Constitutional Hill

SABC

President must refuse to sign SABC Bill

Aug 25th, 2008
by Pierre De Vos.
10 comments

Section 79 of the Constitution states that if the President has reservations about the constitutionality of a Bill passed by Parliament, he or she must refer it back to the National Assembly for reconsideration. If the National Assembly fails to address the President’s concerns he or she can refer it to the Constitutional Court for a decision on its constitutionality.

The final version of the Bill recently passed by Parliament to amend the manner in which the SABC Board is appointed and fired must surely be such a Bill. If I was Mujanku Gumbi I would advise the President not to sign this Bill and to refer it back to Parliament.

This is because the Bill seems to provide for an inappropriate conflation of  the executive power – exercised by the President – and legislative power – exercised by the Speaker, nogal – as it dilutes the power of the President to appoint the SABC Board and to determine its term of office by stating that the President must fulfill these functions “in consultation with” the Speaker of Parliament.

Thus the head of Parliament and the head of the executive are now required to exercise this function jointly. This raises a separation of powers concern between the legislature and the executive. The Speaker is not given executive powers by the Constitution while this Bill purports to give her such power, thus probably rendering these sections unconstitutional. These sections are also nonsensical because the President and the Speaker do not have an discretion but must appoint the Board “on the advice of the National Assembly” which probably mean these two MUST appoint the Board as recommended by the National Assembly.

The Bill also states that the chairperson of the Board will no longer be appointed by the President on his or her discretion but must be appointed “on recommendation of” the National Assembly by the President acting in consultation with the Speaker. It is unclear what the difference is between “on recommendation of” and “on advice of”, but it could be argued the former provides for a discretion for the President and the Speaker to appoint a chairperson after taking into account the recommendation of the NA. This is also almost certainly unconstitutional.

The Bill also provides for the President and the Speaker MUST remove a member of the Board after the NA adopted a resolution to this effect on rather broad grounds including “inability to perform the duties of his or her office efficiently”. No inquiry is needed and the NA can decide whether a member of the Board failed to perform his or her functions efficiently. Efficiency is such a broad term that it allows for removal on completely non-objective terms as the majority party in Parliament may decide.

The Bill also states that the President and the Speaker MUST remove the ENTIRE Board on the basis of one of the following criteria: if it fails to discharge its fiduciary duties; it fails to adhere to the Charter of the SABC; or it fails to carry out its duties in terms of this Charter to pursue its objectives and exercise its powers, to provide creative and programming independence.

These grounds are extraordinary broad and leaves the door wide open for abuse by a majority party in Parliament. In effect the Board will now be accountable to the Parliament and if it fails to do what Parlaiment wants, it can be fired – even without having a proper hearing into the matter. It can therefore be argued that it kills off the independence of the SABC Board and thus of the Public Broadcaster because the Board will be beholden to the NA for their jobs.

If the Board fails to perform in accordance with the National Assembly wishes, it could be fired at will. It is unclear whether this is an infringement of the Constitution as section 192 of the Constitution merely states that “National legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society”. If the Broadcasting Act is seen as part of this legislative framework it is a problem. But if this section merely refers to ICASA – the body overseeing all broadcasting in South Africa – it is not. The latter interpretation is less strained.

On a more principled level (for what its worth) the problem with the Bill is that it legislates for a specific situation and not for the future or in general terms. It tries to fix the problem that arose when the ANC MPs were instructed to appoint members of the Board it had not agreed to. This is the worst kind of expediency and a very bad way to legislate. One should not legislate for a specific event because it is a kind of erosion of the Rechstaats principle that law should have general application.

Goodbey public broadcaster, welcome state broadcaster?

Aug 14th, 2008
by Pierre De Vos.
30 comments

Few people in South Africa would dispute the fact that everything is not well at the SABC. Its Board and its CEO are engaged in a bitter fight while there has been a noticeable decline in the technical quality of the news programmes put out by the broadcaster.  (Although, ironically, news programmes seem to be more even handed and fair than in the previous two years – or am I imagining things?)

As I pointed out before, the present troubles started when Luthuli House – then still firmly controlled by President Thabo Mbeki – ordered ANC MPs to accept a list of new SABC board appointees that differed from the list agreed to by the portfolio committee after a process of public participation. Now the resurgent MP’s want to fire the Board that was illegally foisted on them and have passed the Broadcasting Act Amendment Bill that would allow them to do so.

