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	<title>Constitutionally Speaking &#187; Seminar Room</title>
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	<description>This blog deals with political and social issues in South Africa, mostly from the perspective of Constitutional Law. Written by Pierre de Vos</description>
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		<title>Open Democracy interview With Pierre de Vos on media Freedom</title>
		<link>http://constitutionallyspeaking.co.za/open-democracy-interview-with-pierre-de-vos-on-media-freedom/</link>
		<comments>http://constitutionallyspeaking.co.za/open-democracy-interview-with-pierre-de-vos-on-media-freedom/#comments</comments>
		<pubDate>Wed, 01 Sep 2010 11:27:12 +0000</pubDate>
		<dc:creator>Pierre De Vos</dc:creator>
				<category><![CDATA[Seminar Room]]></category>

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		<description><![CDATA[The website Open Democracy (tagline: free thinking for the world) conducted an interveiw with me on media freedom, the tripartite alliance and Julius Malema. Listen to it by clicking on this link.
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			<content:encoded><![CDATA[<p style="text-align: justify;">The website Open Democracy (tagline: free thinking for the world) conducted an interveiw with me on media freedom, the tripartite alliance and Julius Malema. <a href="http://www.opendemocracy.net/tony-curzon-price-pierre-de-vos/media-freedoms-and-constitution-in-south-africa?utm_source=feedburner&amp;utm_medium=twitter&amp;utm_campaign=Feed%3A+opendemocracy+%28openDemocracy%29&amp;utm_content=Twitter">Listen to it by clicking on this link.</a></p>
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		<title>SABC Board Memorandum to Minister</title>
		<link>http://constitutionallyspeaking.co.za/sabc-board-memorandum-to-minister/</link>
		<comments>http://constitutionallyspeaking.co.za/sabc-board-memorandum-to-minister/#comments</comments>
		<pubDate>Tue, 24 Aug 2010 13:49:34 +0000</pubDate>
		<dc:creator>Pierre De Vos</dc:creator>
				<category><![CDATA[Seminar Room]]></category>

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		<description><![CDATA[SABC board&#8217;s indictment of Chairperson Ben Ngubane
SABC Board
24 August 2010
]]></description>
			<content:encoded><![CDATA[<h1 id="DailyNewsHeadline" style="text-align: justify;">SABC board&#8217;s indictment of Chairperson Ben Ngubane</h1>
<div style="text-align: justify;">SABC Board</div>
<div style="text-align: justify;">24 August 2010</div>
<p><!--</p>
<div>Article rating:</div>
<p>&#8211;></p>
<p style="text-align: justify;"> </p>
<div style="text-align: justify;">Memorandum to the minister of communications, June 8 2010 &#8211; <a href="http://images.businessday.co.za/SABCuse.pdf">published by Business Day</a></div>
<p style="text-align: justify;"> </p>
<p style="text-align: justify;"><strong>Memorandum to the Minister of Communications<br />
The purported appointment of the Group Executive: News and Current Affairs of the SABC related matters </strong></p>
<p style="text-align: justify;"><strong>June 8 2010</strong></p>
<p style="text-align: justify;"><em>This memorandum addresses the circumstances under which the purported appointment was made, and under which the Board of the SABC has resolved that (the trust and relationship of the Board with the chairperson has been irrevocably broken as a consequence of the actions of the chairperson </em></p>
<p style="text-align: justify;">Purpose of the memorandum to the Minister of Communications, General Siphiwe Nyanda</p>
<p style="text-align: justify;">This memorandum sets out the details of and background to a purported appointment of a candidate the vacant post of group executive: news and current affairs (GE News) of the South African Broadcasting Corporation (SABC) on 20 May 2110. It also sets out the background to and circumstances leading up to decisions by a special sitting of the Board of directors of the SABC on 22 May 2010. It&#8217;s divided into four sections:</p>
<p style="text-align: justify;">1 The purported appointment of the GE News by the chairperson and events leading up to and consequent upon the purported appointment.</p>
<p style="text-align: justify;">2 Other material breaches by the chairperson of statutory requirements and governance protocols of governance protocols of concern to the Baard, including attempts to breach the Public Finance Management Act, and by the Group Chief Executive Officer (GCEO), including actions which the Board is advised constitute dereliction of duty.</p>
<p style="text-align: justify;">3 Decisions of the Board on 22 May 2010:</p>
<p style="text-align: justify;">3.1 The purported appointment is nuIl and void<br />
3.2 Unanimous decision by non-executives that their relationship with and trust in the chairperson have irrevocably broken down.</p>
<p style="text-align: justify;">4 Initiatives by the Board to integrate the chairperson into Board, and to consult its statutory stakeholders (the Executive authority and Accounting Authority).</p>
<p style="text-align: justify;">As is clear from the memorandum, the chairperson has</p>
<p style="text-align: justify;">• Engaged in a consistent pattern of behaviour through which he has sought to usurp the proper authority of the Board<br />
• Materially breached his statutory obligations under the Public Finance Management Act (PFMA), the Broadcasting Act (the Act), and the requirements of the SABC Memorandum and Articles of Association (the Articles). In doing so he has placed the Board in broach of nine of the 12 duties set out in the Articles which are collectively binding on directors<br />
• Placed both the SABC and individual directors at risk of serious financial liability and of potential civil litigation or criminal prosecution<br />
• Delayed and prevented the development and implementation of coherent and statutorily-compliant process of turning the SABC around and re-establishing it as a financially sustainable entity.</p>
<p style="text-align: justify;">The Board has taken all reasonable steps to attempt both to integrate the chairperson into a system which operates in a consistent and compliant manner, and to enlighten him as to the obligations of the Board collectively and of directors individually.</p>
<p style="text-align: justify;">It has also repeatedly attempted to advise and inform the GCEO of his obligations and responsibilities.</p>
<p style="text-align: justify;"><strong>1.</strong><strong>       </strong><strong>The purported appointment </strong></p>
<p style="text-align: justify;">The purported appointment of a candidate to the vacant post of GE News of the SABC on 20 May 2010 is the most recent in a series of actions and attempted actions by the chairperson of the Board, Dr Ben Ngubane which other non-executive direct ors ate advised materially breach the SABC&#8217;s and the Board&#8217;s statutory obligations and as prescribed in the Articles.</p>
<p style="text-align: justify;">Events leading up to it are set out below.</p>
<p style="text-align: justify;">The GE News post has been vacant since Q2 2009, following the expiry of the contract of Mr Snuki Zikalala. Mr Phil Molefe, head of SABC international relations department, has been acting GE News since then, and continues to act in that capacity.</p>
<p style="text-align: justify;">The current Board took office on 10 January 2010 and held its first formal meeting on 29 January 2010. Among its immediate concerns was to normalise the situation in the SABC news division, which plays key roles both in fulfilling the SABC&#8217;s statutory obligations under the Act and in underpinning the SABC&#8217;s revenue-generating activities by attracting audiences to its radio and television services. SABC news audiences have been in steep decline both under Mr Zikalala and under Mr Molefe, a factor which has contributed to its declining revenues.</p>
<p style="text-align: justify;">The procedure for appointment of the GE News as set out in the Articles prescribes that the Board shall &#8230; appoint Group Executive Members&#8221;.</p>
<p style="text-align: justify;">&#8220;Group Executive Members&#8221; are members of the Group Executive Committee, which is defined in the Act as &#8220;consisting of the Group Chief Executive Officer, Chief Operating Officer, Chief Financial Officer and no more than 11 other members&#8221;. The GE News is one of the 11 other members referred to.</p>
<p style="text-align: justify;">The Board is thus required to appoint to the post and has at no stage considered delegating this responsibility, nor is it entitled to under the mandatory terms of the Articles.</p>
<p style="text-align: justify;">Under these circumstances, the chairperson stated in a Board meeting that the Board&#8217;s subcommittee on governance, remuneration and nominations (the Governance Committee) would oversee the process of selecting a candidate for the vacant GE News post. The Board accepted this.</p>
<p style="text-align: justify;">On 2 March 2010 the two directors explicitly recommended to the President by Parliament for their experience in broadcasting news operations prepared and submitted to the Governance Committee a memorandum in which they argued that the management arrangements in the news division should be restructured. The memorandum argued that existing management arrangements were such that they would inhibit the prospects of success by any candidate appointed to the position. The chairperson, who also chairs the Governance Committee, overrode objections of other directors on the committee and refused to consider the memorandum, implying that the authors were motivated by racist considerations. This is a matter of record and will be attested to by the directors present.</p>
<p style="text-align: justify;">The Governance Committee thereafter agreed to instruct the group chief executive officer to prepare for consideration by the Governance Committee an advertisement for the vacant post of GE News.</p>
<p style="text-align: justify;">On or about 6 March 2010 staff acting on behalf of the SABC&#8217;s Chief People&#8217;s Officer ( who is responsible for these matters) presented to the chairperson an advertisement to the chairperson which he approved without seeking the requisite approval of the Governance Committee. The advertisement is inaccurate in several aspects regarding the responsibilities, mandatory obligations and skills required by the GE News.</p>
<p style="text-align: justify;">On 11 March 2010 directors questioned the chairperson&#8217;s unilateral approval of the advertisement. He stated that he had relied upon the advice of management and exercised his discretion.</p>
<p style="text-align: justify;">The advertisement was placed and approximately 17 applications submitted. The chairperson received a short-list prepared by staff acting on behalf of the SABC Chief People&#8217;s Officer, which he presented to the Board. The Board objected to the process.</p>
<p style="text-align: justify;">Instead it appointed, by resolution of the Board and from among its members, an interviewing panel (the Panel) comprising the Governance Committee and other directors. On 17 April the Panel considered the applications and prepared a short-list of candidates to be interviewed.</p>
<p style="text-align: justify;">The chairperson unilaterally cancelled interviews on the day on which they were initially due to take place. He did so without consulting other members of the Panel, on the basis that two members of the Panel were not available and that the interviews could not therefore be properly conducted. He rescheduled the interviews to 11 May 2010. Although three members of the Panel were unavailable, he insisted on proceeding with the interviews, which duly took place.</p>
<p style="text-align: justify;">Following the interviews but before the Panel had convened to consider the merit of the candidates, the chairperson stated informally to other members of the Panel that he had ‘scored&#8221; the candidates and was satisfied as to who should he appointed.</p>
<p style="text-align: justify;">He made disparaging remarks concerning at least one other candidate.</p>
<p style="text-align: justify;">Shortly thereafter, as two of the panellists were leaving the SABC by car, Dr Ngubane stopped them in the street, leaned into the window of the car and berated them for what he claimed was a subjective approach to the candidates. He asserted that only he from among the Panellists was objective in his assessment arid threatened them that he would go to court if necessary to ensure the appointment of his preferred candidate. Both directors have informed the Board on the record that they felt threatened by the chairperson&#8217;s behaviour. At that stage the panel had not &#8230; [considered] the merits of the candidates, and had planned to reconvene on Monday 17 May.</p>
<p style="text-align: justify;">It is to be noted that on other occasions, and prior to the short listing process, the chairperson has stated to other directors, Individually, that he was operating under the direct instructions of the President of the Republic and that he was resolved to appoint his preferred candidate, whom he identified by name. He has also been quoted in a newspaper as stating that he was operating under political instruction when making the GE News appointment.</p>
<p style="text-align: justify;">Directors to whom the chairperson spoke will attest to his statements. They and other directors have no doubt that the President would not directly interfere with the authority of an independent accounting authority or try to improperly influence its decisions. The legality of such interference, if indeed it were made, would be particularly problematic for the presidency.</p>
<p style="text-align: justify;">The Panellists reconvened on 17 My to consider the merits of the interviewed candidates. The meeting was initially acrimonious, with Panellists questioning the chairperson&#8217;s actions in threatening and berating two directors following the interviews. The chairperson asserted that he had done so as part of his commitment to ensure an &#8220;objective&#8221; decision.</p>
<p style="text-align: justify;">To avoid deadlock, the Panel did not consider the merits of the candidates, but reopened the discussion on restructuring the management of the news division and engaged the possibility of recommending to the Board that three of the four interviewed candidates be considered for various positions in a reorganised news division management structure.</p>
<p style="text-align: justify;">On this basis, they instructed the GCEO to assess the news division management structure and to report back to the Panel before the end of May, upon which the Panel would consider the report, consider the merits of the candidates, and prepare a recommendation to the Board for consideration at a special Board meeting to be convened on 3 June 2010, This was unanimously accepted by the Panellists, who included the chairperson and the GCEO.</p>
<p style="text-align: justify;">On the morning of 20 May 2010, the chairperson and the GCEO met without informing the other Panellists of their intention to do so. Following that meeting the chairperson instructed the GCEO to initiate the process of appointing the chairperson&#8217;s preferred candidate. The chairperson made no attempt to inform other directors of his decision, either then or later. Directors, including the other Panellists, learned of the purported appointment directly or indirectly via the media.</p>
<p style="text-align: justify;">The deputy chairperson became aware of the purported appointment when she received a telephone call at approximately 11h30 on the same day from a journalist asking for her comment Acting in good faith and believing at the time that the journalist had been misinformed she asserted that no appointment had been made and that she would have been aware of such appointment which was the exclusive prerogative of the Board.</p>
<p style="text-align: justify;">She attempted unsuccessfully to contact both the GCEO and the chairperson immediately thereafter.</p>
<p style="text-align: justify;">She also consulted other directors, who agreed informally both to seek to delay any announcement of the purported appointment &#8211; to give them time to clarify the situation and avoid a public perception of conflict within the Board over the appointment &#8211; and to confirm, if approached by journalists, the deputy chairperson&#8217;s statement.</p>
<p style="text-align: justify;">Various directors attempted to contact the chairperson and the GCEO to confirm the purported appointment, also unsuccessfully.</p>
<p style="text-align: justify;">The chairperson has refused to answer the telephone calls of any directors since issuing the instruction for the purported appointment or to meet them (other than the meeting he attended at the request of the Acting Minister of Communications).</p>
<p style="text-align: justify;">The directors agreed on the need for an urgent meeting to receive reports on the purported appointment, to take legal advice on the matter, and to decide on an approach by the Board. The meeting was attended by 10 of the 12 non-executive direct ors. The chairperson, another non-executive director and two executive directors apologised for their absence. The GCEO failed to attend without apology, despite receiving an instruction from the deputy chairperson to do so.</p>
<p style="text-align: justify;">A meeting was duly called in the manner specified in the Articles, and took place on 22 May 2010.</p>
<p style="text-align: justify;">After receiving legal advice and discussing the purported appointment, directors agreed: that no appointment had taken place; that the selection process must continue and that it was a matter of public interest that perceptions created by the announcement authorised by the GCEO be corrected. An 11th non-executive director has since endorsed the decision.</p>
<p style="text-align: justify;">The Board therefore instructed the company secretary to release a statement to this effect and to inform the purported appointee in writing that he had not in fact been appointed.</p>
<p style="text-align: justify;">The Board also took a decision on the relationship of trust between itself and Dr Ngubane. This decision flows from a consistent pattern of behaviour by Dr Ngubane of which the purported appointment is only the most recent example. It was taken unanimously and subsequently endorsed by the 11th non-executive director. It thus reflects the unanimous view of the directors recommended by Parliament and duly appointed by the President, with the exception of Dr Ngubane himself.</p>
<p style="text-align: justify;">Discussion leading up to the resolution addressed in greater detail elsewhere in this memorandum. So too are initiatives taken by the Board at all material times following the purported appointment to keep its statutory stakeholders (the executive authority and the appointing authority) informed of developments.</p>
<p style="text-align: justify;">The Board has sought to arrange to formally meet Dr Ngubane both directly and, because he has refused to engage directly with other directors, through intermediaries. A meeting was scheduled to take place on 26 May 2010. The intention of the Board in convening this meeting was to inform Dr Ngubane of the views of the Board and to attempt to persuade him to work with the Board as required by statute and to comply with the Board&#8217;s, and individual director&#8217;s, fiduciary and statutory responsibilities and obligations. Dr Ngubane undertook to attend and the meeting was duly called using the established email procedure. Dr Ngubane did not attend. He has subsequently been quoted by two newspapers as stating that he was unaware of the meeting.</p>
<p style="text-align: justify;"><strong>2. Other material breaches by the chairperson </strong></p>
<p style="text-align: justify;">As stated, the purported appointment of the GE News is the latest example of a pattern of behaviour by the chairperson. The Board is not aware of the full range of actions by the chairperson, but is satisfied from those examples of which it is aware that his actions constitute a pattern which materially undermine director&#8217;s ability to fulfil their fiduciary responsibilities to the SABC and their statutory responsibilities. It is also satisfied that his actions undermine the directors&#8217; ability to re-establish good governance procedures at the SABC and to reorganise the SABC on a sound financial and operational footing. The Board was recommended to the President explicitly to achieve these objectives, because of the state of the SABC at the time, recognised by the Department of Communications, National Treasury, the Auditor General of South Africa and the Interim Board of the SABC as being in a state of financial crisis precipitated by simultaneous and deep rooted governance and capacity crises.</p>
<p style="text-align: justify;">In most of these actions of which the Board is aware, the chairperson has cooperated with the GCEO, in his capacity as an executive manager and in his capacity as a director.</p>
<p style="text-align: justify;">This section of the memorandum provides examples of the chairperson&#8217;s actions which demonstrate their range and the potential impact on the SABC. They include:</p>
<p style="text-align: justify;"><strong>2.1 Withholding information on the Ministerial request for a bilateral meeting </strong></p>
<p style="text-align: justify;">The chairperson and the GCEO withheld knowledge from other non-executive direct ors of a request by the Minister of Communications (the Minister) for the first quarterly bilateral meeting between the Minister and the Board an 16 April 2010. At a Board meeting on 14 April 2010, the GCEO and the chairperson acknowledged that they had intended to attend the meeting in the absence of other directors.</p>
<p style="text-align: justify;">The Minister originally issued a formal invitation to the entire Board, in a faxed letter to the chairperson, copied to the GCEO. Neither informed the company secretary nor other directors.</p>
<p style="text-align: justify;">The Board became aware of the invitation by accident in the course of a conversation between an individual director and an official of the DOC on 9 April 2010. The director requested the company secretary to inquire and establish the nature of the meeting and what was required of the Board.</p>
<p style="text-align: justify;">The Board eventually considered the invitation only on 12 April 2010, just two days before the meeting. It was unable to adequately prepare for the meeting, and akthough the GCEO had prepared reports for submission to the meeting, he failed to distribute these to directors either for consideration or discussion, or to enable them to prepare for the meeting. He also refused to provide directors with copies of his reports.</p>
<p style="text-align: justify;">As a consequence, both the Minister and officials of his department found the reports inadequate and criticised both the GCEO and other directors for the inadequacy of their reports and of the failure of the SABC to prepare and implement a turnaround strategy as required under the Government Guarantees provided by National Treasury and in terms of their fiduciary and statutory responsibilities more generally.</p>
<p style="text-align: justify;">Directors have subsequently established from the company secretary the dates of future quarterly bilateral meetings, the next of which is scheduled to take place on 22 June 2010. The Boards next ordinary meeting is scheduled for 23 June 2010, a day after the next scheduled Ministerial bilateral. Dr Ngubane has refused to schedule a meeting prior to the bilateral, ignoring repeated requests by directors, submitted orally and in writing, to do so. He has also refused to consider a change to the corporate calendar to align Board operations with future bilateral meetings and other reporting and accounting cycles.</p>
<p style="text-align: justify;">At its meeting of 22 May 2010 the Board therefore agreed to initiate a process, in the absence of the chairperson, of preparing for the next bi-lateral; of ensuring that the operational processes are initiated on which it is required to report; and of preparing for other budgetary and reporting cycles to be integrated into its work programme. This is addressed in greater detail n the next section. Directors have experienced similar difficulties with regard to its reporting obligations to Parliament.</p>
<p style="text-align: justify;"><strong>2.2 Corporate plan </strong></p>
<p style="text-align: justify;">The Board was unable to properly approve the SABC&#8217;s first annual, MTEF cycle corporate plan prepared under the oversight of the current Board. It was signed by the chairperson before its general distribution to directors.</p>
<p style="text-align: justify;"><strong>2.3 SportFive contract unauthorised variance </strong></p>
<p style="text-align: justify;">At a special Board meeting on 14 April 2010 the Board authorised the GCEO to offer €17.3-million (approximately R161-miilion at the time) to the SportFive agency to secure the broadcasting rights for various Fifa-recognised African football events. In doing so it was aware of the statutory reporting and approval requirements for a transaction of this magnitude. It did not approve any variation from this figure. The Board made the approval conditional upon submission of a written business case for its consideration. It has not, in its view, yet received an adequate business case.</p>
