Constitutional Hill

Helen Zille

(Not even) the Queen Bee is above the law

Oct 11th, 2010
by Pierre De Vos.
130 comments

Maybe it is true that in any set-up there can only be one Princess, but that does not mean that there is no place for other Royalty in our politics. We all know in South African politics the role of Princess has been taken on by Lindiwe Sisulu: her royal highness, her imperial and impervious majesty who rules over her (ever-expanding) chamber of secrets with her iron fist (and with the assistance of a fugitive from justice).

But now we also have a Queen Bee in the guise of Western Cape Premier Helen Zille, throwing her Royal weight around and acting like a spoilt sovereign. Like Sisulu, Zille also seems to think that she is somewhat above the law and far too good to follow the rules that she insists others adhere to.

Good heavens, Royalty MAKE the rules, they do not need to follow them. 

According to Zille the South African Human Rights Commission (SAHRC) has been doing the bidding of the ANC,  becoming a “political hit squad” orchestrating an ANC-inspired “smear campaign” against the poor, poor (much misunderstood and vilified)  DA. According to her Royal Highness (that Queen of Bees with the sting to match), this institution, stuffed with ANC deployees such as Janet Love, only investigates complaints against the DA-led institutions, choosing not to pursue complaints against the ANC-led institutions (see here and here for the words of the wise one).

The SAHRC hates the DA, see. No wonder they make legal findings against DA-led municipalities. But these attacks come as something of a surprise. Less than two weeks ago the DA-led Cape Town city government accepted an award from the SAHRC, saying the following in a media release in relation to the award:

The City of Cape Town was commended for outstanding work in putting the necessary mechanisms in place to promote openness and responsiveness within the establishment. The City was further recognised for its ‘sterling work in going beyond the call of duty in implementing PAIA and putting other mechanisms in place that not only influence the implementation of PAIA, but also influence the responsiveness and openness of other municipalities in South Africa as well.

So, two weeks ago the SAHRC gave the DA-run City of Cape Town an award, which the DA bragged about. Now the DA believes that the SAHRC is a lackey of the ANC. The same SAHRC who took a stand against the Secrecy Bill (in opposition to the ANC) and bestowed an award to the DA City Council is part of a plot by the Dark Lord Sauron himself to discredit Zille and her sidekick, the tongue tied Dan Plato. (I am reliably told that Smiegel, that slimy ANC-lackey from Lord of the Rings, is also plotting to get his grubby little hands on Zille’s – white - halo and that Zille is up half the night thwarting these devious plans. )

The reason why Premier Zille is now attacking the credibility of the SAHRC is not too difficult to determine. In one of her Thabo Mbeki-like Internet letters (has anyone noticed how she is turning into a DA version of Thabo Mbeki: intelligent, energetic, fearless, paranoid, vindictive and with a penchant for breaking the law), she claimed that the SAHRC is quickly becoming as discredited as the Public Protector was when Lawrence Mushwana held that office and noted:

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.

Well, with respect to Helen Zille, she is either very badly informed or she is lying. The SAHRC report on the Makhaza toilets, while embarrassing to the DA-run city, is very logical and easy to explain “rationally” (or on any other legal basis).  The report conforms perfectly with the Constitution, the jurisprudence of the Constitutional Court and the relevant legislation. Only Zille and her overtly defensive advisers (Gareth, are you there?) seem to think otherwise.

Maybe they need a constitutional lawyer to help them see past their own paranoia and hypocrisy to help them face the fact that the DA has broken the law. Then the party may start respecting the Constitution and its leaders will stop saying things that seem not only untrue but, in the long term, politically rather counter-productive.

The SAHRC Report took into account several rights – including the right to dignity, housing and the right to sufficient food and water – and found that while the City’s project to provide flush toilets for all residents was “reasonable and indeed commendable, the manner in which the project was implemented (no enclosures or walls for the toilet facilities) was not reasonable”. It also found that the City had infringed on the human dignity of  complainants and that there was not adequate consultation around the implementation of the project.

For anyone with even a passing knowledge of the jurisprudence of the Constitutional Court, these findings would not be controversial. The same cannot be said for a paranoid and defensive Premier who sees a Communist/ANC-lackey under every bush. In the Grootboom case Justice Yacoob said the following about the interrelationship between the right to human dignity and social and economic rights:

The proposition that rights are interrelated and are all equally important is not merely a theoretical postulate. The concept has immense human and practical significance in a society founded on human dignity, equality and freedom. It is fundamental to an evaluation of the reasonableness of state action that account be taken of the inherent dignity of human beings. The Constitution will be worth infinitely less than its paper if the reasonableness of state action concerned with housing is determined without regard to the fundamental constitutional value of human dignity.

In this particular case the right to dignity and the right of access to housing and water must be read together (as required by the Constitutional Court and as done by the SAHRC in its Report) to determine whether a breach of the Constitution occurred. As is clear from other case law, where these rights are further amplified and protected in legislation, the obligation on the state (in this case the Cape Town Municipality) becomes even more clear-cut.

Well, it so happens that section 3 of the Water Services Act no 108 of 1997 states that “everyone has a right of access to basic water supply and basic sanitation”. Section 5 states that “if the water services provided by a water services institution are unable to meet the requirements of all its existing consumers, it must give preference to the provision of basic water supply and basic sanitation to them”. The Act therefore requires municipalities to give priority to the provision of basic water and sanitation to all before given the best services to some and not the minimum service to others.

The minimum standard for basic sanitation services which a municipality is constitutionally and legally required to provide is defined in the regulations accompanying the Act as:

the provision of appropriate health and hygiene education; and a toilet which is safe, reliable, environmentally sound, easy to keep clean, provides privacy and protection against the weather, well ventilated, keeps smells to a minimum and prevents the entry and exit of flies and other disease-carrying pests.

So, apart from being in breach of the constitutional provisions that guarantee human dignity, privacy and access to housing and water, the DA-led Cape Town City Council has also been flouting the provisions of the Water Services Act when it built open toilets without any walls for the people of Makhaza.

The Act does not provide a City Council with the right to give residents a choice of an open toilet for every household or a closed toilet to be shared by several households. A city council has a legal duty to provide toilets for all and these toilets must comply with minimum standards which require that the toilets be enclosed. Legally, the option of open toilets is not open to the DA or any other party. (Even in an open oportunity society, the law requires municipalities not to provide residents with the opportunity to relieve themselves in public.) The DA broke the law by building those toilets. Zille probably knows this. Now she is attacking the SAHRC to try and deflect attention away from this embarrasing illegal act.

One does not have to be an ANC lackey to know this. One must just have a working knowledge of the Constitution and the law. To claim, as Zille did, that the SAHRC Makhaza report’s “analysis and conclusions are impossible to explain rationally” is therefore not a statement that could, by any strech of the imagination, be called true. Either Zille is clueless, or she is being dishonest. And once it is conclusively established (as I did above) that the SAHRC Report is legally sound, the allegations of a dark plot by the SAHRC also become rather absurd and juvenile.

Goodness knows, the SAHRC is not perfect. Like our judiciary its actions or ommissions can and must be criticised. Zille has every right to criticise the reasoning of the SAHRC in their Makhaza report. Sadly this she never did. She just claimed the report was so irrational that it had to have been prepared as part of a dark ANC plot. We are still waiting to hear why it is irrational. What legal principle was wrongly applied? Does the Water Services Act not apply in the Republic of the Western Cape?  Zille has never said. This is not a surprise because her claim is spurious and demonstrably false.

