Constitutional Hill

Huamn Rights Commission

Don’t hide behind (non-existent) sub judice rule

Jul 18th, 2011
by Pierre De Vos.
6 comments

One of the most irritating phenomena of our political life is the manner in which politicians wrongly invoke the so called sub judice rule to avoid accountability. Because they do not want to answer difficult questions or deal with politically awkward issues, such politicians invoke a rule that only exists in their imagination.

Is it possible that such politicians do not know that the rule has been substantially changed by the Supreme Court of Appeal (SCA) to bring it in line with the values and norms enshrined in our democratic Constitution? Or are they cynically invoking a non-existent rule knowing full well that the rule does not exist in the form that they pretend that it does?

The latest culprit is the Minister of Police, who invoked the rule in response to the Human Rights Commission’s (HRC) findings and remedial order in the case of Mr Chumani Maxwele, the jogger who is alleged to have given President Zuma’s motorcade the middle finger. The HRC found that the Special Protection Unit had violated several of Mr Maxwele’s rights and called on the Minister, on behalf of the members involved, to apologise to Mr Maxwele and to take steps to ensure that the SAPS acts in terms of the Constitution and the Law.

Reacting to the HRC’s findings, the Minister’s spokesman claimed that because Mr Maxwele had instituted civil proceedings against the SAPS the sub judice rule applied. The SAPS had accordingly refused to participate in the investigation and would not abide by the HRC’s ruling.

Now, it is an established rule of the common law that the proper administration of justice may not be prejudiced or interfered with and that to do so constitutes the offence of contempt of court. As the SCA has found, the sub judice rule is important as the integrity of the judicial process is an essential component of the rule of law. If the rule of law is itself eroded through compromising the integrity of the judicial process then all constitutional rights and freedoms are also compromised.

The crime of contempt of court thus includes contempt ex facie curiae (out of court) and this entails, first, cases where publication of an opinion will violate the dignity, repute or authority of the court (either by criticizing or insulting a particular judicial officer or the judicial system as a whole) and, second, statements which prejudice the administration of justice in pending proceedings. It is this latter aspect that has become known as the sub judice rule.

But in the Midi Television case the SCA stated that the broad scope of this rule which was in force in the pre-democratic era has been severely curtailed by the Constitution. In that case, dealing with the sub judice rule in the context of pre-publication censorship, Nugent JA, writing for a full bench of five judges, summarised the new position as follows:

[A] publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage. In making that evaluation it is not only the interests of those who are associated with the publication that need to be brought to account but, more important, the interests of every person in having access to information. Applying the ordinary principles that come into play when a final interdict is sought, if a risk of that kind is clearly established, and it cannot be prevented from occurring by other means, a ban on publication that is confined in scope and in content and in duration to what is necessary to avoid the risk might be considered.

If one applies these basic principles to the case at hand, it must be clear that the sub judice rule is not applicable here. The Minister would have to convince us that there would be a demonstrable and substantial prejudice to the administration of justice if he apologised to Mr Maxwele as requested by the HRC. He will further have to show that it would not be in the interest of society as a whole to obey the request of a Chapter 9 body because the risk to the administration of justice would far outweigh the harm done to the credibility and the dignity of the Chapter 9 institution.

This will obviously be impossible to show. Given the fact that section 181 of the Constitution states that other organs of state – including ministers – through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions, I cannot think of an example where the Minister would be allowed by the sub judice rule to ignore the HRC and to refuse to institute the remedial action proposed by it in a certain case.

Besides, how the minister could possibly argue that complying with the findings of the HRC – which dealt with the violation of Mr Maxwele’s constitutionally guaranteed rights to human dignity, to freedom and security of the person, to privacy, to freedom of expression and peaceful/unarmed demonstration – could possibly influence the parallel civil proceedings – which deals with a civil claim against the Police – is hard to fathom.

The HRC has already published a finding in which it concluded that Mr Maxwele’s rights have been infringed. Nothing the Minister can do or say will change that. A court dealing with the civil claim of Mr Maxwele will not be swayed by the finding of the HRC as it will have to hear the evidence presented to it and make its own finding on whether damages should be paid.

