Constitutional Hill

Rule of Law

Why the silence from good ANC members?

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

One of the gravest threats to a constitutional democracy in a one party-dominant system, is the conflation of the governing party with the state. Where this happens, the dominant political party begins to act as if it is the state and its officials begin to believe that they are above the law or that they can make up the laws as they go along without having to revert to Parliament. Leaders of the party and officials with close ties to the party begin to act according to the apocryphal (but probably wrong) statement attributed to King Louis XIV of France who is reported to have said  L’État, c’est moi” (“I am the State”).

Several events over the past week suggest that a worrying and deeply authoritarian belief is taking root amongst some ANC officials and among some members of the police that they ARE the state and thus have a right to do as they please – regardless of what the law actually empowers them to do. News that the Presidency issued an instruction banning all demonstrations around the Union Buildings without having the legal authority to do so is a case in point. The actions of President Jacob Zuma’s body guards, who intimidated photographers who had the temerity to take pictures of his car and of his house, while the bodyguards had no legal authority to do so, is another.

Then there is the scandalous story of Floyd Shivambu, who moonlights as spokesperson for the ANC Youth League when he is not acting as a mafia-style thug, trying to intimidate journalists to stop asking questions about Julius Malema’s various business interests, his tenderpreneurial wealth and his alleged failure to pay taxes. Shivambu has been distributing a document containing private details of journalists who have been investigating Malema in an attempt to intimidate them – much like a mafia boss would break a few fingers of a suspected informer to shut him up.

Given the fact that President Zuma’s rise to power was accompanied by serious (and credible) allegations that state institutions were misused by his predecessor to score political points against him, one would have thought that Zuma would be extra vigilant about the misuse of state institutions for private financial and political gain and about respect for the Rule of Law. Sadly, it has become apparent that complaints about the misuse of state institutions and the breaking of the law during the Mbeki era had little to do with principle and everything to do with the fact that the law was being misused by the other side.

Now we have Shivambu peddling private information about the bank account numbers and salaries of journalists – all because they dared to report honestly on the shady dealings of Malema. Where did Shivambu obtain this information? Did buddies in the police or intelligence services provide this information to him? If not, who broke the law to gather this private information on journalists? What about their right to privacy and dignity?

If the ANC had any principles it would immediately repudiate the ANC Youth League and Shivambu for peddling private information about South African citizens and take disciplinary action against Shivambu. After all, when the Sunday Times published the medical records of then Minister Manto Tshabalala-Msimang, the ANC was scandalized and shouted blue murder about the infringement of Tshabalala-Msimang’s right to privacy. If the ANC fails to take action, it would show at the very least, that it has one standard for its own leaders and another for the rest of us: THEY have rights, WE don’t.

I would be surprised if the ANC acts in a principled manner and takes action against the thugs employed as President Zuma’s bodyguards or against the mafia-style bullies in the ANC Youth League. Because some in the ANC conflate the party and the state, there is an inability to see what a serious threat these actions pose for our democracy. Once bodyguards, Youth League officials and members of the intelligence services and the police start acting as if they are above the law, we might as well abolish Parliament. Why have a Parliament, tasked with passing legislation, when that legislation is only applied to some and not to others?

Legislation strictly control the role of intelligence services in gathering and disseminating information on private citizens. Legislation also limit the power of police officers and bodyguards. There is a good reason for that. Once the intelligence services and the police become a law onto themselves, they will be used by powerful politicians to harass journalists and to investigate political opponents and media critics in order to undermine democracy and entrench their own power by subverting the willow the people.

When that happens, a population starts living in fear of its leaders and criticism of leaders becomes dangerous or even fatal. Leaders are then free to do what they want, to get as many crooked tenders and to steal as much money form the poor as the taxpayers can provide. The result is an end of democracy and the start of an authoritarian kleptocracy.

We are not there yet, but that is no reason for complacency. The thuggish behavior fundamentally undermines the authority of the democratic elected Parliament and the principle of the separation of powers which states that Parliament makes the laws and the executive implement the laws. We have not voted for the ANC Youth League. Neither have we voted for President Zuma’s bodyguards. We have voted for the 400 members of Parliament who must make the laws, laws which must be obeyed by everyone, whether one is the President, a presidential bodyguard or a member of the ANC Youth League.

What bothers me is that the good people in the ANC do not speak out about these tendencies. Only Cosatu makes noises about this, while Ministers and other ANC leaders remain silent. Everybody is too scared of Malema and the security services to say anything. When will the good people in the ANC speak out? How do they go to bed at night when they know that there are members in their organization who are undermining the very democracy for which we have fought?

On freedom of assembly

Mar 18th, 2010
by Pierre De Vos.
19 comments

One could say all is well that ends well. But news that the Presidency has distanced itself from an earlier missive which purported to ban all protests around the Union Buildings still leaves one with a worry about the Presidency’s commitment to free speech and concerns that it has an eccentric view about its own power.

The Presidency’s move comes in the wake of an urgent court challenge by Equal Education (EE) in the North Gauteng High Court. Equal Eduaction was upset because in a letter dated 24 November 2009, Mr Dumisani Mahlasela, Head: Public Participation and Public Relations, The Presidency, stated: “Mr Vusi Mavimbela, Director-General in The Presidency, has directed that all marches to the Union Buildings and the Presidency be suspended until further notice.”

There have been two responses from the Presidency: Firstly, The Presidency has issued a media statement saying: “The Presidency wishes to place on record that it has not instituted any ban on marches to the Union Buildings.” But this statement directly contradicts the letter of Mr Mahlasela referred to above. 

After the Court challenge The Presidency wrote a letter to EE saying: “I am happy to inform you that The Presidency has no objection to your march scheduled for March 26 at the Lawns.” (The ‘Lawns’ refers to the gardens below the Union Buildings.)

