Constitutional Hill

Rule of Law

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.

Our own Minister Ras Dumisani

Nov 30th, 2009
by Pierre De Vos.
34 comments

Reading Minister Jeff Radebe statement in which he takes a stab at defending the indefensible “appointment” of Adv Menzi Simelane as National Director of Public Prosecutions (NDPP), I wondered whether the statement was not perhaps drafted by Ras Dumisani after partaking in the holy weed. Unfortunately the Minister’s defense is misleading in the extreme, does not address the concerns raised by the Ginwala Report, misconstrues the Ginwala Report findings and, further, misconstrues the judgment of the Supreme Court of Appeal and the Constitutional Court in order to gloss over Simelane’s obvious unfitness to hold office.

The Minister’s statement reveals that the Public Services Commission (PSC) has recommended that Adv Simelane be subjected to a disciplinary hearing because of the findings of the Ginwala Inquiry against him. The Minister has decided that this recommendations must be rejected on the basis, inter alia, that Simelane was not afforded an opportunity to give his side of the story and hence the PSC had flagrantly abused Adv Simelane’s fundamental rights to he heard.

This is, to say the least, a rather peculiar argument that displays a spectacular lack of understanding of the fundamental right to be heard. Adv Simelane would of course have been afforded the opportunity to tell his side of the story before a disciplinary hearing and his fundamental rights would have been perfectly preserved if the Minister had ordered a disciplinary hearing as recommended by the PSC. The PSC did not conduct a hearing and did not make any findings about whether Simelane is fit to hold office.

It was merely tasked to make a recommendation of whether further steps should be taken again Simelane. The Minister has obviously decided that such a disciplinary hearing would not be in the interest of Simelane because at such a hearing, chaired not by the Minister (a politician) but by a real lawyer, Ginwala’s serious findings of wrongdoing would have had to be scrutinised properly.

Minister Radebe states that the “attack on the credibility of Advocate Simelane by the Ginwala Enquiry because he had allegedly not disclosed this letter [written by him and signed by the then Minister of Justice] to the Enquiry and therefore made a misrepresentation to the Ginwala Enquiry is without any  foundation as the Ginwala Enquiry was already in possession of the letter before Advocate Simelane had given evidence”.

The problem is, the Ginwala Report makes no such finding whatsoever. The Ginwala Inquiry and the PSC Report actually refer to a different letter written by President Mbeki a day earlier, which Simelane had failed to provide to the Commission. The Minister is thus “refuting” a finding that was never made and fails to address the fact that Simelane had hidden the letter written by President Mbeki to the Minister of Justice from the Inquiry.

Either the Minister and his advisers are very, very dim-witted, confusing two completely different letters or, well, or they are trying to pull the wool over our eyes by not sticking to the facts (otherwise known by us mere mortals as the truth).

We know of course that Adv Simelane lied – not once, but twice – to the Inquiry by denying that he had obtained legal advice on the relationship between the Department of Justice and the NPA and only “remembered” that he had obtained such advice when he saw Adv Wim Trengove producing the document with the legal advice. Minister Radebe’s defense?

This is a common human experience in a court of law that a witness would correct him or herself. Such a correction does not necessarily justify a conclusion that a witness was lying when he corrected himself.

Anyone who has read the transcript of the cross examination would be hard pressed to agree. In any event, it is exactly to determine whether Simelane did lie that a full disciplinary hearing was recommended by the PSC. The Minister’s use of the word “necessarily” above is telling. Minister Radebe’s view is in essence: “Well Simelane might have lied. Or he might have first forgotten about the existence of legal advice that was at the heart of his own submissions to the Inquiry before miraculously “remembering” it. In any event, it would be unfair to Simelane to determine whether he is a liar by having a disciplinary hearing.”

This view seems to be based on a reasonable apprehension that the truth has a habit of emerging at disciplinary hearings.