<p style="text-align: justify;">In negotiations with SportFive in Europe on 27 April 2010, the GCEO sought to vary the SABC offer to €19,5-million (approximately R183-million). He sought approval to do so by telephone from the chairperson.</p>
<p style="text-align: justify;">The chairperson approved the upward variation, at the tune the equivalent of approximately R21,237,000. This variation is within the delegated authority of the Board, but approval for this level of expenditure may not be delegated. The chairperson had not been mandated by the Board to act on his own in this matter.</p>
<p style="text-align: justify;">The chairperson has at no stage informed the Board of his actions.</p>
<p style="text-align: justify;">By improperly authorising the GCEO to vary the offer, the chairperson has demonstrated his willingness to take potentially reckless decisions on financial matters in breach of the requirements of the PFMA and to render his co-directors, the Board and die SABC vulnerable to prosecution and to a finding of incurring fruitless and wasteful expenditure.</p>
<p style="text-align: justify;">It is to be noted that the Board authorised the GCEO to enter into these negotiations conditional upon his provision to the Board of a business case for the acquisition of the broadcasting rights. He has, to date, not provided any business case.</p>
<p style="text-align: justify;"><strong>2.4 Travel authorisation </strong></p>
<p style="text-align: justify;">The GCEO visited China from 22 to 27 May 2010. The trip was authorised by the chairperson and was primarily for the purpose of presenting a paper to a conference of media executives in China on the Chairperson&#8217;s behalf. The GCEO was accompanied by his partner on the trip.</p>
<p style="text-align: justify;">The chairperson was the original recipient of the invitation and passed it to the GCEO without consulting other directors.</p>
<p style="text-align: justify;">The chairperson authorised the GCEO&#8217;s trip under the following circumstances:</p>
<p style="text-align: justify;">• Neither he nor the GCFO made provision for the appointment of an acting GCEO in the GCEO&#8217;s absence.</p>
<p style="text-align: justify;">• Three days before the GCEO&#8217;s departure, the Chief Financial Officer was booked off for emergency medical leave to undergo a major abdominal operation from which he is expected to return by 1 June 2010 at the earliest. He was thus not physically present and unable to stand in, even informally, for the GCEO:</p>
<p style="text-align: justify;">• The Fifa World Cup 201 0 tournament for which the SABC is the official domestic broadcaster was, at the date of the GCEO&#8217;s departure, 19 days away and required consistent and comprehensive executive oversight. It is potentially the SABC&#8217;s major broadcasting event of the year;</p>
<p style="text-align: justify;">• The SABC is currently undertaking its financial audit under circumstances in which it is recovering from a major financial crisis and the presence of the GCEO is required;</p>
<p style="text-align: justify;">• The trip provides no particular benefit to the SABC other than to raise the SAD C&#8217;s diplomatic profile in the Far East.</p>
<p style="text-align: justify;">In respectively making and authorising the trip under the circumstances set out above, the GCEO and the chairperson respectively placed the SABC at significant risk and acted recklessly. By absenting himself without ensuring the appointment of an acting GCEO, the GCEO has been derelict in his duty.</p>
<p style="text-align: justify;">Directors are currently seeking to establish f if the chairperson has the properly delegated authority to approve the trip, which he did so in breach of a resolution from the previous Board in terms of which all international travel was prohibited unless it was for the purposes of financially benefitting the SABC. This resolution remains in force</p>
<p style="text-align: justify;"><strong>2.5 Refusal to discuss non-compliance </strong></p>
<p style="text-align: justify;">Directors have for several months been concerned at what they perceive as noncompliance by the corporation and by the Board with respect to its practices and accounting obligations.</p>
<p style="text-align: justify;">On 6 May 2010, three directors circulated a memorandum of 15 pages, setting out specific failures of compliance and proposing urgent remedies to achieve compliance. It proposed that the Board meet urgently to approve implementation of these remedies.</p>
<p style="text-align: justify;">In written response the chairperson described the memorandum as an &#8220;excellent document&#8221;, but refused to convene a meeting as in his view &#8220;there has been just too many meetings which have been taking place in the absence of well prepared documentation&#8221;. Instead he stated his intention to have the matter discussed by the Board at some future but unspecified date. He has since taken no action to arrange such a discussion.</p>
<p style="text-align: justify;">Although several of the issues raised in the memorandum were among those identified during the bilateral meeting of 16 April 2010 by the Minister and the DOC as matters of concern to them, the chairperson has refused to schedule a meeting prior to the next bilateral scheduled for 22 June 2010.</p>
<p style="text-align: justify;">Among the activities pushed off the Board&#8217;s agenda as a consequence of the chairperson&#8217;s refusal to accept an amended Board calendar, and of the Board&#8217;s need to put other matters on hold to address the problems of the purported appointment and other initiatives by the chairperson has been a comprehensive series of briefings on all governance-related instruments and guidelines: the Act and other statutes affecting the SABC&#8217;s broadcasting activities, the PFMA, the Articles, the King rep orts and so on. The Board has nevertheless scheduled this event to take place in time. A briefing to Board members on the Companies Act and the implications of the new Companies Act once it is implemented, has already taken place.</p>
<p style="text-align: justify;"><strong>2.6 Undermining oversight </strong></p>
<p style="text-align: justify;">The chairperson has consistently, throughout the past four months, refused to authorise amendment to the corporate calendar to align Board meetings with extern al reporting cycles and internal reporting and planning cycles. He has done so in breach of several Board resolutions to this effect.</p>
<p style="text-align: justify;">He has, in addition, repeatedly, routinely and without consultation, cancelled Board sub-committee meetings through which directors are required to exercise oversight over the activities of the SABC. His reasons for doing so are unclear, although on several occasions as they appears to have been as a consequence of his non-availability to attend those meetings, although he is not a member of the sub-committees whose meetings he cancelled.</p>
<p style="text-align: justify;">in doing so he has hamstrung directors in the exercise of their fiduciary responsibilities and the Board in the exercise its statutory responsibilities and, in various cases, delayed sub-committees from making recommendations for Board consideration, thereby delaying implementation of decisions requiring Board approval.</p>
<p style="text-align: justify;"><strong>2.7 Reporting failure </strong></p>
<p style="text-align: justify;">Since his appointment, the GCEO has consistently failed to report to the Board at times and on matters required of him in terms of his contractual obligations (which incorporate his reporting obligations in terms of the Articles and of the Delegated Authority Framework), and against the requirements set by the Corporate goals approved by the Board. A letter sent to the GCEO by the Board setting out his obligations and scheduling his failure to report against these obligations is attached to this memorandum as Appendix A.</p>
<p style="text-align: justify;">The effect of this failure has been to substantially hamper the ability of the Board to exercise its mandatory oversight of the SABC and to provide it with strategic direction.</p>
<p style="text-align: justify;">The cumulative effect of these and other actions by the Chairperson and the GCEO has been to:</p>
<p style="text-align: justify;">• Seriously delay the development and implement of a turnaround strategy as r quired by the Guarantee Agreement with National Treasury;</p>
<p style="text-align: justify;">• Delay the process of remedying the many faults in the SABC&#8217;s activities;</p>
<p style="text-align: justify;">• Delay re-establishment of compliant and functional governance procedures at the SABC;</p>
<p style="text-align: justify;">• Sow disunity among directors and between directors and management;</p>
<p style="text-align: justify;">• Undermine the credibility of and public respect for the SABC;</p>
<p style="text-align: justify;">• Create uncertainty in the minds of the SABC&#8217;s statutory shareholders over the capacity of the directors collectively; and</p>
<p style="text-align: justify;">• Entirely undermine the ability of directors collectively through the Board either to exercise proper oversight or to provide strategic direction to the SAI3C</p>
<p style="text-align: justify;"><strong>3. Resolutions of the Board on 22 May 2010 </strong></p>
<p style="text-align: justify;">As a consequence of the events and developments outlined above, the Board met in formal, quorate session on 22 May 2010 and took the following resolutions (the accuracy of the text is attested as accurate by the company secretary.</p>
<p style="text-align: justify;">The board of Directors <strong>RESOLVED</strong> that having due regard and consideration for the statutory documents and legislative provisions governing the SABC</p>
<p style="text-align: justify;">(i) The appointment of Group Executive members remains a matter reserved for the Board in terms Article 14.4.1 of the Articles of Association of the Company</p>
<p style="text-align: justify;">(ii) The Chairman and the CEO did not have the authority to act in the purported appointment of the GE News &amp; Current Affairs and acted without authority and their actions in this regard are null and void and the position of News &amp; Current Affairs remained vacant</p>
<p style="text-align: justify;">(iii) The process of the interviews for the vacant position of Group Executive News &amp; Current Affairs would continue until such time that the appointment process was completed</p>
<p style="text-align: justify;">(iv) The interview Panel would present its recommendations to the Board in a duly constituted Board meeting for consideration</p>
<p style="text-align: justify;">The Board of Directors <strong>RESOLVED</strong> that in the light of the irretrievable breakdown of the relationship of trust between the Board as a collective and the chairperson, the decision of the Board be communicated to the Share holder.</p>
<p style="text-align: justify;">The Board further <strong>RESOLVED</strong> that the Chairperson of the Board be requested to attend a meeting of the Board wherein the Board members individually and collectively to inform the Chairperson of their feeling in respect of the behaviour of the Chairperson and its impact on the relationship with the Board.</p>
<p style="text-align: justify;">The Board takes the unanimous view that these resolutions were necessitated by the improper behaviour of the chairperson, both with respect to the purported appointments of the GE News and more broadly with respect to the activities of the Board and of the SABC.</p>
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		<title>Media Appeals Tribunal &#8211; circa 1977</title>
		<link>http://constitutionallyspeaking.co.za/media-appeals-tribunal-circa-1977/</link>
		<comments>http://constitutionallyspeaking.co.za/media-appeals-tribunal-circa-1977/#comments</comments>
		<pubDate>Tue, 24 Aug 2010 06:54:17 +0000</pubDate>
		<dc:creator>Pierre De Vos</dc:creator>
				<category><![CDATA[Seminar Room]]></category>

		<guid isPermaLink="false">http://constitutionallyspeaking.co.za/?p=2691</guid>
		<description><![CDATA[Politicsweb has puiblished a copy of a media Bill introduced in the apartheid Parliament in 1977, along with a speech of then Minister Connie Mulder and a rather amusing suggestion from James Myburgh that the present government could use the Bill as a template for its proposed Media Appeals Tribunal. Makes one think, doesn&#8217;t it?
The 1977 Newspaper Bill
23 August 2010
As [...]]]></description>
			<content:encoded><![CDATA[<p style="text-align: justify;">Politicsweb has puiblished a copy of a media Bill introduced in the apartheid Parliament in 1977, along <a href="http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page72308?oid=194733&amp;sn=Marketingweb+detail&amp;pid=90389">with a speech of then Minister Connie Mulder</a> and a rather <a href="http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page72308?oid=194746&amp;sn=Detail&amp;pid=71616">amusing suggestion from James Myburgh </a>that the present government could use the Bill as a template for its proposed Media Appeals Tribunal. Makes one think, doesn&#8217;t it?</p>
<p style="text-align: justify;">The 1977 Newspaper Bill<br />
23 August 2010</p>
<p style="text-align: justify;">As introduced by the Minister of the Interior, Dr Connie Mulder, March 11 1977</p>
<p style="text-align: justify;">[B. 82-'77]</p>
<p style="text-align: justify;">NEWSPAPER -BILL</p>
<p style="text-align: justify;">(As read a First Time)</p>
<p style="text-align: justify;">(Introduced by the MINISTER OF THE INTERIOR)</p>
<p style="text-align: justify;">BILL</p>
<p style="text-align: justify;">To provide for the establishment of a press code; for the application of such code in such manner that the freedom of the press is upheld; for the establishment of a press council; for the functions of such press council; and for matters Connected therewith.</p>
<p style="text-align: justify;">BE IT ENACTED by the State President, the Senate and the House of Assembly of the Republic of South Africa, as follows:-</p>
<p style="text-align: justify;">1. There is hereby established a South African press code, which is set out in the Schedule (see below).</p>
<p style="text-align: justify;">2. Reporting in a newspaper which does not comply with the requirements of the Press Code, shall be a contravention of the Press Code.</p>
<p style="text-align: justify;">3. (1) The Press Code shall be applied in such a manner that the freedom of the press is recognized, but in such a manner that-</p>
<p style="text-align: justify;">(a) the law of the Republic;<br />
(b) freedom of worship; and<br />
(c) the Christian view of life,<br />
are not affected.</p>
<p style="text-align: justify;">(2) The Press Code shall not be construed as prohibiting fair and reasonable criticism,</p>
<p style="text-align: justify;">4. (1) There is hereby etablished a council called the Press Council; of which the members, other than the chairman and the acting chairman, shall only be appointed for the performance by the Press Council of some function which it is under it is under this Act required or empowered to perform.</p>
<p style="text-align: justify;">(2) (a) The Press Council shall, according as the chairman of the Press Council may determine, consist of five or three. members, of whom-</p>
<p style="text-align: justify;">(i) one shall be a judge or a retired judge of the Supreme Court of South Africa and shall be the Chairman;</p>
<p style="text-align: justify;">(ii) one half, without taking into account the chairman, shall be persons whose names appear on the list referred to in Subsection (3) (b) (i), and one half shall be persons whose names appear on the list referred to in subsection (3) (b) (ii).</p>
<p style="text-align: justify;">(b) The chairman and the acting chairman of the Press Council shall be appointed by the State President, and the other members of the Press Council shall be appointed by the said chairman.</p>
<p style="text-align: justify;">(c) The chairman and the acting chairman of the Press Council shall hold office for a period of three years.</p>
<p style="text-align: justify;">(3) (a) The State President and the Press Union shall each nominate, for a period of three years, five persons who, in the opinion of the State President or the Press Council, as the case may be, are, by virtue of their educational qualifications and skill, eligible to serve on the Press Council.</p>
<p style="text-align: justify;">(b) The secretary shall keep-</p>
<p style="text-align: justify;">(i) a list of the persons nominated by the State President under paragraph (a); and<br />
(ii) a list of the persons nominated by the Press Union under the said paragraph.</p>
<p style="text-align: justify;">(c) One of the persons nominated by the State President under paragraph (a) shall hold a judicial office o be an advocate or an attorney or a teacher of law at a university of at least ten years&#8217; standing as such, and shall be appointed by the State President as a member of 10 the Press Council and shall act as chairman when the chairman of the Press Council is absent or unable to act.</p>
<p style="text-align: justify;">(d) If a vacancy occurs among the persons nominated under paragraph (a), the vacancy shall be appropriately filled by the State President or the Press Union, as the case may be, for the unexpired portion of the period of three years.</p>
<p style="text-align: justify;">(4) (a) If the Press Council for any reason fails to nominate, within the period determined by the chairman of the Press Council, the required number of persons in terms 20 of Subsection (3) (a) or (d), or ceases to exist, the said chairman shall, with due regard to the provisions of the said subsection (3) (a), nominate the required number of persons.</p>
<p style="text-align: justify;">(b) Such nomination shall for the purposes of this Act be 25 deemed to have been made by the Press Union.</p>
<p style="text-align: justify;">(5) The conditions of service of the members of the Press Council shall be as prescribed.</p>
<p style="text-align: justify;">(6)(a) The administrative work connected with the performance by the Press Council of its functions shall be performed 30 by officers of the department designated by the Minister.</p>
<p style="text-align: justify;">(b) The chairman of the Press Council shall designate one of the said officers as clerk of the Press Council.</p>
<p style="text-align: justify;">(7) The seat of the Press Council shall be at the place determined by the Minister Provided that if by reason of the 35 existence of special circumstances it appears to the Press Council to be desirable to hold a sitting for the disposal of any particular matter at a place other than the place determined by the Minister, the Press Council may hold such sitting at such place.</p>
<p style="text-align: justify;">(8) The chairman of the Press Council shall preside at all meetings of the Press Council at which he is present.</p>
<p style="text-align: justify;">(9) Three members of the Press Council shall form a quorum, and the decision of a majority of the members present at a meeting of the Press Council, shall be a decision of the Press Council, and in the event of an equality of votes on any matter the person presiding at the meeting in question shall have a casting vote in addition to his deliberative vote.</p>
<p style="text-align: justify;">(10) If any person appointed as a member of the Press Council by virtue of his nomination by the Press Council in terms of subsection (3) (a) refuses or fails to take part in the proceedings in 50 question of the Press Council, the chairman of the Press Council may appoint as a member of the Press Council in his place a person nominated by the State President in terms of the said subsection (3) (a).</p>
<p style="text-align: justify;">(11) The Press Council may in its discretion consult any person who, in its opinion, is an expert on any matter which it is required to decide.</p>
<p style="text-align: justify;">5 (1) Any person dissatisfied at a report in a newspaper may in writing ledge a complaint about such report with the clerk of the Press Council, specifying-</p>
<p style="text-align: justify;">(a) the name of the newspaper in question;<br />
(b) the date of the edition in question of the newspaper,<br />
(c) the report being complained about; and<br />
(d) the reasons for the dissatisfaction of the complainant at that report.</p>
<p style="text-align: justify;">(2) A complaint referred to in subsection (1) shall be lodged with the clerk of the Press Council within twenty-one days of the date on which the report in question appeared in the newspaper in question or within such further period as the chairman of the Press Council may determine.</p>
<p style="text-align: justify;">(3) A complaint lodged in terms of Subsection (I) shall be submitted by the clerk of the Press Council to the chairman of the Press Council.</p>
<p style="text-align: justify;">(4) The chairman of the Press Council may direct the clerk of the Press Council to request the complainant to furnish the said clerk in writing with such further particulars of his complaint as<br />
the said chairman may require.</p>
<p style="text-align: justify;">(5) A complaint which in the Opinion of the chairman of the Press Council is frivolous shall not be submitted to the Press Council in terms of section 6.</p>
<p style="text-align: justify;">(6) A complainant who lodged a complaint referred to in subsection (5) shall be informed of the decision of the chairman of 15 the Press Council in terms of the said subsection and his reasons therefor.</p>
<p style="text-align: justify;">6. (1) The clerk of the Press Council shall, after a complaint has in terms of subsection (1) of section 5 been lodged with him or, if further particulars thereof have in terms of subsection (4) of the said section been requested, after the receipt of such further particulars, serve, in the manner contemplated in section 7 (3) (c), such complaint, or such part thereof as may have been specified by the chairman of the Press Council to be relevant, on the editor or owner of the newspaper in question.</p>
<p style="text-align: justify;">(2) When the clerk of the Press Council serves a complaint on the editor or owner of a newspaper in terms of subsection (I) he shall inform him-</p>
<p style="text-align: justify;">(a) that the complaint will be submitted to the Press Council for a decision whether the report in question involves a contravention of the Press Code; and</p>
<p style="text-align: justify;">(b) that he may within fourteen days, or such shorter period not being less than twenty-four hours as the chairman of the Press Council may determine, from the time when the complaint has been served on him by the clerk of the 35 Press Council, comment in writing on the complaint.</p>
<p style="text-align: justify;">(3) The clerk of the Press Council shall after the expiration of the period contemplated in subsection (2) (b) and on a date and at a time determined by the chairman of the Press Council submit the complaint, together with the comments (if any) of the editor or owner of the newspaper in question, as the case may be, to the Press Council for investigating and deciding whether the report in question constitutes a contravention of the Press Code.</p>
<p style="text-align: justify;">7. (1) If a complaint has in terms of section 6 (3) been submitted to the Press Council, it shall decide whether the report in question constitutes a contravention of the Press Code-</p>
<p style="text-align: justify;">(a) after examination of the report in question; and</p>
<p style="text-align: justify;">(b) after consideration of-</p>
<p style="text-align: justify;">(i) the complaint;<br />
(ii) the comment in question contemplated in section 6 50 (2) (b) (if any);<br />
(iii) any document produced in terms of subsection (3)</p>
<p style="text-align: justify;">(b) of this section; and</p>
<p style="text-align: justify;">(iv) the evidence given by a person contemplated in<br />
subsection (3) (a) or (1) of this section. 55</p>
<p style="text-align: justify;">(2) The chairman of the Press Council shall, subject to the other provisions of this Act, determine the procedure to be followed by the Press Council at an investigation of a complaint.</p>
<p style="text-align: justify;">(3) (a) The complainant and the editor or owner referred to in section 6 (2) (b), or the authorised representative of the latter, may personally or by his legal representative appear before the Press Council when it considers the complaint and examine persons then giving evidence before the Press Council in relation to the complaint, and may then give evidence or, with the consent of the Press Council, personally or by his legal representative tender evidence. -</p>
<p style="text-align: justify;">(b) The Press Council may direct any person, including the complainant or editor or owner in question or, if the latter is a juristic person, a representative of such juristic person, o appear before the Press Council to-</p>
<p style="text-align: justify;">(i) give evidence; or</p>
<p style="text-align: justify;">(ii) produce any document in his possession or under his control, which, in the opinion of the Press Council has a bearing on the complaint being considered by the Press Council, and may examine any such person or any person referred to in paragraph (a).</p>
<p style="text-align: justify;">(c) Such direction shall be by way of a subpoena in the prescribed form and signed by the chairman of the Press Council and served on the person subpoenaed either by a registered letter sent through the post or by delivery by a person authorized thereto by the said chairman.</p>