Some defenders of the Premier might argue that the SAHRC has not investigated complaints about ANC abuses as vigorously as it did those complaints of abuses by the DA. If this is true, then the SAHRC must do its job properly and must investigate allegations of ANC abuses. If it fails to do so, Zille is entitled to criticise this failure (without defaming the Commission or the Commissioners and without launching ad hominem attacks against the Commission, of course). Constitutional democrats criticise acts or ommissions by independent institutions, they do not call into question the credibility of those institutions – thereby probably commiting a criminal offence. If one does question the credibility of an independent constitutional institution, one is an enemy of our constitutional democracy.

Of course, the argument put forward by Zille that a perfectly legitimate and – I would say legally incontrovertible – finding by the SAHRC was written merely to embarrass the DA, “cannot be explained rationally”. It is like Y complaining about being prosecuted for bribing a politician because X also bribed a politician and was never prosecuted. That is not a defence. It is merely an admission of guilt masquarading as a plea of innocence. If Zille did not want the SAHRC to make a finding against her party she should have obeyed the Constitution and the law. Surely that is not so difficult to fathom – especially not for the self-styled Queen Bee defender of the Constitution?

In any case, I am a bit worried about Zille, as she might have committed a criminal offence with her scurrilous and unfounded attacks on the SAHRC and its Commissioners. Section 18(d) of the Human Rights Commission Act prohibits any person from “defaming the Commission or a member of the Commission in his or her official capacity” while section 18(i) makes it a criminal offence for a Premier to fail to afford the Commission “such assistance as may be reasonably required for the protection of the independence, impartiality and dignity of the Commission”.

Zille is alleging that the SAHRC and its Commissioners are failing to fulfil their constitutional and other legal duties because of a criminal loyalty to the ANC. That seems pretty defamatory to me and she could probably be prosecuted successfully under section 18 of the Act. But as she has shown in her response to the Makhaza toilets scandal, she thinks she – unlike members of the ANC - is above the law and need not comply with the obligations imposed on her by the Constitution and the ordinary laws of the country.

Unfortunately that attitude is undemocratic, threatens respect for the Rule of Law and for the Constitutions and the institutions created by it, and shows a contempt for the need to be accountable to other independent institutions. According to Zille, only the ANC, so it seems, are required to be held accountable by independent organs, as the DA is already perfect and is therefore not required to account to anyone – especially not an institution who makes a finding that you disagree with. 

Why would one be accountable to the SAHRC if one can discredit them instead? Then one never has to explain why one disregarded the Constitution and disobeyed the law. Surely this kind of behaviour is better suited to an absolute monarchy than to a constitutional democracy.

But we do not live in an absolute monarchy (nor a beehive). We are all bound by the law and the Constitution – even the DA. Now, which of Zille’s advisers are going to pluck up the courage to tell her that she is acting like the Emperor who is not wearing any clothes.

Gareth, are you still there?

Don’t rely on courts to save our democracy

Oct 5th, 2010
by Pierre De Vos.
131 comments

The South African Constitution contains many provisions that place a duty on the state to do or not to do things. The drafters of the Constitution, perhaps knowing that rulers often tend to act not in the best interest of society as a whole but in their own interest, wrote these obligations into the Constitution so that they would not be “extra’s” – mere luxuries that the government of the day could choose to pursue (usually a few months before an election) when it felt like it.

The state has a duty to promote the achievement of equality (section 9), to take reasonable measures to provide access to housing (section 26) and health care (section 27), to take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis (section 25), and to respect and promote freedom of expression and the media (section 16).

The President has a duty to promote all that will advance the Republic, and oppose all that may harm it; to protect and promote the rights of all South Africans; to discharge his duties with all his strength and talents to the best of his knowledge and ability and true to the dictates of his conscience; to do justice to all; and to devote himself to the well-being of the Republic and all of its people (schedule 2).

Section 237 of the Constitution further states that “all constitutional obligations must be performed diligently and without delay”.

Often these duties are not fulfilled as required by the Constitution – and more often they are not performed “diligently and without delay”.

For example, instead of actively promoting respect for people with disabilities, instead of taking action to address the homophobia, sexism and other kons of prejudice (like racism and xenophobia) in our society, instead of spending money wisely and efficiently to help give people who do not have the ability to do so themselves (because of poverty and the effects of past discrimination) to gain access to houses, decent health care and work, the government of the day often seems to be too scared to address the prejudices, deeply rooted hatred and patriarchal attitudes of the public, and often spends the available money wastefully (on R27 loaves of bread and R1.1 million cars for Ministers, expensive consultants who can tell the government what is wrong when we all know what the problems are).

Section 2 of the Constitution states that the “Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” In the light of the above a reader asks:

Now I’m going to ask what is probably an abominably stupid question: Why don’t our Constitutional Court judges, in their role of upholders of our supreme law, stand up as one and pronounce on any violation of our constitution as and when it happens? Why is it that some individual or opposition party first has to grovel before the CC when they feel the public’s rights are being violated in order to get a pronouncement?

As a technical matter this is indeed an “abominably stupid question”. In a constitutional democracy courts adjudicate disputes brought before it for adjudication. Courts rely on citizens or other interested groups like NGO’s or social movements (in our case, usually citizens or other organisations with the money to pay for expensive lawyers) to prepare and argue such cases.

Courts do not have research departments that can go out and detect breaches of constitutional duties, that can gather the evidence that would persuade courts that such breaches had indeed occurred and and that can present courts with all the arguments that would allow them to make findings after carefully considering all the evidence and legal issues for and against any finding that a breach of the Constitution had indeed occurred.

Courts are therefore not institutionally equipped to play this role. In any case, even if they did have the institutional capacity to do so, it would be wrong for courts to get involved in the investigation of breaches of the constitution. This is because courts are supposed to be independent and to act without fear, favour or prejudice. This means courts cannot become both investigators of, and then final arbiters on, the issues they have investigated. If they did, they would become embroiled in issues in which they themselves have a vested interest and they would be required to become judges in their own cause. This would undermine the legitimacy and credibility of the courts and erode public trust in the courts.

But in a less technical sense, the question posed by the reader is perhaps quite relevant. Why don’t the courts save us from the flagrant disregard for the Constitution by the legislature the executive and private actors by pronouncing on breaches of the Constitution “as and when they happen”?

Well, my answer would be that this is the wrong question to ask. Courts cannot save our democracy as it is by far the weakest branch of government. As Justice Johan Kriegler wrote in S v Mamabolo in a slightly different context:

The answer is both simple and subtle. It is, simply, because the constitutional position of the judiciary is different, really fundamentally different. In our constitutional order the judiciary is an independent pillar of state, constitutionally mandated to exercise the judicial authority of the state fearlessly and impartially. Under the doctrine of separation of powers it stands on an equal footing with the executive and the legislative pillars of state; but in terms of political, financial or military power it cannot hope to compete. It is in these terms by far the weakest of the three pillars; yet its manifest independence and authority are essential. Having no constituency, no purse and no sword, the judiciary must rely on moral authority. Without such authority it cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over the Constitution and its Bill of Rights — even against the state.

The fact is that – in the absence of disputes brought to the courts by litigants - citizens (not the courts) are the one’s who are best placed to hold the legislature and the executive to account and to force them to comply with their constitutional duties. As citizens in a democracy (a democracy with both representative and participatory aspects), we are the ultimate and most powerful guardians of the Constitutions.

