Constitutional Hill

Sandile Ngcobo

Minister and her advisors must calm down

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

World Aids Day

Dec 1st, 2010
by Pierre De Vos.
44 comments

aids13

Today is World Aids Day. It’s a time to remember all the people in South Africa and elsewhere in the world who have died needlessly because of the greed of pharmaceutical companies, the ignorance, hatred, prejudice and fear of people and the wilful stubbornness and cold-hearted arrogance of politicians like former President Thabo Mbeki. It is a time to reflect on whether one is in a position to be tested and to go for voluntary counselling and testing if one is indeed in a position to do so.

Earlier this year as I re-read the Constitutional Court judgment in Hoffmann v South African Airways which was handed down in 2000 by the present Chief Justice Sandile Ngcobo, it struck me that at the time when then President Thabo Mbeki was questioning the link between HIV and AIDS and the efficacy of anti-retroviral (ARV) drugs to treat HIV, our Constitutional Court definitively came out on the right side of the argument. While the President was tilting at windmills, the Constitutional Court made a definitive finding that should have put a stop to the President’s questioning of the science of HIV and AIDS. Unfortunately it never did.

Legally at least, President Mbeki’s wild goose chase was irrelevant. Unfortunately for hundreds of thousands of South Africans who died of AIDS related illnesses during this time, it was not. Let me quote three passages from the judgment without further comment. It speaks for itself.

First extract:

[T]his case tells us the following about HIV/AIDS: it is a progressive disease of the immune system that is caused by the Human Immunodeficiency Virus, or HIV. HIV is a human retrovirus that affects essential white blood cells, called CD4+ lymphocytes. These cells play an essential part in the proper functioning of the human immune system. When all the interdependent parts of the immune system are functioning properly, a human being is able to fight off a variety of viruses and bacteria that are commonly present in our daily environment. When the body’s immune system becomes suppressed or debilitated, these organisms are able to flourish unimpeded. Professor Schoub identifies four stages in the progression of untreated HIV infection:

(a) Acute stage — this stage begins shortly after infection. During this stage the infected individual experiences flu-like symptoms which last for some weeks. The immune system during this stage is depressed. However, this is a temporary phase and the immune system will revert to normal activity once the individual recovers clinically. This is called the window period. During this window period, individuals may test negative for HIV when in fact they are already infected with the virus.
(b) Asymptomatic immunocompetent stage — this follows the acute stage. During this stage the individual functions completely normally, and is unaware of any symptoms of the infection. The infection is clinically silent and the immune system is not yet materially affected.
(c) Asymptomatic immunosuppressed stage — this occurs when there is a progressive increase in the amount of virus in the body which has materially eroded the immune system. At this stage the body is unable to replenish the vast number of CD4+ lymphocytes that are destroyed by the actively replicating virus. The beginning of this stage is marked by a drop in the CD4+ count to below 500 cells per microlitre of blood. However, it is only when the count drops below 350 cells per microlitre of blood that an individual cannot be effectively vaccinated against yellow fever. Below 300 cells per microlitre of blood, the individual becomes vulnerable to secondary infections and needs to take prophylactic antibiotics and anti-microbials. Although the individual’s immune system is now significantly depressed, the individual may still be completely free of symptoms and be unaware of the progress of the disease in the body.
(d) AIDS (Acquired Immune Deficiency Syndrome) stage — this is the end stage of the gradual deterioration of the immune system. The immune system is so profoundly depleted that the individual becomes prone to opportunistic infections that may prove fatal because of the inability of the body to fight them.

Second extract:

The natural progression of HIV has been dramatically altered in consequence of recent advances in the available medication. There are now combinations of drugs that are capable of completely suppressing the replication of the virus within an HIV+ individual. This combination of drugs has been described as Highly Active Antiretroviral Therapy…. They are available in South Africa and are increasingly accessible. With successful [ARV] treatment, the individual’s immune system recovers, together with a very marked improvement in the CD4+ lymphocyte count. A significant improvement in survival rates and life expectancy results.

