But throughout the affair something else has been bothering me. Why would the Hawks investigate a matter of fraud and defeating the ends of justice against anyone? Remember, the Hawks was created after the tenderpreneurs like Brett Kebble, the fraudsters like Jackie Selebi, and the politicians like Jacob Zuma and Ngoako Ramatlhodi (who were both targeted by the Scorpions for allegedly being involved in corruption) got their way to abolish that unit.

According to the South African Police Services Act, the Hawks is empowered to investigate “priority crimes”. The Act defines “priority crimes” as “organised crime, crime that requires national prevention or investigation, or crime which requires specialized skills in the prevention and investigation thereof”. It is far from clear that being in possession of a forged letter (which, as I have noted above, is not a criminal offense in our law) would constitute a priority crime as defined by section 17A of the Act.

If a crime was committed at all, it is clearly not an organised crime to possess a forged letter of resignation or even to be involved in the forging of that letter. This is also not an alleged crime that requires national prevention as it is not part of a larger network of crimes that are so embedded in our society and so endemic that ordinary members of the police cannot deal with it because of the sheer scope of the criminality across the country.

It is also rather difficult to see how one would be able to argue that the alleged crime requires specialised skills to investigate. One surely does not need specialised skills as a police unit to read a fraudulent letter and distil its meaning, to trace the origins of the letter by asking Telkom where the fax machine from which the letter was faxed was situated, to impound the relevant computer equipment, and to get experts to analyse the computer equipment to see if the letter was written on a specific computer.

Unless the ability of ordinary police officers to investigate crime is so catastrophically absent as to make them utterly useless, one would be hard pressed to claim that this was a crime requiring specialised skills to investigate. This case therefore does not seem like a “priority crime” at all.

Does this mean the Hawks illegally got involved in the investigation of this alleged crime and the arrest of Wa Africa? Maybe it did, but then maybe it did not.

Section 17D(1)(a) of the South African Police Services Act states that the Hawks can usually only investigate priority crimes. However, section 17D(1)(b) of the same Act states that the Hawks can also investigate “any other offence or category of offences referred to it from time to time by the National Commissioner”.

Ahhh, I hear you say, so the National Commissioner could have asked the Hawks to investigate this pressing matter of a journalist being in possession of a fraudulent letter. Good on our Police Commissioner for being so on top of his job and being so diligent and eager to address the terrible problem of fraudulent resignation letters that is eating away – like a cancer, I tell you –  at the very heart of our democracy!

There is only a small little problem with this kind of analysis. The problem is that the National Commissioner is Bheki Cele, the same Bheki Cele whom Wa Africa had reported on in the previous week’s issue of the Sunday Times for signing some document which might or might not have been a lease for the renting of a building – without the tender for that lease being issued as required by the law. Wa Africa had therefore co-authored a newspaper story which implicated Cele in alleged corrupt activities and a week later the Hawks arrested him. This is a rather surprising coincidence, to say the least.

Does this mean that after the Sunday Times published the story suggesting that Cele was involved in corrupt activity, Bheki Cele (with disturbing images of his predecessor, Jackie Selebi, being sent to prison for 15 years for corruption fresh in his mind) pro-actively decided to teach this journalist a lesson and ordered the Hawks to investigate and arrest Wa Africa for being in possession of a fraudulent letter (which, I repeat, is not normally a criminal offence)?

So, at least two distinct but perhaps interrelated questions arise. First, does it mean that there is more to the Sunday Times story than we know and that the Police Commissioner is a thoroughly corrupt man (following in the proud footsteps of his predecessor) and that he may have received some money or other benefits for signing off on the lease of a new Police Headquarters building? Second, did the Police Commissioner abuse the power bestowed on him by the Act by ordering the Hawks to arrest the journalist who had gotten too close to the truth on his corrupt activities?

Of course, these are questions – not assertions. Although this whole story smells very messy, we do not have enough information to know what really happened here.