Yes, courts can (and should) hold the legislature and executive to account in individual cases brought to it by citizens, NGO’s and social movements and should declare such acts or omissions unconstitutional when these do not conform to the dictates of the Constitution. If they do not do so and instead choose on a regular basis to decide cases in favour of the other branches of government in a vain attempt to keep these branches happy, the judges would not be fulfilling their constitutional duty to uphold the Constitution. This will erode public trust in the judiciary.

But very few cases of constitutional breaches actually reach the courts. Citizens and citizen organisations are therefore potentially far more powerful and can be far more efficient and effective in holding the other branches of government to account than our judiciary. Of course, citizens can only do so if they do not fear repercussions for daring to do so. If citizens and organisations fear state repression, community ostracism or ridicule and ad hominem attacks from the predatory conservative forces who might have captured the state, then they will not take action to protect and advance the Constitution.

If citizens have a misplaced respect for their rulers – for highly emotional but irrational reasons or out of a fear of embarrassing their leaders with whom they have an emotional affinity born out of a shared history of struggle – and therefore do not wish to criticise the members of the legislature or the executive who are not doing what they are obliged to do by the Constitution, then the courts on their own will not be able to ensure that the Constitution remains a living document that is respected and protected by most if not all in society.

One of the greatest dangers to our democracy is not a compliant or timid judiciary, but a compliant and timid citizenry who might either be too scared of losing their status, influence or access to power and money-making opportunities to hold the rulers to account, or might have a misplaced loyalty to the governing party – instead of a loyalty to the Constitution and to the achievement of a more just and fair society based on respect for the Rule of Law.

I would therefore argue that a passive citizenry poses probably the gravest danger to our democracy. As we know all too well from a myriad of examples around the world, passive citizens who are either too scared, too worried about protecting their own short term interests, or too infused with a misplaced emotional loyalty to their rulers will destroy their own future.

Where citizens willingly hand over the power (which in a democracy ought to belong to the voters) to a ruling clique who WILL abuse this power and trust and WILL – eventually – act in ways that are detrimental to the interest of all citizens (except those who are members of the ruling clique or have strong connections with that clique), those passive citizens will help to destroy the democracy and with it their own prospects for a better life.

In a society where the majority of citizens give a carte blanche to the ruling clique to do what they want, life will become nasty, brutish and – perhaps – even short for a majority of citizens. Courts will not be able to stop this. Hoping that they would or relying on them to do so, would be irresponsible and naive.

Only where citizens are prepared to act in the interest of society as a whole and in their own long term (as opposed to short term) interest, will a constitutional democracy stand a good chance of surviving the inevitable machinations of a predatory ruling elite. In South Africa, many members of social movements, labour organisations such as Cosatu and some NGO’s have realised this, but because of the understandable emotional identification of the majority of citizens with the current governing party, this is still a small minority of the population.

Of course, active citizens should use constitutional litigation strategically to mobilise fellow citizens and should approach courts when appropriate to try and win legal victories for individual litigants or for groups whose rights have been infringed. They can also make use of other organisations – such as the Human Rights Commission (HRC) – to place pressure on the government to do the right thing (as has happened in the Western Cape – to the great consternation of Helen Zille who is now doing everything she can to discredit the HRC).

But if we all sit back and fold our arms in the hope that an unelected and relatively powerless judiciary will fight our battles for us, we will only have ourselves to blame if the country ends up as a truly predatory state in which the rulers look out only for themselves and for those with the money to bribe them.

Should we throw Helen Zille in jail?

Sep 22nd, 2010
by Pierre De Vos.
28 comments

When should courts use their powers to jail politicians and other individuals who disrespect the judicial system and undermine the legitimacy of our courts? Can they actually do so without infringing on the rights of an individual protected in the Bill of Rights? Should Youth League members (or Helen Zille, for that matter) be jailed for contempt of court when they attack the personal integrity of individual judges? And what should happen when organisations or individuals just flagrantly ignore the orders made by courts?  

These questions are rather more difficult to answer than one might think. The recent case of the shenanigans of some of the leaders of the ANC Youth League is a case in point.

When ANC Youth League secretary-general Vuyiswa Tulelo told a daily newspaper last month that a High Court Judge who had ruled against the Youth League had arrived at a “drunken decision”, Advocates for Transformation rightly took Tulelo to task for insulting Grahamstown High Court Judge Nomathamsanqa Beshe. Judge Beshe had ruled against Julius Malema’s leadership of the league and reversed its decision to disband the league’s Eastern Cape provincial leadership. Should Tulelo not have been summonsed to court and thrown in jail for contempt of court?

This matter was, of course, made worse when ANC Youth League KwaZulu-Natal provincial secretary, Bheki Mtolo then said the following in response to the ruling:

We also want to warn the judiciary to desist from meddling with our internal political issues…. We have always respected the independency of the judiciary. However, the conduct of some of these judges who have become political role players has made us conclude that we will engage with them in a political manner.

Last week Chief Justice Sandile Ngcobo rightly called these assaults on the judiciary ”very troubling”  because “this kind of criticism may well undermine public confidence in our courts”. When politicians attack the integrity of individual judges (something Helen Zille and Gwede Mantashe have also made themselves guilty of in the past), instead of focusing on the reasons given for the judgment and engaging with the correctness of such a judgment - based on legal principles and analysis - they go beyond acceptable criticism of the judiciary and they undermine the legitimacy of our courts.

So, are members of the judiciary finally fighting back against this kind of flagrant disrespect shown to our judicial system by “some among us” (to quote that other guy who used to be President - what is his name again?)? News that the Labour Court in Johannesburg had found Gauteng leaders of the SA Democratic Teachers Union (SADTU) guilty of contempt of court, and had ordered that the provincial management and leaders of the central branch (Soweto) be arrested and detained for 15 days for ignoring an interdict that was handed down on Sunday, suggests so.

The SADTU leaders were prohibited by the court order from holding meetings in school time and disrupting the matric preliminary exams in any way but they had allegedly ignored this order.

These examples deal, of course, with two different kinds of contempt of court. The Youth League statements might have been contempt of court because it “scandalised the court”, while the  SADTU refusal to obey a court order might have led to a different kind of contempt of court not related to the “scandalising” of the courts.

Contempt of court is a difficult matter to deal with in a constitutional democracy. It has been argued that the exceptional summary procedure for contempt of court could be interpreted as subverting the fundamental presumption of innocence guaranteed in section 35(3)(h) of the Constitution. The fact that the very judge whose judgment was ignored or who was scandalised by the personal attacks of politicians could make a decision on whether an individual was guilty of contempt of court, could also raise constitutionally difficult issues, given the fact that everyone has a right to be tried by an independent and impartial court.

In 2001 in the case of S v Mamabolo the Constitutional Court dealt with one aspect of contempt of court relating to the “scandalising of the court” (Justice Kriegler writing the judgment) and confirmed that this was indeed a constitutionally valid criminal offense that could be used to protect the judicial process against scurrilous attacks.

It confirmed that “scandalising the court” is a form of contempt of court recognised by our law. This, said Kriegler, was part of “a variety of offences that have little in common with one another save that they all relate, in one way or another, to the administration of justice”. Noting that the definition of contempt of court is rather broad, Kriegler wondered why  there is such an offence as scandalising the court at all “in this day and age of constitutional democracy”.

