Constitutional Hill

Transformation

On race and sex and unexamined assumptions

Jan 25th, 2012
by Pierre De Vos.
61 comments

The reaction from many people to a poster released by the Democratic Alliance Youth (DASO), in which they tried to make a point about the importance of trying to achieve a non-racial society in South Africa, is rather amusing and also quite revealing.

On the one side you have the lunatics (sorry Gareth!) like Connie van der Walt who wrote that if the guy in this picture was her son she would “shoot him dead like a bad dog”. On the other hand, there are those who interpret the poster as subliminally racist, either because it depicts a white and black person in an intimate pose at all, or because (slightly more plausibly) it depicts a white man and a black woman in an intimate pose.

Others have, of course, been outraged by the “disgusting pornography” of it all, given the fact that the two people in the poster appear to be naked from the waist up. (The people who pretend to be shocked by a mild poster like this, are probably not familiar with real pornography and would probably not make good classifiers at the Film and Publications Board.)

What is going on here? I believe (and I would, would I not?), these reactions demonstrate a few revealing things about our communal attitude towards race, sex and gender.

First, it seems to me that these reactions demonstrate the obvious fact that certain opponents of race-based affirmative action, who argue that we should not rely on racial categories when we devise measures to address the effects of past and on-going racial discrimination, are wrong. These critics argue that racial classifications are always morally repugnant, that it is in any case not always easy to determine what the race of a person is, that people who embrace non-racialism might not even see race at all, and that redress can be achieved without invoking such categories as people suffer disadvantage not because of their race but only because of their lack of access to financial and other resources.

I think the poster is rather clever (although DASO probably did not think about this) because no one who sees it will be able to deny that they noticed that the man and the woman in the poster look, well, “different” from each other. How we respond to it will of course depend on our deeply held (and perhaps unexamined or unknown) views on race and sex. We might see a white man once again exploiting a black women (despite the fact that the two people look more or less the same age and are both beautiful), or we might see two heterosexuals who are going to get a lot of flak from their parents, or (I confess this was my first thought) we might wonder whether the white guy is actually going to take his girlfriend home and whether he will one day marry her.

Given this obvious fact, how do people continue to assert that race has stopped mattering in South Africa and that most well-adjusted middle class (white?) people never see race anymore? How can we maintain the fiction that when a black person and a white person apply for the same job, we do not take any notice of the race of the applicants – unless we are forced to do so because of the requirements of affirmative action?

The poster reminds us that (as I have written before):

race hovers not far from the surface in private or other everyday settings: as an unspoken presence, a (wrongly) perceived absence or as a painful, confusing, liberating or oppressive reality in social, economic or other – more intimate – interactions between individuals or between groups of individuals. In South Africa we cannot escape race. We cannot escape our own race. Even when we claim that we have escaped the perceived shackles of race, we are merely confirming its presence by our stated yearning for its absence. And because of this we cannot claim that race does not matter when we talk about redress.

Second, the poster reminds us that many people (of all races) have internalised an apartheid mind-set regarding race, sex and gender and are utterly incapable of seeing intimacy between two people of different races and sexes in anything but starkly racial and gender stereotypical terms. Thus they claim that the poster reflects a racist and/or sexist mind-set because it depicts a white man (a man being the person who supposedly “is always in charge” in a sexual interaction) with a black woman (who is supposedly “always submissive” and to some extent the victim of the man’s sexual aggression).

To such people the thought never seems to have occurred that the women in the poster could be in charge (in charge emotionally, financially and/or physically) and that we cannot tell from the poster whether this is so or not. They have jumped to conclusions (based on their own internalised prejudices and stereotypical assumptions about race and gender and sex) that the woman in the poster is a meek receptor of male aggression. Maybe some have done so because the poster originated with the DA and in that context they are prepared to expect that the DA shares these racial, sexual and gender prejudices. But I would guess most did so because of their own prejudices of which they might not be aware – and not because of their view of the DA.

Lastly, the poster reminds us that many South Africans have internalised a notion of sexuality which has its origins in Judeo-Christian culture. We might call ourselves “Africans” but we often think about sex like modern day Christian missionaries. The assumption underlying the Judeo-Christian tradition is – as Susan Sontag has argued – that a person can be judged as “good” or “bad” (in other words, that a person can be judged as moral or immoral) almost exclusively based on that person’s sexual desires and/or conduct.