Ginwala was particularly scathing of Simelane because he had drafted a letter ordering Pikoli not to proceed with the arrest of Jackie Selebi. The Minister quotes selectively from the Supreme Court of Appeal case to suggest that there was nothing wrong with this letter. But Radebe’s statement is unfortunately not correct as he fails to include the very next sentence in the SCA judgment which reads:

although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.

No wonder Minister Radebe has faith in Simelane. They both seem to have a tendency to make statements about the law which are not correct. Minister Radebe thus fails to address the fact that Simelane had drafted a letter instructing Pikoli not to arrest Selebi which led Ginwala to find:

The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act.

The selective quotation from the SCA judgement and a blithe comment that the Simelane could not be blamed for writing a letter that contained a patently illegal instruction because the Minister had signed the letter, suggests that Minister Radebe either holds the view that the SCA and the Constitutional Court are wrong about the nature of the NPA’s independence and that the executive is therefore justified in ignoring the courts, or that it is perfectly fine to appoint a person as NDPP who writes letters that is in breach of the law.

Either way, the statement by the Minister seems to confirm the view that Simelane was appointed not because he was fit and proper, but exactly BECAUSE he was not fit and proper.

Why Menzi Simelane is a liar

Nov 26th, 2009
by Pierre De Vos.
59 comments

One should not easily call a person a liar. One should especially not call somebody a liar if the President of the country has purported to appoint that person as the head of the National Prosecuting Authority (NPA) and has endorsed that person as fit and proper, thus as possessing the necessary honesty, reliability, truthfulness and uprightness required by the law for him to be lawfully appointed by the President as National Director of Public prosecutions (NDPP).

It is an even more serious matter if that person will potentially be called upon to decide whether the President (who purported to have appointed him) should be prosecuted for fraud and corruption. One should therefore think twice before calling Menzi Simelane a liar, given the fact that he might have to decide the President’s fate. After all, if the DA is successful in having the NPA decision to withdraw charges against President Jacob Zuma set aside, Simelane will have to decide “without fear favour or prejudice” whether to proceed with the prosecution of the President.

This is therefore quite a big deal.

Unfortunately, I have to point to the following exchanges between Simelane and Advocate Wim Trengove before the Ginwala Inquiry which demonstrates that Simelane is a liar and attempted to mislead the Ginwala Inquiry. He is therefore not the kind of honest person which would be fit and proper to be appointed as NDPP:

SIMELANE: Well I am correct, because he himself would say that you are the accounting officer, so you deal with the issues.

TRENGOVE: Have you taken legal advice on the issue?

SIMELANE: It’s pretty straightforward, it doesn’t need legal advice in my view.

TRENGOVE: Won’t you answer the question. Have you taken legal advice on the question?

SIMELANE: No.

[...]

TRENGOVE: You said you took no legal advice on this issue, correct?

SIMELANE: No, I don’t remember really getting counsel opinion on it. No in fact, yes I think you are quite right, we actually did, we got the opinion of Adv Maleka, yes now I recall and Adv Khoza, yes we did.

TRENGOVE: Mr Simelane, you said you took no advice. You repeated that same answer and then when you saw me turning up a document you changed your mind.

SIMELANE: No you are quite wrong. What I was trying to recall was what the opinion was and it actually covered quite a lot of issues, more than this one specific issue. So I am quite correcting myself that we did actually get an opinion on a whole range of issues about the role of the NDPP. If I recall that was our opinion yes.

[...]

TRENGOVE: Yes. You were intimately involved in the preparation of the papers.

SIMELANE: Absolutely.

TRENGOVE: And in those papers one of the grounds, one of the accusations advanced against Mr Pikoli is precisely this difference of opinion between you and him, correct?

SIMELANE: Yes.

TRENGOVE: And yet you don’t tell the commission that you have taken legal advice on the question.

SIMELANE: Sorry, can you repeat that, I didn’t hear it nicely.

TRENGOVE: You don’t disclose to the commission that you had taken legal advice on the question.

SIMELANE: No I didn’t think there was a need to disclose that I took legal advice on the particular issue.

