great danger that he or she will begin to believe the hype and will begin to believe in his or her own infallibility? The truth is that we are all fallible and we all make mistakes. But only those who at least try to be responsible citizens will ever admit to this and would show a willingness to be self-critical and to be critical of the leaders they respect or even adore.

Here is a challenge to DA supporters: why not try and engage with the arguments in this post — robustly and sharply if you so wish — in a serious manner? Why not try and debunk my arguments with more than ad hominem invective? (And if you use ad hominem attacks, why not try making these clever and witty, at least?) In short: why not try and act like responsible citizens in a constitutional democracy?

Just a thought.

Helen Zille, the HIV populist

Nov 10th, 2011
by Pierre De Vos.
66 comments

Political leaders holding executive office (like the President and the nine Premiers) cannot be expected to know everything about every conceivable subject. That is why they employ advisors to assist and advise them. However, sometimes they think they know everything about everything (always a dangerous thing for a politician to think, as we know from experience with former President Thabo Mbeki) and sometimes their advisors fail to do their job properly.

Thus President Jacob Zuma, apparently ill served by his legal advisors, have made some serious blunders over the past two years. First he relied on an obviously unconstitutional provision to try and extend the term of office of a great Chief Justice, then he appointed a retired Constitutional Court judge to lead an inquiry into Bheki Cele’s fitness to hold office when he was legally required to appoint a judge from the High Court or the Supreme Court of Appeal.

It is unclear whether Premier Helen Zille relied on advisors before making truly astonishing statements about the criminalisation of sex or whether she came up with her hare-brained scheme all by herself.

Zille said earlier this week that she was so worried about the spread of HIV and its cost to the government that she wants men who have multiple sexual partners and refuse to use condoms to be charged with attempted murder. Zille told a wellness summit hosted by the provincial health department in Newlands on Tuesday that it was time the government shifted its exclusive focus from treating diseases to preventing them and promoting wellness.

If she was quoted correctly, her statement represents a frontal attack on the Rule of Law and the basic principles of criminal law applicable in any democratic society.

If she said that men who have multiple sexual partners and refused to use condoms should be charged with attempted murder regardless of whether they are HIV positive and regardless of whether they knew that they were HIV positive, she was advocating the criminalisation of conduct that no civilised society based on the Rule of Law and a respect for human rights would criminalise.

A fundamental principle of the criminal law in a country that adheres to the rule of law is that one could only be charged and found guilty of a crime (or attempting to commit a crime) if one could be proven to have had the intention to commit the crime or (in exceptional cases) had the knowledge that his or her actions could have resulted in the commissioning of unlawful action and nevertheless negligently proceeded to act. In South Africa culpable homicide is the unlawful and negligent killing of another. Attempted murder is committed where one inentends to kill somebody else but fails in doing so.

Merely potentially endangering the life of another can never be culpable homicide or attempted murder and one cannot be convicted of attempted culpable homicide. One can only be convicted of attempted murder if it can be proven that one had the intention to kill another but failed to do so. In S v Naidoo the SCA set out the position quite clearly:

What the crimes of murder and culpable homicide have in common is a fatal outcome for a human being. Absent a death, absent the particular crime. What they do not have in common is that absent a death, there may be a conviction of attempted murder but not a conviction of attempted culpable homicide. The reason for the difference lies in the distinction between the two forms of mens rea which are essential elements of the respective crimes of murder and culpable homicide.

The crime of murder cannot be said to have been committed unless the act or omission which caused death was intentionally committed or omitted and death was the desired result, or, if not the desired result, at least actually foreseen as a possible result the risk of occurrence of which the accused recklessly undertook and acquiesced in. In short, dolus in one or other of its manifestations (directus, eventualis, indeterminatus, etc) is the kind of mensrea which must have existed. Where the act or omission is accompanied by such dolus but death does not in fact ensue, it is easy to understand why the accused’s conduct should be visited none the less with penal sanctions. A deliberate attempt to commit the crime of murder cannot be ignored and left unsanctioned simply because the perpetrator has failed to achieve his or her objective.

Where it can be proven that a person intentionally tried to kill another by infecting him or her with the HIV virus (which would be very difficult to prove) a person could be charged with attempted murder. But where someone does not know his or her HIV status and have sex without a condom, it could never lead to a criminal conviction for attempted murder due to the absence of intention. If somebody negligently transmits HIV to another and that person actually dies, the person could theoretically be charged with culpable homicide, but proving the causal link between the sexual act and the death of the person as well as the negligence on the part of the accused would be almost impossible to do.

Given the fact that anti-retrovirals are now widely accessible, a person who responsibly gets tested and take this medicine will in all probability live a long and productive life, which means that it would be almost impossible to prosecute someone for attempted murder as the state would not be able to show the causal link between the sexual act and the death.

In the age of ARVs, deliberately transmitting HIV to another could not be viewed as attempted murder because one’s action would not lead to the death of the other person. Where a person dies of an HIV related illness, the accused charged with his or her murder or with culpable homicide would argue that but for the failure of the deceased to take ARVs death would never have occurred and that there was hence no causal link between the sexual act and the death.

There are good reasons for this. In a constitutional democracy — as opposed to a theocratic state — the criminal law cannot be used to punish individuals merely for not conforming to Judaeo-Christian moral standards regarding sexual behaviour. If one criminalised all unprotected sex with one or several partners, one would be punishing people for something that might never have happened (HIV infection, leading to death) or for something they might not have foreseen at all (as they might not have believed that they were HIV positive at all or might not be HIV positive). One would be punishing people for not behaving in a manner one believes is appropriate — regardless of the consequences or potential consequences.

The criminal law then becomes an oppressive and authoritarian instrument of social control, turning large numbers of ordinary citizens into instant criminals. Where the criminal law punishes behaviour not based on the consequences or potential consequences of said behaviour but for its own sake and without taking into account the guilt of the accused, the Rule of Law is fundamentally undermined.