Sex is therefore always viewed as a “special case”. While we may not be judged for letting a man starve, we will be judged for wanting to sleep with that man. While a person (of whatever race) may therefore think of him or herself as having no racial prejudices, these prejudices might be flushed out when confronted with a poster that hints at sex between two people of different races. Seeing a black woman in the arms of a white man, the person recoils, either because the picture evokes (in the mind of the racist) unspeakable immoral couplings between the two, or because it evokes (in the mind of the person infected by colonial ideas) images of sexual exploitation of a black woman by a white man.

Leaving aside the white racists, many people would not recoil if he or she saw a picture of black man and a white woman sitting next to each other around a boardroom table. But when they see this picture, they do recoil instinctively because sex, somehow, is different. How ironic that they might then produce arguments that might sound progressive, arguments about the exploitation of black woman, while they are justifying the prejudices which they carry with them, prejudices that can be considered as one of the “special gifts” bestowed on indigenous South Africans by the colonial culture.

Which brings me to the second poster of the DA Youth depicted in this post. What, I wonder, would the reaction be to this poster of two men of different races? Would the same people who recoil at seeing a white man in an intimate situation with a black woman feel comfortable with two men of different races in an intimate situation? If they do not recoil, does this say something about how we construct woman as necessarily passive, powerless and meek? If they do recoil, do they know that their minds have been colonised by the ideas first brought to South Africa by white missionaries? I wonder…

Time to stop paying traditional leaders?

Jan 24th, 2012
by Pierre De Vos.
83 comments

Zulu monarch King Goodwill Zwelithini earlier this week reportedly criticised people who engaged in same-sex relationships, labelling them “rotten”. “Traditionally, there were no people who engaged in same sex-relationships. There was nothing like that and if you do it, you must know that you are rotten. I don’t care how you feel about it. If you do it, you must know that it is wrong and you are rotten. Same sex is not acceptable,” he reportedly said.

(The Zulu Royal Household has since criticised what it called a “reckless translation” of Zwelithini’s speech – a “reckless translation” perhaps being one that exposes the “King” as being a bit slow and thus not very familiar with the history of his “subjects”. “At no stage did His Majesty condemn gay relations or same sex relations,” Prince Mbonisi Zulu said.)

I will leave aside for the moment the fact that anyone who is familiar with the academic literature would know that while the notion of “perverted homosexuality” as an identity was probably imported into Southern Africa by European missionaries, no credible historian will now deny the existence of certain kinds of same-sex intimate conduct over the past two centuries in Southern Africa – no matter how shocked the (white) missionaries might have been by this.

Besides, one cannot expect the “King” to read academic journals and popular articles on homosexuality merely because he wishes to express himself on this topic. He must be a busy man, what with having to spend the R883 161 salary he receives annually from the national government, and with having to ensure that the Zulu Royal Household budget of just more than R55-million for the 20011/12 year is spent wisely. (Apparently R34,2m is to be used over the next three years to renovate his palaces who must be in a desperate state of disrepair and this must also keep him busy.)

I would rather focus on a more interesting constitutional question, namely why on earth do we have officially recognised Kings and Queens and Chiefs in South Africa and why are we paying through our noses for their upkeep? After all, traditional leaders (including the Zulu King) are not democratically elected (they inherit their titles) and their exercise of power over between 15 to 20 million South Africans may appear utterly undemocratic. Secondly, traditional leaders are mostly men, which go against the principles of non-sexism that is entrenched in the founding values of our Constitution.

It must therefore come as a surprise that section 211(1) of the Constitution explicitly recognises the “institution, status and role of traditional leadership, according to customary law” – although this recognition is made subject to the other provisions in the Constitution.

Given the fact that most traditional leaders were co-opted by the apartheid state to help the state to control the rural population of South Africa and to administer apartheid policies, one might well have thought that ANC politicians and the supposedly “forward looking” business lobby represented at the time by the so called “reformed” National Party might have wanted to get rid of this undemocratic system of inherited and elitist leadership when they negotiated the 1996 Constitution.

Recall that during apartheid, labour bureaux regulated the supply of labour to the mines, commercial agriculture and industry. In rural villages the administration of the pass book and the running of the labour bureaux, where permits had to be annually renewed, were the responsibility of the chiefs, who charged a fee for this “privilege”.