TRENGOVE: But how can there not be a need to disclose it to the commission when you sit with senior counsel’s opinion that contradict your own?

Ginwala was in fact rather kind to Simelane. On the basis of these and other exchanges (see full transcript here) it would be surprising if the Advocates profession do not apply to court to have Adv Simelane struck off the role of Advocates on the basis that he is no longer a fit and proper person.  If the Bar Council does its job, Mr Simelane will be struck off the role which would also make him ineligible for appointment as NDPP.

Just a thought.

Neither fit nor proper

Nov 25th, 2009
by Pierre De Vos.
65 comments

President Jacob Zuma has a wide – but not unlimited – discretion to appoint the National Director of Public Prosecutions (NDPP). By purporting to appoint Adv Menzi Simelane as NDPP, President Zuma acted unlawfully because Simelane clearly does not meet the requirements for the job as stipulated by the National Prosecuting Authority (NPA) Act.

The Constitution requires that the NDPP must be appropriately qualified and the NPA Act defines “appropriate qualification” as somebody who is: (i) a South Africa citizen; (ii) possesses legal qualifications that would entitle him or her to practice in all Courts in the Republic; and (iii) must be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity to be entrusted with the responsibilities of the office concerned.

As the Ginwala Inquiry made clear:

What the Act also envisages is that the incumbent must be a person of experience, integrity and conscientiousness to be entrusted with the responsibilities of the office of the NDPP…. The notion of integrity is one that does not attract much debate in this case. The notion relates to the character of a person – honesty, reliability, truthfulness and uprightness.

Unfortunately, we know from the Report of the Ginwala Inquiry that Simelane is not honest. Neither is he reliable, nor does he possess the necessary truthfulness and uprightness required by the Act. His appointment is therefore not legally valid as he does not meet the MINIMUM requirements for the job.

Simelane was the main witness of the government during the Inquiry but he showed himself to be a liar with a lack of understanding of his job and a willingness to mislead the Inquiry to achieve specific, politically required, ends.

The Ginwala Inquiry found that Simelane had misled the Inquiry by hiding from it the fact that he had obtained a legal opinion which contradicted his own views on the nature of the relationship between the Department of Justice and the NDPP. He only conceded that there was indeed such a legal opinion when he was confronted with this fact by Adv Wim Trengrove during cross examination. Ginwala states:

The DG: Justice had an incorrect understanding of his accounting responsibilities under the PFMA, despite being in possession of legal opinions from senior counsel explaining the ambit of his responsibilities. He allowed the Minister to continue with an incorrect understanding of the responsibilities of the NDPP.

Simelane had also drafted a letter – later signed by then Justice Minister, Brigitte Mbandla – which instructed Pikoli not to proceed with the arrest of Jackie Selebi. This instruction was clearly illegal and constituted a criminal offense in terms of the NPA Act. As Ginwala tactfully put it:

the conduct of the DG: Justice in drafting the document in the manner it reads was reckless to say the least. The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act…..

Ginwala also found that Simelane was not a man of honesty and integrity as he had made statements that were false and presented legal positions that were untenable:

I must express my displeasure at the conduct of the DG: Justice in the preparation of Government’s submissions and in his oral testimony which I found in many respects to be inaccurate or without any basis in fact and law. He was forced to concede during cross-examination that the allegations he made against Adv Pikoli were without foundation.

In the light of the above it is very difficult to sustain the fiction that Simelane is even remotely a person who could be called “fit and proper”. He is not honest. He is not reliable. He is not truthful. What counts in Simelane’s favour is that his view of the NPA – not shared by Ginwala, senior counsel or by any person who has read the Act and the Constitution –  is that the NPA is not independent, that the NPA should take instructions from the Minister of Justice and the President – even in making decisions on individual cases – and hence that the NPA is a tool in the hands of the government to do with it as it pleases.