Yet, a third question does, of course, also arise. If the Police Commissioner was indeed corrupt (hey, it has happened before, but I am not claiming at this stage that I believe he is) and if he is the one who can order the Hawks to investigate (and one presumes also not to investigate) certain crimes, does this mean that we will never really know about the Police Commissioner’s alleged illegal activities? Who will investigate any credible evidence of corruption against the Police Commissioner now that the Scorpions have been abolished? (The Sunday Times story is not very clear, so it is not possible to say from the available evidence whether credible evidence of corruption by the Commissioner actually exists.)

Testimony at the Glen Agliotti trial suggests that Brett Kebble and other crooks were paying the then Police Commissioner and now convicted fraudster, Jackie Selebi, (and who knows who else in the ANC?) to make sure that the Scorpions would be killed off. They did this because they feared the Scorpions. They feared the Scorpions because it sometimes actually did its work properly and was at arms length from the police, whose commissioner was a crook, could therefore be bought, and could therefore make investigations go away.

Can any reasonable person still argue that abolishing the Scorpions was not done – at least, in part – for an ulterior purpose? I would like to hear from that lone voices (the usual suspects who never fail to take a gallant stab at defending the indefensible) who will be prepared to argue that ulterior motives had nothing to do with the demise of the Scorpions. If anyone can convince me of that, he or she could probably convince any parent to send their ten year old son on a one month camping trip in the wild with a group of Catholic Priests.

In an address to a BMF conference on the constitution Manyi had questioned whether the media had taken the right to freedom of expression too far. “Why is it” he asked “that the media can have a field day railroading the office of the president [with] impunity?” Quizzed on this rather odd statement bby Barron, the following exchange ensued:

CB: Are you saying the press should not be allowed to criticise the president?

JM: No, not the president, the office of the president. Under the guise of freedom of expression the office of the president is disrespected by the press.

CB: How do you distinguish between the office of the president and the president?

JM: If the media doesn’t know that I will be disappointed.

CB: Can you give me an example of the criticism of the president’s office you’re talking about as distinct from criticism of the president?

JM: If you’re saying the media does not know the difference then it’s another discussion.

CB: So you can’t give me an example?

JM:The office of the president is an institution of democracy.

From the exchange it is clear that Manyi was unable to explain what the distinction was between the office of the President and the President himself (who happens also to be the leader of the majority party in parliament). If I was mischievous I would have suggested to Manyi that the President had two offices: one in the Union Buildings in Pretoria, and one at Tuynhuys in Cape Town, while the President was that rather affable guy with the good singing voice who never refuses to make a decision unless he absolutely has to. but rather wants us to discuss every controversial issue to death until we all fall asleep and so that he can go off to visit one of his wives or mistresses.

But, of course, I would never be that rude.

Strangely enough, Manyi might not have realised it, but he did have a point – although he could not articulate it. One can make a distinction between the office of the President and the incumbent who holds that office – although I suspect this valid distinction is not what Manyi had in mind. Of course, it is rather difficult to explain the difference between the office of the President and the President himself: like pornography one just knows it when one sees it.

Respect for the office of the President would entail showing respect for the President when he or she exercises a ceremonial – hence non-political function. When the President appears at the opening of the Fifa Soccer World Cup™ (I hope someone from Fifa is not reading this Blog because Fifa might take exception with the fact that I am using their trade mark) it would show disrespect for the office of the President not to stand up when the President arrives or to boo the President when he walks onto the field to greet the teams. (Booing Sepp Blatter, is another story, of course: I am definitely in favour of that.)

Regardless of your political affiliations, President Jacob Zuma remains President of all South Africans and when he acts in such a ceremonial capacity we have an ethical duty to respect that – at least for as long as we live in a constitutional democracy. (In my book one has no ethical duty to respect a dictator or a tyrant, so if Robert Mugabe ever visited this part of the world I will be happy to give him the middle finger wave when he inspects our troops.)

Even when the President fulfils a duty that has political ramifications but also has a strong ceremonial aspect, for example, when he or she opens Parliament and delivers the State of the Nation address, I would contend that respect for the office of the President would require that one does not interrupt proceedings or shout down the President when he or she speaks.

But when the President does or says something really stupid or scary (like appointing a liar and a anti-constitutionalists as head of the National Prosecuting Authority, making babies with women he is not married to, or threatens to knock down homsexuals) it is our constitutional right – no duty – to criticise and even to ridicule the man. After all, he is only the leader of a political party who, just for the time being, has the support of the majority of the voters. 