Perhaps Premier Zille was misquoted or she “misspoke” — as Hillary Clinton famously “misspoke when she said she had to evade sniper fire when she was visiting Bosnia in 1996 as first lady when, in fact, she was greeted by flower-bearing children. Perhaps she meant to say that somebody who has multiple sexual partners and knows that he is HIV positive but nevertheless fails to use a condom and then transmits HIV to a partner who later dies from AIDS related illnesses should be charged with attempted murder.

Even so, this view is quite shockingly misinformed and would have disastrous consequences. It would create an incentive for some men not to get tested for HIV and hence not to take ARVs. Not only would the men then die needlessly but those men would be also far more likely to transmit HIV to their sexual partners. This is because an HIV positive person on ARVs whose viral load becomes undetectable are far less likely of transmitting HIV than one who is not on ARVs and whose viral load is high.

Criminalising sexual behaviour in this way might therefore increase the rate of HIV transmission. It will certainly not decrease it.

Julius Malema is often criticised for being a populist — saying things that are truly idiotic or even dangerous but which he knows would be popular with his constituency. But he is not the only populist politician around. This statement by Premier Zille is a classical populist statement: idiotic and dangerous but quite popular with a certain constituency. She should have known better. And if she did not, she should have known to ask somebody who is a bit more knowledgable than herself to inform her about the legal and medical issues around HIV.

Will the DA stick to its stated principles?

Sep 28th, 2011
by Pierre De Vos.
66 comments

Members of the Democratic Alliance (DA) caucus are facing an interesting choice when they decide whether to reaffirm Athol Trollip as its parliamentary leader or whether to throw their weight behind Lindiwe Mazibuko, who has announced that she is challenging Trollip for the position of parliamentary leader. An incumbent (who happens to be a white male) is facing off against a young challenger (who happens to be black and a woman).

The political editor of Beeld, Jan-Jan Joubert, has argued that for the DA to be true to its values, the caucus members should not take into account the fact that Mazibuko is a black woman and that Trollip is a white male. Elsewhere Joubert wrote that Trollip’s performance has been solid rather than spectacular, and certainly not on par with that of his predecessors, Sandra Botha and Tony Leon, but he has not indicated whether he believes Trollip or Mazibuko would be a better choice.

On this issue I believe that Joubert is dead wrong. This is why.

In discussions on talk radio many DA supporters have indicated that they would support Mazibuko because the DA “needs a black face in its leadership” or — less crudely — because of the fact that voters need to be able to identify with the leaders of the party it would vote for and because the DA needs to attract more black voters to break out of its Western Cape Zillestan.

Personally, I suspect that the DA would have to do much more than merely elect a black parliamentary leader to convince the majority of us South Africans that it is a credible alternative to the ANC. While some DA MPs and some of its leaders are hardworking and sincere, the tone which some of the DA representatives employ when they engage with important issues of the day still alienates many of us. The fact that the party also still far too often is seen as focusing its attention, at best, on the concerns of upper-middle class voters and, at worst, on the concerns of those white supporters who are extremely reactionary and in cases downright racist, rather than on the concerns of the majority of South Africans, leaves many of us with the uneasy feeling that the DA is essentially a party of white privilege and prejudice.

During the election campaign Helen Zille, Patricia de Lille and Lindiwe Mazibuko tirelessly tried to address this very debilitating perception. Premier Zille sang and danced and appeared at DA rallies held in many townships; and at the last election rally held by the DA before the election Zille threw in more than a smattering of Xhosa into her speech to remind us that the DA was supposedly for all of us.

But the DA faces a difficult problem: as it attempts to appeal to more than the narrow interests of the white electorate who has voted for the party in the past, it may well alienate some members of that very white electorate whose support it needs to retain in order to remain a viable party. Hence, since the election one has not heard Helen Zille speaking any Xhosa and when Dene Smuts issued a rather level-headed and sober assessment of the hate speech judgment of Judge Colin Lamont, many DA supporters were incensed by her analysis because it was mildly critical of the judgment, prompting Helen Zille to issue a clarifying statement.

Nevertheless, in my humble and completely unsolicited opinion, the election of Lindiwe Mazibuko as parliamentary leader of the DA would constitute an important (but not decisive) step towards rehabilitating the DA and towards positioning it as a credible political party in the South African landscape. In fact, not electing Mazibuko would undo some of the good work that Zille has undertaken during her term as leader, as it would send a signal that the DA is fundamentally a racist party who champions white mediocrity over black talent. This is so because its caucus would then have demonstrated that it had once again chosen to support a less than inspiring white man over an, admittedly, less experienced but obviously highly talented rising star who happens to be female and black.

In short, if the DA caucus members vote for Trollip because he is white, the party is doomed to remain an opposition party for decades to come (not that voting for Mazibuko will magically turn the majority of voters away from the ANC and towards the DA).

But does it mean – as Joubert seems to argue – that if the caucus votes for Mazibuko, at least in part, because she is a black woman, that the party is not being true to its principles and policies? Well, if one takes the actual policies of the party seriously (something that some of us admittedly find difficult to do), I think the only option for the DA caucus would be to vote for Mazibuko. If we assume that it was not mere window-dressing by the DA to elect Mazibuko as national spokesperson for the party and hence if we accept that she is a competent and credible politician, the DA’s own policy on corrective measures demands that she, rather than Trollip, should be elected as parliamentary leader.