The 1951 Bantu Authorities Act formed the lynchpin of this system of indirect control of the rural poor by the apartheid government via the system of traditional leaders. Power rested with a hierarchy of (mostly) compliant chiefs, who were made utterly dependent on the patronage of the Department of Native Affairs. Chiefs were no longer accountable to their subjects, but to the Department of Native Affairs. Their powers were increased while their legitimacy was being eroded.

However, this system of co-opted traditional leadership was put under severe strain with the abolition of the pass laws in 1986 as this meant that migrant labourers no longer had to present themselves at the Chiefs office in their home village. Chiefs lost their income from registration fees and, to some extent, their control over the movements of their “subjects”. Because “disobedient” villagers could no longer be punished by withholding labour permits and travel documents and as chiefs no longer had the opportunity to collect arrears from their migrant “subjects”, chiefs often reacted by imposing new taxes to make up for the lost revenue.

One way of increasing their income (and retaining some form of control over “subjects”) was for traditional leaders to seize control over communal land and strictly regulating the use of resources (like water, grazing and fire wood) on that land, thus forcing rural poor people to pay for the “privilege” of using these communal resources. Thus the system of communal living was completely subverted in favour of traditional leaders with none of the checks and balances on the power of chiefs which existed in pre-colonial times. Another way of retaining control over “subjects” was through the role played by traditional leaders in interpreting and enforcing customary law rules in traditional courts.

No wonder the ANC, who in exile seemed rather hostile towards the system of co-opted traditional leadership (including towards King Goodwill Zwelithini who at the time was in the pocket of a Bantustan leader called Magosuthu Buthelezi), changed its mind once back in South Africa. In order to defuse the violence between supporters of Buthelezi’s IFP and ANC supporters in KwaZulu-Natal and to gain support from voters living in traditional areas under the undemocratic yoke of traditional leaders, the ANC started wooing traditional leaders.

In this process, the masterstroke of the ANC was for the national government to take over control over the purse strings. Thus Parliament adopted the Remuneration of Public Office Bearers Act in 1998 which prevented Provinces (like the then IFP controlled KwaZulu-Natal) from paying traditional leaders over and above the payment made by the national government in terms of this Act. (This move – along with the buying off of King Goodwill himself – broke the stranglehold of the IFP over traditional leaders in KwaZulu-Natal and allowed for the current resurgence of the ANC in that province in the light of President Jacob Zuma’s election as President of the ANC.)

Meanwhile the Black Administration Act was finally abolished in 2005 and left a power vacuum as it robbed traditional leaders of some of their authority. This may be why the adoption of a Traditional Courts Bill (tabled for the first time in 2008) is reportedly on the legislative agenda for 2012. The draft Bill authorises a traditional court (led not by a judge or magistrate but by a traditional leader authorised to do so by the Minister) to hear and determine civil disputes arising out of customary law and custom brought before the court where the act or omission which gave rise to the civil dispute occurred within the area of jurisdiction of the traditional court in question.

Thus, instead of speeding up the integration of customary law into mainstream law (as one of the three pillars of our legal system), this Bill will have the effect of ensuring the continued marginalisation of customary law, practiced mostly in traditional courts and seldom in High Courts, where judgements are reported and infiltrate the legal consciousness.

Although the draft Bill requires the traditional courts to respect the provisions of the Bill of Rights, it is unclear whether such safeguards will be respected and to what extent “subjects”, especially women who may depend on the goodwill of the chief to gain access to water, grazing for cattle and housing, (or other unpopular individuals like gay men and lesbians) will be prepared to challenge a decision made in such a traditional court elsewhere.

There are going to be serious constitutional problems with this Bill despite the fact that section 211(2) of the Constitution allows a traditional authority to observe a system of customary law, subject to any applicable legislation and customs. This is because section 34 of the Constitution states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. This must be read with section 165(2) which states that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

Given that the Constitution subordinates traditional leadership functions and structures as well as customary law provisions and their application to other provisions in the Constitution – including the provisions of the Bill of Rights – I would guess that courts staffed by unelected hereditary chiefs will be found to be unconstitutional as they will not be independent and nor will they be likely to administer justice in an impartial manner – especially not to someone who happens to be a women or, god forbid, gay or lesbian.

They would lack independence because they would not enjoy the basic institutional guarantees required for a tribunal or court to be considered as independent. For starters, chiefs are paid by the government of the day and can also be removed as chiefs and they therefore do not have security of tenure. They would also potentially lack impartiality, as those chiefs who happen to be unwise, or are patriarchs or have been corrupted by money interests, might reasonably be perceived as being biased in one way or another.