I suspect Manyi really does not agree with this view. Now, I would be delighted if he writes to inform us that my distinction is one with which he agrees fully. But if that is the case, he would have to point to those occasions when ordinary South Africans and the media have not respected the office of the President. I can’t recall any such event. Even the Blue Bulls fans (not known for their progressive values) cheer the President when he arrives for the final of the Super 14.

Manyi probably does not like democracy because in a democracy a political leader – whether he is the President or not – is not above criticism and ridicule. Our Constitution declares that whether you are the President or a homeless person you have exactly the same inherent human dignity. This does not mean that you cannot be criticised, ridiculed or made fun of. The inherent human dignity possessed by all cannot be affected by what ordinary voters say about you – you have that dignity regardless of whether you drive in a Porsche or live in a shack and will retain that dignity regardless of whether you are called  a gangster or treated like a princess.

In any case, Manyi can rest assured, every time I walk past Tuynhuis I only show the utmost respect for the Office of the President – it is, after all, a magnificent monument to colonialism and I have a healthy fear of colonialists. Whether I whistle a song about gangsters and crooks as I show my respect to that beautiful building? Well, I would rather not say.

the widest possible investigation into impropriety and corruption is appropriate. The commissioners should be required to indicate who, if anyone, should face prosecution and on what charges. There should also be an investigation into the possibility of cancelling arms deal contracts tainted by corrupt and fraudulent dealings, and recovery of payments already made. The urgency of the matter is self evident. The country is moving towards a general election, and the voters are entitled in the spirit of free and fair elections to be informed about what has become a major scandal in the country’s political discourse. Should you decline this petition, we respectively request that you furnish the reasons for your decision.

But what happens if President Motlanthe refuses to appoint such a commission? Could the Constitutional Court order him to appoint such a Commission? Would it ever issue such an order? I am afraid the answer to both questions is almost certainly no.

The argument being made is that section 84(2)(f) of the Constitution states that the President “is responsible for… appointing commissions of inquiry”. Moreover, section 83(b) states that the President “must uphold, defend and respect the Constitution as the supreme law of the Republic”. This means the President has a duty to take steps to uphold the founding values of our Constitution, especially section 1(d) which states “the Republic of South Africa is one, sovereign, democratic state founded on”, amongst others, “universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.

Given the widespread credible allegations of corruption in the arms deal, so the argument goes, the President has a constitutional duty to apppoint a full commission of inquiry to ensure accountable, responsive and open government. If he fails to do so he would be failing in his duty to uphold, defend and respect the Constitution – and the Constitutional Court would have the power to order him to do so by appointing a commission of inquiry.

If I had any money to spare, I would take a sizable bet that this argument is not going to fly with the Constitutional Court. There are several reasons for my scepticism.

The power of the President to appoint commissions of inquiry stems from the prerogative powers, which in the United Kingdom rested with the monarch and always had a strong political discretion attached to them. Although these powers have now definitively been captured in our Constitution, they have  retained their strong political dimension and as the Constitutional Court made clear in the Hugo case the exercise of these powers would very seldom be reviewable by a Court.

Where these powers are exercised (or not exercised) a court would only intervene if the decision by the President was irrational. One would have to show that the decision was arbitrary, capricious or in bad faith – something that would be very difficult to do, given the many different policy options open to the President to fulfill his constitutional duty to uphold and defend the founding values of openness and accountability in our democracy.

This is appropriate because the separation of powers doctrine requires our courts to respect the power of the executive to make the kind of political choices associated with a decision to appoint or not to appoint a commission of inquiry. Even if the Constitutional Court could be persuaded that the President had failed to defend the values of openness and accountability enshrined in section 1 of the Constitution because allegations of corruption in the arms deal have not been dealt with decisively, it would not order the President to appoint a commission of inquiry into the arms deal because the judges would feel this would interfere with the powers allocated by the Constitution to the President (and not to the court).

Of course, it would be rather difficult to convince the Constitutional Court that the President had not defended these constitutional values, given the fact that an investigation into the arms deal had already been conducted by the NPA, the Auditor General and the Public Protector. The report produced by these agencies was of course doctored by President Mbeki, but this in itself would probably not be enough to convince a court that the President has failed in his constitutional duties.

