Constitutional Hill

Social and Economic Rights

Sadly no one has a right to party (or to a job)

Nov 1st, 2010
by Pierre De Vos.
70 comments

The United States of America Declaration of Independence famously states that: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” (In those days women obviously had no right to be happy, but that is a story for another day.)

I have always wondered about the statement that Americans all have an inalienable right to Life, Liberty and the pursuit of Happiness. If they have these rights, why are so  many of them so angry all the time and why are so many of them so against any pursuit of happiness if it involves any fun? In my experience, there is a surprising puritanical streak among many on both the left and the right in America. While Hollywood may give us a different view, in my travels to the US I have often been quite taken aback by how judgmental some Americans can be about sexual behaviour, the consumption of alcohol and about laughing at the absurdities of life.

Teaching US students can be rather trying because one has to be so careful not to offend anyone. Cracking jokes deemed “offensive” (because it makes fun of something or someone) can be a perilous enterprise. One can easily feel as if one is in the company of Queen Victoria because so often “we are often not amused”.

I have always assumed that South Africans are a rather less uptight bunch. Many of us have personally experienced the deeply conservative Christian Nationalist era when it was illegal to watch a movie or play sport on a Sunday. Buying alcohol at a liquor store on a Sunday was also considered a sin and hence illegal.

When I was ten years old we lived in the then Orange Free State (where it was illegal for any person classified as Indian to stay for more than 24 hours) in a small town called Henneman. (What I had ever done to deserve this  fate I have never been able to tell. Maybe God just hates “fags”.)

What a great day it was when the town council of Henneman announced that it was no longer considered a sin to swim on a Sunday (probably after having consulted the dominee and the local branch of the Broederbond for guidance) and allowed the public swimming pool to open on a Sunday afternoon between 2 and 5.  The only problem was that one was not allowed to jump from the diving board on a Sunday or make a noise because that would have been disrespectful to “our Lord Jesus Christ”, the Church (and probably the National Party too).

And who will ever forget that it was forbidden for students of the Potchefstroom University for Christian Higher Education to dance on the campus and than a trainee dominee was once expelled from Potch because he had danced with his wife on campus? (This led to the old joke that it was forbidden for Potchefstroom students to have sex standing up because it might have led to dancing.)

In 1994 we ditched that absurd moral universe for something rather more open-minded, fun-loving and respecting of diversity. But that brand of Christian Nationalist morality has steadily been making a comeback. For example, (former) Arts and Culture Minister Lulu Xingwana earlier this year demonstrated just what kind of reactionary cretin she was when she stormed out of an art exhibition  because she  was offended by the “immoral” and “un-African” pictures of naked women embracing each other.

One would have thought the “liberal” Cape would be different. But, alas, the deeply conservative attitudes towards fun have now also arrived in the Cape. The city council of Cape Town, who is supposed to be positioning itself as a world class tourist city, passed a rather moralistic and counter productive by-law earlier this year that will  prohibit any bar or club from serving alcohol after 2 am (unless the city makes a special exception) and also restrict the sale of liquor on Sundays.

Sadly, our Constitution does not contain a right to party or a right not to be subjected to the parsimonious attitudes of old fogy’s pandering to conservative elements of the electorate. This means the by-law (and the Provincial Act on which it is based) is probably going to pass Constitutional muster.

Nevertheless, the by-law is reactionary, misguided and counter productive. It is reactionary because it is based on a Christian Nationalist attitude which assumes that we should all go to bed at 2 am, that having access to alcohol in a public place after 2 am would somehow turn us all into evil sinners and that God will punish us if we were allowed to buy liquor on a Sunday. We must be protected from sinning (so much for libertarianism) by the state because the state must protect us from ourselves. I thought the DA was all about people taking responsibility for themselves and making their own decisions on whether they wanted to invoke God’s wrath by dancing the night away.

The by-law is also misguided because it assumes that if one prohibits the sale of liquor after 2 am this will somehow address the scourge of alcoholism and drugs in our community. This is of course a completely irrational and mistaken assumption. Anyone who had visited the United Kingdom at the time when all bars were forced to close at 11 pm would know that earlier closing times for bars and pubs do not necessarily prevent people from getting very drunk and making fools of themselves. There is no evidence to back up the assumptions underlying this by-law.

It is clearly based not on carefully considered evidence but on assumptions prevalent amongst mother grundies who sit at home on a Saturday night and watch reruns of Who’s the Boss or some Chuck Norris movie made in 1987. Besides, alcohol will still be available, it will just not be available in a well regulated and controlled space. By passing laws that cannot be enforced properly one is just driving a problem underground and inviting gangsters and underworld figures to get even more actively involved in the “entertainment” industry.

But the worse part is that the by-law is counter-productive. Forty percent of South Africans are unemployed. One of the most labour intensive industries (and one with real potential to grow in South Africa) is the tourist industry. If we want to create jobs we need to do anything in our power to get more tourists to visit our country and our city.

Cape Town is one of the prime tourist attractions in South Africa and many tourists – especially younger tourists - specifically come to South Africa to visit Cape Town, which is supposed to be a “party city”. These younger tourists are also the more adventurous types who would not be disauded from visiting South Africa by hysterical reports in foreign newspapers about South Africa’s crime rate. But now the city has passed a by-law that will close down most party venues at 2 am and will serve as a disincentive for younger tourists to visit Cape Town.

So much for thinking creatively to help create jobs. I suppose if politicians have to choose between pandering to conservative voters and creating jobs by making Cape Town a destination that younger tourists would love to visit, the politicians will ditch the jobs and go with the votes. After all, unemployed and poor people are less likely to vote than the church-going people who have framed pictures of Helen Zille, Jesus Christ and PW Botha on their walls.

One thing is certain: This by-law will make Cape Town a less desirable tourist destination and will cost us many jobs. Why can’t politicians see the bigger picture? Why can’t they take steps to make the city of Cape Town a 24 hour city, a city that millions of tourists would want to flock to? Why are politicians so short-sighted that they adopt laws that will kill employment instead of creating it? These people really do not have a clue. They realise that the use of  tik is a huge problem in our city and instead of addressing the causes of tik addiction they take popular but utterly destructive and useless actions like adopting a by-law that will in effect close down the city at 2 am in the morning.

Well, in Brazil the party goes on for the whole night, so many of the tourists who would have flocked to Cape Town will go to Brazil instead. And many people who would have been employed in the tourist industry will remain unemployed. Who knows, they might just sit at home and starve. That would be what our politicians would hope for. But the politicians might be mistaken and the unemployed might not sit at home and starve but might join a gang to sell tik or to come into your house and steal your TV or pump ten bullets into your head.

Surely, unemployment is one of the biggest dangers facing our society and is also one of the most morally reprehensible aspects of our country. Does that not mean that whenever the national, provincial or local government makes a decision it should consider what the impact of that decision will be on unemployment. Are we really serious about making our society fairer and making it work better if even a city council who is supposedly well run cannot think further than their noses?

On shooting the messenger and cadre deployment

Oct 28th, 2010
by Pierre De Vos.
242 comments

When the scandal first broke Western Cape Premier Helen Zille was obviously in a fix: The DA-led Cape Town city council had built toilets without walls for black citizens living in the Makhaza area and the South African Human Rights Commission (HRC) had found that the city was in breach of the rights of those citizens. For the ANC - in complete organisational disarray in the Western Cape – this came as a godsend and the party and its Youth League made full use of this political gift by the DA to paint the DA as a callous party with absolutely no understanding of poverty and no respect for the dignity of black citizens.

After all, the DA city council had not expected white residents to use toilets that are open for all to see, so this move looked at best like the DA had no understanding of the problems faced by many poor and black residents of the city and at worse like sheer racism. Can anyone imagine the DA providing white residents from Sea Point with toilets which would require them to relieve themselves in the open air in full view of their neighbours? Can anyone imagine that the DA would be callous enough to call such toilets “loos with a view”?

Obviously, no one who is honest would be able to say that they could imagine such a thing. For one thing, my scary Aryan-looking DA Councillor, JP Smith, would never have allowed such “immoral”, “barbaric” and “lewd” behaviour in Sea Point and would have ordered the police to arrest any resident who had demanded to shit on the Sea Point promenade long before that resident would have been able to finish his business in peace (while enjoying the lovely view of Robben Island in his “loo with a view”).