No wonder President Zuma purported to appoint him. With Simelane at the helm, no one will ever again be prosecuted if the President and the Minister does not give the go-ahead. If this appointment is allowed to stand, it will bring an end to even the pretense that the constitutional guarantee that the NDPP must act without fear, favour or prejudice, will be adhered to.

This is the darkest and most scandalous day yet in the short life of President Zuma’s tenure. The appointment shows an utter disregard for the Constitution and the law. It is nothing more than the actions of a gangster hell bent on protecting himself and his cronies. I feel ashamed that I have given our President the benefit of the doubt for all these months.

On Julius Malema, HIV and democracy

Nov 17th, 2009
by Pierre De Vos.
41 comments

I must admit it made a welcome change: Instead of cringing with embarrassment, I sat at the traffic light and gave a little cheer when I heard on the radio what ANC Youth League President Julius Malema had said about HIV/AIDS.  Speaking at the Pan African Youth Union, Malema said it is up to Africa’s youth to stop the spread of HIV/Aids. He called on the continent’s youth to promote safe sex, the use of condoms and the proper use of anti-retroviral medication and continued:

Ours should be about ensuring that condoms become fashionable. Every time you greet each other you must ask, how are you? Do you have a condom with you? It should not be an apologetic issue.

Maybe if someone as outspoken and popular as Julius Malema puts his full weight (so to speak) behind a campaign to make condoms fashionable and urges young people to insist on condom use we have a chance to turn this thing around. Maybe if Malema and others drop the ridiculous and counter-productive notion that we will stop the spread of HIV if we promote the ABC (“abstain”, or “be faithful” and if you cannot do the above ”use a condom” – in other words, insist on a condom if you want everyone to think you are promiscuous), we have a chance.

Of course, our leaders should have said this kind of things many years ago, before hundreds of thousands of people had died needlessly of HIV related illnesses. But I suppose its better late than never, so I will be the first to applaud Mr Malema and to encourage him to continue the good work.

But then, another publication reported that at the same event, commenting on the call by Young Communist League leader Buti Manamela that Manto Tshabalala-Msimang and Thabo Mbeki should be charged with genocide for not providing dying South Africans with anti-retroviral drugs, Mr Malema said the following:  

We must never surrender our leaders.  Thabo Mbeki might have made mistakes but we can never charge him. We must not charge one of our own. If we allow that, the same thing would happen to [Zimbabwean President Robert] Mugabe, and the same would happen to [President Jacob] Zuma, and the next thing you know they will come for you.

Now, I do not want to get involved in a debate here on whether Mbeki and Tshabalala-Msimang should be charged with genocide and whether such a charge against them would stick. I do wish to take issue with young Julius’s view on the Rule of Law though. Saying that one should never charge one of your own is dangerous and undermines the Constitution and the Rule of Law.

Our leaders, no matter how well respected and loved, are not above the law. If they break the law they have to be charged. Just like every other South African – whether she lives in Houghton or Lusikisiki, Bischops Court or Pofadder, Witsieshoek or Nkandla – a leader in a constitutional democracy is not above the law.

Suggesting that leaders – because they are our leaders – should never be charged with any crime, no matter how heinous that leader’s actions have been, how detrimental to the poor and downtrodden, how murderous or anti-democratic, demonstrates a profoundly undemocratic and anti- constitutional view of politics.

This is the kind of view that allows young politicians like Julius Malema to jump out of his car in a dazed state and express his existential confusion by urgently asking those who stopped him to please tell him who he was. It is the kind of view which holds that leaders are beyond criticism and that even if they do the most shocking things, they should be above the law. Down that road lies tyranny, despotism and the most egregious abuses of the rights of ordinary citizens by powerful leaders: it is the way of Pol Pot, Adolt Hitler and Idi Amin.

In a constitutional state, leaders should actually be beyond reproach. If we are going to charge anyone it should be our leaders who have broken the law.  In a constitutional democracy we entrust them with our money, our well-being and our futures and if they abuse that trust by stealing our money, killing political opponents or ordering the police to torture the leaders of social movements who are critical of them, such leaders seize being worthy of our respect and, in effect, seize being our leaders at all.