The amendments are not a model of legislative clarity but it seems to amend section 15 of the Broadcasting Act in at least three important ways.

First, it states that the President must remove a member of the SABC Board from office “after due enquiry” and the adoption by the National Assemblv of a resolution calling for that member’s removal from office in terms of one of a list of specified grounds, thus giving the power to the National Assembly in effect to remove the SABC Board. This power previously vested exclusively in the President.

Second, it states that National Assembly may by the adoption of a resolution (but no reference is made in this section to the inquiry referred to above) recommend the removal of a member or members of the SABC Board from office on grounds already set out in the Act such as mental illness (although some may argue one must be mentally ill to want to serve on the SABC Board!), conviction of a crime of dishonesty, because of a conflict of interest or because of misconduct.

Third, it allows the National Assembly to reccommend the removal of members of the SABC Board from office on a new – very vague – ground, namely an “inability to perform the duties of his or her office efficiently”.

Some opposition MPs have argued that these amendments might be unconstitutional because they interfere with the executive powers of the President to appoint and remove members of the Board and because they pose a threat to the independence of the SABC Board.

I am not sure this is correct.

There is nothing in the Constitution that reserve the power to fire SABC Board members for the President. The amendments therefore do not infringe on the President’s executive powers as set out in the Constitution. Furthermore, as the members of the National Assembly must nominate the Board, it may make sense for them also to have the power to fire the Board.

The fact that the amendments also provide for the removal of SABC Board members on vague and non-objective grounds such as “the inability to perform their functions efficiently”, clearly does infringe on the independence of the Board – even if the Act is read as bestowing this power subject to a full inquiry by the National Assembly.

This new provision would allow the majority party in the National Assembly to remove any Board member (or the entire Board) if it does not like what the Board is doing. So a Board who has failed to toe the majority party line could be removed on the vague ground that the Board member or the Board as a whole has not been able to do its job “efficiently”. Board members therefore now have no security of tenure and if they wish to remain Board members will have to act in such a way as not to upset the majority party in Parliament. This is very troubling and might turn the SABC from a public broadcaster into a state broadcaster.

The problem is, there is nothing in the Constitution that safeguards the independence of the SABC Board. Section 192 merely states that “national legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society”.

A challenge to the amendments will therefore have to be based on a rather complicated argument that the Broadcasting Act, read with other legislation, will prevent the independent authority from regulating broadcasting in the public interest. Such a reading is not impossible, but it is by no means obvious. The legislation may therefore pass constitutional muster.

That, of course, does not mean the amendments are wise. On the contrary, they pose a direct threat to even the semblance of independence currently enjoyed by the SABC and it is more likely than not, that a SABC Board appointed to function under these conditions will lack the independence to withstand any pressure from MP’s to take a particular political line in its news broadcasts.

One can imagine Board members being hauled before the relevant portfolio committee to account for the lack of positive news about the government’s achievements or for being biased against Jacob Zuma, say. They can then find the Board was not efficient and fire the whole lot of them.

Maybe there are other constitutional arguments to be made for why this legislation is unconstitutional. Any ideas anyone?

SABC and the ANC – dangerous moves

Jun 27th, 2008
by Pierre De Vos.
6 comments

News reports suggest that the ANC in Parliament wants to amend the Broadcasting Act to give Parliament the power to hire and fire the SABC Board.

This is a dangerous and astonishingly stupid idea because it would make the SABC Board directly beholden to the majority party in Parliament. If the National Assembly can fire the SABC board they will be tempted top put pressure on the board to toe the party line or be fired. This will scupper any last vestige of independence at His Masters Voice.

Can one trust any majority partuy in parliament not to abuse such power? The answer is, of course, that one cannot. Besides section 192 of the Constitution states that national legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society.

This suggests that broadcasting must occur in the public interest and that the SABC should not be beholden to the majority party whims in Parliament.

What is required is not more political control of the SABC but LESS political control. The reason why there is such a mess at the SABC is exactly because Mbeki forced the National Assembly to appoint a Board it had not selected. This was probably illegal but now it is a bit late to do anything about it.

Much better would be to amend the Broadcasting Act to ensure that the appointment of the SABC Board is de-politicised. But the chances of this happening is about as slim as the chances of Robert Mugabe having tea with Morgan Tsvangirai.

Ai politicians. What did we do to deserve them?

Prague spring at the SABC news?