Third extract:

Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era — it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly. SAA, as a state organ that has a constitutional duty to uphold the Constitution, may not avoid its constitutional duty by bowing to prejudice and stereotyping.

People who are living with HIV must be treated with compassion and understanding. We must show ubuntu towards them. They must not be condemned to “economic death” by the denial of equal opportunity in employment. This is particularly true in our country, where the incidence of HIV infection is said to be disturbingly high. In regard to the ability of people with HIV to perform employment duties, and in particular the work of a cabin attendant, the minute records that: With the advent of [ARV] treatment, individuals are capable of living normal lives and they can perform any employment tasks for which they are otherwise qualified.

For those of us living with HIV or are otherwise affected by HIV, these words can only make us proud of our highest court. No, let me rephrase that: I would say that every single South African — even those who believe they are HIV negative or those that believe they do not know anyone who is HIV positive — should be proud of our court for these sane findings based on scientific evidence and the ringing words that endorses respect for all people, regardless of their HIV status.

Why extend the terms of Constitutional Court judges?

May 24th, 2010
by Pierre De Vos.
40 comments

A journalist sent me the most curious draft Bill which – if passed – would amend section 176 of the Constitution. At present that section 176, read with the relevant legislative provisions, limits the terms of Constitutional Court judges to a non-renewable term of between 12 and 15 years (up from 7 years in the interim Constitution).

The proposed amendment of section 176 will extend the term for Constitutional Court judges who will be able to serve until they reach the age of 70 – regardless of how long they had already served on the Constitutional Court. If passed, this will mean that Chief Justice Sandile Ngcobo appointed by Jacob Zuma last year – who currently will have to retire in 2012 – would be able to serve as Chief Justice until 2023 (along with judges Cameron and Froneman who would then also have to retire in 2023).

Deputy Chief Justice Dikgang Moseneke, on the other hand, will then have to retire in 2017 – long before the end of the term of the current Chief Justice. The proposals would therefore make it impossible for him ever to become Chief Justice. Newly  appointed Judges Chris Jafta and Bess Nkabinde will then serve until 2029, while Justice Mogoeng Mogoeng, a lay-preacher, will serve until 2030.

The question that comes to this suspicious mind is: why has Minister Jeff Radebe made this proposal now? Did he consult the Chief Justice and the other judges of the Constitutional Court? Why wait with the proposal until after four of the most compassionate and progressive judges have retired from the Constitutional Court and four new judges were appointed by the very guy who has had several run ins with the courts because he took money from a crook and then did favours for that crook?

I for one, smell a rat.

When the Constitution was drafted there were long debates about the term to be served by judges of the Constitutional Court. It was pointed out then that South Africa should avoid the American example, where Supreme Court justices serve for life or until they fall over or retire. Sometimes they serve for 30 years or more, thus ensuring some influence for the President who appointed them many years after that President had retired or even died.

Because judges of the South African Constitutional Court have enormous powers and because the exercise of these powers have political ramifications, it was felt that the Constitutional Court judges – unlike High Court and Supreme Court of Appeal judges – should serve a fixed term of no more than 15 years. In this the drafters of our Constitution followed the wise model of the German Constitution and the Constitutions of many other modern democracies.

The reasoning was simple and clear. Judges of the Constitutional Court exercise power that will have strong political ramifications. They are not in effect appointed by the Judicial Services Commission (JSC) in the same manner as the judges of High Courts but are selected by the President from a list prepared by the JSC.  The President also appoints the Chief Justice and Deputy Chief Justice without having to follow the advice of the JSC.

By giving the President a decisive role in the appointment of the judges of our highest court, the Constitution recognises the fact that this court plays a more political role than the other courts. It can declare invalid the actions of the President, has to confirm the unconstitutionality of legislative provisions and, heaven help us ever having to go there, would be able to rule on the validity of an election result.