The fact that the HRC has found that Mr Maxwele’s rights have been infringed can also not be tendered in the civil case as proof that Mr Maxwele is entitled to be compensated financially as a result of any damages suffered. The two issues are therefore entirely different enquiries, and no substantial prejudice to the civil trial can possibly arise through the correct exercise of its rights jurisdiction by the Human Rights Commission.

Surely the Minister and his advisors know this. Can one therefore assume that they are hiding behind the sub judice rule to avoid complying with a finding of the HRC because the President and his seemingly lawless bodyguards were involved in this case? Is the Minister scared of President Zuma and his bodyguards or is he just ill-informed?

In any case, as the law stands now, the sub judice rule will almost never be applicable. Where anyone invoke this rule, they are doing so either because they are ill-informed about the law or because they are using the rule to avoid accountability. Whenever a politician invokes the sub judice rule, I for one will assume that the politician is admitting guilt or other wrongdoing, but is trying to hide from scrutiny and accountability for his or her actions.

So next time you read that a politician has invoked this rule, please do not believe for one second that the rule is applicable. It will not be applicable. Assume instead that the politician is ducking and diving because he or she is scared; or is trying to avoid being caught out in a lie; or is looking for an excuse to justify a constitutional breach of a duty to show respect for other constitutional institutions like the HRC or the Public Protector.

(Also see statement by Adv Nikki de Havilland, Centre for Constitutional Rights)

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.

Well done, ANC. Now get rid of Travelgate crooks

Oct 2nd, 2009
by Pierre De Vos.
7 comments

The ANC has asked Parliament to investigate the allegations against Loyiso Mpumlwana, who was nominated by the National Assembly as a full time commissioner of the South African Human Rights Commission. Mpumlwana was fired from the Truth and Reconciliation Commission after it was discovered that he defrauded the TRC. He was only one of four people the TRC instituted criminal charges against. One of the other three was PW Botha…..

The ANC is to be commended for this step. It will now request the President not to appoint Mpumlwana until a full inquiry has been concluded. In August 1997 the TRC issued the following statement:

The Truth and Reconciliation Commission is to lay charges against its former Regional Head of Investigations in the Eastern Cape, Mr Loyiso Mpumlwana, arising out of allegations that he was employed by the Premier’s Office of the Eastern Cape at the same time as being employed by the Commission.

The Commission will lay charges against Mr Mpumlwana for fraudulent misrepresentation. It will also bring a civil action to recover monies paid to him while he was employed by the TRC.

Mr Mpumlwana’s apparent employment by the Premier’s Office was brought to the attention of the Commission by that office after a recent report in the Mail and Guardian about discplinary charges brought against him by the TRC.

The charges were brought against Mr Mpumlwana during June as a result of his inadequate performance. After a disciplinary hearing lasting three days, he was found guilty of eight of 10 charges he faced relating to his failure to perform his duties. He tendered his resignation before the TRC decided what sanction to impose on him. The TRC accepted his resignation.

Well, Adv Mpumlwana should of course never have been on the ANC list of nominees for appointment to the SAHRC, but at least the party seems to have admitted to its mistake and might even rectify it. That would set a great precedent for the future. One assumes this means the party will also act against the criminals known as the Travelgate MP’s who stole money from Parliament.

Great stuff.

Of course, if a proposal by the Asmal Committee  on Chapter 9 Institutions had been implemented, this would never have happened. (Full disclosure: I was a legal advisor to this Committee so might be seen to have a stake in the implementation of its recommendations.) The Asmal Committee suggested that civil society be given an opportunity to comment on the quality and the suitability of a short list of candidates considered for appointment to Chapter 9 institutions such as the SAHRC.

This is because section193(6) of the Constitution states that the involvement of civil society in the nomination process may be provided for in line with section 59(1)(a) of the Constitution. That section requires the National Assembly to facilitate public involvement in its activities. As I wrote before, the Constitutional Court has stated that this means Parliament must provide for reasonable and effective participation by the public in the law making process (and also in the appointment of SAHRC Commissioners). Sadly, this was not done and now the National Assembly sits with egg on its face.

As Justice Ngcobo said in the Doctors for Life International case, the need for public participation:

[E]ncourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and to become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist.