May 11th, 2008
by Pierre De Vos.
8 comments

Is it a question of “when the cat is away the mice will play?” Given the complete implosion now happening at the SABC, what with CEO Dali Mpofu and group executive of news and current affairs, Snuki Zikalala, both suspended and the SABC board facing a vote of no confidence in the National Assembly it is unclear who is actually in charge at his masters voice.

I must confess, over the past two years I have not regularly watched what the SABC has quaintly called their news bulletin. One can only watch so many stories of Ministers opening fertiliser plants and Miranda Strydom fawning over our President before one falls asleep.

But this week I switched to the SABC news bulletin after noticing that it was reporting in a rather detailed and sharp manner on the Ginwala Commission of Enquiry into NPA boss Vusi Pikoli’s fitness to hold office. On Friday night it showed snippets from Pikoli’s legal counsel, Wim Trengove’s, cross examination of Director General in the Department of Justice Menzi Simelane.

I was taken aback when the usually supine SABC showed the clip of Trengove grilling Simelane about the fact that the State first denied that a letter written by President Thabo Mbeki to Justice Minister Brigitte Mabandla about the suspension of Vusi Pikoli existed. Later it had to admit that there was such a letter.

Asked Tregove: when the state decided to lie about the existence of this letter, was it the Director General who decided to lie about it or was it the Minister how decided to lie about it. Shoe – bulls eye!

In the past such a clip suggesting that the state was dishonest in the extreme would not have been shown. Is this a matter of the SABC journalists finally getting the guts to do their job because of the absence of Kommisar Zikalala? Or is this negative reporting on the state’s case against Pikoli perhaps part of an attempt to curry favour with the anti-Mbeki camp in the ANC?

Whatever the reason, the reports coming out of Auckland Park about this Enquiry have been riveting. How long can it last?

The reporting also shows how power has slipped away from President Thabo Mbeki since his defeat at Polokwane. When he was at the hight of his influence, no reporter at the SABC would have dared to present such a report that so clearly shows that the Minister and/or the President had lied about the Jackie Selebi matter. The State’s case would have been put in the most positive light and all the viewers would have thought there was all the legal and constitutional reason in the world to suspend Pikoli.

Now Mbeki is yesterday’s man and even lowly reporters put together stories that can only but embarrass him. How the mighty has fallen. I almost feel sorry for our pipe smoking, gallivanting President. There, I said it.

What now for the SABC board?

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

Members of the SABC board might feel more than uneasy today about the security of their positions on the SABC board. But it would be premature for them to pack their bags because it does not seem as if the National Assembly – who nominated the board – would be able to get rid of them that easily.

However, I wonder whether someone has informed the ANC members in the National Assembly that the Broadcasting Act 4 of 1999 does not give them the power to fire the board en mass? Maybe the ANC MPs are advised by the same lawyers who wrongly told the minister of Justice that she could instruct Vusi Pikoli to stop the investigation into Police Commissioner Jackie Selebi.

How else to interpret the announcement of the ANC caucus today that the National Assembly will debate a vote of no confidence in the board of the SABC in two weeks time. This comes after the CEO of the SABC, Dali Mpofu, was suspended by die Board after he in turn had suspended the group executive of news and current affairs, Snuki Zikalala.

Last week the portfolio committee on communications passed a motion of no confidence in the board, but this vote had no legal effect. In terms of the Broadcasting Act 4 of 1999 the National Assembly (on advice of the portfolio committee) nominates the board and the President must then appoint those members of the board nominated by the National Assembly. (The President was wrongly vilified for appointing the board after his loss at Polokwane, because he had no discretion in the matter and merely had to appoint those members nominated by the National Assembly.)

Section 13 of that Act states that the non-executive members of the board must be appointed in a manner ensuring participation by the public in a nomination process; transparency and openness; and that a shortlist of candidates for appointment is published, taking into account the objects and principles of this Act.

Late last year, after the portfolio committee finalised the list of nominees (after a process that included public participation) ANC headquarters ordered the party’s MPs to accept a list of new SABC board appointees. The Sunday Times reported at the time that angry ANC MPs at first refused to endorse a list of names forwarded to them by then ANC deputy secretary-general Sankie Mthembi-Mahanyele because the list given to them by the ANC differed in significant ways from that on which the committee had agreed upon. After they were instructed to do so by the Minister of Defence, they nevertheless endorsed this new list, thus circumvented the National Assembly process as prescribed by section 13 of the Broadcasting Act.