Which brings us back to King Goodwill and his reported remarks about same-sex relationships: when we talk about transformation and the need to eradicate the vestiges of apartheid thinking, has the time not come for citizens to stop bankrolling the lavish lifestyles of Kings like Zwelithini (with his backward views) and the lifestyles of other unelected traditional leaders? Given the fact that traditional leadership has been totally transformed by the engagement with colonialism and was co-opted by the apartheid government and thus implicated in taking part in the enforcement of sometimes authoritarian controls over rural citizens, should people like King Goodwill not perhaps stop milking the taxpayer and start paying his own way like everyone else?

Constitutional Court once again to the rescue of workers

Nov 28th, 2011
by Pierre De Vos.
26 comments

What happens if a parastatal like South African Airways (SAA) acts in a manner destructive of the rights of its workers and a court intervenes to protect the workers? Would the cabinet see such a move by a court as advancing the socio-economic interests of ordinary citizens and thus advancing the transformation agenda, or, alternatively, would it see the pro-worker decision by the court as unacceptable “interference” by the court in the running of SAA?

The answer is not clear. After all, in a world in which a “pro-transformation” government often acts in an “anti-transformation” manner when the financial interests of some of its donors, benefactors and family members or friends of the President or other cabinet ministers are at stake, the cabinet might well argue — in truly Orwellian manner — that a pro-transformation judicial decision is in fact anti-transformation.

These questions take on an added importance in the light of the seemingly bizarre statement recently issued by the cabinet about the need to assess the judgments of the Constitutional Court “to establish how the decisions of the court have impacted on the lives of ordinary citizens and how these decisions have influenced socio-economic transformation and the reform of the law”.

Last week the Constitutional Court, in the case of Aviation Union of South Africa and Another v SAA and Others, handed down a judgment in an appeal from the Supreme Court of Appeal (SCA) in which that court ruled that workers affected by an outsourcing agreement in which part of a business is transferred as a going concern would not be protected — despite the provisions of section 197 of the Labour Relations Act which protected workers involved in an outsourcing agreement — if the outsourcing agreement was terminated and a second outsourcing agreement entered into.

SAA had outsourced maintenance services to a company called LGM for a fixed period (and transferred that part of its business as a going concern to LGM) but this outsourcing agreement was not renewed. SAA was planning to issue tenders for the provision of the services previously provided by LGM. If the interpretation by the SCA had been endorsed by the Constitutional Court, it would have meant that the employees of SAA (and later LGM) who enjoyed protection afforded by section 197 at the stage of the first outsourcing agreement to LGM would be left with no protection if the same business was again transferred in terms of a second or further outsourcing agreement to another company.

The Constitutional Court had already interpreted section 197 in National Education Health and Allied Workers Union v University of Cape Town and Others, (NEHAWU) where it stated that the correct approach to interpreting the section was:

to construe the section as a whole and in the light of its purpose and the context in which it appears in the LRA. In addition, regard must be had to the declared purpose of the LRA to promote economic development, social justice and labour peace. The purpose of protecting workers against loss of employment must be met in substance as well as in form. And, as pointed out earlier, it also serves to facilitate the transfer of businesses. The section is found in a chapter that deals with unfair dismissal. Construed against this background, the section makes provision for an exception to the principle that a contract of employment may not be transferred without the consent of the workers.  Subsection (1) says so and it makes it possible to transfer the business on the basis that the workers will be part of that transfer.  This will occur if the business is transferred as a going concern.

Section 197 alters the common law which previously provided that the employment contract between employees and the company automatically came to an end when that company transferred a business to another company “as a going concern”. The section thus protects the job security of workers affected by the transfer of a business from one company to another company — in this case as part of an outsourcing agreement. In the Nehawu case the Constitutional Court said that in deciding whether a business has been transferred as a going concern (a prerequisite for section 197 to operate) regard must be had to the substance and not the form of the transaction.

A number of factors will be relevant to the question whether a transfer of a business as a going concern has occurred, such as the transfer or otherwise of assets both tangible and intangible, whether or not workers are taken over by the new employer, whether customers are transferred and whether or not the same business is being carried on by the new employer.  What must be stressed is that this list of factors is not exhaustive and that none of them is decisive individually.

There were two judgments in the Constitutional Court case. Both rejected the conservative and exceedingly formalistic interpretation of section 197 provided by the SCA as such an interpretation would have provided far less protection for workers caught up in such outsourcing agreements.