Two weeks ago a DA MP sent me the DA’s policy on corrective measures to try and convince me that the DA does believe in racial redress of some sort. I quote the most salient aspect of that policy below:

[T]he DA believe in equitable programmes of admission, recruitment and appointment in all spheres. Equity means fairness. It means no-one may be excluded from competing for places on the basis of their immutable characteristics, except where differentiation is just and equitable: a near-sighted person cannot be expected to be trained as a pilot. But in order to advance the goal of equality and the reflection of the full diversity of our society in terms of race, ethnicity, sex, belief, culture, and able-bodiedness, underrepresented categories should enjoy “plus points” or favourable consideration when they are as well qualified for appointment as the next man or woman; or when they show comparable promise. To pretend that qualifications on paper, in examinations, in Curricula Vitae or on job performance scorecards  are the only appropriate or conventional criteria for eligibility for admission, appointment, selection, promotion and the like in any sphere of activity can potentially be as mechanical as demographic determinism.

This policy, authored by Dene Smuts and adopted by the DA Federal Council in 2005, thus embraces a mild form of race based corrective action. It explicitly endorses measures that would give weight to the race of a person when considering whether that person should be appointed, elected or promoted.

In a case like the one under discussion, where one candidate is less than brilliant (but happens to be white and male) and the other is black woman who is a rising star who might conceivable be said to show the promise of a good leader, the DA’s own policy says that the latter candidate must be given some “plus points” because she is black and a woman, and hence that she should get the nod above the white male candidate.

If the majority of the caucus fail to elect Mazibuko as parliamentary leader this might well mean that she has risen inside the party not because of her qualities as a politician and a leader, but merely as window dressings; that she was used to give the DA the veneer of credibility it needs to attract the majority of voters in South Africa.

It would mean either that she does not possess the promise that the DA policy speaks of, or that the majority of DA caucus members do not agree with the policy on corrective measures adopted by the party. Either way, it would make the DA the laughing stock of any mildly well-informed member of the public and would suggest that it is just as (or more) dishonest than the ANC when it comes to sticking to its supposed principles.

I therefore believe that Jan-Jan Joubert is dead wrong on this issue. If the DA wants to demonstrate that it is a party of principle, its caucus can only elect one parliamentary leader — and that is not going to be Athol Trollip. The fact that the tie-break in this case will be the race and/or gender of the candidate squares perfectly with the policies on redress adopted (but seldom spoken about) by the DA.

When people are treated as ideological tools

May 3rd, 2011
by Pierre De Vos.
87 comments

The judgment in Beja and Others v the Premier of the Western Cape and Others makes for interesting reading, most notably because it emphasises the importance of participatory democracy and sends a warning to local government officials and politicians to stop treating residents as the passive and powerless recipients of the occasional government handout. Neither the DA nor the ANC comes out of this saga – relating to the building of open toilets at the Makhaza informal settlement outside Cape Town – smelling like roses. As judge Nathan Erasmus pointed out:

The Mayor of the City of Cape Town … Mr Dan Plato and second applicant, Mr Andile Lili, who purports to be a political leader and an Executive member of the African National Congress Youth League, … simply failed to rise above their political contest as opposed to their duty towards those that need to benefit the poor and vulnerable.

To me, the Makhaza toilet scandal is illustrative of a much larger problem with the attitude towards governance in South Africa. Officials and politicians – of both the ANC and the DA – tend to believe in a top-down bureaucratic style of governance which treats people not as active citizens with an inherent human dignity but as passive recipients of the largess’s of government. “We know what is best for everyone,” politicians seem to think, “and will therefore make decisions in the best interest of residents – regardless of their personal circumstances and regardless of what their needs might be.”

The City of Cape Town obviously wanted to think outside the box when it built the open toilets. But its officials seemed blissfully unaware that some people hardly have money to buy food – let alone to build enclosures for toilets. Perhaps pumped up with an ideological free-market fervour which assumes that individuals will flourish where they are given choices and opportunities, officials decided to build open toilets for all, rather than closed toilets that had to be shared. In this ideological universe, no one thought that some residents would not have the “opportunity” to enclose their toilets because they hardly had the “opportunity” to eat.

Officials never seemed to consider the possibility that some residents might not be able to enclose their toilets, which suggests a rather surprising lack of knowledge about, and empathy with, the lives of poor Capetonians. And as the judgment in this case makes clear, officials were never going to learn about the conditions under which the poorest residents live because they never really made an effort to engage in a structured and sensitive manner with all the residents.

According to Premier Helen Zille, an agreement of sorts was reached on an ad hoc and informal basis between officials and the community. There was, however, never a formal decision at executive or council level about the provision of open toilets and it seems as if the engagement process was left to officials (some of them ANC leaders) who had an own agenda and who did not do what the Constitution required of them. 

This delegation of engagement with the community to underlings and “hired help” – which suggests that there was a lack of respect for the community which the city was supposed to serve – would come back to haunt the city. Premier Zille conceded that the provision of unenclosed toilets, absent an agreement for enclosure, would be an affront to human dignity. The Court found that no proper agreement was in place and hence that the human dignity of residents had been infringed. This finding is in line with the Constitutional Court’s jurisprudence on meaningful engagement.

The Constitutional Court has, on several occasions, stated that the Constitution placed a duty on municipalities to engage meaningfully with affected people before and during any attempts to realise the social and economic rights of individuals and communities. In the case of Olivia Road Justice Yacoob stated that it was “precisely to ensure that a city is able to engage meaningfully with poor, vulnerable or illiterate people that the engagement process should preferably be managed by careful and sensitive people on its side”.

The City claimed that it had complied formally with the engagement process because it had collected “happy letters” from residents who might or might not have provided these letters because they were desperate for toilets. (The court makes no finding on this point as there is insufficient evidence about the reasons why these letters were signed.) But these “happy letters” were not sufficient to satisfy the constitutional requirement of meaningful engagement. As Erasmus J explains in his judgment:

These agreements, to be enforceable, ought to at least satisfy four minimum requirements; (i) it must be concluded with duly authorised representatives of the community; (ii) it must be concluded at meetings held with adequate notice for those representatives to get a proper mandate from their constituencies, (iii) it must be properly minuted and publicised. (iv) it must be preceded by some process of information sharing and where necessary technical support so that the community is properly assisted in concluding such an agreement. None of these requirements were met in this matter. Even if an agreement satisfies all four requirements, an agreement cannot be a vehicle through which a majority within a community approve arrangements in terms of which the fundamental rights of a vulnerable minority within that community will be violated.