It appears that the Presidency has misconstrued its power in this regard, first denied the existence of a letter which shows that it did and then, when it was caught out, retracted. Better late than never, I guess. If one looks at the relevant legislation it is clear that the Presidency does not have the power to ban all marches to the Union Bulding.

The Regulations of gatherings Act of 1993, passed by the apartheid parliament, deals with protests at the Union Buildings. Section 7(1) states that  all demonstrations and gatherings are prohibited in certain areas of the Union Buildings immediately around the office of the President (but this does not include the lawns of the Union Buildings).

In other words, while demonstrations immediately around the Union Buildings are generally banned, demonstrations on the Lawns are not banned and must be dealt with by the relevant authorities.

However – and this is important – section  7(2) of that same Act states that the ban on demonstrations in the immediate vicinity of the Union Building is not absolute. One may apply to the Director-General: Office of the State President, who can grant permission for such a gathering.

The Act does not state when permission may be granted and when not. The Act was passed before the advent of the Constitution so its unclear whether this provisions is Constitutional as it may unjustifiably infringe on the right to freedom of assembly guaranteed in section 17 of the Constitution.

If it is Constitutional, it will have to be applied by the DG to conform to the Constitution and the DG will have to take into account the right of freedom of assembly when making a decision to grant permission for a gathering or not. This means that a blanket ban on all gatherings at all times at the Union Buildings – even hose in the vicinity of the President’s office – will probably be unconstitutional. Even in that limited sense the Presidency misconstrued its powers in this regard.

The DG will only be able to deny permission to gather when he or she has good reason to do so (for example, when he fears that the working of the government will be threatened or that violence will ensue if permission is granted for a gathering).

The fact that the Presidency wrote a letter in which it purported to ban all gatherings around the Union Buildings while it had no legal authority to do so, is worrying. In a country based on the Rule of Law the Presidency has a special duty to act in terms of the law and not to Act as if it is a law unto itself. Writing letters purporting to ban all demonstrations around the Union Buildings when it has no legal authority to do so, suggests the Presidency is not too familiar with these basic tenets of the Rule of Law.

It is to be welcomed that when it was challenged the Presidency immediately realized that it had acted outside the scope of its powers when it purported to ban all gatherings around the Union Buildings. The Union Buildings holds a symbolic place in our political landscape and the right to freedom of expression and the right to gather must surely include the right to demonstrate outside the Union Buildings – as long as the correct legal steps have been taken.

One does not want to see the chaos that erupted last year when soldiers marched to the Union Buildings, but the Gatherings Act allows for such contingencies and the relevant authorities – not the Presidency – may well refuse to grant permission for a demonstration if there are valid fears that violence might ensue. The last time I checked Equal Education is quite a peaceful organization, so their demonstration could not possibly be said to fall within this category.

What now for Shaik and De Kock?

Feb 23rd, 2010
by Pierre De Vos.
25 comments

The Constitutional Court today found that the President had erred and had acted irrationally by not affording the victims of “politically motivated crimes” a hearing before making a decision on whether to pardon the perpetrators of those crimes. In Albutt and Others vs President of the RSA and Others Chief Justice Ngcobo, writing for a unanimous court, upheld the decision of the High Court. The High Court interdicted the President from pardoning these prisoners before affording the victims a hearing about the matter.

In this case the stated purpose of pardoning the prisoners for their “political crimes” was nation-building and national reconciliation. The court thus held that the participation of victims was crucial for the achievement of these objectives. It could therefore not be suggested that the exclusion of the victims from the special dispensation process was rationally related to the achievement of the objectives of the special dispensation process.

The court made it clear that the judgment only applied to the group of prisoners who were going to be pardoned as part of a special process to deal with the “unfinished business” of the Truth and Reconciliation Commission. What distinguished this category of prisoners from others not before the court was:

that the crimes in respect of which pardons are sought are alleged to have been committed with a political motive; the objective of these pardons is to promote national unity and reconciliation; and the crimes concerned were committed in a particular historical context. Different considerations may very well apply to other categories of applications for pardon. This judgment does not therefore decide the question whether victims of other categories of applications for pardon are entitled to be heard. That question is left open.

The judgment therefore makes it clear that it would not necessarily require the President to afford the victims of Eugene de Kock or Schabir Shaik a hearing before pardoning them. However, it confirms that the President does not have an unfettered discretion to pardon prisoners. The President is bound by the principle of legality, which is part of the rule of law, when exercising his power to pardon prisoners.

This means two things. First, the exercise of the power to grant pardons must be rationally related to the purpose sought to be achieved by the exercise of that power. In other words, there must be a rational link between the purpose that the President wishes to achieve by granting a specific pardon and the actual granting of that pardon. A President is therefore obliged to identify the purpose he wishes to achieve by granting a pardon and to make a case for why there is a rational relationship between that purpose and the granting of said pardon.

Thus, if the President were to pardon Shaik and De Kock, he will have to say why he did so. A court will then be allowed to determine whether the identified purpose is rationally related to the granting of the pardon.

If Shaik were to be pardoned for the purpose of advancing national reconciliation, say, it would be rather difficult to show that there was a rational connection between this pardon and the achievement of national reconciliation because Shaik was not convicted of a “political” crime. Shaik is an ordinary criminal who happened to have bribed the President, so pardoning him could not be said to have anything to do with the achievement of national reconciliation. Instead it would have everything to do with the granting of a political favour to a friend. As the Court explains:

The executive has a wide discretion in selecting the means to achieve its constitutionally permissible objectives. Courts may not interfere with the means selected simply because they do not like them, or because there are other more appropriate means that could have been selected. But, where the decision is challenged on the grounds of rationality, courts are obliged to examine the means selected to determine whether they are rationally related to the objective sought to be achieved.

What must be stressed is that the purpose of the enquiry is to determine not whether there are other means that could have been used, but whether the means selected are rationally related to the objective sought to be achieved. And if objectively speaking they are not, they fall short of the standard demanded by the Constitution.

