Constitutional Hill

Rule of Law

SAPS becoming a threat to our democracy?

Apr 14th, 2011
by Pierre De Vos.
110 comments

The shock and outrage which have followed the brutal assault and killing of Andries Tatane by the South African Police Service during a service delivery protest at Setsoto, in Ficksburg, eastern Free State, yesterday is surprising, to say the least. Perhaps because this incident of police brutality was caught on camera and broadcast on SABC TV news, people are suddenly claiming to be shocked by something that happens every day. Almost a thousand people are now killed every year due to police action, but this hardly makes the news anymore.

Unless the police shoots and kills a blond girl from Houghton or a foreign tourist from Europe, one is not likely to hear about it at all.

We all know that most police officers are badly trained, that quite a few of its members are corrupt (including the former Police Commissioner) and that some police officers assault, torture and sometimes kill innocent civilians. We all know that if one happens to be a foreigner from elsewhere in Africa, if one is poor and black and not well-connected, if one is a member of a social movement involved in protest action, or if one gets in the way of the VIP blue light brigade, members of the SAPS is highly unlikely to treat you in a way that is consistent with the law and the Constitution.

Many people living in South Africa have reason to fear the SAPS and not to view it as a police service whose members serve and protect the community, but rather as a police force whose member enforce their will on others and are at war with the very community they are supposed to serve. It often seems as if some members of the SAPS either do not know the law or wilfully ignore it and that the victims of this lawlessness are not only criminals but ordinary civilians who happen to get in the way. If one happens to be in the wrong place at the wrong time — like Andries Tatane – one might very well be humiliated, maimed or killed for no good reason at all.

Often police officers use extreme force and humiliate and assault innocent civilians because they feel humiliated and scared and see this as the only way to retaliate. They see civilians like Andries Tatane as easy target on which to take out their frustration which festers because of the humiliation, fear and confusion they experience because they are ill equipped and badly trained to protect themselves and members of the community against dangerous criminals and are often unable to solve the many serious crimes that occur every day.

We also know that the problem is getting worse. Since politicians and members of the police leadership started talking about the need for the police to shoot and kill people who they happen to think might be criminal suspects, the number of civilians killed by the police has risen steadily to numbers last seen during the apartheid era. Cabinet recently approved draft legislation which would make it even easier for police officers to shoot and kill civilians first and then to ask whether this was a good idea or not.

Legal claims paid out by police for 11 months of last year showed an increase of about 30% over the claims paid out in the 2009-10 fiscal year. When Congress of the People MP Leonard Ramatlakane asked the minister Nathi Mthethwa what the cost of litigation against the South African Police Service was in the past two years and what charges against officers were involved, Mr Mthethwa said:

An amount of R87,2m was paid during 2009-10 financial year as far as claims for compensation are concerned, and an amount of R115,9m has been paid during the current financial year as on February 28 2010. The claims involve the following types of compensation: false arrests, assaults and shootings, collision damages to vehicles, damage to property and other issues such as crimen injuria.

If the proposed amendments to section 49 of the Criminal Procedure Act – which would clearly be unconstitutional — is passed by Parliament later this year, these numbers might go down, but this will not be because the police will shoot and kill less civilians but rather because the law will then justify even more extreme forms of extra-judicial killing of our people by trigger happy members of the police force.

Section 119(5) of the Constitution states that the security services — which includes the SAPS – “must act, and must teach and require their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic”. What happened yesterday was not in accordance with our Constitution or the law, nor with international law. It is unclear whether the action by the police officers yesterday would have been lawful had they acted in terms of the proposed amendments to section 49 of the Criminal Procedure Act.

When Dr PAJ Waddington was asked to investigate the Boipatong massacre which occurred in the early nineties, he concluded in a wide-ranging report that the apartheid police had a confessional style of policing (in other words, the police arrested suspects and then tortured them until they had extracted confessions from them). The Waddington Report found the apartheid police to be “woefully inadequate” and “incompetent”, and suggestive of “an unaccountable police force.” Complicity aside, the nature of security force behaviour at an official level frequently confirms an active promotion of destabilisation and violence beyond the “legal limits”, the report found.

In the heady days after the fall of apartheid there was much talk about transforming the police force at war with the population into a police service, working with communities to prevent and solve crime. But the Zuma administration, in another populist turn to the right, decided to embrace quick-fix solutions to the crime problem by remilitarising the police and by encouraging police officers to shoot and kill civilians and to show them who was the boss by acting like bullies. This is increasingly turning the police away from a service that has to help safeguard our democracy into a force that threatens the very existence of our democracy.

Where the police becomes a law unto itself, where it sees itself as at war with the community, where it is politicised and sees its task a protecting the leaders of a specific faction of the governing party (as the apartheid era police did), then the police becomes a threat to democracy. Instead of working in partnership with communities to solve crimes, they take sides and see any kind of political protest as illegitimate and as part of a plot to overthrow the government. When that happens the police stops being an institution in service of democracy and starts being an institution in service of itself and of that faction it serves.

Breaching the Constitution not always due to bad faith

Mar 23rd, 2011
by Pierre De Vos.
25 comments

What happens when after an election it transpires that no political party has obtained a majority in a particular Municipal Council? In principle this should not be a problem. A hung council can even be said to be good for democracy as different political parties will be forced to work together to form a majority and elect a Speaker as well as a mayor for that council. A multi-party government can sometimes curb the excesses of the strongest party and may ensure some internal accountability which might be lacking where a single party wins a majority of seats.

In Cape Town after the last municipal election this is what happened and a curious coalition of parties which included the ostensible liberal Democratic Alliance (DA), far right wing parties like the Freedom Front Plus (FF+) and African Christian Democratic Party (ACDP), and other parties like the Africa Muslim Party (AMP), United Democratic Movement (UDM) and United Independent Front (UIF) formed a multi-party government. The FF+ representative was elected Speaker of the Council and Helen Zille, leader of the DA was elected mayor with a slim majority. This was before Patricia De Lille had discovered the wonders of the “open opportunity society”, so at first the ID joined forces with the ANC in the council, but to no avail, as the ANC-ID coalition could not muster a majority.

But sometimes things can go badly awry. Where there is a hung council, where there is some infighting in that council and where the provincial government is controlled by a different party than any of the parties who form part of the multi-party government of the council, things can get messy.

This is neatly illustrated by the Supreme Court of Appeal (SCA) judgement of Premier of the Western Cape and Others v Overberg District Municipality and Others. The Overberg District Municipality is a hung council. The 20 member council consist of 9 members of the African National Congress (ANC), two of the National Peoples’ Party (NPP), eight of the Democratic Alliance (DA) and one of the Independent Democrats (ID). The governing majority consisted of a coalition between the nine members of the ANC and the two representing the NPP.

In terms of the Local Government: Municipal Finance Management Act (MFMA), the council must table its budget at least 90 days before it is passed. The budget needs to be passed by 1 July. When the Overberg council met on 13 April 2010, the speaker suddenly resigned. A speaker was appointed, but for that meeting only, and the budget was approved for purposes of comment and publication. This created a problem as only the speaker can call another meeting of the council. But as there was no speaker, such a meeting could not be called and the budget could not be passed.

What to do? Enter the DA MEC for Local Government in the Western Cape. In terms of section 139(4) of the Constitution:

If a municipality cannot or does not fulfil its obligation in terms of the Constitution or legislation to approve a budget or any revenue-raising measures necessary to give effect to the budget, the relevant provincial executive must intervene by taking any appropriate steps to ensure that the budget or those revenue-raising measures are approved, including dissolving the Municipal Council and — (a) appointing an administrator until a newly elected Municipal Council has been declared elected; and (b) approving a temporary budget or revenue-raising measures to provide for the continued functioning of the municipality.

The DA, which control the Western Cape Province, decided to dissolve the Overberg council, relying on this section which the MEC said left him with no other alternative. The MEC argued — based on legal advice — that he had no option but to dissolve the council as this was what section 139(4) required him do. Of course, this also meant that a council controlled by the ANC would now be dissolved for not passing a budget, a publicity coup for the DA, but there is no evidence that this played a role in the decision of the MEC.