What worries me is that Julius sees himself as a leader as well and hence believes that he is also above the law. No wonder he has failed to pay so many speeding fines and called his friends in government to reprimand traffic cops who had the audacity to stop him for speeding. Today it is traffic fines, tomorrow it is hit squads and torture.

Ag nee man Julius, just when I thought the media had been treating you harshly you say something like this which reminds me that you have a lot to learn about constitutional democracy and the Rule of Law. Stick to the condoms and  HIV: at least you are doing good work on that front.

If we start killing our own people we all lose

Nov 13th, 2009
by Pierre De Vos.
21 comments

Politicians seldom admit to the existence of, or even embrace, complexity. Admitting that problems are complex (whether one is in government or sitting on the opposition benches) confuses people and can create a perception of indecision or even weakness (just ask Public Enterprises Minister, Barbara Hogan), so politicians often opt for easy sound bites (Julius, are you there?) and quick fix solutions.

They believe the public is stupid and will think the politicians are doing something about a problem when they announce a new initiative or an amendment to the law – even when the quick fix is going to change nothing or make things worse.

But surely voters are not stupid. (Well, some are suspiciously daft – More than one percent of voters did vote for the African Christian Democratic Party in April, but maybe they were so blinded by their hatred for homosexuals that they could not think straight.) That is why quick fix solutions will often backfire and at some point voters will turn against the politicians who have sold them a dud policy or programme or have promised them the world and delivered nothing.

Sadly, Fikile Mbalula, the Deputy Minister of Police, has not learnt this lesson. Yesterday he took time out from fighting with his Minister to tell us a lot of shocking nonsense, trying to convince us, as my grandmother would have said dat perdedrolle eintlik vye is (that horse turds are actually ripe figs).  

Firstly, defending plans to give officers greater licence to use lethal force, he said that it was unavoidable that innocent civilians will get shot in the crossfire between police and criminals. “In the course of any duty the innocent will be victimised,” Mbalula told reporters in Parliament. “In this particular situation where you are caught in combat with criminals, innocent people are going to die not deliberately but in the exchange of fire. They are going to be caught on the wrong side, not deliberately but unavoidably.”

Well, tough luck then. Those of us who are not important enough to be protected by VIP cops (at a staggering cost of R300 000 a month to us taxpayers), will just have to take our chances then. Instead of dodging criminals, we will now have to dodge both criminals and trigger happy police officers. We will also have to fork out millions to pay for all the civil claims from the family members of all the innocent civilians unlawfully executed by the police.

Second, Mbalula also said the promised amendments to section 49 of the Criminal Procedure Act would be tabled in Parliament next year, but would not amount to an overhaul of the act. In essence, lawmakers would change the act “in terms of emphasis on the word ‘necessary’” to remove ambiguity in the law, the deputy minister said. He gave no further details.

Section 49 states that if someone suspected to have committed a serious or violent crime resists arrest, the police may “use such force as may in the circumstances be reasonably necessary to overcome the resistance or prevent the person concerned from fleeing”. 

There does not seem to be any ambiguity there, but some have suggested that the Minister plans to change the law in such a way that individual police officers will not easily be held accountable when they shoot and kill civilians. Talk is that the amendment will aim to limit the necessity of individual police officers to use their discretion when they start shooting. There will be a rule that can be mechanically applied and as long as the police officer sticks to the rule everything will be fine – even if a few hundred civilians are murdered in the process.

The problem is that the Ministry cannot easily broaden the scope of section 49(2) in this manner as the exercise of a discretion is inherently required by our Constitution. In the Walters case, Kriegler J set out in admirably clear language what the Bill of Rights require from any such section, and I quote:

(a) The purpose of arrest is to bring before court for trial persons suspected of having committed offences.

(b) Arrest is not the only means of achieving this purpose, nor always the best.