But public involvement also acts as a check on the Parliament to police it and to assist it not to make really bad decisions (as it did here). Maybe this sorry saga will convince the National Assembly to implement the recommendations of the Asmal Committee. Who knows, we might even get competent appointments to  the SAHRC.

Whether the Travelgate criminals will be fired is of course another matter…. Wonder what PW Botha would have thought about all of this.

Human Rights Commission appointments not up to scratch

Sep 28th, 2009
by Pierre De Vos.
38 comments

Ever since the “Polokwane Revolution” at the end of 2007 – and even more so after the April election - ANC members of Parliament seem to be confused. When Thabo Mbeki was President of the country and of the ANC, that organisation’s MP’s more often than not followed the “party line” no matter what. This meant that Ministers were seldom held to account and the Presidency – often through the “good work” of Essops Fables - instructed MP’s on who to appoint to key positions.

The disastrous SABC Board, nominated by the National Assembly at the end of 2007 and appointed shortly afterwards by Mbeki, is a case in point. After MP’s had finalised a list of names for appointment to the SABC Board, ANC MP’s were instructed to change that list, which it promptly did. And we all know what happened then.

Under President Jacob Zuma things are far more complicated for MP’s. There is seldom a Friday “Letter from the President” helping MP’s to decide what they are required to think and how they are supposed to act to advance their careers. And because various factions in the Zuma cabinet seem to be at loggerheads with each other and the President himself does not always get involved in the skirmishes between his Ministers, poor MP’s are afraid and confused as they do not know what the “party line” is anymore.

Sometimes this is a good thing. It leaves MP’s with some room to make sound decisions in the interest of the country. Many Parliament watchers were pleasantly surprised, for example, when a special committee of Parliament recommended Thulisile Madonsela for appointment as the new Public Protector. For once all parties agreed on the nomination to one of the Chapter 9 institutions. An independent woman with sound legal knowledge, her appointment has been lauded even by civil society groups.

But then, just when one was ready to sing the praises of the emerging independent spirit of ANC MP’s, they go and nominate some rather dodgy characters for appointment to the South African Human Rights Commission (SAHRC). 

The list includes Ms Lindiwe Mokate (full-time), who worked as the CEO of the SAHRC before leaving that organisation under a cloud in 2005. The SAHRC was beset with difficulties during her tenure and there was an exodus of staff and reports of victimisation by senior management. In July of 2005, unhappy staffers wrote an open letter to National Assembly Speaker Baleka Mbete saying that at least 15 staff members had resigned in the first six months of the year and asking for her urgent intervention to save the commission from a “crisis”.

Another name is that of Adv B Malatji (full-time), who was the Chief Director: Legal Services in the Department of Home Affairs at a time when that Department gained the reputation as the most dysfunctional government Department. To be fair, it is unclear whether Adv Malatji did anything to stop the rot or did himself contribute to the malaise within the Department. During his tenure the Department did pilot several pieces of progressive legislation through Parliament, so personally I would be happy to give Adv Malatji the benefit of the doubt.

Not so with Adv Lawrence Mushwana (full-time), who used to be an ANC MP before he became a useless and sycophantic Public Protector. In July Judge JNM Poswa delivered a damning judgment in the North Gauteng High Court in which he set aside a “report” (well, more like an excuse for a report, also called a “whitewash”) by the Public Protector into the so called Oilgate scandal. Mushwana became notorious for failing to properly investigate complaints against powerful ANC politicians, so one can only despair that he will now be appointed to the Human Rights Commission.

But Mushwana is, sadly, not the worst of the bunch. Parliament also nominated Adv Loyiso Mpumlwana (full-time), only to discover that he did not disclose that he had been fired by the Truth and Reconciliation Commission in 1997. This fact only came to light shortly before the National Assembly voted to nominate Mpumlwana as a full-time commissioner.

The various political parties who belatedly discovered the fact that Mpumlwana was less than honest about his past are expected to bring their concerns to the attention of the National Assembly’s Justice Committee when Parliament resumes its work next week. Mpumlwana was fired for not doing his job and for holding down a job with the TRC while also having a full-time job with the Eastern Cape government.