So, Helen Zille was in a fix: the toilet scandal was threatening to become a metaphor for everything that seemed wrong with the DA. It was reinforcing the view amongst most progressive white South Africans and the vast majority of the African population that the DA had one standard for whites and another for black South Africans.

But what could Premier Zille do? 

Well, she used the oldest political ploy in the book by shooting the messenger. By doing that she obviously hoped to change the topic. After all, it used to work for Thabo Mbeki (another arrogant, principled and intelligent person who did not like to be told that he had been wrong) who shouted racism to deflect attention from his bizarre views and the terrible failings of some of his cabinet ministers. That is when Premier Zille penned one of her diatribes against the HRC, stating that:

The HRC is quickly becoming as discredited as the Public Protector was when Mushwana held that office. One just has to read the extraordinarily biased and factually inaccurate report of the HRC on the Makhaza toilet saga to understand the agenda. The report’s analysis and conclusions are impossible to explain rationally. The inevitable inference is that the report’s purpose is to embarrass the DA and benefit the ANC. There is no other credible explanation in the light of the facts.

The only problem was that the above statement was demonstrably false. Zille was either very ill informed or she was lying. The secret report by the DA controlled city council forensic department confirms that the Premier had attacked the HRC unfairly and wrongly. The report makes for quite surprising reading and completely refutes the statement by Zille quoted above.

Residents were forced to sign “happy letters” that officials could use to “prove” that the open toilets were accepted by the residents. I know what I would have told the city what to do with such a letter had they built me a toilet without walls and then asked me to sign a “happy letter” to prove that this was what I wanted (but I am upper middle class and white, so I am probably not going to be intimidated by Dan Plato and his merry men). As the report also found, the letters actually “do not indicate whether the beneficiaries are satisfied or dissatisfied with the toilets”.

Moreover, the Report found that the city had failed to keep formal minutes of meetings where the scheme was discussed as required by the National Housing Code (which places a question mark over claims by the DA that sufficient consultation with the community ever took place.) It also confirmed – as I have argued elsewhere – that provisions of the Water Services Act were not complied with.

So it turns out that – contrary to what the Premier had claimed – the analysis in the HRC Report and its conclusion was easy to explain rationally. After all, the city council’s own report came to much the same conclusion as the HRC Report. As the Report came to the same conclusion as the city’s secret report, the claim that the HRC report was aimed at embarrassing the DA was therefore not sustainable. This is when Premier Zille changed direction slightly and tried to make the argument about cadre deployment and not about her rather embarrassing, hysterical and untrue claim about the HRC and the malicious intent of its Report.

This was both short-sighted and, so it seems to me, dishonest. Premier Zille at this point could have owned up to the original mistake and could have said: “I was wrong. The HRC Report findings were credible. I apologise to the HRC and those I had attacked about this issue.” Instead – like an over excited  poker player – she raised the stakes and attacked Janet Love because Love had been on the ANC NEC before she took up her post as a HRC Commissioner.

This was clever but devious. If we all argued about whether Janet Love was a saint or an evil cadre of the ANC, we would forget the original statement by Zille which now turned out to be false and probably defamatory. We would also forget that the statement probably constituted a criminal offence in breach of section 18 of the Human Rights Commission Act. But some of us remember that first outburst, hence this post. Will the Premier apologise to the HRC and admit that the HRC Report was fundamentally correct? I doubt it, but it is worth asking I guess.

Meanwhile Zille has managed to do immense damage to the DA’s reputation. It was just beginning to gain some credibility outside its usual support base before this saga (and how it was handled) reinforced the suspicions of the majority of South Africans that the DA was a “white” and “racist” party. By abusing the issue of cadre deployment in this way, Zille has also made it more difficult to be taken seriously on the important issue of the dangers of cadre deployment. Who is going to listen to her the next time she natters on about cadre deployment? Most sane people will just assume that she is trying to change the topic and is shooting the messenger again.

The fact is that cadre deployment by the ANC is a huge problem – just not in the way that Helen Zille claimed it to be in her diatribe against Janet Love and the HRC. The biggest problem with cadre deployment is that completely unqualified and subservient ANC cadres are sometimes appointed as city managers, in other positions of immense importance for service delivery, and in positions in independent institutions. 

Poor people (and sometimes middle clas people too)  suffer when a city manager without any skills is appointed because he knows the ANC secretary in the region. When that manager cannot actually manage a town or city, the roads deteriorate, the lights go out the sewerage spill out into the streets and not even open toilets are built for the people who need them.

The problem is not necessarily that the person is an ANC member or even that he or she is someone who used to be in a leadership position in the ANC. After all, Albie Sachs, Pius Langa, and – yes – Janet Love all used to be in leadership positions in the ANC and I DARE anyone to suggest that any of them had not served or do not continue to serve the people of South Afric in an exemplarily fashion.

If we are going to say that ANC members or former ANC leaders can never be appointed to any important positions, we will have very few people of any integrity and principle left to appoint – given the fact that two thirds of voters support the ANC and given the ANC’s dominant role in the anti-apartheid struggle. That will only leave us with DA members or people without any leadership skills to appoint to important posts in our society. And let’s face it, I would far rather have a Pius Langa as Chief Justice than a Tertius Delport. And I would far rather have a Janet Love on the HRC than a Dan Plato or a Rhoda Kadalie. In terms of intellect, skills and integrity, the former “ANC cadres” are vastly superior to the possible DA hacks.

The problem is NOT – as Helen Zille claims – that ANC members or former ANC leaders are appointed to important positions. The problem is that some ANC-aligned individuals are appointed to positions for which they are manifestly not qualified and that some ethically challenged and unprincipled individuals who have joined the ANC to make money are appointed to important positions. But perhaps because Helen Zille used cadre deployment to try and escape responsibility for her own duplicity, she cannot make such a distinction. This kind of naked politicking does immense damage to the power of a more nuanced and important argument about the dangers of the kind of cadre deployment that I highlighted above.

And by not making such a distinction and by abusing the cadre deployment card (the DA version of the race card), Zille makes it far more difficult for the rest of us to argue against the wrong and destructive kind of ANC cadre deployment that negatively affects the lives of both rich and poor South Africans.

Dan Plato’s Republic and the chamber of secrets

Oct 21st, 2010
by Pierre De Vos.
123 comments

Secrecy, so it seems, is a contagious disease – and it is spreading fast throughout our body politic. At first the disease was contained to the ruling party (or so the media led us to believe), but now it has also spread to the Democratic Alliance (DA) and Mayor Dan Plato’s Republic here in Cape Town. If we do not stop this disease in its tracks, our democracy will suffer.

Everyone in South Africa - except, perhaps, for the Chief State Law Advisor, one or two ANC MP’s and, I suspect, one or two inmates of Valkenburg – are well aware that if the proposed Protection of Information Bill is passed in its current form it will empower officials to classify documents to hide corruption, maladministration or other information that might embarrass the political party in charge of a municipality, province or the national government.

But because secrecy is so contagious this has not perturbed some politicians from defending the Secrecy Bill and from attacking those who demand democratic accountability. I am reminded of the immortal words of that serial floor-crosser and ANC MP Cecil Burgess, the chairperson of the ad hoc committee handling the Protection of Information Bill, who complained that some people were overreacting to the Secrecy Bill because they were “obsessed with openness”?

Then there is the Minister of Defence, Lindiwe Sisulu, who was also struck by the secrecy bug and refused to provide the National Assembly Portfolio Committee of Defence with reports that she is constitutionally required to provide to it. I had hoped that this was not a serious illness but, alas, I was wrong and last week it became apparent that the Minister is suffering from a very serious bout of secrecitis when she refused to provide details about President Jacob Zuma’s official trips taken on his Presidential jet or on other state provided flights. The cost of all of these trips as well as the number of passengers accompanying him on the trips are now all state secrets.