A relatively regular turnover of judges of the Constitutional Court would therefore ensure that a new President would have some say in the appointment of the Constitutional Court judges as the 12-15 year terms of Constitutional Court judges come to an end and they have to be replaced. This would ensure that the leader of a defeated political party would not be able to exert undue influence on our legal  system by appointing Constitutional Court judges that will serve perhaps far into the future. One would not want judges to serve for 30 or 40 years when that political party whose leader had appointed them had already faded into obscurity or had even disappeared (as the National Party has indeed done).

Imagine these proposals were in place in 1990 and FW de Klerk had appointed 40 year old judges to the Constitutional Court who could then serve until they were 70. That would have meant that the Constitutional Court would have been packed with people appointed by De Klerk and would have been able to serve until 2020 – long after the demise of the National Party. If de Klerk had used his power in a Machiavellian manner to ensure the appointment of judges that were in effect pro-National Party, the Constitutional Court would have been able to thwart much of the ANC’s transformation programme.

Some High Court judges who currently still serve on our courts were appointed before the end of apartheid, but their decisions can always be appealed to the Constitutional Court. Imagine pro-apartheid judges were allowed tos erve on the Constitutional Court for the next 30 years? How undemocratic would that be?

This would have been bad for democracy, bad for the legitimacy of the Courts and bad for the Constitutional project as a whole. It would also have invested the appointment of Constitutional Court judges with so much more significance, as a President would be far more likely to choose a mediocre but reliable party hack for a position on the Court if he or she knew that the appointment would last for 30 or 40 years and might still help to thwart the political programme of a party who defeated the President’s party at the ballot box.

Regardless of how one feels about the judges presently serving on the Constitutional Court – and in my humble opinion there are several brilliant judges serving on that court at the moment, along with a few other judges who one would not be able to  describe as intellectual giants – this proposal seems wrong and dangerous.

It upsets the careful balance devised by the constitutional negotiators which recognised the political role played by the Constitutional Court, but limited the term of the judges serving on this court to ensure that one party in power did not pack the court with its supporters to rule South Africa from the grave – so to speak.

In the absence of cogent and plausible arguments for this amendment, it would not be unwise to suspect that there is some inherently undemocratic about this move and that malicious intent might be behind these proposals. Given the fact that these proposals are brough to you curtesy of the same people who engineered the appointment of that ethically challenged guy called Menzi Simelane as head of the NPA, I am deeply suspicious about the motive behind this proposal. Surely, it will be seen by many people as an attempt by some in the ANC to help entrech their power, if not until Jesus comes then at least for the next 30 years.

More power for the provinces?

May 11th, 2010
by Pierre De Vos.
22 comments

The Constitutional Court today declared invalid the entire Communal Land Rights Act (also referred to as CLARA). In the case of Tongoane and Others v Minister for Agriculture and Land Affairs and Others the Court today found that CLARA was invalid in its entirety because it was not adopted in terms of the correct procedure prescribed by the Constitution.

The Act, which was adopted in 2004, purported to give effect to the constitutional obligations set out in section 25(9) of the Bill of Rights. This section, inter alia, places a duty on Parliament to enact legislation to deal with the following situation:

A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.

In other words, the Constitution places a duty on Parliament to enact legislation “diligently and without delay” to deal with the consequences of the 1913 Land Act and the consequent apartheid-era regulation of communal land rights which did not provide secure tenure for those living on communal land in terms of indigenous law. CLARA, rather belatedly, tried to fulfill this duty.

However the Act was heavily criticized because it seemed to transfer far too much power to traditional authorities to deal with the use and the enjoyment of rights of those living on communal land. Gender activists have been particularly concerned about the effects of this law on the rights of women living in traditional communities on communal land, while the unelected traditional leaders have welcomed the Act because it was perceived as fortifying their powers over their “subjects”.

In any event, the Court did not deal with these issues, but rather chose to declare the Act invalid because it was not passed by Parliament in the manner prescribed by the Constitution. Instead of treating the Bill as one that affects the provinces (requiring a more active role for the National Council of Provinces and its provincial delegations), Parliament adopted the law as if it dealt only with issues relating to the exclusive powers of the national Parliament (and hence requiring far less input from the NCOP and the provincial delegations).

