SUPPORT EQUAL EDUCATION’S CAMPAIGN FOR SCHOOL LIBRARIES!

SUPPORT THIS AS A STEP TOWARDS A MOVEMENT FOR QUALITY AND EQUAL EDUCATION FOR ALL!

Please see the attached memorandum.

We are calling for endorsements from organizations, schools, universities, student societies, youth movements, newspapers, and clubs. All organs of civil society are invited to endorse this memorandum and Equal Education’s Campaign for School Libraries.*

International organizations, schools and civil society can also endorse. Local and international endorsements will be kept on separate lists.

Please fax your endorsement to 086 601 0666 or e-mail it toinfo@equaleducation.org.za ASAP!

This memorandum will be handed over to government at marches in:

-      Cape Town               21 March 2010                071 118 4662

-      Pretoria-Tshwane             26 March 2010                083 407 6047

-      Polokwane                30 March 2010                072 293 8201

Over 15,000 people are expected at the above events.

Over 50,000 people have already signed the individual petition.

Please DONATE to Equal Education today! We need your support!

http://www.equaleducation.org.za/donate/donate-to-ee

With thanks from the whole Equal Education team.

By Zanna Bliss

Last week, while walking down Cape Town’s Main Road in the Woodstock/Salt River area where I live, I saw something I had never seen before.  At one of the closed-down, decrepit, art deco-era textile factories, a door was standing ajar.  Curious, I peered inside, and upon looking in, saw dozens of happy textile workers making tee-shirts for the upcoming soccer extravaganza featuring Zakumi, the official mascot for the 2010 FIFA World Cup.

Just kidding… what I saw was surprising, even though I should have known what to expect: a large, airy room, empty but for the weeds growing through the cracks in the concrete floor and the rays of sunlight streaming through broken windows.

On Friday, the Congress of South African Trade Unions (COSATU) conducted a protest demonstration outside FIFA’s Cape Town office, objecting to the outsourcing of manufactured Zakumi products, including jerseys, scarves, dolls and the mascot itself, to foreign companies.  Ordinarily, I am sympathetic to COSATU’s initiatives, as it mostly appears that they are genuinely trying to advance the interests of South Africa’s working class.

I worry though that their demands, while legitimate, are too grand, too unrealistic, to fit with the current economic realities that face our nation.  ‘Good ol’ COSATU,’ I’ll say to myself, ‘they sure do know how to deliver a memorandum.’  In this case though, they might actually have a very valid point.

Zakumi is no stranger to controversy. Senior ANC MP Shiaan-Bin Huang was given the contract for manufacturing the mascot, a job he allegedly outsourced to a factory in China. It has since come to light that the Chinese factory workers tasked with assembling Zakumi dolls are paid the equivalent of R23 each work day (which may be as long as 13 hours), and are subjected to sub-standard working conditions.  On 3 February, COSATU warned FIFA that it would not allow Zakumi to be sold in South Africa, pointing out that South African industry is more than capable of being tasked with manufacturing the mascot.

In President Zuma’s State of the Union address last week, he spoke of the need to build an economy that creates jobs instead of depriving them from South Africans, and of the imperative of continued economic growth that would give rise to more employment opportunities. While the upcoming World Cup does provide job opportunities, many of these are guaranteed to be short-lived.

The symbolism of manufacturing the official mascot for the first-ever African world cup on African soil and by African hands is not unimportant, but it would be more prudent for policy makers and economic planners – whomever they may be – to concentrate on long-term strategies for sustainable and self-replicating job opportunities. In a country where conservative figures place unemployment between 20 – 25% of the workforce, we need to look beyond 2010, with all its glitz and Zakumi-glamour, to a future in which workers are protected and the unemployed are afforded the opportunity to work, thereby giving more substance to the right to human dignity and the right to choose one’s trade, occupation or profession, as enshrined in our Constitution’s Bill of Rights.

At Friday’s demonstration, COSATU representatives, true to form, submitted a memorandum to the World Cup Local Organising Committee, expressing dissatisfaction with the outsourced manufacture of Zakumi mascots and apparel.  The protesters, including aggrieved traders and textile workers, emphasised their support for the World Cup, while lamenting the fact that taxpayer’s money is being used to cover the costs of the event without being fed back into employment opportunities for locals. They stated that while they knocked on FIFA’s door on that occasion, next time they would be prepared to kick it down.

The South African government and those tasked with organising the World Cup need to seriously consider these valid grievances, as they are symptomatic of issues that are sure to remain on our political landscape until such time as they are dealt with effectively.  What is more, our government should start looking beyond the ephemeral opportunities provided by the FIFA World Cup for ways to open doors to real and lasting employment for our people.

Standing up to the global economic goliath that is China is going to be difficult – as illustrated by US President Obama’s last-minute cancellation of his meeting with the Dalai Lama this last week – but it is going to have to happen if we are serious about advancing human rights and job creation in South Africa.  Instead of supporting Chinese industry with its shady conception of human and workers’ rights, our government could utilise existing infrastructure and build an expanded public works programme, thereby creating more job opportunities for South African workers and reinforcing its oft-stated commitment to human rights and poverty alleviation.

• Zanna Bliss is a UCT Law student.

By Daniel Mackintosh

The recognition of and respect for human rights are the bedrock of any substantive democracy. Yet, according to the Association for Civil Rights in Israel (ACRI)’s State of Human Rights Report 2009, they are being applied in a discriminatory manner. The Report, published in December 2009, detailed what Haaretz, a left-wing daily, said was a country in which human rights were ‘on probation’. The Report cited internal Israeli discriminatory policies and cataloged systematic human rights abuses in the Israeli occupied Gaza Strip and West Bank.

During operation ‘Cast Lead’ in Gaza in 2009, hundreds of people were arrested at numerous demonstrations within Israel protesting against the war. The State Prosecutor supported harsh action against demonstrators and in one incident signs criticizing the war were characterized as ‘disturbing the peace’. The Israeli media was almost unanimous in its support for the invasion. Severe restrictions on media coverage during the conflict (for example, by not allowing Israeli and foreign journalists access to Gaza)  lead to a sharp drop in Israel’s rating on journalistic freedom, from ‘free’ to ‘partly free’ on the Freedom House score sheet (below that of Kuwait, the UAE and Lebanon). The targeting of dissenting individuals by the Israeli state was followed by the targeting of Israeli human rights organizations. ‘Breaking the Silence’ (BtS), an NGO that captured testimonies of Israeli soldiers who participated in ‘Cast Lead’  documenting the use of Palestinian human shields by the Israeli Defence Force( IDF), was publicly defamed by the government. The Israeli Foreign Ministry asked foreign donor governments to halt BtS’s funding.

Discrimination against Palestinian-Arab citizens who live inside Israel continued in 2009, as seen by the wide disparities between them and their Jewish counterparts in areas like education and land allocation. In addition, the proposed Nakba Law placed before the Israeli Parliament but subsequently revised to exclude imprisonment, would have criminalised the marking of the Palestinian Nakba (meaning ‘catastrophe’, used by Palestinians to commemorate the 1948 war), resulting in a denial of the collective Palestinian right to expression. The allocation of educational resources by the state included ‘percentage of students enrolled in the IDF after completing school’ as a relevant factor, discriminating against Arabs citizens of Israel who do not serve in its armed forces. The Israeli Foreign Minister’s party, Yisrael Beiteinu, supported the Loyalty to Israel Law which made the granting of citizenship conditional on a commitment to the ‘Jewish, Zionist and democratic State of Israel, its symbols and values’. Someone who refused this pledge could have had their citizenship revoked. Much to the Ministerial Committee for Legal Affairs’ credit, the bill was rejected.

The distribution of land within Israel continues to discriminate against Palestinian-Arabs, despite the legal opinion of the Attorney General who stated land must be divided on the basis of equality. The Jewish National Fund (JNF) and the Israeli State signed an agreement in June 2009 under which the state would administer property ‘in a manner that will preserve the basic principles of the JNF vis-à-vis its lands.’ In other words, the state would continue to discriminate against Arabs by allocating land for Jewish Israelis in the Negev and the Galilee regions.

Most important however is the systematic oppression of the Palestinian people who live under Israeli occupation in Gaza and the West Bank. The ACRI Report is worth quoting in full: ‘Within the same territorial boundaries … two populations live side by side with entirely separate infrastructure and bound by two systems of justice which are entirely separate and fundamentally dissimilar’. The Israeli settlers in who live illegally in occupied Palestine enjoy full civil rights under Israeli law, while the Palestinians, who live under military occupation, have none. The legal distinction begins with the definition of who is an adult: 16 years old for a Palestinian compared to 18 years for Israelis. Water resources in the West Bank are also unequally distributed- for instance, in the Tubas region, 48 000 Palestinians consume an average of 30 liters of water per person per day, while the 175 residents of the nearby settlement of Bekaot consume 401 liters per person per day.

Finally, the ACRI report notes that a fundamentally democracy-undermining trend has emerged in the past two years: the State’s disregard of rulings by the courts. When the Executive branch of a democratic state no longer deems itself bound by the decisions of its Judiciary, the system becomes open to human rights abuses by the ‘tyranny of the majority’. The Supreme Court’s rulings regarding the ‘Separation Barrier’ around the Palestinian village of Bil’in have been ignored by the Executive since 2007. Dorit Beinisch, the Chief Justice, stated in a recent keynote address that she has ‘no confidence today that we are not on the brink of a slippery slope that could lead us to a place where judicial orders are not honoured.’

When rights are abused by a state in a systematic manner and discriminatory policies are implemented towards minorities within a state’s own borders, the label of being ‘only democracy in the Middle East’ is denuded of its substantive meaning.

Daniel Mackintosh is a law student at UCT and is currently doing an internship in Jerusalem

It is not by chance that Haiti is, by most measures, the poorest country in the Americas. Nor is this poverty irrelevant in understanding the severity of the consequences of the earthquake. Haiti is the child of the worlds first (and only) successful slave revolt. It has paid the price ever since its proclamation of independence on January 1st 1804. Haiti, despite being the only other republic in the Americas, was not recognized by the United States until 1862 shortly before the Emancipation Proclamation during the Civil War. Throughout the last 200-years Haiti has been plagued by foreign dominance. As early as 1888 the US began supporting military revolts against Haitian governments it deemed uncooperative. In 1915 America invaded and occupied the country until 1934. Subsequently the US has sponsored, supported and sold arms to a series of brutal dictators and was instrumental in the 1991 coup that unseated the democratically elected Jean-Bertrand Aristide who was twice exiled from his country, the second time in 2004 when he was kidnapped from his home by U.S. Marines and CIA operatives.

Such direct interference is only part of the picture. It is debt that has ultimately crippled Haiti. The French forced Haiti to pay reparations for the profits lost to the slave trade – the newly liberated slaves were to pay their former masters 150 million francs for their freedom. In 1900 Haiti was spending about 80 percent of its national budget on repayments leaving very little for its own development. Repayment of a reduced amount (90 million francs) took until 1947. However, during the US occupation Haiti “agreed to” a further loan of $40 million. Subsequently, the most dire of circumstances, has necessitated Haiti taking loans from the IMF, World Bank, and foreign governments and banks. After having had $1.2 billion in debt cancelled it still owes approximately $891 million. Despite being the Mecca of international aid agencies, a 2008 report from the Center for International Policy shows how in 2003, Haiti spent more in servicing its foreign debt than it received in foreign assistance for education, health care and other services. Debt repayments, naturally, cripple the government’s ability to invest in social services, infrastructure and poverty reduction programs.

The conditions attached to these loans, in particular the IMF loans, have been devastating to Haiti’s economy and people. These loans, as is so well documented, have become the preferred tool for imposing neo-liberal economic reforms with the interest of international capital, and not the local population, at heart. The devastating effects can be directly observed in the aftermath of the earthquake. In 1995, for example, the IMF forced Haiti to cut its rice tariffs from 35 to 3 percent. Haiti went from a country able to both feed itself and export to being totally reliant on foreign rice imports, the majority of which comes from the US which subsidizes its own rice industry to the tune of $1 billion per annum. This naturally undermined rural agriculture, created systemic food insecurity and led to huge migration towards the cities that generated a perfect pool of labor for foreign corporations to exploit. The huge shanty towns housing these predominately unemployment urban migrants have been devastated by the earth quake and the death toll continues to climb.

What does this mean for our approach towards this crisis? Firstly, as Noami Klein points out, crises are often used as opportunities to extend foreign dominance. Aid and money is desperately needed and all sorts of conditions can be attached. Literally hours after the disaster the right wing Heritage Foundation observed that: “In addition to providing immediate humanitarian assistance, the U.S. response to the tragic earthquake in Haiti offers opportunities to re-shape Haiti’s long-dysfunctional government and economy as well as to improve the public image of the United States in the region.” We must ensure that all foreign aid is given as grants and not loans and that the conditions attached do not attempt to impose or control domestic politics or economic policy. The IMF’s extension of a further $100 loan already runs contrary to this. We must fight to have the IMF, World Bank, Inter-American Development Bank (IDB) and other foreign debtors cancel all of Haiti’s debt. It is inhumane to expect millions in repayments when the social need is so high.

Secondly, we must seek to normalize the status of Haitians living abroad. The granting of temporary protected status (TPS) to Haitians living illegally in the US is a step in the right direction. The Haitian Diaspora contributes about a fifth to the Haitian economy and this steady influx of money will be ensured for the long-term recovery of the country.

Thirdly, we must ensure that the money going towards the relief effort in Haiti is actually reaching the Haitian people. The funding for the over 10 000 private organizations supposedly performing humanitarian work in Haiti must not merely pay the salaries of western aid-workers, nor should governments (as they do now – with the US leading the pack) insist that a large percentage of this aid money return to the pockets of the donor country, e.g. US aid agencies importing supplies from the US opposed to buying them locally. We must also ensure that those working in Haiti are doing so according to the internationally accepted humanitarian guidelines and are treating the Haitian people with the dignity they deserve.