The argument by the MEC was rejected by both the High Court and the SCA. In the SCA judgment, Brand J argued that s 139(4) empowered the MEC to take any “appropriate steps” to deal with a budget crisis like this and that such steps could not be limited to dissolving the council. The interpretation contended for by the MEC, said he SCA, would render the reference to “appropriate steps” in s 139(4) superfluous. If the provincial executive is compelled to dissolve the council what other appropriate steps could there be? The MEC therefore had wider powers to make sure that the council passed its budget and need not have rushed to dissolve a council which happened to be controlled by the ANC coalition.

Besides, said the SCA, the MEC’s argument pre-supposes that the council’s failure to approve a budget is invariably attributable to incompetence or recalcitrance.

The invalidity of the assumption is demonstrated by the very facts of this case. In this case the council was both willing and able to approve the budget timeously but it was prevented from doing so by factors beyond its control. . . In these circumstances it seems not only inappropriate but downright absurd not to allow the council to approve the budget, which has already passed through all the preliminary procedures, but to dissolve the council instead. Of course, one can think of examples of even more glaring absurdity, for instance where the budget was in fact approved, but one day late. What the argument amounts to is that, though the extreme measure of dissolution may be nonsensical in a particular case, it is dictated by the necessity to set an example for others who are indeed recalcitrant and incompetent. My short answer is that I cannot ascribe that intention to our Constitution.

Brand J pointed out that the MEC had therefore misconstrued his powers when he dissolved the Overberg council and that the MEC had therefore offended the principle of legality which is an aspect of the Rule of Law. By deciding to dissolve the council without considering a more appropriate remedy, the Western Cape cabinet had offended the provisions of s 41(1) of the Constitution which requires all spheres of Government to respect the constitutional status, powers and functions of Government in other spheres and ‘not [to] assume any power or function except those conferred on them in terms of the Constitution’.

Intriguingly, the SCA did not state explicitly that the MEC could call the council together to force it to elect a new speaker and then to adopt the budget. Our law is silent on what happens if there is no speaker for a council and whom could call a meeting of that council where the council had no speaker. This seems to be a lacuna in our law which needs to be addressed. Meanwhile councils all over South Africa will learn from this case that they cannot elect a speaker for one meeting only as the speaker plays a rather pivotal role in calling meetings of a council.

The case also illustrates that sometimes a government breaches provisions in the Constitution not because it is wilfully disrespectful of the Constitution, but because it received the wrong legal advice. That is exactly why the courts are there to declare such actions invalid. Where this happens it does not necessarily mean that the party in government disrespects the Constitution – it merely reminds us that reasonable people (of whom some might even be lawyers) can sometimes disagree about the correct interpretations of the provisions of the Constitution.

Glenister: A monumental judgment in defence of the poor

Mar 18th, 2011
by Pierre De Vos.
110 comments

Corruption is a human rights issue and the only way for a state effectively to combat corruption is through the creation of a truly independent unit that investigates corruption with a view successfully to prosecute all those who have engaged in corrupt activities. I would guess that for most South Africans this is a pretty obvious fact. Sadly, in the past some in the ANC government (and the majority of ANC delegates at Polokwane) have shown itself to be less than enthusiastic about the investigation and prosecution of alleged corruption involving party leaders or involving those closely aligned to the ANC through mutually beneficial financial arrangements and family and friendship ties.

Hence, the Scorpions were abolished and a new unit — the Hawks – were created to investigate “priority crimes”. But yesterday in the judgment of Glenister v President of the Republic of South Africa and Others a majority of judges of the Constitutional Court (in a brave and brilliant judgment authored by Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron), found that the Hawks were not sufficiently independent and that the state had therefore failed to fulfil its obligations to respect, protect, promote and fulfil the rights in the Bill of Rights as required by section 7(2) of the Constitution.

Both the majority and minority judgments emphasised the importance of fighting corruption and the need to establish a body that was sufficiently protected from political interference to do so. The minority held that the Hawks were sufficiently protected from such interference as it seemed to assume that politicians would not interfere with the Hawks (a rather surprising assumption given the allegations of interference with the far more independent Scorpions and given the interference by the intelligence services in the work of the Scorpions) and because there were sufficient checks and balances in the legislation to ensure that it would not be ”subject to undue influence” by politicians.

The majority took a far more robust approach to what was needed effectively to fight the corruption that seems to be engulfing South Africa like a tsunami. The ANC government might be tempted to try and tweak the Hawks legislation without really changing anything in order to comply with the judgment, but in my opinion the approach taken by the majority would doom any attempt merely to make some cosmetic changes to the structure of the Hawks. For the majority the starting point was the evil of corruption and the need to provide effective mechanisms to deal with it wherever it may be found:

There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.

Quoting from a speech by Kofi Anan, the majority also noted that corruption hurts the poor disproportionately by diverting funds intended for development and by undermining a government’s ability to provide basic services. Corruption thus perpetuates inequality (put that in your pipe and smoke it, Jimmy Manyi).

If one understood that section 7(2) of the Constitution requires the state to “respect, protect, promote and fulfil the rights in the Bill of Rights”, it becomes clear that the failure on the part of the state to create a sufficiently independent anti-corruption entity infringes on the rights to equality, human dignity, freedom, security of the person, administrative justice and socio-economic rights — including the rights to education, housing, and health. Corruption was therefore an assault on the poor and on those who have suffered from discrimination in the past.

What was therefore required was to create an anti-corruption unit with the necessary independence to be protected from potential political pressure. Although there are many ways in which the state can fulfil this constitutional duty, if the state fails to create a truly independent corruption fighting body it would be in breach of its Constitutional duties.

This is strong stuff. But it gets even better. What are the requirements for such an independent body?

First, the majority indicated that the appearance or perception of independence plays an important role in evaluating whether a corruption fighting body was truly independent. This meant that the state could not create a body that it claimed was independent but that did not appear independent to the reasonable member of the public:

[P]ublic confidence in mechanisms that are designed to secure independence is indispensable. Whether a reasonably informed and reasonable member of the public will have confidence in an entity‘s autonomy-protecting features is important to determining whether it has the requisite degree of independence. Hence, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.

Second, in a passage that may have consequences for our understanding of the appropriate relationship between the Minister of Justice and the NPA, the majority stated that the Constitution‘s requirement that a politician must be responsible for policing does not require that the anti-corruption unit must itself function under political oversight. This did not mean that such a body had to be insulated from political accountability. But it did mean that such a body had to be insulated from “a degree of management by political actors that threatens imminently to stifle the independent functioning and operations of the unit”.

Third, the Hawks are now “ordinary” police officials who enjoyed little if any special job security — a requirement for any truly independent corruption fighting unit. The majority pointed out that the Hawks at present can be fired by the Commissioner of Police for any number of reasons and that it appears as if he can also fire the head of the Hawks.

Although the majority does not say this, the lack of independence of the Hawks due to this provision is highlighted by the fact that our present Police Commissioner has recently been found to have acted in an unlawful manner relating to a highly problematic lease entered into to rent new Police Headquarters. If the Hawks were to investigate any possible corruption relating to this deal, the Commissioner would, in effect, be able to fire those responsible for the investigation for any of a number of reasons not officially related to the investigation.

But even if the National Commissioner of Police were not involved there could be problems with his power to fire members of the Hawks. The majority pointed out that unlike the National Director Public Prosecutions (NDPP) — who selected the head of the Scorpions from amongst the Deputy NDPPs –  the Police Commissioner can be re-appointed by the President at the end of his term. As the majority pointed out, a renewable term of office heightens the risk that the Police Commissioner may be vulnerable to political and other pressures. In theory the President could therefore place pressure on the Police Commissioner to fire those Hawks who dared to investigate allegations of corruption against — say — the Guptas or — say —  against the President himself.