This all seems rather technical and academic because the Act would have been passed by Parliament no matter what procedure was followed. This is because the ANC at present controls the provincial legislatures in 8 of the 9 provinces and party discipline would have ensured that the NCOP provincial delegations of at least 8 of the 9 provinces would have obtained a mandate from their provincial legislatures to support the Bill. But the judgment is nevertheless important because to my mind it confirms a slight shift in the thinking of Constitutional Court over the past few years about the appropriate constitutional relationship between the national and provincial governments.

Some commentators criticized the Constitutional Court for its extremely narrow interpretation of the powers of provinces in earlier cases – most notably in the Liquor Bill case. In today’s judgment the Constitutional Court, through some nifty legal footwork, emphasized the important role of provinces in adopting legislation affecting them and ruled that whenever legislation would substantially relate to the competences of the provincial legislatures, the NCOP – which represents the interests of provinces in the national Parliament – would have a greater role to play in the adoption of that legislation.

This would become more significant if the political balance of power shifts and more provinces are ruled by parties other than the ANC. In that sense, the judgment confirms the unique quasi-federal nature of our system of government and accords the provinces the power to play a decisive role in the adoption of any legislation affecting the provinces – even when broadly speaking, the legislation deals with an issue primarily within the exclusive competence of the national parliament.

The case also confirms the view adopted in the Doctors for Life case that Parliament had a duty to comply with the so called “manner and form” requirements for the adopting legislation. Where the Constitution prescribes a more onerous path for the adoption of legislation and Parliament followed the less onerous path, the Court will declare invalid that legislation – even where the legislation would have been adopted in any case. This, the Court said, was a necessary consequence of the Rule of Law and the supremacy of the Constitution.

These judgments place a rather important onus on the the Speaker and the Deputy Speaker of the National Assembly, and the Chairperson and the permanent Deputy Chairperson of the NCOP, who must decide what procedure must be followed when Bills are adopted by Parliament. If they wrongly tag the Bill to be adopted, the Court willl declare the Act passed in terms of this wrong procedure unconstitutional.

The judgment is to be welcomed as it strengthens the hand of provinces vis-a-vis the national legislature and fleshes out the nature of the quasi-federal system established by our Constitution.

There is, however, one perplexing aspect of the judgment that I do not understand. (This is a bit technical, so I hope, dear reader, you are still following me.) In developing the argument that the NCOP had a greater role to play in the adoption of legislation that affected the interests of provinces, Chief Justice Ngcobo argues that it would make no sense to accord enhanced powers to the NCOP only where the legislation deals with issues relating to the concurrent powers of the national and provincial legislature.

This is because their concurrent legislative powers would enable them [provinces] to enact their own preferred legislation in the same field, which indeed would enjoy some precedence, subject only to the national override provided for in section 44(2).

Unless I am seriously missing something, this statement embarrassingly confuses the exclusive powers of the provincial legislatures (to which section 44(2) applies) with the powers they exercise concurrently with the national legislature (to which section 146 applies). The reference to section 44(2) therefore seems just plain wrong as it applies to legislation regarding the exclusive powers of provinces – not to the concurrent powers they hold along with the national legislature. What Ngcobo must have meant was to refer to section 146 of the Constitution, which deals with the situation where both the national parliament and a provincial parliament have passed legislation dealing with one of the concurrent competencies.

This is the kind of mistake that students often make in exams and many a student have failed Constitutional Law because they have confused section 44(2) and section 146 of the Constitution. Section 44(2) deals with the exclusive powers given to provinces – not with the concurrent powers they share with the national legislature (as asserted by the Constitutional Court in the passage quoted above).

The mistake is more serious than a mere slip of the pen, because while section 44(2) does state that provincial legislation dealing with any of their exclusive competencies enjoy some precedence subject to an override, section 146 is far more equivocal. The national legislation enacted on any topic on which provinces and the national legislature share competence will prevail over provincial legislation as long as one of the long list of rather broadly phrased conditions are met.