Lastly, we need to ensure that foreign troops leave once the relief work is completed. It is understandable that the US is making use of its vast military machine in relief operations but given the context of US-Haiti history and America’s current occupations and military presence around the world, the arrival of these troops could justifiably cause Haitians some unease.

Advocacy on these issues is essential. This is not “exploiting” the misery of the earthquake in order to achieve other ends; it is a call to focus attention on what has shaped the nature of the human toll wrought but this natural disaster. As Richard Kim notes, it is time to move beyond talking about how to “help” Haiti, “to stop having a conversation about charity and start having a conversation about justice–about recovery, responsibility and fairness. What the world should be pondering instead is: What is Haiti owed?”

Jaco Barnard-Naudé 

Prof Kader Asmal’s erudite opinion (avaliable here) on why the Apartheid reparation cases should not be heard in the United States but rather return to South Africa illustrates exactly how legally unaccountable entities with separate legal personality are internationally for their complicity in crimes against humanity: customary international law does not apply to them, the United Nations conventions against Apartheid do not apply to them and the Rome Statute does not apply to them.

This is why Prof Asmal can make the claim that ‘[t]he plaintiffs in this case are not automatically right because they were oppressed during the apartheid years, and the defendants are not automatically wrong by virtue of the fact that they are international corporations.’ That might be the case under international customary law but the court still has to decide the issue and Prof Asmal and his colleagues’ position is not an uncontested one in law.

In addition, the fact that historically no precedent exists in international customary law for corporate liability for crimes against humanity does not foreclose the possibility that the precedent may be set in this case. We no longer live in the time of the Nuremberg trials – all over the world corporations are facing stringent curtailments and liabilities founded in social responsibility.

Let me return to Prof Asmal’s claim that the defendants are not automatically wrong because they are international corporations. That is absolutely true – there is nothing per se morally or legally wrong about being an international entity with separate legal personality. But wrongness is also a moral category and the reason why the defendants in this case are wrong is not because they are corporations but because they aided and abetted in the perpetration of a moral wrong that the law recognises internationally as a crime against humanity.

The reason why the plaintiffs are right is because they are (some of) the human beings against whom this crime was perpetrated. ‘Aided and abetted’ means, in this case, that business actively supported the Apartheid government in its system of oppression. I am certain that Prof Asmal remembers PW Botha’s ‘Total Strategy’ program – apartheid South Africa’s response in the late 1970’s to the securocratic perception that it was the target of a total communist onslaught. Total strategy was defined as a ‘political-business-security’ alliance – an alliance which business, but for a few dissenting voices, embraced because it made business sense to do so. When Total Strategy was implemented the United Nations International Convention on the Suppression and Punishment of the Crime of Apartheid, which condemned apartheid as a crime against humanity, had already been passed.

But what about the point that customary international law during the time of Apartheid did not contain a rule that rendered companies liable and that doing so now would amount to a violation of the principle that laws are not to apply retrospectively? The fact is that, in the context of the crime against humanity, this principle is not sacrosanct. Prof Asmal will remember the controversial ‘Grudge Informer’ cases in Germany after the Holocaust where actions that were explicitly legal when they were committed were subsequently punished as unlawful. These matters illustrate that law is not all there is when it comes to judging and that the relationship between law and politics is tenuous at best.

The suggestion that the reparation cases against big business should return to South Africa is interesting, given that the government ignored the TRC’s recommendations that big business be held accountable through, for instance, a once-off wealth tax. This decision of the Mbeki government is precisely one of the reasons why the plaintiffs have resorted to a foreign jurisdiction. Of course it is true that companies could theoretically be held liable under South African criminal law for aiding and abetting in a crime. But Prof Asmal does not mention the considerable evidentiary, jurisdictional and sentencing – ie practical – issues that are involved in this kind of process. He also does not mention that the crime in this case is one for which a perpetrator could receive amnesty at the TRC and one for which pardons are considered. Surely, if corporations are persons too they should have also been allowed to apply for amnesty.

But hang on, that would require an admission of having aided and abetted in the crime – which the corporations deny they did. So how does one solve the injustice? Perhaps reopen the amnesty process for corporations and if they don’t apply prosecute them? Given the rate at which prosecutions against perpetrators who did not receive TRC amnesty is proceeding, I have a feeling that the government would have something to say about the already over-strained, considerable state resources that would be required for holding big business legally accountable here.

Jaco Barnard-Naudé is associate professor of jurisprudence in the law faculty at the University of Cape Town.

Michael Osborne (published today in the Cape Times)

Last week, a New York Court heard argument on an appeal by five multinational corporations against a 2009 ruling in which a trial court gave the green light to a suit filed by South Africans who suffered injuries at the hands of sanctions-busters they allege aided and abetted the apartheid government. Plaintiffs say the multinational corporations provided military hardware and computer technology, and that they collaborated with security forces to put down anti-apartheid and labour protests at their plant in East London and Port Elizabeth.

The lower court’s decision was a breakthrough in the application of an American federal statute that gives courts jurisdiction over defendants implicated in the violation of fundamental international human rights norms anywhere in the world. Ford, GM and Daimler, which provided custom-made armoured vehicles to the security forces were, said the judge, undoubtedly aware of the crimes of apartheid.

Noting plaintiffs’ allegation that IBM provided race-based identity documents that stripped black South Africans of their nationality and citizenship, she wrote: “Wilful blindness in the face of crimes in violation of the law of nations cannot defeat an otherwise clear showing of knowledge that the assistance IBM provided would directly and substantially support apartheid.” And she rejected Daimler’s claim that “it was a duty of all South Africans” to support the security forces.

One of the issues argued before the appellate court last week was whether corporations may in principle be liable for crimes committed against international law. One of the world’s most distinguished international lawyers, South Africa’s John Dugard (who wrote, together with other renowned experts, as a friend of the court), said the traditional view – that only states and individuals could be liable for human rights abuses – was outmoded. Every jurisdiction in the world now accepts the principle of corporate criminal liability, in one form or another.

The classic civil law doctrine, that only individuals may be criminally responsible, lies dead and buried. Moreover, many international treaties envisage corporate liability. And experts in the field almost unanimously insist that multinationals should not be permitted to flout human rights laws with impunity. But one group of international lawyers took a contrary position last week. Among those who put their name to an opinion to that effect was Professor Kader Asmal. Last week, he wrote an article in the Cape Times (Why I oppose the Lawsuits Against the Multinationals, January 14, 2009), defending his decision to join the controversial opinion. Professor Asmal says he did not take sides.

But he did.

The document to which he put his name says in so many words that the signatories support the multinationals’ request that the apartheid lawsuit be thrown out. If that argument wins the day, the Apartheid Litigation is dead in the water. What is surprising about Professor Asmal’s view is that it flies in the face of commitments for which he has passionately and eloquently argued. In 2007 he told a Johannesburg conference that it was time to “move away from the idea that the state is the only one accountable for enforcing human-rights,” and that corporations need also to take responsibility.

The trouble with Professor Asmal’s new view is that it would allow multinationals to violate human rights with impunity, so far as international law is concerned. Of course multinationals want to have their cake and eat it too; they are more than willing to be subjects of international law when seeking protection against expropriation. Suppose Al-Qaeda were to formally incorporate itself as a limited liability corporation. If Professor Asmal is right, that would automatically buy it immunity.

Notably, the Security Council has in any event declared that international terrorist organisations, (including Al-Qaeda), may be held criminally liable as a matter of international law. Professor Asmal concedes that “it may be desirable one day in the future for companies to be held liable for violations of international customary law.” But, he adds, “international law is not what one wishes or hopes it to be.” Because. during the 1970’s, 80’ and early 90’s, the law did not treat corporations as liable under international law; it would be unfair to punish them now for aiding and abetting apartheid.

Quite apart from what I have already said, there are two problems with Professor Asmal’s view – both of which he has himself highlighted in the past.

First, international law is not averse to retrospective application of emergent norms, in the cases involving the most serious abuses. As he wrote in a 2005 article, the Nuremberg Principles forbade ”aiding and abetting of crimes against humanity, war crimes and crimes against peace.” But three of the four charges levelled against the Nazi defendants did not exist before Nuremberg: conspiracy to wage aggressive war, crimes against peace, and crimes against humanity. This did not stand in the way of punishment of atrocities that shocked the conscience of the world. Second, as he notes in the same article, racial discrimination as state policy was as early as 1970 considered by the United Nations to be in violation of jus cogens, the most fundamental of international norms.

The International Law Commission of the UN in a 1982 report suggested that there was an obligation to refrain from supporting conduct constituting an international crime – which apartheid had been declared to be. In 1975, the General Assembly had condemned the South African regime as illegitimate. In 1977, the Security Council imposed a binding arms embargo. It is quite true that none of these instruments expressly impose obligations on corporations. But it is ironic that Asmal now latches onto that fact. In so doing, he adopts what in 2005 he scorned as an “orthodox and conservative approach.” He wrote then that the UN had played an important role in ensuring that international law is “not solely concerned with states but that individuals and other entities can also be the bearers of rights and responsibilities.”

Implicit in Asmal’s new approach is the traditional common law theory of law, as a backward-looking and (literally), conservative enterprise. Law and morality are viewed as belonging to separate spheres; morality may in the long term guide legal development — but only by way of tiny increments. Professor Asmal has in the past embraced a more progressive vision of law, which sees it is a flexible, dynamic system. Law and political morality may not be synonymous, but the latter is always orienting and shaping the latter. This is the transformative orientation; long articulated by Professor Dugard, that underpins our Constitution.

Progressive jurisprudence is no less a feature of contemporary international law, which is no longer narrowly descriptive in character. At its heart lie normative aspirations that propel international law towards vindication of a just global order. The aspirations are oriented by the principles of equality, fairness and democracy reflected in the 1948 United Nations Charter, and in numerous treaties and declarations in the 60 years since then. (In 2005, Asmal wrote inspiringly of a “new international law,” which was a “law discernable from the progress of humanity, not an obsolete law”.)

One part of the development of international law in the past century has been the expansion of the international rights to project individuals, and, for that matter, corporations. The other side of the coin has been the extension of international responsibility. States have always been the primary subjects of international responsibility. At Nuremberg, it became clear that individuals could also be liable. Since then, the responsibilities of corporations for international crimes has crystallised.

Professor Asmal offers another reason that the Apartheid Litigation is misconceived. He suggests that South Africa’s “sovereign interests” demand that the claims of apartheid victims not be heard in New York. In this, he echoes the position of Mr Mbeki’s government, and of the Bush administration. Significantly, both governments, under Presidents Zuma and Obama respectively, have now reversed that position. In any event. neither Mbeki, nor Asmal, nor Bush, could explain how it undermines South Africa’s sovereignty for a federal court in New York to hear suits against American companies. In fact, if press reports, that Daimler has hinted that its decision regarding production of its C-Class vehicles in South Africa may hinge on the government’s posture in the litigation, are true, that would smack of economic blackmail that is indeed an affront to South Africa’s sovereignty.

Professor Asmal ignores the fundamental principle that a person injured by the actions of another may pursue him all the way to his home jurisdiction. The House of Lords ruled that South African miners injured in asbestos mines could sue the British holding company in the UK. Recently BP and Shell agreed to pay millions of dollars to Nigerian activists that sued them in New York for collaboration with brutal repression. And now, Iraqis injured by American private security companies are taking them on in U.S. courts. On Professor Asmal’s approach to the legal implications of national sovereignty, none of these suits could be heard in British and American courts.

The outcome of last week’s appeal may not be known for a matter of months. But in the meantime, the statute invoked by the apartheid plaintiffs has already inspired multinationals to add human rights audits to their due diligence checklist. No matter how the appellate court rules, multinational corporations, stripped of their immunity from global justice, will in future be more hesitant to collaborate with regimes that ride roughshod over the most fundamental human rights. That, I am sure, Professor Asmal will warmly welcome. Michael Osborne represents the Ntsebeza plaintiffs in the Apartheid Litigation in New York, in his capacity as a member of the New York Bar.

ANTI-HOMOSEXUALITY BILL

By Sylvia Tamale

[Public Dialogue November 18, 2009, Makerere University]

[NOTE: Prof Tamale is the Dean of the Law Faculty at the Makerere University in Uganda. She informs me that the Museveni government yesterday distanced itself from this Bill and that it might well be withdrawn.]

I would like to thank the Human Rights and Peace Centre for inviting me here this afternoon to share my views on this bill.  It is great that HURIPEC organized this to be a dialogue and not a debate because debates have a tendency to polarize and divide along irrational gut-level responses.  A dialogue, on the other hand, usefully sets the stage for people to listen to each other with understanding, tolerance and helps build bridges.  I hope that this public dialogue will mark the first stepping stone for all of us to embark on a rewarding journey of mutual respect, simple decency and fairness.

Mr. Chairperson—

My brief talk this afternoon is divided into four sections:

1. i.         First, I will address issues of mutual concern that I share with Hon. Bahati;
2. ii.         Secondly, I will open the window of history and offer us a glimpse of the politics of hatred and discrimination that has affected the struggle for human rights over the years;
3. iii.         Third, I will highlight the social meaning of the bill; and
4. iv.         Finally, I shall put on my legal hat and outline the legal implications that this bill holds for our country if passed into law.

1. I. Common Issues of Concern

I have scrutinized the bill thoroughly and the Honourable Member of Parliament David Bahati will be surprised to learn that I share some of his convictions.  For example, Hon. Bahati I share your desires as expressed in the preamble to the bill:

1. To strengthen the nation’s capacity to deal with emerging internal and external threats to the family unit.  It is nevertheless important to point out that most of these can hardly be realized through the regulatory mechanism of the law.
2. To protect the cherished culture of the people of Uganda, particularly the positive aspects of it.
3. To protect Ugandan children and youth who are vulnerable to sexual abuse and exploitation—whether the abuse is hetero or homosexual.