The minority judgment, authored by Justice Chris Jaftha (and supported by Justice Mogoeng Mogoeng and Dikgang Moseneke, amongst others) found that the facts placed before the Labour Court were insufficient to support the finding that the termination of the agreement between SAA and LGM, coupled with the performance of the relevant services by SAA, would constitute a transfer of business as a going concern. This meant that it was not possible to determine whether the protection afforded by section 197 would apply or not. The minority would therefore have referred the matter back to the Labour Court to deal with the factual issues in the light of the proper interpretation of section 197.

The majority, in a judgment written by Justice Zack Yacoob (and supported by Chief Justice Ngcobo and Justices Cameron, Froneman, Khampepe and Van der Westhuizen), differed with this approach. The majority agreed with a broader interpretation of section 197 and also rejected the narrow and legalistic approach of the SCA. However, it disagreed with the minority that a transfer must already have taken place in this case before the applicants are entitled to any relief. The majority also disagreed with the conclusion that the evidence does not justify relief being granted to the Union by the Constitutional Court itself.  It therefore found that there was no need to refer the matter back to the Labour Court for further consideration.

The implicit concern of the majority in this case was that an original employer would be able to “get rid” of employees by transferring part of their business as part of an outsourcing agreement for a fixed period, then terminating that agreement without demanding that the part of the business would be transferred back to it or doing so only at a time when workers rights had already been affected.

According to Yacoob, unless SAA or the temporary service provider decided to take over the employees, contrary to the contentions of SAA, the workers would have remained with LGM on the date of the termination of the agreement. LGM might then have had to retrench all the employees.

On the assumption that the transaction with which we are concerned, in particular its cancellation, involves the transfer of a business as a going concern, the workers would have been hard done by on 1 October 2007 [when original agreement was terminated] because they would have been left with LGM.  The interim service provider would have sourced its workers and the possibility of the workers at LGM being transferred would be reduced.  In my view, the section contemplates a seamless transfer from the old employer to the new one.  And this becomes possible only if, when there is a dispute about whether the workers are to be automatically transferred in terms of the transaction concerned, that dispute is determined before the implementation of the agreement.

The majority found that the outsourcing agreement had to be interpreted in a manner that would inevitably activate section 197 at the termination stage of the agreement. It found that LGM did indeed become obliged to assist SAA in transferring certain services to SAA or to a third party. But the agreement went further, the court found. LGM was also obliged to provide SAA with reasonable access to the services, assets and inventory of LGM. LGM became obliged to sell all fixed assets and inventory dedicated only to providing the services in terms of the agreement back to SAA and to transfer or assign all third party contracts to SAA.

In the circumstances, the majority found that the cancellation clause of the agreement contemplated a transfer of the business as a going concern. The only debate was about whether the business as a going concern was to be transferred to SAA or to an interim service provider. As long as there is a transferor, the identity of that entity or person is of no material significance. The agreement contemplates transfer by LGM to SAA or to the interim service provider.  It requires a transfer by a transferor, the old employer, to the transferee, the new employer.

The majority therefore made a declaratory order that would safeguard the rights of the employees affected by the cancellation of the outsourcing agreement. It was therefore a judgment that any reasonable person would agree impacted positively on the lives of ordinary citizens (if not on the lives of SAA executives who might receive smaller bonuses as a result of the decision). However, only time will tell whether the independent research institution tasked with assessing the work of the Constitutional Court and the cabinet, will see this judgment in this way.

The (moral) Wasteland

Nov 21st, 2011
by Pierre De Vos.
114 comments

Over the past few days I have been thinking again about The Reader (Der Vorleser), a novel by German law professor and judge Bernhard Schlink, published in Germany in 1995. The Reader is a parable of sorts, as it deals with the difficulties the post-war German generation have had in comprehending the Holocaust. How should modern Germans deal with the knowledge that their parent’s generation perpetrated (or acquiesed in the perpetration of) the Holocaust?

In this novel, the struggle of the post-war generation to come to terms with the past, and its difficulties in deciding how it should view the generation that took part in, or witnessed, the atrocities committed by the Nazi regime is problematised and the complexity (or perhaps impossibility) of the task, is explored.