At the time I had my doubts about the legality of the this process. The South African Constitution requires the National Assembly to “facilitate public involvement” in its work and the Broadcasting Act explicitly provides for public involvement as well. In the Doctors for Life case, the Constitutional Court declared invalid an act of Parliament because it had not provided for reasonable and effective participation in the law making process by the public.

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

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

This means the National Assembly – elected by almost 15 million South Africans – cannot merely rubber stamp a decision taken by a few party leaders (or was it President Thabo Mbeki?) who are not members of the National Assembly. They cannot replace a decision they had reached after a process of public participation, with a decision of non-Parliamentarians. If they did this it would subvert the participatory aspect of our democracy. Yet that is exactly what happened with the appointment of the SABC board. I suspect a constitutional challenge to the appointment of the board would have had a very good chance of succeeding.

Having said this, I am of the opinion that a vote of no confidence in the board by the National Assembly will have no legal effect on the position of the board. It would be like bolting the stable door after the horse has already bolted. The ANC MPs should never have illegally abdicated their power to appoint the board to Luthuli House, but they cannot fix it by now instituting a vote of no confidence in the board.

Section16 of the Broadcasting Act states that the National Assembly may remove a member of the board from the office but only “on account of misconduct or inability to perform his or her duties efficiently” and only “after due inquiry and upon recommendation by the Board”. There is no provision in the Act that would allow for the board as a whole to be fired.

There are good reasons why the National Assembly does not have this power. It would be untenable for the National Assembly to be able to fire the SABC board because it would place far too much power in the hands of the majority party in the National Assembly to influence the board. If the board as a whole could be fired by the majority party in the National Assembly, the independence of the SABC as guaranteed by section 6 of the Broadcasting Act would be fatally compromised.

It therefore appears as if a vote of no confidence in the National Assembly will not and cannot affect the legal standing of the board as a whole or of individual board members. Maybe someone should inform the members of the ANC caucus that they are wasting their time in moving for such a vote of no confidence. Or is this move only part of a larger battle to discredit the board with a view of getting at least some of the members to resign?

Only time will tell.

What about Snuki and the SABC?

Jan 19th, 2008
by Pierre De Vos.
4 comments

Can it be that Jacob Zuma – unlike many millions of other South Africans – never watches SABC TV news bulletins, or that he never listens to the many radio stations broadcasting in all South Africa’s official languages every day to more than 26 million South Africans? Has he ever heard of and does he sometimes read some of the country’s largest circulating newspapers, The Sowetan (with almost 1.5 million daily readers) or City Press (more than 2 million weekly readers), the Sunday Sun (almost 2 million weekly readers), or The Sunday World (more than 1 million readers)?

8pzikalala_s.jpg

It does not seem so. Unless he thinks all these media outlets are so mediocre and uninteresting that they do not form part of “the South African mass media” at all. How else can one explain his online newsletter this week in which he approvingly quotes from the launch edition of ANC Today in which it was stated:

“We are faced with the virtually unique situation that, among the democracies, the overwhelmingly dominant tendency in South African politics, represented by the ANC, has no representation whatsoever in the mass media. We therefore have to contend with the situation that what masquerades as ‘public opinion’, as reflected in the bulk of our media, is in fact minority opinion informed by the historic social and political position occupied by this minority.”

What all these media outlets mentioned above have in common is that they are extremely sympathetic to the ANC. As far as the SABC – by far the most powerful media outlet with the widest reach in South Africa – is concerned, it is in fact a complete lapdog for the ruling party singing its praises and treading extremely carefully around anything that could put it in a bad light. With a few notable exceptions like “The After Eight Debate” on SAFM, the various SABC news programmes can seem like little more than ANC policy pronouncements as interpreted by Snuki Zikalala (Phd Bulgaria, pictured above).

To say that the bulk of the media in South Africa are hostile to the ANC is so obviously far-fetched and so far off the mark that it is difficult to understand how the President of the ANC (or is it his media adviser, Ranjeni Munsamy?) could have made this statement and still be expected to be taken seriously on the issue. As the previous writer of the ANC Today weekly letter would have said, it appears to be an “objective falsehood”.

It seems as if the President of the ANC made a very embarrassing Freudian slip by talking about the “mass media” as if it is constituted only by those newspapers (The Sunday Times, The Star, The Citizen), who in the past targeted white readers or broadly supported the ANC project, but now sometimes expose the wrongdoing by members of the ANC (like The Mail & Guardian does from time to time). These are the newspapers that sometimes “act like opposition parties” and vigorously criticise the ANC, and sometimes expose the depressing corruption and nepotism which seem to have become endemic among some ANC leaders.