I do not have the time and space this afternoon to engage in a detailed sociological discussion of the concept that the bill refers to as the “Traditional African Family.”  However, it is my humble opinion that the concept needs to be unpacked and scrutinized.  Mr. Chairperson as you very well know, Africa is a vast continent with an extremely rich and diverse cultural history.  Indeed it would be next to impossible to mark a particular institution as the one and only “Traditional African Family”.

I will cite just a few examples to demonstrate that matrimonial relations among various African communities have differed a great deal:-

a)     While marriage between first cousins was traditionally taboo among the Baganda, marriages among blood-related kin were considered the best unions among the Bahima here in Uganda;

b)    There is the phenomenon of chigadzamapfihwa where the family of a barren wife among the Ndaus of Zimbabwe would ‘donate’ her brother’s daughter to her husband to become a co-wife and bear children on behalf of the barren woman;

c)     Practices of non-sexual woman-to-woman marriages among various African customs e.g., the Nandi and Kisii of Kenya, the Igbo of Nigeria, the Nuer of Sudan and the Kuria of Tanzania for purposes of coping with various reproductive, social and economic problems;  and

d)    Levirate marriages where a man inherits his dead brother’s wife were a customary requirement in many African communities.

While these may have been cultural practices at some point in our history, it is also important to recognize that family institutions all over the world are undergoing rapid transformation.  The changes that we see in this basic unit of society are the result of many factors including, economic crises, an increasing number of working mothers, technological advancements, armed conflicts, natural disasters, globalization, migration, the HIV/AIDS pandemic, etc.  Many of these changes and indeed the evolution of culture cannot be halted, certainly not through law.

Perhaps the undisputed value that is a common denominator in all traditional institutions of the family in Africa is the group solidarity that we have embedded in our extended family networks.  Unfortunately, the support, stability, love and respect that were the hallmark of this family model are rapidly being eroded and will soon become history.

Thus, while I agree with you Hon. Bahati that we must seek ways of dealing with issues that threaten our families, I do not agree that homosexuality is one of those issues.  Mr. Chairperson, ladies and gentlemen, what issues currently threaten our families here in Uganda?  I will name a few:

a)     Blood thirsty Ugandans and traditional healers that believe that their good fortune will multiply through rituals of child sacrifice.

b)    Rapists and child molesters who pounce on unsuspecting family members.  Research undertaken by the NGO, Hope after Rape (HAR) shows that over 50% of child sexual abuse reports involve children below 10 years of age, and the perpetrators are heterosexual men who are known to the victims.[1]

c)     Sexual predators that breach the trust placed in them as fathers, teachers, religious leaders, doctors, uncles and sexually exploit young girls and boys.  A 2005 report by Raising Voices and Save the Children revealed that 90% of Ugandan children experienced domestic violence and defilement.[2]

d)    Abusive partners who engage in domestic violence whether physical, sexual or emotional.  The 2006 national study on Domestic Violence by the Law Reform Commission confirmed the DV was pervasive in our communities.  66% of people in all regions of Uganda reported that DV occurred in their homes and the majority of the perpetrators were “male heads of households.”[3] The Uganda Demographic Health Survey of 2006 put the figure slightly higher at 68%.[4]

e)     Parents who force their 14-year old daughters to get married in exchange for bride price and marriage gifts.

f)     A whole generation of children who were either born and bred in internally displaced persons (IDP) camps or abducted by the Lords Resistance Army (LRA) in the northern sub-region of Kitgum, Gulu and Pader districts.

g)     The millions of children orphaned by HIV/AIDS.  The Uganda Aids Commission puts the cumulative number of orphans due to AIDS at 2 million.[5]

h)    The all-powerful patriarchs that demand total submission and rule their households with an iron hand.

i)      Rising poverty levels and growing food insecurity which lead to hunger, disease, suffering and undignified living.  Figures from the latest report from the Uganda Bureau of Statistics show that over 60% of Ugandans living in rural areas live below the poverty line.[6]

I do not see how two people who are in a loving relationship and harming no one pose a threat to the family simply because they happen to be of the same sex.  The argument that homosexuality is a threat to the continuity of humankind and that it will lead to the extinction of human beings in the world simply does not hold water because there are too many heterosexuals in the world for that to become a reality.  How many of you in this room would “convert” to homosexuality any time soon?…  So, just as the priests, nuns and monks who are sworn to a life of celibacy will not cause the extinction of humanity, homosexuals will not either.

1. II. Lessons from History

Anyone who cares to read history books knows very well that in times of crisis, when people at the locus of power are feeling vulnerable and their power is being threatened, they will turn against the weaker groups in society.  They will pick out a weak voiceless group on whom to heap blame for all society’s troubles—refugees, displaced populations, stateless persons aka illegal immigrants, minorities with no status, children, the poor, the homeless, commercial sex workers, etc.  I will offer a few examples to illustrate this point:

• In Uganda, colonialists at various times blamed traditional chiefs and elders as well as Muslims as the main impediments to progress and civilization.
• Dictator Idi Amin blamed Asians for Uganda’s dire economic problems and expelled all Indians in the early 1970s.
• When Milton Obote’s political power was threatened during his second regime in the early 1980s he embarked on a deliberate campaign of hostility towards refugees in Uganda, particularly those of Rwandese extract.  Obote’s persecution of the Banyarwanda in Uganda and the whipping up of anti-Rwandese sentiments included the constant reference to his political opponent, Yoweri Museveni as a “foreigner from Rwanda.”
• In the 20 years that northern Uganda faced armed conflict, the NRM administration pointed fingers at Kony and the LRA was blamed for all the atrocities and suffering of the people in the north.
• The transmission of HIV/AIDS at various points in our history has been blamed on different “weak” constituents including commercial sex workers, truck drivers, young women aged 15-23, and mothers to babies.
• When native South Africans faced dire economic crisis they turned against black “foreigners”, blaming them for the high unemployment rates and sparking off brutal xenophobic attacks against helpless immigrants/migrants and refugees in May 2008.

The lesson drawn from these chapters in our recent history is that today it is homosexuals under attack; tomorrow it will be another exaggerated minority.

Homosexuality has troubled people for a very long time.  Some religions find it distressing and there are many debates around it.  Mr. Chairperson and distinguished participants where did the idea of destroying homosexuality come from?  As his Excellency President Museveni pointed out at the inaugural Young Achievers Awards Ceremony last weekend, homosexuals existed prior to the coming of Europeans to Uganda.  According to the President:  “They were not persecuted but were not encouraged either” (Daily Monitor Nov 16, 2009 at p.2).  The idea of destroying homosexuality came from colonialists.  In other words, homosexuality was not introduced to Africa from Europe as many would want us to believe.  Rather, Europe imported legalized homophobia to Africa.

Homosexuality was introduced as an offence in Uganda directly through laws that were imported from Britain during colonialism.  And what did these same colonialists think of the “African traditional family” in Uganda?  They certainly did not introduce sodomy laws in order to protect the traditional African family.  In fact they believed that the traditional African family was inferior to their nuclear monogamous one and considered the former barbarous and ‘repugnant to good conscience and morality.’  This colonial attitude was well exemplified in the infamous 1917 case of R. v. Amkeyo, in which Justice Hamilton dismissed customary marriages as mere ‘wife purchase.’

Today, with all the economic, social and political crises facing Uganda, homosexuals present a convenient group to point fingers at as the “biggest threat” or the “real problem” to society.  Mr. Chairperson, ladies and gentlemen, the re-criminalisation of homosexuality is meant to distract the attention of Ugandans from the real issues that harm us.  It conveniently diverts the attention of the millions of Ugandans who have been walking the streets for years with their college certificates and no jobs on offer.  Ladies and gentlemen, homosexuals have nothing to do with the hundreds of thousands of families that sleep without a meal or the thousands of children who die unnecessarily every day from preventable or treatable diseases such as malaria, diarrhea, measles, pneumonia, etc.  Homosexuals are not the ones responsible for the lack of drugs and supplies at primary health care centres.

1. III. The Social Implications of the Bill to the Average Ugandan

You may think that this bill targets only homosexual individuals.  However, homosexuality is defined in such a broad fashion as to include “touching another person with the intention of committing the act of homosexuality.”   This is a provision highly prone to abuse and puts all citizens (both hetero and homosexuals) at great risk.   Such a provision would make it very easy for a person to witch-hunt or bring false accusations against their enemies simply to “destroy” their reputations and cause scandal.  We all have not forgotten what happened to Pastor Kayanja and other men of God in the recent past.

Moreover, the bill imposes a stiff fine and term of imprisonment for up to three years for any person in authority over a homosexual who fails to report the offender within 24 hours of acquiring such knowledge.  Hence the bill requires family members to “spy” on one another.  This provision obviously does not strengthen the family unit in the manner that Hon. Bahati claims his bill wants to do, but rather promotes the breaking up of the family.  This provision further threatens relationships beyond family members.  What do I mean?  If a gay person talks to his priest or his doctor in confidence, seeking advice, the bill requires that such person breaches their trust and confidentiality with the gay individual and immediately hands them over to the police within 24 hours.  Failure to do so draws the risk of arrest to themselves.  Or a mother who is trying to come to terms with her child’s sexual orientation may be dragged to police cells for not turning in her child to the authorities.  The same fate would befall teachers, priests, local councilors, counselors, doctors, landlords, elders, employers, MPs, lawyers, etc.

Furthermore, if your job is in any way related to human rights activism, advocacy, education and training, research, capacity building, and related issues this bill should be a cause for serious alarm.  In a very undemocratic and unconstitutional fashion, the bill seeks to silence human rights activists, academics, students, donors and non-governmental organizations.  If passed into law it will stifle the space of civil society.  The bill also undermines the pivotal role of the media to report freely on any issue.  The point I am trying to make is that we are all potential victims of this draconian bill.

Dr. Martin Luther King Jr. told us many years ago, “Power at its best is love implementing the demands of justice, and justice at its best is love correcting everything that stands against love.” Article 1 of the Universal Declaration of Human Rights instructs us: “All Human Beings are Born Free and Equal in Dignity and Rights.” Many great people that we respect and admire have spoken out for the rights of homosexuals.  These include international award winners and champions of freedom and humanity—President Nelson Mandela, Archbishop Desmond Tutu and President Barack Obama.  Just yesterday, it was reported that former president of Botswana, Festus Mogae added his voice to those who have come out in opposition to the Bahati Bill (Daily Monitor, November 17, 2009 at p.10).

We must remember that the principal message at the heart of all religions is one of LOVE (And now these three remain: faith, hope and love. But the greatest of these is love- 1 Corinthians 13: 13).  All religions teach the virtues of tolerance and urge their followers to desist from passing judgment.  Ladies and gentlemen, this bill promotes hatred, intolerance, superiority and violence.  Even if you believe that homosexuality is a sin, this bill is not the best method to address the issue.  It is valid to have religious and spiritual anxieties but our jurisprudence has a long history of separating the institutions of religion from the law.  The law, Mr. Chairperson, does not seek to ally any legal principle with a particular religion.  Mr. Stephen Langa is free to deliver his lectures on morality but it is unacceptable to reduce what he is preaching into law.  In my final submission I want to turn to a legal analysis of this bill.

1. IV. The Legal Implications of the Bill

Mr. Chairperson, ladies and gentlemen, the Anti-Homosexuality bill has a total of 18 clauses.  12 of these 18 clauses (i.e., 67%) are not new at all as they simply replicate what we already have on our law books.  So the first point I want to highlight is that Parliament has been given a bill two-thirds of whose content duplicates existing laws.

So, let us examine the content of the remaining 6 clauses that introduce new legal provisions.

Clauses 6 provides for the recognition of the right to privacy and confidentiality for the victim of homosexual assaults.  This is a procedural issue that no one can dispute and it can easily be inserted in the Penal Code provisions that criminalize rape and aggravated defilement.

Nevertheless, the remaining 5 clauses are extremely problematic from a legal point of view.  They violate Uganda’s constitution and many other regional and international instruments that Uganda has ratified.

The interpretation section (Clause 1) replicates several definitions that are provided for elsewhere.  Its novel provisions lie in the attempt to define homosexuality and its related activities.  I have already alluded to the potential danger that Ugandans face in the threatening and broad fashion that the bill defines a “homosexual act.”

Clause 13 which attempts to outlaw the “Promotion of Homosexuality” is very problematic as it introduces widespread censorship and undermines fundamental freedoms such as the rights to free speech, expression, association and assembly.  Under this provision an unscrupulous person aspiring to unseat a member of parliament can easily send the incumbent MP unsolicited material via e-mail or text messaging, implicating the latter as one “promoting homosexuality.”  After being framed in that way, it will be very difficult for the victim to shake free of the “stigma.”  Secondly, by criminalizing the “funding and sponsoring of homosexuality and related activities,” the bill deals a major blow to Uganda’s public health policies and efforts.  Take for example, the Most At Risk Populations’ Initiative (MARPI) introduced by the Ministry of Health in 2008, which targets specific populations in a comprehensive manner to curb the HIV/AIDS scourge.   If this bill becomes law, health practitioners as well as those that have put money into this exemplary initiative will automatically be liable to imprisonment for seven years!  The clause further undermines civil society activities by threatening the fundamental rights of NGOs and the use of intimidating tactics to shackle their directors and managers.

Clause 14 introduces the crime of “Failure to Disclose the Offence” of homosexuality.  As I have noted above, under this provision any person in authority is obliged to report a homosexual to the relevant authorities within 24 hours of acquiring such knowledge.  Not only does this infringe on the right to privacy but it is practically unenforceable.  It dangerously opens up room for potential abuse, blackmail, witch-hunting, etc.  Do we really want to move sexual acts between consenting adults into the public realm?