Why should judges be sacrosanct? Is this not a relic of a bygone era when judges were a power unto themselves? Are judges not hanging on to this legal weapon because it gives them a status and untouchability that is not given to anyone else? Is it not rather a constitutional imperative that public office-bearers, such as judges, who wield great power, as judges undoubtedly do, should be accountable to the public who appoint them and pay them? Indeed, if one takes into account that the judiciary, unlike the other two pillars of the state, are not elected and are not subject to dismissal if the voters are unhappy with them, should not judges pre-eminently be subjected to continuous and searching public scrutiny and criticism?

The answer is both simple and subtle. It is, simply, because the constitutional position of the judiciary is different, really fundamentally different. In our constitutional order the judiciary is an independent pillar of state, constitutionally mandated to exercise the judicial authority of the state fearlessly and impartially. Under the doctrine of separation of powers it stands on an equal footing with the executive and the legislative pillars of state; but in terms of political, financial or military power it cannot hope to compete. It is in these terms by far the weakest of the three pillars; yet its manifest independence and authority are essential. Having no constituency, no purse and no sword, the judiciary must rely on moral authority. Without such authority it cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over the Constitution and its Bill of Rights — even against the state.

There is of course a tension between the need to protect the judicial process (for the benefit of us all) and the need to safeguard freedom of expression for those who wish to criticise a decision made by a judge.  Because statements concerning judges and the performance of their duties can have a much wider impact than merely hurting the feelings of an individual judge, this crime focuses on acts or statements that reflect on the integrity of courts, as opposed to mere reflections on the competence of judges or the correctness of their decisions.

As the Constitutional Court pointed out, the test for scandalising the court, namely that one has to ask what the likely consequence of the utterance was, will mean that it will be rather difficult to find someone guilty of this offence. Merely criticising a decision – even in harsh terms – would not constitute contempt of court in a constitutional democracy. Launching a personal attack on the integrity of a judge by, say, suggesting that he or she is a drunkard or that he or she is a political lackey of a particular political party would get closer to meeting the requirements for this kind of contempt of court.

Similarly, when contempt of court deals with the intentional and unlawful disobeying of a court order, one will only be convicted if it can be shown beyond reasonable doubt that one indeed had the intention to disobey a court order. The Supreme Court of Appeal confirmed in the case of Fakie v CCII Systems (pty) Ltd that one would only be found guilty of this kind of contempt if one had disobeyed a court order ”deliberately and in bad faith”. If one honestly believed that one was justified in ignoring the court order one could not be found guilty of contempt of court, said the SCA.

It seems to me where any individual or organisation (whether it is a ordinary citizen, a public official, a Minister, a political party or a union) deliberately disobeys a court order – even when it is clear that there was no valid excuse for doing so - the attack on the legitimacy of the judicial system is so severe that there should be little problem with throwing the person in jail. The order of the Labour Court therefore seems appropriate (unless other factors not mentioned in the media might have cast doubt on whether the SADTU leaders had disobeyed the court order in bad faith). If court orders are not obeyed, then the judicial system breaks down and with it the rule of law. Chaos and anarchy is inevitably the result.

But when immature, self-serving, or rather dim-witted politicians attack the integrity of judges (whether they are members of the Youth League, the ANC proper or the DA) one should be rather more careful about using contempt of court proceedings to reign them in. If this procedure is used too quickly, there is a danger that this will stifle debate and dialogue about the work done by courts. Judges are not directly accountable to anyone – which is a good thing – but they are indirectly accountable to the public at large in that their decisions and the reasons given for decisions can be subjected to analysis and criticism.

But what to do in a case like the one mentioned above, where a Youth League leader calls a decision a “drunken judgment”? Should one press for the court to hold her in contempt of court on the basis that she scandalised the court?

Personally, I believe such statements are outragous and that the ANC should take action against the guilty officials, and that their membership of the ANC should be suspended for a number of years. Failure to do so will cast doubt on the ANC’s commitment to an independent and impartial judiciary.

But at the same time, I suspect that it is better to err on the side of free expression and therefore not to throw such oficials in jail on the basis that they are guilty of contempt of court. Besides, if our courts decide to go down that road we might sit with the strange situation where Gwede Mantashe, Helen Zille, and several Youth league leaders are all locked up for contempt of court. Imagine they all find themselves in the same prison for a 15 day period! It would make for an interesting discussion in jail, but would probably not be good for the legitimacy of the judicial system in the long run.

Do as we say, not as we do?

Jul 29th, 2010
by Pierre De Vos.
257 comments

I almost fell off my chair laughing when I read yesterday that the Democratic Alliance has warned that politicising the office of the Public Protector undermined the “brilliant” work it has done.  The Cape Times reported that the DA’s defence of Adv Thuli Madonsela comes in the wake of an attack on her by the ANC Youth League (ANCYL) and COPE’s reference to her office as a “toothless wonder” after she found Communications Minister Siphiwe Nyanda guilty of breaching the Executive Members’ Code of Ethics by publicly defending axed Transnet Freight Rail boss Siyabonga Gama.

The ANCYL – in its usual hysterical way – lashed out at Madonsela for finding Nyanda guilty of being “truthful” and questioned whether she was protecting the public, or merely “parroting misperceptions of opposition parties”. (This defense of Nyanda is interesting because it suggests that the tenderpreneurs of the ANCYL and the tenderpreneurs in cabinet were watching each others backs.) DA MP and Justice and Constitutional Development spokesperson Natasha Michael said the ANC had “systematically ignored” the role played by the Public Protector. It praised Madonsela for her investigations and warned political parties not to interfere.

The sentiments expressed by Michael are of course laudable and correct. Political parties should not interfere with the work of Chapter 9 institutions (or courts) and they should not try to politicise the decisions of these institutions for short term political gain. This is a principled and constitutionally honourable position to take. But I suspect Michael did not clear this statement with her leader, Helen Zille, who seems to hold a different view.

In the wake of a report by the Human Rights Commission into the Western Cape toilet saga, Zille did exactly what Michael says political parties should not do: she questioned the political motives of a Chapter 9 institution and claimed that the Human Rights Commission was being abused as part of a dark conspiracy to tarnish the good name (if any) of the DA, stating as follows: 

Three years ago when the City was locked in a make-or-break battle with the Province over the unconstitutional Erasmus Commission, Professor Pierre de Vos took me to task for saying: “some judges allow themselves to be used and, unfortunately, (Judge) Nathan Erasmus is one of them.” Today, I repeat that in relation to the SA Human Rights Commission: Some Chapter Nine institutions allow themselves to be abused and, unfortunately, the SA Human Rights Commission is one of them.

Instead of sticking to a factual and legal argument about why the SAHRC report might be flawed (something she had every right to do), she attacked the integrity of the Commission to try and deflect attention from the extremely embarrasing saga about open toilets. It is so much easier to attack the messenger than to deal with the substantive issues: the DA equivalent of “pulling the race card”.

Sadly, this is part of a broader pattern in which the DA in general and its leader in particular seem to have one standard for the ANC and other political parties and another standard for itself. It is as if the DA believes that it is exempt from the same standards it holds others to because it believes it is the only party who knows what is best for everyone (a rather patronising view) and that it is therefore the only party who can be trusted without having to be held to the general principles on which a functioning democracy is based. It thus sees itself being exempt from the duty to honour the principles it claims to espouse. “Do as we say, not as we do,” seems to be the DA motto.

Given our history and given the racial profile of the DA, one would be forgiven for concluding that the DA believes only white people can be trusted, that white people therefore do not have to follow general principles of constitutional democracy and good governance, and that white people are therefore allowed to deal with each situation on its own merits without having to stick to the rules it claims to respect and honour. Black people, on the other hand, must be held to a higher standard because they are inherently unprincipled and corrupt enemies of democracy.