But for the majority the gravest problem with the Hawks arises from the fact that the new entity‘s activities must be coordinated by Cabinet. The statute provides that a Ministerial Committee, which must include at least the Ministers for Police, Finance, Home Affairs, Intelligence and Justice may determine policy guidelines in respect of the functioning of the Hawks as well as for the selection of national priority offences. The Hawks is therefore not explicitly a corruption fighting unit. It is a unit that fights “priority crimes” and the politicians could decide what these “priority crimes” should be. This creates a risk of political and executive influence over the Hawks. As the majority pointed out:

It is true that the policy guidelines the Ministerial Committee may issue could be broad and thus harmless. But they might not be broad and harmless. Nothing in the statute requires that they be. Indeed, the power of the Ministerial Committee to determine guidelines appears to be untrammelled. The guidelines could, thus, specify categories of offences that it is not appropriate for the DPCI [the Hawks] to investigate — or, conceivably, categories of political office-bearers whom the DPCI is prohibited from investigating.

In other words, at present politicians can in effect decide what crimes the Hawks must investigate and, by implication, what crimes it should stay away from. This line of reasoning makes sense. If a President or other members of the executive are corrupt and wishes to avoid criminal sanction, these provisions would help them to do so. Although parliament is supposed to have some oversight function over this function, the President – as leader of the majority party — have indirect control over the majority of members of Parliament and hence could potentially ensure that no oversight takes place. If this ever happened this would completely subvert the corruption fighting ability of the Hawks – at least as it relates to politically connected individuals and institutions.

The majority made clear that it was not assuming that these powers would be abused by any politician. But where politicians are given powers over a corruption fighting unit that can be abused, that body does not have the requisite independence to make it effective.

From the above it must be clear that it is going to be difficult for the executive and Parliament to comply with the judgment by merely tweaking the existing legislation. A completely new institution with far more safeguards to secure its independence will have to be created. Of course, even such a body will only be as good as the people appointed to it. The professional naysayers will argue that such a body will never be truly independent because fundamentally dishonest or corrupt people will be appointed to it to protect the ANC.

I would disagree with such a pessimistic assesment.

Where a body’s independence is secured and where the body is protected from political interference, those who work for that body often grow in confidence and often begin to embody the values of that body. The pride and respect that comes with such a position often assists an individual to act in a manner not expected by those who might have appointed the person.

I recall the words of an apartheid era Minister of Justice who at that time appointed South Africa’s judges and who complained that “the problem with these judges is that once appointed they think they have been appointed on merit and start thinking for themselves”. Hopefully the members of an independent corruption fighting body will have the integrity to follow this route.

Meanwhile the ball is back in the ANC government’s court. Only time will tell whether it will try to circumvent the judgment with cosmetic changes to the existing legislation or whether it has also realised that corruption — whether committed by an ANC leader, a white businessman or someone who has donated pots of money to the governing party — disproportionally disadvantages the poor and will, if not checked, fatally undermine the credibility and legitimacy of the ANC government.

On selling arms to the Brother Leader Gaddafi

Feb 27th, 2011
by Pierre De Vos.
56 comments

Muammar al-Gaddafi is clearly an unhinged, narcissistic, megalomaniac. The fact that he looks like a very scary, aged, version of Michael Jackson might be interesting and (for those of us not living in Libya) rather amusing, but the fact that he could appear on television this week and state that anyone who lifted their arm against the regime would be executed (those would be all you “rats” and “cats” who have had a cup of drugged Nescafe and was therefore acting as agents of both Western imperialist and al-Queda forces) suggest just what a thoroughly evil and unhinged man he is. He might have been generous to the ANC (and according to completely unconfirmed rumours, to President Jacob Zuma personally),  but that does not mean that he is not a very bad and dangerous man.

In its 2010 report on human rights abuses in Libya, Amnesty International concluded that despite some reforms the Libyan government continued to be involved in the systematic violation of the human rights of its citizens. It stated that freedom of expression, association and assembly continued to be severely curtailed and that the authorities showed little tolerance of dissent.

Critics of the government’s human rights record were punished. Former detainees at Guantánamo Bay returned to Libya by US authorities continued to be detained; one died in custody, apparently as a result of suicide. Foreign nationals suspected of being in the country irregularly, including refugees and asylum-seekers, were detained and ill-treated. An official investigation began into the killing of prisoners at Abu Salim Prison in 1996 but no details were disclosed and some of the victims’ relatives who had campaigned for the truth were arrested. Hundreds of cases of enforced disappearance and other serious human rights violations committed in the 1970s, 1980s and 1990s remained unresolved, and the Internal Security Agency (ISA), implicated in those violations, continued to operate with impunity.

Human Rights Watch also found that in 2010 the Libyan government continued to imprison individuals for criticising the country’s political system or its leader, Muammar al-Gaddafi, and that it maintained harsh restrictions on freedom of assembly and expression, including penal code provisions that criminalise “insulting public officials.” The Human Rights Watch also criticised the security forces for its violation of international human rights law.

Last year the South African National Conventional Arms Control Committee (NCACC) authorised arms trade between South African companies operating in defence-related industry and the Republic of Libya. The NCACC can only authorise such a sale if the requirements of section 15 of the National Conventional Arms Control Act  41 of 2002 are complied with.

Section 15 of this Act states, inter alia, that when considering applications for the sale of arms to other governments the Committee must “avoid contributing to internal repression, including the systematic violation or suppression of human rights and fundamental freedoms”; and must “avoid transfers of conventional arms to governments that systematically violate or suppress human rights and fundamental freedoms”. The NCACC must also consider various other factors not relevant to the current sale of arms to Libya.

On the face of the available evidence, it therefore seems as if the NCACC unlawfully authorised the sale of South African manufactured arms to the clearly unhinged Libyan dictator — who happened to have donated a lot of money to the ANC in the past. This is the kind of thing that one obviously expects from the United Kingdom or the USA governments who put profit above principle no matter what, but which our progressive ANC-led government outlawed in 2002.

As the NCACC is legally required not to authorise the sale of arms to a government that systematically violates the human rights of its citizens, one might wonder why they agreed to the sale of arms to Libya. The NCACC consists of “such Ministers and Deputy Ministers as the President may appoint” and such other persons as the President deems necessary. The NCACC is headed by the Minister of Justice, Jeff Radebe.

By far the most plausible — but obviously not sustainable — justification for the sale of arms to the Libyan government would be that the Libyan government actually did not systematically violate the human rights and freedoms of its citizens. The facts obviously demonstrate that such an argument would be close to laughable but that would have been the only plausible argument open to the South African government to justify the sale of arms to the Libyan dictator.

One imagines that another argument that some untalented and not very bright hack (like the state law advisor) might come up with to try and excuse the inexcusable would be that although section 15 is phrased in peremptory terms, the section is headed “guiding principles and criteria” and therefore that the various injunctions contained in section 15 did not have to be obeyed by the NCACC. But the use of the word “must” as well as the use of the word “and” in the second last subsection makes it clear that every single requirement mentioned in section 15 had to be adhered to. Unless one has a rather shocking lack of knowledge about how to read the provisions of an Act the content of section 15 is pretty clear.

Unfortunately it does not seem to be clear at all to Minister Jeff Radebe. Maybe the Minister decided that it would not be good for his image to claim that certain facts existed when they clearly did not. After all, this might have made him appear only slightly less unhinged than Muammar al-Gaddafi and his sons in various speeches and interviews over the past few days. The Minister therefore had to find another interpretation of the applicable law to justify what, to me, seems unjustifiable. In justifying the sale of arms to the Libyan government Minister Radebe stated that:

All decisions taken by the NCACC are preceded by investigations that are undertaken by the subcommittees established in terms of the Act. These subcommittees have a legal duty to report to and advise the NCACC on matters that relate to its business, including the arms trade. In this way we can confidently indicate that in all transactions that were undertaken and concluded with Libya, we had satisfied ourselves, through a meticulous process, that there was compliance with the guiding principles and the criteria laid down in our law. As we have said in the past, in making decisions the NCACC considers in aggregate, all principles reflected in our legislation. No single principle is considered in isolation of the others.