Judge Nicholson did suggest that the President should institute such a commission, but I am quite convinced that these kinds of mutterings (just like his findings about the political conspiracy)  would never have been made by the Constitutional Court. The latter court is far too aware of its appropriate role in our system of constitutional democracy based at least partly on the principle of the separation of powers. As a matter of judicial politics it is a non-starter.

Having said that, it is interesting to note that apart from Trevor Manuel, none of the individuals or organisations implicated in arms deal corruption have sued those who had made these allegations. While Thabo Mbeki’s lawyers immediately sprang into action after the Nicholson judgment in effect found that he had interfered with the NPA, he has not sued the Sunday Times for alleging that a bribe of R30 million was solicited from a succesful arms bidder and that R2 million was given to Jacob Zuma and the rest channeled to the ANC. Come to think of it, neither has Zuma sued anyone for this scandalous allegation – despite the fact that he has taken action to sue a cartoonist and some newspaper editors for making fun of him.

I imagine in a defamation case, the ANC (and Zuma) would be requested to provide information about their finances and this information may well provide embarrassing details or even incriminate them. No wonder no one has sued either Andrew Feinstein or the Sunday Times for alleging the ANC received money from at least one of the succesful bidders in the arms deal.

That is also why our President will probably not appoint a commission of inquiry into the arms deal as the Commissions Act provides wide powers for a commission to summon witnesses and to compel them to provide books, documents or other material requested by the commission. If I was the ANC Deputy President, the last thing I would want to do was to appoint a commission of inquiry that could summons all the financial records of the ANC since 1997. (But if that commission could be persuaded only to get their hands on all Zuma’s financial records, that might be helpful if one wanted to remain President after the election!)

Imagine what a field day the press would have with all the dirty little secrets on ANC funding that will emerge – even if it turned out that no money was paid by arms bidders to the ANC. Nee wat, there is no chance that our President will appoint this commission. Nice try though.

Why then do I feel no need to come to the defense of Sunday Times columnist David Bullard who was fired last week after writing a racist column in which he ridiculed black South Africans? After all, in my previous Blog post about Maas I wrote:

It is also sad and a bit frightening that the newspaper [Rapport] caved in so easily while piously claiming it supported the notion of freedom of speech…. Can freedom of the press be undermined so easily by citizen activism?

What would happen if ANC activists started a similar campaign against Mondli Makanya from the Sunday Times? Will they have the same clout to convince its owners to fire him for “commercial reasons”? Or will the proprietors of the Sunday Times have a bit more of a backbone than those at Rapport? Troubling thought indeed.

Some relatively thoughtful people have defended Bullard and have criticised the Sunday Times for firing the crusty old columnist, arguing that while his column was obnoxious or even racist, a big newspaper like the Sunday Times has a duty to publish a wide variety of opinions which do exist out there. After all, what Bullard wrote in his rather tedious piece is nothing that many whining whites do not say in private at dinner parties and around the braaivleis fire.

Should human rights lawyers therefore also defend Bullard on the basis that his freedom of speech has been infringed – regardless of whether we agree with his opinion or think it is entertaining or not?

I think not.

But how do I get myself out of the potential contradiction of having criticised Rapport while I support the Sunday Times? Am I just an sycophantic whitey fart trying to ingratiate myself with the black elite?

Well, that is for the readers of this Blog to decide, but I personally do think there is a fundamental difference between the two columnists and what they had to say and I do not think that there was anything wrong with firing Bullard.

This is because – like the Constitutional Court – I adhere to a contextual and not an absolutist notion of freedom of expression. I do not think the guarantee of freedom of expression requires us always to allow all voices in any kind of publication, merely for the sake of having a diversity of views available to us. We should look at the context and ask whether we as a society would be impoverished if a specific publication bans a specific point of view.

Freedom of expression is guaranteed, said the Constitutional Court, because it is required for us to make decisions about how we want to be ruled and as such it is a cornerstone of democracy. It is however also protected because without a free flow of information we will not be exposed to the wide spectrum of views that will allow us to decide for ourselves who we are and how we want to live, and thus our human dignity will potentially be infringed if unpopular or even bizarre views are suppressed.