<p style="text-align: justify;">(d) When the Press Council considers it necessary to do so, 15 it may require any person appearing before it under paragraph (b) to give evidence on oath or after having made an affirmation.</p>
<p style="text-align: justify;">(e) The chairman of the Press Council may administer an oath to, or accept an affirmation from, any person appearing before it.</p>
<p style="text-align: justify;">(f) If in the course of the investigation it appears to the Press Council that a person, other than a person to whom a communication in terms of section 6 (2) or a direction in terms of paragraph (b) of this subsection 25 was issued, may mainly be responsible for the report in question, such person shall, in the manner contemplated in paragraph (c) of this subsection, be informed of the investigation, and the provisions of this section shall p1y in respect of him.</p>
<p style="text-align: justify;">(g) Failure by a person referred to in section 6 (2) or paragraph (f) of this subsection to attend the investigation in question by the Press Council, shall not affect the validity of the proceedings of the Press Council.</p>
<p style="text-align: justify;">(4) The meetings of the Press Council shall be open to members 35 of the public: Provided that the Press Council may in its discretion exclude members of the public from any particular meeting of the Press Council.</p>
<p style="text-align: justify;">(5) The Press Council shall furnish reasons for its decisions.</p>
<p style="text-align: justify;">(6) If the Press Council decides that the report in question 40 involves a contravention of the Press Code, the chairman of the Press Council may, after hearing any evidence tendered or any representations made (if any), administer the reprimand or impose. a penalty or issue the direction provided for in section 8.</p>
<p style="text-align: justify;">(7) (a) The chairman of the Press Council shall cause a report to 45 be drawn up of every complaint on which the Press Council has given a decision.</p>
<p style="text-align: justify;">(b) A report referred to in paragraph (a) shall contain-</p>
<p style="text-align: justify;">(i) the decision of the Press Council and the reasons for the decision;</p>
<p style="text-align: justify;">(ii) if under subsection (6) a reprimand has been administered, a penalty has been imposed or a direction has been issued, such reprimand, penalty or direction, as the case may be; and</p>
<p style="text-align: justify;">(iii) the name of the person mainly responsible for the 55 report in question, if it is known, except when the said chairman deems it desirable in the public interest that that name be not made known.</p>
<p style="text-align: justify;">(c) The clerk of the Press Council shall send to the complainant, the editor or owner in question and the Press Union each a copy of the report.</p>
<p style="text-align: justify;">(8) The report referred to in subsection (7) shall be kept in the office of the clerk of the Press Council and shall be open for inspection by the public, and copies thereof shall upon application by any person and on payment of the prescribed fee be supplied to such person.</p>
<p style="text-align: justify;">(9) The editor or owner concerned, as the case may be, shall after receipt of a copy of a report referred to in subsection (7) and without delay cause that report to be published fully in the next ensuing issue of the newspaper in question, either at such place in the newspaper as he may deem fit or, if the chairman of the Press Council has directed that it be published at some place therein, then at such place. 5</p>
<p style="text-align: justify;">(10) Any person who contravenes subsection (9) or refuses or fails to comply with a direction under subsection (3) or who refuses to answer any question put to him under the last- mentioned subsection or gives to such a question an answer which o his knowledge is false, or refuses to take the oath or to make an affirmation at the request of the chairman of the Press Council in terms of the said subsection (3), shall be guilty of an offence.</p>
<p style="text-align: justify;">8. (1) The chairman of the Press Council may in the event of a decision contemplated in Section 7 (6)-</p>
<p style="text-align: justify;">(a) reprimand the person who, in the opinion of the Press Council, was mainly responsible for the report in question, or impose upon him a fine not exceeding one thousand rand;</p>
<p style="text-align: justify;">(b) impose upon the owner of the newspaper in question a fine not exceeding ten thousand rand;</p>
<p style="text-align: justify;">(c) direct that the printing and publication of the newspaper in question be suspended for a period determined by him.</p>
<p style="text-align: justify;">(2) The chairman of the Press Council may, in the manner contemplated in section 7 (3) (c), direct any person referred to in 25 subsection (I) of this section to appear before him for the purposes of the said subsection (1).</p>
<p style="text-align: justify;">(3) Before the chairman of the Press Council takes any steps in terms of subsection (1) of this section, he shall, either orally or by way of a notice served as contemplated in section 7 (3) (c), afford 30 the person concerned an opportunity to advance before him, either in writing or orally, mitigating circumstances or reasons why any particular step contemplated in the said subsection should not be<br />
taken, or no such step should be taken, in his case.</p>
<p style="text-align: justify;">(4) Any person who refuses or fails to- 35</p>
<p style="text-align: justify;">(a) appeal before the chairman of the Press Council in terms of a direction under subsection (2); or</p>
<p style="text-align: justify;">(b) pay, within the period as provided in subsection (5), a fine imposed on him under subsection (I) (a) or(b); or</p>
<p style="text-align: justify;">(c) obey a direction in terms of subsection (1) (c), shall be guilty of an offence.</p>
<p style="text-align: justify;">(5) A fine imposed under subsection (I) (a) or (b) shall be payable to the secretary within thirty days of the date on which it was imposed or within such further period as the chairman of the Press Council may allow.</p>
<p style="text-align: justify;">(6) A fine imposed under subsection (I) (a) or (b) which has been paid, shall be paid into the State Revenue Fund.</p>
<p style="text-align: justify;">9. A decision under this Act of the Press Council or the chairman thereof shall not be subject to appeal to a court of law.</p>
<p style="text-align: justify;">10. (1) A review of a decision of the Press Council or the chairman thereof shall be by three judges of a division of the Supreme Court of South Africa.</p>
<p style="text-align: justify;">(2) If the court reviewing a decision of the Press Council or the chairman thereof sets such decision aside, such court shall remit the matter in question to the Press Council or such chairman, as the case may be, for reconsideration and the giving of some other decision: Provided that if the court sets aside a decision of the Press Council or the said chairman on the ground that the Press Council or the chairman acted mala fide in the giving of the decision in question, the court shall give such decision as in its opinion the Press Council or the chairman should have given.</p>
<p style="text-align: justify;">(3) A decision of the court under the proviso to subsection (2) shall for the purposes of the provisions of this Act, other than the provisions of subsections (1) and (2) of this section, be deemed to be a decision of the Press Council or the chairman thereof, as the case may be.</p>
<p style="text-align: justify;">11. (1) No person shall.-</p>
<p style="text-align: justify;">(a) insult, disparage or belittle a member of the Press Council or anticipate or publish otherwise than as factually correct the proceedings or findings of the Press Council, or publish otherwise than without comments any such proceedings before they have been concluded;</p>
<p style="text-align: justify;">(b) while a meeting of the Press Council is in progress wilfully interrupt the proceedings of the Press Council or misbehave himself in any other manner in the place where such meeting is being held;</p>
<p style="text-align: justify;">(c) in connection with the Press Council do anything which, if done in connection with a court of law, would have Constituted contempt of court.</p>
<p style="text-align: justify;">(2) Any person who contravenes a provision of subsection (1) shall be guilty of an offence.</p>
<p style="text-align: justify;">12. (1) No person shall do anything calculated to influence the Press Council or a member or an officer thereof in respect of any matter being or to be considered by the Press Council or such member or officer: Provided that the provisions of this subsection shall not be construed as prohibiting any person from performing any act under the provisions of this Act.</p>
<p style="text-align: justify;">(2) Any person who contravenes subsection (1) shall be guilty of an offence.</p>
<p style="text-align: justify;">13. (1) The owner or person in control of a newspaper shall ensure that the name and address of the person mainly responsible for any report in such newspaper is correctly and fully recorded.</p>
<p style="text-align: justify;">(2) The Press Council may, in the manner contemplated in newspaper. section 7 (3) (c), direct the owner or person in control of a newspaper to furnish the clerk of the Press Council with the record referred to in subsection (I) relating to a particular report, within seven days or such shorter period not being less than forty-eight hours as the Press Council may determine.</p>
<p style="text-align: justify;">(3) Any person who Contravenes subsection (1) or fails to comply with a direction in terms of subsection(2) shall be guilty of an offence.</p>
<p style="text-align: justify;">14. (1) The owner or person in control of a newspaper shall not in any manner whatsoever compensate for news hints any person who is not in his service or who does not under any agreement make contributions for insertion in reports in such newspaper on a full-time or part-time or regular basis or as a freelance journalist, or invite any such person to give news hints for remuneration.</p>
<p style="text-align: justify;">(2) Any owner or person in control of a newspaper who contravenes subsection (I) shall be guilty of an offence</p>
<p style="text-align: justify;">15 (1) An insurer shall not insure any person against penalties against which the chairman of the Press Council may impose upon him in terms of this Act.</p>
<p style="text-align: justify;">(2) An insurer who contravenes subsection (1) shall be guilty of an offence,</p>
<p style="text-align: justify;">16. No civil or criminal proceedings may be instituted against the State or the Press Council or a member or an officer of the Press Council, or against a complainant, in respect of any act performed bona fide in accordance with this Act.</p>
<p style="text-align: justify;">17. If a report appears in a newspaper referred to in paragraph (c) of the definition of &#8220;newspaper&#8221; in section 20 under a name purporting to be the name of any person who is a South African citizen, he shall be deemed to be responsible for such report.</p>
<p style="text-align: justify;">18. (1) Any person convicted of a contravention of section 8 (4) shall be liable-</p>
<p style="text-align: justify;">(a) in the case of a first Conviction, to a fine not exceeding five hundred rand or imprisonment for a period not exceeding six months or to both such fine and such imprisonment;</p>
<p style="text-align: justify;">(b) in the case of a second Conviction, to a fine not less than five hundred rand and not exceeding one thousand rand or imprisonment for a period not exceeding six months or to both such fine and such imprisonment; and</p>
<p style="text-align: justify;">(c) in the case of a third or subsequent conviction, to a fine not less than one thousand rand and not exceeding two thousand rand or imprisonment for a period not exceeding twelve months or to both such fine and such imprisonment</p>
<p style="text-align: justify;">(2) Any person convicted of a contravention of section 7 (10), 11(2), 12 (2), 13 (3), 14 (2) or 15 (2) shall be liable to a fine not exceeding five hundred rand or imprisonment for a period not exceeding six months or to both such fine and such imprisonment.</p>
<p style="text-align: justify;">19. (1) The Minister may make regulations as to-</p>
<p style="text-align: justify;">(a) the fees payable for a copy of a report of the Press Council referred to in section 7 (8);</p>
<p style="text-align: justify;">(b) the conditions of service of a member of the Press Council who is not in the full-time service of the State;</p>
<p style="text-align: justify;">(c) any other matter which may or is required to be 25 prescribed under this Act, and generally to better achieve the object and purposes of this Act. (2) A regulation contemplated in subsection (1) (a) or (b) shall be made after consultation with the Minister of Finance.</p>
<p style="text-align: justify;">(3) Different Conditions of service may under subsection (1) (b) 30 be prescribed in respect of different persons or classes of persons.</p>
<p style="text-align: justify;">20. In this Act, unless the context otherwise indicates-</p>
<p style="text-align: justify;">(I) &#8220;chairman of the Press Council&#8221; means the chairman of the Press Council appointed in terms of section 4 (2) (b); (xvii) 35</p>
<p style="text-align: justify;">(ii) &#8220;clerk of the Press Council&#8221; means the clerk of the Press Council designated in terms of section 4 (6)(b); (Vii)</p>
<p style="text-align: justify;">(ii) &#8220;Complainant&#8221; means a person who has lodged a complaint in terms of section 5 (1); (v)</p>
<p style="text-align: justify;">(iv) &#8220;complaint&#8221; means a complaint referred to in section 5 (I) and a part of such a complaint, and includes the further particulars referred to in section 5 (4); (vi)</p>
<p style="text-align: justify;">(v) &#8220;department&#8221; means the department of State under the control of the Minister designated by the Minister for the purposes of this Act; (iii)</p>
<p style="text-align: justify;">(vi) &#8220;editor&#8221;, in relation to a report in a newspaper Contemplated in paragraph (c) of the definition of &#8220;newspaper&#8221; for which a South African Citizen is responsible, means such Citizen; (xiii)</p>
<p style="text-align: justify;">(vii) &#8220;Minister&#8221; means the Minister to whom the State President has assigned the administration of this Act; (viii)</p>
<p style="text-align: justify;">(viii) &#8220;newspaper&#8221; means a periodical publication published in the Republic at intervals not exceeding one month and consisting wholly or for the greater part of political or other news or of articles relating thereto or to other current topics, with or without advertisement and with or without illustrations, but does not include any publication not intended for public sale or public dissemination, and includes</p>
<p style="text-align: justify;">(a) a supplement or other document published with a newspaper;</p>
<p style="text-align: justify;">(b) a poster or other document published to advertise a newspaper;</p>
<p style="text-align: justify;">(c) for the purposes of a complaint or a contravention of the Press Code referred to in section 2, a report by a person contemplated in the definition of &#8220;editor&#8221; and appearing in a periodical or other publication published outside the Republic; (ix)</p>
<p style="text-align: justify;">(ix) &#8220;officer&#8221; means an officer or employee as defined in section 1 (1) of the Public Service Act, 1957 (Act No. 54 of 1957); (i) to</p>
<p style="text-align: justify;">(x) &#8220;prescribe&#8221; means prescribe by regulation; (Xviii) (xi) &#8220;Press Code&#8221; means the Press Code established by section 1; (x)</p>
<p style="text-align: justify;">(xii) &#8220;Press Council&#8221; means the Press Council established by section 4 (1); (xi)</p>
<p style="text-align: justify;">(xiii) &#8220;press Union&#8221; means the Press Union of South Africa; (xii)</p>
<p style="text-align: justify;">(xiv) &#8220;publish&#8221; includes print, reproduce, disseminate, sell or offer, keep, put out or exhibit for sale or keep for inspection by members of the public; (Xvi)</p>
<p style="text-align: justify;">(xv) &#8220;regulation&#8221; means a regulation made under section 19; (xiv)<br />
(xvi) &#8220;report&#8221; means any matter, in whatever form, inserted in a newspaper, and &#8220;reporting&#8221; has a corresponding meaning; (ii)</p>
<p style="text-align: justify;">(xvii) &#8220;secretary&#8221; means the secretary of the department; (xv)</p>
<p style="text-align: justify;">(xviii) &#8220;this Act&#8221; includes the regulations. (iv)</p>
<p style="text-align: justify;">21. This Act shall be called the Newspaper Act, 1977, and shall and come into operation on a date fixed by the State President by proclamation in the Gazerre.</p>
<p style="text-align: justify;">Schedule</p>
<p style="text-align: justify;">PRESS CODE</p>
<p style="text-align: justify;">NEWS</p>
<p style="text-align: justify;">(a) News shall be presented in the correct context and in a balanced manner, without intentional or negligent departure from facts, whether by -</p>
<p style="text-align: justify;">(i) distortion exaggeration misrepresentation or incorrect accentuation;<br />
(ii) material omissions; or<br />
(iii) Précis writing</p>
<p style="text-align: justify;">(b) Only what may reasonably be true, having regard to the news source, may be presented as a fact, and reports not based on facts shall be presented in such manner that it appears clearly that such is not the case.</p>
<p style="text-align: justify;">Where there is reason to doubt the correctness of a report and it is practicable to verify the correctness thereof it shall be verified, and where it was not practicable to verify the correctness of a report, it shall be mentioned in such report.</p>
<p style="text-align: justify;">(d) Where a report had been published which subsequently appeared o have been incorrect in a material respect, it shall be rectified mero motu and without reservation or delay, and on the page corresponding to the page of the newspaper on which such report appeared and with the same degree of prominence.</p>
<p style="text-align: justify;">(e) Headlines or captions to pictures shall give a reasonable representation of the material facts of the report or picture in question.</p>
<p style="text-align: justify;">(f) Posters shall nor exaggerate but shall give a reasonble representation of the material facts of the report in question.</p>
<p style="text-align: justify;">(g) The presentation of reports on court cases involving sex or immorality shall be in such manner that it is nor harmful to public morals.</p>
<p style="text-align: justify;">(h) The publication of obscene and lascivious mailer, including photographs, shall be avoided.</p>
<p style="text-align: justify;">(i) The publication of any matter which is blasphemous or offensive to the religious Convictions or feelings of any section of the inhabitants of the Republic, shall be avoided.</p>
<p style="text-align: justify;">2. COMMENT</p>
<p style="text-align: justify;">(a) Comment shall be presented in such manner that it appears clearly that it is comment</p>
<p style="text-align: justify;">(b) Comment shall be the honest expression of opinion without malice or dishonest motive.</p>
<p style="text-align: justify;">(c) Comment on any matter shall be given in a manner balanced in regard to all material facts thereof,</p>
<p style="text-align: justify;">3. NEWS AND COMMENT</p>
<p style="text-align: justify;">As far as news as well as comment is concerned editors or owners shall-</p>
<p style="text-align: justify;">(a) exercise exceptional care and responsibility as to-</p>
<p style="text-align: justify;">(i) subjects that may cause enmity or give offence in racial, ethnic or cultural masters in the Republic or incite persons to contravene the law;<br />
(ii) matters that may detrimentally affect the safety of the State, the common weal and economic prosperity, the peace and good order and the defence of the Republic and its people;<br />
(iii) the Presentation of reports on the commission of violence and atrocities;</p>
<p style="text-align: justify;">(b) exercise care and caution as to matters affecting the private lives and interests of individuals, having due regard to the Principle that the right of the individual to privacy shall be respected and that his private activities shall only be reported and commented upon where such activities affect the public interest, and the right of the community to be informed demands that such activities be reported and commented upon;</p>
<p style="text-align: justify;">(c) as far as is practicable ensure that honesty, objectivity, reasonableness, responsibility and correctness in reporting in newspaper are promoted;</p>
<p style="text-align: justify;">(d) as far as is practical ensure that-</p>
<p style="text-align: justify;">(i) the standards of decency and public morals of the nations and population groups of the Republic are not debased;<br />
(ii) relations between the different nations and population groups of the Republic are not prejudiced;<br />
(iii) the name of the Republic is not damaged abroad; and<br />
(iv) the safety of the State, the common weal and the peace and good order are not endangered, by reporting.</p>
<p style="text-align: justify;">4. ADVERTISEMENTS</p>
<p style="text-align: justify;">Advertisements regarding matter which is in terms of a decision under the Publications Act, 1974 (Act No. 42 of 1974), undesirable, shall not be inserted in a newspaper.</p>
<p style="text-align: justify;">Introduced to Parliament March 11 1977. Withdrawn March 25 1977.</p>
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		<title>Pierre de Vos: Harold Wolpe Trust talk on Protection of Information Bill</title>
		<link>http://constitutionallyspeaking.co.za/pierre-de-vos-harold-wolpe-trust-talk-on-protection-of-information-bill/</link>
		<comments>http://constitutionallyspeaking.co.za/pierre-de-vos-harold-wolpe-trust-talk-on-protection-of-information-bill/#comments</comments>
		<pubDate>Tue, 17 Aug 2010 15:03:43 +0000</pubDate>
		<dc:creator>Pierre De Vos</dc:creator>
				<category><![CDATA[Seminar Room]]></category>

		<guid isPermaLink="false">http://constitutionallyspeaking.co.za/?p=2657</guid>
		<description><![CDATA[Talk delivered by Pierre de Vos on Tuesday 17 August 2010 at the Harold Wolpe Memorial Trust Event 
Few people in South Africa will argue with the contention that– in the most exceptional circumstances – the state has a duty to keep secrets. The identity of intelligence agents, details of troop movements or the whereabouts of [...]]]></description>
			<content:encoded><![CDATA[<p style="text-align: center;"><strong>Talk delivered by Pierre de Vos on Tuesday 17 August 2010 at the Harold Wolpe Memorial Trust Event</strong> </p>
<p style="text-align: justify;">Few people in South Africa will argue with the contention that– in the most exceptional circumstances – the state has a duty to keep secrets. The identity of intelligence agents, details of troop movements or the whereabouts of our submarines during a time of war (one never knows when we might be attacked by the Lesotho navy), and even the private deliberations of the cabinet may arguably be kept secret to protect “the life of the nation”. In a democracy like ours it is therefore necessary – in very limited circumstances, to sanction state secrecy.</p>
<p style="text-align: justify;">However, the South African Constitution unambiguously limits the situations in which the state should be allowed to keep secrets. This is because any form of secrecy infringes on the right to freedom of expression – including the right to the freedom of the press – as well as the right of access to any information held by the state. And as our Constitutional Court has emphasised, these rights lie at the very heart of our democracy. Secrecy – and the concomitant limits of freedom of expression and the media – therefore always pose a potential threat to the health of our democracy.</p>
<p style="text-align: justify;">As the Constitutional Court stated in their judgment in the case of <em>S v Mamabolo: </em></p>
<blockquote>
<p style="text-align: justify;">“Freedom of expression, especially when gauged in conjunction with its accompanying fundamental freedoms, is of the utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm.”</p>
</blockquote>
<p style="text-align: justify;">State secrecy is inherently anti-democratic as it potentially prevents citizens from obtaining information kept by the state. This information will often be needed to allow every individual to participate meaningfully in our democratic system and democratic dialogue or will assist a citizen to enforce his or her fundamental human rights.</p>
<p style="text-align: justify;">Knowledge is power: where the state abrogates for itself the right to keep knowledge about its activities from citizens, it potentially robs citizens of the power to make informed decisions about important issues of the day. Decisions on who to vote for, whether to engage in political protests, whether to sign petitions or even, in extreme cases, whether to engage in civil disobedience are burning questions that can only be answered responsibly where citizens have access to sufficient and reliable information. In the absence of the free flow of information, democracy is hollowed out and becomes meaningless:  citizens become mere passive recipients of state charity or, in extreme cases, become the passive victims of oppression.</p>