The problem is that Parliament has already voted for his appointment and the President has no choice but to appoint him, unless Parliament now reverses its decision. One sincerely hopes that MP’s will bite the bullet and will reverse its decision to ensure that this dishonest man does not become one of the custodians of our human rights at the SAHRC. Really, it’s a bit like appointing Leonard Chuene as the head of an Honesty and Integrity Board or a Truth Commission. The MP’s should surely have the right to reverse its decision, if not on the basis that Mpumlwana was fired by the TRC, then at least on the basis that he misled Parliament by failing to disclose this fact to it.

Parliament also nominated two “minority candidates” (as Julius Malema would call them in a more coherent moment when he is not recovering from a night of debauchery with his friend Jonny Walker Black) as part time commissioners. Janet Love, a respected human rights attorney with a deep and abiding commitment to human rights made the cut, so there will be at least one sane voice on the SAHRC.

But Dr Danny Titus, the head of the Bruin Belange Inisiatief  and the erstwhile head of the Afrikaanse Taal en Kultuur Vereniging (ATKV), a right wing “cultural organisation” fighting for the interest of the Afrikaans language and culture, also got the nod. Although Titus is a lawyer and seems to be quite well known amongst Afrikaners (who likes Titus because he gives their fight to retain special rights and privileges for Afrikaans some legitimacy), there were far better candidates on the shortlist who did not make the cut.

Why did the ANC controlled committee nominate some of these characters when so much better candidates applied for appointment? Why was the process politicised? Why were candidates with a strong human rights background and a track record of fighting against racism and discrimination not appointed? It is not as if the SAHRC can declare invalid actions of the executive or the legislature. It is suppose to promote and protect the human rights of ordinary people and the more effective and passionate the Commissioners are, the better ordinary people will be served.

Maybe some of these Commissioners will surprise us all and will do sterling work. But do not hold your breath.

R.I.P. Human Rights Commission?

Aug 25th, 2009
by Pierre De Vos.
22 comments

The South African Human Rights Commission is not without its faults: It is not always consistent in the way it tackles human rights issues and because of resource constraints and occasional ineffectual management it sometimes fails to deal speedily and effectively with complaints by ordinary citizens about the infringement of their rights. However, compared to the other institutions set up in terms of the Constitution to promote and protect human rights, it has done sterling work.

Because the Chairperson and all but one of the present Commissioners must retire next month, Parliament has now begun the process of appointing new Commissioners. And there are worrying signs that the ANC majority in Parliament will deal a fatal blow to the Human Rights Commission by “deploying” mediocre ANC party-hacks with little human rights experience to that important body, a body that can play a huge role in helping ordinary (often poor and marginalised) citizens to gain access to justice to help them enforce their rights.

The Constitution states that the Human Rights Commission is independent and that it must act impartially and must exercise its (considerable) powers and perform their functions without fear, favour or prejudice. Parliament has a constitutional duty to assist and protect the Human Rights Commission and to ensure its independence, impartiality, dignity and effectiveness.

An ad hoc committee of Parliament has drawn up a preliminary shortlist of candidates to be interviewed.  The list of names nominated by the ANC is, to say the least, underwhelming and troubling.

It includes the names of Benjamin Ntuli (a former ANC MP who failed to be re-elected to Parliament in April); Andre Gaum (a guy who tried to censor the student newspaper at Stellenbosch when he was on the SRC, is an old National Party politician who jumped ship to the ANC and then became deputy Minister of Education, but also failed to make it back to Parliament in April); Mochubela Jacob Seekoe (a former South African Ambassador to Russia with a Chemistry degree from Moscow); Maxwell Moss (a former ANC MP who failed to make it back to Parliament in April) ; Lindiwe Mokate (a former chief executive of the Human Rights Commission who resigned after a disastrous  and highly controversial stint there); Lawrence Mushwana (the Public Protector who has shown a spectacular lack of independence and whose Oilgate report was set aside by the Gauteng High Court recently because it failed properly to investigate the complaint implicating the ANC); Wallace Mgoqi (former city manager of Cape Town implicated in several dodgy decisions taken during his tenure there); and Ephraim Mohlankane (who has such a stellar career that a Google search reveals a full zero entries under his name).