When Gwede Mantashe attacked judges of the Constitutional Court as counter-revolutionaries, the DA rightly criticised this because the ANC leader was launching a personal attack on judges of the highest court and was undermining respect for the judiciary. But when The Dear Leader, Helen Zille, attacked the integrity of Judge Nathan Erasmus, a High Court judge, thus undermining respect for the judiciary herself, we were supposed to cheer her on. She argued that, given the facts, she had every reason to question the integrity of a judge. And besides, so Zille argued, the High Court had declared the Erasmus commission unlawful and her attack was therefore justified.

This is, of course, nonsense. The High Court (per Swain J) never found that Erasmus had allowed himself to be used by the ANC (as Zille had implied) and the High Court did not question the integrity or motives of Judge Erasmus. In fact, although Judge Swain found that the then Premier had acted with an ulterior purpose in appointing the Commission, he explicitly exonerated Judge Erasmus stating: “I wish to make it absolutely clear that I do not suggest that Erasmus J was in any way a party to such conduct“.

The High Court - re-interpreting the jurisprudence of the Constitutional Court in a rather “innovative” manner – did find that a judge should not have agreed to chair the commission, but the court made it clear that no ulterior purpose (as alleged by Zille) was present on the part of the judge. This fact was lost in the post judgment spin by Zille and the DA sycophants.

What was also lost was that the DA and Zille had actually not pressed the point before the court at all that Erasmus personally was allowing himself to be used or was biased. In fact, judge Swain explicitly found that he did not have to answer this question. The High Court therefore did not exonerate Zille regarding her personal attack on Erasmus as the matter was not pursued before the court by the DA lawyers (although it was raised initially). Lawyers are not stupid so they probably knew that there was no chance that a court would endorse Zille’s scurrilous attack on a sitting judge. 

Of course, courts often find that other judges had erred, but this does not give anyone the right to call into question the integrity of the judge whose decision was found wanting by another court. Down that road lies anarchy and a complete disrespect for the judiciary.

Similarly, after the High Court had found in favour of Zuma in his case to have the search and seizure warrants declared unlawful, the decision was finally overturned by the Constitutional Court. This did not allow either Mantashe or anyone else to call into question the integrity of the High Court judges or the judges of the Constitutional Court. Neither the High Court nor the Constitutional Court had found that any judge involved in the case had acted like counter-revolutionaries, so Mantashe had no right to make that allegation. Like Zille, he was attacking and politicising one of the three branches of our democracy. Unlike Zille, he has not continued to defend the indefensible.

And of course, when serious allegations of wrongdoing or criminal activity by ANC leaders surface, the DA – once again, rightly, in my opinion - demand that the affected leader should be suspended or should step aside until such time as the allegations have been dealt with or the criminal case concluded. But when a DA MP was charged two weeks ago with raping a young woman, the DA blithely stated that it had no reason not to believe the denials of its MP, that the MP is innocent until proven guilty, and therefore that the DA would not suspend that MP.

The same pattern repeats itself over and over again. It tarnishes the name of the DA (to the extent that it has a name) as it opens the party to charges of hypocrisy and, worse, racism. It reflects a kind of arrogance that is often associated with someone who has been the Baas his or her whole life and is used to being the Baas and to tell others what to do and how to behave while not having to follow suit. “We are always right, we are always principled, therefore we do not have to follow the same principles we claim to hold so dear and demand others respect.”  

No wonder the vast majority of black people (and most of the sensible white people I know) refuse to vote for the DA – despite the corruption and maladministration of many ANC led municipalities and provinces. Who wants to be lorded over by such a bunch of self-righteous and unprincipled hypocrites?

Human Rights Commission pro-poor stance must be applauded

Jun 21st, 2010
by Pierre De Vos.
399 comments

The South African Human Rights Commission (SAHRC) were lambasted by DA leader Helen Zille for finding that the City of Cape Town had violated the dignity of residents of Makhaza by not enclosing the toilets it had provided to them and for not adequately consulting with the community about the issue. Zille said in an interview that the City of Cape Town was being “selectively targeted” by the Human Rights Commission.

Her informal side-kick, Rhoda Kadalie, went further, saying that the finding of the SAHRC demonstrated that the the body was singing the ANC’s tune.

Such attacks on the integrity of the SAHRC are rather startling, as the body is an independent watchdog created by the Constitution. The Constitution states that “other organs of state, through legislative and other measures, must assist and protect” the SAHRC to ensure its “independence, impartiality, dignity and effectiveness”. The Constitution also states that “[n]o person or organ of state may interfere with the functioning of these institutions”.

Like any court judgment, a decision of the SAHRC is, of course, not beyond criticism. Anyone – including the leader of a political party – is entitled to analyse the reasons given for a decision by the SAHRC and to criticize that decision on the basis that the legal principles set out by our courts were not applied correctly. But in the absence of conclusive proof that the decision by the SAHRC was biased and hence tainted by political considerations, a personal attack on the integrity of the Commission undermines one of the constitutional institutions and hence undermines respect for the Constitution itself.

Are there good legal reasons to argue – as Zille and Kadalie in effect did – that the decision of the SAHRC can be dismissed because the SAHRC was selectively targeting the DA? This view can be sustained if similar complaints lodged with the SAHRC regarding the failure of ANC-run municipalities to provide access to adequate housing, health care and sufficient food and water were never investigated, or investigated and dealt with differently than the complaint against the DA municipality.

I have been unable to find any proof that the DA or anyone else had indeed lodged such complaints against ANC run municipalities in the past, let alone that such complaints were dealt with differently than this one against the Cape Town City Council. Maybe the DA can provide proof of such complaints being lodged and can demonstrate that the SAHRC dealt differently with these complaints, but they have not yet done so. If they are unable to do so, the statement by its leader seems deeply troubling and disrespectful of the Constitution.

But are there nevertheless, despite a apparent lack of proof that the SAHRC has not dealt with similar complaints against the ANC in the same manner, good reasons to find fault with the SAHRC finding? Can one argue, without fear of being accused of undermining a constitutional institution, that the body was overzealous in its finding because the DA city council was involved?

After studying the SAHRC Report, it is difficult for me to come to that conclusion. The Report correctly points out that the rights in the Bill of Rights place both a negative obligation on the state NOT to interfere with the existing enjoyment of rights and a positive obligation on the state to take steps to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures toward the full realisation of the rights.

The SAHRC report also correctly points out that in the Grootboom judgment the Constitutional Court held that “the Constitution required the state to put in place a comprehensive and workable plan in order to meet its socio-economic rights obligations…the program must,…, be balanced and flexible and must make appropriate provision for attention to short, medium and long term needs” and that the Court held further that the “programme must be reasonable both in conception and implementation…”

In Grootboom, the Court argued that where a programme failed to take account of the needs of the most vulnerable and marginalized, either in the manner it was devised or implemented, it might well be unreasonable and hence unconstitutional. The following conclusion by the SAHRC is therefore entirely plausible (although not the only conclusion that could possibly have been drawn):

while the City’s project to provide flush toilets for all residents is reasonable and indeed commendable, the manner in which the project was implemented (no enclosures or walls for the toilet facilities) was not reasonable. Furthermore while it is accepted that the measures employed were intended as temporary solutions to a situation that needed to be urgently addressed, the situation persisted from 2007, a period of just under three years….No provision was made for those who were unemployed and poor and could not fund the enclosure of their own toilets. Issues of access for those with disability and issues of safety for those most vulnerable to violence in terms of the structure such as ensuring they were well lit do not seem to have featured in the planning and implementation of this project.