<p style="text-align: justify;">Second, censorship and state secrecy infringes on the human dignity of every individual in South Africa. In order to live a meaningful life, a life in which an individual has the ability to decide for him or herself who they are or who they want to become, how they view the world around them, and how they want to live their lives according to the demands of an own moral code, the individual must enjoy the right to receive and impart the widest range of opinions and factual information.</p>
<p style="text-align: justify;">This point was tellingly underscored by the Constitutional Court in the case of <em>South African National Defence Union v Minister of Defence and Another</em> where it stated that the free flow of information is valuable for many reasons including</p>
<blockquote>
<p style="text-align: justify;">“its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters . . . .”</p>
</blockquote>
<p style="text-align: justify;">The argument that secrecy and censorship will often be necessary to protect the human dignity of a small group of politicians and other public figures is therefore deeply problematic and fallacious as it prioritises the (subjective) human dignity of a few supposed servants of the people above the (constitutionally guaranteed and objective) human dignity of the 45 million South Africans who are not cabinet Ministers, do not drive around in R1 million cars, have never set foot in the Mount Nelson Hotel – except maybe to clean the toilets – and only see blue light brigades rushing past their homes while they prepare dinner for their families on open fires.</p>
<p style="text-align: justify;">It is against this background that one should evaluate the provisions of the Protection of Information Bill and the rather eccentric, and un-lawyerly and vague, comments by the Chief State Law Advisor, Enver Daniels, who attempted to justify his opinion that the Protection of Information Bill was constitutionally valid.</p>
<p style="text-align: justify;">From a constitutional perspective, the problems with the Bill go far beyond its individual clauses. In my opinion, a mere tinkering with particular clauses of the Bill will not render an otherwise unconstitutional Bill constitutionally valid. It will only make a fundamentally draconian and oppressive piece of legislation politically slightly more palatable without addressing the problems with the basic premise of the Bill.  Section 17(1) of the Bill gives the game away as it states: “Secrecy exists to protect the national interest.”</p>
<p style="text-align: justify;">This sentiment cannot be true in an open and democratic society based on human dignity, equality and freedom. Secrecy is often the enemy of the national interest – if we assume that it is in the national interest for every human being in a country to live in, and meaningfully to take part in, a thriving democracy and to live a life of dignity in which individual agency, freedom and striving for justice and equality is more important than the interests of the state as defined by politicians and state bureaucrats. Secrecy can only be said always to be in the national interest in a non-democratic or partially democratic state in which the human dignity of every individual is considered to be less important than the interests considered to be important by politicians and state bureaucrats.</p>
<p style="text-align: justify;">It is therefore difficult to single out specific clauses in the Bill for criticism. However, I will highlight a few of the most problematic clauses and point out why they may make the Bill unworkable and dangerous and, in some cases, unconstitutional and why arguments in support of the Bill are at best disingenuous and at worst dishonest.</p>
<p style="text-align: justify;">First, it is argued that the Bill will protect the public as it requires that all “valuable information” held by the state must be identified and protected from destruction. This, so the argument goes, will prevent state officials from destroying important state information, information that ordinary citizens might need to access to advance their own well being. But the Bill defines the “valuable information” that need to be protected from destruction extremely narrowly.</p>
<p style="text-align: justify;">Only information required by the state itself for its own benefit or information that must not be destroyed because its destruction would deny individuals services or benefits they are entitled to, are protected from destruction. This means that information needed by individuals to exercise their fundamental human rights or information required by individuals to become active citizens who are capable of exercising their democratic rights in an informed manner, are not protected from destruction. State documents relating to corruption, maladministration, unlawful activity by politicians or state officials will therefore often not be protected by the provisions of the Bill and may legally be destroyed.</p>
<p style="text-align: justify;">If this Bill is passed and if it is applied strictly (which might not be the case as the provisions seem rather unworkable and very expensive to implement), state officials will be entitled to embark on an orgy of destruction of state documents – long before they embark on an orgy of classification. These provisions of the Bill thus seem to be in conflict with the right of access to information as guaranteed in section 32 of the Constitution and have the potential completely to thwart the aims of the Promotion of Access to Information Act.</p>
<p style="text-align: justify;">Second, where documents are not destroyed, the Bill allows any head of an organ of state to classify or reclassify information as “confidential”, “secret” or “top secret”. An organ of state includes any government department, parastatal or other institution created by an act of Parliament, including universities. The Minister of State Security or the President can allocate one organ of state to another for purposes of the Act, which means he or she can decree, for example, that Eskom now falls under the Presidency for purposes of the Act or that the Minister of Public enterprises now falls under the Minister of Justice.</p>
<p style="text-align: justify;">This would potentially allow the Presidency to decide, say, on which documents held by Eskom should be classified as secret. These provisions are open to abuse as the President or the Minister can decide who should be allowed to classify information. Although the Act contains provisions warning that classification should not be done for a nefarious purpose and should not be aimed at hiding incompetence or inefficiency in government, it is difficult to see how these softening provisions could be practically policed. If anyone challenges the classification of a document on the basis that the document was classified to hide corruption or inefficiency in government, the first question that will be asked of the challenger is whether he or she knows about the document because he or she is in possession of a copy of that document. If that person knows about the document because he or she is in possession of the document, that person may be guilty of a criminal offence carrying a minimum sentence of between 3 and 15 years imprisonment.</p>
<p style="text-align: justify;">Unless a person is very sure of the fact that the document was wrongly classified, a person would therefore be foolhardy, to say the least, to challenge the classification of a document for fear of becoming Jackie Selebi’s room mate. Worse, one might have to feign high blood pressure and might have to claim that one is eating copious amounts of Goji berries – like the poor, terminally ill, Schabir Shaik – merely to stay out of prison and to ensure at least some quality time on the golf course.</p>
<p style="text-align: justify;">Third, it would almost be impossible to show that a document was wrongly classified as “confidential”, “secret” and “top secret”. Put differently, any head of an organ of state will have an extremely wide discretion to lawfully classify state documents. Unless state officials who classify documents have impeccable ethical standards, have no incentive to hide any corruption or maladministration, and take the greatest of care to apply the law holistically and with reference to those sections warning against needless classification of documents, vast amounts of state documents that could shine the light on the actions of the government and could keep individuals informed about important matters in our democracy, could be classified as secret.</p>
<p style="text-align: justify;">This is because the operational sections of the Bill – especially sections 11 and 12 – state that whenever it is in the national interest to do so, documents can be classified. The national interest is defined so broadly that almost any state document could conceivably be classified. The national interest includes “<em>but is not limited to</em>”, inter alia, all matters relating to the advancement of the public good, and includes the pursuit of justice, democracy, economic growth, free trade, a stable monetary system and sound international relations. This means that any document, for example, that might suggest that the President or the Minister of Finance has been bribed by a crooked businessman or any document that implicates the Police Commissioner in murder or corruption could be lawfully classified on the basis that news of such wrongdoing would not advance the public good.</p>
<p style="text-align: justify;">Recall that then President Thabo Mbeki suspended Vusi Pikoli when he wanted to arrest Jackie Selebi and later claimed that this was necessary to protect South Africa from chaos and instability. Clearly evidence of the acts mentioned above could damage the country’s reputation and may scare off investors who may negatively affect economic growth. These provisions are truly Orwelian in scope and only the most honest, diligent and upright official will be able to resist the temptation of using it to classify information to protect themselves and their cronies. (President Mbeki would have been able to use it to classify information regarding the warrants for Jackei Selebi’s arrest and the searching of his house, for example.)</p>
<p style="text-align: justify;">In his legal opinion, the Chief State Law advisor assumes that our government is filled with such upright individuals. This assumption seems to be rather optimistic and naïve, if not delusional. In the document on “Leadership renewal, discipline and organizational culture” prepared for the ANC National General Council later this year the organisation admits that its members and leaders suffer from the “sins of incumbency”, including patronage, bureaucratic indifference and arrogance of power.</p>
<p style="text-align: justify;">The document paints a bleak picture of ANC members in government having forsaken their revolutionary roots and having embraced a culture of corruption and dishonesty. But it would be some of these very members described in the ANC document who will be asked to apply an Act that will invite them to use absurdly broad definitions of “national interest” to classify state documents, either to protect themselves and their cronies or to protect the governing party from embarrassment and ridicule. It is not a question of whether the Act as currently written will be abused, but merely to what extent the necessary abuse of the provisions of the Bill will achieve the aim of covering up maladministration, wrongdoing and criminality.</p>
<p style="text-align: justify;">Fourth, if one wants to appeal against a decision about the classification of any documents, then one would first have to appeal to the had of the organ of state who has classified the information and then ultimately one will have to appeal to the Minister dealing with State Security. There is therefore no independent mechanism to challenge the classification od documents. One can of course approach a court, but as we are being told quite frequently in relation to the Media Appeals Tribunal, approaching a court can be extremely costly and time consuming.</p>
<p style="text-align: justify;">The argument is often heard that rights – even the right to freedom of speech and the media, the right to access information held by the state and the right to human dignity – are not absolute and that the Bill merely represents a legitimate limitation on these rights. At first blush, this argument seems plausible. Section 36 of our Bill of Rights states that rights may be limited if it is reasonable and justifiable to do so in an open and democratic society based on human dignity, equality and freedom. Unfortunately the Chief State Law advisor, in relying on this section to justify his certification of the Bill as constitutionally valid, fails to apply the Constitutional Court jurisprudence on the limitation clause to the Bill at hand.</p>
<p style="text-align: justify;">This failure is not surprising, because if he had applied the relevant jurisprudence he would not have been able to argue (without his nose growing ever longer – like a modern day Pinocchio’s) that the Bill in its present form would pass constitutional muster. When determining whether the infringement of a right is justifiable in terms of section 36 one must balance two distinct interests against one another.</p>
<p style="text-align: justify;">On the one hand, one must look at the purpose of the Bill and ask how important this purpose is for the achievement of legitimate goals in an open and democratic society, and whether there is a sufficiently close relationship between the purpose of the Bill and the provisions of the Bill. On the other, one must look at the importance of the rights that are being infringed and the seriousness of the infringement and ask whether less restrictive means could have been used to achieve the same purpose. In this case the very purpose of the Bill is under suspicion because it broadly claims to be aimed at protecting the “national interest” (which includes the advancement of the “public good”).</p>
<p style="text-align: justify;">Even if it was legitimate purpose for a law to advance such a broad interest there is not a sufficiently close relationship (or for that matter any relationship at all) between the advancement of the national interest and the imposition of a system of classification of a wide variety of state documents. Even if there were such a link, the means used to achieve the purpose is far too invasive as it potentially allows for the classification of vast amounts of information required by ordinary citizens to exercise their rights, to participate meaningfully in our democracy and to live lives of dignity. The provisions of the Act are clearly overbroad.</p>
<p style="text-align: justify;">Given this, and given the facts that various provisions – including the draconian criminal penalties provided for the possession of classified documents – imposes severe limitations on our rights, no credible court would ever find that the limitations of our rights were justifiably limited in terms of the limitations clause. If our Constitutional Court finds otherwise, it would lose almost all the credibility it currently has overnight. No credible lawyer has argued otherwise. In fact, I will put any credibility I might personally have on the line and give an absolute guarantee that the Chief State Law Advisor is catastrophically misguided and that the Constitutional Court will never agree that the Bill in its present format is constitutionally valid.</p>
<p style="text-align: justify;">Why he has maintained otherwise and why some members of Parliament seem to have believed him, is beyond me.</p>
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		<title>Pallo Jordan on racism, &#8220;transformation&#8221; and the DA</title>
		<link>http://constitutionallyspeaking.co.za/pallo-jordan-on-racism-transformation-and-the-da/</link>
		<comments>http://constitutionallyspeaking.co.za/pallo-jordan-on-racism-transformation-and-the-da/#comments</comments>
		<pubDate>Sun, 15 Aug 2010 16:44:05 +0000</pubDate>
		<dc:creator>Pierre De Vos</dc:creator>
				<category><![CDATA[Seminar Room]]></category>

		<guid isPermaLink="false">http://constitutionallyspeaking.co.za/?p=2649</guid>
		<description><![CDATA[From the Sunday Times:
Mondli Makhanya&#8217;s opinion piece &#8220;Good work DA &#8211; now it&#8217;s time to get over your complexion complex&#8221; (August 1) reminded me of an incident during the 1980&#8217;s when a friend at the Zambian Broadcasting Corporation (ZBC) told me of a revealing encounter with power.
The ZBC was planning to air a series, Shoah, [...]]]></description>
			<content:encoded><![CDATA[<p style="text-align: justify;"><a href="http://www.timeslive.co.za/sundaytimes/article601451.ece/We-must-not-ignore-South-Africas-history-of-racism">From the Sunday Times:</a></p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">Mondli Makhanya&#8217;s opinion piece &#8220;Good work DA &#8211; now it&#8217;s time to get over your complexion complex&#8221; (August 1) reminded me of an incident during the 1980&#8217;s when a friend at the Zambian Broadcasting Corporation (ZBC) told me of a revealing encounter with power.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">The ZBC was planning to air a series, Shoah, the Holocaust of European Jewry. The then West German embassy mounted a demarche to persuade the ZBC not to broadcast the series, he confided.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">The other German state, East Germany, had raised no objections to the series, he noted.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">West Germany, like many of its citizens, preferred that the Holocaust not be discussed, and hoped people would stop referring to it. Prominent persons, including a former Chancellor &#8211; Kurt Georg Kiesinger &#8211; in that country were implicated with the Nazis and leading German corporations had benefited from their criminal policies.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">A relatively poor, developing country, Zambia thought it wiser to bend before the wind. The series did not air.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">The reticence of the DA and the majority of their constituency about race is very similar to the considerations that persuaded West Germany to pressure ZBC not to air Shoah.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">West Germany has at least accepted responsibility for the results of the Holocaust, unlike our DA politicians, who like the magistrate who presided at the inquest into Biko&#8217;s murder, pretend no one was responsible for a century of blatantly discriminatory and oppressive policies.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">Even a skim read of the plethora of laws, ordinances and regulations passed by national governments, provincial governments and municipalities in which not a single African (with the possible exception of the Cape Province prior to 1963) had a voice, tells that story. Prior to the &#8217;80s virtually all the white political parties were committed to those arrangements. If South African politics is racialised, it is because of white minority governments.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">I do not question the good intentions of many in the DA. But the reason why the party cannot lose its &#8220;complexion complex&#8221; is its own experience. Some seven years ago, when the DA ran a black candidate in a safe DA seat in Gauteng &#8211; and as a newsman Makhanya should be aware of this &#8211; the white voters deserted it for the Freedom Front.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">Is it not time that our media began to interrogate DA claims a bit more rigorously?</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">In the parliament with an 87% black population, the main opposition party&#8217;s benches suggest almost the direct opposite.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">The DA&#8217;s James Selfe, speaking to the media before the DA conference, reportedly said &#8220;&#8230; many key proposals are on issues that have not been the concerns of traditional DA branches &#8230;&#8221; In other words, the issues that matter to the overwhelming majority of the electorate, have not been the DA&#8217;s concerns. The DA&#8217;s complexion is a function of its concerns, not the colour of its leadership corps.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">Racial oppression was not just a system of domination; it served certain vested interests. The racially skewed access to all economic assets, the domination of the professions and executive positions in business by white males; all were intended outcomes. The privileged position whites enjoy in South Africa today is not the result of greater diligence. It is the effect of explicitly discriminatory policies.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">Not surprisingly, like other privileged groups, whites in South Africa want to preserve their ill-gotten gains.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">Stiff resistance to meaningful change was mounted on a number of fronts virtually from April 28 1994.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">When the DA used the &#8220;fight back&#8221; slogan in 1999 it was an open secret who was being exhorted to &#8220;fight back&#8221; and against whom the &#8220;fight&#8221; would be waged. White voters left the NNP in droves precisely because they construed that slogan in explicitly racial terms.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">The issues the DA has &#8220;fought back&#8221; on tell the same story. The one big city it governs, Cape Town, is like an apartheid museum. Excessive white wealth on the one hand &#8211; visitors compare our Atlantic seaboard to the French Riviera &#8211; and grinding black poverty, visible from the moment you arrive at Cape Town international airport, at the other extreme.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">Perhaps if he lived in an African township in DA-controlled Cape Town, Makhanya would be less impressed with the DA&#8217;s record in government.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">Stripped of the humbug of &#8220;an opportunity society&#8221; the thrust of DA policies is to preserve the outcomes produced by apartheid. Rhetoric has blinded Makhanya to that party&#8217;s objective: to carry the inequalities of colonialism and apartheid into the future.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">And, let us face it, meaningful change necessarily entails replacing white faces with black ones in the centres of political and economic power. Pretending otherwise is either dishonest or mischievous.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">Casting one&#8217;s eyes back over the last century, one cannot miss the fact that all the white parties that misgoverned this country before 1994 were Afrikaner-led. Even the original Progressive Party, which evolved into the PFP and then the DA, elected an Afrikaner &#8211; Jan Steytler as leader in 1959.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">Ironically, 1994 emancipated white politics from Afrikaner domination. Electing a Jew as DA leader was unthinkable before 1994.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">Such Afrikaner ethnic domination compares unfavourably with the ethnic diversity of African-led parties, with the possible exception of the IFP. The ethnicised IFP has been reduced to a regional party. A similar fate awaits the DA, unless it ditches its anti-transformation policies. Patricia de Lille&#8217;s myopia has led the ID into the same trap.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">The African majority do not judge political players solely on race. Joe Slovo was the most popular ANC leader after Mandela and Tambo. ANC conferences, with an overwhelming majority of African delegates, have repeatedly elected racially diverse NECs, often with coloured, Indian and white comrades leading the list. We know from their own admissions, that DA leaders have to gerrymander their elective conferences to get blacks elected.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">The arrival of democracy has created the space to make race irrelevant to South African politics. But its salience will only disappear when the outcomes produced by racial domination no longer determine the life opportunities and prospects of most South Africans.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: black; text-align: justify; padding: 0px;">Expanding the floor of opportunity for precisely the blacks is transformative. Calling that &#8220;racism in reverse&#8221; is conspiring to perpetuate racial inequality.</p>
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		<title>Ronald Dworkin on Elena Kagan</title>
		<link>http://constitutionallyspeaking.co.za/ronald-dworkin-on-elena-kagan/</link>
		<comments>http://constitutionallyspeaking.co.za/ronald-dworkin-on-elena-kagan/#comments</comments>
		<pubDate>Wed, 04 Aug 2010 16:28:03 +0000</pubDate>
		<dc:creator>Pierre De Vos</dc:creator>
				<category><![CDATA[Seminar Room]]></category>

		<guid isPermaLink="false">http://constitutionallyspeaking.co.za/?p=2610</guid>
		<description><![CDATA[Ronal Dworkin on the confirmation hearing of Elena Kagan to the US Supreme Court &#8211; article first published in the New York Review of Books
1.