At the original meeting where “agreement” was reached between officials and some members of the community, 60 people were present. These 60 people therefore in effect were allowed to make a decision that would affect the living circumstances of 6000 people. As there was no proof of who were present at the meeting, who they represented and to what extent the community supported this “agreement” it could not stand.

In any case, such an agreement cannot erase the constitutional right to dignity enjoyed by all residents. As the Court pointed out, the agreement made no provision for those who were particularly vulnerable and poor and would therefore never be able to enclose their toilets. Concluding and implementing this agreement was therefore not reasonable as required by the Constitution.

The City ought to have come to the assistance of those who, due to poverty and their particular disadvantaged socio-economic status could not afford to enclose their toilets. Also no regard was had to persons with disabilities or to issues of safety for those most vulnerable to violence in terms of the structure. The City failed to take into consideration the gender impact on women and girls both in terms of different biological needs as well as their vulnerability to higher levels of gender-based violence. All of these are to be considered as a violation of fundamental rights of human beings and cannot be waived by the agreements, as alleged here.

The judgment is also rather critical of ANC Youth League executive member Andile Lili, whose role in this saga seems to act as a metaphor for everything that is wrong with the ANC as a governing party.  Lili was one of the Community Liaison Officers who supposedly had to liaise between the community and the city. This he did not do. As Judge Erasmus pointed out: 

What has become evident is that [Lili] had a core function of promoting the interests of the Citys contractor. In fact the second applicant was being paid by the contractor and the question arises if the second applicant was indeed a community representative who was taking the communities best interests to heart. Not only was the second applicant in the pocket of the contractor but his role undermined the principle of community participation.

Lili’s role is thus described by Erasmus J - in a rather understated manner – as questionable.  After protracted negotiations the City went to Makhaza again in March 2010 in an attempt to enclose the toilets. 26 toilets were enclosed and then immediately destroyed and broken down by persons claimed to be ANCYL members. On 17 May 2010 the Mayor met with Lili and other members of the ANCYL, the ward councillor and the senior housing officials of the City. The outcome of the meeting was that construction to enclose the unenclosed toilets was to commence once again.

The construction resumed on 24 May 2010 and several toilets were enclosed until the community members once again became aggressive and demolished the structures. Once again the contractors had to leave Makhaza. The Mayor ordered that the unenclosed toilets were to be removed completely and a further 10 toilets were removed thus making the total of 65 toilets removed from Makhaza. 

Reading between the lines, it seems as if Lili was playing a double game. He was taking money from the contractors and making agreements with the city, but then reneged on these agreements, pretending to represent the interest of the community while trying to gain some political capital for the ANC out of the sorry mess and keeping those who paid him on side as well.

The judgment also found that the various pieces of legislation and provisions of the Housing Code did not provide that a city had to provide a minimum of 1 toilet for 5 households only. Cities who could afford to had to provide more and was perfectly entitled to find innovative ways to do so – as long as it engaged in a meaningful manner with the community and as long as it did not infringe on the human dignity of residents. What was required was for the city to engage meaningfully with the community and – within the available resources of the city – progressively to provide better facilities to more people in consultation with the affected community.

The consequence of this judgment is therefore not – as was claimed by the DA – that the city would now be precluded from initiating innovative solutions to benefit the community. If it engaged with the community in a meaningful manner and produced innovative solution in agreement with a community, it could proceed to implement policies that go far beyond the suggested minimum standards prescribed by legislation.

As is the case in most other municipalities run by the ANC, the big problem is that officials as well as politicians do not like the idea that it should provide better services not to passive citizens who should gratefully receive any benefits that flow from bureaucratic planning processes, but rather to active citizens with whom it should continuously engage in a sensitive and structured manner. This will have to change. And the DA as well as the ANC will have to learn that the people they serve must be given the opportunity to engage with officials and politicians in an ongoing manner – or face the legal consequences.

Insurance for a rainy day?

Jan 18th, 2011
by Pierre De Vos.
27 comments

Lat last year I took a bet with a friend. I will buy him a good bottle of red wine if President Jacob Zuma is not elected for a second term as ANC President (and then as President of the country). He will buy me a good bottle of red wine if Mr Zuma is elected to a second term. Maybe I will lose this bet. But I don’t think I will.

President Zuma is widely underestimated in South Africa. By this I do not mean that Zuma is a competent manager or visionary leader who is going to be one of South Africa’s great President’s. On the available evidence very few people would be able to claim with a straight face that he is either a competent or a visionary President. In fact, he often gives the impression that he is completely out of his depth, that he is incapable of leading the government of a complex country like South Africa and that others like Kgalema Motlanthe and Gwede Mantashe are really doing the work and the thinking required of government while he smiles and giggles and bumbles along. (Maybe this impression is wrong, but then President Zuma is doing things in private which he seems unable to articulate in public – especially in unscripted interviews.)

No, President Zuma is underestimated as a political survivor. To this observer it seems as if almost every decision President Zuma takes — either as President of the country or President of the ANC -  is calculated to ensure the political survival of Zuma inside the ANC and as head of state. Whether it is the way he has dealt with Julius Malema or the way he is dealing with economic policy, my impression is that he takes decisions (or declines to take decisions) based not on what he thinks is best for the country but what he thinks is best for himself and by extension the ANC. (Sometimes, when we are lucky, these things even overlap.)