(c) Arrest may never be used to punish a suspect.

(d) Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest.

(e) Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used.

(f) In deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed; the force being proportional in all these circumstances.

(g) Shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances only.

(h) Ordinarily such shooting is not permitted unless the suspect poses a threat of violence to the arrester or others or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of carrying out the arrest, whether at that time or later.

(i) These limitations in no way detract from the rights of an arrester attempting to carry out an arrest to kill a suspect in self-defence or in defence of any other person.

The problem for the police (and for the Minister) seems to be that this approach requires police officers to do that rather difficult think, namely to think and to use judgement in stressful situations where the wrong decision could have fatal consequences. The ethos of a human rights culture – as the Kriegler judgment makes clear – will always require police officers to exercise a discretion, as it requires them to weigh various factors and make  a decision (in a split second) about whether it is allowed to shoot and kill a person believed to be a suspect.

No matter how the Ministry tweaks the word “necessary”, it will not be able to remove this burden from police officers without changing the Constitution. The suggestions by the Ministry that it would be able to change the wording of section 49(2) to “clarify” section 49(2) and to provide clear rules not requiring the exercise of a discretion, is just plane daft.

The way to help the Police is NOT to change section 49(2) – which will give police officers a false sense of security and will lead to more Police Officers being charged with murder or culpable homicide – but rather to train police officers. A police captain was quoted in the paper this week as saying that you cannot teach police officers how to exercise this discretion and that it is all about having the right instincts. Bollocks.

In the same way that one can train a rugby team to improve its attacking and defensive abilities, one can train police officers to help them make better judgements in cases where they find themselves in stressful and potentially dangerous situations. This kind of training should include both a theoretical and a practical component. Police officers must actually be trained to understand what the law requires (not very difficult, but obviously something that bamboozle many in the police force as well as in the Ministry). Then they must be trained to sharpen their skills to apply the law in practical situations.

This kind of training, of course, requires, human and financial resources and may take time. It is a complex issue.  So, instead of doing something that will be difficult but will really make a difference, the Ministry wants to change the law. In the end this will not help us or the police. We will all become more frightened of the police while police officers themselves will wrongly think they can now act like cowboys – until they find themselves in the dock for murder.

“The Beast”, the Rule of Law and petty politics

Nov 12th, 2009
by Pierre De Vos.
29 comments

I am in a bit of a fix: I often complain bitterly about the tendency of officials and politicians to ignore the clear provisions of the Constitution or relevant legislation to achieve politically expedient goals. On this Blog I have ranted about the unlawful release of Schabir Shaik, the probably unlawful firing of Vusi Pikoli, the failure of the JSC properly to investigate complaints against Judge President Hlophe, the probably unlawful dropping of charges against President Jacob Zuma and any number of other matters where the Rule of Law was not adhered to.

Does this mean I should applaud sports Minister Makhenkesi Stofile’s decision not to assist with the granting of citizenship to one of my heroes, Tendai “Beast” Mtawarira? Mtawarira was born in Zimbabwe and although he has already played 15 test matches for the Springbok Rugby team it now transpires that those bright sparks at Springbok Rugby have never made sure that Mtawarira becomes a South African citizen. Only South African citizens can play for the national team so now we will have to take on France on Friday night without “The Beast” in the front row. It’s a disaster.

On its face, the Minister is acting in an admirable fashion, sticking to the rules and upholding the Rule of Law. The Sports Ministry explained the decision last night in the following terms:

This request to have the Minister use his position to have the process of securing permanent residence and subsequently, citizenship expedited ahead of the year end tour in Europe, has exposed our sport administrators’ clear disrespect or lack of understanding of our laws.

Talented as he is, Tendai, like all foreign nationals plying their trade in South Africa, is bound by the laws of this country. The migration laws of our country are clear on issues relating to permanent residence and citizenship. We expect our sport administrators to understand and respect legislation that regulate their business. None of the athletes, sport codes, or federations can be bigger than the country.