I would, of course, not want to second guess the Minister who must surely have a very good reason for not revealing the cost of these trips to the public who is paying for them through the tax system. Who knows, maybe this information will be used by the Lesotho navy when that country decides to invade South Africa one day. Once information about the cost of past trips taken by our President are in the hands of the Lesotho navy, they might use this in a devious and dangerous manner to determine the state of mind of our President in order to time their invasion for maximum effect. (Maybe there are other reasons for this secrecy but if there are, I am far too stupid – or perhaps honest – to think of any such reasons.)

And yesterday, Khayelitsha members of the Social Justice Coalition picketed outside the Cape Town Civic Centre, demanding that the DA-controlled city release a “secret” report compiled after an internal investigation into the Makhaza toilet scandal. The coalition said the city told it that the city had “no responsibility” to release the report – but the coalition will not accept that.

Now, if only that Protection of Information Bill had already been passed, the city could have classified the report as secret or top secret (the secrecy being in the “national interest”, you see) to prevent the bloody Social Justice Coalition from demanding that the DA practice what it preaches. Unfortunately for the City, the Bill has not been passed yet, so it is still required to release the report and cannot hide behind the Secrecy Law.

I am sure that the City of Cape Town might argue that section 44 of the Promotion of Access to Information Act (PAIA) allows it to withhold the report because it contains “an opinion, advice, report or recommendation” obtained or prepared “for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law”.

But in probably one of the greatest ironies of the past ten years, I am not sure that the city council would be successful with such an argument. This is because section 46 of the same Act states that where the disclosure of the record would reveal evidence of a substantial contravention of, or failure to comply with, the law; or an imminent and serious public safety or environmental risk; and the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question, the information has to be released – even if it was obtained in order to formulate public policy.

Like many of us, the DA has argued that one of the biggest problems with the Secrecy Bill was that it did not contain such a public interest override clause. Here one can see very clearly why such a public interest override clause might be necessary. Ironically, in the case of PAIA, this very clause will now make it rather difficult for the City of Cape Town to keep the report secret, given the fact that DA councillor Owen Kinahan himself had said that the actions by the city council on which the report was based was probably unlawful (an argument I made on this Blog as well).

One might therefore be forgiven for suspecting that the report contains information about unlawful action and that the public interest in making the report public far outweighs any harm that might ensue if it is made public. As far as I can see the only harm that will be done might be to the reputation of one Helen Zille who might look like a rather paranoid and dishonest person if a report commissioned by her own DA controlled government found that the city had acted unlawfully (much like the Human Rights Commission Report did). Unless of course the report says nothing of the sort, in which case there would be no reason to keep it secret.

Without wanting to, the DA is thus demonstrating to the ANC why a public interest override clause is so important and why it should also be included in the Secrecy Bill.  

Seeing that the DA is allegedly a principled and consistent party, one would assume that it would release the Makhaza toilet report forthwith as it is in the public interest to release any report to the public that might expose unlawful activity on the part of a public official or institution.  Of course, if the report suggests that the City Council had acted unlawfully (in contravention of the Water Services Act), then it would really embarrass Helen Zille who has been arguing that a finding to that effect by the South African Human Rights Commission are so proposterously wrong that they were part of an ANC inspired plot.

But surely the DA would put principle before the short term consideration of trying to protect its leader from looking like a complete fool? Surely it has PRINCIPLES?  Surely it would not use taxpayers money to try and prevent the release of the report, given the fact that the party has always insisted that when the ANC does this kind of thing the ANC is acting in a completely unacceptable and dishonest manner?

Personally I cannot wait to read what is in that report and whether it agrees with the Premier or not. And if the DA does not release the report, well, then it would be a bit difficult ever to take it seriously again when it complains about the unprincipled and wasteful ANC government.

(Not even) the Queen Bee is above the law

Oct 11th, 2010
by Pierre De Vos.
130 comments

Maybe it is true that in any set-up there can only be one Princess, but that does not mean that there is no place for other Royalty in our politics. We all know in South African politics the role of Princess has been taken on by Lindiwe Sisulu: her royal highness, her imperial and impervious majesty who rules over her (ever-expanding) chamber of secrets with her iron fist (and with the assistance of a fugitive from justice).

But now we also have a Queen Bee in the guise of Western Cape Premier Helen Zille, throwing her Royal weight around and acting like a spoilt sovereign. Like Sisulu, Zille also seems to think that she is somewhat above the law and far too good to follow the rules that she insists others adhere to.

Good heavens, Royalty MAKE the rules, they do not need to follow them. 

According to Zille the South African Human Rights Commission (SAHRC) has been doing the bidding of the ANC,  becoming a “political hit squad” orchestrating an ANC-inspired “smear campaign” against the poor, poor (much misunderstood and vilified)  DA. According to her Royal Highness (that Queen of Bees with the sting to match), this institution, stuffed with ANC deployees such as Janet Love, only investigates complaints against the DA-led institutions, choosing not to pursue complaints against the ANC-led institutions (see here and here for the words of the wise one).

The SAHRC hates the DA, see. No wonder they make legal findings against DA-led municipalities. But these attacks come as something of a surprise. Less than two weeks ago the DA-led Cape Town city government accepted an award from the SAHRC, saying the following in a media release in relation to the award:

The City of Cape Town was commended for outstanding work in putting the necessary mechanisms in place to promote openness and responsiveness within the establishment. The City was further recognised for its ‘sterling work in going beyond the call of duty in implementing PAIA and putting other mechanisms in place that not only influence the implementation of PAIA, but also influence the responsiveness and openness of other municipalities in South Africa as well.

So, two weeks ago the SAHRC gave the DA-run City of Cape Town an award, which the DA bragged about. Now the DA believes that the SAHRC is a lackey of the ANC. The same SAHRC who took a stand against the Secrecy Bill (in opposition to the ANC) and bestowed an award to the DA City Council is part of a plot by the Dark Lord Sauron himself to discredit Zille and her sidekick, the tongue tied Dan Plato. (I am reliably told that Smiegel, that slimy ANC-lackey from Lord of the Rings, is also plotting to get his grubby little hands on Zille’s – white - halo and that Zille is up half the night thwarting these devious plans. )

The reason why Premier Zille is now attacking the credibility of the SAHRC is not too difficult to determine. In one of her Thabo Mbeki-like Internet letters (has anyone noticed how she is turning into a DA version of Thabo Mbeki: intelligent, energetic, fearless, paranoid, vindictive and with a penchant for breaking the law), she claimed that the SAHRC is quickly becoming as discredited as the Public Protector was when Lawrence Mushwana held that office and noted:

One just has to read the extraordinarily biased and factually inaccurate report of the HRC on the Makhaza toilet saga to understand the agenda. The report’s analysis and conclusions are impossible to explain rationally. The inevitable inference is that the report’s purpose is to embarrass the DA and benefit the ANC. There is no other credible explanation in the light of the facts.

Well, with respect to Helen Zille, she is either very badly informed or she is lying. The SAHRC report on the Makhaza toilets, while embarrassing to the DA-run city, is very logical and easy to explain “rationally” (or on any other legal basis).  The report conforms perfectly with the Constitution, the jurisprudence of the Constitutional Court and the relevant legislation. Only Zille and her overtly defensive advisers (Gareth, are you there?) seem to think otherwise.

Maybe they need a constitutional lawyer to help them see past their own paranoia and hypocrisy to help them face the fact that the DA has broken the law. Then the party may start respecting the Constitution and its leaders will stop saying things that seem not only untrue but, in the long term, politically rather counter-productive.

The SAHRC Report took into account several rights – including the right to dignity, housing and the right to sufficient food and water – and found that while the City’s project to provide flush toilets for all residents was “reasonable and indeed commendable, the manner in which the project was implemented (no enclosures or walls for the toilet facilities) was not reasonable”. It also found that the City had infringed on the human dignity of  complainants and that there was not adequate consultation around the implementation of the project.