Maybe President Zuma has learnt the lesson of that other guy whose name we hardly remember these days (you know, that guy with the criminal ideas about HIV) and maybe this is why Zuma is focusing on keeping control of the ANC and leaving the governing of the country to more competent people. When Thabo Mbeki  lost his grip on the ANC it was not long before he was stabbed in the back and ousted as President and whitewashed out of the ANC history. All his clever, technocratic plans, counted for nothing.

(This is different from Helen Zille, who seems to take decisions because she has convinced herself that she knows everything, that she is always right and that she is saving Cape Town, the Western Cape, South Africa and the world from the stupidity and dangerous vacillation of those lilly-livered individuals who believe in the outrageous notion that the world is a complex place and that there are often two sides to a story and many nuances to an issue that makes it rather difficult — if not impossible — self-righteously to claim always to have the final answer.)

President Zuma’s appointment of Menzi Simelane as National Director of Public Prosecutions was widely seen as an attempt to protect himself from any further possible prosecution. He has also appointed his friends and buddies (of different shades of competence and honesty) to all the major positions in the security cluster. If one controls the intelligence services, the army and the police force as well as the Prosecuting Authority, one is well on one’s way to a second term as President (and a third and fourth term as well — if one wants them).

This is why the President’s new appointments to the NPA does not come as a surprise. I could not say it better than the Business Day editorial:

THE appointment by President Jacob Zuma of advocate Nomgcobo Jiba as deputy national director of public prosecutions is disturbing, but sadly also unsurprising. It follows a worrying trend in the Zuma government of appointing supplicants and allies to key positions within the security establishment.

Some of these people may surprise us by being effective so, by rights, judgment should be suspended until they have proved themselves in office. But it must be said that the omens do not look good.

Ms Jiba’s record of prosecutions in prominent cases seems light for someone who is being promoted to such a senior post. Her only notable claim to fame so far is that she was facing charges for undermining her superior at the time, senior prosecutor Gerrie Nel. The charges were dropped, as were the charges that she was apparently involved in instigating against Mr Nel.

Mr Nel was, however, shockingly arrested in 2008 in what appeared to be a bid to disrupt the investigation into former police commissioner Jackie Selebi. Ms Jiba was suspended by then acting national director of public prosecutions Mokotedi Mpshe for her part in this alleged conspiracy.

Mr Nel was responsible for successfully bringing a criminal case against Selebi. In most places in the world, anyone responsible for successfully prosecuting the former chief of police and head of Interpol would be regarded as a national hero. But Mr Nel was leapfrogged by the very person who was accused of being involved in a conspiracy to try to halt that case.

The other appointment made at the weekend was that of Nomvula “Pinky” Mokhatla to deputy national director. She too is without any notable achievements in law enforcement to her name as yet.

The political message seems clear: the African National Congress (ANC) is trying to make sure none of its senior members get to be the target of an investigation that so embarrassed the party and Mr Zuma over the past few years.

Yet the result is likely to rebound on the party, which is steadily blunting the sword of justice. Without this sword, the ANC will be without the tools to fight corruption within the party and the country, and that will ultimately degrade both.

On shooting the messenger and cadre deployment

Oct 28th, 2010
by Pierre De Vos.
242 comments

When the scandal first broke Western Cape Premier Helen Zille was obviously in a fix: The DA-led Cape Town city council had built toilets without walls for black citizens living in the Makhaza area and the South African Human Rights Commission (HRC) had found that the city was in breach of the rights of those citizens. For the ANC - in complete organisational disarray in the Western Cape – this came as a godsend and the party and its Youth League made full use of this political gift by the DA to paint the DA as a callous party with absolutely no understanding of poverty and no respect for the dignity of black citizens.

After all, the DA city council had not expected white residents to use toilets that are open for all to see, so this move looked at best like the DA had no understanding of the problems faced by many poor and black residents of the city and at worse like sheer racism. Can anyone imagine the DA providing white residents from Sea Point with toilets which would require them to relieve themselves in the open air in full view of their neighbours? Can anyone imagine that the DA would be callous enough to call such toilets “loos with a view”?

Obviously, no one who is honest would be able to say that they could imagine such a thing. For one thing, my scary Aryan-looking DA Councillor, JP Smith, would never have allowed such “immoral”, “barbaric” and “lewd” behaviour in Sea Point and would have ordered the police to arrest any resident who had demanded to shit on the Sea Point promenade long before that resident would have been able to finish his business in peace (while enjoying the lovely view of Robben Island in his “loo with a view”).

So, Helen Zille was in a fix: the toilet scandal was threatening to become a metaphor for everything that seemed wrong with the DA. It was reinforcing the view amongst most progressive white South Africans and the vast majority of the African population that the DA had one standard for whites and another for black South Africans.

But what could Premier Zille do? 

Well, she used the oldest political ploy in the book by shooting the messenger. By doing that she obviously hoped to change the topic. After all, it used to work for Thabo Mbeki (another arrogant, principled and intelligent person who did not like to be told that he had been wrong) who shouted racism to deflect attention from his bizarre views and the terrible failings of some of his cabinet ministers. That is when Premier Zille penned one of her diatribes against the HRC, stating that:

The HRC is quickly becoming as discredited as the Public Protector was when Mushwana held that office. One just has to read the extraordinarily biased and factually inaccurate report of the HRC on the Makhaza toilet saga to understand the agenda. The report’s analysis and conclusions are impossible to explain rationally. The inevitable inference is that the report’s purpose is to embarrass the DA and benefit the ANC. There is no other credible explanation in the light of the facts.

The only problem was that the above statement was demonstrably false. Zille was either very ill informed or she was lying. The secret report by the DA controlled city council forensic department confirms that the Premier had attacked the HRC unfairly and wrongly. The report makes for quite surprising reading and completely refutes the statement by Zille quoted above.