As far as I can tell the Constitutional Court confused two very different sections of the Constitution. If I am correct, it might be helpful if the Constitutional Court corrected this mistake before the judgement is published and my students are further confused. If I am wrong, I would be happy to hear why.

Just a jump to the right?

Sep 14th, 2009
by Pierre De Vos.
75 comments

What kind of democracy do we want in South Africa? Do we want a Westminster style winner-takes-all democracy with Parliamentary supremacy in which the majority of the moment can do as it pleases – regardless of the consequences to vulnerable and marginalised sections of society? Or do we want a constitutional democracy in which the majority of the moment is constrained by a set of normative values and human rights safeguards set out in a Constitution in order to bestow equal citizenship on all – regardless our differences?

I am asking because the Mail & Guardian reported on Friday that the National Interfaith Leadership Council (NILC), formed by Rhema church leader Ray McCauley and closely associated with President Jacob Zuma, wants to revisit laws legalising abortion and same-sex marriages.

The NILC last week also attacked FUL for launching a legal challenge against the JSC decision to sweep the Hlophe scandal under the table.  Nthabiseng Khunou, an ANC MP and member of the NILC secretariat, told the Mail & Guardian that the council would “play a role” in revisiting legislation legalising abortion and gay marriage. At least four of the 20 members of the NILC are reportedly ANC members of Parliament and the M&G claimed that the NILC uses the ANC parliamentary caucus’s communication facilities to communicate with the media, as two NILC press statements were sent from the ANC’s offices in Parliament.

When the same-sex marriage legislation was discussed in the ANC caucus before it was passed by Parliament, many ANC MP’s expressed vehement disapproval of the legislation, some doing so in the most ugly homophobic terms. During the public hearings in Parliament on the legislation some ANC MP’s expressed concern that the legislation would lead to the extension of adoption rights to gay couples, blissfully unaware that the Constitutional Court had already extended that right to same-sex couples several years ago.

One hopes that the Mail & Guardian report is a little alarmist and that the majority of ANC MP’s and members of its NEC are neither right-wing, nor homophobic. Nevertheless, it is worrying that there seems to be a growing lobby in the ANC who are right-wing and hate gays and lesbians. After the Polokwane revolution, many commentators argued that the ANC would now move to the left, but that prediction seemed to have been wildly optimistic. Are we seeing a jump to the right instead?

Of course it will not be easy to take away the right of same-sex couples to get married. The Constitution will have to be changed first. And many good people inside the ANC are dead-set against changing the Constitution in order to reintroduce discrimination against gay men and lesbians, condemning us to second-class citizenship.

Some would argue that the Constitution should be changed to allow for the reintroduction of discrimination against gay men and lesbians and the subjugation of woman living in rural areas because that is what the majority of South Africans want. Respect for the dignity of women and gay men and lesbians, so the argument goes, are not in accordance with “African values and traditions”, “Christian or other religious teaching”, “Afrikaner culture”, “public morality” etc. 

This view cannot be squared with the notion of a constitutional democracy. In such a democracy – established by the 1996 Constitution - the views of the majority (no matter how sincerely held) cannot always be used to justify discrimination against vulnerable and marginalised sections of society. Justice Sandile Ngcobo said it well in the Hoffmann v SAA judgment dealing with HIV discrimination:

Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era – it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly.

I obviously subscribe to the notion of constitutional democracy. That is why I believe in religious freedom and the right of religious organisations to discriminate against gay men and lesbians. If a religious group refuses to marry a same-sex couple or prohibits its clergy or ordinary members from loving members of their own sex, I might point out that they are animated by prejudice, bigotry and hatred, but I would not advocate for a closure of the church or for an incarceration of its leadership. Live and let life, I say.

The folks of NILC are a bit less tolerant, it seems, and want the law to reflect their own prejudices and to endorse their own bigotry. This is rather short-sighted as it assumes that one’s own view will always be the majority view. But societal views change and none of us can say with certainty that we would not find ourselves as part of a vulnerable and marginalised minority at some point during our lives. We may discover we are HIV positive or we may suddenly belong to the “wrong” faction in the ANC. It is then that a constitutional democracy will protect us from mob rule.