For anyone with even a passing knowledge of the jurisprudence of the Constitutional Court, these findings would not be controversial. The same cannot be said for a paranoid and defensive Premier who sees a Communist/ANC-lackey under every bush. In the Grootboom case Justice Yacoob said the following about the interrelationship between the right to human dignity and social and economic rights:

The proposition that rights are interrelated and are all equally important is not merely a theoretical postulate. The concept has immense human and practical significance in a society founded on human dignity, equality and freedom. It is fundamental to an evaluation of the reasonableness of state action that account be taken of the inherent dignity of human beings. The Constitution will be worth infinitely less than its paper if the reasonableness of state action concerned with housing is determined without regard to the fundamental constitutional value of human dignity.

In this particular case the right to dignity and the right of access to housing and water must be read together (as required by the Constitutional Court and as done by the SAHRC in its Report) to determine whether a breach of the Constitution occurred. As is clear from other case law, where these rights are further amplified and protected in legislation, the obligation on the state (in this case the Cape Town Municipality) becomes even more clear-cut.

Well, it so happens that section 3 of the Water Services Act no 108 of 1997 states that “everyone has a right of access to basic water supply and basic sanitation”. Section 5 states that “if the water services provided by a water services institution are unable to meet the requirements of all its existing consumers, it must give preference to the provision of basic water supply and basic sanitation to them”. The Act therefore requires municipalities to give priority to the provision of basic water and sanitation to all before given the best services to some and not the minimum service to others.

The minimum standard for basic sanitation services which a municipality is constitutionally and legally required to provide is defined in the regulations accompanying the Act as:

the provision of appropriate health and hygiene education; and a toilet which is safe, reliable, environmentally sound, easy to keep clean, provides privacy and protection against the weather, well ventilated, keeps smells to a minimum and prevents the entry and exit of flies and other disease-carrying pests.

So, apart from being in breach of the constitutional provisions that guarantee human dignity, privacy and access to housing and water, the DA-led Cape Town City Council has also been flouting the provisions of the Water Services Act when it built open toilets without any walls for the people of Makhaza.

The Act does not provide a City Council with the right to give residents a choice of an open toilet for every household or a closed toilet to be shared by several households. A city council has a legal duty to provide toilets for all and these toilets must comply with minimum standards which require that the toilets be enclosed. Legally, the option of open toilets is not open to the DA or any other party. (Even in an open oportunity society, the law requires municipalities not to provide residents with the opportunity to relieve themselves in public.) The DA broke the law by building those toilets. Zille probably knows this. Now she is attacking the SAHRC to try and deflect attention away from this embarrasing illegal act.

One does not have to be an ANC lackey to know this. One must just have a working knowledge of the Constitution and the law. To claim, as Zille did, that the SAHRC Makhaza report’s “analysis and conclusions are impossible to explain rationally” is therefore not a statement that could, by any strech of the imagination, be called true. Either Zille is clueless, or she is being dishonest. And once it is conclusively established (as I did above) that the SAHRC Report is legally sound, the allegations of a dark plot by the SAHRC also become rather absurd and juvenile.

Goodness knows, the SAHRC is not perfect. Like our judiciary its actions or ommissions can and must be criticised. Zille has every right to criticise the reasoning of the SAHRC in their Makhaza report. Sadly this she never did. She just claimed the report was so irrational that it had to have been prepared as part of a dark ANC plot. We are still waiting to hear why it is irrational. What legal principle was wrongly applied? Does the Water Services Act not apply in the Republic of the Western Cape?  Zille has never said. This is not a surprise because her claim is spurious and demonstrably false.

Some defenders of the Premier might argue that the SAHRC has not investigated complaints about ANC abuses as vigorously as it did those complaints of abuses by the DA. If this is true, then the SAHRC must do its job properly and must investigate allegations of ANC abuses. If it fails to do so, Zille is entitled to criticise this failure (without defaming the Commission or the Commissioners and without launching ad hominem attacks against the Commission, of course). Constitutional democrats criticise acts or ommissions by independent institutions, they do not call into question the credibility of those institutions – thereby probably commiting a criminal offence. If one does question the credibility of an independent constitutional institution, one is an enemy of our constitutional democracy.

Of course, the argument put forward by Zille that a perfectly legitimate and – I would say legally incontrovertible – finding by the SAHRC was written merely to embarrass the DA, “cannot be explained rationally”. It is like Y complaining about being prosecuted for bribing a politician because X also bribed a politician and was never prosecuted. That is not a defence. It is merely an admission of guilt masquarading as a plea of innocence. If Zille did not want the SAHRC to make a finding against her party she should have obeyed the Constitution and the law. Surely that is not so difficult to fathom – especially not for the self-styled Queen Bee defender of the Constitution?

In any case, I am a bit worried about Zille, as she might have committed a criminal offence with her scurrilous and unfounded attacks on the SAHRC and its Commissioners. Section 18(d) of the Human Rights Commission Act prohibits any person from “defaming the Commission or a member of the Commission in his or her official capacity” while section 18(i) makes it a criminal offence for a Premier to fail to afford the Commission “such assistance as may be reasonably required for the protection of the independence, impartiality and dignity of the Commission”.

Zille is alleging that the SAHRC and its Commissioners are failing to fulfil their constitutional and other legal duties because of a criminal loyalty to the ANC. That seems pretty defamatory to me and she could probably be prosecuted successfully under section 18 of the Act. But as she has shown in her response to the Makhaza toilets scandal, she thinks she – unlike members of the ANC - is above the law and need not comply with the obligations imposed on her by the Constitution and the ordinary laws of the country.

Unfortunately that attitude is undemocratic, threatens respect for the Rule of Law and for the Constitutions and the institutions created by it, and shows a contempt for the need to be accountable to other independent institutions. According to Zille, only the ANC, so it seems, are required to be held accountable by independent organs, as the DA is already perfect and is therefore not required to account to anyone – especially not an institution who makes a finding that you disagree with. 

Why would one be accountable to the SAHRC if one can discredit them instead? Then one never has to explain why one disregarded the Constitution and disobeyed the law. Surely this kind of behaviour is better suited to an absolute monarchy than to a constitutional democracy.

But we do not live in an absolute monarchy (nor a beehive). We are all bound by the law and the Constitution – even the DA. Now, which of Zille’s advisers are going to pluck up the courage to tell her that she is acting like the Emperor who is not wearing any clothes.

Gareth, are you still there?

On going to school in a mud hut

Oct 1st, 2010
by Pierre De Vos.
131 comments

It has been sixteen years since the ANC took over the government in 1994. During these sixteen years the ANC government has done many good things. It has built more than a million (small) houses, provided access to water to many more people, extended the social grants system to benefit millions of poor South Africans, provided free health care to pregnant mothers and young children, rolled out a comprehensive ARV programme to save the lives of many people living with HIV (after some criminal prevarication on the part of Thabo Mbeki and Manto Tshabalala-Msimang), instituted a school feeding scheme and created a powerful anti-corruption unit called the Scorpions.

Sadly it has also evicted many other South Africans from their houses or from their land, installed pre-paid water meters in many poor household to allow municipalities to cut off water supplies if those poor people cannot pay for the water they need to survive, forgot to build new power stations or maintain electricity grids which have left people without electricity for hours or days on end, and allowed the health care system to deteriorate.

But all is not doom and gloom.

Our government has been extremely efficient in buying expensive cars for Ministers and MEC’s, abolishing the Scorpions who had the bloody cheek to investigate corruption by ANC leaders, refurbishing the offices and houses of politicians with state of the art fittings and furniture (although it has, admittedly, been a bit slow to buy a fancy bed for the Minister of Communication Siphiwe Nyanda who was then forced – the poor man – to stay in the Mount Nelson and other top class Hotels for six months), dishing out tenders to friends and family members (which allowed the tenderpreneurs in one instance to charge R27 for a loaf of bread) and  organising “fact finding trips” to wonderful locations like Dubai and China to make sure our politicians remain up to speed with the latest developments in other cutting edge and progressive democracies (or to inspect their construction sites and cranes).

What remains incomprehensible is that it has not shown the same urgency in fixing the education system it inherited. Education in South Africa during the apartheid era was designed to keep black South Africans subservient and to promote the interests of whites. In the 1970s the government’s per-capita expenditure on a white child was ten times more than its per-capita expenditure on a black child. This means that for every R1000 spent on a white child it would spend R100 on a black child.