At the time when the transaction was concluded with Libya, there was no evidence available to the effect that there would be any political unrest in that country; this extends to the region (North Africa and parts of the Middle East). Similarly, there was no evidence that if political instability were to occur, that it would turn out violent in Libya or in any of the countries with which arms trade had been concluded. Some in the media or through the use of media as a platform have been quick to conclude that the deaths that have been reported in Libya during the period of political unrest have a direct link with the arms sold by the South African companies to Libya. There is no evidence available to back up such a claim.

This answer suggests that the Minister is either unfit for the office he holds as he lacks the basic ability to grasp a pretty clear and unambiguous instruction contained in the relevant piece of legislation, or that he and his Committee have deliberately flouted the law and is now trying to mislead the public about this matter.

Section 15 does not allow the Committee holistically to take into account all the factors set out in section 15 and then to make an overall assessment of whether, on balance, it would be advisable to sell arms to the country concerned. The statement by the Minister that no single principle should be considered in isolation of the others when considering whether arms should be sold to a foreign government is therefore clearly and even embarrassingly wrong.

When an act orders that our government must avoid selling arms to a government that systematically suppress human rights and freedoms there is not really room for manoeuvre. Minister Radebe seems to want to interpret the word “must” to mean “need not” — a mistake no person with even a passing knowledge of English and a modicum of integrity would ever make.

Minister Radebe is correct that section 15 instructs the NCACC not to sell arms to a government likely to use arms to suppress political unrest in that country and that it could not have been foreseen that the Libyan government would start massacring its own citizens this year. (After all, since the Libyan government was systematically suppressing the human rights of its citizens one would not have been able to predict that an uprising this year would have threatened the very existence of the regime and that the regime would have started to murder its citizens – regimes who deny their citizens basic human rights are often quite stable.)

But section 15 of the Act requires the NCACC to do far more than predicting whether arms would be used against the citizens of a country to whom we sell arms. The Act Requires that South Africa MUST avoid selling arms to a government that systematically suppress human rights — regardless of whether this will include the use of arms to murder their own citizens or not.

Now, there was no international arms embargo against Libya when South Africa sold that regime the arms under discussion. If the National Conventional Arms Control Act did not prohibit the government from selling arms to governments who are serial human rights abusers there would have been nothing illegal with the sale. But that is not currently the law in South Africa. The fact that the Minister can claim that our law states something that it clearly does not, is rather astonishing.

But I guess that is what happens if the political party one belongs to receive a large donation from a nasty, authoritarian and completely unhinged dictator: one sells arms to that dictator in flagrant violation of the laws one has passed oneself and then pretends that the law does not state what it actually does state.

Who is scared of the Princess (and her disbarred sidekick)?

Feb 9th, 2011
by Pierre De Vos.
24 comments

Over at Politicsweb the following exchange of letters were published today. Maybe I am wrong, but it seems to me it provides a very strong indication that the Inspector General of Intelligence is incapable or unwilling to do her job as required by the law. I print the letters here without further comment. (After all, I would not want to be called a pervert again by Mr Paul Ngobeni, that guy who is a fugitive from justice in the USA and seems to know more about US than South African Constitutional Law.)

Text of exchange between DA MP and IG of intelligence on Paul Ngobeni matter

Letter from David Maynier, MP, to Advocate Faith Radebe, Inspector General of Intelligence, January 31 2011:

Advocate FD Radebe
The Inspector General of Intelligence
P0 Box 1175
Menlyn Park
Pretoria
0077

Dear Advocate Radebe

COMPLAINT CONCERNING PAUL NGOBENI, SPECIAL ADVISER TO THE MINISTER
OF DEFENCE AND MILITARY VETERANS LINDIWE SISULU, IN RESPECT OF HIS
SECURITY CLEARANCE

I am writing to request a progress report on the investigation into the security clearance of Paul Ngobeni, Special Adviser t the Minister Of Defence and Military Veterans, Lindiwe
Sisulu.

I was in contact with your office personally on 07 December 2010, 10 December 2010 and 14 December 2010 to make enquiries about the investigation into Mr Paul Ngobeni. I was promised, on each occasion, that a Mr Mpo Tshabaleng, if I recall correctly, would be in contact with me. However, he did not bother to respond.

I am now fed up with your office and am considering calling on Mr Cecil Burgess, Chairperson of the Joint Standing Committee on Intelligence, to convene an open meeting of the committee for you to provide a progress report in respect of the investigation into Mr Paul Ngobeni.

This will be an ideal opportunity for you to explain, not only the dysfunction in your office, but also the reason the investigation has dragged on for more than a year without any end in sight.
I hope this matter can be resolved and that you will provide me with a progress report as a matter of urgency.

Should you have any queries, please do not hesitate to call me on (021) 403 3337 or 0715346398.

Yours sincerely,

DAVID MAYNIER MP

cc. Mr Cecil Burgess MP, Chairperson of the Joint Standing Committee on Intelligence Mr Theo Coetzee MP, Member of the Joint Standing Committee on Intelligence; and Mr Dirk Stubbe MP, Member of the Joint Standing Committee on Intelligence.

Letter from Advocate Faith Radebe, Inspector General of Intelligence, to David Maynier, MP, February 1 2011:

CONFIDENTIAL

1 February 2011

Mr David Maynier (MP)
DA Shadow Minister of Defence and Military Veterans
P0 Box 15
Cape Town
8000

Dear Mr Maynier

Complaint Concerning appointment of Mr Paul Ngobeni

Your letter dated 31 January 2011 was received by us via facsimile transmission on the 1 February 2011. The belligerent tone of the letter is noted with dismay. We however refrain from responding to the language therein used in the interest of professionalism.

Kindly be advised that after thorough consideration of your aforesaid complaint it has come to our attention that your complaint in the main pertains to the alleged action by the Minister of Defence and Military Veterans.
We are mandated in terms of Section 7(7) of the Intelligence Services Oversight Act 40 of 1994 (hereinafter referred to as the Act) to:

Monitor compliance by any of the designated Intelligence Services with the Constitution applicable laws and relevant policies on intelligence and counterintelligence.
To review the intelligence and counter-intelligence activities of the designated Services.
To perform all functions designated o us by the President or any Ministers responsible for each of the Services.
To receive and investigate complaints from members of the public and members of the Intelligence Services on alleged maladministration abuse of power, transgressions of the Constitution, laws and policies on intelligence and counterintelligence, the commission of certain offences in terms of the Prevention and Combating of Corrupt Practices Act, 2004, improper enrichment of any person through an act or omission of any member.

Upon consideration of your complaint, we are of the view that your aforesaid complaint is not against the actions of a Service as contemplated in the aforesaid Act but rather against the aforesaid Minister.

We are accordingly not mandated by the aforesaid Act to investigate your complaint against the aforesaid Minister.

We thank you for having made your enquiry and regret that we are unable to assist with your complaint against the Minister concerned.

Yours sincerely

Ambassador Adv FD Radebe
INSPECTOR-GENERAL OF INTELLIGENCE
Copy to; Adv Cecil Burgess (MP), Chairperson of the Joint Standing Committee on Intelligence

Letter from David Maynier, MP, to Advocate Faith Radebe, Inspector General of Intelligence, February 4 2011:

Advocate ED Radebe
The Inspector General of Intelligence
PC Box 1175
Menlyn Park
Pretoria
0077

Dear Advocate Radebe

COMPLAINT CONCERNING PAUL NGOBENI, SPECIAL ADVISER TO THE MINISTER OF DEFENCE AND MILITARY VETERANS, LINDIWE SISULU, RELATING TO HIS SECURITY CLEARANCE
Thank you for your letter, dated 01 February 2011 concerning your investigation into my compliant concerning the securfty clearance of Mr Paul Ngobeni, Special Adviser to the Minister of Defence and Military Veterans, Lindiwe Sisulu.

It is astonishing that, after more than twelve•months, you have chosen to misconstrue my complaint, and on that basis conclude that in terms of Section 7 (7) of the Intelligence Oversight Act (No. 40 of 1994) you do not have a mandate to investigate this matter.