Pity so many religious leaders cannot understand that it is short-sighted and dehumanising to want to enforce your own views on the society as a whole. Why are they so insecure about their teachings that they want the state to police the teachings of their church? Are they somehow worried that ordinary people would reject the fairy tales they tell every Sunday? Don’t they have any FAITH?

Opposition parties shoot themselves in the foot

Aug 24th, 2009
by Pierre De Vos.
58 comments

It is clear that President Jacob Zuma made a mistake when he announced his “nomination” of Justice Sandile Ngcobo as new Chief Justice before asking opposition parties for their opinion on the matter. He made things worse during the news conference following the announcement when he said – in response to a question – that he had “appointed” Ngcobo.

Section 174(3) clearly states that:

The President as head of the national executive, after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal.

If this had happened when that other guy (what is his name again?) had still been President, the mistake would probably have been denied and a vigorous ad hominem attack would have been launched (either personally in his weekly internet letter or through henchmen like Essop’s Fables) against the opposition for complaining about the matter.

President Zuma did the right thing, admitting that he had made a mistake and writing a letter to the leaders of opposition parties and explaining that he used the word “appoint” in response to a question from the media. This, he wrote:

was inadvertent and does not change the fact that I had decided merely to nominate Justice Ngcobo to this position. It is common cause that you first nominate, and then open the consultative process. Our reading of the Constitutional provisions regarding the appointment process does not preclude the President from proposing a name. In fact, the practice as followed in the past has generally been for the President to ask the parties to state their views on a particular name.

Please rest assured that I have not appointed a new Chief Justice, nor have I taken a final decision on whom to appoint as the new Chief Justice, but reiterate my confidence in Justice Ngcobo as my preferred candidate. In making my final decision, I will of course take into account any views the leaders of political parties may express about him.

The President does not have to follow the advice of the opposition parties after consulting them on the Chief Justice, but he must (as his letter makes clear) keep an open mind and listen to the opposition parties before going right ahead and appointing anyone he pleases. The provision that he must appoint a Chief Justice “after consultation with” opposition parties is thus a fomalistic one and it would be surprising indeed if any president (from whatever party) ever changed his or her mind after consulting the opposition about such an appointment.

I am therefore surprised that the opposition parties have refused to accept President Zuma’s apology and admission that he made a mistake. It is not as if it will change the outcome of the process, and by harping on about this even after an apology and admission that a mistake was made, seem churlish and petty in the extreme.

There are far more important constitutional issues they should be concerned about and which they could rightly complain about: the probable unlawful dropping of charges against Zuma, the probable unlawful release of Schabir Shaik and the Constitutional 17th and 18th Amendment Bills which will erode the testing right of the courts are all important constitutional issues opposition parties could rightly get upset about.

Now they natter on like little children who received a slightly smaller piece of the birthday cake. They run the risk of being perceived as the boy who cried wolf once too often so that when they complain about something really important people will just say: well, there they go again complaining about everything.

They claim Zuma’s apology and admission is just an artificial move with no substance and that he should withdraw Ngcobo’s nomination. But style and substance often overlap and I, for one, would like to applaud our President for facing up to his mistake and taking steps to rectify it. The fact that opposition parties seem to find it impossible to display the same kind of magnanimity and humility as the President, says much about what is wrong with opposition politics in our country.

If one cannot distinguish between the important issues worth fighting about and the trivialities, one loses one’s credibility. This has clearly happened in this case and in the end Zuma, despite the mistake, emerges as the winner of this spat.

Too early to tell?

Aug 6th, 2009
by Pierre De Vos.
33 comments

Why has President Jacob Zuma decided to appoint Justice Sandile Ngcobo as Chief Justice? What does it say about the ANC and the President’s view on the independence of the judiciary and its role in our constitutional democracy? Justice Ngcobo will serve only 18 months as Chief Justice before President Zuma will again have the opportunity to appoint a Chief Justice – this time perhaps from the four new appointments to be made later this year.