Residents were forced to sign “happy letters” that officials could use to “prove” that the open toilets were accepted by the residents. I know what I would have told the city what to do with such a letter had they built me a toilet without walls and then asked me to sign a “happy letter” to prove that this was what I wanted (but I am upper middle class and white, so I am probably not going to be intimidated by Dan Plato and his merry men). As the report also found, the letters actually “do not indicate whether the beneficiaries are satisfied or dissatisfied with the toilets”.

Moreover, the Report found that the city had failed to keep formal minutes of meetings where the scheme was discussed as required by the National Housing Code (which places a question mark over claims by the DA that sufficient consultation with the community ever took place.) It also confirmed – as I have argued elsewhere – that provisions of the Water Services Act were not complied with.

So it turns out that – contrary to what the Premier had claimed – the analysis in the HRC Report and its conclusion was easy to explain rationally. After all, the city council’s own report came to much the same conclusion as the HRC Report. As the Report came to the same conclusion as the city’s secret report, the claim that the HRC report was aimed at embarrassing the DA was therefore not sustainable. This is when Premier Zille changed direction slightly and tried to make the argument about cadre deployment and not about her rather embarrassing, hysterical and untrue claim about the HRC and the malicious intent of its Report.

This was both short-sighted and, so it seems to me, dishonest. Premier Zille at this point could have owned up to the original mistake and could have said: “I was wrong. The HRC Report findings were credible. I apologise to the HRC and those I had attacked about this issue.” Instead – like an over excited  poker player – she raised the stakes and attacked Janet Love because Love had been on the ANC NEC before she took up her post as a HRC Commissioner.

This was clever but devious. If we all argued about whether Janet Love was a saint or an evil cadre of the ANC, we would forget the original statement by Zille which now turned out to be false and probably defamatory. We would also forget that the statement probably constituted a criminal offence in breach of section 18 of the Human Rights Commission Act. But some of us remember that first outburst, hence this post. Will the Premier apologise to the HRC and admit that the HRC Report was fundamentally correct? I doubt it, but it is worth asking I guess.

Meanwhile Zille has managed to do immense damage to the DA’s reputation. It was just beginning to gain some credibility outside its usual support base before this saga (and how it was handled) reinforced the suspicions of the majority of South Africans that the DA was a “white” and “racist” party. By abusing the issue of cadre deployment in this way, Zille has also made it more difficult to be taken seriously on the important issue of the dangers of cadre deployment. Who is going to listen to her the next time she natters on about cadre deployment? Most sane people will just assume that she is trying to change the topic and is shooting the messenger again.

The fact is that cadre deployment by the ANC is a huge problem – just not in the way that Helen Zille claimed it to be in her diatribe against Janet Love and the HRC. The biggest problem with cadre deployment is that completely unqualified and subservient ANC cadres are sometimes appointed as city managers, in other positions of immense importance for service delivery, and in positions in independent institutions. 

Poor people (and sometimes middle clas people too)  suffer when a city manager without any skills is appointed because he knows the ANC secretary in the region. When that manager cannot actually manage a town or city, the roads deteriorate, the lights go out the sewerage spill out into the streets and not even open toilets are built for the people who need them.

The problem is not necessarily that the person is an ANC member or even that he or she is someone who used to be in a leadership position in the ANC. After all, Albie Sachs, Pius Langa, and – yes – Janet Love all used to be in leadership positions in the ANC and I DARE anyone to suggest that any of them had not served or do not continue to serve the people of South Afric in an exemplarily fashion.

If we are going to say that ANC members or former ANC leaders can never be appointed to any important positions, we will have very few people of any integrity and principle left to appoint – given the fact that two thirds of voters support the ANC and given the ANC’s dominant role in the anti-apartheid struggle. That will only leave us with DA members or people without any leadership skills to appoint to important posts in our society. And let’s face it, I would far rather have a Pius Langa as Chief Justice than a Tertius Delport. And I would far rather have a Janet Love on the HRC than a Dan Plato or a Rhoda Kadalie. In terms of intellect, skills and integrity, the former “ANC cadres” are vastly superior to the possible DA hacks.

The problem is NOT – as Helen Zille claims – that ANC members or former ANC leaders are appointed to important positions. The problem is that some ANC-aligned individuals are appointed to positions for which they are manifestly not qualified and that some ethically challenged and unprincipled individuals who have joined the ANC to make money are appointed to important positions. But perhaps because Helen Zille used cadre deployment to try and escape responsibility for her own duplicity, she cannot make such a distinction. This kind of naked politicking does immense damage to the power of a more nuanced and important argument about the dangers of the kind of cadre deployment that I highlighted above.

And by not making such a distinction and by abusing the cadre deployment card (the DA version of the race card), Zille makes it far more difficult for the rest of us to argue against the wrong and destructive kind of ANC cadre deployment that negatively affects the lives of both rich and poor South Africans.

Dan Plato’s Republic and the chamber of secrets

Oct 21st, 2010
by Pierre De Vos.
123 comments

Secrecy, so it seems, is a contagious disease – and it is spreading fast throughout our body politic. At first the disease was contained to the ruling party (or so the media led us to believe), but now it has also spread to the Democratic Alliance (DA) and Mayor Dan Plato’s Republic here in Cape Town. If we do not stop this disease in its tracks, our democracy will suffer.

Everyone in South Africa - except, perhaps, for the Chief State Law Advisor, one or two ANC MP’s and, I suspect, one or two inmates of Valkenburg – are well aware that if the proposed Protection of Information Bill is passed in its current form it will empower officials to classify documents to hide corruption, maladministration or other information that might embarrass the political party in charge of a municipality, province or the national government.

But because secrecy is so contagious this has not perturbed some politicians from defending the Secrecy Bill and from attacking those who demand democratic accountability. I am reminded of the immortal words of that serial floor-crosser and ANC MP Cecil Burgess, the chairperson of the ad hoc committee handling the Protection of Information Bill, who complained that some people were overreacting to the Secrecy Bill because they were “obsessed with openness”?