This brings us to the second requirement for a valid granting of a pardon. The pardon must be granted for a constitutionally valid purpose. If the pardon was granted merely to do a friend a favour, or to prevent that friend from spilling the beans about your own involvement in criminality, or because that friend happened to have paid you bribes worth millions, it would not constitute a “constitutionally valid” purpose for pardoning the friend.

The judgment underlines the fact that the President does have a relatively wide – but not unfettered – discretion to pardon prisoners. But it also reminds us that the rule of law requires the President to act rationally when doing so. The President thus has a constitutional duty to state clearly what the purpose of the granting of the pardon might be. That purpose had to be a legitimate purpose. It could not have the purpose merely to advance the personal interests of the President himself or the party he happens to lead.

If De Kock and Shaik are pardoned, the presidency will therefore have to concoct a very good excuse – otherwise the decision could very well be set aside by a court.

Road rage drivers beware

Feb 17th, 2010
by Pierre De Vos.
102 comments

The Sowetan reported yesterday that a Cape Town student, Chumani Maxwele, 25,was arrested last week  on charges of crimen injuria for “waving away” President Jacob Zuma’s noisy, blue-light convoy. Maxwele says he ”waved away” the President’s blue light convoy “as if to say ‘hamba’” because of the noise. The police claim that Maxwele had shown his middle finger to the convoy in that time honoured but slightly rude gesture so beloved in South Africa by drivers with road rage. According to Maxwele:

After that a black BMW X5 pulled up and three guys jumped out, pointing guns at me. They pushed me into their car and shouted at me that I had disrespected the president. They pulled a bag over my head and drove me to Zuma’s residence.

He claims Mowbray police accused him of saying that Zuma had seven wives. They claimed he insulted Zuma – and told him “intelligence” agents would deal with him. The next morning, people whom he believed to be intelligence agents arrived to interrogate him, asking him for his opinion of Zuma and which faction of the ANC he supported at Polokwane. Maxwele said the agents told him “be careful what you do when a convoy passes because people are sensitive. Don’t touch your head or your waist”. In the meantime, plain-clothes officers raided his house, going through his personal diaries and notebooks. Maxwele spent the day in holding cells underneath Wynberg magistrate’s court and was only released 24 hours later.

If any of this is true, the police behaved in a rather shocking and outrageous manner which threatens the dignity and freedom of every South African citizen.

It is true that the crime of crimen injuria does exist in South African law. Traditionally, the crime has been defined as one where a person intentionally and unlawfully impairs the dignity of another person. This means that where someone subjects another person to offensive or degrading treatment, or exposes that person to ridicule or contempt to such a degree that, objectively considered in the light of prevailing norms of society, it is criminally insulting, he or she commits a crime.

Of course, the prevailing norms of society must be judged against the values and norms enshrined in the Constitution. Given the commitment in the Constitution to democratic values, political contestation, the right to vote and free and fair elections, the right to quality and freedom of expression – which includes the freedom to receive and impart ideas and views - hurling racial abuse at another person will probably constitute crimen injuria. Shouting “Jou ma se…..” at your employee might also reach the level of a crime.

However showing the middle finger to a politician or ridiculing a politician in some other way will almost never constitute unlawful behaviour because the prevailing norms in a constitutional democracy allows for robust debate and political contestation. To hold otherwise would be absurd. Imagine in what trouble members of the ANC Youth League would have been for flashing their buttocks at opponents at the Youth league conference, if the court decided that flashing a mere middle finger at someone was unlawful.

In any case, even if a court found that showing someone the middle finger was unlawful, such a person will never be convicted of a crime on the basis of the maxim, de minimis non curat lex (“the law does not concern itself with trifles”). To hold otherwise would be to invite the opening of the floodgates of crimen injuria prosecutions. How many drivers would not find themselves in jail because they lost their tempers? Half the ANC Youth League would have had to be locked up and yours truly would definitely not be a free man for long. A successful prosecution of this case would also invite abuse, as powerful politicians and the police may be tempted to use the crime – as it allegedly did in this case – to stifle legitimate debate and criticism, something that would be in breach of the Bill of Rights.

Maxwele will never be successfully prosecuted. If the allegations are true, he was clearly harassed and intimidated in an unlawful manner by ridiculously overzealous cops. In a constitutional democracy based, inter alia, on the Rule of Law, the President is not entitled to more protection of his dignity than any ordinary person. On the contrary, the President is usually the leader of the majority party in Parliament and as such he should be entitled to less protection of his dignity. If we cannot ridicule the President or flash rude signs at him, our ability to express our feelings as citizens about those who govern us would be severely curtailed. This will infringe on the human dignity of all of us because it will prevent us from expressing our strong opinions about politicians and will thus limit our ability to form and express opinions that are unpopular.

If it is true that the people who interrogated Maxwele asked him about his political views, the police officers or security agents acted in a brazenly partisan manner by asking party political questions with no bearing on the case. This would suggest that the officers were in breach of the provisions of section 199(7) of the Constitution which prohibits any member of the security services from furthering, in a partisan manner, the interests of a particular political party. Maxwele’s political views about Polokwane or his membership of a political party had absolutely nothing to do with the crime he was alleged to have committed. Whether he was a Freedom Front Plus member or a member of Azapo should be of no concern to the police or intelligence services.

The last time I checked, showing someone – especially the President – the middle finger cannot be equated with undermining state security or with a wish to overthrow the state. Instead it shows a healthy disregard for the pomposity and self-importance associated with politicians. A person who flashes a middle finger at the President (or at Julius Malema or Helen Zille, for that matter) might be considered rude by many of us, but such a person is really a good citizen because he is demonstrating an active interest in our political system and the way the country is being run as well as a willingness to express himself about it.

Why the Rule of Law matters

Jan 15th, 2010
by Pierre De Vos.
74 comments

A news report this morning sadly reminded me of the novel, The White Tiger, in which Arivind Adiga provides a cunning and often brutal depiction of India’s class struggles. The fortunes of the main character, Balram Halwai, a cynical, foul-mouthed, but witty narrator, rise after he murders his boss.