There will be doomsayers who will pull out their hair (if they have any left), gnash their teeth and shout to the heavens because, so they will claim, the ANC is busy fundamentally to undermine the independence of the judiciary and the appointment of Justice Ngcobo is just a stop-gap measure to pave the way for the appointment of John Hlophe as Chief Justice in two years time when Ngcobo must retire.

It seems to me such an analysis will be too simplistic. In my opinion the move should be interpreted as part of a long-term strategy by the ANC to speed up the implementation of what it sees as the “transformation” of the judiciary. President Zuma has demonstrated over the past few months that he does not want to rock the boat and likes to make appointments that will not be too controversial.

As I have said before, Justice Ngcobo perfectly fits this bill as he will be the longest serving Justice on the Constitutional Court when he takes office as Chief Justice, is highly respected among other judges and lawyers and does not have the kind of baggage associated with some other judicial disasters.

At the same time, Ngcobo will retire in 2011 and the President will then be able to appoint another Chief Justice perceived to be more pliant and more executive minded. Like the US President who would want to appoint a Supreme Court justice whose philosophy closely resembles his own without upsetting public opinion too much, Zuma has therefore decided to appoint a safe Chief Justice and this will allow him to appoint another Chief Justice in 2011 when his power may be more deeply entrenched and he will thus be less fettered by concerns about rocking the boat.

This is not a short term game, but part of a long term strategy to “transform” the judiciary in line with the ANC January 8 statement of 2005 which said:

However, we are also confronted by the similarly important challenge to transform the collective mindset of the judiciary to bring it into consonance with the vision and aspirations of the millions who engaged in struggle to liberate our country from white minority domination.

The reality can no longer be avoided that many within our judiciary do not see themselves as being part of these masses, accountable to them, and inspired by their hopes, dreams and value systems. If this persists for too long, it will inevitably result in popular antagonism towards the judiciary and our courts, with serious and negative consequences for our democratic system as a whole.

Of course, it is unclear whether this statement means the ANC sees a “transformed” judiciary as one staffed by judges who will defend the constitution and the rights of the masses of our people whose rights will in the future as in the past – often! – be infringed by the legislature the executive and other powerful institutions, or whether it wants a judiciary staffed with judges who will conflate the interests of the masses of the people with the interests of the ANC ruling elite and will not check the abuse of power by the governing party, its lackeys and the business elites.

But these are of course things one can legitimately argue about in a democracy. Meanwhile the appointment of Justice Ngcobo provides some support for the view that the ANC really wants an independent judiciary and not a judiciary who will be too scared to enforce the rights of ordinary citizens.

However, the real test will come when the President has to appoint four new judges on the Constitutional Court and when Ngcobo retires and he has to appoint a new Chief Justice. Only then will we have a better picture of what the long term strategy of Zuma and the ANC regarding our judiciary might be.

So, I feel a bit like Chairman Mao who when asked what he thought the impact of the French revolution was, famously replied: “It is too early too tell.”

Who will be our next Chief Justice?

Jul 23rd, 2009
by Pierre De Vos.
41 comments

In the near future President Jacob Zuma will probably appoint Justice Sandile Ngcobo as our new Chief Justice. I have a high regard for Justice Ngcobo. Whether one agrees with him or not, his dissenting judgment in the Prince case (dealing with the religious freedom of a Rastafarian to use cannabis) is a work of great beauty.  And every time I read the Hoffmann judgment, in which Justice Ngcobo declared that it constituted unfair discrimination on the part of South African Airways to discriminate against Mr Hoffmann on the basis of his HIV status, I feel proud to be a South African. When I get to the following passage I inevitably get a lump in my throat:

In view of the prevailing prejudice against HIV positive people, any discrimination against them can, to my mind, be interpreted as a fresh instance of stigmatisation and I consider this to be an assault on their dignity. The impact of discrimination on HIV positive people is devastating. It is even more so when it occurs in the context of employment. It denies them the right to earn a living. For this reason, they enjoy special protection in our law.