Then there is the Minister of Defence, Lindiwe Sisulu, who was also struck by the secrecy bug and refused to provide the National Assembly Portfolio Committee of Defence with reports that she is constitutionally required to provide to it. I had hoped that this was not a serious illness but, alas, I was wrong and last week it became apparent that the Minister is suffering from a very serious bout of secrecitis when she refused to provide details about President Jacob Zuma’s official trips taken on his Presidential jet or on other state provided flights. The cost of all of these trips as well as the number of passengers accompanying him on the trips are now all state secrets.

I would, of course, not want to second guess the Minister who must surely have a very good reason for not revealing the cost of these trips to the public who is paying for them through the tax system. Who knows, maybe this information will be used by the Lesotho navy when that country decides to invade South Africa one day. Once information about the cost of past trips taken by our President are in the hands of the Lesotho navy, they might use this in a devious and dangerous manner to determine the state of mind of our President in order to time their invasion for maximum effect. (Maybe there are other reasons for this secrecy but if there are, I am far too stupid – or perhaps honest – to think of any such reasons.)

And yesterday, Khayelitsha members of the Social Justice Coalition picketed outside the Cape Town Civic Centre, demanding that the DA-controlled city release a “secret” report compiled after an internal investigation into the Makhaza toilet scandal. The coalition said the city told it that the city had “no responsibility” to release the report – but the coalition will not accept that.

Now, if only that Protection of Information Bill had already been passed, the city could have classified the report as secret or top secret (the secrecy being in the “national interest”, you see) to prevent the bloody Social Justice Coalition from demanding that the DA practice what it preaches. Unfortunately for the City, the Bill has not been passed yet, so it is still required to release the report and cannot hide behind the Secrecy Law.

I am sure that the City of Cape Town might argue that section 44 of the Promotion of Access to Information Act (PAIA) allows it to withhold the report because it contains “an opinion, advice, report or recommendation” obtained or prepared “for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law”.

But in probably one of the greatest ironies of the past ten years, I am not sure that the city council would be successful with such an argument. This is because section 46 of the same Act states that where the disclosure of the record would reveal 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 record clearly outweighs the harm contemplated in the provision in question, the information has to be released – even if it was obtained in order to formulate public policy.

Like many of us, the DA has argued that one of the biggest problems with the Secrecy Bill was that it did not contain such a public interest override clause. Here one can see very clearly why such a public interest override clause might be necessary. Ironically, in the case of PAIA, this very clause will now make it rather difficult for the City of Cape Town to keep the report secret, given the fact that DA councillor Owen Kinahan himself had said that the actions by the city council on which the report was based was probably unlawful (an argument I made on this Blog as well).

One might therefore be forgiven for suspecting that the report contains information about unlawful action and that the public interest in making the report public far outweighs any harm that might ensue if it is made public. As far as I can see the only harm that will be done might be to the reputation of one Helen Zille who might look like a rather paranoid and dishonest person if a report commissioned by her own DA controlled government found that the city had acted unlawfully (much like the Human Rights Commission Report did). Unless of course the report says nothing of the sort, in which case there would be no reason to keep it secret.

Without wanting to, the DA is thus demonstrating to the ANC why a public interest override clause is so important and why it should also be included in the Secrecy Bill.  

Seeing that the DA is allegedly a principled and consistent party, one would assume that it would release the Makhaza toilet report forthwith as it is in the public interest to release any report to the public that might expose unlawful activity on the part of a public official or institution.  Of course, if the report suggests that the City Council had acted unlawfully (in contravention of the Water Services Act), then it would really embarrass Helen Zille who has been arguing that a finding to that effect by the South African Human Rights Commission are so proposterously wrong that they were part of an ANC inspired plot.

But surely the DA would put principle before the short term consideration of trying to protect its leader from looking like a complete fool? Surely it has PRINCIPLES?  Surely it would not use taxpayers money to try and prevent the release of the report, given the fact that the party has always insisted that when the ANC does this kind of thing the ANC is acting in a completely unacceptable and dishonest manner?

Personally I cannot wait to read what is in that report and whether it agrees with the Premier or not. And if the DA does not release the report, well, then it would be a bit difficult ever to take it seriously again when it complains about the unprincipled and wasteful ANC government.

Is it all the fault of Julius and the racist whites?

Oct 13th, 2010
by Pierre De Vos.
155 comments

Over the weekend I published a post about the pitfalls of the one party dominant democracy in South Africa, arguing that unless the economy collapses or alternative centres of power are established in some municipalities and some provinces the electoral dominance of the ANC (and the concomitant control over state resources that it provides) will assist the ANC to remain in power for many years to come – even if it fails to govern well and even if it does not fundamentally improve the lives of the majority of citizens.

I also pointed out that in almost all one party dominant democracies, corruption, nepotism and maladministration becomes an ever increasing problem. It is therefore in the interest of all South Africans that civil society groups and social movements are strengthened and that the space they have to operated is protected and even expanded. It is also in the interest of all South Africans (and arguably even in the interest of ANC, who will be forced to govern better) for a credible opposition party to emerge in whom at least a sizeable number of black voters will be able to put their trust. Such a party might then take control of some municipalities and provinces, breaking the ANC’s monopoly on state power and with it the ability of the ANC to monopolise state resources.

At the moment there is no such a party in South Africa. There has been many (completely misguided) predictions about the ANC disintegrating or of Cosatu or the SACP breaking away from the ANC to form a centre left party to compete with an ANC who has increasingly drifted rightwards on social issues and on issues relating to gender equality, religious freedom, political tolerance and the “national question”. Because of the power and the access to resources that comes with incumbency this is not going to happen any time soon.

That leaves us with the DA, who has managed to consolidate its support amongst conservative white and coloured voters but has not made any meaningful progress in attracting the vote of black Africans. I suspect in the medium to long term, it will not manage to do the latter. There are several reasons for this.