In the novel Balram, a chauffeur, recounts his transformation from an honest, hardworking boy growing up in “the Darkness” – those areas of rural India where education and electricity are equally scarce, and where villagers banter about local elections “like eunuchs discussing the Kama Sutra” – to a determined killer. He places the blame for his rage squarely on the avarice of the Indian élite, among whom bribes are commonplace, and who perpetuate a system in which many are sacrificed to the whims of a few.

As in India, most South African politicians claim to care about the poor and to promote “pro-poor” policies while acting in naked and often corrupt self-interest. Surely, only the utterly naive or blind can still believe that the South African elite – of which politicians form a part - care at all for the poor and destitute who they see as useful idiots who will act as rent-a-crowds at election rallies and other glorious celebrations of the struggle (and of other events valorising our new democracy) while remaining no more than voting fodder to legitimise the elite’s relentless accumulation of wealth through corrupt tender practices and and other nefarious activities.

According to the Azanian People’s Organisation (Azapo) some residents of Itireleng near Laudium, west of Pretoria, were evicted recently without the relevant court order required by the Constitution and the law. “This refers to evictions carried out in portion 25 of the farm Mooiplaats in Ward 61, Tshwane,” Azapo’s Gauteng chairperson Samore Herbstein said in a statement.

The Anti-Privatisation Forum was on Thursday meeting with lawyers to draft an urgent application to the North Gauteng High Court, in a bid to force the government to provide housing to those evicted. The application would be filed at a later stage, not on Thursday, as reported earlier. Herbstein claimed the sheriff of the court, the City of Tshwane, police and Tshwane metro police at the scene refused or failed, since Tuesday, to supply a copy of the court order to either Azapo or the attorney hired by Itireleng residents.

This kind of thing is not new. A report drafted by the Centre on Housing Rights and evictions (COHRE) and recently submitted to the Constitutional Court in the KwaZulu/Natal Slums Act case, claims that the City of Durban almost never acquires the requisite court order before evicting poor people who live in informal settlements from their homes, quoting Mahendra Chetty of the Legal Resources Centre in Durban who told them:

The City, as a matter of regular and consistent practice, acts in flagrant breach of the law. I have never come across one incident where the City has acted in accordance with the law in terms of Section 21 of the Constitution and the PIE Act. I do not know of one instance where the City has carried out an eviction with a court order.

In terms of section 26(3) of the Constitution “no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances”. The section also prohibits arbitrary evictions. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (no. 19 of 1998) (called PIE) gives legal effect to this provision.

The Act requires that a court must consider the rights and needs of certain vulnerable groups of unlawful occupiers, including the elderly, children, women-headed households and the disabled. If the unlawful occupier(s) have been in occupation of the property for longer than six months, the Act requires that the court must consider whether land is available, or can reasonably be made available, by the owner or the local municipality to which the unlawful occupier(s) can be relocated. The Constitutional Court has also said that before a legal eviction can take place the Municipality, Provincial or National Government must engage in a meaningful way with those affected in order to try and find an amicable solution.

This is the main reason, I suspect, why Municipalities evict people without obtaining a court order: they do not want to take any responsibility for having to engage with the poor – who they see as a dirty, selfish bunch of people standing in the way of realising lucrative tenders for them and their friends. And - god forbid - they obviously do not want to have to be forced by a court  actually to have to provide poor people with alternative accommodation when they are forced from their homes.

Poor people often do not have access to lawyers and cannot resist such flagrantly unlawful actions by our new tenderpreneurial class. Where poor people are organised – often under the auspices of the Landless People’s Movement, Abahlali baseMjondolo, the Anti-Privatisation Forum or other social movements – they resist such blatantly unlawful action by politicians and the officials. No wonder the leader of Abahlali is in hiding after members of his movement was attacked and drove from their houses near Durban: these social movements stand in the way of the brutal and selfish accumulation of wealth by the new political elite and their cronies. (After all, as Smuts Ngonyame once said: “I did not struggle to be poor”.)

Some of the social movements have an ambivalent view about the law and about the principle of the Rule of Law. They point out that the law often criminalise poverty and are often used by the elite to victimise the poor. The use of loitering by-laws and trespass laws to lock up “undesirable elements” (also called political opponents) are good examples of this.

But, I am with the late British Marxist historian, E.P. Thompson who said that the Rule of Law is indeed an unqualified human good. As we have seen in Durban and now apparently again in Itireleng, where the law provides protection for the poor and such a law is blatantly ignored, the poor will suffer. 

The law is not always just and it surely does not always serve the interests of the poor, but it does provide an important tool that can be used in the struggle against the heartless and corrupt political elites and their cronies. The law can also be used to help mobilise people and to help them to resist the actions of officials and politicians who have one eye on a Porsche and another on a bottle of Johnny Walker Black Label.

A short lesson on Presidential pardons

Jan 13th, 2010
by Pierre De Vos.
27 comments

Ok class, listen up. A short lesson on Presidential pardons seems to be called for. The lesson is required because seldom has so much nonsense been spoken by so many different people with different political convictions, than recently on the granting of Presidential pardons.

First the President claimed wrongly that Schabir Shaik had not applied for a pardon, then his office claimed that a decision by the President to pardon anyone could not be reviewed. And today the DA’s James Selfe said it was currently not clear whether a Presidential pardon could be taken to court for review.

The DA has proposed a private members Bill that would require the Minister of Justice to make a written recommendation to the President on whether to pardon an applicant and would require the President “to take into account” the recommendation before granting a pardon. The Bill would require the minister to have regard to a list of guidelines before making a recommendation  to the President. These guidelines are currently non-biding guidelines used by the ministry of justice to process pardons and to advise the President and include:

* The age of the offender at the time of the commission of the offence;
* Whether a reasonable period has lapsed since the conviction;
* Circumstances surrounding the commission of the offence;
* The nature and seriousness of the offence;
* Personal circumstances of the offender at time of application;
* The interest of the State and the community; and
* The interests of the victim, if any.