One might argue that the SAHRC – like some High Court judgments dealing with cases regarding access to water and electricity – went slightly further than the Constitutional Court jurisprudence (strictly applied) would allow. Its reliance on human dignity – instead of the social and economic rights provisions – to find that the Cape Town City Council had failed to meet its constitutional obligations, is not particularly plausible. And like the South Gauteng High Court in the water meters case, it seemed to imply that the state had a duty to provide a minimum core of services – something that the Constitutional Court had rejected.

However, to my mind the SAHRC should be applauded for this pro-poor approach – not derided for being a lackey of the ANC. In cases where the High Court made innovative use of the social and economic rights jurisprudence, I have applauded the relevant judge for advancing a pro-poor agenda, so it would be hypocritical of me not to applaud this decision of the SAHRC for doing exactly the same thing.

Certainly, if the ANC had derided the various High Court judges who had found against ANC controlled municipalities in social and economic rights cases and if an ANC leader had labelled the judge involved in such a case a lackey of the DA merely for using an innovative approach to social and economic rights enforcement, few right thinking people would not have been outraged by this attack on the integrity of the courts and the disregard for the Constitution.

A political party (or anyone else, for that matter) who is truly concerned about the plight of the poor and about a lack of service delivery would have applauded this finding of the SAHRC and would have relied on it in future to try and expose the possible unreasonable and unconstitutional failure of other municipalities. A pro-poor political party would not have acted in the paranoid and defensive manner of the DA leader and would not have alluded to alleged conspiracies to excuse their own actions which the SAHRC found wanting.

The SAHRC finding is of course not binding, but that body has a constitutional mandate to monitor the enforcement of social and economic rights. In the past the SAHRC has not always fulfilled this mandate with sufficient vigor. This is partly because it has not received many complaints about the failure of municipalities to fulfill their social and economic rights obligations. But with this finding the SAHRC has shown that it would be willing to push municipalities and to call them out where they fail to implement service delivery programs in a reasonable manner.

This willingness on the part of the SAHRC to fight for the interests of the poor and marginalized is something to be celebrated. The fact that the DA leader saw it differently, will reinforce the perception that the DA is more interested at scoring cheap political points and defending its own political brand in a paranoid and defensive manner than in advancing the rights and interests of the poor. No wonder the DA has been unable to capitalize electorally on the infighting, nepotism and disarray in the ANC.

What poor person is going to believe that the DA is truly fighting in their corner if this is how the party reacts to a pro-poor finding from an independent constitutional institution?

Hlophe: Here we go again

Apr 20th, 2010
by Pierre De Vos.
32 comments

The Cape High Court yesterday declared “unconstitutional and invalid” the bizarre decision of the Judicial Services Commission (JSC) not to investigate the complaint and the counter complaint by the judges of the Constitutional Court and Judge President John Hlophe.

The Court agreed with the view – first raised on this Blog – that the JSC was not properly constituted when it made its highly controversial decision not to decide whether it was Hlophe or the judges of the Constitutional Court who were lying through their teeth about an alleged attempt improperly to influence the judges of the latter court in the Zuma case.

The Court found that section 179(1)(k) of the Constitution, which states that “when considering matters relating to a specific High Court” the Premier of the Province concerned and the Judge President of that Court had to form part of the JSC is not unclear or ambiguous. There is nothing vague, inconsequential or irrational about the requirement – clearly stipulated in this section of the Constitution - that the Premier must form part of the JSC when it decides on the disciplining of judges of that court.

The High Court thus found that:

Of prime importance is the need to hold an investigation into the allegation against the judge in question, an investigation properly conducted before a constitutional body created to carry it out. Such a question is, in my view, unquestionably a matter which relates to a specific High Court of which the judge is a member because the consequences of its outcome to that Court.

The Court also found that the JSC was improperly constituted because one of the representatives of the advocates profession did not take part in the original decision. Finally it found that the JSC did not take a proper decision because the original decision was not supported by a majority of the members of the properly constituted JSC.

The Court did not order the JSC to have a full hearing. It did not order the JSC to actually make a decision about the complaint and counter complaint – something a majority of the JSC members present at the original decision bizarrely decided not to do. Yet the inevitable consequence of the decision is that the JSC – now properly constituted – will have to decide afresh whether to hold a full hearing or not.

The judgment poses some difficult questions.

First, one may well ask why all those lawyers and judges on the JSC have for all these years failed to consider the fact that the plain meaning of the constitutional text required the Premier and the Judge President to be present when any matter relating to the relevant High Court is decided. For all these years the Premier and the Judge President have been treated like the ten members of Parliament and have only sat on the JSC when that body considered appointments to the bench.

This is surprising, to say the least. While section 178(5) of the Constitution clearly states that members of Parliament should only be involved in the appointment of judges and not in any other work of the JSC, the Constitution does not contain a similar provision regarding the Premier and the Judge President. As the High Court found (correctly in my view), the text of the Constitution is pretty clear and requires the Premier and the Judge President to be involved in all matters relating to the specific High Court. Yet the JSC seemed to have disregarded this provision for all these years – almost as if the text of the Constitution did not matter one bit.

The JSC may of course decide to ask for leave to appeal the High Court decision. If I was their legal advisor I would counsel against such a move as the JSC has a limited chance of success on appeal. This is because one would really have to do some serious legal gymnastics to interpret the provision differently from the manner in which it was interpreted by the High Court and the chances are rather slim that the SCA would be prepared to do that.

Second, the High Court decision was not based on the correctness of the original JSC decision. Theoretically the JSC could therefore reconvene – now properly constituted – and make exactly the same decision to close its eyes to the lies and deceptions of one or more of the members of the South African judiciary. We know somebody lied. We know the JSC was too scared to find out who lied – Hlophe or the two main complainants. (I, for one, suspect why the JSC wanted to avoid making a decision at all cost.) Will the JSC now save face and actually do the right thing and investigate the complaint and counter complaint properly as it is legally required to do?

Third, it is unclear who will have to form part of the reconstituted JSC. Section 178(1)(k) states that both the Premier and the Judge President “or an alternate designated by each of them” must be present when the decision is revisited. We know Hlophe cannot be present as he is the subject of the complaint. Can he designate an alternate or not? Surely Hlophe would not be able to designate one of his friends to take his place as it will be presumed that this person is there to represent his interests. Maybe the Deputy Judge President – as the second most senior judge in the province – should take Hlophe’s place?

But Hlophe has argued that Helen Zille could not possibly take up a seat on the JSC either as she has made certain statements about Hlophe which demonstrate a bias against Hlophe. If this is correct, can she designate anyone to sit on the JSC on her behalf? Surely she could not ask her husband or son to sit on the JSC on her behalf but perhaps the second most senior member of her cabinet could be asked to sit on the JSC, provided that he has not made any statements which illustrate a bias against Hlophe.

And what about Andiswa Ndoni, current former chairperson of the Black Lawyers Association and one of the six members who voted to stop any inquiry? Ndoni has said that Hlophe was a victim of of a racist conspiracy. Should she not have recused herself from the JSC at the meeting where the original decision was taken – like Adv Dumisa Ntsebeza so correctly did – because of her perceived bias in the matter?