Recent Senate Judiciary Committee hearings on Supreme Court nominees have been a waste of everyone’s time, a parade of missed opportunities. In 1995 Professor Elena Kagan, then of the University of [...]]]></description>
			<content:encoded><![CDATA[<h3 style="text-align: center;"><a href="http://www.nybooks.com/articles/archives/2010/aug/19/temptation-elena-kagan/">Ronal Dworkin on the confirmation hearing of Elena Kagan to the US Supreme Court &#8211; article first published in the New York Review of Books</a></h3>
<h3 style="margin-top: 0px; margin-right: 0px; margin-bottom: 12px; margin-left: 0px; font-weight: bold; font-style: inherit; font-size: 14px; font-family: 'Clarendon Bold', 'Times New Roman', Georgia, serif; vertical-align: baseline; color: #222222; line-height: 1em; clear: none; text-align: justify; padding: 0px;">1.</h3>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">Recent Senate Judiciary Committee hearings on Supreme Court nominees have been a waste of everyone’s time, a parade of missed opportunities. In 1995 Professor Elena Kagan, then of the University of Chicago Law School, explained why:</p>
<blockquote style="margin-top: 0px; margin-right: 18px; margin-bottom: 18px; margin-left: 18px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; color: #333333; text-align: justify; padding: 0px;">
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; padding: 0px; border: 0px initial initial;">When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public…. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. Neither can such hearings contribute toward an evaluation of the Court and a determination whether the nominee would make it a better or worse institution.</p>
</blockquote>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">She offered clear advice. Though nominees should not declare their voting intentions about specific cases on the horizon, she said,</p>
<blockquote style="margin-top: 0px; margin-right: 18px; margin-bottom: 18px; margin-left: 18px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; color: #333333; text-align: justify; padding: 0px;">
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; padding: 0px; border: 0px initial initial;">a nominee can say a great, great deal before making a statement that, under this standard, nears the improper. A nominee, as I have indicated before, usually can comment on judicial methodology, on prior case law, on hypothetical cases, on general issues like affirmative action or abortion.</p>
</blockquote>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">Her own confirmation hearings in late June were a Galilean moment. How much of her 1995 statement would she recant? Almost all of it, it turned out. She said that Senator Orrin Hatch of Utah had persuaded her, in a private meeting before the hearings, that the “balance” of her earlier statement was “a little off.” So, contrary to her own advice, she would not “grade” either the justices of the present court or the Court’s past decisions, she would not speculate about hypothetical cases, and she would certainly not discuss “general issues like affirmative action or abortion.” On the contrary, she vowed to say nothing from which the public might draw even any general assumptions about the political impact she might have on the Supreme Court.<strong> </strong></p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">It was predictable that Kagan would follow this now well-trodden path. She knew that if she disclosed nothing she would soon be a Supreme Court justice for life. If, on the contrary, she was even slightly more adventurous, there was a good chance she would not be confirmed. If she showed herself sympathetic to abortion rights or unsympathetic to gun rights, for instance, Republicans and conservative Democrats would feel bound to join a filibuster to sink her.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">The committee senators, for their part, had no reason to press her to be more forthcoming. Democrats had no wish to endanger her appointment, which would be a terrible defeat for the President, and Republicans had no wish to contradict their own repeated and ludicrous declarations (cheerfully endorsed by their recent nominees, Chief Justice John Roberts and Justice Samuel Alito) that a judge can always decide what the law requires without calling on any moral or political convictions or any theory of social justice. Most of the senators were content to report their own commitment to gun rights and, depending on party, to announce their contempt or enthusiasm for the Supreme Court’s recent 5–4 ruling, in the Citizens United case, that freed corporations to spend whatever they wish on television electioneering.<sup><a style="font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; text-decoration: underline; color: #990101; padding: 3px; margin: 0px; border: 0px initial initial;" href="http://www.nybooks.com/articles/archives/2010/aug/19/temptation-elena-kagan/#fn1-359056852">1</a></sup></p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">The Republicans labored, somewhat halfheartedly, to paint Kagan as hostile to soldiers because as dean of the Harvard Law School she, like the deans of other prominent law schools, did not allow military recruiters who discriminated against open homosexuals the same recruitment facilities as other employers. It didn’t work because she pointed out that the military had better recruitment access in her administration than under her predecessors.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">Some senators tried, for a time, to tempt Kagan out of her defensive crouch. Senator Herb Kohl of Wisconsin said he assumed that she, like any other politically engaged person, has “passions.” Justice Ruth Bader Ginsburg is passionate about women’s rights, for instance, and former Justice Thurgood Marshall, for whom Kagan clerked, was passionate about civil rights. “I’m sure you’re a woman of passion,” Kohl said. “Where are your passions?” Yes, she admitted, she had passions too, but there was no point in discussing them because they would, of course, play no role in her decisions, which would be guided only by law. Senator Chuck Grassley of Iowa asked her to say that gun ownership was not merely a constitutional right under the Second Amendment but a God-given natural right as well. She declined to say whether she believed in natural or moral rights but declared that she would respect the Court’s recent 5–4 decisions recognizing constitutional gun rights as (in one of her favorite phrases) precedents “going forward.”</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">Senator Jon Kyl of Arizona asked whether she agreed with President Obama, who said, when he nominated Justice Sonia Sotomayor, that law decides 95 percent of a hard case, but that the rest of the decision was a matter of empathy. No, she replied, even a very hard case is “law all the way down.” There is always one right answer to any constitutional question and though judges may disagree about what that right answer is they must do their best to find it. Empathy or sympathy or a sense of social justice has nothing to do with the matter.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">Did she stand by the legal and political opinions she had expressed in various roles earlier in her career? No, she was wearing different “hats” in her earlier jobs, and what she said then was no guide to what she would think as a judge. When she clerked for Justice Marshall she only “channeled” his opinions; when she worked in the Clinton White House she promoted what she took to be the President’s views; as solicitor general she has, like a good advocate, acted only in the interests of her client, the United States.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">Near the end of the last day of hearings—and near the end of his own political career—Senator Arlen Specter of Pennsylvania expressed his disgust:</p>
<blockquote style="margin-top: 0px; margin-right: 18px; margin-bottom: 18px; margin-left: 18px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; color: #333333; text-align: justify; padding: 0px;">
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; padding: 0px; border: 0px initial initial;">Well, Solicitor General Kagan, I think the commentaries in the media are accurate. We started off with a standard that you articulated at the University of Chicago Law School about substantive discussions. And they say we haven’t had them here, and I’m inclined to agree with them. The question is where we go from here…. It would be my hope that we could find someplace between voting no and having some sort of substantive answers.</p>
</blockquote>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">He was right about the media: the Kagan hearings have been almost universally denounced as pointless and calls for reform have increased. It is important to review the hearings in some detail to consider how far that charge is justified and how confirmation hearings might be improved.</p>
<h3 style="margin-top: 0px; margin-right: 0px; margin-bottom: 12px; margin-left: 0px; font-weight: bold; font-style: inherit; font-size: 14px; font-family: 'Clarendon Bold', 'Times New Roman', Georgia, serif; vertical-align: baseline; color: #222222; line-height: 1em; clear: none; text-align: justify; padding: 0px;">2.</h3>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">The Supreme Court is a very powerful political institution: justices are appointed for life and five of them can veto any decision, no matter how popular, of Congress or a state legislature. Only the Senate confirmation hearings offer the public a chance to participate in the process of selecting these powerful officials, and that opportunity can be important. It was popular political pressure that led the Senate to reject President Reagan’s nomination of Judge Robert Bork in 1987. But since then nominees have largely stonewalled the hearings and, as Kagan pointed out in 1995, failure of disclosure undermines the public’s power to help choose. So senators would seem to have a democratic duty to press nominees to be more candid. Specter said that perhaps the Senate should “stand up on its hind legs” and reject any nominee who is as unforthcoming as Kagan was.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">Some of the arguments that nominees have offered for their silence are very weak. Kagan said that she must not disclose her views about particular issues that might come before the Court because it would be injudicious and unfair to future litigants for her to publish her views in advance. But she is joining a Court on which eight other justices have expressed their opinions on a large variety of constitutional issues through their votes and their majority or dissenting opinions. If these public statements do not compromise their ability to decide fairly in the future, there is no reason why nominees should not make their opinions public as well.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">However there is a genuine and important countervailing argument. It is crucial to the role Supreme Court justices play in our constitutional system that they be free and able to <em>reject</em> popular opinion—to overrule the wishes of the majority in order to protect individual rights. The individual rights that need protection are often unpopular; it would compromise that crucial role were the public able to defeat a nominee because he or she proposed to defend such rights. It seems doubtful, for instance, that anyone who declared a concern to protect due process rights of suspected terrorists, or to better protect the rights of women to choose abortion, or to recognize a constitutional right to gay marriage could be nominated now or, if he were, escape a filibuster or outright defeat. So if nominees were as candid as Kagan proposed in 1995, and senators approved only those with very popular opinions, Americans might lose their traditional protection against majority selfishness, intolerance, or prejudice.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">True, the right-wing phalanx of the Court has used its power to overrule the will of the majority in what strikes many of us as an indefensible and dangerous way: not to protect a vulnerable minority from majority indifference or hatred but to protect conservative interests and privilege from progressive legislation.<sup><a style="font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; text-decoration: underline; color: #990101; padding: 3px; margin: 0px; border: 0px initial initial;" href="http://www.nybooks.com/articles/archives/2010/aug/19/temptation-elena-kagan/#fn2-359056852">2</a></sup> Richard Posner, himself a conservative judge, recently wrote that four of the five most conservative justices since 1937 are together on the Court now: Chief Justice Roberts and Justices Clarence Thomas, Antonin Scalia, and Samuel Alito. Many lawyers believe it would have been better had Roberts and Alito been forced to disclose their real substantive intentions in their hearings because they would not have been confirmed if they had. Posner said of Roberts: “The tension between what he said at his confirmation hearing and what he is doing as a Justice is a blow to Roberts’s reputation for candor and further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings.”<sup><a style="font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; text-decoration: underline; color: #990101; padding: 3px; margin: 0px; border: 0px initial initial;" href="http://www.nybooks.com/articles/archives/2010/aug/19/temptation-elena-kagan/#fn3-359056852">3</a></sup></p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">Scholars who approved the power of the Supreme Court to overrule legislation during its more liberal periods may well have second thoughts now that right-wing justices are so firmly in control. But I continue to think that the institution of judicial review has done more good than harm to our country, and still promises more good than harm in the long run. We should not compromise the Court’s role or its independence just because it has now been captured—we do not know for how long—by right-wing zealots who understand neither law nor justice. That would be yet a further grave cost of the right-wing coup.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">Kagan was therefore right in 2010: her 1995 statement did indeed get the “balance” wrong. Nominees should not be required to rank other justices or past decisions and they should not be required to discuss their intentions about highly controversial constitutional issues like abortion or the rights of accused terrorists. But they should certainly be pressed to discuss constitutional theory and political principle at a more abstract level, and that interrogation should be much deeper than the entirely superficial level at which such questions were raised in the Kagan hearings.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">Kagan said, remember, in reply to Senator Kyl’s question about Obama’s jurisprudence, that though reasonable justices would inevitably disagree about the correct answers to the most challenging constitutional questions, there nevertheless<em>are</em> right answers they must each try to discover. That is what it means to say, as she repeatedly did, that adjudication is “law all the way down.” Her claim is, in my view, correct and important. But it raises an obvious further question: How can justices find those right answers without relying, as Kagan insisted she would not, on controversial moral judgment? True, some clauses of the Constitution are explicit and require no interpretation. As Kagan pointed out, judges may not declare that the Constitution’s requirement that senators be “thirty” years old really means “forty” because people live longer now. But some of the most important constitutional clauses are drafted in abstract moral language, such as the Fourteenth Amendment’s injunction that government must accord everyone the “equal protection” of the law. How can judges decide whether laws against consensual gay sex or gay marriage deny equal protection to homosexuals without deciding, for themselves, what equal citizenship means and requires?</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">Some conservative lawyers, including Scalia and Thomas, insist that judges can avoid such moral judgment because they can find the right answers in history: they think that the abstract moral clauses should be applied either in the way the “framers” (those who enacted the clauses in question in the eighteenth and nineteenth centuries) intended or in a way that respects practices and traditions embedded in American history. But these suggestions are unhelpful because a judge must rely on moral conviction even to discover what history teaches.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">Consider the first suggestion: that justices should look to the framers’ intention. What did the framers intend when they made moral principles such as the equal protection clause part of constitutional law? Kagan offered an excellent and in my view crucial distinction. We must, she said, distinguish between what the framers meant to say and what they themselves expected would be the legal consequences of their saying it. They chose the language of abstract moral principle, not of precise rules:</p>
<blockquote style="margin-top: 0px; margin-right: 18px; margin-bottom: 18px; margin-left: 18px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; color: #333333; text-align: justify; padding: 0px;">
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; padding: 0px; border: 0px initial initial;">And in writing the provision that way, I think that the drafters of the Constitution knew exactly what they were doing. They didn’t mean to constitutionalize all of their practices in 1868. They meant to set forth a principle of equality that would be applied over time to new situations and new conditions. And I think that’s exactly what has occurred.</p>
</blockquote>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">She cited an example. The Supreme Court did not change the Constitution, but only enforced its original meaning, when it declared racial segregation unconstitutional in the <em>Brown</em> case of 1954. But that is not because the framers themselves rejected school segregation. They did not: on the contrary, the Congress that adopted the Fourteenth Amendment itself segregated the schools of the District of Columbia from 1864 onward. The Court enforced the original meaning of the Fourteenth Amendment in 1954 because the framers laid down a principle that required the justices to decide for themselves whether segregation is consistent with equal citizenship and they decided, rightly, that it is not.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">Now consider the second supposed historical source: practices and traditions embedded in American history. The first ten amendments to the Constitution—the “Bill of Rights” adopted in 1789—apply only to Congress, so when the Court held 5–4 two years ago, in the <em>Heller</em> case, that the Second Amendment guarantees gun rights to individual citizens, that meant only, in itself, that Congress could not ban guns in the District of Columbia. But the Court has long insisted that the Fourteenth Amendment, which applies to the states, “incorporates” certain of the original rights and so made them enforceable against the states as well. For many decades the Court followed the famous test offered by Justice Louis Brandeis: the Fourteenth Amendment incorporates only those original rights that are essential to “ordered liberty,” rights, that is, like the right to free speech, without which a society is not free.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">In the <em>MacDonald</em> case, decided the day the Kagan hearings began, the Court ruled, again 5–4, that the Fourteenth Amendment does incorporate the Second Amendment, so that states as well as Congress must recognize private gun rights. The conservative justices could hardly claim that private handguns are essential to a free society. They fell back on another traditional formulation of the test: the Fourteenth Amendment incorporates all of the original rights that are “deeply rooted in this Nation’s history and tradition.” They declared that gun rights meet that historical test. But as Justice Stephen Breyer pointed out in his dissenting opinion, history defeats as much as it vindicates that claim. Gun control is popular and accepted in some parts of the country though not others; any judgment that gun freedom is “deeply rooted” in the nation as a whole must be an interpretive value judgment that takes one of these traditions to be more “fundamental” than the other. It must be the kind of interpretive judgment that led the Court once to declare that outlawing homosexual sex is a fundamental American tradition and later to insist that it is not.<sup><a style="font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; text-decoration: underline; color: #990101; padding: 3px; margin: 0px; border: 0px initial initial;" href="http://www.nybooks.com/articles/archives/2010/aug/19/temptation-elena-kagan/?page=2#fn4-169489113">4</a></sup></p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">So history is no substitute for political conviction: a judge needs convictions about equal citizenship or fundamental rights to decide how history should be read. Then how could Kagan decide difficult constitutional issues without relying on such conviction? She offered this answer:</p>
<blockquote style="margin-top: 0px; margin-right: 18px; margin-bottom: 18px; margin-left: 18px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; color: #333333; text-align: justify; padding: 0px;">
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; padding: 0px; border: 0px initial initial;">I think that what I’ve said is that you look to text. You look to structure. You look to history, very much including and very especially the original understandings. And you look to precedents. And in one or another cases, one of those may be more important than others of them. In some cases, you might look to all of them. And that’s a kind of pragmatic approach, not an approach that takes a sort of grand overarching philosophical view as to, you know, it’s just one thing and it’s got to be that one thing in every case.</p>
</blockquote>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">This answer is not only guarded but empty: it says nothing at all. In academic law, more than in other disciplines, phrases quickly grow runic: it is now expected of legal theorists that they will abjure “overarching” theories and endorse a “pragmatic” approach. In this context, however, “pragmatic” has no content. In philosophy, pragmatism is a theory of scientific truth; in politics it means doing what is necessary to achieve a stipulated goal—Mideast peace, for instance, or reelection. But in constitutional law the question is not how to achieve a given goal but which goal we should try to achieve. Is it “pragmatic” to protect fetuses from abortion? Or to protect a woman’s power to decide for herself? Justices should of course be “pragmatic” in guarding a right to free speech. But that truism doesn’t help them decide what that right embraces.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">Nor is it plain what makes a theory “overarching” or how such theories can be avoided. How might Kagan decide how each of the several factors she listed as pertinent to a decision bears on a particular case and which are more important when they point in different directions? This cannot be a matter of an ineffable intuition provoked mysteriously by one case but not another. She needs a theory and, if that theory is to guide her choice among factors, it must of course be a theory that applies across all cases so that it helps answer that question consistently in each of them. Isn’t that what “overarching” must mean?</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">Each of the discrete factors Kagan mentioned, as figuring in her decision, raises further problems of interpretation. She talked a great deal about precedent: she said she regarded the conservative 5–4 decisions she might be expected to disapprove, about gun rights or corporate electioneering for example, as “settled” law and “valid” precedents “going forward.” She admitted, however, that</p>
<blockquote style="margin-top: 0px; margin-right: 18px; margin-bottom: 18px; margin-left: 18px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; color: #333333; text-align: justify; padding: 0px;">
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; padding: 0px; border: 0px initial initial;">there are various reasons for why you might overturn a precedent. If the precedent has proved—proves unworkable over time or if the doctrinal foundations of the precedent are eroded, or if the factual circumstances that are—were critical to why the precedent—to the original decision, if those change.</p>