It is true that David Bullard’s freedom of expression was curtailed because he was denied the platform given by the Sunday Times, and to that extent his views are being repressed. But his views are unfortunately not surprising, very thought provoking or bizarre. What he did in his column was merely to repeat and therefore to reinforce the prejudices and stereotypes of a certain kind of rich white South African.

Being deprived of his views in the Sunday Times will not affect our human dignity and will not deny us the opportunity to decide for ourselves who we are and how we want to live. If we are white and upper-middle class, we can easily accept any dinner party invitation to hear the same drivel spoken – although it will not be as fluently expressed. And most black South Africans are well acquainted with the reactionary views of people like Bullard, so they themselves will not really be any the poorer for not hearing him rant and rave.

Maas, on the other hand, told the readers of Rapport things they did not know or did not want to hear and was fired for that very reason.

Of course, Maas was also writing in support of the values of tolerance and diversity contained in the Constitution, while Bullard was taking a stance in which he often challenged the values on which our constitutional democracy is supposedly built.

I would be vehemently opposed to any move to ban speech like that uttered by Bullard. People should be free to say almost anything – even racists things – because if they are not allowed to speak their minds they will still think these thoughts and it would be more difficult to challenge and confront such thoughts and words.

But for the Sunday Times to fire a columnist that merely regurgitate the reactionary and well known prejudices of some of the newspaper’s readers, seem like a move that should be congratulated – not condemned.

However, the editor’s decision this week to fire columnist, Deon Maas, because of a column he wrote on Sanatism have lowered my even low estimation of the paper. Don’t these people have any backbone? And who are these readers who still get upset about mild schoolboy statements aiming to shock? Don’t these people have better things to do?

Maas, who used to write a mildly amusing column for the Saturday supplement to Die Burger and Beeld before moving to Rapport two weeks ago, apparently offended some serious religious nuts by writing that Satanism was a religion like any other and was therefore constitutionally entitled to the same kind of protection as any other religion. In tongue in cheek style he wrote that he was not a big fan of Satanism because it was rather a lot of effort.

Die slag van vreedsame huisdiere, die skeur van Bybels, die algemene beswaardheid waarmee jy moet saamleef, swart geverfde vingernaels en die feit dat jy gewoonlik ná middernag moet wakker wees om jou geloof te beoefen, is alles faktore wat Anton LaVey se filosofie effe onaanvaarbaar vir my maak. (The slaughtering of peaceful pers, the tearing up of Bibles, the general moodiness you have to keep up, painted blck nails and the fact that one usually had to practice one’s religion after midnight, are all factors that makes Anton LaVey’s phlosophy somewhat unacceptable to me.)

Probably anticipating some of the histrionic reactions of some Rapport readers, some of them who seem to be caught in a time warp and still seem to believe that dancing on Sunday is a mortal sins and that having sex with one’s wife is only barely torelable in the eyes of God, Maas tries to cover his back by writing:

Propageer hierdie rubriek Satanisme? Nee. Maar as ons wil hê ander mense moet ons punt insien en ons idees respekteer, moet ons hul punt insien en hul idees respekteer. Om iemand anders se idee te verstaan, beteken nie dat jy daarmee hoef saam te stem nie. (Do I propagate Satanism in this column. No. But if we want others to see our point of view or respect our ideas, we have to also try and see their point of view and respect their ideas. To understand anothers idea does not necessarily mean to agree with it.)

Eight days after this column appeared, an sms campaign was launched by faceless readers to boycott the paper. According to its editor Tim Du Plessis, the campaign which also targeted the distributors of the paper, started affecting the commercial interest of the paper. Freedom of expression is one thing, but the bottom line is clearly another, hence Maas was dismissed unceremoniously.