What makes this list so deeply depressing is that far more credible and worthy candidates actually applied to become Commissioners.

The list of credible candidates include Andile Mngxitama (a writer and publisher of “Frank Talk”, the latest edition arguing that blacks cannot be racist); Prof Jeremy Sarkin (who used to be a Senior Professor in Public Law at the University of Western Cape and is a member of the UN working group on enforced and involluntary disappearances); Adv Tseliso Thipanyane (current CEO of the Human Rights Commission and former Public Law academic);  Dr Janet Cherry (who was detained for 342 days by the apartheid security police, worked for the Truth and Reconciliation Commission and teaches sociology);  Dr Bukelwa Hans (former South African Ambassador to Finland); Bishop Paul Verryn (who opened the doors of the Central Methodist Church in Johannesburg to refugees and has worked tirelessly for the poor and the marhinalised); Hanif Valley (lawyer for the Truth Commission and published author); Nozizwe Madladla-Routledge (former deputy minister of Health and general independent spirit); Prof Hussein Solomon (lecturer in political science); and Pritima Osman (who has a long history of doing human rights based NGO work).

(To be fair, the nominations supported by opposition parties also contain the names of a few has-been politicians, but unlike the ANC list, the majority of the individuals nominated by opposition parties have shown at least some knowledge of and commitment to human rights.)

Of course, the mere fact that an individual is a member of the ANC (or any other  political party for that matter) should not disqualify that person from a job on the Human Rights Commission.  Justice Albie Sachs was a prominent member of the ANC before elevation to the Constitutional Court and he turned out to be a brilliant judge who handed down some of the most progressive judgments of the court.

The question is whether there is a reasonable apprehension that the relevant candidate will be biased and will not act without fear, favour or prejudice. Some of the ANC candidates might well pass this test, but the fact that a large number of failed ANC politicians appear on that party’s list for appointment to the Commission, suggests that the Commission is in danger of becoming no more than a dumping ground for party hacks. This has the potentially fatally to undermine the independence and impartiality of the Commission.

As the Asmal Report made clear, an invigorated and well resourced Human Rights Commission could play a major role in addressing the deeply troubling fact that most South Africans (especially poor and marginalised black South Africans) do not have access to lawyers and cannot enforce their rights and the obligations of others towards them in courts. If a majority of has-been politicians are appointed to the Commission, the Commission will not be able to fulfill this role and all this talk about the transformation of the legal system to provide better access to justice for all South Africans would have been no more than empty rhetoric.

I sincerely hope that cooler heads will prevail and that the ANC will not use its majority in Parliament to nominate candidates who – through their words and actions – have not demonstrated a deep commitment to human rights. The Human Rights Commission can really make a difference. Even if Parliament nominates only individuals who are generally sympathetic to the ANC, there are enough talented individuals on the list to give the Commission at least a shot at being relevant.

However, if the ANC pushes through its current list, the Human Rights Commission will almost certainly become a toothless tiger and the constituency most in need of its services – the poor and the marginalised – would have been sold down the river once again.

In defence of the Human Rights Commission

Jul 1st, 2008
by Pierre De Vos.
33 comments

I must say, ANC Youth League President Julius Malema does have chutzpa. Yesterday he attacked the Human Rights Commission (HRC) — an independent body as defined in the constitution — for calling on him to retract his “shoot to kill for Zuma” rhetoric. According to The Times:

The commission had called on Malema to apologise for undermining the judiciary and inciting violence, but the firebrand has instead taken a swipe at the commission, questioning the “calibre” of its leadership and calling on it to “rise above petty politics and execute its mandate diligently, without fear or favour”.

“Statements attributed to some of its senior executives send a worrying signal about the calibre of leadership at the helm of such important institutions,” Malema said.

This is a classic tactic of the political thug: attack the opponent and accuse them of exactly that which oneself might be guilty of and pretend that one’s own weaknesses belong to the opponent.  It is of course exactly because the HRC is acting without fear, favour or prejudice that it had the guts to criticise Malema for his outragous statements which have undermined one of the pillars of our democracy.