Currently the President is not bound by these guidelines or by the recommendation of the Minister of Justice and a decision to pardon anyone is his alone. Both the Presidency and the DA seems blissfully unaware of the existence of a Constitutional Court judgment in the case of President of the Republic of South Africa v Hugo in which it confirmed that any decision by the President to pardon anyone had to conform to the Constitution and could be reviewed by a court.

If Mr Selfe had taken the time to have a quick look at this case, he would have realized that his draft Bill, if passed, might well run into serious constitutional difficulties. Writing about an almost identical provision in the interim Constitution, Justice Goldstone stated that:

The powers of the President under section 82(1) are expressed in wide and unqualified terms. Unlike most other presidential powers they can be exercised without the concurrence of the Cabinet…. his discretion is unfettered, in the sense that it is not expressly limited by the interim Constitution.

A law that would require the President to consult the Minister of Justice and to take into account a recommendation of the Minister will either be utterly irrelevant and useless (if the President could ignore the guidelines or the recommendations of the Minister altogether) or it would fetter the discretion of the President as it would force him to make a decision based on the guidelines set out in the Bill and the recommendations of the Minister made in terms of the guidelines.

In the latter case – which seems a more likely reading as the Bill would require the President to apply his mind to the recommendations and if he failed to do so a court would be able to set aside his decision – the provisions of the Bill would probably not pass constitutional muster. An ordinary law cannot limit the almost unfettered powers granted to the President by the Constitution. This is an inevitable consequence of the supremacy of the Constitution. Mr Selfe seems sadly unaware of this rather obvious fact.

This does not mean that where the President pardons an individual, that decision cannot be reviewed by a Court. As Goldstone stated in the Hugo case:

In cases where the President pardons or reprieves a single prisoner it is difficult, (save in an unlikely situation where a course of conduct gives rise to an inference of unconstitutional conduct), to conceive of a case where a constitutional attack could be mounted against such an exercise of the presidential power… This does not mean that if a president were to abuse this power vested in him or her under section 82(1)(k) a court would be powerless, for it is implicit in the interim Constitution that the President will exercise that power in good faith. If, for instance, a president were to abuse his or her powers by acting in bad faith I can see no reason why a court should not intervene to correct such action and to declare it to be unconstitutional. For example, a decision to grant a pardon in consideration for a bribe, could no doubt be set aside by a court. So, too, if a president were to misconstrue his or her powers I can see no objection to a court correcting such an error, though it could not exercise the discretion itself.

So if the President pardons Schabir Shaik because he fears that Shaik will spill the beans on the mutually symbiotic (and corrupt) relationship between himself and the President or because Shaik had deposited a million bucks into his bank account, the decision could be set aside by a court.

But what would happen in this case where Shaik was convicted of bribing the President? If the President now pardoned Shaik would a court find that this decision was taken in bad faith because it was irrevocably tainted by the previously corrupt relationship between him and Shaik? I might be wrong, but I suspect the Constitutional Court will not declare the granting of such a pardon an act of bad faith as there is no evidence that the previously corrupt  relationship between the President and Shaik had continued after Shaik went to hospital… err I mean prison.

This does not mean it would be wise for the President to pardon Shaik. According to the Hugo case there are at least two situations in which this executive act of the power to pardon may be important. Firstly, it may be used to correct mistaken convictions or reduce excessive sentences and secondly, it may be used to confer mercy upon, inter alia, individuals when the President thinks it will be in the public benefit for that to happen.

No one has presented a plausible argument that Shaik was wrongly convicted. It would manifestly also not be in the public benefit to pardon Shaik as it would send a signal that all are not equal before the law and that if one happens to be a friend of the President one could escape just punishment for corruption merely because of one’s connections to the head of state. This would undermine respect for the rule of law and would surely send a signal that in South Africa who one knows is far more important than what one did or did not do.

Herewith ends the lesson.

Urgently wanted: judicial training

Jan 11th, 2010
by Pierre De Vos.
104 comments

Many South African judges are notoriously prickly about the need to undergo further judicial education. Despite the fact that Parliament passed the South African Judicial Education Institute Act in 2008, the Institute has not yet trained any judges or aspirant judges and it is unclear when it will start its work in earnest. Yet most judges received their legal training before the advent of the new Constitution and there clearly is a need for further training of judicial officers to bring them up to speed with constitutional jurisprudence.

The recent High Court judgment of Hlophe JP in the case of Malachi v Cape Dance Academy and Others demonstrates the urgent need for further judicial training. Although the case was probably decided correctly, the judgment is shoddily written while the constitutional law arguments are confusing and lacking in a basic understanding of constitutional law jurisprudence.

In the case, the High Court declared invalid section 30(1) of the Magistrates Court Act and the common law rule it codified, which allows a judicial officer to order the arrest of a person when it is suspected that the person will flee in order to evade the payment of a debt. In this case Ms Tatania Malachi, an “exotic dancer” (yeah right) from that lovely country Moldova (found by some surveys to house the unhappiest citizens in the world) was arrested after she tried to return to Moldova without paying her employer R20 000 owed to him.

Given the fact that the Constitutional Court declared invalid section 65A-65M of the Magistrates Court Act which provided for the imprisonment of judgment debtors in certain circumstances, the order of invalidity will probably be confirmed by our highest court. It will be surprising, however, if the Constitutional Court endorses some of the unconvincing and badly reasoned “arguments” put forward by the High Court.

First, the High Court found that the rule violated the right to equality because the rule treats poor debtors who are unable to furnish adequate security differently from those who can furnish such security, as the former could be incarcerated while the latter will avoid incarceration. Unfortunately, the judgment inexplicably fails to refer to any Constitutional Court jurisprudence on the right to equality and fails to articulate and apply the tests set out by the Constitutional Court to determine whether an infringement of either section 9(1) or section 9(3) had occurred.