Michael – the young “reader” of the title – who had an affair with a much older woman called Hannah many years after the war (a woman who is later implicated in Holocaust atrocities), finds it impossible to imagine what Hannah was like “back then”.  He feels a difficult identification with the victims of Hannah’s deeds when he learns that Hannah often picked one prisoner to read to her, as she chose him later on, only to send that girl to Auschwitz and the gas chamber after several months. Did she do it to make the last months of the condemned more bearable? Or to keep her secret safe? Michael’s inability to both condemn and understand springs from this. He asks himself and the reader:

What should our second generation have done, what should it do with the knowledge of the horrors of the extermination of the Jews? We should not believe we can comprehend the incomprehensible, we may not compare the incomparable, we may not inquire because to make the horrors an object of inquiry is to make the horrors an object of discussion, even if the horrors themselves are not questioned, instead of accepting them as something in the face of which we can only fall silent in revulsion, shame and guilt. Should we only fall silent in revulsion, shame and guilt? To what purpose?

I have been thinking about this novel because of a broedertwis (a friend joked that it was actually a sustertwis) raging on the pages of Rapport newspaper between myself and those (including an English novelist called Dr. Marie Heese) who argue that one of the most egregious injustices is being perpetrated at the University of Stellenbosch because some classes are now being conducted in both Afrikaans and English (alternating between the two in the same class).

I responded (rather sharply) to an assertion by Dr Heese that she was “die bliksem in” (“bloody outraged”) about my previous writings on this topic, arguing that this sudden moral outrage is rather rich, coming from a person who supported apartheid and never expressed any moral outrage about the oppression, legalised racial discrimination, torture and murder perpetrated by the apartheid regime in order to sustain a system, imposed in the name of the preservation of white Afrikaners, and branded a crime against humanity by the United Nations. This women, I said, knew nothing about justice, honesty and plain common decency. (Ironically, in the same issue of Rapport Dr Heese offered a partial defence of Bantu Education - which she enthusiastically took part in — rather underlining the point I was making about her immoral, apologist, view of apartheid.)

Elsewhere in that august paper Pieter Malan (one of its editors) took exception: “Met wie praat jy, professor? Ek kom uit ’n ordentlike huis. Ek laat my nie so behandel nie.” (“Who are you talking to, Professor? I come from a decent family. I do not allow myself to be treated in this manner.”) While admitting that we should not close our eyes to the “faults” of our parents, Malan argued that Afrikaners have a lot to be proud of: the industrialisation of the country, creating the best infrastructure on the African content and building Afrikaans into a fully fledged academic language (albeit not one in which Dr Heese wishes to publish her novels) were all achievements of Afrikaners who now face a grave threat to their future because their children (even those who fight for Afrikaans at Stellenbosch) choose to write their post graduate dissertations in English and dream of living in Sydney or London.

Which brings me back to The Reader.

What does it mean to come from a “decent” Afrikaans family? Can one credibly call that family “decent if its members actively or passively participated in the perpetuation of a crime against humanity? How should we deal with the “faults” of our parents — if those faults include the enthusiastic support for the systematic dehumanisation, denigration, oppression and (at times) torture and murder of fellow citizens — all based on the belief in the racial superiority of whites?

Is it morally defensible (and factually correct) to argue that Afrikaners created the modern capitalist state in South Africa and to suggest that this is something to be proud of? What does it say about the nature of the moral universe inhabited by these children of apartheid, when some of them express moral outrage about the manner in which Afrikaans is treated (although this treatment complies with the provisions in the Constitution), but have consistently failed to express similar moral outrage about the injustices related to our apartheid past in which their parents were implicated, or the injustices of hunger, homelessness and inequality that haunts present day South Africa?

These are not easy questions to answer. It is emotionally and intellectually challenging even to begin to contemplate the past in an honest and fearless manner. After all, none of us wish to think of ourselves as being morally tainted because of what our parents did (or, yes Dr Heese, because of what we did or allowed to be done). How can we judge our parents when they loved us (even when they hated fellow black South Africans and enthusiastically supported or took part in their oppression), when we fondly recall how — as toddlers — our parents lulled us to sleep at night by humming the well-known Afrikaans lullaby, Siembamba? Siembamba/ mama se kindjie/ Siembamba, Mama se kindjie/ draai sy nek om/ gooi him in die sloot/ trap op sy kop/ dan is hy dood (“Siembamba/ mothers child/ Siembamba/ mothers child/ break his neck/ dump him in a ditch/ step on his head/ then he’ll be dead”.)