Clause 16 relates to extra-territorial jurisdiction, and basically confers authority on Ugandan law enforcers to arrest and charge a Ugandan citizen or permanent resident who engages in homosexual activities outside the borders of Uganda.  This law enforcement model is normally used in international crimes such as money laundering, terrorism, etc.  The Ugandan Penal Code already provides for crimes that call for extra-territoriality.  All these touch on the security of the state e.g., treason, terrorism and war mongering (see S.4 of the PCA).

When it comes to offences committed partly within and partly outside Uganda, the Penal Code provides:

When an act which, if wholly done within the jurisdiction of the court, would be an offence against this Code is done partly within and partly beyond the jurisdiction, every person who within the jurisdiction does or makes any part of such act may be tried and punished under this Code in the same manner as if such act had been done wholly within the jurisdiction. [Section 5—Emphasis added]

Note that clause16 of the Bill employs the disjunctive “or” which gives it wider reach than S.5 of the Penal Code that uses the conjunctive “and”.  Therefore, what the Bill proposes to do is to elevate homosexual acts to a position of such importance that they appear to be at an even higher plane than murder, rape or grievous bodily harm for which no such provision is made.  It is difficult to see any rational basis for such inordinate attention to homosexuality.  And how exactly will they enforce this provision?  Is the government going to storm the bedrooms of consenting adults, or deploy spies to follow them when they travel abroad in order to establish who they have slept with and how they did it?  Does this include heterosexual couples that engage in anal sex?  What about our constitutional right to privacy?  In short, this provision of the Bill is a gross abuse of the principle of extra-territoriality.  But more importantly, the bill carries hidden venom that is bound to spread beyond persons that engage in homosexuality.

Perhaps the most shocking aspect of this bill is Clause 18, which requires Uganda to opt out of any international treaty that we have previously ratified that goes against the spirit of the bill.   Article 287 of the Constitution obliges Uganda to fully subscribe to all its international treaties obligations ratified prior to the passing of the 2005 constitution.  We cannot legislate or simply wish these obligations away.  Indeed, international law prohibits us from doing such a thing.  Article 26 of the Vienna Convention on the Law of Treaties clearly sets out the pacta sunt servanda rule which requires that “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

Article 123 (1), a provision deliberately placed in Chapter Seven of the Constitution (dealing with the powers of the Executive) says:

The President or a person authorised by the President may make treaties, conventions, agreements, or other arrangements between Uganda and any other country or between Uganda and any international organisation or body, in respect of any matter.

This is a wide power that can only be limited by express language under the Constitution itself. A major procedural limitation is found in the next clause of the same article, which provides:

Parliament shall make laws to govern ratification of treaties, conventions, agreements or other arrangements made under clause (1) of this article.  (Art. 123.2)

Another substantive limitation is to be found in the Bill of Rights found in Chapter 4.  In effect, the President cannot by the mechanism of Article 123(1) sign treaties whose effect would be to amend the Constitution. Indeed, any such treaty would be, as a matter of municipal law, null and void to the extent of such inconsistency, in terms of Article 2 (2) of the Constitution.

Parliament therefore has only a procedural role to incorporate treaties into Ugandan law – and that is the full extent of its powers. It cannot purport to proscribe ex ante (before the fact) the limit of the President’s treaty making powers.  Nor indeed, can parliament bind its own future action by purporting to exercise in advance its power to scrutinize treaties signed by the President and determine which of them to ratify.  All that Parliament can do is to either ratify or refuse to ratify a treaty after it is signed, and in the latter case such treaty does not become part of Ugandan law.  This is the balance of executive power and democratic input achieved by Article 123, and one that clause 18 of the Bill is incompetent to amend.

Mr. Chairperson, distinguished participants, I wish to end by appealing to members of parliament and all Ugandans that believe in human rights and the dignity of all human beings to reject the Anti-homosexuality bill.  I am imploring Hon. Bahati to withdraw his private members bill.  Do we really in our heart of hearts want our country to be the first on the continent to demand that mothers spy on their children, that teachers refuse to talk about what is, after all, “out there” and that our gay and lesbian citizens are systematically and legally terrorized into suicide?  Ladies and gentlemen, you may strongly disagree with the phenomenon of same-sex erotics; you may be repulsed by what you imagine homosexuals do behind their bedroom doors; you may think that all homosexuals deserve to burn in hell.  However, it is quite clear that this Bill will cause more problems around the issue of homosexuality than it will solve.  I suggest that Hon. Bahati’s bill be quietly forgotten.  It is no more or less than an embarrassment to our intelligence, our sense of justice and our hearts.

Thank you for your attention.

Response after the Q & A Session

Mr. Chairperson, in the interest of time I will respond to only three issues:

• “Mad people” “like bats seeing the world upside down” “animals” “wicked”… These are some of the words used to describe homosexuals by the audience.  All the heckling and vicious jeering…  Mr. Bahati you commenced your talk this afternoon by saying, “We are not in the hate campaign.”  Well, if you were in any doubt about the fact that your bill is whipping up hatred and violence against homosexuals, just reflect back on the discourse that transpired in the room this afternoon.

• Secondly, Mr. Chairperson I think it is the height of paternalism and arrogance for Hon. Bahati and Mr. Langa to stand here and say they are legislating against homosexuals because they love them, they feel sorry for them, they face the risk of cancer, their lives are reduced by 20 years, etc.  Homosexuals are not asking for your pity, love, approval or redemption.  They only want you to affirm their humanness and their right to exist and be different.

• Finally, Mr. Chairperson, Hon. Bahati asked the question, “Tamale, do you support homosexuality?”  I would like to tell Hon. Bahati that I am a simple woman that recognizes all human beings as worthy of dignity and rights and I am not obsessed with how people have sex in the privacy of their bedrooms.  I support the rights of all human beings regardless of how and with whom they have sex as long as they are adults and are not harming anyone.  So, the question should not be whether I support homosexuality, or heterosexuality for that matter.

Thank you very much Mr. Chairperson.

[1] Study cited in Uganda Youth Development Link, Report on Sectoral Study on Commercial Sexual Exploitation of Children in Uganda, Commissioned by the International Labour Organisation (ILO) and the Ministry of Gender, Labour and Social Development (January 2004).

[2] See Raising Voices and Save the Children (edited by Dipak Naker), Violence Against Children: The Voices of Ugandan Children and Adults. (2005).  Available at http://www.raisingvoices.org/files/VACuganda.RV.pdf

[3] See Law Reform Commission, A Study Report on Domestic Violence, April 2006 at p.112

[4] See http://www.measuredhs.com/pubs/pdf/FR194/FR194.pdf

[5] See Report by the Office of the Auditor General, Value for Money Audit Report on Uganda AIDS Control Project, October 2007.  Available at http://www.oag.go.ug/docs/UACauditreport.pdf

[6] See UBOS, Spatial Trends of Poverty and Inequality in Uganda: 2002-2005, February 2009.

Published in Business Day on 13 January 2009

JACO BARNARD-NAUDÉ

THE apartheid reparation cases in the US courts continue this week amid news that similar cases are now being prepared in Europe. The corporations that have been sued in the US have done everything in their power to resist these claims and the hearing this week is the latest in a long series of appeals against court judgments in favour of the claimants.

It is an understatement to say that big business, abroad and in SA, has generally spoken out against these claims — it condemns them in the strongest possible terms. Daimler- Chrysler has gone so far as to say that it will terminate most — if not all — of its operations in SA should the claim against it proceed.

Business’s dismay with the reparation cases is, of course, hardly surprising to anyone familiar with the capitalist fundamentals of big business. Big business makes big profit — that is its raison d’etre. The degree to which big business will voluntarily contribute to charity or take responsibility for other social ills depends on whether such activities will contribute to the overall maximisation of shareholder wealth.

From this point of view, the idea of reparation is repulsive because it would signify an admission of responsibility for apartheid era atrocities; it would signify that somehow the maximisation of shareholder profit during apartheid was undue.

The ultimate message of neoliberal capitalism of this ilk is often formulated in the ambiguous slogan that “capital” — the disembodied idol of big business — is not, and cannot be expected to be, moral. This also forms the basis of business’s appeal in the courts this week: corporations are not moral agents. Given that this is the general mantra of neoliberalism, it is no wonder that the only way to get business to take social responsibility is to force the “moral agents” — the people who form and associate in these businesses — to do so by legal means.

When SA was in the first moments of its transition from totalitarian rule to constitutional democracy, big business feared for a moment that the new government would put two and two together and realise the huge role capital had played in extending the life of the military industrial complex.

Big business feared that the new government ( brimming as it was with former “communists”) was going to get it into its head to hold it to account for some of the atrocities, such as, for example, the one that happened at Gencor’s Kinross mine on September 15 1986. That morning more than 170 workers were killed in an underground polyurethane fire. Of these, 152 were black. The mine published only the names of the dead white workers. The deceased black workers were identified only according to their ethnic group.

By December 1997, when the Truth and Reconciliation Commission (TRC) concluded its three days of hearings on the role of the business sector in the perpetration of what is an officially recognised crime against humanity, it was clear that big business had nothing more to fear. The hearings took, for most part, the form of a to-and-fro about whether apartheid was good or bad for capitalism. Now and again, the question regarding undue benefit was raised but business repeatedly declared its indignation with any suggestion that apartheid allowed profits to soar.

The TRC did not have the power to order big business to pay social reparation to the amount of billions of rands — it could only recommend this to the government. This it did. The government decided to ignore the recommendations. After all, the Berlin Wall had fallen, philosopher Francis Fukuyama had declared neoliberal democracy as the “end of history”, and SA needed to take its place in the global village.

So the “reparation” that was forced on big business took the form of affirmative action and black economic empowerment. It remains doubtful whether these have succeeded or are succeeding in bringing about the kind of redistribution of wealth that can be said to address the structural inequalities left by apartheid.

In the meantime, business has had to rely as recently as a year ago on a “socialist style” bail-out to save capitalism. It seems that state intervention is acceptable to the corporate hegemony only when it is ultimately geared at resuscitating the “free” market.

In the same week that the apartheid reparations cases are in the news, speculation is mounting that apartheid- era perpetrators, such as Eugene de Kock, will be given a presidential pardon — which is conceptually not very far removed from amnesty.

One of the strongest and most valid criticisms of the TRC process was that there was nothing in it that would countervail for victims the benefits perpetrators received through amnesty. That criticism is as applicable now as it was to the TRC more than 10 years ago.

The Zuma administration has indicated its support for the apartheid reparation cases — which is a step in the right direction, one supposes, if judged against the vehement opposition the Mbeki administration displayed against these claims.

Nevertheless, it seems that the South African government is assuming the stance that reparations are tolerable — as long as it is not actively involved in the process . Only time will tell whether it is pardons or real reparation that win the day. Needless to say, my money is on reparations.

- Barnard-Naudé is associate professor of jurisprudence at the University of Cape Town and a director at the Institute for Justice and Reconciliation.

WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No: 14830/09

In the matter between

TATIANA MALACHI APPLICANT

and

CAPE DANCE ACADEMY INT. (PTY) LTD FIRST RESPONDENT

HOUSE OF RASPUTIN PROPERTIES (PTY) LTD SECOND RESPONDENT

ADDITIONAL MAGISTRATE,

DISTRICT OF CAPE TOWN THIRD RESPONDENT

MINISTER OF JUSTICE FOURTH RESPONDENT

MINISTER OF HOME AFFAIRS FIFTH RESPONDENT

THE COMMANDING OFFICER,

POLLSMOOR PRISON SIXTH RESPONDENT

JUDGMENT DELIVERED ON THIS 7^TH DAY JANUARY 2010

Hlophe JP:

A.          Introduction

[1]         On 22 July 2009 the applicant brought an urgent application to this court pursuant to an order made by the third respondent for her arrest in case 19806/09 of 9 July 2009. The applicant sought to set aside the order of third respondent and to further order her immediate release from Pollsmoor Prison by the sixth respondent. The applicant also sought to declare section 30(3) of the Magistrates’ Courts Act 32 of 1944 (“the Act”) and the common law rule of arrest tanquam suspectus de fuga unconstitutional and invalid. By agreement between the parties, the first and second respondents secured the discharge of the arrest warrant by the third respondent and the applicant was released from custody of the sixth respondent on 24 July 2009.

[2]         Mr Katz appeared together with Mr Garland for the applicant in this matter.  First, second and third respondents filed a notice of intention to abide by the decision of this court.  Fourth respondent initially filed a notice of intention to abide by the decision of this court, but later filed its notice of intention to oppose. On 17 September 2009 the court ordered the fourth respondent to deliver its answering affidavit on or before 1 October 2009 and its heads of argument on 29 October 2009. The fourth respondent failed to timeously file its answering affidavit and sought condonation thereof. Mr Bezuidenhout appeared on behalf of fourth respondent. On 5 November 2009 this court condoned the late filing of the answering affidavit by fourth respondent. Fifth and sixth respondents were unrepresented and no opposing affidavits were filed.  Fourth respondent in its heads of argument and during the hearing of this application conceded that it was not opposing the relief sought by the applicant in relation to the constitutional invalidity of section 30 of the Act. Fourth respondent opposed the relief sought by the applicant in respect of declaring the common law rule of arrest tanquam suspectus de fuga constitutionally invalid as it is argued that the issue has already been decided upon and therefore merely academic.

B.         Factual Background

[3]         The facts giving rise to this application are by and large common cause.