If section 30 is invalid because it infringed on section 9(1), a rationality test had to be applied – something the court did not do. If section 30 is invalid because it infringes on section 9(3), it must be shown that the discrimination was based on one of the grounds listed in section 9(3) (like race, sex, gender or sexual orientation)) or on an analogous ground not listed in section 9(3) (such as HIV status). The High Court judgment inexplicably fails to make clear on what ground the discrimination occurred and why different treatment based on one’s financial position or some other unnamed characteristic would constitute discrimination for the purposes of section 9(3).

The implications of this argument – as far as one can tell – is that any law that distinguishes between rich and poor will constitute discrimination on an analogous ground. If this argument were to be sustained it would call into question the very existence of the capitalist system in South Africa. Maybe this is not a bad thing, but then one would expect the judge at least to make a cogent argument in favor of his position.

If one of my students had written the section in the judgment on the infringement of section 9, he or she would probably be awarded a mark of about 25% for the question as it shows a complete lack of knowledge of the Constitutional Court equality jurisprudence or any appreciation for the consequences of the argument presented.

The High Court also found that the rule infringed on the right to dignity as it allows for an arbitrary deprivation of liberty and allows a defendant to be subjected to cruel and degrading treatment. The High Court unfortunately seems unaware that the Constitutional Court has stated that where another right gives effect to the demand for the respect of human dignity (in this case, section 12(1)((e), which prohibits cruel inhuman and degrading treatment) one should rely on that right and not on the right to human dignity.

In dealing with the application of the limitation clause, the High Court seems unaware that it had to apply a proportionality test, having to weigh up all the factors set out in section 36 of the Constitution to determine whether the limitation is justifiable in an open and democratic society based on human dignity, equality and freedom. Instead the High Court discussed each of the factors mentioned in section 36 separately and failed to weigh the factors up against each other as required by the Constitutional Court jurisprudence. This completely misses the point of section 36 analysis and demonstrates a rather weird lack of insight into a fundamental aspect of Bill of Rights adjudication.

The discussion on the limitation clause is also sloppy and repetitive: at some point the same point, using exactly the same phrase, is made in subsequent paragraphs of the judgment, suggesting that the judgment was not properly edited before it was handed down.

In this case, the lack of engagement with Constitutional Court jurisprudence and the lack of understanding about constitutional principles, did not affect the outcome of the case, as the High Court reached a more or less just outcome that will prevent poor people from facing arrest when they owe money and the person to whom money is owed fears that the debtor will flee the country. It could therefore be argued that no harm came of the ignorance of the particular judge and that justice was served.

But in a constitutional state based on the Rule of Law, the legitimacy of the judiciary and the respect for the legal precedent as annunciated by higher courts suffers when lower court judges ignore or completely misconstrue the law. In the long term this could undermine the independence of the judiciary and respect for the legal system. In more difficult cases such a disregard for the law could also adversely affect litigants who may turn away from the law to rely on arbitration or self-help, which would erode respect for the rule of law.

Given the fact that many judges feel insulted when one points out that none of us are perfect and that – like the rest of us – judges are never too old to learn something new about the law, it seems to me the newly established Judicial Training Institute has its work cut out for it. If it functions effectively, it will enhance the quality of judicial decisions and with it respect for and trust in the law and our courts. This, in turn, will enhance the prestige and respect enjoyed by judges themselves. Judges therefore have a vested interest in judicial training and should embrace the new institute and its work, rather than resist it.

Of course, in the long run this will also be good for especially poor and vulnerable South Africans who may rely on the law to ensure that they are not treated unfairly by the rich and powerful in our society.

Why all the fear, paranoia and distrust?

Jan 8th, 2010
by Pierre De Vos.
24 comments

Why do South Africans generally seem so distrustful, fearful, and paranoid of one another? When ANC leaders or supporters do something Helen Zille does not like, she is quick to claim that it is all part of an ANC plot. When someone criticises the appointment of the CEO of the SABC, the MK War veterans claim the CEO is the victim of a plot to undermine both Minister Siphiwe Nyanda and President Jacob Zuma. We also had the “plot” against Schabir Shaik and President Zuma and the many “plots” against then President Thabo Mbeki, not to mention the “plot” by the TAC to poison South Africans with anti-retroviral drugs.

Many South Africans seem to live in constant fear of fellow citizens and believe that fellow citizens are continuously plotting to do them harm. Even legitimate academic curiosity (like asking whether polygamy would be constitutional or not) are turned into a paranoid and defensive fight as it is seen as part of a “plot” to attack or undermine a specific culture or the beliefs of a specific race group.

What’s going on?

Of course, as Alan Arkin once remarked (or was it William Burroughs?) “Just because you’re paranoid doesn’t mean they aren’t after you”.  Nevertheless, the South African obsession with plots and the tendency to see a conspiracy under every bush (just like the National Party saw a communist under every bush or under every bed) seems a bit extreme.

One way to explain this paranoid obsession with plots and conspiracies is to argue that those who allude to them do not really believe that there are plots and conspiracies against them and their group, but merely make use of a device to try and shut up criticism to avoid having to justify their crooked or unethical behaviour. By claiming that one is being persecuted, one never has to answer legitimate questions about the criticism or charges levelled against you.

Hence, Hillary Clinton spoke of a “vast right-wing conspiracy” against her husband during the Monica Lewinski scandal. This allowed her and her husband to portray themselves as victims and helped to confuse things so that the public would not remember that Bill Clinton really did have sexual relations with that woman (or to forgive him for it).

Similarly, President Jacob Zuma’s claim that there was a conspiracy against him allowed him never to have to answer a few basic questions regarding the charges brought against him. In President Zuma’s case, this tactic was particularly successful because it seemed rather likely that while evidence about his corrupt relationship with Schabir Shaik was clearly very real, he might well have been singled out for prosecution while others more friendly to then President Thabo Mbeki were never prosecuted.