The saga is depressing on several levels. It suggests that a sizable chunk of Rapport readers and therefore South Africans have not yet internalized the values of tolerance and respect for diversity enshrined in our Constitution and, in fact, may be actively opposed to such a value system. Maas was of course perfectly correct: the Constitution protects our freedom of religion and conscience, which includes the right to practices one’s religion as long as one does not break the law. If I want to open a Satanist Church in Putsonderwater next to the NG Kerk (or the massage parlour for that matter) I am constitutionally entitled to do so. Religious fanatics do not have a constitutional right to stop me form practicing my beliefs – no matter how peculiar or boring they may appear. In fact, Priests in the Catholic Church are allowed to prance around in their dresses and wave around smoke while making funny noises while the sinister Afrikaner Protestantse Kerk can conduct sermons where black people are not allowed. This is called freedom of religion.

Now this is Rapport we are talking about, so one must assume their readers are not all the brightest and that many of them do not rejoice and praise the Lord every Sunday for delivering us from the evil apartheid system and allowing us to live in a free country now. But there seems to be a difference between people who has a silent, simmering, hatred and distrust for the values of the “new South Africa” and people who are actively prepared to fight against these values.

It is quite disturbing that there are enough such people to launch a successful boycott campaign against a newspaper merely because someone published an article in it pleading for tolerance of Satanism and extolling the virtues of freedom of religion. It suggests these people are very, very cross: they probably believe that Satanism is up there with eating baby livers for dinner or catching a black man having sex with your blond daughter in the marital bed (I am not equating these things, of course, but mocking the values of those who started this campaign).

To me these views are absurd and ridiculous and I can hardly imagine that there are still people who get upset about Satanism. But then again I do not believe in Satanism or baby Jesus, so maybe I am not the right person to get to grips with this. But looking around me I wonder: if they are so concerned with evil, should they not rather campaign against the Catholic Church for condoning child molestation or start a campaign against child hunger? Is it really worse that Deon Maas writes about Satanism than that people still die of hunger in the world?

Of course, the fact that these views are out there, suggest that no matter what the Constitutional Court says about respect for diversity, many South Africans have hatred in their blood and will not be deterred by mooipraatjies about respect for the views of others.

It is also sad and a bit frightening that the newspaper caved in so easily while piously claiming it supported the notion of freedom of speech. (Strangely it did not endorse the equally important protected freedom of religion, belief and conscience – maybe because its readers do not endorse it either?) Can freedom of the press be undermined so easily by citizen activism?

Whatwould happen if ANC activists started a similar campaign against Mondli Makanya from the Sunday Times? Will they have the same clout to convince its owners to fire him for “commercial reasons”? Or will the proprietors of the Sunday Times have a bit more of a backbone than those at Rapport? Troubling thought indeed.

The resort to the potent weapon of the canard is a consequence of a determination that freedom means the right and possibility for any individual or group to use all means and methods to advance their particular interests, regardless of what happens to the rest of the society to which they belong [my italics].

President Mbeki then points out some of the canards spread by the dark forces, including that the ANC would use its overwhelming majority to change the Constitution to entrench ANC hegemony; that media freedom is in under threat and that the ANC has gone morally astray.

Three things struck me about this Blog entry. First, I was struck by the fact that President Mbeki objected to the spread of these falsehoods not because they were false as such but because of the potential harm it would cause to society. The people who peddle these ideas are bad because they do not take into account how it might affect the masses of our people.

Maybe I am reading too much into this, but it seems to me revealing because it suggest that the President sees himself and the ANC as the guardians of what is good for the people and thus perfectly placed to judge what kind of statements qualify as canards and which ones not. It also suggests that lies that will be good for society can be tolerated.

Second, it is intriguing because the examples of these “deliberate falsehoods” the President mentions are at least open to debate. For example, the Minister of Justice did table a fourteenth constitutional amendment, which would have eroded the independence of the judiciary, which means the fears of the naysayers were not that far off. And now people close to the President wants to buy the Sunday Times, which could easily make one draw the conclusion that the ANC does want to stop the media from saying bad things about it. Reasonable people could differ on this, but to our President, these are blatant falsehoods.

Of course, the President could argue that these perceptions are wrong, but to call them deliberate falsehoods seems rather over the top. At best, it is a matter of opinion. It is a bit scary though that President Mbeki is so sure of his own view that he can brand those who differ from him as deliberate liars.