Maybe there is not a lot of money to be made by tenderpreneurs in this area of government, but it is beyond me that, sixteen years after the advent of democracy, children in the Eastern Cape still go to school in mud huts without reliable access to running water. Surely, if there was ONE thing the government needed to tackle with all the urgency and efficiency it could muster, it would have been the building of classrooms to house poor rural school children and the general improvement of the standard of education provided to the majority of South Africans who do not go to former model C schools.

Now the Eastern Cape government is being sued by seven mud schools in the OR Tambo district to compel it to provide the schools with infrastructure. Driven by the Centre of Child Law (CCL) and the Legal Resource Centre (LRC), the schools want the court to declare the failure by both national and provincial government to provide proper facilities unconstitutional. They have also taken the OR Tambo Municipality to task for failing to provide water to the schools. Six of the seven schools have classrooms built from mud, while one has classrooms made of cinderblocks. All seven face shortages of water, desks and chairs.

This week the government filed papers in the Bhisho High Court giving notification to oppose the action. Provincial government spokesperson Mzukisi Ndara said that it was common cause that government had prioritised the issue of eradication of mud schools. “We concur that (mud schools) are the priority areas and that has been pronounced in all policy speeches,” Ndara said.

Well, after sixteen years, surely, speeches are not enough. We have heard all the speeches and read the policies. We do not believe these speeches and policies anymore and do not believe that something will be done. It is easy to talk, but it is a bit more dificult actually to stop talking and to start addressing the problem. These words therefore ring hollow.

Children who have to be taught in mud huts (while politicians drive around in R1 million cars while claiming that there are “resource constraints” preventing the government from addressing this problem) might be forgiven for laughing cynically every time a politician gives a policy speech in which he or she claims to have prioritised this issue. Time for speeches are surely long past. How about getting off your buts (and out of your airconditioned offices and cars) and actually doing something about the problem? Just a thought.

Section 29 of the South African Constitution states that: ”Everyone has the right to a basic education, including adult basic education”. Unlike some of the other social and economic rights relating to housing, water and health care, this right is not qualified. Section 29 does not say that everyone has a right to “have access” to basic education. Neither does it say that the state only has a duty progressively to realise this right by taking reasonable measures within the available resources of the state. 

The Constitutional Court has not yet had the opportunity to provide a comprehensive interpretation of this section of the Constitution. The case that will be heard by the Bisho High Court is therefore potentially of great significance. It might eventually afford an opportunity for the Constitutional Court to provide an authoritative interpretation on the scope and content of the right to basic education and might set out in more detail what duties the state have immediately to give effect to this right.

If this happens, will the Constitutional Court grasp the nettle and rule that the state has a duty immediately to provide every child with free basic education of a minimum standard? Or will it falter and forsake our children by reading a qualification into section 29 to give the government more time progressively to provide basic education to everyone? Will it allow the government to hide behind the excuse that there are not sufficient resources to ensure that every child in South Africa goes to school in a brick structure where running water is available? Will it examine the policies and the speeches of the politicians and conclude that they are doing a reasonable job and that the court can therefore not intervene?

I sincerely hope not. There is a reason why the drafters of the South African Constitution dealt with the right to education differently than with the other social and economic rights. The drafters understood that a lack of education is the root cause of poverty and crafted this provision in such a way that it placed an immediate obligation on the state to provide an adequate standard of education to every child – whether that child lives in a deep rural area in Lusikisiki or in Constantia or Sandton.

Now, it might be argued that courts are not institutionally equipped to intervene in such matters and that it should not make orders that would have budgetary implications – even when that order is to force the state to build a school. But the Constitutional Court has shown, amongst others in the Khosa case, that where the state provides a social and economic benefit in terms of its constitutional obligations it cannot do so in a discriminatory manner. Where it does provide the service in a discriminatory manner, the court can intervene – even when this will have budgetary implications – to ensure that the benefit is provided to all on an equal basis. 

It is a sad fact that sixteen years after the advent of democracy it is still the case that if one’s parents are middle class or even if one lives in a city, one will probably receive a much higher quality of education than if one happened to be poor and living in a rural area. As far as I know, even in the worst schools in Cape Town, no one is forced to be taught in a mud hut at a school with no running water.

Of course, even in relatively well-resourced cities like Cape Town there are vast discrepancies between the facilities of former model C schools - who often have libraries, laboratories and extensive computer facilities – and township schools where children are condemned to a second class education. Why the state has not addressed this problem more energetically, is also a mystery to me. 

Perhaps because the politicians send their children to the former Model C schools or private schools (after all, it would not do for the driver to drop off one’s child in the BMW or Mercedes Benz at a township school), the vast gap in the quality of education received by South African children has not been addressed in any systematic way. As I see it, this failure constitutes an infringement not only of section 29 of the Constitution, but also an infringement of section 9 which prohibits unfair discrimination on any ground including race.  

Hopefully our courts will be innovative in this regard and will define the scope and content of the obligations engendered by section 29 in such a way that the government is held accountable for its disastrous failure to improve the standard of schooling for a majority of South African children, while at the same time respecting the principle of a separation of powers. I am not pretending that finding the right balance will be easy. But public confidence in our judiciary can only be boosted if our Constitutional Court demonstrates a willingness to hold the government accountable for the lack of transformation in our education system.

Human Rights Commission pro-poor stance must be applauded

Jun 21st, 2010
by Pierre De Vos.
399 comments

The South African Human Rights Commission (SAHRC) were lambasted by DA leader Helen Zille for finding that the City of Cape Town had violated the dignity of residents of Makhaza by not enclosing the toilets it had provided to them and for not adequately consulting with the community about the issue. Zille said in an interview that the City of Cape Town was being “selectively targeted” by the Human Rights Commission.

Her informal side-kick, Rhoda Kadalie, went further, saying that the finding of the SAHRC demonstrated that the the body was singing the ANC’s tune.

Such attacks on the integrity of the SAHRC are rather startling, as the body is an independent watchdog created by the Constitution. The Constitution states that “other organs of state, through legislative and other measures, must assist and protect” the SAHRC to ensure its “independence, impartiality, dignity and effectiveness”. The Constitution also states that “[n]o person or organ of state may interfere with the functioning of these institutions”.

Like any court judgment, a decision of the SAHRC is, of course, not beyond criticism. Anyone – including the leader of a political party – is entitled to analyse the reasons given for a decision by the SAHRC and to criticize that decision on the basis that the legal principles set out by our courts were not applied correctly. But in the absence of conclusive proof that the decision by the SAHRC was biased and hence tainted by political considerations, a personal attack on the integrity of the Commission undermines one of the constitutional institutions and hence undermines respect for the Constitution itself.

Are there good legal reasons to argue – as Zille and Kadalie in effect did – that the decision of the SAHRC can be dismissed because the SAHRC was selectively targeting the DA? This view can be sustained if similar complaints lodged with the SAHRC regarding the failure of ANC-run municipalities to provide access to adequate housing, health care and sufficient food and water were never investigated, or investigated and dealt with differently than the complaint against the DA municipality.

I have been unable to find any proof that the DA or anyone else had indeed lodged such complaints against ANC run municipalities in the past, let alone that such complaints were dealt with differently than this one against the Cape Town City Council. Maybe the DA can provide proof of such complaints being lodged and can demonstrate that the SAHRC dealt differently with these complaints, but they have not yet done so. If they are unable to do so, the statement by its leader seems deeply troubling and disrespectful of the Constitution.

But are there nevertheless, despite a apparent lack of proof that the SAHRC has not dealt with similar complaints against the ANC in the same manner, good reasons to find fault with the SAHRC finding? Can one argue, without fear of being accused of undermining a constitutional institution, that the body was overzealous in its finding because the DA city council was involved?

After studying the SAHRC Report, it is difficult for me to come to that conclusion. The Report correctly points out that the rights in the Bill of Rights place both a negative obligation on the state NOT to interfere with the existing enjoyment of rights and a positive obligation on the state to take steps to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures toward the full realisation of the rights.