While Tendai is a live wire on the field of play, the question is whether it is, in the first place, justifiable to say he has scarce skills – the rationale that would have enabled him to obtain the current work permit. If we go the route our rugby administrators are requesting us to take, and facilitate the fast-tracking of Tendai’s citizenship, what would this say to all rugby players in our country? We cannot as a government department responsible for sport and recreation in this country, afford to insult our players like this.

It is clear that the managers at Springbok Rugby did not do their jobs properly. Now they want to Minister to fix their problem for them. Surely, the Rule of Law requires the Minister to treat everyone the same and not to do special favours for “The Beast” just because he would have grinded the French front-row into the ground on Friday night if he had been allowed to play.

The South African Citizenship Act 88 of 1998 states that the Minister may grant South African citizenship to an applicant who can show, amongst other things, that he or she has been a permanent resident for at least one year, has lived in South Africa for at least four more years,   is of good character, he or she intends to continue staying in the country, can speak at least one of the official languages and ”he or she has an adequate knowledge of the responsibilities and privileges of South African citizenship”.

The Minister has a discretion to grant citizenship, but can only grant citizenship if the prescribed requirements are met.

The problem is that even if the Minister had wanted to help SA Rugby, all the requirements that would have allowed him to grant citizenship are not in place. Although “The Beast” has a work permit, he is not a permanent resident of South Africa. He could legally be granted permanent residency by the Director General of Home Affairs in terms of  27(b) of the Immigration Act 13 of 2002 because he ”possesses extraordinary skills or qualifications”. The DG has a discretion in this regard and if he wants to, he would be well within the limits of the law to issue Mtawarira with a permanent residency permit. The Minister would then be legally entitled to grant him citizenship one year later without breaking any laws or disrespecting the Rule of Law.

By the way, the Act actually does not refer to “scarce skills” as the Ministry of Sport seems to think. What is required is “extraordinary skills”. Surely being able to scrum Rugby opponents of the highest calibre to a pulp must count as “extraordinary skills”. So one wonders – based on the statement above – whether the Ministry of Sport is perhaps less concerned about the Rule of Law and more about teaching those pesky Springboks a lesson. Isn’t this a bit petty? 

Sadly, I have to admit that although the statement from the Ministry of Sport is a bit misguided and confused about the law, in principle the Minister is doing the right thing. Viva the Rule of Law!

This does not mean the Minister should not instruct his DG to issue a permanent residency permit forthwith so that Mtawarira’s application for citizenship could be considered in one year’s time. You know, the World Cup is around the corner and we need that guy in our scrum. If the Minister then refuses to grant citizenship – and only then – will one start to suspect that the Minister is acting in a petty fashion to “punish” SA Rugby because his brother Mike Stofile was beaten by Oregan Hoskins for the presidency of the South African Rugby Union (SARU).

Until then, I will have to respect the Minister’s decision to respect the law.

Zuma spy tapes: will anyone be prosecuted?

Nov 9th, 2009
by Pierre De Vos.
38 comments

My daily newspaper reports this morning that the investigation into how the NIA’s top secret ‘spy tapes’ got into the hands of President Jacob Zuma’s lawyer, Michael Hulley – which led to the (probably unlawful)  scrapping of criminal charges against Zuma and ultimately to a change in government – has been completed.

The Inspector-General of Intelligence, Zolile Ngcakani, who has an ombud role and oversees all intelligence services in the country, confirmed that his office had finished its investigation, but said its findings could not be made public because “the report has not yet been released to the appropriate authorities”. He also revealed that the intercepting of phone conversations involving McCarthy had been conducted by the NIA “lawfully in terms of a judicial direction”.

If the South African Police Service and the National Prosecuting Authority (NPA) took seriously its job to uphold the law and to act without fear, favour or prejudice (in other words, if it adhered to the Rule of Law), it would be hard at work preparing for the prosecution of those responsible for breaking the law.