These newspapers are read by a tiny fraction of the South African population (while most South Africans get their information from SABC radio or television broadcasts run by the pro-ANC – or is it a pro-Mbeki?- clique) and only have influence because they are read by those with money and access to power. They just as much represent the mass media as the PAC represents the interests of the masses of our people.

The ANC President is of course correct to observe that the mass media is a main battleground of ideas and is “a product of the various political, social, economic and cultural forces that exist within a society”. This is why the ANC has such an advantage come election time – it has most of the mass media, including the mightiest media organisation, the SABC, firmly in its corner.

Even so, as Tony Blair and George W Bush and many other politicians operating in more or less democratic systems have realised, the way to deal with critical media is to try and win them over to your side by wooing them and putting your best foot forward – the same way Mr Zuma has been wooing the international business community. It is rather counter productive to call them names because – like the Sunday Times – they will get upset with you and try and “get” you at every possible opportunity.

Tony Blair won his first election by wooing the virulently right wing newspapers owned by Rupert Murdock and had the mass daily The Sun in his corner when he defeated John Major at the polls. The problem with this strategy is of course that you need to act in a way that impresses the media. You need to talk to them and charm them (as haughty President Mbeki decidedly did not do) and you need to make sure you do not act in an arrogant, nepotistic or corrupt fashion.

If, say, your party elects as its President someone who has taken more than a million Rand from a convicted fraudster and then did several favours for him (as was confirmed by the highest court in the land), you will find it hard-pressed to get the independent media on your side. If your party elects to its National Working Committee (NWC) someone who is still on parole for defrauding Parliament in an arms deal scandal you will also find it difficult to win over the independent media. And if you try and deny the bleeding obvious (“the ANC is not divided”, “there is no corruption in the arms deal”, “the President did not know about Jackie Selebi’s links with organised crime”) you are going to lose the sympathy of the independent media.

What the President of the ANC seems to be saying is therefore something different, namely that there are too many independent newspapers with influence among the chattering classes. These newspapers are far too quick to dig up stories of corruption and mismanagement among ANC leaders and must be shut up. This is not an argument about the “battle of ideas” and how to win it, but an argument about how to silence those pesky journalists who dare to ask difficult questions and who dare criticise the Party that is the self-styled vanguard of the so called National Democratic Revolution.

The basic sound idea – that the media is powerful and that the ANC as the major political force in South Africa must engage it – is being used as a Trojan horse to try and silence any independent media. This view is essentially anti-democratic because it is based on the notion that the Party – as the leader of the National Democratic Revolution – always knows best and that any criticism of it cannot but be illegitimate because it emanates from the “opposition” press.

But for the time being it will not work. The independent media might be relatively small, but it is vibrant and it is protected by our Constitution and by the Courts. His Masters Voice can continue to tell us the good news and to ignore any criticism of the majority party, but other voices will keep the flame of democracy burning. And in the short term there is nothing Mr Zuma or Tony Yengeni or anyone else on the NWC can do about it. That is the wonder of living in a democracy. Hallelujah!

Friend of Jacob Zuma Speak

Nov 28th, 2007
by Pierre De Vos.
3 comments

The Friends of Jacob Zuma website has always been a font of interesting comments – even if some of the comments seem to be posted by slightly unhinged individuals. The post-weekend offerings are particularly interesting and also quite thought-provoking (I am not being sarcastic). For example Philani writes:

CDes, when SABC and the likes, rant about the economy or the Rand if and when our Pres, in waiting Mr J Zuma, becomes the President of the country, I can only draw the words of the wisdom and stalwart of the ANC, HARRY GWALA what he said in my home town Umlazi in the late nineties, when white people said if the ANC rules the Rand and the Economy will suffer, as if the Stronger Rand benefited us anyway. So he said ” ITS VERY STRANGE THAT THE PEOPLE ON TOP OF THE TREE (Rich people) KEEP ON SAYING TO THE PERSON ON THE GROUND(Poor people), HEY DO NOT SHAKE THE TREE YOU WILL FALL, MEANWHILE HE IS BUSY EATING THE FRUITS OF THE TREE YOU(The poor), KEEP WATERING EVERY DAY”
I think I have heard those word before and the SABC and rich people keep on repeating it. 3rd termers want to protect their pockets, not the ANC. If they play hard ball, let also play hard ball.