The complaint clearly concerns the conduct of the intelligence services in providing a security clearance to Mr Paul Ngobeni, who is a Special Adviser to the Minister of Defence and Military Veterans.

My original complaint, dated 11 December 2009, stated very clearly that my request was for your office to “investigate whether the NIA [National Intelligence Agency] erred in any way in providing a security clearance to Special Adviser in the Ministry of Defence and Military Veterans Paul Ngobeni”.

My complaint was repeated in a letter dated 19 July 2010 which very clearly requested your office to “investigate my complaint and determine whether the NIA (or any other intelligence service) erred in any way in providing a security clearance to Special Adviser in the Ministry of Defence and Military Veterans Paul Ngobeni”.

How then can you possibly conclude that my complaint “pertains to the alleged action by the minister”, “is not against the actions of a service” or that it amounted to a request to investigate a “complaint against the [aforesaid] minister”?

A logical consideration of the facts shows this conclusion to be entirely erroneous.

Moreover, your claim that your office is “not mandated” to investigate my complaint is made all the more mysterious by the fact that, some months ago, your office was mandated to investigate my complaint, which is evidenced by the fact that your office has already begun an investigation into Paul Ngobeni.

In a letter, dated 31 August 2010, you advised me that your office had made enquiries and concluded that:

“The SSA’s [State Security Agency] Domestic Branch has indicated that the Security Clearance Investigations on Mr Paul Ngobeni the Special Adviser to the Honourable Minister of Defence and Military Veteran, was not conducted’.

In my reply, dated 06 September 20010, I then requested you to continue your investigation in order to:

“…determine whether Paul Ngobeni received a security clearance from an intelligence service other than the State Security Agency … and if this proved to be the case … whether that intelligence service erred in any way in providing the security clearance and whether there was a breach of any legislation, regulations or policy”.

Once again, the request for your office to complete the investigation was clearly focused on the conduct of the intelligence services.

Considering this, how could you draw any other conclusion than that my complaint was clearly directed at the conduct of the intelligence services in providing a security clearance to Mr Paul Ngobeni, and that it is therefore covered by the mandate set out in Section 7 (7) of the Intelligence Services Oversight Act (No. 40 of 1994) which includes investigating:

“… complaints from members of the public and members of the intelligence services on alleged maladministration, abuse of power, transgressions of the constitution, laws and policies on intelligence and counter-intelligence.”

One can only surmise that you have misconstrued my complaint in an effort to extricate your office from completing this investigation.

I would therefore urge you to dispel this notion and complete your investigation as a matter of urgency.

The matters we need investigated include:

whether Mr Paul Ngobeni received a security clearance;
if so, which intelligence service vetted Mr Paul Ngobeni; and
in doing so, whether the respective intelligence service erred in any way in providing the security clearance and whether there was a breach of any legislation, regulations or policy.
Ultimately, the public need to know how it was that our intelligence services provided a security clearance to Mr Paul Ngobeni who is reportedly a fugitive from justice in the United States.

Yours sincerely,

DAVID MAYNIER MP
DA SHADOW MINISTER OF DEFENCE AND MILITARY VETERANS

cc. Cecil Burgess MP, Chairperson of the Joint Standing Committee on Intelligence; Theo Coetzee MP, Member of the Joint Sta

Minister and her advisors must calm down

Jan 17th, 2011
by Pierre De Vos.
21 comments

No country can tolerate mutiny or insurrection by soldiers of its armed forces or patent ill discipline by members of the armed forces. Neither can any constitutional democracy tolerate unlawful behaviour by members of the executive. Where soldiers disobey orders and threaten national security the relevant authority would have every right to terminate the services of such a soldier – in extreme cases even without giving them a fair hearing. But the Minister will only be entitled to do so if he or she is authorised by the Constitution or ordinary legislation to do so.

The question is whether the Defence Act of 2002 does indeed give our Minister of Defence that right and if it does, what limits it places on her power to exercise that right. Are soldier of the SANDF entitled to the right to a fair labour practice set out in section 23 of the Bill of Rights – even when they have allegedly broken the law – or does legislation allow the Minister to fire them without such a hearing?

These questions arose after soldiers staged a chaotic march to the Union Buildings which turned violent and the Minister subsequently decided to dismiss soldiers she claimed had been identified as having taken part in the march without giving them a fair hearing. The North Gauteng High Court found that these summary dismissals were not justified by the law, which irked the Minister of Defence. Interestingly, instead of appealing this judgment, she is now bringing an application in terms of Rule 42 of the Uniform Rules which provides that the court who issued an order may rescind or vary “an order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission”.

The Minister’s legal advisor – in an affidavit submitted to the Court – claims this error or omission stems from the fact that the judge stated that:

it was never at any stage, communicated to the applicants in any way whatsoever how the march organised by SANDU posed a risk to national security to such an extent that it caused the respondent to adopt the novel approach to address the problem. There is no explanation to justify the procedure that had been adopted by the respondents or reasons set out why the principles of natural justice and procedural fairness could not be applied in the particular circumstances….The Court could not find any reference in the respondents’ papers as to how national security was threatened by the conduct of the members.

The affidavit alleges in a somewhat confusing and less than convincing manner that the papers had indeed shown how nationals security had been threatened. Maybe the papers are just badly drafted. I have not seen the original papers submitted to the High Court so it is impossible to know whether legal advisors to the SANDF did indeed provide evidence to the High Court that the national security of the country was threatened by the conduct of the soldiers. I am also not a procedural lawyer, so I can therefore not comment on the plausibility of this application.

However, the affidavit does contain curious passages which suggest that the person or persons (?) who drafted it are either not familiar with the South African Constitution or are wilfully trying to mislead the Court.

First, the founding affidavit seems to lack any appreciation of the Rule of Law and does not seem to show a sufficient appreciation of what the supremacy of the Constitution entails. It claims unfettered powers for the executive in the realm of national security and claims that Courts can never review decisions of a Minister if that Minister claims that national security is at stake. But our Constitutional Court has made it clear that in principle all action by the executive is reviewable by our courts and if the executive fails to act in accordance with the Constitution or ordinary legislation, such action can be declared invalid by the courts.

In one of the most famous earlier cases, the Constitutional Court in President of the Republic of South Africa v Hugo found that any action by the President may be reviewable to determine whether it is inconstant with the Constitution. The line of SARFU cases confirmed that the President had to comply with the requirements of legislation which authorised him to act. The same obviously applies to the Minister of Defence.

However, in attacking the judgment by the North Gauteng High Court the affidavit on behalf of the Minister — under the name of Barnabas Xulu – seems to claim that South African Courts cannot in any way be involved in reviewing the decision of the Minister of Defence as long as she claims that national security had been at stake.

The argument seems to be that where the Constitution or ordinary legislation allows the Minister to fire soldiers if national security had been threatened, she would be entitled to do so if she had decided that national security had indeed been threatened and no court could ever intervene or review such a decision to determine whether national security had indeed been threatened or whether the Minister had merely pretended that it was threatened to justify the infringement of individual’s rights (perhaps for another or an ulterior purpose). It states:

It is abundantly clear that the Courts are not granted roving missions or the unbridled power to define national security for the Presidency or the Ministers responsible for the defence of this country. Those powers are reserved exclusively for parliament and the national executive. It is just plainly wrong for the Court to purport to tell the political branches of government how to define national security and what measures would be deemed appropriate to deal with grave threats to national security and mutiny. In this case, Judge Pretorius not only belittled the Chief of the SANDF’s legitimate fears about risks to the security of the state but she went further to tell the executive how risks to national security must be handled. The Court even went so far as to suggest that the “harm to national security could have been addressed by suspending the members pending an investigation”.