It suggests that he thinks – no, he knows - that he has an exclusive access to the (political) truth and that he is the guardian of this truth. This is the same kind of attitude that got the President to question the link between HIV and AIDS and ridicule the use of anti-retroviral drugs.

It suggest that our President cannot see that reasonable people can differ about important issues of the day, but rather thinks those who differ do so because they have a hidden agenda of undermining the government, the ANC and his Presidency. This is just my opinion, and the President would call it a canard, but it seems to suggest that our President is a paranoid megalomaniac.

Third, the President is silent about some other rather important and far more clear cut lies. He does not say a word, for example, about the revelation that Essop Pahad, Minister in the Presidency, told blatant lies when he angrily wrote to newspapers in 2000, denying that he tried to stop the arms deal investigation.

Now Andrew Feinstein confirms in his book that Pahad had indeed tried to rescind the Scopa decision to investiagte the arms deal. This makes one wonder how many other times Pahad lied when he issued denials or attacked newspapers for spreading lies.

To me it is interesting that the President can write his column at exactly the time when it is revealed that his own office was at the heart of the most obvious fabrication on one of the most important issues of the day. It seems to suggest a complete lack of shame, irony or at least critical self-knowledge. It also suggests that the President does not think Mr Pahad’s lies qualify as canards because these lies were for a “good” cause?

How many other lies have we been fed “for a good cause”, I wonder? Or can we expect a Blog next week arguing that the very allegation that Mr Pahad is a liar is a canard peddled by the Dark Lord Sauron to undermine the ANC and the masses that it leads?

If only from a tactical perspective, publishing this advert was spectacularly unwise because it poured oil on a fire that was busy going out. It suggests a stubborn self-righteousness on the part of the Department officials. They really think by slagging off a judge in a paid for advert they will change the parameters of the debate around the Health Minister. Fat chance.

The advert is also problematic for at least two other reasons.

In a constitutional democracy like ours, there is a need to respect the principle of separation of powers. This means that the judiciary should not overstep the mark and intrude on the executive terrain. At the same time the executive should not be seen to interfere with the job of the judiciary.

When officials choose not to appeal a judgment of a lower court but then use tax payers money to criticise that judgment in the most disrespectful terms, stating like Sello Ramasala, the Head of Legal Services in the Department of Health, that the judgement was “a huge disappointment in terms of its internal contradictions and lack of coherence”, it suggest that the officials do not respect the boundary between the executive and the judiciary.

I am in favour of vigorous debate and criticism of court judgments as long as it does not impugn the dignity of an individual judge. It is therefore perfectly acceptable for lawyers and academics to argue that the judge in the Sunday Times case did not present a very good legal argument. But members of the executive have a duty to uphold the Constitution and the law and should not do anything seen as undermining respect for the law. This advert clearly does just that, suggesting that the judgement should not be respected.

Of course the advert is also problematic because the arguments put forward by the Head of Legal Services seem to fundamentally misunderstand the scope of the judgment. Mr Ramasala argues that the judge erred in finding that the Sunday Times had broken the law by possessing and quoting form the medical records – something prohibited by the National health Act – yet allowed the Sunday Times to continue commenting on the Minister’s health issues.

Mr Ramasala seems to think (or pretends to think?) that this means the judge allowed the Sunday Times to continue breaking the law from quoting from the Minister’s health records. But this is not what the judge did at all: he merely said that the Sunday Times could not be prevented from commenting on the unlawfully obtained records. This subtle but rather obvious difference eludes the learned lawyer from the Department of Health.

Of course this argument about the Minister’s health records is a red herring and has been used by the Department and the ANC to divert attention from the real issue which is whether the Minister is fit to continue in public office. Did she jump the queue to get a liver transplant, thereby abusing her power to save her own life and deprive another person from a life-saving operation? If she did jump the queue, she clearly is not fit even to sell second hand cars – let alone be the Minister of Health.

We also should focus on whether the Minister is actually doing her job. Given the difficult circumstances faced by our health care system, has the Minister’s stewardship made things better or has it been a disaster. Available evidence suggests the latter, but sadly this does not matter for those who can decide about the Minister’s fate.

Why would one worry about whether poor people are dying in our hospitals when one has an old friend to support and defend at all cost?