Applicant is a citizen of the Republic of Moldova. She was employed as an exotic dancer at a nightclub managed by the first and second respondents. On her arrival in South Africa during March 2009, applicant handed her passport to the owner of second respondent. Applicant was initially informed that her passport would be kept for 30 days in order to have it registered at the Police station. Second respondent subsequently kept applicant’s passport during the entire period of her employment. The owner of second respondent informed applicant that he would not return her passport unless the applicant paid him $2000 for her air ticket and R20 000 as a levy. The applicant was unable to pay either of these amounts, as she was not earning sufficient income during her employment with second respondent.

Applicant sought and received the assistance of the Consul General of Russia to facilitate her return to her home country Moldova. Prior to her departure from South Africa on 9 July 2009, applicant was arrested and taken into custody at Pollsmoor Prison. The arrest was made pursuant to a court order issued by the third respondent ex parte on 9 July 2009 and warrant of arrest tanquam suspectus de fuga. The applicant was to remain in custody pending the return date, which was to be 30 July 2009. If the applicant furnished adequate and satisfactory security for the total claim of R100 000 plus interest and costs, the applicant would be released from custody and the order for arrest discharged. The applicant had no assets of any tangible value in South Africa and therefore was unable to furnish adequate and satisfactory security. By agreement between the parties, the first and second respondents secured the discharge of the arrest warrant by the third respondent and the applicant was released from the custody of the sixth respondent on 24 July 2009.

C.         The issues to be decided

[4]     The applicant sought an order:

4.1 deleting the words “arrest tanquam suspectus de fuga” from section 30(1) of the Magistrates’ Courts Act;

4.2 declaring Section 30(3) of the Act unconstitutional and invalid; and

4.3 declaring the common law rule of arrest tanquam suspectus de fuga unconstitutional and invalid;

[5]         The issues to be decided upon in this matter relate to the constitutionality of sections 30(1) and 30(3) of the Act and the common law relating to arrest tanquam suspectus de fuga and the alleged infringement upon fundamental human rights guaranteed in the Constitution.

It is necessary for purposes of the judgment to quote the provisions of section 30 of the Magistrates’ Courts Act in full.

Section 30 of the Act provides for:

“30 Arrests and interdicts

(1)   Subject to the limits of jurisdiction prescribed by this Act, the court may grant against persons and things orders for ‘arrest tanquam suspectus de fuga’ attachments, interdicts and mandamenten van spolie.

(2)   . . .

(3)   No order of personal arrest tanquam suspectus de fuga shall be made unless-

(a)   the cause of action appears to amount, exclusive of costs, to at least forty rand;

[Para. (a) amended by s. 4 of Act 19 of 1963.]

(b)   the applicant appears to have no security for the debt or only security falling short of the amount of the debt by at least forty rand; and

[Para. (b) amended by s. 4 of Act 19 of 1963.]

(c) it appears that the respondent is about to remove from the Republic.

[Para. (c) amended by s. 11 of Act 53 of 1970.]”

[6]         The common law rule relating to arrest tanquam suspectus de fuga allows a judicial officer to issue a writ of arrest and for the procedure to be used prior to and after a judgment.[1] This common law rule was encoded in section 30 of the Act. Suspectus de fuga was regarded as an extension of the common law principle of contempt of court, notwithstanding the Abolition of Civil Imprisonment Act 2 of 1977 which provides that no court shall have the power to order the civil imprisonment of a debtor for his failure to pay a sum of money in terms of any judgment. Jones and Buckle state that “The legislature clearly did not intend to modify the common law by the enactment of section 30 of the Act. The intention rather seems to have been to endow the magistrates’ court by statute with all common-law powers in regard to arrest tanquam suspectus de fuga.” [2]

Constitutionality of section 30 of the Act

[7]         Mr Katz argued on behalf of applicant that numerous constitutional rights have been infringed by section 30 of the Act and further that the infringement of these rights is not reasonable and justifiable in terms of section 36 of the Constitution of the Republic of South Africa, 1996 (‘ the Constitution’) , namely the limitations clause. Therefore Mr Katz argued section 30 of the Act and the related common law should be declared unconstitutional and invalid.

[8]         He submitted further that a case which may be regarded as moot should be decided where it raises important questions of law on which there is little authority and are bound to arise again. The issue of the constitutionality of an arrest procedure in terms of section 30 has not yet been decided upon by the courts. The authorities relied upon in court have dealt with the constitutionality of enforcement procedures in relation to other legislation. However the applicable principles are of equal importance to the legislative provisions under consideration

(i)    Right to equality:

[9]         The applicant argued that section 30 of the Act violates the right to equality, which is guaranteed by section 9 of the Constitution. Section 9 of the Constitution provides that everyone is equal before the law and has the right to equal protection and benefit of the law. Equality involves the full and equal protection of all rights and obligations.  Applicant submitted that section 30 infringes upon the right to equality as the defendant is placed in an unequal position vis- a- vis the prospective civil claim by the plaintiff and further placed in an inferior and prejudicial position in relation to other litigants in general who have a financially higher standing and are able to furnish security and avoid arrest. A defendant who is unable to furnish adequate security will be obliged to remain incarcerated pending the return date whereby the defendant would then be required to show cause why the order of arrest should not be confirmed and made final. A defendant who has adequate assets will be able to furnish adequate and satisfactory security and therefore be able to secure his or her release. Clearly, Mr Katz submitted, this infringes upon the right to equality.

[10]         This is particularly true as it relates to poor debtors or defendants who may be willing but unable to satisfy a judgment debt or to provide adequate security for the claim. The debtor in this inferior financial position will therefore be subjected to an arrest and detention in terms of section 30 of the Act. Such a debtor is treated in a manner less equal than other debtors.

Furthermore a debtor in a civil matter is treated unfairly compared to an accused person in a criminal case. The procedural rights of an accused person in a criminal case are contained in section 35 of the Constitution. Section 35 (2) of the Constitution provides that everyone who is detained has the right to be informed promptly of the reason for being detained, to choose and to consult with a legal practitioner and to have a legal practitioner assigned at state expense. An accused person may therefore challenge the lawfulness of the detention before a court and if the detention is unlawful he or she may be released. Section 35(2) of the Constitution further provides that a detained or sentenced prisoner has the right to conditions of detention that are consistent with human dignity and to communicate and be visited by family, a chosen religious counsellor and chosen medical practitioner.

[11]         Section 30 of the Act makes no provision for the defendant who is arrested and detained to be informed of his constitutional right to legal representation, or even to have any of his other constitutional rights explained to him. Furthermore section 30 does not make any provision for a debtor to be informed of available defences to an arrest suspectus de fuga.  Therefore a defendant who may have a valid defence could be arrested and detained in terms of section 30. The facts relied upon in an ex parte application may have been fabricated. However in terms of section 30 the defendant would not be able to challenge this. The only way to avoid arrest and detention is to pay the amount claimed by the applicant or to provide adequate security for the claim.

[12]         Fourth respondent conceded that section 30 of the Act is unconstitutional inasmuch as it is inconsistent with the constitutional right to equality.

[13]         Applicant has rightfully submitted that a person arrested pursuant to suspectus de fuga has less rights than a detaind person in terms of section 35(2) of the Constitution. With civil imprisonment there is no obligation for a defendant to be brought before the court within any specific time period. An arrest in terms of section 30 of the Act can be made on an ex parte basis. In Coetzee v Government of  Republic of South Africa, Matiso and others v Commanding Officer, Port Elizabeth Prison and others 1995 (4) SA 631 (CC), the Constitutional Court was called to decide upon the constitutional validity of the provisions of sections 65A-65M of the Magistrates’ Courts Act 32 of 1944 which provided for the imprisonment of judgment debtors in certain circumstances. The court found that the said provisions were inconsistent with the right to personal freedom. In analysing the constitutionality of these provisions the court found that the defendant cannot challenge the prima facie claim prior to being detained. Therefore this tends towards a trial in absentia since the effect of the order as it relates to imprisonment is final. The procedure makes no provision for recourse by the debtor once an order of committal has been made. [3]

[14]         In my view the defendant in a civil matter is in a worse position than an accused in criminal proceedings. As stated above an accused has the right to be informed promptly of the reason for being detained and to consult with a legal practitioner. Furthermore South African criminal law and procedure recognizes the general principle of presumption of innocence as a substantive principle of fundamental justice and has protected the fundamental rights of liberty and human dignity of any person accused by the state of committing a crime. In S v Acheson 1991 (2) SA 805 (Nm) the court stated (at 822A-B) that:

“An accused person cannot be kept in detention pending his trial as a form of anticipatory punishment. The presumption of the law is that he is innocent until his guilt has been established in Court. The Court will therefore ordinarily grant bail to an accused person unless this is likely to prejudice the ends of justice.”

[15]         Applicant further submitted that since it is unlawful for a debtor to be imprisoned in order to execute against a judgment then the same principle should apply to a debtor prior to any judgment being granted. In the unreported judgment in Amrich 159 Property Holding CC v Van Wesemb Eeck (25846/09) delivered on 21 August 2009[4] the court dealt with an ex parte application for the arrest of the respondent tanquam suspectus de fuga. The court stated that the procedure of arrest was not devised to prevent a debtor’s departure from the Courts jurisdiction but to prevent flight. In Amrich Property Holdings above the court aligned itself with the reasoning of the Supreme Court of Appeal in Bid Industrial Holdings (Pty) Ltd v Strang and another

( Minister of Justice and Constitutional Development, third party) 2008 (3) SA 355 (SCA), and held “that if there is no obligation for incarcerating a defendant who has been found civilly liable there cannot be any for putting a defendant in prison whose liability has not yet been proved”.[5]

[16]         Mr Katz submitted that section 30 coerces the individual to furnish security or make payment in order to avoid arrest. In Amrich Property Holding above, Mathopo, J said (para 28) that “The continued arrest in such circumstances would be tantamount to coercing security or payment especially where it is manifestly clear that his liability has still not been established and is disputed”. Further In Coetzee v Government of South Africa above the court stated (at 641D-E) that:

“…the law seems to contemplate that imprisonment should be ordered only where the debtor has the means to pay the debt, but is unwilling to do so. . . it is clear that the law does not adequately distinguish between the fundamentally different categories of debtors: those who cannot pay and those who can pay but do not want to. . . . “

Effectively section 30 of the Act coerces security for payment in order to avoid imprisonment. An arrested person who has no money to secure payment or pay a debt will remain in prison for reasons unrelated to the effectiveness of a future judgment. In any event if it is found that the suspect is liable for payment, imprisonment is normally not an option for enforcement of that civil judgment or order. This is so because of the provisions of the Abolition of Civil Imprisonment Act 2 of 1977 which prohibit imprisonment to enforce civil judgments.

[17]         Section 34 of the Constitution allows for equal access to the courts and a fair civil trial. The applicant submitted that the defendants’ ability to conduct any prospective civil claim is materially compromised by the fact that the applicant would be forced to conduct the trial on the merits from prison.[6] In Coetzee v Government of South Africa above the court found several reasons why the provisions relating to jurisdictional arrest were indefensible; these include a situation where even if a person has notice of the hearing, he can be imprisoned without knowing of the possible defences available to him and accordingly without any attempt to advance any of them. It was also found that the provisions allowed persons to be imprisoned without actual notice of either the original document or of the hearing.[7]  Section 30 of the Act does not make any provision for a debtor to be informed of available defences to an arrest suspectus de fugue.

[18]         I am inclined to agree with Mr Katz that section 30 infringes the constitutional right to equality as a defendant in a civil matter is treated unfairly in relation to a defendant who is able to furnish adequate security for his or her release from detention. Furthermore a debtor in a civil matter is treated unequally compared to an accused in a criminal case; an accused person has constitutionally guaranteed fair trial rights as contained in section 35(2) of the Constitution. Section 30 of the Act does not make provision for any of the constitutional rights contained in section 35 of the Constitution.

(ii) Right to Dignity:

[19]         Applicant submitted that section 30 of the Act also infringes upon the right to dignity as set out in section 10 of the Constitution. Section 10 provides that “everyone

has inherent dignity and the right to have their dignity respected and protected”.  Applicant submitted that section 30 of the Act infringes upon the right to dignity in that the defendant is imprisoned alongside accused and convicted persons for an indefinite period of time in a prospective civil matter on the basis of a debt which has not been tested or proved in a court of law. Fundamental rights such as the right to be free from cruel, inhuman or degrading treatment, the right to privacy, to equal treatment and to security of the person are so closely linked to the concept of the right to dignity. Section 30 allows for degrading treatment in that a debtor or defendant is arrested and detained on the basis of a prima facie claim by the plaintiff. For that reason alone, Mr Katz argued, section 30 infringes the constitutional right to dignity and cannot withstand constitutional muster. In Amrich Property Holdings above the court stated (para 28) that “. . . To order the arrest of the respondent on the basis that he is unable to give security would in my view offend his right to dignity, equality and freedom of movement as enshrined in the Bill of Rights.” In Bid Industrial Holdings the court stated (at 366B) that “The most obvious concomitant would be breach of the defendant’s respective rights to equality, human dignity and freedom of movement. . .”

[20]         In my view in terms of Section 30 of the Act a debtor may be incarcerated for an amount claimed by the applicant. To incarcerate a debtor on this basis would be tantamount to an arbitrary deprivation of liberty thereby infringing upon the right to dignity as the arrest procedure in section 30 also allows a defendant to be subjected to cruel and degrading treatment. I am further inclined to agree with applicant’s submission that since a debtor is imprisoned alongside a criminal accused for an untested civil matter for an indefinite period of time, the right to dignity is infringed upon by section 30 of the Act.