In a constitutional democracy based on the Rule of Law, this contention is utterly untenable. While our Courts will probably give a relatively wide margin of discretion to the Minister of Defence (or to the President) to determine when national security had been threatened, this discretion will never be unlimited. Where the Minister uses this discretion drastically to interfere with the rights guaranteed in the Bill of Rights (as happened in this case) the Minister would have to provide some evidence (which is not the same as bold assertions not backed up by some proof) that national security had been threatened to demonstrate that her conclusion was at least rational (but perhaps reasonable).

To hold otherwise would be to give the Minister absolute power to infringe on the rights of citizens even in cases where on the facts it would be impossible for any person to come to the conclusion that national security had indeed been threatened. This would be lawlessness masquerading as a concern for national security. (I am not claiming that this was indeed the case here. As I had not seen the original submissions on behalf of the Minister I have formed no opinion on whether the chaos that resulted from the march by soldiers to the union buildings could plausibly be said to have threatened national security.)

This claim that the actions of the Minister of Defence is completely exempt from judicial review in any case in which she claims national security is at stake (even if this claim is utterly irrational or bogus) is a preposterous one. It cannot be squared with constitutional governance in a democracy in which supremacy of the Constitution (not of Parliament or the Executive) is entrenched. Neither can it be squared with respect for the Rule of Law.

Second, the affidavit also contains a curious mistake (or perhaps it is a misrepresentation). It argues that the High Court should have taken into account various precedent from the United States Supreme Court. Now, strategically, this is not a wise move as anyone who is familiar with the jurisprudence of the South African Constitutional Court would know that US Supreme Court precedent is seldom followed by our highest court. But that is not the real problem. In making the case for the application of US Supreme Court precedent, the affidavit correctly states that section 39 of the Constitution states that “when interpreting the Bill of Rights, a court… must consider international law”. Our Courts have found that this does not mean that it has to follow international law, merely that it has to consider it.

But the curious thing is, the affidavit conflates international law (the law that governs relations between states, which our courts must consider) and foreign law (the law developed by foreign domestic courts like the US Supreme Court), which section 39 of our Bill of Rights states our courts may consider when interpreting the Bill of Rights. The drafters of this affidavit are either unaware of the difference between international law and foreign domestic law (a first year law student mistake which would be shocking for a legal advisor to a Minister to make), or they are trying to mislead the Court.

Our Courts have no constitutional duty to consider the precedent of the US Supreme Court as suggested by this affidavit. It may do so if it chooses to, but that is another matter altogether. The fact that an affidavit prepared on behalf of the Minister of Defence cannot even correctly distinguish between international law and foreign domestic law is rather worrying. One wonders if all other assertions in the affidavit are correct or whether there might not be some other misleading passages.

Now this is a complex and interesting case. Clearly firing soldiers without giving them a hearing limits their rights. This can only be done by a law of general application. But nothing in the Defence Act or its regulations explicitly limits the rights of soldiers in this way — although some of the regulations could, at a stretch, perhaps be read as implying such a limitation because it gives the Minister the right to fire them without saying anything about the requirements of a fair hearing.

Our Courts have argued that where rights are to be limited by legislation (or regulations) this must usually be done explicitly. If the courts find that the law as it stands does not allow the MInister to fire soldiers without giving them a hearing in extreme case where national security is indeed threatened by such soldiers, then Parliament may of course intervene and amend the law.

This would be in line with the idea — mooted by Chief Justice Sandile Ngcobo at a lecture last year at the University of Stellenbosch on the separation of powers — that there is a continual dialogue between the legislature, the executive and the judiciary. Our Parliament may respond to a judgment by the courts to try and rectify a loophole in the law — as long as it does not limit the rights of individuals in a way that cannot be justified by the limitation clause. But then the Courts can review that law if asked to do so to check that that the limitation on the rights of soldiers are indeed constitutionally justifiable.

To claim, as the Minister’s legal advisor seems to do in this affidavit, that courts have no right to review the actions of a Minister or legislation passed by Parliament if it relates to “national security” is of course a disgraceful and subversive affront to the idea of a constitutional democracy based on the supremacy of the Constitution. Even the Minister of Defence is subject to the law and the Constitution – even when she claims to be acting out of concern for the national security of the state.

I have changed my mind slightly on this case. Given the important issues at stake it is a good thing that this issue will eventually be decided by our Constitutional Court. But unfortunately it seems as if the ego’s of those involved in the case have gotten the better of them, which have led them to litigate the case in a manner that is not in the best interest of the Minister or of the country. Maybe it is time that the Minister and her advisors take a deep breath and calm down (and perhaps also obtain the services of a bona fide constitutional lawyer) so that they can present the best possible case to the Constitutional Court devoid of the emotional and incendiary rhetoric that is characterising their approach at this point.

This latter approach will be in the best interest not only of the Minister and the government, but also of the country and its citizens.

The Princess and the moon

Aug 3rd, 2010
by Pierre De Vos.
76 comments

One can learn a lot from reading the legal opinions provided to Ministers. This week I learnt a new word - longiloquent (meaning long-winded) – by reading a legal opinion provided to Lindiwe Sisulu, who is the Minister of Defence and is also known as The Princess.

I also learnt that when Ministers account to Parliament they are members of the executive fulfilling a constitutional function and that, when they do this, they are therefore not really “persons” bound by the Constitution at all. No wonder The Princess has been looking a bit otherworldly lately: according to her legal advisor, as Minister of Defence she has ceased being a person at all and has instead become some otherworldly creature who is not bound by the Constitution. (Sadly, the legal opinion is silent about whether the Minister only stops being a person when it is full moon or when she consults with her advisors.)

Wonderful stuff, this. I wonder if the legal advisor responsible for this fantastic piece of fiction has ever considered writing movie scripts for Hollywood. I suspect he or she (but probably “he” because the legal opinion is couched in the aggressive and haughty prose I associate with deeply wounded and angry men) would be great at writing movie scripts.

The legal opinion was written to justify the refusal of The Princess to account to Parliament as she is obliged to do in terms of the Constitution. The Defence Committee wants the Minister to produce two “interim reports” that she had commissioned about the state of the military. She has already acted on some of the recommendations contained in these reports, but for some bizarre reason (pride? something to hide?) she is refusing to provide the reports to the National Assembly committee.

Section 56 of the Constitution is pretty clear on this point as it states (in the wonderful plain language used throughout most of the Constitution) that the “National Assembly or any of its committees” may:

  1. summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
  2. require any person or institution to report to it;
  3. compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b);

Section 55, read with section 92 of the Constitution, also makes clear that any Minister is accountable to the National Assembly and that the National Assembly has a constitutional duty to exercise oversight over the work of a Minister. Members of the cabinet are accountable to Parliament collectively (which means they are accountable for decisions taken by the cabinet as an institution) and individually (meaning they are accountable to Parliament for decisions and actions they have taken themselves) “for the exercise of their powers and the performance of their functions”.

So when the Minister makes a decision as the Minister – whether it is full moon or not – (say by commissioning a report or adjusting the pay scales of soldiers) or fulfils her duties (by reading the report and proposing ways of dealing with its recommendations), the Minister is accountable to Parliament for this. In order for the National Assembly to fulfil its accountability and oversight function, it can rely on section 56 to obtain any information from the Minister regarding the management of her portfolio.

The piece of fiction prepared by the Minister’s legal advisor holds differently though. The “legal opinion” argues that because the “interim reports” had not yet been considered by cabinet (although they had been considered by the Minister and acted upon by her) they do not concern matters under her control. So, not only is the Minister not a person when she is a Minister, she is also a creature that can act on a report which she herself has commissioned without that report being under her control or without her performing any function as a Minister.

This is a miracle!

Besides, the argument (such as it is) ignores the fact that the Minister is not only collectively accountable to Parliament, but also individually accountable for her actions. So, while the Minister is not accountable to Parliament when she acts in her personal capacity (by having her hair done, say, or attending a wedding), she is individually accountable for what happens in her department and for decisions taken by her as Minister. She consequently has a constitutional duty to provide the National Assembly with the information it requires to help it exercise its oversight over the Minister’s actions as an individual Minister. Whether the cabinet has considered the report on which the Minister has already acted is therefore completely irrelevant.