It is also because the HRC is led by a strong and principled man like Jody Kollapen that it took this stand despite the fact that others inside and ourtside the ANC seem to be intimidated into silence by the thuggery of Malema and his ilk.

It is really, really, rich for Malema to suggest that the HRC was acting in a way that was somehow politically tainted and that it was undermining its own credibility. If the HRC was going to act in a politically expedient way it would merely have kept quiet out of fear of being savaged by Malema and his ilk (like so many others – including hero Jacob Zuma – have done). Instead the HRC spoke up for what is right, namely that no one in a democracy should talk about killing others in defendece of a political leader or for a political cause.

Last year a committee of Parliament chaired by Kader Asmal released a report (full disclosure: I was involved as a legal advisor for that committee) on the Chapter 9 institutions such as the HRC after an exhaustive overview of all these institutions. It found that the HRC was by far the best run, most principled and cost effective body of the lot and praised the HRC for doing so much with so little money. (Unlike the Public Protector which has no reputation to speak of.)

Malema has clearly not read this report or he would know that the HRC takes up many human rights issues and often treads on the toes of those who are economically or politically powerful. This includes white farmers and business men as well as black politicians. It tries very hard to fulfil its mandate to assist the poor and the marginalised to vindicate their rights and to speak out about human rights outrages like the unconsciounable comments made by Malema.

The HRC is quite fair and principled – unlike the ANC Youth League – and should be praised for promoting respect for human rights. One may well ask what the ANC Youth league has done (except bleat on like brainwashed sheep about the “abuse” of JZ’s rights) to promote and protect the human rights of its constituents? What actions have it embarked upon to protect teenage girls from predatory teachers; to protect youth on farms from being exploited by racist farmers; to protect youth from discrimination in the workplace; to protect youth against the charlatans who sell quack remedies as HIV cures?

Yes, not much. Besides the last time I checked Jacob Zuma was not a youth – although he sometimes behaves like one – so I am not so sure why they are gaaning aan about him like that. Maybe they should worry less about him and more about the real problems of their constituents. But that would require hard work and principles and I doubt whether Mr Malema would be able to muster either.

Racial exclusive organisations revisited…

Apr 10th, 2008
by Pierre De Vos.
4 comments

Am I allowed to change my mind, I wonder, about the decision handed down by the South African Human Rights Commission (SAHRC) that the racially exclusive membership of the Forum for Black Journalists was unconstitutional? Hell, if one is not prepared to question one’s own opinions and to change one’s mind, one would be in danger of becoming very dogmatic and rigid and less likely to get to the bottom of any issue.

So here goes.

Maybe I was wrong in suggesting that the SAHRC decision was not in line with the jurisprudence of the Constitutional Court. Having carefully read through this decision again, I wonder whether the Commission’s carefully reasoned opinion might not have struck the correct balance between the right to freedom of association – guaranteed in section 18 of the Constitution – and the right not to be discriminated on the basis of race as guaranteed by section 9 of that same Constitution.

The Commission correctly points out that given the Constitutional Court jurisprudence on unfair discrimination, an exclusively black journalist’s association set up to promote opportunities for previously disadvantaged black journalists who were denied these in the past may be able to justify their exclusion of white members far easier than an exclusively white journalist’s association would if they excluded black journalists.

The Commission also correctly points out that where a group excludes someone on the basis of their race (and where that exclusion is not explicitly justified as an affirmative action measure), the exclusion will be presumed to constitute unfair discrimination and it would be for the group who wants to justify the exclusion to bring evidence to show that the exclusion was necessary to achieve an important purpose – such as the purpose to promote opportunities for previously oppressed black journalists.

But because the Commission did not rely solely on the Constitution, but also on the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), it could also refer to the kind of factors usually only considered during the limitation clause inquiry and could argue that if there were less restrictive means to achieve the same legitimate purpose (to advance black journalists), those means should have been used instead.

My initial reaction to the decision was that the Forum for Black Journalists might have been able to win their case by showing that there was good reason to exclude white journalists and that this would be in line with what the Constitutional Court would have required. They might have shown, for example, that the Forum would operate better if white journalists were not allowed to attend because that would allow black journalists the “safe space” in which to discuss issues of mutual concern without having to worry that they would be intimidated by the presence of white journalists.