</blockquote>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">She was not pressed to elaborate. Her answer was almost identical to what Roberts and Alito said about precedent and once they were confirmed they joined the other conservative justices in an overruling spree unparalleled in Court history. What makes a precedent “unworkable?” In <em>Citizens United</em>, Roberts, explaining why he was overruling a recent decision, said that that decision “actually impedes the stable and orderly adjudication of future cases.” He cited the fact that the conservative justices who dissented in the earlier case had continued to declare their opposition to it. If that is enough to justify overruling, no important precedent would be safe.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">Abortion rights continue to be denounced by Scalia and Thomas and continue to be hated by many millions of Americans. Does that make <em>Roe</em> v. <em>Wade</em>“unworkable”? Many of the Court’s recent abortion decisions—in overruling a recent decision in order to permit a ban on “partial-birth” abortion, for instance—might well be thought to “erode” <em>Roe</em>‘s “doctrinal foundations.” Does that make<em>Roe</em> itself ripe for overruling? (Much of the Roberts Court’s jurisprudence might be preparing for the day it does that.) When do the pertinent facts change sufficiently to permit overruling? If television electioneering does prove to intimidate congressmen and corrupt democracy, as Senator Sheldon Whitehouse of Rhode Island predicted, would that mean that “factual circumstances” had changed sufficiently to overrule <em>Citizens United</em>? These are obvious questions that no one asked.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">Kagan also spoke repeatedly about another important jurisprudential issue: she vowed to interpret congressional statutes according to what Congress intended.</p>
<blockquote style="margin-top: 0px; margin-right: 18px; margin-bottom: 18px; margin-left: 18px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; color: #333333; text-align: justify; padding: 0px;">
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; padding: 0px; border: 0px initial initial;">When a text is ambiguous, which, you know, frequently happens, which frequently happens, then I think that the job of the courts is to use whatever evidence is at hand to understand Congress’s intent, and that includes exploration of Congress’s purpose by way of looking at the structure of the statute, by way of looking at the title of the statute, by way of looking at when the statute was enacted, and in what circumstances, and by way of looking at legislative history.</p>
</blockquote>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">But what can the idea of <em>Congress’s</em> intention mean? Individual senators and representatives vote for or against a statute laid before them for a variety of reasons and with a variety of expectations, some of them plainly irrelevant, such as a desire to please campaign contributors or party leaders. Judges who appeal to a legislative purpose do not have in mind some psychological amalgam of these different purposes of different legislators: finding the intention of the legislative body as a whole requires an interpretive, not a psychological judgment. It requires a judge to make the best sense of a statute’s language in the political and economic circumstances in which Congress acted, taking everything Kagan mentioned into account.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">When a text is unclear or radically abstract—when it speaks, for instance, of “unreasonable” restraints of trade—that interpretive judgment must draw on a judge’s own political sense. Kagan might have been pressed to say not merely what factors count but how they count. She might have been invited to describe the standards she would use, which might well differ from those of other judges, to make the interpretive leap from bare history to substantive interpretation.</p>
<h3 style="margin-top: 0px; margin-right: 0px; margin-bottom: 12px; margin-left: 0px; font-weight: bold; font-style: inherit; font-size: 14px; font-family: 'Clarendon Bold', 'Times New Roman', Georgia, serif; vertical-align: baseline; color: #222222; line-height: 1em; clear: none; text-align: justify; padding: 0px;">3.</h3>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">On all evidence Elena Kagan—whose nomination was approved by the Senate Judiciary Committee in a 13–6 vote—will be confirmed by the Senate and will be an excellent Supreme Court justice. Her credentials are superb. Some of her former colleagues believe that she will be less liberal on several issues—including treatment of terrorist suspects—than John Paul Stevens has been but that she can be counted on to help resist the careening path of the Court to the right. She has the intellectual power to supply more of what the Court now needs: a reinvigorated theory of what the Constitution means. Her statement that the framers’ intention was to enact principles of political morality, not their own opinions about what those principles require, is an excellent beginning. That she offered little more on this occasion is not her fault. She had every reason not to, and no one pressed her in the ways she might have been pressed.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">It would be a mistake, as I said, to force nominees to state their voting intentions on particular concrete cases. But they should be required to discuss the larger issues of constitutional philosophy that I have mentioned: to provide a general account of how they propose to interpret and apply the grand but abstract clauses of the Constitution. This account might include, for instance, stating a general definition of what equal citizenship requires, what they take the purpose of the First Amendment’s free speech protection to be, and whether they are drawn to a majority-rule conception of democracy or a conception closer to that Justice Breyer defended in his recent book, <em style="font-weight: inherit; font-style: italic; font-size: 14px; font-family: inherit; vertical-align: baseline; padding: 0px; margin: 0px; border: 0px initial initial;">Active Liberty</em>.<sup id="fnr5-662959834" style="line-height: 0px;"><a style="font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; text-decoration: underline; color: #990101; padding: 3px; margin: 0px; border: 0px initial initial;" href="http://www.nybooks.com/articles/archives/2010/aug/19/temptation-elena-kagan/?page=3#fn5-662959834">5</a></sup> Skillful nominees can answer such questions without forecasting their own future votes in particular cases. In that way they can educate the public in the political complexities of constitutional law without compromising their protection of individual and perhaps unpopular constitutional rights.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">One structural change in the Judiciary Committee’s procedures would seem particularly helpful. It should appoint special majority and minority counsel, who might be academic specialists in constitutional law, to conduct a major part of the hearings, as other congressional committees do in other investigations. Senators will not of course deny themselves the opportunity to preen before constituents and to try to demonstrate (sometimes successfully) their own knowledge of constitutional law. But their television time could be reduced to give special counsel opportunity to press nominees in much more depth than senators can. This may not help much. But confirmation hearings remain the best and perhaps only opportunity to make constitutional law a matter of public interest and concern. That is a grand goal—it would improve our democracy in many ways—and we should miss no opportunity to pursue it.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 14px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;"><em style="font-weight: inherit; font-style: italic; font-size: 14px; font-family: inherit; vertical-align: baseline; padding: 0px; margin: 0px; border: 0px initial initial;">—July 22, 2010</em></p>
<ol style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 30px; font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; list-style-type: decimal; text-align: justify; padding: 0px;">
<li id="fn1-359056852" style="font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; list-style-type: decimal; padding: 0px; margin: 0px; border: 0px initial initial;">
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; padding: 0px; border: 0px initial initial;">See my <a style="font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; text-decoration: none; color: #990101; padding: 0px; margin: 0px; border: 0px initial initial;" href="http://www.nybooks.com/articles/archives/2010/may/13/decision-threatens-democracy/">&#8220;The Decision That Threatens Democracy,&#8221;</a><em>The New York Review</em>, May 13, 2010.<a style="font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; text-decoration: none; color: #990101; padding: 3px; margin: 0px; border: 0px initial initial;" title="Jump back to footnote 1 in the text" href="http://www.nybooks.com/articles/archives/2010/aug/19/temptation-elena-kagan/#fnr1-359056852">↩</a></p>
</li>
<li id="fn2-359056852" style="font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; list-style-type: decimal; padding: 0px; margin: 0px; border: 0px initial initial;">
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; padding: 0px; border: 0px initial initial;">See my <em>The Supreme Court Phalanx: The Court&#8217;s New Right-Wing Bloc</em> (New York Review Books, 2008).<a style="font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; text-decoration: none; color: #990101; padding: 3px; margin: 0px; border: 0px initial initial;" title="Jump back to footnote 1 in the text" href="http://www.nybooks.com/articles/archives/2010/aug/19/temptation-elena-kagan/#fnr2-359056852">↩</a></p>
</li>
<li id="fn3-359056852" style="font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; list-style-type: decimal; padding: 0px; margin: 0px; border: 0px initial initial;">
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; padding: 0px; border: 0px initial initial;"><em>How Judges Think</em> (Harvard University Press, 2008), p. 81.<a style="font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; text-decoration: none; color: #990101; padding: 3px; margin: 0px; border: 0px initial initial;" title="Jump back to footnote 1 in the text" href="http://www.nybooks.com/articles/archives/2010/aug/19/temptation-elena-kagan/#fnr3-359056852">↩</a></p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; padding: 0px; border: 0px initial initial;"><a style="font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; text-decoration: none; color: #990101; padding: 3px; margin: 0px; border: 0px initial initial;" title="Jump back to footnote 1 in the text" href="http://www.nybooks.com/articles/archives/2010/aug/19/temptation-elena-kagan/#fnr3-359056852"></a>4. Compare <em>Bowers</em> v. <em>Hardwick</em>, 478 US 186 (1986) and <em>Lawrence</em> v. <em>Texas</em>, 539 US 558 (2003).<a style="font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; text-decoration: none; color: #990101; padding: 3px; margin: 0px; border: 0px initial initial;" title="Jump back to footnote 1 in the text" href="http://www.nybooks.com/articles/archives/2010/aug/19/temptation-elena-kagan/?page=2#fnr4-169489113">↩</a></p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 18px; margin-left: 0px; font-weight: inherit; font-style: inherit; font-size: 12px; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;"><em style="font-weight: inherit; font-style: italic; font-size: 12px; font-family: inherit; vertical-align: baseline; padding: 0px; margin: 0px; border: 0px initial initial;">5. Active Liberty: Interpreting a Democratic Constitution</em> (Oxford University Press, 2008).</p>
</li>
</ol>
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		<title>Legal opinion to Minister of Defence</title>
		<link>http://constitutionallyspeaking.co.za/legal-opinion-to-minister-of-defence/</link>
		<comments>http://constitutionallyspeaking.co.za/legal-opinion-to-minister-of-defence/#comments</comments>
		<pubDate>Tue, 03 Aug 2010 11:14:53 +0000</pubDate>
		<dc:creator>Pierre De Vos</dc:creator>
				<category><![CDATA[Seminar Room]]></category>

		<guid isPermaLink="false">http://constitutionallyspeaking.co.za/?p=2595</guid>
		<description><![CDATA[LEGAL OPINION: INTERIM REPORT
DONE: MINISTRY LEGAL TEAM
The advisory opinion of Advocate Vassen is so incompetently drafted that I need not be longiloquent about its major flaws.  It suffices to simply rest on my original document and then refute the crux of Vassen’s argument which is based on a very superficial reading of the constitution.
Vassen relies [...]]]></description>
			<content:encoded><![CDATA[<p style="text-align: justify;">LEGAL OPINION: INTERIM REPORT</p>
<p style="text-align: justify;">DONE: MINISTRY LEGAL TEAM</p>
<p style="text-align: justify;">The advisory opinion of Advocate Vassen is so incompetently drafted that I need not be longiloquent about its major flaws.  It suffices to simply rest on my original document and then refute the crux of Vassen’s argument which is based on a very superficial reading of the constitution.</p>
<p style="text-align: justify;">Vassen relies on Section 42(3) of the Constitution but totally misunderstands its meaning.  It is trite that in any constitutional democracy where the notion of separation of powers prevails, a central tenet in the exercise of power by the executive is the notion of responsibility, which demands ultimate political accountability of government to the electorate. In the South African context, the Constitution demands legislative oversight of the executive and all organs of state. This is the essence of parliamentary accountability. Section 42 (3) of the Constitution sums up the functions of the National Assembly as being &#8220;to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action&#8221;.  It is puzzling how a demand of an interim report by an independent ministerial task team in regard to which the executive has not even formulated an opinion can be regarded as “scrutinizing and overseeing executive action.”  A document which has not been endorsed by the executive is not considered &#8220;executive action&#8221; or policy. </p>
<p style="text-align: justify;">It is also true that the executive&#8217;s duty to inform parliament is captured in section 92(3) of the Constitution which demands that ministers must provide information about the policies and the activities of their departments, i.e “provide parliament with full and regular reports concerning ,matters under their control.” This flow of information from the executive to parliament goes to the core of oversight and accountability.  But the minister is not being asked to provide information about the policies and the activities of her department. Nor is she being asked to provide full and regular reports concerning ,matters under her control. Instead a portfolio committee is asking for the release of an “interim” report by the NDFSC which has not yet surfaced before Cabinet and has not even received president’s full consideration.  The “interim report” cannot by any stretch of the imagination be deemed “full and regular” as defined in the constitution until the Minister has adopted it as her own and this can only occur after cabinet and presidency have acted.</p>
<p style="text-align: justify;">I am perplexed by Advocate Vassen’s limited understanding of legislation making in this context.  Conventional wisdom of course teaches that legislation making is a function of parliaments.  However, it is safe to start from the premise that initiating legislation is the responsibility of the executive. In this regard, the position papers and policies documents may be put together by cabinet even before they are presented in parliament.</p>
<p style="text-align: justify;">This includes ministerial task team reports.  Once in parliament, the public and everyone interested may comment on draft legislation, present written submissions to parliamentary committees and appear before them to present the submissions.  It is the height of absurdity to claim that a parliamentary committee may simply demand interim reports of ministerial task teams before they are even finalized so long as legislation is pending. </p>
<p style="text-align: justify;">Contrary to Vassen’s myopic view, oversight is not only the responsibility of the National Assembly based on section 55(2) as an&#8221;obligatory minimum standard&#8221;. Instead, oversight should be based on a broad approach based on the underlying values of the Constitution with the idea of building a strongly entrenched democratic culture operating within the ambit of these underlying values and spirit of the Constitution.  The separation of powers doctrine which is  based on the notion of checks and balances inherent in the relationship between different arms of government is central to the understanding of the interrelated themes of oversight, accountability, transparency and responsiveness. The national executive is accountable to Parliament, and the National Assembly must maintain oversight over all organs of state, pursuant to the specific functions set out for the Assembly in the Constitution.  Sections 92 and 93 provide that members of the Cabinet and Deputy Ministers are accountable to Parliament for the exercise of their powers and the performance of their functions and must provide Parliament with full and regular reports concerning matters under their control.  <strong>Section 92 of the Constitution states quite broadly that members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions. It also states that Members of the Cabinet must act in accordance with the Constitution; and must provide Parliament with full and regular reports concerning matters under their control. When they do this the Ministers are not witnesses, they are members of the Executive fulfilling a constitutional function.  Vassen’s reference to subpoena powers and compellability of ministers as witnesses is way off the mark and absurd.   </strong><strong></strong></p>
<p style="text-align: justify;">Section 56 of the Constitution states that “[t]he National Assembly or any of its committees may summon any person to appear before it to give evidence on oath or affirmation, or to produce documents; require any person or institution to report to it; or compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of” the Constitution.   But that does not mean that ministers may be forced to produce documents will-nilly. Any portfolio committee foolish enough to issue a summons to a minister on a matter pending before cabinet or the executive will be met with an iron-clad claim of executive privilege.  Generally speaking, ministers take an oath to respect confidentiality of certain matters serving before cabinet.  Until a matter has been discussed by cabinet and government position has been formulated, cabinet deliberations and candid and confidential matters before cabinet cannot be disclosed to parliamentary committees or anyone else.  What Vassen fails to appreciate is that the interim reports which are yet to receive cabinet considerations have no status as official reports – they have not been adopted by the minister and cabinet.  As such, they are not covered by section 92(3) of the Constitution which demands that ministers must provide information about the policies and the activities of their departments, i.e “provide parliament with full and regular reports concerning ,matters under their control.”  </p>
<p style="text-align: justify;">I forgot to elaborate on Section 92(2) which states that states quite broadly that members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions.  This section compels the conclusion and supports the minister&#8217;s position that her cabinet colleagues must receive the reports and interrogate them before they are handed to a parliamentary oversight body.  How else can cabinet members be held accountable &#8220;collectively&#8221; for documents that are handed to portfolio committees prematurely and before the ministers have even seen them?  Vassen refers to this section but fails to understand how in practical terms ministers ensure their collective accountability.  Thank you.</p>
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		<title>Mark Gevisser in The Guardian: &#8220;We did it&#8221;!</title>
		<link>http://constitutionallyspeaking.co.za/mark-gevisser-in-the-guardian-we-did-it/</link>
		<comments>http://constitutionallyspeaking.co.za/mark-gevisser-in-the-guardian-we-did-it/#comments</comments>
		<pubDate>Sat, 10 Jul 2010 07:01:26 +0000</pubDate>
		<dc:creator>Pierre De Vos</dc:creator>
				<category><![CDATA[Seminar Room]]></category>

		<guid isPermaLink="false">http://constitutionallyspeaking.co.za/?p=2505</guid>
		<description><![CDATA[On South Africa hosting the World Cup
Mark Gevisser in The Guardian
Sixteen years after experiencing the unforgettable rush of belonging and relief at Nelson Mandela&#8217;s inauguration in 1994, I felt it again last month: at the Free State stadium in Bloemfontein, watching the South African national team play their last World Cup game on 22 June. We beat [...]]]></description>
			<content:encoded><![CDATA[<h2 style="text-align: center;">On South Africa hosting the World Cup</h2>
<p style="text-align: center;"><a href="http://www.guardian.co.uk/football/2010/jul/10/south-africa-unites-over-football">Mark Gevisser in The Guardian</a></p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">Sixteen years after experiencing the unforgettable rush of belonging and relief at Nelson Mandela&#8217;s inauguration in 1994, I felt it again last month: at the Free State stadium in Bloemfontein, watching the South African national team play their last World Cup game on 22 June. We beat France 2-1, and although the victory was insufficient to qualify us into the next round, the consensus across the country following the game was that &#8220;we won!&#8221;</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">Why? First, because the <em style="border-collapse: collapse; background-repeat: no-repeat; padding: 0px; margin: 0px;">Bafana Bafana</em> (Zulu term of endearment meaning &#8220;the boys&#8221;) played at last with optimism, unity, and occasional brilliance; as good a recipe as any for a nascent national identity. Second, because we proved to a sceptical world – and thus ourselves – that we could host a World Cup, a hopeful corrective against the negativity that keeps tourists and investment away. Third, because if our government could deliver the world&#8217;s biggest mega-sporting event so efficiently, surely it could tackle <a style="border-collapse: collapse; background-repeat: no-repeat; color: #005689; text-decoration: none; padding: 0px; margin: 0px;" title="More from guardian.co.uk on South Africa" href="http://www.guardian.co.uk/world/southafrica">South Africa</a>&#8217;s social and economic ills with similar resolve. But &#8220;we won&#8221; most of all, because we could finally say &#8220;we&#8221;.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">Just a few weeks previously, the Afrikaner rightwing leader Eugène Terre&#8217;Blanche had been killed by a black employee, and the world was predicting civil war. The African National Congress youth leader, Julius Malema, had defied his party by refusing to stop singing an old liberation song, Kill the Boer, and by calling for the dispossession of white farms. The racial temperature had never been higher.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">But something shifted during the World Cup: with a team to support and half a million guests to take care of, we found ourselves all on the same side. The festive buzz of a million vuvuzelas came to override the habitual sounds of urban anxiety: the gunfire; the helicopters chasing stolen cars; the aggressive minibus taxis. Sure, it was holiday-time: daily matches, skiving from work, the cities aglitter with flags and foreigners. Still, for the first time in South Africa&#8217;s history, it seemed, patriotism was not a political statement. South Africans were waving flags, and supporting their team out of a sense of joy and belonging, rather than the deficit-driven pride that has fuelled both Afrikaner and African nationalism for so long.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">At the beginning of the South Africa-France match, I had found myself – to my astonishment – singing the South African national anthem. In the spirit of the reconciliatory Mandela era, the anthem is an amalgam of the liberation hymn, <em style="border-collapse: collapse; background-repeat: no-repeat; padding: 0px; margin: 0px;">Nkosi Sikelel &#8216;iAfrika</em> and the apartheid-era <em style="border-collapse: collapse; background-repeat: no-repeat; padding: 0px; margin: 0px;">Die Stem</em>. I have not been able to bring myself to sing the latter, but as I watched the Afrikaners around me trying to twist their mouths around <em style="border-collapse: collapse; background-repeat: no-repeat; padding: 0px; margin: 0px;">Nkosi Sikelel</em> and black South Africans in turn belting out <em style="border-collapse: collapse; background-repeat: no-repeat; padding: 0px; margin: 0px;">Die Stem</em> with unfettered delight, my stand seemed ridiculously churlish, and so I joined in, exalting along with everyone else those Boer ox-wagons as they conquered the interior.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">I was with a group of friends. To our left sat a stolid middle-aged black couple in the Mad Hatter attire that has become part of the South African football fan&#8217;s kit. In front was a large Indian family which had managed to smuggle samosas past the Fifa branding police; the granny blew her vuvuzela with sincere devotion, and became involved in an hilarious call-and-response with the white teenagers sitting next to her.