In a racially divided society like ours, which is still beset by racism and racial discrimination and the faultiness of race, it is never going to be easy to convince both a sizeable group of black Africans and the vast majority of white voters to vote for the same party. Given the fact that middle and upper middle class whites have benefited economically over the past 15 years (with lower taxes and far better opportunities to make money than was possible in the last 15 years of apartheid), they have little incentive to move out of their racial laager to embrace a truly non-racial ethic. Life is just about good enough to allow them to complain and moan without having to do anything that will take them out of their comfort zone.

This laager mentality has been exacerbated by very high crime levels and, even more importantly, by the perception of the majority of middle and upper middle class whites that crime is out of control, that the government is not doing anything about it and that because they are white they are under siege by black South Africans who want to steal their cars and TV’s and perhaps kill them. Around braaivleis fires – even in relatively “polite” society – these anxieties (often fuelled by an unexamined and latent racism) are often expressed in coded terms: “Have you heard ‘they’ robbed the bank, ‘they’ stabbed Mary, ‘they’ came into her house and just took the gun and the TV. This is what ‘they’ do in this new South Africa.”

Having gained so much after the fall of apartheid and thus having so much more to lose, but never having been forced to confront either the demons of their own complicity in our apartheid past or their lingering racial prejudices and sense of racial superiority, the vast majority of DA voters are in no mood to embrace non-racialism – at least not a non-racialism in which they do not call the shots and cannot dictate what is said and what is believed. (Going to Soweto, flashing around R100 notes and buying some Blue Bull good will, that kind of non-racialism they can do, because it does not really challenge the power of whites to dominate, and neither does it challenge their ” right” to say how the world is and ought to be.)

Given these realities, if the DA actually decided to take decisive (symbolic and more tangible) steps to attract black African voters, it will probably alienate the vast majority of its core constituency.

That is why the DA city council in Cape Town has just announced another process (two previous attempts were abandoned) to deal with the possible renaming of streets and other places in the city. The proposed terms of reference are rather telling. The proposal (which was not written by someone with a good grasp of language and is difficult to understand) states that names that may be considered for change if they are:

in areas, streets or places where there are no names or with existing names such as Sixth Street or First Avenue, and which provide an opportunity of names to be applied; which improve the City‟s administration and ability to deliver services or which are essential to safety and security in the community; in the case of an extraordinary event or physical development in the life of Cape Town and where it would be appropriate to remember it in a significant way.

Nothing is said about changing offensive names which celebrate the apartheid era. Maybe traditional DA voters will be too upset if the city changes street names which were named after HF Verwoerd, Oswald Pirow; JBM Hertzog or Jip de Jager. I suspect that is why the previous process was abandoned – it recommended that some offensive names (but obviously not offensive to upper middle class racist whites) be changed, so the proposals were shelved and a new process started.

It seems to me the DA is in a very difficult position. Assuming that it really wants to attract black African voters and assuming further that it has some understanding of the sensibilities of the majority of citizens who have suffered under apartheid and continue to feel economically and socially marginalised, DA leaders must know that it has to choose between the certainty of gaining 15% of the votes (mostly from white and coloured voters) on the one hand, or the chance of gaining new votes from the majority while losing a large chunk of that 15% of the votes who now vote for it because Helen Zille is “a classy lady who is giving the blacks hell”.

Don’t get me wrong: I am not claiming everyone who votes for the DA has these attitudes. I am, however, claiming that a large proportion of DA voters have not yet confronted the issue of racism head-on.

I might be wrong, but it is against this background that I think one should interpret the rather perplexing and seemingly counter-productive response of the DA-led city council (seemingly remote controlled by Helen Zille) to the Makhaza toilet scandal. If it wanted to salvage the situation and if it really was serious about sending a signal to black African voters that it was a credible alternative to the ANC, the city would have apologised immediately and would have admitted that it had made a terrible mistake.

It would have sent someone to try and find open toilets provided by an ANC municipality and would have taken pictures of this which it would have distributed to the media. Then it would have found the money somewhere (maybe that R4 million just allocated to baboon monitoring in leafy suburbs) and would have built proper toilets for the residents, inviting ETV and the SABC to film every move. Helen Zille would then have arrived to apologise again in person and would have told the residents (but really the TV cameras) that the DA has just demonstrated not only that it really cares but that it is also fundamentally different and better than the ANC.

Then it would have announced a comprehensive plan (with time lines and completion dates) to provide every household in Cape Town with a proper toilet. Zille would have made speeches about the need for rich residents to contribute more to help to make the lives of poor residents better so that we can all live in peace and can make sure that Julius and his thugs do not gain any influence in our city.

But I guess this would have not played well with many of the DA’s core constituency. Once the ANC Youth League had gotten involved, an apology would have been perceived as a sop to Julius Malema and would have been like a red rag to a bull for any self-respecting ex-Nat who now supports Helen Zille enthusiastically and donates money and time to the party. The Youth League was very clever by breaking down those makeshift partitions: it made it impossible for the DA to do the right thing without losing its fire-and-brimstone take-no-prisoners image amongst right wing white voters. Julius had once again been the tactical winner.

As I see it the Makhaza toilet saga demonstrates rather well why the DA will not increase its votes amongst black African voters. When forced to choose, it will choose to pander to the prejudices and fears of white voters, rather than doing the risky (but right) thing by going for the vote of the majority.

So, that leaves my hope with Cosatu and the social movements. Not that I believe Cosatu will break away from the ANC or leave the Alliance anytime soon. Not, even, that I agree with everything that Cosatu does or what it stands for (after all, it acts in the interest of workers – meaning people with jobs – so it cannot really accept any measures that would assist the 40% of he population that are unemployed). But in the absence of a credible opposition, the opposition provided by Cosatu INSIDE the ANC seems far more effective than anything the whining, professional victims, in the DA can muster.

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