But if one adds requirements of the limitation clause as PEPUDA does – that one must show that there are no less restrictive means of achieving the laudable goal – it seems to place a heavier burden on the Forum and, says the Commission, that burden of proof was never satisfied.

Therefore as I understand it, the Commission has found that the Forum has failed to make such cogent arguments and has not shown that it was necessary to exclude the white journalists to achieve the laudable goals of the organisation. If they allowed like-minded white journalists to join who supported the goals of the organisation, would this have made it impossible for the Forum to do its work? The Forum, argues the Commission, has failed to show that it would.

This is quite a plausible argument – especially because the Commission could point to the Black Lawyers Association (BLA), who does not prohibit white lawyers form joining as long as those lawyers endorse the aims of the BLA.

Of course, whether the Constitutional Court would agree is another matter. The case does suggest how difficult it is to balance the rights of freedom of association on the one hand and the right against non-discrimination on the other, when one works with the kind of contextual analysis that the Constitutional Court works with.

For what it is worth, it seems to me as a matter of policy (if not of law) it would be wise for the Forum to open up their ranks to all like-minded journalists of whatever race in order to regain the moral high ground. If they continue to insist that they have to be racially exclusive it might well create the perception that they want to create a new kind of Broederbond type orgnanisation – a media mafia if you will – to gain an unfair advantage for their members.

It does not help that the acting head of the Forum is the political editor of His Masters Voice (otherwise known as the SABC).

So, to conclude, I am a bit confused about this case and will not want to predict how the Constitutional Court would rule if the matter is ever brought before them. Maybe that is reason enough for the Forum to stop whining and to appeal the decision – all the way to the Constitutional Court if necessary – to get clarity on this perplexing issue.

Black journalism forum unconstitutional

Apr 8th, 2008
by Pierre De Vos.
7 comments

I was surprised to read that the Chairperson of the Human Rights Commission (HRC) Jody Kollapen announced today that it had found that barring journalists from joining the membership of the Forum for Black Journalists (FBJ) on the basis of race was unconstitutional.

The decision of the HRC apparently does not prevent an organisation like the Forum for Black Journalists (FBJ) from forming, but argues that such an organisation cannot exclude members on the basis of their race. This is slightly surprising as the Constitutional Court has said that the prohibition on unfair discrimination does not prohibit different treatment of people in all cases.

According to the jurisprudence a Court will look at the impact of the discrimination to determine whether it is unfair or not and will do so by considering several factors. First, it will look at the position of the group complaining of discrimination and ask whether the group has been discriminated against in the past. If it has, then it would be easier for a court to find the discrimination unfair. But clearly in this case white people who have not suffered discrimination in the past are the complainants so one would have thought that the discrimination would not easily be found to be unfair.

Second, one the Court has said that one should look at the purpose of the discrimination and ask whether it was an important enough purpose to justify the different treatment. In this case the FBJ has argued that black journalists are still discriminated against and that the Forum was therefore a platform where they could discuss their mutual concerns in a safe space. This, I would have thought, would have made it easier to justify the FBJ’s racial exclusive membership.

Last year there was a complaint lodged against a guest house in Cape Town who only allowed gay men to stay and the complaint was dismissed on the basis that the guest house provided one of the few really safe spaces for gay men to do their own thing. Given the fact that gay men have been traditionally marginalised and oppressed, the exclusive policy of the guest house was found not to discriminate against heterosexuals.

I thought the HRC would go the same route with the FBJ, but clearly it decided otherwise. Of course, the FBJ is free to appeal this decision in the hope that the appeals body would come to a different conclusion. I would support such an appeal.

What I would not support is the idiotic statement from the FBJ quoted in the newspaper that this is a “burning order to a black initiative”. ” …They (SAHRC) are burning us after leading us into a judicial ambush. They have found us guilty of being black and they have criminalised black people.”

Apart from being a statement devoid of logic it is also dangerous as it fails to respect the independence and impartiality of the HRC as guaranteed by the Constitution. The HRC is a body created by the Constitution and a supposedly responsible body such as the FBJ should not undermine its independence by a nonsensical and personal attack.