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">Behind us were three younger black men who really knew their football and were enraged at opportunities the <em style="border-collapse: collapse; background-repeat: no-repeat; padding: 0px; margin: 0px;">Bafana Bafana</em> missed. &#8220;Don&#8217;t worry, man,&#8221; the older Afrikaner next to them responded at the final whistle, &#8220;We did it. We showed the world!&#8221; And then he unleashed the war cry which reminded us that we were actually in one of South Africa&#8217;s most hallowed rugby stadiums, deep in the Afrikaner heartland: &#8220;<em style="border-collapse: collapse; background-repeat: no-repeat; padding: 0px; margin: 0px;">Vrystaaaaaat</em> [Free State]!&#8221;</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">We all laughed as we shuffled our way out in a sea of exhilarated yellow. It wasn&#8217;t a war, or even a giant self-conscious love-in. It was just a big, happy, national picnic.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">After the <em style="border-collapse: collapse; background-repeat: no-repeat; padding: 0px; margin: 0px;">Bafana</em> were knocked out, it did not take long for South Africans transfer their allegiances to Ghana, the one remaining African team in the competition: &#8220;We are all Black Stars now!&#8221; trumpeted one Johannesburg newspaper, aptly capturing the national sentiment. A friend who went to the Ghana-US game in Rustenburg reports that every local in this conservative place – white and black alike – was flying the Black Star, and that the Afrikaners in the stadium were cheering for the west Africans as lustily as they would the Springboks.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">You would not, of course, have had to look too hard to find some white schadenfreude at the Africans&#8217; failure, in general, at the tournament. The South African journalist Johannes Dieterich told me how he had spent a Saturday night in the Karoo town of De Aar in Northern Cape: &#8220;The blacks hung out at the tavern Las Vegas At Night and watched soccer passionately, while the coloureds were in the Platform disco and whites at Pringles. There, the game was on several screens, but nobody was watching. One guy told me, &#8216;<em style="border-collapse: collapse; background-repeat: no-repeat; padding: 0px; margin: 0px;">Bafana Bafana</em> should learn from the Springboks how to play, then maybe I will watch them.&#8217;&#8221;</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">And just as there were, of course, several muggings, there was the inevitable racial slurring too. A friend heard a white fan, at Pretoria&#8217;s Loftus Versfeld stadium, insult an official repeatedly with the word &#8220;<em style="border-collapse: collapse; background-repeat: no-repeat; padding: 0px; margin: 0px;">kaffir</em>&#8221; when he was prevented from bringing his own beer into the stadium.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">Still, what was most remarkable was the way South Africans talked to each other, not only at the matches or in the fan-zones, but in the daily life that went on around the tournament. An elderly white neighbour almost wept as she told of her conversations with the supermarket staff and petrol pump attendants: &#8220;We were talking to each other like normal people,&#8221; she told me. &#8220;This is what I&#8217;ve been waiting for!&#8221; Another white woman spoke of how wonderful it was – given that soccer is a black sport in South Africa – that her gardener could now teach her something, rather than the other way round.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">A black friend felt that by taking pride in the country having run a successful tournament, white South Africans were finally affirming their black compatriots&#8217; ability to govern. &#8220;When a white colleague throws his arms around me and says, &#8216;We did it!&#8217; he is telling me that blacks can do it after all. What a difference from the attitude I usually get, that I&#8217;m an affirmative action case who has to prove herself at every turn,&#8221; she said.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">For most, the pleasure was in the normality of it all. The main reason we were talking to each other as never before was because we were occupying public space and using public transport in a way that city dwellers do the world over, but that is utterly foreign to South Africa due to apartheid planning and the fear of crime.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">To get to Soccer City outside Soweto, I took the train from Park Station in downtown Johannesburg, usually a no-go zone for middle-class people, black or white, at night. The carriages were filled with white and black suburbanites who had never been on a train in Johannesburg before, although most of them would have travelled the London underground at some time in their lives. Suddenly, the distance from Johannesburg to Soweto was all of 15 minutes.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">Still, an image remained with me from the drive down to Bloemfontein; one which thrilled me in the moment, but would haunt me for the days to come as I lost myself in cosmopolitan Johannesburg. Alongside the highway near the town of Ventersburg, at a rural settlement not yet reached by post-apartheid development, a knot of villagers had clustered: they were dancing and singing and clapping, and with the help of one or two vuvuzelas, cheering on the flag-festooned cavalcade of luxury cars ferrying well-heeled supporters down to the game.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">Football in South Africa, as in most places, is a working-class obsession. But the Rainbow Nation melting pot inside the stadiums was, thanks to Fifa, a middle-class one. A few cheap tickets were £10; most cost 10 times that, and could only be acquired if you had access to the internet. So far as I could see, those villagers did not even have electricity; they would thus be following the game around a radio. And so they seemed, to me, to be an analogue for the exclusion and inequality that still plagues South Africa; a country with more than 25% unemployment, with a rampant Aids epidemic, with a severe housing shortage and a stalled land reform programme, with a widening gap between the rich and the poor.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">South Africa&#8217;s leaders are unsurprisingly sanguine at the moment. But in a press conference at Soccer City last week the finance minister, Pravin Gordhan, was refreshingly frank: the country&#8217;s recovery from the recession was &#8220;tenuous&#8221;, and employment in particular would be &#8220;slow to recover&#8221;. This has serious run-on effects, in the way the unemployment problem affects the country&#8217;s crime epidemic, tax base, and state corruption – because the state is so often the only source of income, either through social welfare grants, or through jobs and contracts.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">Towns like Ventersburg have all but collapsed: a recent study found that one in three small towns had no technical or engineering expertise whatsoever. On this very World Cup finals weekend, the state electricity utility has threatened to cut electricity to 11 Free State municipalities, including Bloemfontein, because of non-payment for services. Even wealthy Johannesburg is in financial trouble – not least because of the £300m spent on Soccer City (part of a larger state tag of £3bn).</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">People, like those Ventersburg villagers, cheer the carnival of power partly because it is a spectacle that pulls them out of the hardship of their daily lives, but largely because they hope they will be noticed, and taken care of. Now that the South African state has proven that it can deliver when the client is Fifa and a global television audience, there is the heightened expectation that it will apply the same purpose to the improvement of the lives of its own citizens.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">And so the burning question in South Africa at the moment is this: Why, if the state can build stadiums on time and deliver a World Cup to Fifa, can it not treat its citizens with similar respect and efficiency? Unfortunately, it is far harder to restructure the economy to provide jobs, or to solve the crime crisis, than it is to build a stadium or an airport. The World Cup is a bit like a wartime economy: the skills acquired and the capital invested might indeed boost the economy, but they are not necessarily transferable to a peacetime environment. The extra 40,000 policemen employed in time for the tournament, for example, might have managed the crowds brilliantly, but they will have no effect on South Africa&#8217;s crime rate if the country&#8217;s collapsed detective services are not repaired.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">Antony Altbeker, the South African author and policy analyst, notes that while the country delivered faultless stadiums, it failed to provide a winning team – despite huge investment in the <em style="border-collapse: collapse; background-repeat: no-repeat; padding: 0px; margin: 0px;">Bafana Bafana</em>: &#8220;The social engineering required to build a good soccer team is very different from the actual engineering required to build a stadium. To build is easy; to change society is way harder.&#8221;</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">The writer Palesa Morudu told me that she sees, in the South African pride that &#8220;we did it&#8221;, a troubling anxiety that we can&#8217;t: &#8220;Why are we celebrating that we built stadiums on time? Everywhere in the world stadiums are delivered on time. It&#8217;s normal. We seem to be seeking vindication, which means that, somewhere, we&#8217;ve internalised that we&#8217;re not actually good enough.&#8221;</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">Indeed, there is a manic-depressive streak to the South African psyche; an after-effect, perhaps, of having once been so favoured after the &#8220;Mandela Miracle&#8221; transition to democracy. If we are not &#8220;the Rainbow Nation&#8221; – or the successful hosts of the first African mega-event – then we are another African failed state; Zimbabwe-in-waiting.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 13px; margin-left: 0px; border-collapse: collapse; background-repeat: no-repeat; font-family: arial, sans-serif; text-align: justify; padding: 0px;">At best, the World Cup will be the fillip that pulls South Africa out of this cycle, in the way it attracts investment to the country and focuses the state on effective service delivery; at worst we will look back at is as a carnival high, Christmas in July. Even phlegmatic Germany had a post World Cup hangover; in an environment as emotionally volatile as South Africa, it&#8217;s inevitable. Still, the power of a grand national pageant is its myth-making potential: whether we were in cars on the way down to Bloemfontein or dancing on the side of the highway, we will tell our children and grandchildren about it and it will become the measure, for years to come, of the Rainbow Nation we imagined we were bringing into being in 1994.</p>
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		<title>&#8220;Get over it!&#8221; &#8211; the wonderful world of Justice Scalia</title>
		<link>http://constitutionallyspeaking.co.za/get-over-it-the-wonderful-world-of-justice-scalia/</link>
		<comments>http://constitutionallyspeaking.co.za/get-over-it-the-wonderful-world-of-justice-scalia/#comments</comments>
		<pubDate>Thu, 01 Jul 2010 09:55:15 +0000</pubDate>
		<dc:creator>Pierre De Vos</dc:creator>
				<category><![CDATA[Seminar Room]]></category>

		<guid isPermaLink="false">http://constitutionallyspeaking.co.za/?p=2480</guid>
		<description><![CDATA[
Get over it! - From the London Review of Books
Corey Robin

BUYAmerican Original: The Life and Constitution of Supreme Court Justice Antonin Scalia by Joan Biskupic
Farrar, Straus, 434 pp, $28.00, November 2009, ISBN 978 0 374 20289 7

Elena Kagan, Barack Obama’s nominee to replace the retiring Supreme Court justice John Paul Stevens, is scheduled to appear before the Senate Judiciary Committee in late [...]]]></description>
			<content:encoded><![CDATA[<div style="outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: inherit; vertical-align: baseline; padding: 0px; margin: 0px; border: 0px initial initial;">
<h1 style="padding-top: 0.5em; padding-right: 0px; padding-bottom: 0px; padding-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: normal; font-style: inherit; font-size: 2.308em; font-family: inherit; vertical-align: baseline; color: #000000; line-height: 1.4em; margin: 0px; border: 0px initial initial;">Get over it! - <span style="line-height: 28px; font-size: 20px; color: #253943;"><a href="http://www.lrb.co.uk/v32/n11/corey-robin/get-over-it">From the London Review of Books</a></span></h1>
<h2 style="margin-top: 0px; margin-right: 0px; margin-bottom: 0.3em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: normal; font-style: inherit; font-size: 1.539em; font-family: inherit; vertical-align: baseline; color: #253943; line-height: 1.412em; padding: 0px; border: 0px initial initial;">Corey Robin</h2>
<ul style="margin-top: 1.5em; margin-right: 0px; margin-bottom: 1.5em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 13px; font-family: inherit; vertical-align: baseline; list-style-type: disc; list-style-position: initial; list-style-image: initial; padding: 0px; border: 0px initial initial;">
<li style="margin-top: 0.5em; margin-right: 0px; margin-bottom: 0px; margin-left: 2em; padding-top: 0px; padding-right: 20px; padding-bottom: 0px; padding-left: 1em; border-top-width: 0px; border-right-width: 0px; border-bottom-width: initial; border-left-width: 0px; border-style: initial; border-color: initial; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1em; font-family: inherit; vertical-align: baseline; line-height: 1.385em; border-bottom-style: none; border-bottom-color: initial; list-style-type: none !important; list-style-position: initial !important; list-style-image: initial !important;"><span style="margin-top: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 1em; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: bold; font-style: inherit; font-size: 9px; font-family: 'Helvetica Neue', Helvetica, Arial, sans-serif; vertical-align: baseline; text-align: center; text-transform: uppercase; background-image: url(http://www.lrb.co.uk/assets/css/images/button_buy_bg.gif); background-repeat: repeat-x; background-attachment: initial; -webkit-background-clip: initial; -webkit-background-origin: initial; background-color: #ffffff; display: inline-block; float: right; text-decoration: none; -webkit-border-top-right-radius: 4px 4px; -webkit-border-top-left-radius: 4px 4px; -webkit-border-bottom-left-radius: 4px 4px; -webkit-border-bottom-right-radius: 4px 4px; background-position: 0% 100%; padding: 2px !important; border: 1px solid #adadad;"><a style="padding-top: 0px; padding-right: 0px; padding-bottom: 0px; padding-left: 17px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 9px; font-family: inherit; vertical-align: baseline; color: #005689; text-decoration: none; background-image: url(http://www.lrb.co.uk/assets/css/images/trolley.png); background-repeat: no-repeat; background-attachment: initial; -webkit-background-clip: initial; -webkit-background-origin: initial; background-color: initial; background-position: 0% 0%; margin: 0px; border: 0px initial initial;" title="Click here to buy this book at the London Review Bookshop" onclick="window.open(this.href); return false;" href="http://www.lrbshop.co.uk/product.php?productid=19224&amp;utm_source=LRB&amp;utm_medium=BNbutton&amp;utm_campaign=BuyNow">BUY</a></span><cite style="outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: italic; font-size: 13px; font-family: inherit; vertical-align: baseline; padding: 0px; margin: 0px; border: 0px initial initial;">American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia</cite> by Joan Biskupic<br />
Farrar, Straus, 434 pp, $28.00, November 2009, ISBN 978 0 374 20289 7</li>
</ul>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">Elena Kagan, Barack Obama’s nominee to replace the retiring Supreme Court justice John Paul Stevens, is scheduled to appear before the Senate Judiciary Committee in late June. Before she is confirmed by the committee, she will have to answer questions about her views on the constitution and her lack of judicial experience. One question she probably will not be asked, however, is what she meant by a statement she made about Justice Antonin Scalia in February 2007: ‘He is the justice who has had the most important impact over the years on how we think and talk about law.’ Next to Clarence Thomas, Scalia is the most conservative justice on the Supreme Court. Kagan is a Democrat and, we’re told, a liberal. Was she including herself in this claim? If so, how exactly has Scalia influenced her? If not, what does she think of his influence on other</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">You won’t find answers to these questions in Kagan’s published work. She has had tenure at Harvard and the University of Chicago; she was the first woman to serve as dean of Harvard Law School and later as solicitor general of the United States. Yet we have no idea of her political convictions. That’s not unusual in a politician but a scholar with her record usually has a voluminous record of positions taken and arguments advanced. In an academic career of nearly two decades, Kagan has written (or cowritten) exactly four full-length scholarly articles and several shorter pieces, few featuring a distinctive or even audible personal voice. Jeffrey Toobin, the <em>New Yorker</em>’s legal correspondent, has known Kagan since they were first-year law students; he admits that ‘her own views were and are something of a mystery’ to him. ‘On the court,’ he adds, ‘Kagan will have to do something she’s not done before. Show her hand. Develop a clear ideology. Make tough votes. I have little doubt she’s up to the job, but am less clear on how she’ll do it.’ Tom Goldstein, the publisher of the SCOTUSblog, devoted to the goings-on at the Supreme Court, says: ‘I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.’ David Brooks, the conservative <em>New York Times</em>columnist, gets it right: ‘She seems to be smart, impressive and honest – and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.’</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">Whatever her own views may be, Kagan is correct in her assessment of Scalia’s impact. If she’s a weather vane, he’s the weather. It’s not that Scalia’s particular positions have prevailed on the court. Some of his most famous opinions – against abortion, affirmative action and gay rights; in favour of the death penalty, prayer in schools and sex discrimination – have been dissents. His hand is more evident in the way his colleagues – and other jurists, lawyers and scholars – make their arguments.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">Since he was appointed by Reagan in 1986, Scalia has been the most high-profile advocate of a school of jurisprudence known as originalism. Originalists hold that the words of the constitution mean what they meant when they were written and adopted into the text; judges must remain faithful to those original meanings, even if they run counter to contemporary manners and mores. This position, formulated by conservatives in response to the liberal jurisprudence of the 1960s and 1970s, has long been criticised by the left. As William Brennan, the liberal titan of the court in the second half of the 20th century, declared in 1985, ‘Those who would restrict claims of right to the values of 1789 specifically articulated in the constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance.’ Against the originalists, Brennan insisted that ‘the genius of the constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.’</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">Just a decade later, however, the liberal Laurence Tribe, paraphrasing the liberal Ronald Dworkin, wrote: ‘We are all originalists now.’ That’s even truer today. Where yesterday’s generation of constitutional scholars looked to philosophy – Rawls, Hart, occasionally Nozick, Marx or Nietzsche – to interpret the constitution, today’s looks to history, to the moment when a word or passage became part of the text and acquired its meaning. Not only on the right. Bruce Ackerman, Akhil Amar and Jack Balkin are just three of the most prominent liberal originalists writing today. Liberals on the court have undergone a similar shift. In his <em>Citizens United v. Federal Election Commission</em>dissent, Stevens wrote a lengthy excursus on the ‘original understandings’, ‘original expectations’ and ‘original public meaning’ – all words drawn from the originalist lexicon – of the First Amendment with regard to corporate speech. Stevens felt compelled by Scalia, to whom he referred several times, to demonstrate that the Framers did not believe that corporations had the same right to freedom of speech as individuals. Other scholars and jurists, not to mention the rightward drift of American politics since the Reagan era, have helped bring about this shift, but it is Scalia who has kept the originalist flame lit at the highest reaches of the law.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">So the real question surrounding Kagan’s confirmation – and that of all nominees to the court in the foreseeable future – is: has Scalia influenced their views? If so, how, and if not, how would they argue against him? The rest is commentary.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">In the United States, Tocqueville wrote, a federal judge, particularly a judge on the Supreme Court, ‘must know how to understand the spirit of the age’. The Supreme Court wields immense power in the American political system: the power to interpret the constitution, which is both sacred text and highest law of the land. Every so often, other officials express a measure of discontent. Obama, for example, used the occasion of his first State of the Union Address to chide the court for its decision in <em>Citizens United</em>, which, he said, would reverse ‘a century of law’ regarding corporate expenditure in federal election campaigns. But, on the whole, the right to interpret the constitution – and to strike down laws and overturn government actions in the name of the constitution – has rested with the court. While the persona of a Supreme Court justice may be ‘purely judicial’, Tocqueville concluded, his ‘prerogatives are entirely political’. If he is to exercise them effectively, he must be as culturally nimble and socially attuned as the shrewdest politician.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">How then to explain the influence of Scalia, a man who proudly proclaims his disdain for ‘the spirit of the age’ – that is, when he is not embarrassingly ignorant of it? When in 2003 the Supreme Court voted to overturn state laws banning gay sex, Scalia saw the country heading down a slippery slope to masturbation. In 1996, he told an audience of Christians that ‘we must pray for the courage to endure the scorn of the sophisticated world,’ a world that ‘will not have anything to do with miracles’. In a dissent from that same year, he declared: ‘Day by day, case by case, [the court] is busy designing a constitution for a country I do not recognise.’ As the <em>New York Times</em> columnist Maureen Dowd put it, ‘He’s so Old School, he’s Old Testament.’</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">Scalia certainly has not charmed his way to influence. As Joan Biskupic documents in<em>American Original</em>, he is much given to mocking his colleagues’ intelligence and questioning their integrity. Sandra Day O’Connor, who sat on the court from 1981 to 2006, was a frequent object of his ridicule and scorn. Of one of her arguments he said that it was ‘devoid of content’. Whenever he’s asked about his role in the case that put George W. Bush in the White House, he sneers: ‘Get over it!’</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">Biskupic believes that he might have more influence if he trimmed his ideological sails. This seems unlikely, since it is through the sheer obduracy of his vision that he has made himself felt. If his version of originalism produces objectionable results – say, the execution of minors and the mentally retarded – too bad. ‘I do not think,’ he wrote in<em>Nixon v. Missouri Municipal League</em> (2004), that ‘the avoidance of unhappy consequences is an adequate basis for interpreting a text’.