The SAHRC report also correctly points out that in the Grootboom judgment the Constitutional Court held that “the Constitution required the state to put in place a comprehensive and workable plan in order to meet its socio-economic rights obligations…the program must,…, be balanced and flexible and must make appropriate provision for attention to short, medium and long term needs” and that the Court held further that the “programme must be reasonable both in conception and implementation…”

In Grootboom, the Court argued that where a programme failed to take account of the needs of the most vulnerable and marginalized, either in the manner it was devised or implemented, it might well be unreasonable and hence unconstitutional. The following conclusion by the SAHRC is therefore entirely plausible (although not the only conclusion that could possibly have been drawn):

while the City’s project to provide flush toilets for all residents is reasonable and indeed commendable, the manner in which the project was implemented (no enclosures or walls for the toilet facilities) was not reasonable. Furthermore while it is accepted that the measures employed were intended as temporary solutions to a situation that needed to be urgently addressed, the situation persisted from 2007, a period of just under three years….No provision was made for those who were unemployed and poor and could not fund the enclosure of their own toilets. Issues of access for those with disability and issues of safety for those most vulnerable to violence in terms of the structure such as ensuring they were well lit do not seem to have featured in the planning and implementation of this project.

One might argue that the SAHRC – like some High Court judgments dealing with cases regarding access to water and electricity – went slightly further than the Constitutional Court jurisprudence (strictly applied) would allow. Its reliance on human dignity – instead of the social and economic rights provisions – to find that the Cape Town City Council had failed to meet its constitutional obligations, is not particularly plausible. And like the South Gauteng High Court in the water meters case, it seemed to imply that the state had a duty to provide a minimum core of services – something that the Constitutional Court had rejected.

However, to my mind the SAHRC should be applauded for this pro-poor approach – not derided for being a lackey of the ANC. In cases where the High Court made innovative use of the social and economic rights jurisprudence, I have applauded the relevant judge for advancing a pro-poor agenda, so it would be hypocritical of me not to applaud this decision of the SAHRC for doing exactly the same thing.

Certainly, if the ANC had derided the various High Court judges who had found against ANC controlled municipalities in social and economic rights cases and if an ANC leader had labelled the judge involved in such a case a lackey of the DA merely for using an innovative approach to social and economic rights enforcement, few right thinking people would not have been outraged by this attack on the integrity of the courts and the disregard for the Constitution.

A political party (or anyone else, for that matter) who is truly concerned about the plight of the poor and about a lack of service delivery would have applauded this finding of the SAHRC and would have relied on it in future to try and expose the possible unreasonable and unconstitutional failure of other municipalities. A pro-poor political party would not have acted in the paranoid and defensive manner of the DA leader and would not have alluded to alleged conspiracies to excuse their own actions which the SAHRC found wanting.

The SAHRC finding is of course not binding, but that body has a constitutional mandate to monitor the enforcement of social and economic rights. In the past the SAHRC has not always fulfilled this mandate with sufficient vigor. This is partly because it has not received many complaints about the failure of municipalities to fulfill their social and economic rights obligations. But with this finding the SAHRC has shown that it would be willing to push municipalities and to call them out where they fail to implement service delivery programs in a reasonable manner.

This willingness on the part of the SAHRC to fight for the interests of the poor and marginalized is something to be celebrated. The fact that the DA leader saw it differently, will reinforce the perception that the DA is more interested at scoring cheap political points and defending its own political brand in a paranoid and defensive manner than in advancing the rights and interests of the poor. No wonder the DA has been unable to capitalize electorally on the infighting, nepotism and disarray in the ANC.

What poor person is going to believe that the DA is truly fighting in their corner if this is how the party reacts to a pro-poor finding from an independent constitutional institution?

Not the South of France

May 26th, 2010
by Pierre De Vos.
73 comments

Several years ago I attended a conference where a French academic delivered a paper on the etiquette of soliciting anonymous sex in public toilets in the South of France. I listened in amazement as the academic gave a rather erudite and learned presentation (relying on the work of French philosopher Michel Foucault), in which he argued that there were very strict but unwritten rules to be adhered to when engaging in such a noble pursuit.

Little did I realize then that one day I, too, would have to write about toilets.

However, the toilets I have to write about are not situated in the South of France, but in the Makhaza area of Khayelitsha. The DA city council had erected these toilets almost three years ago but, so they claim, they could only afford either to build one walled toilet for every 5 households or to provide each household with a toilet without the walls. When it came to light that the DA had built these toilets without walls, the city councils got a big fright because it suddenly realized how callous this looked and arranged for the toilets to be partitioned off.

The ANC Youth League in the Western Cape understood that the bare toilets were a potent symbol of neglect and even racism and could be used to mobilize voters, so its members tore down the partitions, leaving the poor residents exposed again. Asked what right they had to destroy structures when residents had agreed that the city should fix its mess, Ward 95 Development Forum leader Andile Lile said a community meeting on Sunday had decided to reject the enclosures. ”We’ve been given a mandate by the community to fight against this,” he said.

Pressed about the fact that residents had signed an agreement and had a right to choose, Lile said: “I believe in majority rule. It must be a principle position for all of us here and not for individuals. The majority does not want this and we cannot accommodate individuals who betray us.”

“We are going to destroy everything and make the city ungovernable,” ANCYL Dullah Omar regional secretary Loyiso Nkohle said on Tuesday in response to the toilet saga. ”We are calling on all youth to do this [vandalise the city], especially those living in informal settlements.”

To me this disgusting saga can be viewed as a metaphor for so much that is wrong with our politics and our society.

First, the DA city council has a lot to answer for. A city that spends millions of Rands every year on trimming the hedges and raking and gathering the leaves in the streets of leafy white suburbs (not to mention the billions spent on the World Cup Stadium and the park next to it) and then claims it has no money to provide poor black residents with one of the most basic and relatively cheap amenities required to live a life with even a semblance of human dignity, is not a city that cares about all its citizens.

It is not as if the city had to choose between building proper toilets and keeping the water purification system going, the streets free of pot holes and the street lights working. Cape Town is not Johannesburg: the streetlights work, the roads are well maintained and, at least where the tourists go, it is relatively clean. It had enough money for all these things and to provide the residents of rich suburbs with extra services they really do not need. I used to live in a quiet cul-de-sac in Sea Point and spent some Saturday mornings raking the leaves on the pavement before the house and depositing it in black bags. Many other residents did not do so as they waited for the city council workers to come and rake their leaves for them, the lazy sods.

How can one morally justify this kind of skewed spending priorities? Surely, the city has better things to spend its money on (like building proper toilets for poor residents) than doing something I can do myself rather easily? If its officials had really thought long and hard about its priorities and had taken the needs of the residents of Khayelitsha at least as seriously as the needs of the rich voters in the suburbs, it would not have wasted their money like this.

Officials and city council politicians will probably claim that they have always provided this service and that white residents expect their pavements to be cleaned up, but that would only expose the callousness of their position. In the past the white suburbs received better services than the suburbs where black people live because white people were thought of as fully human while black people were only, at best, viewed as second class citizens deserving second class services.

A city council that really cared for all its inhabitants equally would have thought long and hard about its priorities, would have ignored the spending patterns of the past and the complaints of some spoilt rich folks and would have prioritized properly so that everyone could be provided with at least the basic services that would help all citizens to live a life of some dignity and respect.

Not that the lot of the Youth League are any better. How callous can one be? Destroying the very partitions that would have given the long suffering residents a semblance of dignity – and all for short term party political gain –  is about as despicable an act as one can get. And then to justify this action by invoking democracy is just plain scary.

Majority rule does not mean one has the right to destroy other people’s property. It does not mean one can tell others whether to accept the belated corrective measures from the city council or not. The Youth League members are really saying that as an individual living in Khayelitsha one has no rights as far as they are concerned. If the Youth League or those aligned to it decides you will jump, then you jump and you will sing viva majority rule and wave your ANC flag while you do so. This is not democracy. It is tyranny and fascism.

How can we build a society in which people will begin to take responsibility for their actions – a vibrant democratic society in which people can become active citizens who can stand up for themselves – if scared and disempowered residents are terrorized by lawless and semi-literate thugs who believe the interests of the party they belong to or are associated with should trump the interests of the people that the party pretends to serve?

This is an all-round depressing and rather upsetting turn of events. It almost makes one yearn for the South of France.