Harry Gwala made a good point. Remember all the white people complaining about sanctions during the apartheid years. of course, only time will tell whether Mr Zuma and those close to him will not soon see themselves as sitting at the top of the tree. They might then forget those who are watering the tree and rather look out for each other. It has happened before.

Another post, this time from Senzo:

Over the weekend I was glued to the radio news and I kept updating the Micro-Soft Spreadsheet I had prepared as the voting the results were being announced. After six provinces had announced results the SABC kept saying that TM was ahead, just because four provinces (EC, NW, WC & Limpopo) had nominated him while JZ only had two (Mpumalanga & FS). However, my MS Spreadsheet told me different news from the results of these six provinces. The news was good! After these six provinces, excluding the ANCYL, JZ was ALREADY AHEAD by 72 votes! KZN, GP, NC & ANCWL results were just a STAMP that JZ is the next president as he had already won with votes from those six provinces. This should serve as an encouragement to FJZ in the provinces where TM won. The votes we got from TM’s provinces combined to give us victory after just six provinces.

It is quite ironic that the SABC is targeted by so many in the Jacob Zuma camp (and with good reason I might add) because this mirrors the criticism of the SABC of other progressive voices that might not perceive a Jacob Zuma victory as in their interest. Can it be that we will experience a second Prague Spring if Jacob Zuma is elected President of the ANC because there will not be one party line that could be followed?

It all seems to point at the extreme fluidity in our politics at the moment. Who says a one party dominant state cannot have interesting politics!

Snuki, SABC should respect the dignity of everyone – not just of the VIP’s

Oct 26th, 2007
by Pierre De Vos.
9 comments

Some in the media can be rather sanctimonious about their right to say what they want to. Almost as sanctimonious, that is, as the politicians and their hangers on who so easily throw hissy-fits because of a perceived lack of respect shown by the media towards what they think are rather important people.

In the process a lot of nonsense is spoken about the Constitution and the need to “balance” the right to human dignity with the right to freedom of expression. Maybe this nonsense is spoken out of ignorance, but perhaps it is spoken out of a Machiavellian need to protect politicians and other VIP’s from scrutiny and criticism.

The lack of understanding of what the Constitution requires is neatly illustrated by Snuki Zikalala, who earlier this week said the SABC would never have published stories about Manto Tshabalala-Msimang being a thief and a drunk.

“We are guided by the constitution not to incite violence or hatred in our reporting, said Snuki Zikalala, the SABC’s chief of news yesterday. “Publishing such a story is disrespectful.”

Well, one is prone to make excuses for Snuki, seeing as he has a Phd from Bulgaria, so I did not think much of this silly statement. But then, a day later, Smuts Ngonyama, someone who should know better, complained about the way politicians are lampooned in Zapiro cartoons.

“People drawn as beetroots, or with showers grafted onto their heads, are increasingly depicted in the same way, in the parts of newspapers [in which] one expects to find facts and analysis,” said Ngonyama at a colloquium at Wits University on the media policy of the ANC. “Caricature now seems an acceptable, even expected, type of news reporting,” said an incredulous Ngonyama.

One could, of course, make the obvious point that in a Constitutional democracy politicians and other VIP’s are accountable to the rest of us and that criticism of politicians – even harsh criticism or vicious lampooning – is an essential part of democracy.

But there is a more important point to be made about the way both these gentlemen seems to suggest that politicians are deserving of special protection and that they must be respected because they are important people in the community. Implicit in this argument is that this is required to protect their human dignity and that the right to freedom of the media must thus be “balanced” against these people’s right to dignity.

The problem is that these people are confusing the common law notion of subjective dignity that was well known in the apartheid days, with the Constitutional notion of dignity. The former is the kind of dignity that is protected by the laws of defamation and is based on the assumption that some people have a bigger reputation and must therefore be specially protected by the law.

This is exactly the opposite of the Constitutional notion of dignity which is based on the assumption that every individual has an equal moral worth and needs to have their dignity respected equally. Whether one is a newborn baby or the President of the country, constitutionally one has equal dignity that must be equally respected and protected.