(iii) Right to freedom of movement:

[21]         Applicant submitted that section 30 infringes on the right to freedom of movement in terms of section 21 of the Constitution. Section 21 provides that everyone has the right to freedom of movement and the right to leave the Republic. Counsel for applicant argued that since the defendant is incarcerated indefinitely, this right is defeated in its entirety. The defendants are unable to leave South Africa on the basis of an untested and prospective civil claim and without regard to the ability to satisfy any judgment in the event that liability is proved in respect of such claim. Freedom of movement is an important aspect of the right to liberty and is recognized internationally.[8]

[22]         Fourth respondent in its heads of argument conceded that the arrest of a debtor would involve physical detention entailing a serious deprivation of the liberty of the defendant. This of course directly affects the right to freedom of movement and the right to leave the Republic.

[23]         In my view section 30 in as far as it authorizes an arrest tanquam suspectus infringes on the right to freedom of movement in that a defendant who does not have any assets to furnish adequate security to secure his or her release from prison will face incarceration indefinitely. Freedom to leave South Africa will be affected by an untested and prospective civil claim without regard to a defendants’ ability to satisfy any part of the debt. Freedom to leave the Republic is therefore limited by the arrest tanquam suspectus de fuga provision.

(iv)         Right to freedom and security of the person:

[24]     Applicant submitted that section 30 of the Act offends against the right to freedom and security of the person in terms of section 12 of the Constitution.[9] In terms of this section everyone has the right not to be deprived of freedom arbitrarily or without just cause, not to be detained without trial and not to be treated in a cruel, inhumane and degrading way. Section 30 of the Act has the effect that the liberty of a defendant could be deprived where security for the debt cannot be furnished or where payment in relation to a prospective claim cannot be made. It is worth noting that previous legislation infringing upon the right to freedom of the person have been struck down.[10]

[25] In Bid Industrial Holdings above the court had to decide upon the constitutionality of an arrest to found or confirm jurisdiction as provided for by section 19(1)(c) of the Supreme Court Act 59 of 1959. The court found that the jurisdictional arrest aimed to limit the arrestee’s liberty and his right to freedom and security of the person as entrenched in section 12 of the Constitution. In terms of section 19(1)(c) any High Court may issue an order for attachment of property or arrest of a person to confirm jurisdiction. The court had to deal with the constitutionality of jurisdictional arrest whether founding or confirming jurisdiction. The court in Bid Industrial Holdings addressed the constitutional arguments relating to jurisdictional arrest on the basis that there is no legal obligation on a foreign defendant to consent to jurisdiction or to provide a monetary basis in order to avoid arrest or its consequence, where that consequence can only be detention.

The court in Bid Industrial Holdings stated (at 364G) that:

“Although S19(1) (c) does not refer to detention, the process of arrest is always to engage the relevant agencies of the State to effect the arrest and then to restrict the arrestee’s freedom pending attainment of some lawful purpose. If, for example, that purpose is not attained on the day of the arrest, the arrestee must necessarily remain in detention by the State until it is attained. . . Jurisdictional arrest therefore unquestionably aims to limit the arrestee’s liberty.”

In Coetzee v Government of the Republic of South Africa above the Constitutional Court held that the civil imprisonment under sections 65A-65M of the Magistrates’ Courts Act concerning judgment debtors who had failed to pay their judgment debts was an unconstitutional limitation of the fundamental right of freedom of the person.

[26]         It was argued on behalf of fourth respondent that the purpose of arrest tanquam suspectus de fuga is for the protection of the creditor by the apprehension and detention of the debtor who is about to flee in order to avoid paying a debt. An arrest in terms of the section would involve a serious deprivation of liberty where the debtor is unable to provide such security. Should an arrest be effected, the debtor would then have to wait for the return date of the order. Fourth respondent further submitted that section 30 of the Act which authorizes arrest tanquam suspectus de fuga infringes upon the fundamental right of a debtor to freedom and security of his or her person as provided for in terms of section 12 in that there is no legal obligation on a foreign debtor to consent to jurisdiction or to provide a monetary basis to avoid arrest or detention. It was further submitted that when a debtor who is either a citizen or foreigner provides no security for the claim or any prospect of successful execution, the arrest in itself will not satisfy the claim.

[27]         It is my judgment that section 30 infringes upon the right to freedom and security of a person as set out in section 12 of the Constitution in that a defendant would arbitrarily be deprived of his or her freedom where an arrest is merely made pursuant to an ex parte application. The defendant may have a valid defence to the alleged claim and may be willing but unable to furnish security for the disputed claim. The effect of the order for an arrest in terms of section 30 will be that the defendant is detained without a trial. The common cause facts show that the basis for second respondent obtaining the arrest warrant was a contractual claim and as she was unable to put up security for her disputed claim she was obliged to remain incarcerated for an indefinite period of time until the claim was pursued by second respondent at its discretion and when a decision was reached by the judicial officer in respect of the merits of second respondents claim.

[28]         In my judgment the arrest and civil imprisonment of defendants in advance of any trial on the merits is a limitation of the right protected by section 12(1)(b) of the Constitution not to be detained without trial. Any law or action which limits the right to freedom should be reasonable and the means employed for achieving that goal should be reasonable.  In Coetzee v Government of South Africa above it was said that the legislation under consideration was meant to provide for the enforcement of judgment debts as well as the securing of payment for a debt.  The court stated (at 642C) that:

“. . . Certainly to put someone in prison is a limitation of that person’s right to freedom. To do so without any criminal charge levelled or any trial being held is manifestly a radical encroachment upon such right. . . ”

[29]         Based on the reasons set out above, I find that section 30 infringes upon the right to freedom and security of the person as set out in section 12 of the Constitution.

The section 36 enquiry

[30]         Section 36 of the Constitution provides that any limitation on fundamental human rights must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.[11] Having examined the various constitutional rights infringed upon by section 30 of the Act, the enquiry now turns on whether in terms of section 36 of the Constitution the limitation on these fundamental human rights can be seen as reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including:

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

The limitation must further also be authorized by a law of general application.

(a) The nature of the right:

[31]         The nature of the fundamental rights in question has been discussed in the preceding paragraphs above.

(b) The importance of the purpose of the limitation:

[32]         It seems that the main purpose of an arrest in terms of section 30 of the Act is to prevent judgment debtors or defendants from absconding and therefore allowing litigants to enforce prospective judgments.  This is irrational and illegitimate as it allows for an arrest of an indigent person who may not have any assets in South Africa. It further allows for the detention of certain debtors, which may serve no rational purpose in enabling a potential judgment creditor to enforce any judgment in any civil case that may successfully be brought against the imprisoned person. In the case of Bid Industrial Holdings the court stated (at 364E-F) that “…there is no legal obligation on a prospective debtor to furnish security or make payment; the arrest itself does not render any prospective judgment effective”. In the case of Getaz v Stephen 1956 (4) SA 751 (N) the court set out the common law  that the procedure for arrest was not devised to prevent the departure of a debtor from the jurisdiction of the Court, but to prevent him from departing with the intention of evading or delaying payment of his indebtedness. It is a form of relief available to a creditor who on reasonable grounds suspects that a debtor against whom he has instituted an action or against whom he intends instituting an action for the recovery of a debt is about to depart from the jurisdiction of the court in order to escape responsibility for the debt.[12]

In Amrich Property Holdings above the court stated that the procedure of arrest was not devised to prevent a debtor’s departure from the courts jurisdiction but to prevent his departure with the intention of evading or delaying payment. The court stated (para 17) that “. . . The reason for leaving the country with the intention of evading or delaying payment of his debts must account for all the proven facts. It is not the effect but the requisite intention which is material.” The court further considered all the objective facts and came to the conclusion that the applicant failed to prove that the respondent made the arrangements to depart with the intention of evading or delaying payment of his debts.

[33]         In my judgment although it seems that the main purpose of the limitation contained in section 30 of the Act is to prevent judgment debtors from absconding, thereby giving creditors an option of enforcing judgment debts or prospective judgment debts, the limitation is arbitrary and cannot be justified in an open and democratic society. As will be shown there are certainly less restrictive means to achieve this purpose.

(c) Nature and extent of the Infringement of rights:

[34]         The nature and extent of the infringement of the relevant rights have been discussed in the preceding paragraphs.

As was shown above, section 30 of the Act extensively infringed upon the rights to equality, dignity and freedom. It was also shown that the liberty of a defendant was arbitrarily infringed upon where the defendant could not secure his or her release by providing security or payment for the debt. The arrest contemplated in section 30 unquestionably aims to limit the arrestee’s liberty. The right to equal protection and benefit of the law was further shown to be infringed on by section 30 of the Act in that a defendant in an inferior financial position would be denied the opportunity to equal access to the courts. The defendant in this position would certainly be in a less advantageous position than those who have sufficient assets and therefore adequate security to ensure their release from prison. Further a civil debtor is denied the fair trial rights afforded to an accused person in terms of section 35 of the Constitution. Accordingly the nature and extent of the infringement of the rights shown above cannot be reasonable and justifiable in an open and democratic society based on human dignity and freedom.

(d) The relationship between the limitation and its purpose:

[35]         The aim of effecting an arrest for the fulfillment of a judgment debt or payment for security of a debt is to provide a creditor with the mechanism with which to enforce a judgment debt or secure payment for that debt. However the arrest itself does not serve to attain the fulfillment of such debt. Therefore it cannot be ‘just cause’ to coerce security or payment from a defendant who is entitled to the opportunity to raise non-liability in the proposed trial in subsequent legal proceedings.

The court in Bid Industrial Holdings stated (at 365 B-D) that:

“In assessing whether establishing jurisdiction for purposes of a civil claim can be ‘just cause’ it is necessary, first, to consider whether arresting the defendant can enable the giving of an effective judgment. There is a crucial difference between attaching property and arresting a person. Attachment ordinarily involves no infringement of constitutional rights (absent, for example, seizure of the means by which the defendant’s livelihood is earned). But, more importantly, the property attached will, unless essentially worthless, obviously provide some measure of security or some prospect of successful execution. Arrest, purely by itself, achieves neither. Security or payment will only be forthcoming if the defendant chooses to offer one or other in order to avoid arrest and ensure liberty. It is therefore not the arrest which might render any subsequent judgment effective but the defendant’s coerced response. “

(e) Less restrictive means to achieve the purpose:

[36]         The goal of securing payment for a judgment debt or security for payment can be achieved by less restrictive measures other than an arrest procedure in terms of section 30 of the Act. Applicant submitted that the second respondent could have obtained a judgment against the applicant and would then have the option to execute the judgment against the applicant in her home country or place of residence. A creditor may also take the judgment to most civilized countries to seek satisfaction of the judgment.[13] Applicant correctly submitted that other court proceedings may be used such as interdict proceedings or sequestration, if the defendant has assets in South Africa. In Gouveia v Da Silva 1988 (4) SA 55 (WLD) the court (at 62F-G) stated that “No marked injustice will follow if the applicant is left to the enforcement of the judgments in that country to which the respondent moves. . . “Fourth respondent conceded that the function of arrest is to enable a court to take cognizance of a suit and that this can be achieved through less invasive means. Fourth respondent further conceded that the limitations imposed by an arrest tanquam suspectus are not reasonable and justifiable in an open and democratic society and cannot pass the limitations test set by section 36 of the Constitution.

[37]         South Africa recognizes judgments of other jurisdictions. In the unreported judgment of Mahon v Mahon and Others (CPD) case no 14918/2008 delivered on 29 July 2009, the judgment of the Family Division of the High Court of Justice in the United Kingdom was relied upon to issue a summons for provisional sentence against the applicant in the High Court of South Africa. The correctness of the judgment of the English court in this matter was not contested.

[38]         The Enforcement of Foreign Civil Judgments Act 32 of 1988[14] provides for a procedure designed to reduce the time and costs involved in the common law enforcement action. The Act only applies to countries designated specifically by the Minister of Justice. Reciprocal treatment by the chosen states is not required. Non-monetary judgments and those based on penal or revenue laws are excluded in terms of section 1 of the Act. The Act only applies to enforcement proceedings in the magistrate courts where the financial limit on actions is R100 000. Foreign judgments in excess of this must be applied for in the High Court. [15] Foreign judgment creditors may sue under the common law, which entails bringing an application to have the judgment made into an order of a local court.

In Bid Industrial Holdings supra the court stated (at 368 B-D) that:

“Consideration of a substitute practice can usefully start with the observation that this court has accepted, for purposes of reciprocal enforcement of a foreign judgment, that the defendant’s mere physical presence within the foreign jurisdiction when the action was instituted is sufficient, according to South African conflict of law rules, for a finding that the foreign court had jurisdiction. It may also be noted that in England, for example, service on a foreign defendant while physically present-albeit temporarily- within its borders is sufficient for jurisdiction provided the case has a connection with that country. These are pointers to the acceptability – subject to the presence of sufficient evidential links – of mere physical presence as being an acceptably workable substitute for a detained presence. One might add – a self-evidently more acceptable substitute.”

[39]         The court in Bid Industrial Holdings therefore noted that for purposes of reciprocal enforcement of a foreign judgment, the courts have accepted that the defendants’ mere physical presence within the foreign jurisdiction when the action was instituted is sufficient, according to the South African conflict of law rules, for a finding that the foreign court has jurisdiction.

[40]         Other applicable legislation for the enforcement of foreign judgments include the Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 which provides accelerated procedures for enforcing awards emanating in South Africa and in countries abroad. The Act applies only to countries designated by the Minister of Justice. There are further alternative ways in which a debt can be secured; such measures would include the furnishing of security or payment of the claim. In Bid

Industrial Holdings supra the appellant failed to attach an asset belonging to the respondent, which was capable of being attached in order to found or confirm jurisdiction. In terms of section 19(1)(c) of the Supreme Court Act 59 of 1959 only a High Court may issue an order for attachment of property or arrest of a person to confirm jurisdiction. As submitted by applicant, if the judgment creditor were to obtain a judgment order, the applicants’ presence in the Republic would not affect the effectiveness of that judgment. The creditor would still have the option to execute the judgment in the home country of the debtor or defendant.