But what about the alleged corruption?

May 13th, 2010
by Pierre De Vos.
58 comments

The outcome of the disciplinary process against ANC Youth League President Julius Malema has elicited much comment – not all of it very well informed. Opposition parties have (predictably) decried the “slap on the wrists” for Malema, while some commentators have argued that the outcome augurs well for President Jacob Zuma as the sentence imposed on Malema will muzzle him and will prevent him from making trouble for the President – at least for the next two years.

Who knows where the truth lies.

More interesting though is the reasons given for the dropping of some of the more serious charges against Malema. It has been stated that these charges were prepared by Gwede Mantashe, who was not authorized to do so as he was not the person actually charging Malema. The charges were therefore procedurally deficient.

Despite this, Malema was eventually found guilty of contravening Rule 25.5.(i) of the Constitution of the African National Congress “by behaving in such a way as to provoke serious divisions or a break-down of unity in the organization”, in that:

At the ANC Youth League Limpopo Provincial Congress, on Sunday, April 11, 2010, when addressing the media, you issued the utterance that, “Even (former) President Thabo Mbeki, when he differed with the Youth League, and the Youth League had taken firm radical positions against him, he never did that” thereby implying that the ANC Youth League, of which you are the President, has taken a position against the President of the ANC.

Whether this outcome can be squared with rule 25.2 of the ANC Constitution is debatable. This rule states that disciplinary charges shall not “be used as a means of stifling debate or denying members their basic democratic rights”. Although I am not a great fan of Juju’s style of politics, it is difficult not to conclude that his offending statement was basically true and that he had a democratic right to make it. The finding of the National Disciplinary Committee (NDC) suggests that an ANC member who criticizes a fellow ANC member – even if this criticism is based on fact – may face disciplinary charges, something that seems rather undemocratic to me.

Surely, if this approach were to be strictly applied, it would stifle democratic debate within the ANC and would severely limit the freedom of expression enjoyed by ANC members. If an ANC member criticized one of his comrades because that comrade had been found guilty of corruption, say, disciplinary charges could be instituted against him or her for sowing division within the ANC. This would leave good members in the ANC who spoke out against the wrongdoing of comrades vulnerable and would make it rather difficult to raise questions about the conduct of fellow ANC members – even if this criticism is based on proven facts.

This seems rather counter-productive and even dangerous. Surely we need more ANC members exposing and criticizing their comrades for doing the wrong thing – not less of it? A culture of corruption and lawlessness flourishes where good people fear to speak out and to criticize their comrades.

I suspect the ANC Youth League will pursue this line of reasoning in its attempt to have the findings of the NDC overturned by the National Executive Committee (NEC) of the ANC.

According to the regulations attached to the ANC Constitution, disciplinary charges can be brought by “any organ or official of the ANC at Branch, Regional, Provincial or National level”. The National Disciplinary Committee is also empowered to hear and decide cases “referred to it by the ANC National Officials, NWC, or the NEC or of very serious violations or offences on its own initiative”. A charge must be prepared on behalf of the organ or officials of the ANC instituting the disciplinary proceedings.

This suggests that Mantashe should not have prepared the charges, but that these should rather have been prepared by the person actually prosecuting the case on his behalf. This is, as far as I can tell, why the three other charges against Malema were thrown out. However, the NDC itself  is empowered to hear cases “on its own initiative” where the charges are serious. This the NDC did, choosing the one charge mentioned above.

This suggests the NDC did not feel that the other three charges regarding Malema’s visit to Zimbabwe, comments about Eugene Terreblanche, and the attack on a British journalist were “serious”. The NDC apparently believed it was far more serious for Malema to have criticized the President of the ANC than to have interfered with South Africa’s foreign policy, to have ignored ANC instructions not to comment on the death of Terreblanche in order to calm the nerves of the whiteys, and to have displayed a rather shocking lack of respect for media freedom.

To my mind the whole disciplinary process seems like a side show as it skirts the real problem with Malema. Newspaper reports suggest that Malema has R53 million in the bank, that he is a major shareholder in companies that had secured tenders from various municipalities in Limpopo despite the fact that the companies were not eligible for tenders because they had no tax compliant certificates, and that the companies did shoddy work. If any of this is true, Malema is the quintessential tenderpreneur, milking the state dry for his own benefit – to the detriment of the people whom the ANC was elected to serve.

If these allegations are true – and it is difficult not to suspect that there is a grain of truth to them, given the confusing and contradictory explanations and justifications offered by Malema and his failure to sue the newspapers for publishing these defamatory claims – it would suggest that Malema is a thoroughly corrupt man who is using and abusing his position in the ANC for personal gain.

Surely, if the ANC wants to retain the trust of the majority of South African voters, it needs to deal with the growing perception that leaders like Malema are using their power and influence to get rich while service delivery is fatally compromised. Is this perception – now widely shared by people of different political persuasions and races – not far more detrimental to the well-being of the ANC and the people of South Africa than the mild criticism Malema leveled against our President?

Of course the chattering classes are far less dependent for their survival on the efficient and honest functioning of the state than the poor and marginalized in our society. The chattering classes hire private security companies to protect them, hunker down in gated communities where services are delivered by the body corporate, and eye the opportunities to enrich themselves through legal and illegal means, while those who are absolutely dependent on the state are left to their own devices. That is why members of the chattering classes get more worked up when Malema sings “Kill the Boer” or when he jets off to Zimbabwe, than about the allegations that poor black people in Limpopo had been fleeced by Malema through tender scams.

What we all desperately need – whether we are ANC supporters or not – is for investigative journalists and honest ANC members to expose any corrupt practices linked to Malema or any other ANC leaders. If alleged corruption by ANC politicians or their enablers in the private sector is not mercilessly exposed and stopped, the legitimacy of the state itself will be endangered. And once the state loses any legitimacy, it would lose the ability to keep the fragile peace in South Africa, a peace that is required for the chattering classes to continue enjoying the benefits of their wealth and privilege.

Sadly, the outcome of the disciplinary case will do nothing to address these real problems.

PS: What we also need is a police service and a prosecuting authority that will go after those suspected of corruption, whether they are in government or the private sector. That is why the appointment of Menzi Simelane seems like such a disaster to me.

What makes a good judge?

Apr 19th, 2010
by Pierre De Vos.
70 comments

It is less than ideal – but perhaps not surprising, given the way lawyers like to gossip - that news of the non-appointment of Adv Jeremy Gauntlett to the Cape High Court bench leaked out before an official announcement was made about the matter. Gauntlett is often described as one of South Africans most brilliant legal minds and many observers thought that the JSC would nominate him for a position on the bench.

It is unclear to what extent perceptions about Gaunlett’s alleged patronising attitude towards judges and fellow lawyers played a role in the decision. It is not for me to speculate about such things.

However, the affair made me wonder again on what basis a reportedly brilliant lawyer should be denied appointment to the bench. Is it ever justified to deny a brilliant and experienced lawyer an appointment to the bench and if so, on what grounds may the JSC do so?

Section 174(1) of the Constitution states that “any appropriately qualified woman or man who is a fit and proper person” may be appointed as a judge. However, section 174(2) states that the “need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered” when judicial appointments are made.

As I understand these two sections, any lawyer who is appropriately qualified and has the necessary integrity and honesty may be appointed to the bench. Constitutionally, there is no need to appoint the most brilliant lawyer if other qualified candidates are available and the appointment of those candidates would help to address the racial and gender imbalances on the bench.

Ideally, this would mean that the most suitable white male candidates (more about this later) would be appointed along with the most suitably qualified black men and women. This would lead to an end to the kind of affirmative action for white men which used to characterise the appointment of some judges during the apartheid era.

If the JSC does its job, it would ensure that the most brilliant white male candidates who would also make outstanding judges in our new constitutional order were appointed along with the most brilliant candidates from other race and gender groups.

But what would make someone an outstanding judge and hence a suitable candidate for appointment to the bench?

It is my contention that a person’s brilliant legal mind is not enough to warrant appointment to the bench – no matter what the race or gender of the person might be.