The appointment of Justice Ncobo will also come as a relief to those of us who think that Judge President John Hlophe is not fit to be on the bench – let alone to be appointed Chief Justice – because of his propensity to tell untruths, his numerous actions which appears ethically problematic and his undignified and un-judicial display of ambition.

However, it seems sad and a little bit worrying that an equally worthy – and more senior – candidate, Deputy Chief Justice Dikgang Moseneke, will probably be overlooked because of a completely innocuous remark he made at his birthday party when he said: “I chose this job very carefully. I have another 10 to 12 years on the bench and I want to use my energy to help create an equal society. It’s not what the ANC wants or what the delegates want; it is about what is good for our people”.

In private discussions the conspiracy theorists sometimes also note that Moseneke – who was sent to Robben Island at the age of 16 – might lose out because he was Deputy President of the PAC and from Sotho origin, while Ngcobo’s home language is Zulu, but I can’t imagine that the non-racial ANC who vehemently opposes tribalism will take such things into consideration.

For me the issue is one of principle, not of personalities. Given the fact that South Africa’s Constitution creates the position of Deputy Chief Justice, it seems appropriate to appoint the Deputy Chief Justice as Chief Justice when that position opens up because he or she would be the most senior judge and “next in line” so to speak. Establishing such a practice might also safeguard against the perception that the most pliant and trusted judge would be appointed to the top job by the President of the day and might help to prevent the overt politicisation of the judiciary.

Although judges will not be swayed by such considerations, respect for the judiciary (and the Chief Justice) does not only depend on the actual ability and willingness of judges always to act without fear, favour or prejudice but also on the perception created in the minds of the public that they will do so. Where a practice is established to appoint not the most senior judge to the position of Chief Justice, ordinary citizens will wonder why the next in line was overlooked and why another candidate was chosen and might well think that naked politics played a role in such a decision. This will not instill and further entrench respect for our judiciary.

In any case, the appointment of Justice Ngcobo will be good news for those  who champion the rights of accused persons. In the Zuma case justice Ngcobo displayed a very progressive view of criminal procedure rights – a view not shared by most judges or ordinary citizens in South Africa who seem – like me – to be a little less bleeding heart progressive on this issue than those who believe the criminal justice system should bend over backwards to safeguard the rights of accused persons (often wrongly called “criminals” by politicians) in order to secure their right to a fair trial.

Sandile Ngcobo Chief Justice?

Jul 31st, 2008
by Pierre De Vos.
24 comments

The first thing that strikes me about the Constitutional Court judgment in the main Zuma application is that it was not unanimous. Justice Sandile Ngcobo dissented and would have found in favour of Zuma and Thint. Given the extraordinary political implications of the judgment, it is fair to assume that the Chief Justice would have tried very hard to get consensus among the judges to deliver a unanimous verdict.

The fact that Justice Ngcobo dissented will thus raise eyebrows among Constitutional Court watchers. In the year before the current Chief Justice and Deputy Chief Justice were appointed, many of us noticed that Justice Ngcobo suddenly wrote an extraordinary number of opinions, either dissenting from the majority or concurring with it in a separate judgment. Some interpreted this zeal as a sign that Justice Ngcobo had ambitions to become Chief Justice and was trying to show his mettle.

The fact that he has dissented in this case may create the impression that he is trying to position himself as an alternative candidate to Deputy Chief Justice Dikgang Moseneke for the post of Chief Justice when Pius Langa retires next year.

This perception may well be unfair. He might just have a view that the rights of individuals should weigh far heavier than the interest of the state and of society in fighting crime. After all, he wrote the dissenting opinion in the Prince case and argued there that the state had not justified the law that failed to make an exception for Rastafarians to posses and use dagga.

Nevertheless, a dissenting opinion in such a high profile case that went against the man who might well appoint the next Chief Justice, will not go unnoticed.

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