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">Scalia takes special pleasure in unhappy consequences. He relishes difficulty and dislikes anyone who would diminish or deny it. In <em>Hamdi v. Rumsfeld</em> (2004), a plurality on the court took what he thought was a squishy position on executive power in wartime. The court ruled that the Authorisation for the Use of Military Force, passed by Congress after 9/11, empowered the president to detain US citizens as ‘illegal enemy combatants’ without trying them in a court of law and to detain them indefinitely. It also ruled, however, that such citizens were entitled to due process and thus could challenge their detention before some kind of tribunal. Scalia was livid. Writing against the plurality – as well as the Bush administration and fellow conservatives on the court – he insisted that a government at war had two, and only two, ways to hold a citizen: try him in a court of law or have Congress suspend the writ of habeas corpus; live by the rules of due process or suspend them. But the court weaselled out of that choice, making life easier for the government and itself. Congress and the president could act as if the writ were suspended, without having to suspend it, and the court could act as if it hadn’t been suspended thanks to the fake due process of military tribunals. More than colouring outside the lines of the constitution, it was the court’s ‘Mr Fix-It Mentality’, in Scalia’s words, its ‘mission to Make Everything Come Out Right’, that irritated him.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">Scalia’s mission, by contrast, is to make everything come out wrong. A Scalia opinion, to borrow a phrase from Margaret Talbot, writing in the <em>New Yorker</em>, is ‘the jurisprudential equivalent of smashing a guitar on stage’. Scalia may have once declared the rule of law to be the law of rules – leading some to mistake him for a traditional conservative – but where others look for stabilising checks or reassuring supports, Scalia looks for exhilarating impediments and vertiginous barriers. Rules and laws make life harder, and harder is everything. ‘Being tough and traditional is a heavy cross to bear,’ he once told a reporter. ‘<em>Duresse oblige</em>.’ That, and not fidelity to the text or conservatism as it is usually understood, is the idée fixe of Scalia’s jurisprudence. In an age when the left lacks certainty and will, it can be a potent and intoxicating force.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">Scalia was born in Trenton, New Jersey in March 1936, but was conceived the previous summer in Florence, where his father, a doctoral student in Romance languages at Columbia, was on a fellowship. ‘I hated Trenton,’ Scalia says; his heart belongs to Florence. A devotee of opera and hunting (‘he loves killing unarmed animals,’ Clarence Thomas says), Scalia likes to cut a Medician profile of great art and great cruelty. He peppers his decisions with stylish allusions to literature and history. Once upon a time, he enjoys telling audiences, he was too ‘faint-hearted’ an originalist to uphold the 18th century’s acceptance of ear notching and flogging as forms of punishment. Not any more: ‘I’ve gotten older and crankier.’</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">When Scalia was six, his parents moved to the Elmhurst section of Queens. His lifelong conservatism is often attributed to his strict Italian Catholic upbringing there; alluding to Burke, he calls it his ‘little platoon’. He attended Xavier High School, a Jesuit school in Manhattan, and Georgetown, a Jesuit university in Washington DC. (In his freshman year at Georgetown, the senior class voted Senator Joseph McCarthy Outstanding American.) But he comes to his ethnicity and religion with an attitude, lending his conservatism a distinctive and defiant edge. He claims the reason he didn’t get into Princeton, his first choice, was that ‘I was an Italian boy from Queens, not quite the Princeton type.’ Later, after Vatican II liberalised the liturgy and practices of the Church, including his neighbourhood church in suburban Virginia, he insisted on driving his brood of seven children miles away to hear Sunday mass in Latin. He did the same thing later on in Chicago, only this time with nine children in tow. Explaining how he and his wife managed to raise conservative children during the 1960s and 1970s (no jeans in the Scalia household), he says:</p>
<blockquote style="margin-top: 0px; margin-right: 1em; margin-bottom: 0px; margin-left: 1em; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 0.9em; font-family: inherit; vertical-align: baseline; text-align: justify; padding: 0px;">
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; padding: 0px; border: 0px initial initial;">They were being raised in a culture that wasn’t supportive of our values, that was certainly true. But we were helped by the fact that we were such a large family. We had our own culture … The first thing you’ve got to teach your kids is what my parents used to tell me all the time: ‘You’re not everybody else … We have our own standards and they aren’t the standards of the world in all respects, and the sooner you learn that the better.’</p>
</blockquote>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">Scalia’s conservatism, on closer inspection, is more a Thoreauvian counterculture, a retreat from and rebuke to the mainstream, not unlike the hippie communes and groupuscules he once tried to keep at bay. It is not a conservatism of tradition or inheritance, but of invention and choice, informed by the spirit of rebellion he so plainly loathes – or thinks he loathes – in the culture at large.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">At one point in her account Biskupic writes: ‘Yet even as Scalia in middle age was developing a more rigid view of the law, he still had bursts of idealism.’ But Scalia’s rigidity is not opposed to his idealism, it is his idealism. His ultra-conservative reading of the constitution reflects neither cynicism nor a conventional cast of mind; orthodoxy and piety are, for him, the essence of dissidence and iconoclasm. No charge grieves him more than the claim, rehearsed at length in his 1995 Tanner Lectures at Princeton, that his philosophy is ‘wooden’, ‘unimaginative’, ‘pedestrian’, ‘dull’, ‘narrow’, ‘hidebound’. Call him a bastard or a prick, a hound from hell or a radical in robes. Just don’t say he’s a suit.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">There’s certainly nothing tradition-bound about the way he interprets the constitution. Originalism, in his interpretation (it’s also known as ‘original meaning’ or ‘original public meaning’), should not be confused with deference to the intentions of the Framers. While the first group of originalists in the 1970s did claim that the court should interpret the constitution according to the intentions of the Framers, later originalists like Scalia have had to revise that position in response to the criticisms it received. The intentions of a single author are often unknowable; in the case of a text with many authors, intentions are even harder to pin down. And whose intentions should count? Those of the 55 men who wrote the constitution, the 1179 men who ratified it or the even greater number of men who voted for the men who ratified it? Scalia’s response was to say that it is not intentions that govern us: it is the constitution, the text as it is written and rewritten through amendment. But how do you recover the meaning of a text that can swerve from sweeping generality in one sentence (‘the executive Power shall be vested in a President’) to ordinary precision (presidential terms are four years) in the next? Establish what those words meant to people at the time they were adopted, Scalia argues. See how they were used: consult dictionaries, other usages in the text, influential writings of the time. Consider the context of their utterance, how they were received. From these sources, construct a bounded universe of possible meanings. Words don’t mean one thing, Scalia concedes, but neither do they mean whatever one wants them to. Judges should read the constitution neither literally nor loosely but ‘reasonably’ – that is, in such a way that each word or phrase is construed ‘to contain all that it fairly means’. And then, somehow or other, apply that meaning to our own very different times.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">Scalia justifies his originalism on two grounds. In a constitutional democracy it is the job of elected representatives to make the law, the job of judges to interpret it. If they consult their own morals or their own interpretations of the country’s morals, they are no longer judges but lawmakers, and often unelected lawmakers at that. By tying the judge to an unchanging text, originalism protects us from judicial despotism. So Scalia’s first concern is tyranny from the bench; his second is anarchy on the bench. Once we abandon the idea of an unchanging constitution, he says, we open the gates to any and all modes of interpretation. When ‘every day’ is ‘a new day’ in the law, it ceases to be law. He has in mind what he sees as a brief, terrible time – from the Warren Court of the 1960s to the Burger Court of the 1970s – when in the name of a ‘living constitution’ left-wing judges remade (or tried to remake) the country in their own image, forcing an agenda of social democracy, sexual liberation, gender equality, racial integration and moral relativism down the country’s throat. Ancient words acquired new implications and insinuations: suddenly ‘due process of law’ entailed a ‘right to privacy’, codes for birth control and abortion (and later gay sex); ‘equal protection of the laws’ required one man, one vote; the ban against ‘unreasonable searches and seizures’ meant that evidence obtained unlawfully by the police could not be admitted in court; the proscription against the ‘establishment of religion’ forbade school prayer. For originalists, what was most outrageous about this revolution from above – beyond the left-wing values it foisted on the country – was that it was out of keeping with the way the court traditionally justified its decisions to strike down laws.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">Before the Warren Court, according to Scalia, or before the 1920s (it’s never clear when the rot set in), everyone was an originalist. Which is not quite the case. Expansive constructions of constitutional meaning are as old and as august as the founding itself. And the theoretical self-consciousness Scalia brings to the table is a 20th-century phenomenon. In fact, he often sounds like a comparative literature student <em>c.</em>1983. He says it’s a ‘sad commentary’ that ‘American judges have no intelligible theory of what we do most’ and ‘even sadder’ that the legal profession is ‘by and large … unconcerned with the fact that we have no intelligible theory’. Conservatives used to mock that kind of theory fetishism as the mark of an inexperienced and artless ruling class. Even an avowed originalist like Robert Bork, unsuccessfully nominated by Reagan to the Supreme Court in 1987, concedes that ‘self-confident legal institutions do not require so much talking about.’ But Scalia and Bork forged their ideas in battle against a liberal jurisprudence that was self-conscious and theoretical, and have come out of that battle looking more like their enemies than their friends. Bork freely admits that it is not John Marshall or Joseph Story – the traditional greats of American judicial review – to whom he looks for guidance: it is Alexander Bickel, arguably the most self-conscious of the 20th-century liberal theoreticians, who ‘taught me more than anyone else about this subject’.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">Like many originalists, Scalia claims that his jurisprudence has nothing to do with his conservatism: ‘I try mightily to prevent my religious views or my political views or my philosophical views from affecting my interpretation of the laws.’ Yet he has also said that he learned from his teachers at Georgetown never to ‘separate your religious life from your intellectual life. They’re not separate.’ Only months before Reagan nominated him to the Supreme Court, he admitted that his legal views were ‘inevitably affected by moral and theological perceptions’. If his conservatism has little to do with advancing the immediate interests of the Republican Party, it has even less to do with averting the threats of judicial tyranny and anarchy. It is a conservatism that would have been recognisable to Social Darwinists of the late 19th century, freely mixing the pre-modern and the progressive, the archaic and the advanced. It’s not to be found in the obvious places – in his opinions about abortion, say, or gay rights – but in a dissenting opinion about that most un-Scaliaesque of places, the golf course.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">Casey Martin, a professional golfer, could no longer walk the 18 holes of a golf course because of a degenerative disease. After the PGA refused his request to use a golf cart in one of its tournaments, a federal court issued an injunction, based on the Americans with Disabilities Act, allowing Martin to use a cart. By the time the case reached the Supreme Court, the legal questions had boiled down to these: is Martin entitled to the protections of the ADA? Would allowing him to use a cart ‘fundamentally alter the nature’ of the game? Ruling 7-2 in Martin’s favour (with Scalia and Thomas in dissent) the court said yes to the first and no to the second.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">In answering the first question, the court had to contend with the PGA’s claim that it provided entertainment and that only customers of that entertainment were entitled to the ADA’s protection. Martin was not a customer; he was a provider. The court, however, insisted that Martin was a customer: he and the other contestants had to pay $3000 to try out for the tournament. Some customers paid to watch, others to compete. The PGA could not discriminate against either.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">Scalia was incensed. It ‘seems to me quite incredible’, he said, that the majority would treat Martin as a customer of ‘competition’ rather than a competitor. The PGA sold entertainment, the public paid for it, the golfers provided it. Martin was no more a customer than an actor who shows up for an open audition. In the majority position, Scalia saw something more pernicious than a wrongly argued opinion. He saw a threat to the status of athletes everywhere, whose talent and excellence would be smothered by the bosomy embrace of the court, and to the idea of competition more generally.</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">Games hold a special value for Scalia: they are the space where inequality rules. They demonstrate and celebrate ‘the uneven distribution of God-given gifts’. ‘The very nature of competitive sport,’ he says, ‘is the measurement of unevenly distributed excellence.’ In the court’s translation of competitor into customer, Scalia saw the forced entry of democracy (a ‘revolution’, actually) into this venerable preserve of inequality. With ‘<em>Animal Farm</em> determination’, the court had destroyed a unique opportunity to see how unequal we truly are. ‘The year was 2001,’ the last sentence of Scalia’s dissent reads, and ‘everybody was finally equal.’</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">To answer the question of whether riding in a golf cart ‘fundamentally’ alters the ‘nature’ of golf, the majority undertook a thorough history of the rules of the sport. It then formulated a two-part test for determining whether riding in a cart would change the nature of golf, which necessarily demanded an inquiry into what that nature was. In seeking to discover the essence of golf, Scalia claimed, the court was looking for something that does not exist. ‘To say that something is “essential” is ordinarily to say that it is necessary to the achievement of a certain object.’ But games ‘have no object except amusement’. Lacking an object, they have no essence. It’s thus impossible to say whether a rule is essential. ‘All are arbitrary,’ he wrote of the rules, ‘none is essential.’</p>
<p style="margin-top: 0px; margin-right: 0px; margin-bottom: 1em; margin-left: 0px; outline-width: 0px; outline-style: initial; outline-color: initial; font-weight: inherit; font-style: inherit; font-size: 1.077em; font-family: inherit; vertical-align: baseline; line-height: 1.357em; text-align: justify; padding: 0px;">It’s difficult to reconcile this hostility to the idea of golf’s essence with his earlier statements about ‘the very nature of competitive sport’ being the expression of divinely ordained inequalities. But the contradiction neatly reveals the twin poles of Scalia’s faith: a belief in rules as arbitrary impositions of power, to which we must nevertheless submit; and a belief in rules, zealously enforced, as a guardian of our ineradicable inequality. Scalia, it turns out, is not nearly the iconoclast he thinks he is. Far from telling ‘people what they don’t like to hear’, as he claims, he tells the powerful exactly what they want to hear: that they are superior and that they have a seat at the table because they are superior. It’s not the alienness but the appositeness of Justice Scalia, the way he reflects rather than refracts the spirit of the age, that explains his high place in our constitutional firmament. Just ask Elena Kagan, if she’ll tell you.</p>
</div>
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		<item>
		<title>Legal action on lack of textbooks?</title>
		<link>http://constitutionallyspeaking.co.za/legal-action-on-lack-of-textbooks/</link>
		<comments>http://constitutionallyspeaking.co.za/legal-action-on-lack-of-textbooks/#comments</comments>
		<pubDate>Wed, 23 Jun 2010 08:58:49 +0000</pubDate>
		<dc:creator>Pierre De Vos</dc:creator>
				<category><![CDATA[Seminar Room]]></category>

		<guid isPermaLink="false">http://constitutionallyspeaking.co.za/?p=2447</guid>
		<description><![CDATA[No textbooks for some Khayelitsha matrics: Equal Education and learners forced to consider legal action against the Western Cape Education Department
Dear Friends of EE,
Six months into the schools year, at the height of the FIFA World Cup, Equal Education (EE) has been forced to consider legal action in order to ensure that its members, and [...]]]></description>
			<content:encoded><![CDATA[<p style="text-align: center;"><strong>No textbooks for some Khayelitsha matrics: Equal Education and learners forced to consider legal action against the Western Cape Education Department</strong></p>
<p>Dear Friends of EE,</p>
<p style="text-align: justify;">Six months into the schools year, at the height of the FIFA World Cup, Equal Education (EE) has been forced to consider legal action in order to ensure that its members, and other Khayelitsha matrics, have textbooks in order to prepare (albeit too late) for their final examinations.</p>
<p style="text-align: justify;">Take for example, Olwethu ‘Shakes’ Matyesini (19), a grade 12 learner from Khayelitsha, a member of EE and one of the keynote speakers at the 2009 Ashley Kriel Memorial Lecture. More than halfway through his matric year, he is yet to receive a science textbook although this is a critical and difficult subject. He is doing seven subjects and only has a textbook for Life Orientation and shares IsiXhosa prescribed texts with other learners. He hopes to pass his matric and enrol at the University of Cape Town to study languages and communication.</p>
<p style="text-align: justify;">Although textbook problems are widespread, particularly in grades 8 and 9, our immediate concern, as explained in the<a href="http://dl.dropbox.com/u/7454767/Lettter_of_demand-WCED_18-06-10_%28final%29.pdf" target="_blank">letter of demand sent to the WCED</a>, relates to matric students in two large schools:</p>
<ul style="text-align: justify;">
<li>At Chris Hani Senior Secondary School the following textbooks are in short supply: Xhosa (sharing throughout the grade), Mathematics (sharing in two classes), Physical Science (no books), Music (no books) and Life Sciences (some classes sharing, one class no books).</li>
</ul>
<ul style="text-align: justify;">
<li>At Kwamfundo Senior Secondary School the problems are similar: Xhosa (two classes no books), English (sharing in one class), Business (no books in one class), Life Sciences (sharing in one class), Geography (sharing in one class) and Life Orientation (sharing in one class).</li>
</ul>
<p style="text-align: justify;">EE brought the situation to the attention of the Western Cape Education Department (WCED) on 11 May 2010, and again on 14 May 2010, and received assurance that it would be investigated. The situation in schools had not improved by 9 June 2010 when schools closed for holidays. In order to ensure that textbooks are available on 13 July 2010 when matrics return to school, EE sent the above-mentioned letter of demand to the WCED.</p>
<p style="text-align: justify;">Western Cape MEC for Education, Donald Grant, seems to have reacted angrily to this letter, and the <a href="http://www.equaleducation.org.za/press-a-views/press-releases/item/134-wc-no-textbooks" target="_blank">press statement</a> which accompanied it. But his <a href="http://dl.dropbox.com/u/7454767/WCED%20Statement%20on%20Textbooks%2022-06-2010.pdf" target="_blank">response</a> is altogether unsatisfactory and evasive. The thrust is that because the Western Cape is the leading province in education it is unjustified for Equal Education and Khayelitsha matric learners to raise concerns about not having textbooks for the entire year. We feel that the WCED’s relative success in many areas should not be used to defend specific failures.</p>
<p style="text-align: justify;">In the Western Cape, EE works on a daily basis in Khayelitsha, Kraaifontein and Bonteheuwel and elsewhere. It is in these places that we work with WCED officials, school principals, learners and teachers to establish libraries, run after-school youth group meetings and conduct campaigns for resources and effective school management. We know the dedication and self-sacrifice of many educators and officials, and the despondency and apathy of others. It is very sad that when a civil society organisation raises the alarm, in this case about two schools that haven&#8217;t had adequate textbook supply since January, the MEC&#8217;s response is to attack civil society and to blame the schools. Organisations like EE that bring to the public’s attention the fact that matrics are without textbooks for months, should be seen by the education department as resources and allies.</p>
<p style="text-align: justify;">The MEC is rightly proud of the Western Cape’s education system, but a considered analysis should give citizens of the province pause. The Western Cape matric pass rate has declined annually from 85.1 percent in 2004 to 75.7 percent in 2009. The physical science pass rate plummeted from 71.2 percent in 2008 to 52.9 percent in 2009. Although the Western Cape remains on top of South Africa&#8217;s ailing education system, and for this the hardworking teachers and officials of the WCED deserve enormous credit, teaching and learning in the province takes place in starkly unequal conditions. The 2009 matric pass rate for Khayelitsha was 50.5 percent. This result is worse than the Eastern Cape which averaged 51 percent. In Khayelitsha, from amongst the 19 high schools, only 26 students scored 50% or above in <em>both</em> mathematics and physical science. In other words, parts of the Western Cape are performing worse than the poorest areas in our country. Overall success in our province obscures a reality of failure in under-resourced areas.</p>
<p style="text-align: justify;">We know that schools play a key role in the textbook ordering process. However, schools are a part of the WCED, not separate from it, and the MEC has a duty to monitor administrative failure and to ensure compliance. It is wrong for the MEC to blame “individual schools”, whose staff and learners are working under very difficult conditions, and who need the active support or intervention of his department. And in the particular case of Chris Hani, EE was informed by a WCED official that the department, not the school, is at fault.</p>
<p style="text-align: justify;">The MEC’s statement refers to “an additional 15 000 textbooks to Grade 12 learners in the seven core subjects in a top-up programme”. This is positive, but bearing in mind that there were 44,931 Western Cape matrics in 2009, all requiring a minimum of 7 textbooks, it has not solved the problem. The MEC’s statement also refers to an “unprecedented second top-up programme for Grade 12 learners to identify where there may still be textbook shortages”. This confirms our concerns, that notwithstanding the undoubted efforts of the WCED, there are still a substantial number of matriculants without textbooks at the midpoint of the academic year.</p>
<p style="text-align: justify;">The deeper difficulties, faced by national and provincial education departments, and schools, are the high costs of resources such as books, and inadequate funding. EE is aware that these are largely national questions. We will work with the WCED to increase national funding for poor schools and bring the cost of textbooks down. In the meanwhile the textbook shortage for matrics in Chris Hani, KwaMfundo and other schools, must be urgently addressed.</p>
<p style="text-align: justify;">The WCED have until Friday to respond. Although we are fully prepared, we have no desire to proceed to legal action. Let’s hope the WCED inform us soon of their plans to ensure textbook delivery to the schools.</p>
<p style="text-align: justify;">Warm regards,</p>
<p style="text-align: justify;">Doron Isaacs</p>
<p style="text-align: justify;">Coordinator – Equal Education</p>
<p>021 387 0022</p>
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