First, the person needs to have the appropriate judicial temperament to deal fairly and calmly with the parties that appear before him or her. An overtly emotional or aggressive lawyer, a lawyer that is so arrogant that he or she makes up his or her mind before hearing the arguments from both sides, will not make a good judge.

Second, a good judge will try and apply the relevant legal rules in such a manner that justice is served in the case – at least as far as the legal materials allows for it. A good judge will have a sense of fairness and justice and this, in turn, will require the judge to have some awareness of his or her own world view and the way in which his or her life experience and other emotional and ideological commitments might colour his or her view of a particular case.

More is required than a mere formalistic adherence to “objectivity” (which is desirable but will always remain somewhat illusive). An understanding of how a specific ruling will affect the litigants and some awareness of the consequences of the ruling for society as a whole will do much to ensure that a judge acts as fairly and as justly as the law allows.

Third, it is my contention that a good judge in South Africa should have a keen understanding of the separation of powers doctrine and the limits of judicial power. Such a judge should consider very carefully before making a decision that intrudes on the exercise of power by the other two branches of government. Judges who are tempted to use the judicial power to get back at the government of the day, for whom they never voted, may do more harm than good in the long run as their decisions may appear overtly political and may detract from the legitimacy of the courts.

Fourthly, a good judge will be courageous and fiercely independent and will not shy away from making unpopular decisions if such decisions are really required to uphold the Rule of Law and the fundamental values enshrined in the Constitution. Such a judge will be aware of the limits of her power, but will use that power to ensure that the rights enshrined in the Bill of Rights are interpreted and applied in such a manner that the vulnerable, the poor, the dispossessed and the politically weak are protected from abuse of power.

Lastly, in my opinion a good judge will have a specific vision of the new constitutional order that centres on social justice. Such a judge will be aware of the vast discrepancies between rich and poor and the harsh effects that formal rules can have on the lives of the poor and economically marginalised and will try and interpret the constitution and the ordinary rules of common law and the provisions of statutes in such a way that it would help facilitate the achievement of social justice.

Such a judge will be aware that traditional legal rules often favour the educated, the propertied classes and the powerful and – while adhering to precedent and while respecting the need to make legally plausible and legitimate decisions – will try to develop or interpret the tradition legal rules differently (with the help of the Bill of Rights) in order to make the law more just and fair in the long run.

From the above it must be clear that I would not support the appointment of a judge who harbours sexist, patriarchal or homophobic views or has a misplaced belief that everyone in South Africa really has the freedom to make all the important life choices that may affect their lives. I would prefer it if lawyers who are fixated on the notion of freedom of contract and the sanctity of property rights – no matter how negatively the application of such principles will affect the powerless and the poor – are not appointed to the bench at all.

In short, if I was on the JSC I would look at race and gender requirements along with requirements of competence. But I would not stop there. Just as important (or perhaps even more important) than all of the above would be a concern to appoint progressive, courageous and fiercely independent judges who care about social justice issues and care about the ways in which legal rules help to entrench or perpetuate social injustice.

When we talk about the transformation of the judiciary I have in mind the kind of transformation that goes much further than merely replacing white, sexist, homophobic capitalist judges with black, sexist, homophobic, capitalist judges. Sadly the JSC does not follow this view. Many judges have been appointed who hold shocking views on women and gay men and lesbians and feel that the law should not concern itself with social justice issues. Such judges are white and black, male and female. This is the real, but often unspoken, scandal underlying the appointment of judges in post apartheid South Africa.

“Afrikaners is (not) plesierig”?

Oct 14th, 2009
by Pierre De Vos.
65 comments

Hoërskool Ermelo has on average about 22 learners in a classroom. At the nearby Lindile School, 62 learners are on average crammed into one classroom. Until now the school’s medium of instruction was Afrikaans and the school was so determined to keep things this way that it challenged the lawfulness of a decision by the Head of the Mpumalanga Education Department to withdraw the powers of the school’s governing body to determine its own language policy.

In Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Others the Constitutional Court today confirmed that the Head of Department had acted unlawfully. But this was a Pyrrhic victory for the school as it was ordered to reconsider its language policy and the school will almost certainly have to change its language policy. This will allow black learners who do not wish to be taught in Afrikaans to attend the school.

This judgment is important because it clarifies the powers of school governing bodies to determine a school’s language policy as well as the powers of the Head of the Education Department to intervene in a school’s affairs – including the determination of a language policy.

Section 6(2) of the Schools Act  provides that the governing body of a public school “may determine” the language policy of that school. However, Deputy Chief Justice Moseneke, in a unanimous judgment, made it clear that this does not mean that the “function to decide on a medium of instruction of a public school is absolute or is the exclusive preserve of the governing body. Nor does it mean that the only relevant consideration in setting a medium of tuition is the exclusive needs or interests of the school and its current learners or their parents”. As Moseneke J points out:

[A] school cannot be seen as a static and insular entity. Good leaders recognise that institutions must adapt and develop. Their fiduciary duty, then, is to the institution as a dynamic part of an evolving society. The governing body of a public school must in addition recognise that it is entrusted with a public resource which must be managed not only in the interests of those who happen to be learners and parents at the time but also in the interests of the broader community in which the school is located and in the light of the values of our Constitution.

In this case the governing body’s language policy excluded learners (all black) who wanted to be taught in English. Although section 29(2) of the Constitution states that “everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable” and, further, “that the state must consider all reasonable educational alternatives, including single medium institutions”, when realising this right, there is no absolute right in the Constitution to be taught in a single medium Afrikaans school.

Considerations of equity, practicability and the need to redress the results of past racially discriminatory laws and practices must all be taken into account when considering whether the maintenance of single medium Afrikaans schools are reasonably practicable. In Ermelo, suggested the Court, it is clearly not reasonably practicable to maintain a single medium Afrikaans high school and the insistence by Hoërskool Ermelo (whose student numbers have been dropping) to continue with an Afrikaans only policy was therefore probably not reasonable.

The Court also made it clear that the Schools Act allows the Head of Department to withdraw the powers of a governing body to determine a school’s language policy “on reasonable grounds”. What would constitute reasonable grounds will have to be determined on a case by case basis but a reviewing court will have to consider carefully the nature of the function, the purpose for which it is revoked in the light of the best interests of actual and potential learners, the views of the governing body and the nature of the power sought to be withdrawn as well as the likely impact of the withdrawal on the well-being of the school, its learners, parents and educators.

It is important to note that all these factors would have to be weighed within the broad contextual framework of the Constitution to provide access to education for all and the need to redress the results of past racial discrimination. School governing bodies are therefore not allowed to use a language policy in an indirect manner to prevent large numbers of black learners to enroll at a school. Where there are vast discrepancies between the class sizes in different schools in a single town, a school governing body would not be justified in sticking to a policy of teaching exclusively in Afrikaans.

The judgment will probably not be welcomed by Afrikaans language activists, but it seems to me to strike a good balance between the needs for equity and redress on the one hand, and the right of school governing bodies to determine language policy on the other. The crux of the matter is that a governing body is not allowed only to consider the interests of the existing learners and parents: it must also consider the needs of the broader community. The judgment therefore reflects a need for us all to embrace social solidarity and not to act in a selfish manner to exclude others in order to further a narrow kind of language nationalism.

The case is also strikingly innovative and pro-active in the way it addresses the problem of overcrowding in schools and the tardiness of officials in dealing with this issue. Justice Moseneke lambasted the Department for not taking adequate steps to ensure that there are enough places so that every child in Ermelo can attend school as required by the Schools Act and as guaranteed by the Constitution.

The Court therefore ordered the Head of Department to submit a report to the Court by 16 November 2009 setting out the likely demand for grade 8 English places at the beginning of 2010 and setting out the steps that the Department has taken to satisfy this likely demand for an English or parallel medium high school in the circuit of Ermelo. The report must also provide information and statistics on the levels of enrolment in other high schools in the area in the light of the learner-to-class ratio norms set by the Minister for Education.

The order clearly attempts to force the Department to do its job properly and this is to be welcomed. It remains to be seen how the court will deal with this report, but it represents quite a leap for our Constitutional Court and demonstrates that as far as education is concerned, it is prepared to stick its neck out to try and get the politicians to do their jobs.

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