The piece of legal fiction masquerading as a legal opinion also states that section 56 of the Constitution (mentioned above):

does not mean that ministers may be forced to produce documents will-nilly (sic). Any portfolio committee foolish enough to issue a summons to a minister on a matter pending before cabinet or the executive will be met with an iron-clad claim of executive privilege. Generally speaking, ministers take an oath to respect confidentiality of certain matters serving before cabinet. Until a matter has been discussed by cabinet and government position has been formulated, cabinet deliberations and candid and confidential matters before cabinet cannot be disclosed to parliamentary committees or anyone else.

God forbid that Ministers must willy-nilly provide information to Parliament. What next – will Parliament actually demand that Ministers come and talk to it? What an outrage! Who do these bloody Parliamentarians think they are? One would not be surprised if they think we live in a democracy and that Ministers are not Royalty who are above the law!

I suspect the person who wrote this document might not have been trained in South Africa, hence his or her reliance on the American concept of “executive privilege”, which does not exist in our law and is not mentioned in our Constitution. (Dick Cheney loved executive privilege and often used it to try and stop the US Congress from holding him to account.) Details about discussions that occur in the cabinet are of course confidential and Ministers should not divulge what was discussed in cabinet. Once a decision is made by cabinet, Ministers must defend those decisions and should not divulge information about the discussions that led to the decision. If they cannot defend the cabinet decision, they should resign or shut up.

Reports commissioned by the Minister (and already acted on by her) are obviously not covered by this rule because a report is not a cabinet discussion. Cabinet considers reports and pieces of legislation all the time and most of these reports or draft Bills are in the public domain before they are discussed by cabinet. The reports are public, but the discussions about the reports in cabinet are not.

There is a difference - even when the reports were commissioned by a Minister who is not a person and even when it is not full moon. The Parliamentary Committee is not asking the Minister to divulge secrets about what happened at cabinet discussions. They are asking for reports (already leaked to newspapers) commissioned by the Minister and acted upon by her. Whether these  reports will later be tabled at cabinet is irrelevant.

The interpretation of the Minister’s legal advisor would thwart the very essence of accountable government as any Minister who wished to hide something from Parliament would merely say that a matter had not been discussed yet by cabinet so it was protected by “executive privilege”. So, a Minister might be asked whether he had stayed in five star hotels for six months and he would respond that the issue had not yet been discussed by the cabinet so he is not allowed to say whether he stayed there and what it might have cost if he did. This is so absurd that, once again, it is the kind of fiction that bad Hollywood movies are made of.

In the end the issues here are not very difficult – despite the longiloquence (ha, there, I have used the word!) of the Ministers legal advisor. There are reports. The Minister commissioned them. She then acted on some of the recommendations in the reports. Parliament is asking for copies as they are entitled to do by the Constitution. The Minister is refusing to give Parliament what it wanst and what it is constitutionally entitled to. The Minister, with the support of her legal advisor, is thus unlawfully refusing to provide the reports as she is required to do by the Constitution.

Now, I do wonder who this legal advisor of the Minister might be. He or she sure is entertaining and longiloquent. Pity about the fact that he or she shows such a disdain for the Constitution and for our democratically elected Parliament.

On lies, self-defense and Israeli impunity

Jun 1st, 2010
by Pierre De Vos.
112 comments

During the apartheid era all South Africans – even white South Africans – who possessed even an iota of scepticism and common sense, became all too familiar with the lies and propaganda of the apartheid state. When an anti-apartheid activist died after being tortured and then murdered by security police members, we were told in a solemn voice by by Cliff Saunders – the National Party propagandist who pretended to be an SABC journalist – that the victim had “slipped on a banana peel” or had been killed after slipping on soap in the shower or had mysteriously managed to jump through a small window from the eighteenth floor of John Vorster Square.

This, Cliff Saunders would assure us, was done by the now dead “terrorist” as part of a devious plot to try and embarrass the National Party government by trying to implicate “our security forces” when all they did was to invite the terrorist for cake and tea and to ask him or her a few questions.

Nelson Mandela was described as “a self-confessed communist and terrorist”, white opposition leaders like Frederik Van Zyl Slabbert who wanted to talk to the ANC were described as Stalin’s  ”useful idiots” doing the bidding of “terrorists agitators” and reports that South Africa had invaded Angola (which were all true) were dismissed as the lies of the terrorist propaganda machine and disinformation fabricated in Moscow.

And when South African army commando’s attacked safe houses in neighbouring states (killing scores of women and children) we were told of this “great victory” for the security forces (as if killing of ten women and children in cold blood could be described as a victory by anyone except the most deranged person) and assured that the “security operation” had been legal in terms of international law because of the (non-existent) international law principle of “pre-emptive hot pursuit”. This term is as well known and well-regarded in international law as that of “enemy combatants” – in other words it is a creation of a rogue state trying to justify its illegal criminal actions.

So, I was not surprised when I read this morning that Israel is justifying its assault on a flotilla of relief boats in international waters on the basis that this was necessary to protect the sovereignty of that state and to protect its citizens from attack. Armed commandos boarded the vessel, which were carrying supplies for a besieged civilian population in Gaza, and killed more than 10 peace activists on board after some activists reportedly resisted the unprovoked attack. They then illegally arrested all the activists and detained the ships.

Israel immediately imposed a communications blackout on the detained activists – some were taken by bus to Beersheva prison in the south of Israel – while simultaneously launching a sophisticated public relations operation to ensure its version of events was dominant. In this version put out by various Israeli spokespersons, the Israeli soldiers who had illegally stormed the ships and were armed with machine guns were the victims of a vicious attack by violent terrorists armed with sticks and even knives.

This ludicrous assertion beggars belief, but because the media needs to be”fair and even handed”, many media outlets are treating this version as credible and morally defensible. It would be equivalent to the media reporting as perfectly credible and morally defensible a claim by Al-Qaeda that their fighters who hijacked flight 253 on September 11 and were intending to crash the plane into the White House were the innocent victims of a group of vicious infidels who had stormed the cockpit of flight 253 with all kinds of weapons, including baseball bats.

In terms of the Convention on the Laws of the Sea a state is never ever allowed to interfere with a ship in international waters.

Section 87 of that Convention states that ”the high seas are open to all States, whether coastal or land-locked” and comprises, inter alia, freedom of navigation. To emphasise how clear this right is, article 95 states that “warships on the high seas have complete immunity from the jurisdiction of any State other than the State” to whom the ship belongs. Section 97(3) of the Convention states that “no arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities” other than those authorities under whose flag the ship is sailing.

Article 110 of the Convention is even more clear and states that ”except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship”  is not justified in boarding it “unless there is reasonable ground for suspecting that: the ship is engaged in piracy; the ship is engaged in the slave trade; the ship is engaged in unauthorized broadcasting: the ship is without nationality; or though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.”

Not even the Israeli’s are claiming that the flotilla ships involved in a humanitarian mission were engaged in the slave trade or were engaged in any of the other activities that would trigger the provisions of section 110 of the Convention.

In other words the actions by heavily armed Israeli forces who boarded the flotilla ships in international waters and then killed at least ten of the passengers was nothing less than an act of state sponsored terrorism in contravention of every rule of international law. The ships were on a humanitarian mission to deliver aid to the people of Gaza in order to alleviate the hardships in that territory which had been caused by the illegal blockade of Gaza by Israel.

To justify this outrageously unlawful action on the basis that the unlawful aggressors were attacked by passengers armed with sticks and knifes is beyond the pale and shows a complete disregard for international law. But as Justice Goldstone had long since discovered, the Israeli government believes it is above the law – much like the apartheid government who justified its unlawful invasion of neighbouring countries on the ground of its right to engage in “pre-emptive hot pursuit”.

Of course, defenders of Israel’s action (because as is the case with the DA and the ANC, some supporters of Israel will defend that government no matter what it does) will pretend this egregious breach of international law never occured or that it could be justified. But the murder of the 10 passengers cannot be legally justified – no matter how you spin it. The event is a human tragedy as wel as a public relations disaster for Israel. But it is more than that: it is a wake up call to remind us all that the government of Israel, who is presently dominated by far-right wing parties, is a deeply immoral one.