Protecting a person’s dignity in the constitutional sense therefore has very little to do with ensuring that important politicians do not have their feelings hurt by the truth – the common law of defamation takes care of that potential harm in appropriate cases. The Constitution, on the other hand, deals with a far more profound and important notion of dignity because it aims at creating a society in which each human being’s humanity is equally respected – whether one is a Manto Tshabalal Msimang, Jacob Zuma (with or without a shower head on his head) or Snuki Zikalala.

To live a life of dignity requires that a person must be able to make life choices, to decide for themselves who they are and how they want to live. To be able to have food to eat, clothes to wear and a shelter to live in.

It thus suggests that freedom of expression needs to be guaranteed exactly to safeguard the human dignity of the 48 million South Africans – not just the few hundred politicians and their lackeys. This is because individuals cannot decide for themselves how to live and who we are, we cannot begin to have moral agency, if we are not informed by the media about what is happening in the world and what our options are. To suppress information of public importance is to treat people like children and hence to disrespect their human dignity.

Politicians and boot-lickers of the powerful and influential who claim that their personal subjective dignity should trump the objective, more profound, dignity protected in the Constitution, are therefore self-serving charlatans hiding behind a completely false understanding of the Constitution.

What the SABC is doing is disrespecting the constitutional dignity of the 48 million ordinary South Africans to protect the common law dignity of the few VIPs. It has everything to do with protecting people from criticism and nothing to do with the Constitution.

Dali Mpofu should rather not dabble in constitutional law

Sep 10th, 2007
by Pierre De Vos.
4 comments

It’s a good thing Dali Mpofu, Group CEO and Editor-in-Chief of His Masters Voice also known as the SABC has stopped arguing constitutional law cases because he obviously has no clue of how to interpret the Bill of Rights.

In his letter announcing the SABC’s resignation from the South African National Editors Forum (SANEF) he argues (quite correctly) that at the heart of our Bill of Rights is the protection of human dignity and that most rights flow from the understanding that peoples’ human dignity should be respected and protected.

But then he makes a logical jump: human dignity must trump the right to freedom of expression and newspapers therefore never have the right to publish things that would affect the personal dignity of an important elected representative like our beloved Minister of Health.

We cannot remain quiet while our mothers and our democratically chosen leaders are stripped naked for the sole reason of selling newspapers.

The problem is that Dali – like many lawyers still stuck in the pre-constitutional common law paradigm – confuses the personal subjective dignity of an individual usually protected by the common law and the very different objective constitutional right and value of dignity.

The constitutional notion of dignity flows from the assumption that every individual has an inherent human dignity because he or she is human being. The apartheid government did not respect this dignity because it denied individuals the right to moral agency and thus the right to define for themselves who they are and how they want to live their lives. If one denies people the right to an identity, one denies that the person has an inherent moral worth and thus deny that person her dignity.

Protecting a person’s dignity in the constitutional sense therefore has very little to do with ensuring that important politicians do not have their feelings hurt by the truth – the common law of defamation takes care of that potential harm in appropriate cases. The Constitution, on the other hand, deals with a far more profound and important notion of dignity because it aims at creating a society in which each human being’s humanity is equally respected – whether one is a mother of the nation, an elected official, a homeless DA supporter or even Dali Mpofu.

This notion of dignity is aspirational and deeply optimistic. It suggests that humans are so special that we should respect their moral agency equally so that they can decide for themselves who they are and how they want to live. In short: a society where the equal moral worth of all will be respected.

But we cannot decide for ourselves how to live and who we are, we cannot begin to have moral agency, if we are not informed by the media about what is happening in the world and what our options are. To suppress information of public importance is to treat people like children and hence to disrespect their human dignity.

Politicians and boot-lickers of the powerful and influential who claim that their personal subjective dignity should trump the objective, more profound, dignity protected in the Constitution, are therefore self-serving charlatans hiding behind a completely false understanding of the Constitution.

The constitution protection of the dignity of every person therefore demands that we protect the vigorous, critical and fearless media from interference by self-serving politicians and other higher ups.

What people like Dali Mpofu really seem to think is that the Constitution should protect politicians and others important people from the truth – especially where the truth would reflect badly on that person and may reveal that the person is incompetent, corrupt, dishonest, craven or just plain stupid. Such revelations would obviously be personally hurtful and would affect the persons subjective dignity, but it would have nothing to do with the Constitutional concept of dignity.

To argue otherwise is obviously dangerous and perverting of the Constitution and should be resisted at all cost.