A second explanation is that many people really have a fundamental misconception of the way in which the right to freedom of expression, the Rule of Law and accountable government are supposed to protect everyone in society from lies, corruption and dishonesty. Leaders are placed on a pedestal (Helen Zille just as much by her supporters as Jacob Zuma by his) and any questions about the wisdom, integrity or ethics of a leader are seen as treasonous attacks on the collective identity of the supporters.

Leaders are often seen (and then begin to see themselves) as not being subject to the same rules and degree of scrutiny as ordinary workers. Because leaders are “important”, “special” or “exulted”, they must be treated in a special manner and should be shown special respect and should be deferred to – no matter what they do or say.

This view flies in the face of what is expected from leaders in a constitutional democracy where leaders are servants of the people (and therefore are not viewed as especially “important” or “special”). In such a democracy leaders should expect to face more (not less) scrutiny, criticism and even ridicule than ordinary citizens who are not servants of the people.

Third, I suspect South Africa’s long history of racial oppression and the struggle for freedom that resulted from it have also warped views and made many of us far more paranoid than we should be. Many white South Africans were scared into supporting the National Party with “Swart Gevaar”, Rooi Gevaar” and sommer any other kind of “Gevaar” tactics, which played into the underlying racism in the white community and made many whites fearful and deeply distrustful of black people in general and black political leaders in particular.

Most if not all black South Africans experienced first hand the racial arrogance, disdain and hatred by many white South Africans and suspect that despite the changes brought about by the transition to democracy, the vast majority of white people harbour an irrational, racist animosity towards them – even if this is now sometimes disguised by politically correct platitudes.

No wonder people do not trust each other and are often prepared to believe the worst of those who criticise them or the leaders they feel emotionally close to. Such feelings are of course exploited by politicians for their own nefarious ends and are exacerbated by the cynical or racist actions of supporters across the political divide.

The important question is of course: how can we get past this paranoia, fear and distrust and arrive at a place where it would become possible to have a relatively reasoned discussion about the merits of leader X or Y without anyone ranting and raving about “plots”, conspiracies” or racism.

Maybe in 2010 we should start a discussion on this important question, because if we fail to answer it, unscrupulous politicians will exploit our fears and hatreds to escape responsibility for their own failings – and all South Africans, but especially poor and marginalised one’s relying on the state to create the conditions for a better life for them and their children, will continue to suffer.

Medical Miracles (ad infinitum)

Dec 14th, 2009
by Pierre De Vos.
30 comments

Schabir Shaik, who was convicted of bribing President Jacob Zuma and sentenced to 15 years imprisonment for bribing our President, was unlawfully released from prison on 3 March 2009 on medical parole “to die a dignified death” because he was supposedly in the last stages of a terminal illness. Mr Shaik has now been a free man for more than 250 days after being released for supposedly being at death’s door, which just goes to show that he was released based on lies and deception.

Of course, we know Shaik was not at deaths door (because we saw the report prepared by the doctors who never said that he was in the last stages of a terminal illness), and we thus know for a fact that the parole board released Shaik unlawfully as Shaik did not meet the legal criteria for release.

Meanwhile Shaik has been spotted playing golf (but not – yet – doing what that other famous golfer seems to have been doing over the past few years). A medical miracle indeed.

In a written reply to a parliamentary question by the Democratic Alliance, Correctional Services Minister Nosiviwe Mapisa-Nqakula said  last week Shaik was authorised to attend physiotherapy from 10.30am to 12.30pm on the Wednesday when he was spotted on the golf course, which prompts one to wonder whether his physiotherapist might not be an avid golfer.

The newspaper article about him allegedly being spotted playing golf at a club in Durban was brought to his attention and an explanation was requested from him. ”Mr Shaik submitted a statement in this regard wherein he refuted the allegation,” Mapisa-Nqakula said.

So, let’s get this straight. The Minister is taking at his word, a man who was convicted of fraud and corruption and was found by the trial judge to lack any honesty and credibility. I really have a nice piece of lush forest land in the Karoo I want to sell to the Minister along with shares in a pyramid scheme. Come to think of it, maybe I can get the Minister to ask Father Christmas to bring me a Porsche. (I have always been envious of the Judge President because he drives a Porsche while claiming to care about transformation and the poor.) If she believes Shaik, she must surely also believe in Father Christmas, the tooth fairly and the integrity of the arms deal.

Mapisa-Nqakula also said she had no evidence that the doctors erred in their recommendation to grant Shaik medical parole, nor that the Correctional Supervision and Parole Board erred in its decision. Well, this is unfortunately not true. The Act states that a person has to be in the last stages of a terminal illness and THEN the parole board can consider him or her for release. The doctors never said that Shaik was in the last stages of a terminal illness, hence the parole board erred. The Minister’s claim that there is no evidence that it erred is so preposterous and laughable that it really casts a very dark shadow over the integrity and honesty of our Minister.

It is amazing how some among us would not play fast and loose with the truth in order to ingratiate yourself with The Leader.

We all know Shaik was released because that is what President Zuma wanted. The fact that the release was illegal is just by the by. It has been more than 250 days now since the parole board has first acted unlawfully and since various Ministers have condoned this unlawful actions by providing ridiculous and untrue explanations for the release, for the legal basis of the release and for the reasons not to refer the matter to the parole appeals board.

Nothing will of course be done about this flagrant disregard of the law in order to benefit the man who bribed our President, because in the world of some people the law only applies to ordinary people – not to friends of the President (especially not friends of the President who bribed that President) and definitely not to her holy highness the Minister of Correctional Services.

Wonder how long before we spot Shaik having tea with President Zuma and Julius Malema? Another 250 days perhaps?

Ruling elite not interested in democracy or the Rule of Law?