Lastly, one may wonder whether this decision may influence the case of Freedom Under Law who is also challenging the decision of the JSC, but on more substantive grounds. If the JSC decides not to appeal the matter, would it still be necessary for FUL to go ahead with its court action? I suspect it would, as the FUL action is focused on the irrationality and illegality of the decision itself. A court order to the effect that the JSC has no legal power to abdicate its responsibility, that it is obliged to have a full hearing and to make a decision on who of Hlophe or the judges of the Constitutional Court are the pathological liars, would help the JSC to make the correct decision. All one wants is for a decision to be made, based on the facts.

The judge or judges who have been speaking the truth would surely welcome the opportunity to clear their names before a full inquiry. The judge or judges who have been lying will, of course, resist any attempt to come to the bottom of this matter. It would thus be interesting to see in the coming days how the various parties respond to the High Court judgment.

Helen Zille responds

Feb 16th, 2010
by Pierre De Vos.
14 comments

Helen Zille is trying to dig herself out of the hole she got herself into by claiming the Lennit Max sex scandal was a private matter. She responded to my criticism of her and I posted her response here. My short response, pointing out the similarities between the Max case and the Manto Tshabalala-Msimang cases is here. Judge for yourself whether she had dug herself deeper into a ditch or has shown principled and courageous leadership….

Gareth is very, very cross…

Feb 16th, 2010
by Pierre De Vos.
76 comments

The voice on the phone was a bit shrill and whiney. His name - so he informed me – was Gareth and he was phoning from the Democratic Alliance (DA) offices. Oh dear. He was very, very cross. How could I have written that his boss, Helen Zille, was a hypocrite for claiming the allegations of sexual infidelity and sexual harassment against Lennit Max was a private matter while she had insisted Jacob Zuma’s infidelities was a public matter?

Gareth (I assume it was Gareth van Onselen, the Democratic Alliance Executive Director of Communications, but I might be wrong so don’t quote me on that) was particularly perturbed that I had mentioned there were allegations of sexual harassment made against Max. “Your entire article hinges on that point and no-one has made such an allegation!” he seethed.

I pointed out that I had read about the allegations in the newspaper (in Die Burger, I later recalled), had made it clear in my post that these were no more than allegations (at this stage at least), and besides, the article clearly did not hinge on this point – as anyone with basic reading skills and a bit of integrity would have been able to determine without too much effort. Clearly where a party claims that it opposes marital infidelity and it is then alleged that one of its leaders cheated on his wife, it will be a public matter finish en klaar (as Jackie Selebi once said about his relationship with Glen Agliotti).

(Such matters are public because the right to freedom of expression, the right to vote, the right of access to information, read with the requirements for an open, accessible and accountable government, require this kind of openness from public representatives. They cannot hide behind claims of privacy because, thank goodness, we do not live in North Korea.)

Gareth was not convinced. “Show me the proof!” he shouted.

He also argued that Premier Zille had not suggested that marital infidelity was frowned upon by the DA when she said: “This does not imply, in any way, that I or the DA condone marital infidelity.” It could also mean exactly the opposite, Gareth said. In other words, it could just as well mean that the DA does condone marital infidelity. For spin doctors, up is sometimes down and down up, it seems. The rest of us know better.

At this point I became slightly rude and called Gareth a “party hack” and questioned his intelligence. His loyalty was obviously not in question.

Self-righteousness is seldom an attractive quality in people. When a big dose of hypocrisy is also stirred into that pot, it can be toxic. Many irritatingly self-righteous people are so busy being self-righteous, telling everyone else how they ought and ought not to behave, that they are seldom able to reflect on their own actions and to be self-critical. Encounters with the toxically self-righteous are therefore seldom edifying: one feels a bit soiled afterwards.

My encounter with Gareth gave me that soiled feeling.

This morning the Cape Times reported that Max had said he had only been linked to two prior sexual harassment cases, not four as was reported. In both instances, the cases were made after Max had taken disciplinary action against the complainants, Max claimed. He said his former media spokesperson, Julian Jansen, would have to prove, during a legal process, his allegations that Max had made sexual advances to two women in his department.

So, Max himself has now admitted that his former spokesperson had made allegations of sexual harassment. Sexual harassment is usually defined as “unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature that tends to create a hostile or offensive work environment”. In the workplace, when one’s boss makes sexual advances that are rebuffed, those advances are usually referred to as “sexual harassment” as they are unwelcome, can create a hostile environment and can lead to the victimisation of the women. (Hint: In a constitutional democracy based on human dignity, this is usually not seen as a good thing.)  

In any case, the larger issue is still one of gender equality and gender politics. Did Max use his position (as boss or as legal representative of Belinda Petersen) to obtain or to try and obtain sexual favours from women? If he did, he is a sexist pig. If he did not, many other people seem to be lying through their teeth. It would be a conspiracy – sort of like the one against President Jacob Zuma. Either way, finding out what happened would be in the public interest and very important for voters who had to decide which party to vote for in the next election.

Personally, I would not vote for a party who considered possible sexism a private matter. (A party housing a few philanderers would not really get me upset though.)

Zille’s argument about this being a private matter can therefore not stand. One can only maintain that view if one thought that possible sexism, gender oppression and discrimination against woman were only relevant when it happened in the public sphere. Feminism 101 teaches us that this distinction between the public and the private sphere is an oppressive one as it is maintained to shield men from exposure and to privatise sexism and discrimination against woman.

Once again, the allegations might be wrong. Lennit Max might be a feminist of note. But allegations that he used his position to obtain sexual favours from not one, not two, but three women cannot be a private matter – ever –  as it goes to the heart of his integrity. He is an important leader of the official opposition and if the DA believes that his treatment of women is a private matter it is shockingly backward in its gender views.

The fact that Zille has announced that the DA government in the Western Cape was reviving its defunct sexual harassment policy tells its own story. Questions one could ask are: why were the policy dormant? Why revive it now if – as Gareth claims – there have been no allegations of sexual harassment against Max? The fact that Zille had appointed an all-male cabinet and had not – until the recent allegations – ensured that a sexual harassment policy was in place in the Western Cape place a serious question mark over the DA’s commitment to gender equality.

I know Gareth will disagree with me – in his inimitable self-righteous manner. C’est la vie.

Privacy for “us”, but not for “them”?

Feb 15th, 2010
by Pierre De Vos.
30 comments

Sometimes a politician says something that seems so out of sync with what people believe and think or is so hypocritical that one wonders whether he or she was not misquoted. Sometimes the politician says something that is both out of sync with public beliefs and spectacularly hypocritical and then one can only laugh derisively.

Helen Zille said just such a thing this weekend. Commenting on the sex scandal engulfing Lennit Max, who is alleged to have had an affair (or at least sex) with police station clerk Belinda Petersen and is further alleged to have used his position to get Petersen to have sex with him, Zille said:

Unless there is evidence to the contrary, this matter has nothing to do with anyone except the Max and Petersen families, their consciences and their respective churches. This does not imply, in any way, that I or the DA condone marital infidelity. We merely believe that private matters that do not have deleterious public consequences are not matters that should be delath with by a political party. Private actions by politicians are a matter of public concern, for example, if a politician does not practice what he preaches.

So, allegations that Max sexually harassed someone who, in effect, works for him is a private matter because Max has never publicly made statements condemning sexual harassment. The DA is a moralistic party who hates marital infidelity but it has nothing to do with them if one of their leaders allegedly cheats on his wife. Come on!