Judge errs in gagging Mail and Guardian, but truth reavealed

Jul 21st, 2007
by Pierre De Vos.
8 comments

If the SABC internal audit report is to be believed, the head of the SABC’s legal services, Mafika Sihlali, is a fraudster and a thief of the most brazen kind. It is clearly in the public interest that such explosive allegations made by the most credible of institutions – the SABC internal auditing committee – be aired in public.

After all, we pay our TV licenses and have a right to know about serious, credible allegations of theft and fraud at the public broadcaster. However, Judge Lettie Molopa, of the Pretoria High Court disagrees. In the early hours of Saturday morning she granted an interdict against the Mail and Guardian prohibiting it from publishing details of the internal report.

She argued that Mr. Sihlali did not have sufficient time to respond to the allegations made in the report. Focusing on the potential harmful effect of publication on Sihlali she said: “No doubt once the article is published it will definitely destroy the applicant.” She said it was “just and equitable” to interdict the Mail and Guardian.

I find the logic of the learned judge, well, spectacularly flawed.

It is true that the findings in the internal audit report is damning, as it contains recommendations that Mr. Sihlali should be criminally prosecuted for theft and fraud. If the findings of the report are correct, Mr. Sihlali should surely also be barred from ever acting as an attorney again. The report finds prima facie evidence that Sihlali has defrauded the SABC of almost 2 million Rand. The fraud allegedly started only 3 weeks after he started working at the SABC.

He did this by allegedly irregularly outsourcing work to his own law firm, charging double for VAT, claiming double payments for work and giving work to his friends.

Troubling also is the fact that the Head of the SABC, Dali Mpofu (called a compulsive, sophisticated liar by Winnie Mandela in 1992) shares directorships with Sihlali in nine different companies, which are active in financial services, advisory services and mining. In addition, SABC chairperson Eddie Funde and Pearl Luthuli, the head of SABC3, share a directorship with him on Onetel, a publicly listed telecommunications company.

So far neither Mpofu or the SABC Board has taken any action against Sihlali despite the existence of the report. This seems fishy in the extreme.

In this context the judgment from the High Court seems deeply troubling. It seems to me not to have taken into account or misinterpreting the recent judgment of the Supreme Court of Appeal in Midi Television (Pty) Ltd vs National Directorate of Public Prosecutions.

In that case Judge Nugent argued that a publication could only be gagged if the prejudice that the publication might cause is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then the court would not gag a paper unless it believes that the disadvantage of curtailing the free flow of information outweighs its advantage.

In making that evaluation the court will not only consider the interests of the newspaper but, more important, the interests of every individual in having access to information. The interest of the public to know would be even more important where the state is trying to stop the publication of embarrassing information and where they would not be able to show that the publication would infringe any of the other rights in the Constitution.

In this case, Judge Molopa decided that the interest of one person – a servant of the people working for the public broadcaster who have been convincingly implicated in criminal activity – should weigh heavier that the interest of the 45 million South Africans who have a right to know how their TV licence fees and taxes are spent and how the public broadcaster deals with corruption in its midst.

This she could only do by not giving any weight to the interest of the 45 million ordinary South Africans and giving far too much weight to one (relatively important, politically connected and influential) person’s interests. It seems to me that this judgment shows a troubling contempt for the masses of the people and our Constitution, and a surprising loyalty to rich, well-connected elites.

It is profoundly in the public interest (and in the interest of democracy) for the M&G to publish such serious allegations. Mr. Sihlali could have been given the opportunity to respond to the allegations next week, but at some point surely the information would become known and he would suffer the consequences. The mere existence of the report hurts his reputation – the Mail and Guardian is merely reporting on facts but are now punished for this by the Judge. To give an interdict now only postpones the inevitable publication of the allegations that Mr. Sihlali is a crook. Why interdict the paper after it was printed except to teach the Mail and Guardian a lesson?

If Mr. Sihlali did not want to have his reputation destroyed, he should not have acted in a way that provided prima facie evidence of criminal activity to the audit committee. It is not for a judge to protect the actions of such a public servant from public scrutiny, because it sends a signal that the judge does not respect freedom of the media and thinks that the media did something wrong by exposing the credible findings of theft and fraud.

This seems to suggest that the Judge is untransformed and that she has not internalised the values of openness and freedom enshrined in the Constitution. It would be a good thing to send her on a crash course to familiarise herself with the values of the Bill of Rights. I, for one, would be happy to assist if she was at all interested in learning more about the Bill of Rights.
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