[41]         There are certainly less restrictive means in which a claim or judgment may be pursued and which would not violate fundamental human rights. Section 30 of the Act cannot pass the test as set out in section 36 of the Constitution as the governmental purpose which serves to interfere with fundamental human rights cannot be justified in an open and democratic society based on human dignity, equality and freedom.  Furthermore there are less restrictive means which can be utilized in order to serve the same purpose without infringing upon the said constitutional rights. Accordingly the relevant provisions in the Magistrates Courts Act relating to arrest tanquam suspectus de fuga are declared unconstitutional and invalid.

[42]         A limitation logically connected to its objective could also be unreasonable if it undermined a long established and now entrenched right, imposed a penalty that was arbitrary, unfair or irrational or used means that were unreasonable.[16] The limitation should also be necessary in an open and democratic society. Applicant further submitted that if section 30 of the Act remained on the statute book, the confidence in our legal system would be eroded as various international and regional instruments repudiate the core element of the institution of civil imprisonment. Sachs J in Coetzee v Government of South Africa above (para 51) stated “. . . we need to locate ourselves in the mainstream of international democratic practice. . .

[43]         The constitutionality of Section 30 should also be considered in light of the National Credit Act 34 of 2005. [17] In terms of this Act, the emphasis has moved to the enforcement of the rights of consumers and  is meant to protect consumers through addressing and preventing over-indebtedness of consumers, and providing mechanisms for resolving over-indebtedness, providing for a consistent and accessible system of consensual resolution of disputes arising from credit agreements; providing for a consistent and harmonised system of debt restructuring, enforcement and judgment, which places priority on the eventual satisfaction of all responsible consumer obligations under credit agreements.[18] Interestingly Didcott J in Coetzee v Government of South Africa above stated well before the contemplation of the National Credit Act (at 646G-J) that the creditor should explore all other means for execution of the judgment. This should be preceded by a full enquiry into the reasons why the debtor had failed to pay and the amount that he owed/disclosed from his financial state of affairs…the legislation does not insist upon the exhaustion by the creditor of lesser remedies.

The Constitutionality of the common law rule relating to arrest suspectus de fuga

[44]         The common law rule relating to arrest tanquam suspectus de fuga allows for a judicial officer to issue a writ of arrest. The rule allows for the procedure to be used prior to and after a judgment. As stated above the common law rule was encoded in section 30 of the Act. Applicant submitted that notwithstanding the introduction of the Abolition of Civil Imprisonment Act 2 of 1977, the courts jurisdiction to order an arrest suspectus de fuga was held not to be ousted. This is because suspectus de fuga was regarded as an extension of the common law principle of contempt of court. Applicant is seeking a declaration of invalidity of the common law rule relating to arrest tanquam suspectus de fuga. Applicant submitted that this Court has a constitutional obligation to develop the common law in accordance with the spirit, purport and objects of the Bill of Rights.

[45]         Section 2 of the Constitution states that “This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” This court has the inherent power in terms of section 173 of the Constitution to protect and regulate its own process and to develop the common law taking into account the interest of justice. In doing so regard should be had to sections 7, 8 and 39(2) of the Constitution. Section 39(2) of the Constitution provides that when interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. Furthermore section 172(1) of the Constitution obliges a court to declare a legal provision invalid to the extent of its inconsistency with the Constitution.

(i) Mootness of the legal issue:

[46]          Fourth respondent opposed the relief sought by applicant in respect of declaring the common law rule relating to arrest tanquam suspectus de fuga constitutionally invalid. Fourth respondent argued that the issue is academic and had already been decided by the Supreme Court of Appeal in the matter of Bid Industrial Holdings above. Fourth respondent conceded, however, that the legislature clearly did not intend to modify the common law by the enactment of section 30 of the Act and that the intention rather seems to have been to endow the magistrates’ court by statute with all common law powers in regard to arrest tanquam suspectus de fuga. Furthermore fourth respondent proposed the enactment of remedial legislation in order to cure the constitutional invalidity of section 30 of the Act.

[47]         Applicant submitted, on the other hand, that even though the applicant was released from custody, the issue of law as it pertains to the arrest and detention of civil debtors remains of considerable importance. The issue of law in this matter impacts on the interests of other detained persons who are similarly incarcerated due to the suspectus de fuga procedure. Applicant further submitted that both creditors and debtors have an interest in knowing what the law is and that the issue in this case is likely to arise again in future. Counsel for applicant submitted that in Bid Industrial Holdings above, the court did not deal with arrest suspectus de fuga. In Bid Industrial Holdings, the Supreme Court of Appeal declared section 19(1)(c) of the Supreme Court Act and the common law rule allowing arrest to found or confirm jurisdiction unconstitutional. The constitutionality of an empowering provision for the arrest to found or confirm jurisdiction was challenged.

[48]         The Supreme Court of Appeal found that the common law came to deal with the attachment of property and the arrest of the person (this was to enable an effective judgment or security to be obtained) and that the governmental purpose of the limitation was to favour plaintiffs in line with the common law by seeking to enable them to establish jurisdiction which would not otherwise exist and therefore to avoid the expense of suing abroad. [19]The Supreme Court of Appeal (para 48) stated that if the common law is to be developed by abolishing jurisdictional arrest, that development must necessarily involve practical expedients for cases where jurisdiction is sought to be established and there can be neither arrest nor attachment. Similarly if the common law relating to arrest to found or confirm jurisdiction is declared unconstitutional, there are as set out above less restrictive measures to achieve the objective.

[49]         In Amrich Property Holdings above, Mathopo J dealt with the issue of arrest suspectus de fuga. However the constitutionality of Section 30, although discussed, was not pronounced upon. Therefore the legal issue has not yet been decided upon. In my view the constitutionality of an arrest suspectus de fuga will continue to be the subject of legal proceedings before the courts. It is in the interests of justice to decide upon the constitutionality of section 30 of the Act. Furthermore the Magistrate Courts in terms of section 170 of the Constitution do not have the power to enquire into the constitutionality of section 30 of the Act or any other legislation. Therefore it is incumbent upon this court to make a finding on the constitutionality of the section under consideration.

[50]         In Freedom of Expression Institute and others v President, Ordinary Court Martial and Others 1999 (2) SA 471 (C), the court dealt with the issue concerning the constitutional validity of the Defence Act 44 of 1957 and section 78(3) of the Military Disciplinary Code. These relevant sections provide for the establishment and composition of a court martial. Certain charges in terms of this Act were brought against the applicants in this matter and if convicted on the charges, they would face the possibility of terms of imprisonment of up to two years. The court found section 78(3) of the above Act to be unconstitutional as it did not accord with the norms of a civilized and democratic society. The court further held that the section offends against an accused persons constitutional rights in terms of section 35(3)(c) of the Constitution. The court further found that the section was not consonant with section 34 of the Constitution. On this basis it was found that the section was unconstitutional and should be struck down. (at 478B-E)

[51]         In the Freedom of Expression Institute case above counsel submitted that since the Defence legislation was currently being revised, it would be a purely academic exercise to decide the constitutional issues, and therefore it would be unnecessary for this Court to pronounce on the constitutional validity or otherwise of the various provisions of the Defence Act and the Military Disciplinary Code. The court however disagreed and held (at 485G-486I) that:

“ Firstly we should remind ourselves that the first and most sacred duty of the Court, where it is possible to do so, is to administer justice to those who seek it ( Hurley and Another vv Minister of Law and Order and Another) 1985 (4) SA 709 ( D) at 715G). It follows from this principle that the Court should be loath to close its doors to a litigant because of what happened subsequent to the launching of proceedings. Secondly, and in any event, our Courts have laid down on numerous occasions that pronouncements to the effect that a Court will not enquire into matters which are of intellectual or academic interest only should not be misconstrued. As appears from the judgment of the Appellate Division in Lendalease Finance ( Pty) Ltd v Corporacion de Mercadeo Agricola and Others 1976 (4) SA 464 (A) at 486H, those pronouncements ‘dealt with the situation where the issue presented for decision to the court of first instance was at that stage of abstract or intellectual interest only’…”

[52]         The court further found that when the application was presented to court there was a very real and ‘live’ issue and the fact that subsequent concessions were made by the respondents was of no importance. The court stated the following at 486B-D. emphasis added)

“The issues raised in the present case are not purely academic but of real and practical consequence. There are interested parties upon whom the declaratory order would be binding. The application involves a matter of public and not private law. The issues raised are very much alive and if not resolved in these proceedings they will inevitably come before Court in the near future. The issues will certainly affect not just the applicants before us but many more people in similar circumstances. The raising of these issues in legal circles has surely caused uncertainty and anxiety in the minds of people who may similarly be affected. Therefore it is only proper that this Court should pronounce on these issues. It would be unwise, in my view, to abdicate our responsibility on the basis that the matter is currently being reviewed by the work group. Surely the judgment of this Court would be of relevance to the work group in updating the Defence legislation in line with the Constitution. Further authorities for the view that pronouncing on a matter of public interest is not an academic exercise include Ex parte Chief Immigration Officer, Zimbabwe 1994 (1) SA 370 (ZS) at 376-7; Tribe American Constitutional law 2^nd ed at 88. “

(ii) Developing the common law rule suspectus de fuga:

[53]         Applicant has referred to the unreported judgment of Mathopo, J in Amrich Property Holdings above where the court concluded (para 35) that:

“. . . to the extent that the common law may be at odds or variance with the Constitution it should be developed, because an arrest under such circumstances cannot pass the limitation test in section 36, as it is contrary to the spirit, purport and objects of the bill of rights.”

Developing the common law would entail considerations and adoption of a legally acceptable substitute practice. It was held in Bid Industrial Holding case (at 368B-C) that:

“…this court has accepted for purposes of reciprocal enforcement of a foreign judgment, that the defendant’s mere physical presence within the foreign jurisdiction when the action was instituted is sufficient, according to South African conflict of law rules, for a finding that the foreign court had jurisdiction…” See Richman v Ben-Tovim 2007 (2) SA 283 (SCA) paras 7 to 9.”

[54]         It was submitted on behalf of applicant that even if section 30 is deleted, the common law power to issue a writ of arrest still remains and that the court needs to make an order declaring the common law in this regard as unconstitutional. It was further submitted that no harm would be caused by declaring the common law as unconstitutional. The unconstitutionality of the common law has been addressed in the case of Amrich Property Holdings above. The court in this instance relied upon the judgment of Flemming J in Gouveia v Da Silva the court stated (at 62F-G) that:

“…the imprisonment which is sought…so closely approximates that civil imprisonment to which the 1977 legislation refers that, if not covered thereby, the modern policies regarding imprisonment for debt cannot be lost sight of. No marked injustice will follow if the applicant is left to the enforcement of the judgments in that country to which the respondent moves…”

[55]         Applicant further submitted that there was no evidence that there would be a lacuna in the law should the court order a declaration of invalidity. The High court still has an obligation to make a declaration of invalidity. In Coetzee v Government of South Africa above the court held that it is not the function of the Court to fill in a lacuna in pre-Constitution statutes to save them from invalidity. In terms of the Constitution the courts are permitted the pared- down construction of legislation so as to rescue it from a declaration of invalidity; however this does not require a restricted interpretation of fundamental rights so as to interfere as little as possible with pre-existing law.[20]

[56]         I am inclined to agree with applicant’s submission that the proposal by fourth respondent for the enactment of remedial legislation is not required as it is difficult to understand what effective and alternative provision could be enacted which would have a less drastic effect on the liberty, dignity and equality of a person who is affected by section 30 of the Act. In Dawood , Shalabi and Thomas v Minister of Home Affairs 2000 (3) SA (CC) 936 the Constitutional Court considered the appropriate orders to be made where legislative provisions are found to be unconstitutional. The Constitutional Court stated that a court is obliged once it has concluded that a provision of a statute is unconstitutional, to declare that provision to be invalid to the extent of its inconsistency with the Constitution. The court may also make any order that it considers just and equitable, including an order suspending the declaration of invalidity for sometime.  The court said (at 972 B-C) that:

“. . . The inconsistency with the Constitution therefore lies in a legislative omission, the failure to provide guidance to the decision-maker. As such, therefore, it cannot be cured by the technique of actual or notional severance employed by this Court, for example in Ferreira v Levin NO and Others; Vryenhoek and Others v Powell No and Others”

[57] In National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 1999 (1) SA 6 (CC) , the Constitutional Court held that it would introduce words into a legislative provision if such an order was appropriate. In deciding whether such an order was appropriate, the court held that there are two primary considerations. Firstly, the need to afford appropriate relief to successful litigants and secondly the need to respect the separation of powers, and in particular the role of the Legislature as the institution constitutionally entrusted with the task of enacting legislation. In Dawood, Shabala and Thomas above the court stated that it would be inappropriate for this court to seek to remedy the inconsistency in the legislation under review and that it would be appropriate to leave the legislature to determine in the first instance how the unconstitutionality should be cured and that the court should be slow to make the choices which are primarily the choices suitable for the legislature.[21] The Constitutional Court in National Coalition supra found it appropriate to suspend the order of invalidity for a period of two years, which should be sufficient time to permit the Legislature to attend to rectifying the cause for constitutional complaint in the legislation. The court in Dawood supra took into account the fact that the department published a fundamental review of the legislation under scrutiny and therefore suspended the order of invalidity for a period of two years and further afforded appropriate interim relief to affected persons.

[58]         The unconstitutional provisions contained in section 30 of the Act in this case cannot be cured by a suspension of invalidity. This is so because the fourth respondent cannot rectify the constitutional complaint under consideration with an appropriate substitute. In contrast to Dawood, Shabala and Thomas above it was said that there are a range of possibilities that the Legislature may have adopted to cure the unconstitutionality of the provision. The Constitutional Court in the latter instance granted relief in the form of a mandamus pending the amendment or replacement of the Act.