As I said during the Zuma Babygate scandal, I am not a particularly moralistic person and personally I do not think that it is of much consequence when a politician has lots of sex with different men or women – as long as the politician does the job we pay him or her to do and as long as the private actions do not contradict the public utterances of the politician or the policy positions of the party he or she belongs to. 

As with Zuma, we do not have all the facts yet. Maybe Max is an angel and “never had sexual relations with that woman” (to quote Bill Clinton). However, it is clear that the allegations that Max used his position as MEC for Community Safety to secure sex with Petersen, is not a private matter. Nor would it have been a private matter if there was indeed a relationship and it was all consensual. 

If it is true that Max had sexually harassed Petersen, it would display a shocking lack of commitment to gender equality on his part. As far as I know the DA is against sexual harassment of women, so when allegations of such harassment are made against one of its leaders, the party cannot claim that this has nothing to do with it.

If Max merely had consensual sex with someone who was not his wife, while the DA believes this to be a terrible thing (as Zille claimed this weekend), it would also be a public matter as it would show that Max is a hypocrite. It would show that while endorsing the policies of a party which he wants to serve in a leadership position, he was doing things in private that the party really finds rather distasteful – in its prissy, moralistic way. Just like it would be a public matter if an ACDP leader has sex with a member of the same sex because it would show that the leader’s private actions completely contradicted the political party’s public stance on homosexuality, so Max’s alleged infidelity is a public matter.

If Zille had said the DA believed that marital infidelity was no big deal to the DA as it says nothing about the ability of the leader of the party to do his or her job, I would have agreed with her. Who cares about whether Max sleeps with someone who is not his wife? I don’t. But to try and have it both ways, being all moralistic about “marital infidelity” and then claiming – exactly like President Zuma did only two weeks ago! – that this was a private matter, seems so tone deaf and hypocritical that it takes my breath away.

If the DA claims to espouse certain values and one of its members (and someone aspiring to a leadership position in that party) allegedly fails to adhere to those values, it clearly is not a private matter. It goes to the heart of whether the party practices what it preaches.

Furthermore, the way in which men treat women in our society and the attitudes of men towards woman as sex objects in our society is almost always a public matter – even when one is not a politician of the DA, ANC or ACDP. Our Constitution guarantees gender equality and when any of us behave in a sexist manner – even in private – the media would have any right to report on it.

The DA, who says it supports gender equality (but whose track record has not been great on this, what with Zille appointing an all male cabinet and all), cannot now run away and hide behind the old chestnut that Max’s alleged relationship with a woman is a private matter which is of no consequence to the party. Just like President Zuma cannot pretend that having three wives and cheating on these wives with many other women is not a gender issue that should be up for public scrutiny and debate, so Zille or Max cannot pretend this is private.

A better line of reasoning would have been to hide behind the “innocent until proven guilty” mantra so beloved by politicians. It would have been nonsense, but at least it might have bought the DA some time to try and sort out this mess.

Cape Town a racist city?

Nov 4th, 2009
by Pierre De Vos.
100 comments

In our little visdorpie an argument is raging about whether Cape Town is a racist city. The argument was sparked by a report written by Dr Sabie Surtee and Prof Martin Hall of the UCT Development Policy Research Unit, which found a widespread belief amongst black African professionals working in Cape Town that the city is “hostile to black people”.

Premier Helen Zille dismissed this report by stating that it must be judged against the background of a broader ANC propaganda campaign which fuels the “myth” that Cape Town is a racist city hostile to black Africans. It was fanned by a small politically connected black business elite who are unhappy that the DA city and provincial government are preventing them from corruptly benefiting from state tenders – despite being African and ANC-aligned.

She argued that the methodology of the study was flawed because it focused on only a few companies and interviewed only African employees whose feelings and views were not subject to critical scrutiny and verification with reference to the “facts”. While Cape Town has its share of racists (like everywhere else in the country), it was those who stated that Cape Town was a racist city who were themselves racist as they were making pejorative generalisations about a whole city based on the views of a few.

It seems to me the Premier is being somewhat disingenuous.

While she might have a point that the racism narrative is being fueled by the ANC and its cronies who are unhappy that the DA is in charge of the city and the province – depriving the ANC-aligned elite of automatic access to lucrative contracts – this does not address the larger issues regarding the structural racism and dominant culture of white superiority in Cape Town.

It would have been more honest (and politically more astute) for the Premier to engage openly with the report of my colleagues and to recognise that many Africans do feel alienated and marginalised in Cape Town and that this is at least partly because of racism. This is about more than access to tenders or ANC propaganda and goes to the heart of what we mean when we talk about transformation.

The Premier’s response is unfortunate as it dismisses the sincerely expressed feelings of all those Africans interviewed for the report. “You might feel discriminated against and marginalised because you are black,” she seems to say, “but what you feel and experience is not real. Let the madam tell you what you should really feel and how you should really interpret the experiences of racism you have encountered in our city.”

This is familiar territory for everyone who has been at the wrong end of racial discrimination in the new South Africa.  Unfortunately many white people, secure in their own white world and uncritical about their own assumptions of “merit”  and “fairness”, wrongly believe that racism is by and large a thing of the past and that black people are “too sensitive” or are “imagining” the racism they experience every day. Such individuals do not realise that their world view and experience of reality is shaped by often implicit (but unspoken and unexamined) assumptions about white superiority and black inferiority.

These assumptions remain largely unexamined because they are not seen as part of a specific white dominated culture. In a place like Cape Town still dominated by a white hegemonic culture, only “others” are seen as basing their experience of the world on problematic assumptions. Because the white hegemonic assumptions are so deeply embedded in our city’s culture, they appear normal and natural (“it is just the way life is”) while the experiences of those who do not share the same culture and hence do not rely on the same unspoken assumptions are dismissed as “wrong”. Their experiences are not accepted as true, because it does not accord with the way in which we ourselves experience the world.

When a black person is denied entry to a venue, treated with disrespect at a shop or when a black person complains about being made to feel unwelcome at the workplace, it is assumed that this has nothing to do with racism. Either the black person must be to blame (she was not “properly” dressed, she was “making trouble”, she was being “difficult” or “lazy”), or the insult is dismissed on the basis that it was not based on race but on the idiosyncrasies of the individual who acted badly.

If we really want to engage with deep transformation, we need to be honest about the fact that different people from different races and cultures often experience the world differently. We need to accept than when such a large group of African professionals say that Cape Town is hostile to black people, there is something wrong – even if we cannot easily see this because it does not accord with our own experience. Denying that anything is the matter is deeply insulting and dehumanising. It dismisses the real lived experience of a group of people just because they do not experience the world in the same way as their white counterparts.

Moreover, Zille’s response is particularly insulting as it comes close to dismissing all the black people who complain of racism in Cape Town as dishonest and corrupt. That is called “blaming the victim”.

Surely a more honest response would have been to take the complaints seriously, to admit that there is indeed a problem and to propose ways of addressing the very real concerns of the many black people who have made Cape Town their home. Like an alcoholic who can only begin to manage his illness after admitting to having a drinking problem, Cape Town can only begin to address the problem of structural racism when its leaders admit that there is a problem in the first place.

Merely blaming the ANC – no matter how tempting that might look – just reinforces the same old patterns and do not bring us closer to a solution. Such a solution would require some critical self-reflection on the part of those of us who are not African, perhaps by asking: what have I done to understand the reasons behind the alienation felt by many Africans in Cape Town and what have I done to address this.

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