One or more members of the intelligence service or the SAP obviously broke the law by leaking the tapes to the Zuma camp. Hulley (or perhaps President Zuma, if he was shown to ever have been in possession of the tapes) also broke the law by receiving those tapes. This is because private citizens (which both Hulley and Zuma were at the time) are not allowed to possess such classified information.

Recordings by intelligence services of private conversations – even those made legally – are classified and it was clearly a criminal offense for Hulley to have been given the tapes and for him to have received it.

The newspaper further states:

The investigation also established that the police were spying on McCarthy at the same time. “We have found that the crime intelligence division of the police intercepted the phone conversations of McCarthy as part of an unrelated investigation, and such interceptions were conducted lawfully in terms of a judicial direction,” Ngcakani said….

Ronnie Kasrils, who was the minister of intelligence at the time of the spy tapes saga, said he had no knowledge at the time that the NIA was tapping McCarthy and Ngcuka’s phones. Kasrils said that after the intelligence crisis of 2005/06, when former NIA head Billy Masetlha was found to have abused the intelligence powers by instigating unlawful surveillance and eavesdropping on politicians – and creating hoax e-mails – he had issued a directive to the NIA and to the minister of police that “any interception using the National Communications Centre facilities needs to be passed by me”. But the NIA and police apparently defied this ministerial directive. “The NIA were obliged to report this to me as minister. They never did. I knew nothing about it,” Kasrils said.

Ngcakani’s report should of course be sent to the Joint Standing Committee on Intelligence (JSCI ) in parliament, as this is the committee tasked with overseeing the intelligence services as one of the governments checks and balances against abuse by the intelligence services. The chair of the JSCI is Cecil Burgess, one of the more pugnacious and shady new members of the Judicial Services Commission and Burgess claimed yesterday that he was not aware that the inspector-general had completed the spy tape investigation.

Asked yesterday if he would call for the report, Burgess replied: “It depends on what the report contains. There are certain things we may not be entitled to see.” He correctly pointed out that it was a criminal offense for anyone to give transcripts of tapped phone conversations – even legally tapped one’s – to a member of the public or for a member of the public (which, as I have pointed out, both Hulley and Zuma were at the time) to receive such tapes.

One would assume that Burgess and the members of his committee will insist that the flagrant breach of the law by intelligence operatives and by Hulley (and perhaps others in the Zuma camp) will be thoroughly investigated and that the cuplrits will be prosecuted. They obviously must also be deeply concerned about the possible breaches of national security (remember Vusi Pikoli was fired for not taking national security into consideration when he issued a warrant for the arrest of Jackie Selebi).

They would also, surely, be concerned about the fact that the police and the intelligence services lied to the Minister and would want to establish on which grounds the police and intelligence services obtained a warrant to tap the phones of a member of the NPA (who happened to have been investigating the Police Commissioner at the time).

The law society should surely also be deeply concerned that Hulley criminally obtained classified information which he then used to the advantage of his client? We know that professional bodies do not always act vigorously against their own members. Who will forget how the Medical Association of South Africa for many years avoided taking action against the doctors who saw Steve Biko just before his death? But surely the law society – as keen supporters of the Rule of Law – will surely not let Hulley off the hook merely because he happens to be the President’s lawyer? That would be rather self-serving and, well, dishonest.

Of course, chances are slim that anyone will ever be held responsible for the criminal activity which formed the basis for the dropping of the fraud and corruption charges against our President. This is because in our post-Polokwane world, like in George Orwell’s Animal Farm, some animals are seen as being more equal than others. (And I am not even talking about Julius Malema who believes that “Arrive Alive” and speed limits are stuff that concerns only mere mortals – not VIP’s like himself.)

What surprises me is that us mere mortals, who can actually remember who we are and do not always have to ask everyone “do you know who I am” (because I have forgotten my own name), just sit quietly by while those who style themselves as VIP’s lord it over us. Don’t we have any self-respect?  When will we rise up and tell those who act is if they are above the law (because they believe they are) that the law applies to them equally?

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