The South African government should expell the Israeli ambassador in protest and should recall the South African ambassador from Jerusalem. But I am, once again, not holding my breath because South Africa’s foreign policy has long since stopped pretending to be based on principles of human rights, respect for the rule of law or any other principle except cowardliness and naked self-interest. If the Israeli government were clever it would donate a few million Rand to the ANC (or to President Zuma’s private bank account) to ensure it remains that way.

Blue light bullies: often illegal

Apr 14th, 2010
by Pierre De Vos.
31 comments

Some people will defend the indefensible until they are literally blue in the face. Sadly our politicians seem to be particularly afflicted by the pathological inability to face facts and to admit that there is a problem – even when the problem is there for all to see. Instead they will argue that black is white and white is black and do so with all the conviction of Dick Cheney gloomily warning us that the supposed Weapons of Mass Destruction (WMD) in Iraq poses a grave threat to world peace.

No wonder then that KZN Transport MEC, Willies Mchunu, defended blue light bullies in the Provincial Legislature yesterday.

According to a report in The Witness he said allegations of a persistent abuse of power through the use of blue lights by ‘blue light bullies’ is false and misleading. He said provisions of the Road Traffic Act authorise police officials to exceed general speed limits and to disregard road traffic signs while acting in the execution of their duties.

The Act’s definitions, he said, are sufficiently broad to encompass police officers, provincial traffic officers and metro police officers. ‘… the point that needs to be made is that nowhere in the authorising legislation does it suggest that in order to disregard speed restrictions or road traffic signs, an emergency situation be in place as a precondition to exercising the authority by police officers.’

There are of course two problems with this kind of “reasoning”.

First, even if the Act allows traffic cops and members of the police to disregard the law at will, this would not make it acceptable. In a constitutional democracy based on the Rule of Law, we are all supposed to obey the law which should apply equally to all of us. Just because one happens to be an MEC or a Minister does not mean one is suddenly more important than the rest of us and thus entitled to break the law at will. If the law allows for this, the law is clearly wrong.

Arguing otherwise is like arguing that because it was legal in terms of the American Constitution to invade Iraq, it was fine for George W. Bush to order the invasion which led to the murder of hundreds of thousands of innocent Iraqi’s and the destruction of the homes of millions more. What is legal is not always right.

Second, while Mchunu is correct that the National Road Traffic Act of 1996 does not require the existence of an emergency situation before traffic cops and police officers can disregard the laws of the road, this does not mean that blue light bullies are legally entitled to drive at high speed and to ignore road signs (thus endangering the lives of other motorists) merely because some pathetic little politician with a Napoleon complex thinks he is better than the rest of us and is thus above the law.

The National Road Traffic Act of 1996 allows traffic cops and police officers to exceed the speed limit and to disobey road traffic signs while they are carrying out their duties. But the Act places important limits on traffic cops and police officers in this regard.

First, the Act states that a traffic cop or police officer who has to disobey the rules of the road to carry out their duties “shall drive the vehicle concerned with due regard to the safety of other traffic”. Where there is absolutely no emergency, blue light bullies therefore have no legal right to drive in such a way that it would endanger other road users. Where they do, they are exceeding their legal powers and should be arrested. If blue light bullies fail to have sufficient regard for the safety of other road users they are criminals and the politicians who condone this behaviour are complicit in the commissioning of a crime.

Second, traffic cops and police officers can only drive faster than the speed limit and disobey traffic signs if they are busy carrying out their duties. The provisions that authorise this kind of behaviour clearly subvert the principle of the Rule of Law, a founding value in the Constitution, because it attacks the notion that all of us are equal before the law. The provisions are therefore either unconstitutional or they will have to be given a restrictive meaning in order to bring them into conformity with the Constitution.

I would therefore argue that the impugned sections can only be valid if they are read to mean that traffic cops and police officers are allowed to disobey the speed limit and traffic signs if this is absolutely necessary for them to carry out their official tasks.

But neither the National Road Traffic Act, the South African Police Services Act or, as far as I am aware, any Act of Parliament confers a duty on traffic cops or police officers to drive around politicians from one meeting to the other. When traffic cops or police officers therefore drive politicians around in blue light convoys they would not usually be fulfilling a legal duty. The legal duty is not linked to the driving of the car as such - it is linked to the protection of the life of the VIP. The officer is therefore only allowed to break the rules of the road to protect the life and limb of the VIP – not merely to make sure he or she gets to a meeting on time.

While the law does confer on such officers the legal duty to protect VIP’s, they must stick to the rules of the road unless it is absolutely necessary to protect the life of a VIP (because the VIP is in grave danger of being assassinated, say). Driving an MEC from one meeting to another while that MEC’s life is not in danger, the police officer must stick to the rules of the road as there would be absolutely no need for the officer to break the law to protect the VIP. Merely driving around a VIP does not entitle anyone to break the rules of the road.

This means that most blue light convoys who charge down the highway at dangerous speeds are illegal. Those blue light bullies should all be arrested and thrown in jail as they have absolutely no legal authority to break the law, merely because they are driving around some self-important twit who happens to be a politician.

Sadly Mr Mchunu’s defense of blue light bullies suggests that he is a prime example of such a self-important twit. Although he will probably not be arrested for giving illegal instructions to his driver to break the law, he should. In the meantime we should all continue to mock and ridicule people like Mr Muchunu who is making up for a lack of self-respect by insisting that they are above the law.

Minister Sisulu and the US judicial system

Mar 19th, 2010
by Pierre De Vos.
46 comments

Maybe one’s view of the US criminal justice system is wrong. Having lived in the US for a while, I have always had the idea that US authorities take crime rather seriously and are rather ruthless and persistent in trying to prosecute criminal suspects. While they are not nearly as efficient in running the country as star-struck pro-Americans might think, the judiciary and the criminal justice system always struck me as being pretty efficient (and sometimes nasty). (Maybe this is necessary, what with all the right wing nut cases running around with guns and blowing up tax offices.)

When I drove from Kansas City to Memphis I was terrified of being caught speeding or breaking the law in any other way because I was warned that I would be ticketed or prosecuted.

But according to Minister Lindiwe Sisulu, the information provided by the relevant authorities in the US regarding fugitives from justice cannot be trusted – at least not in the state of Connecticut. At a briefing yesterday she was asked about her special advisor Paul Ngobeni who is alleged to be a fugitive from US justice. She replied that:

Special advisor Dr. Paul Ngobeni is not a fugitive from law. I have received a letter from the leader of official opposition Mr Trollip who has enquired about what we are doing. I have asked him to furnish me with further information about his allegation Mr Paul Ngobeni is free to travel as and when he pleases. Should you furnish me – yourselves or Mr Trollip – with the necessary information I will act on it. The information we have at our disposal is information we have tested and we also base a lot of our assessment on the outcome of the investigation at the University of Cape Town (UCT) and the statement made by the vice counsellor of UCT. Should you have any information we are available but he is free to work in my office.

Having had some differences of opinion with Mr Ngobeni, just for a larkand because I had nothing better to do I went to the website of the judicial branch of the state of Connecticut and searched for information on the status of Mr Ngobeni’s various legal run-ins with that State. This is what I found:

NgobeniReArrestOrderedResizedNote, the website claims that Mr Ngobeni’s re-arrest has been ordered. If this is true, it would make him a fugitive from justice. It would also make the Minister’s statement untrue. But then again, we know the US system is notoriously corrupt and inefficient so maybe the website information is just plane wrong. At first glance the information does seem rather convincing. I wonder whether this information will suffice for the Minister to Act. I suspect it probably would not. Those Americans have invaded Iraq so who knows what other nonsense they will conjure up to smear the good name of the Minister’s personal advisor.

PS: For details of the various cases allegedly pending against Mr Ngobeni click here and type in his name in the search section.

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