“The national working committee views these reports with grave concern, not merely because [they] violate an individual’s right to privacy, but because [they] affect the right of all South Africans to expect their medical information to remain confidential.”

But the privacy of the Minister is not really the issue. Surely the statement from the ANC should have disputed the accuracy of the claims made by the Sunday Times. The “character assassination” by the Sunday Times does not stem from the breach of the Minister’s medical privacy, but from seriously defamatory statements about her drinking habits and about the abuse of power and corruption by the Minister and her Doctors.

The only way the Minister, the doctors involved and the Hospital can restore their reputations is by instituting a defamation action against the Sunday Times. If the allegations are untrue, they will be able to sue the pants of the newspaper and probably get a pretty penny out of the deal.

If they fail to sue, the only reasonable conclusion to be drawn would be that the newspaper report was correct and that there was corruption involved in the liver transplant. If this happens, the Minister should be fired and the Doctors scrapped from the medical roll.

The Presidency has asked for evidence of wrongdoing before taking action against the Minister. All the proof it may need will be provided by the absence of a defamation suit. But of course, even then the President will not fire the Minister because he will look weak and disloyal if he does. This means he is now probably stuck with a Minister which may well prove to be a thief and drunk and an abuser of her power.

I give the Minister and her Doctors two weeks to institute defamation proceedings. If they fail to do so, I will assume that the story is true.

The report argued that because the policy conference had said it would be preferable for the leader of the ANC also to be the leader of the country, Mbeki`s announcement on the SABC that he was available for a third term amounted to defiance of the rank and file.

At first glance this seems at least like a credible assumption or interpretation of the available facts. But no, the ANC declaration argues that because the conference did not say in so many words that Mbeki should not stand, the conclusion arrived at by the Sunday Times was a ¨blatant lie¨.

This response is interesting for at least two reasons. First, it completely misconstrues the nature of what newspapers do when they report the news. The statement seems to be based on a sort of Stalinist understanding of news in which scientific facts (i.e. facts that correspond to the views of the party) are or should be reported by the media.

But the media cannot report such facts because the facts appear in a context and must be interpreted. Some times the interpretation of the facts by the media will differ from the interpretation by the political party. For that party to then assert that the media is peddling blatant lies, is to reveal a party with a messianic view of itself. If the party says something is so, it is a fact but if the media says something else it is a lie. Only the Party has direct access to the ¨truth¨.

This view of the all-knowing party is reflected in the following passage in the ANC response:

We trust that, in time, Mr Makhanya [the editor of the Sunday Times] will learn the important lesson about his own people, our people, that these masses know that lies have short legs, and therefore cannot travel far. As he learns this lesson, he might also come to understand why the ANC, a product of generations of African and black hope, which is deeply embedded in the psychology of these masses, is accurately described as a parliament of the people.

Maybe I am needlessly worried, but is it not potentially troubling that some members of the ANC sees the Party as the parliament of the people. Could this perhaps mean that what the ANC decides is more important than what Parliament decide? If so, what happens when Parliament stops being dominated by the ANC? This is the worst kind of exceptionalism and it can easily create the impression that the ANC is not as democratic as Mr. Suresh Roberts claims.

But there is a second troubling aspect to the statement. Why on earth is the ANC so paranoid when it has an almost 70% majority in Parliament and is in every way the dominant political force in South Africa? The statement reads in part:

It is perfectly clear that what Mr Makhanya, and presumably the newspaper he edits, seeks most fervently is to weaken the ANC. For this reason, he argues that our principled cohesion and unity, which he falsely characterises as ‘enormous power and trust (given) to one individual’ — the president — is inimical to the interests both of the ANC and the country.

The thought never occur to the mandarins at Luthuli House that the Sunday Times report was not a plot to weaken the ANC but part of the rough and tumble of politics. It is born out of the same messianic impulse described above because it is based on the notion that because the ANC is the parliament of the people only evil enemies could ever do or say anything that might not carry approval from the ANC. It is troubling and childish.

Strange how the ANC sees a plot around every corner – it is almost as if it has to conjure up enemies to keep the much vaunted unity in tact. The ANC has every right to criticize the media, but by doing it in such an over the top way, the organization really is not doing itself any favours.