[59]         In Matatiela Municipality and Others v President of Republic of South Africa and Others 2007 (6) SA 477 (CC) the Constitutional Court dealt with the constitutional challenge to the Twelfth Amendment to the Constitution and the Repeal Act in question. The court in this instance had to deal with the appropriate remedy for the unconstitutional conduct of a provincial legislature. In considering whether it was just and equitable to order a suspension of invalidity of a legislative provision or constitutional amendment the courts should have regard to the potentiality of prejudice being sustained if an order of invalidity is not suspended, the interests of the parties as well as that of the public; and the need to promote the constitutional project and prevent chaos.[22]

[60]         In Mabuza v Mbatha 2003 (4) SA 218 (C), the court had to decide upon the declaration of section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 insofar as it conflicted with section 9 of the Constitution; and a declaration that the customary marriage be regarded as a marriage in community of property as envisaged by section 7(2) in the Recognition of Customary Marriages Act 120 of 1998. The court emphasized the constitution as the supreme law as set out in section 2 of the Constitution.

The court stated the following:

“…if one accepts that African customary law is recognized in terms of the Constitution and relevant legislation passed thereunder, such as the Recognition of Customary Marriages Act 120 of 1998 referred to above, there is no reason, in my view, why the Courts should be slow in developing African customary law. Unfortunately one still finds dicta referring to the notorius repugnancy clause as though one were still dealing with a pre-1994 situation…The proper approach is to accept that the Constitution is the supreme law of the Republic. Thus any custom which is inconsistent with the Constitution cannot withstand constitutional scrutiny….The Courts have a constitutional obligation to develop African customary law, particularly given the historical background referred to above. Furthermore, and in any event, section 39(2) of the Constitution enjoins the Judiciary when interpreting any legislation, and when developing the common law or customary law, to promote the spirit, purport and objects of the Bill of Rights. . . the test is not, in my view, whether or not African customary law is repugnant to the principles of public policy or natural justice in any given case. The starting point is to accept the supremacy of the Constitution, and that law and/or conduct inconsistent therewith is invalid. Should the Court in any given case come to the conclusion that the customary practice or conduct in question cannot withstand constitutional scrutiny, an appropriate order in that regard would be made. The former approach, which recognizes African law only to the extent that it is not repugnant to the principles of public policy or natural justice, is flawed. It is unconstitutional. (At 227J-228F emphasis added)

[61] The question of severability was dealt with by the Constitutional Court in Coetzee v Government of South Africa above where it was said (at 644 I-645A) that:

“. . . there are two questions to be answered with regard to the possible severance of the provisions of the law not consistent with the Constitution. First, can one excise the provisions which render the option of imprisonment unconstitutional because they do not distinguish between those that can pay but will not from those who cannot pay? If not, can the provisions which provide for imprisonment itself be severed from the rest of the system for enforcement of judgment debts? “The test has two parts: first, is it possible to sever the invalid provisions and second, if so, is what remains giving effect to the purpose of the legislative scheme?”

The court concluded that it is possible to sever the provisions which make up the option of imprisonment and still the object of the statute will nevertheless remain to be carried out. Severance in terms of section 30(3) of the Act is not an option. Should the court sever the provisions relating to the option of imprisonment, the provision will then become redundant. Severance in terms of section 30(1) however is possible as the object of the section relating to the enforcement of judgment debts will not be prejudicially affected as there are other less drastic measures which may be utilized for this purpose.

[62]         Fourth respondent did not oppose the application to declare section 30(3) of the Act unconstitutional. However he argued that the order of invalidity should not be made regarding the common law rule of suspectus de fuga. In my judgment it is not possible to separate the good from the bad i.e the common law rule is inconsistent with the constitutional rights relating to freedom, equality and dignity. Fourth respondent argued for the enactment of remedial legislation over a period of 24 months to enable it to draft legislation replacing section 30(3) of the Act. Applicant argued that such was totally unnecessary as it was not possible to sever the good from the bad provisions of section 30(3).

[63] In my view Parliament need not be given the opportunity to correct the constitutional defect contained in section 30 of the Act through the adoption of a fresh amendment. In Matatiele Municipality above the court was able to order a suspension of invalidity of the legislation for a period of 18 months as it was capable of being replaced or amended by the legislature. It remains a mystery to the court why Parliament did not abolish Section 30 of the Act and the common law rule of arrest suspectus de fuga after the Bid Industrial Holdings judgment which was reported in 2008. Surely had Parliament done that, this application would not have been necessary in the first place. I therefore find that the appropriate remedy would be to sever the offensive wording contained in section 30 (1) of the Act, the offensive words being “ arrest tanquam suspectus de fuga” and that section 30(3) of the Act should be deleted in its entirety. Accordingly the common law is struck down in its entirety.

[64] Section 172(2) of the Constitution provides that an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court. Accordingly this matter (declaration of section 30 and the related common law) is referred to the Constitutional Court in terms of section 172 (2) of the Constitution.

Costs

[65]         In regard to costs, applicant submitted that fourth respondent should pay the costs of this application, including the costs of two counsel. The Constitutional Court has previously ruled that the state has an obligation to amend legislation, which violates constitutional rights. To date there is no forthcoming legislation in respect of section 30 of the Act. Section 30 remains unconstitutional insofar as it allows for arrest suspectus de fuga. The court considers that it is just and equitable that fourth respondent should therefore pay the costs of this application.

Accordingly the fourth respondent is ordered to pay the costs of this application such costs to include the costs of two counsel.

[66]         In the result the following order is made:

1. The words “arrest tanquam suspectus de fuga” as contained in section 30 (1) of the Magistrates’ Courts Act 32 of 1944 are declared unconstitutional and invalid and must therefore be deleted.

2. The whole of Section 30(3) of the Magistrates’ Courts Act 32 of 1944 is declared to be inconsistent with the Constitution and invalid.

3. The common law which authorizes arrests tanquam suspectus de fuga is declared to be inconsistent with the Constitution and invalid.

4. Fourth respondent is to pay the costs of this application including the costs of two counsel.

__________

Hlophe JP

[2] Ibid at p83

[3]  1995 (4) SA 631 (CC) at 644F

[4] [2009] ZAPG JHC 40.

[5] Para 30 where Mathopo J further states that “. . .  the liability of the respondent has not been determined. To order his arrest particularly since he has a counter claim which on his version exceeds the applicant’s unliquidated claim would be contrary to the spirit of the Constitution

[6] See Amrich Property Holdings para 31 & Bid Industrial Holdings para 43.

[7] At page 643 D-G.

[8] Article 13(1) of the Universal Declaration of Human Rights; article 12 of the International Covenant on Civil and Political Rights; article 2 of the Fourth Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms; article 22 of the American Convention on Human Rights; and article 12 of the African Charter of Human and People’s Rights make provision for it.

[9] Section 12 provides that (1) Every person shall have the right to freedom and security of the person, which includes the right not to be detained without trial.

(2) No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment.

[10] Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2004 (4) SA 125 ( C) where the Constitutional Court stated at para 36 “ The importance of the right to freedom and, in particular, not to be detained without trial can never be overstated. The right has particular significance in the light of our history during which illegitimate detentions without trial of many effective opponents of pre-1994 government policy of apartheid abounded. We must never again allow a situation in which that is countenanced” See also De Lange v Smuts No and Others 1998 (3) SA 785 (C) at para 24; Freedom of Expression Institute and Others v President Ordinary Court Martial, and Others 1999 (2) SA 471 ( C); Coetzee v Government of the Republic of South Africa, Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 ( CC) at para 10.

[11] Section 36 provides that “ The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, (a) the nature of the right (b) the importance of the purpose of the limitation (c) the nature and extent of the limitation (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.

[12] Elliot v Fourie 1992 (2) SA 817 (C) at 819G-J

[13] See Jones & Buckle above at p83

[14] The recognition and enforcement of foreign judgments is the subject of the South African Law Reform Commission Project 121 Consolidated Legislation Pertaining to International Judicial Co-operation in Civil Matters Report December 2006. The proposed bill contained in Project 121 provides for the recognition and enforcement of foreign civil judgments in Magistrates courts and the High Courts in the Republic and for matters connected thereto.

[15] The South African law reform commission has found that the common-law method for recognizing and enforcing foreign judgments in South Africa is a vital adjunct to the accelerated statutory procedure available under the Enforcement of Foreign Civil Judgments Act 32 of 1988. An accelerated procedure for enforcing foreign judgments in South Africa and for assisting local litigants to enforce the judgments of South African courts abroad is available under the Enforcement of Foreign Civil Judgments Act 32 of 1988. undesignated countries will still have to rely on the common law. See para 4.3.1 of Project 121 December 2006.

[16] Sachs J in Coetzee v Government of South Africa at 659F.

[17] Section 3 of Act 34 of 2005 provides that “The purposes of this Act are to promote and advance the social and economic welfare of South Africans, promote a fair, transparent, competitive, sustainable, responsible, efficient, effective and accessible credit market and industry, and to protect consumers, by-…”

[18] ibid

[19] Bid Industrial Holdings at paragraphs 30 & 45

[20] At para 62.

[21]  Para 62-62

[22] Zondi v MEC Traditional and Local Government Affairs and Others 2006 (3) SA 1 (CC) para [47]

IN LONG Walk to Freedom, Nelson Mandela places enormous hope in education. “Education is the great engine of personal development,” he writes. “It is through education that the daughter of a peasant can become a doctor, that the son of a mineworker can become the head of the mine, that a child of farm- workers can become the president.”

Many people know this quote. When Mandela wrote these words he knew that he was living proof of their truth. What he said next is less well-known: “It is what we make out of what we have, not what we are given, that separates one person from another.”

That is certainly sound advice from a father to a son or daughter, especially during the months before the matric exams. And all across the land the grade 12s of 2009 were exhorted, challenged, even pleaded with, in terms that resembled Mandela’s.

But both statements deserve close scrutiny because neither one bears much resemblance to the reality facing young people. More often than not, education is a great engine of social division, a system that ensures that the daughter of the peasant becomes a call- centre temp; that the son of the mineworker becomes a street sweeper; and that the child of farm workers becomes a domestic servant.

In SA today, education is perpetuating inequality, not ending it. For most young people, what they have — brains, dreams and determination — cannot make up for they were not given: textbooks, libraries, calculators and well-educated teachers.

In a recent ruling, the Indonesian Supreme Court took this logic to a dramatic and radical conclusion. National tests, it held, must be suspended, until all students can write them on an equal footing.

The court has effectively told the government that equitable education is a prerequisite for fair national exams. Whether this will spur the Indonesian government into action, or dangerously disrupt a fragile education system, remains to be seen, but the ruling certainly cuts to the heart of an unjust and unconstitutional reality.

Writing recently in the City Press, members of Blackwash, a black consciousness youth group, put it like it is: “After this year’s results are announced, many individual black learners in rural and township schools who did exceptionally well will be praised for their hard work and dedication. We will be told by the newspapers that all black learners who work hard can also do well. But this is a lie. The majority of white learners pass well whether they work hard or not and black learners fail either way.”

The 2008 matric results, disaggregated by race , seem to confirm this. Take KwaZulu-Natal: last year 99,5% of white students passed, with 73,9% attaining adequate grades for university entrance, whereas only 53% of black students passed, with 13% at university entrance level.

In 2003, all g rade 6 pupils in the Western Cape took standard numeracy tests. The pass-rate in the integrated former Model C schools was 62,4%. In the African township schools it was 0,1% or one in 1000. Six years on, this is the year-group nervously awaiting matric results.

It is tempting to see the present as a simple perpetuation of the past, but now it is wealth, not discrimination based on skin colour, that limits life chances. Those who can pay high school and university fees buy a real chance at making a success of life. The rest must be sublimely talented and lucky to escape unemployment or grindingly monotonous work. After all, Mandela himself was raised by the Thembu paramount chief, who could afford to educate him.

Matric is not a talent competition in which you get judged on self-taught brilliance. School is a marathon where everyone runs the same course and even the most gifted athlete, denied running shoes, a route map and hydration is easily passed by the club runner in soft Nikes sipping Power ade.

The members of Equal Education, who are both black and white, know this well. EE, as it is known, is a movement of young people, and their parents and teachers, that faces this reality and struggles to change it.

At the same time members are motivated to do their best, even under unfair conditions. During the past year E E ran a campaign against late-coming in Khayelitsha, which dramatically increased teaching time in some schools.

Nonetheless, EE members from Kraaifontein to Alexandra wait in trepidation for their final results.

Many of the educational problems of the past decade have rightly been tied to outcomes-based education (OBE), but as we move past OBE, an even bigger leviathan — incomes-based education — is coming into view.

Conservatives argue that resources have little to do with outcomes. But ample evidence from national and multi-country studies over the past decade demonstrates that a range of resources — particularly textbooks and library books — are indispensable. Researchers such as Servaas van den Berg and Nick Taylor have reached similar conclusions, noting also that the capacity to use resources efficiently is essential.

Most vital of all are skilled teachers, a diminishing resource requiring large investment by the government to revive and replenish.

In most countries, student achievement graphs look like a one-humped camel: the majority of students are neither weak nor exceptional . In SA, though, Prof Brahm Fleisch of Wits University has described the “bimodal distribution of achievement” in South African education, meaning that there are a fair number of kids doing really well, a great deal doing very poorly and a small amount in the middle.

What is this two-humped camel if not the perpetuation of educational apartheid? It is not a policy of racism but the active protection of privilege and an indifference to the ma jority.

Just 11 days after being released from prison, Mandela said: “Education is an area that needs the attention of all our people, students, parents, teachers, workers and all others.” This year we must heed this call, whether as pupils, teachers, governing body members, parents or activists. Our national development and the lives of young people depend on our efforts.

n Isaacs is co-ordinator of Equal Education.