Dec 9th, 2009
by Pierre De Vos.
130 comments

When EP Thompson, the Marxist historian considered by many to be the greatest British historian of his time, wrote that the Rule of Law was “an unqualified human good”, he created quite a stir. It was an article of faith among Marxists that the law was always used by the ruling class to legitimise its oppression of the working class.Thompson was heavily criticised by fellow Marxists who argued that the Rule of Law was a deeply oppressive concept as it masked the inherent violence deployed by the ruling class to protect their own interests.

But Thompson, it seems to me, was on to something. Although the law is often used to promote and legitimise the interests of the ruling elite and although the law is thus often unjust, the law can also be used as a mechanism to restrain the unbridled and unprincipled exercise of power by the ruling elite.

In South Africa, the Rule of Law is often mentioned by members of the chattering classes who bemoan the fact that some members of the ANC government and some ANC “deployees” to constitutional institutions (such as the NPA and the JSC) show an utter disregard for the law. Yet, the erosion of the Rule of Law affects all of us who do not form part of the ruling elite, a ruling elite which is composed of apartheid era big business, ANC leaders, BEE and other tender millionaires, the Black Lawyers Association and Black Management Forum and other elite institutions with close, mutually beneficial, ties to the government.

In a deeply divided society, in which economic injustice is deeply embedded and a few elites benefit from a parasitic capitalist system to the detriment of the majority of citizens, a semblance of social stability often seems to depend on the ability of the ANC government to paper over the “class contradictions” by deploying a kind of race-nationalism in which the same white big business and its beneficiaries who shared in the spoils of apartheid are held up as the villains against whom all black South Africans had to unite.

In this context, poor, marginalised black citizens do not always buy into the idea that an erosion of the Rule of Law represents a fundamental threat to their potential well-being. However, recent events have reminded us that the Rule of Law is not only to the benefit of the rich. Without it, it will be difficult for real democracy (as opposed to the watered-down Parliamentary version enacted for our benefit by the ANC and the DA) to flourish.

It seems to me real democracy will flourish only if social movements and grassroots activism (in opposition to policies and practices of the ruling elite) can flourish. No wonder some ANC leaders are fearful of social movements and have taken unlawful and dictatorial action to try and blunt the power of such movements. A prime example of such undemocratic, anti-Rule of Law action, is the recent harassment of leaders of Abahlali baseMjondolo in KwaZulu-Natal.

I was reminded of this when I received a press release from the inestimable Prof Stephen Friedman of the Centre for the Study of Democracy who recently hosted a discussion on this topic. The Centre had called the meeting out of a concern that the violence, directed at leaders and members of the Abahlali baseMjondolo (AbM) shackdwellers’ movement, was politically motivated and designed to drive the movement out of the informal settlement because it was seen as a rival to the African National Congress (ANC) in the area, and because it had launched a Constitutional Court challenge to provincial legislation which gives the provincial government wide powers to force landowners and municipalities to evict informal occupiers.

Part of this statement reads as follows:

The Centre is particularly concerned that the attacks on an independent and peaceful citizens’ organisation have been effectively endorsed by the KwaZulu-Natal MEC for Community Safety, Mr Willies Mchunu, and by senior officials of the provincial government. This reinforces the impression that a provincial government is attempting to silence a critical voice in violation of core democratic values.

Discussion at the meeting heightened this concern. The president of AbM, Mr Sbu Zikode, and other leaders of the movement, described how they had been driven into hiding and were now forced to conduct their entirely lawful activities in Kennedy Road in secrecy. AbM leaders told the meeting that they were now forced to operate much as underground anti-apartheid activists had been forced to do before South Africa became a democracy. While our Constitution guarantees every citizen freedom of speech and association and the right to use the courts, AbM appears to have been denied the first and to have been punished for exercising the second. Further, AbM argued that those who have been arrested for their alleged involvement in the attacks and denied bail, are actually victims and are, in effect, political prisoners.

Academic analysts who delivered presentations pointed out that democracy is meant for all citizens, not simply for those who are well-heeled and well-connected. If basic democratic rights are denied to shackdwellers, they warned, South African democracy is in great danger.  If citizens in the suburbs are allowed to speak their mind and criticise government actions and policies but those in the shack settlements are not, our country will, they suggested, lapse back into what it was pre-1994, a state in which some enjoy the right to speak but others do not. The allegations raised about the Kennedy Road violence are therefore extremely serious because they suggest that the democracy which so many fought so hard to achieve is now in danger because some political power-holders are not prepared to tolerate peaceful and legal citizen action if they feel threatened by it.

Participants were obviously aware that the allegations about events at Kennedy Roadremain untested. But all agreed that, given their seriousness, they need urgently to be tested. They added that that the best way to ensure that this happened would be support AbM’s call for an independent and neutral inquiry into the events. At present, a Task Team comprising those who are alleged to be complicit in the attacks has been given the official mandate to investigate. This is obviously unacceptable. The inquiry must be entirely independent and its impartiality should be beyond reproach.

We therefore urge the State President to demonstrate his and government’s commitment to democracy and concern to protect the rights of citizens by urgently appointing such an inquiry.

If President Zuma was a true democrat who respected the Rule of Law, he would agree to the request to institute an inquiry into the events that lead to the Kennedy Road tragedy. If the President fails to do so, one will be hard pressed not to conclude that the narrow economic self-interest of the party elite (in cahoots with big capital and the champions of a kind of middle class transformation), trumps concerns for the plight of the poor. The failure of opposition parties, including the DA, to highlight the plight of social movement leaders also suggests that they do not have the interest of the majority of South Africans at heart.

The ANC always talks about its concern for the poor. Maybe this is true in its own way. The ANC leaders are just MORE concerned about their own fancy cars and lavish lifestyles and the benefits flowing from the BEE tenders for their wives and cousins, than they are for the plight of the poor. In such circumstances, the last thing they would want or encourage is real grassroots democracy.

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