No wonder so many of us find it impossible to begin to comprehend the incomprehensible horror of apartheid and the complicity of our parents in this horror. No wonder we shy away from any but the most flippant acknowledgment of the “faults” of our parents and then cover this up by extolling the virtues of a regime that supposedly “created” the current infrastructure and the modern capitalist (albeit a bifurcated) state which was rigged disproportionately to benefit whites. (No matter that the infrastructure was paid for with the taxes generated by white-owned mining companies and businesses who made exorbitant profits because they could rely on the cheap migrant labour that was an inherent part of the apartheid system. No matter that the infrastructure was partly built with the hands of black men paid a pittance because of the racist employment policies embedded in the legal system.)

No wonder so many seem to find it impossible to reflect seriously on what our parents actually were like “back then”, what they were actually thinking and saying and doing while they rode on the “Whites Only” buses and bought stamps at the “Whites Only” counter of the post offices, when they euphorically cheered on DF Malan or HF Verwoerd and JB Vorster and PW Botha (all Chancellors of Stellenbosch University) at National Party or Republic Day rallies while these leaders extolled the virtues of apartheid and argued that black South Africans were essentially sub-humans who did not deserve to be treated equally with whites who, after all, had a duty to protect white civilisation against the black hordes? No wonder those of us who grew up in the apartheid era (and maybe supported it by getting involved in the Bantu education system), prefer to believe that we only meant well — although some “mistakes” were admittedly made.

Yes, in order to preserve our sanity and our sense of ourselves as basically decent and “innocent” people, we might believe that we have no choice but to maintain that we come from “decent” families. We might believe that we have no choice but to insist that nobody treat us as if we are morally tainted. We dare not admit that we lack the moral decency to target our outrage at the real injustices of past and present day South Africa and not at the failure of institutions like the University of Stellenbosch unconstitutionally to preserve the white privileges obtained through the exploitation of black South Africans.

I am not being flippant when I say these are emotionally and intellectually complex and difficult issues to deal with. No person wishes to be told that his father or mother was a moral degenerate and few of us would agree with such a proposition if we could find any way to deny or reinterpret the facts on which such a charge was based. If one lives in a country that underwent a managed transition, a country in which the oppressors were never fully defeated or exposed and humiliated, in which a Truth and Reconciliation Commission granted amnesty to the perpetrators of gross human rights violations and in which there was never an acknowledgment that the evil of apartheid was not perpetrated by a few “bad apples” like Eugene de Kock, but by every person who benefited from the system yet supported or acquiesced in it, this task of at least acknowledging the impossibility of facing up to the past honestly and fully becomes very difficult.

Most of us Afrikaners (and many white English speakers too) live in a moral wasteland: most feel that we must either deny the past and our complicity in it (or at the very least re-write that past to erase our complicity in it), or we must acknowledge the full horror of that past, which seems to mean that we would lose our very humanity, our ability to be human beings with an inherent human dignity with moral agency and the right to express our views on present day injustices in our country.

Some of us try to find another way. We grapple with the impossibility of squaring our love for our parents and our family (and the langue we all speak) — all implicated in the horrors of the past — with attempts to imagine how it was “back then”; what our parents said and believed and did to maintaining a system branded a crime against humanity, all because they loved us and wanted to provide us with a better life, even when this was at the expense of the humanity (and sometimes the lives) of the majority of South Africans.

To square these things is impossible. To stop trying is immoral.

PS: I borrowed some of the information about The Reader for this piece  from Wikipedia. See: http://en.wikipedia.org/wiki/The_Reader

About family fights and transformative constitutionalism

Oct 13th, 2011
by Pierre De Vos.
67 comments

When a relatively wealthy man is involved in an acrimonious divorce and subsequently marries another woman, when friction then arise between the new wife and her children on the one hand and the children of her new husband on the other, and when the husband then dies at a relatively young age, it is one of those sad facts that there is a more than even chance that the remaining family members will start fighting with one another — especially about money — and that soon enough they will find themselves on opposite sides of a legal battle that will end up in the Supreme Court of Appeal (SCA) in Bloemfontein.

I was therefore not surprised to read the recent SCA judgment in the case of Potgieter and Another v Potgieter and Others. This case stems from a dispute about money held in trust. A father had created the trust to benefit his two children from his first marriage. (When the trust was created they were still minor children but they are both grown up now.) But after divorcing his wife (after an acrimonious fight) and marrying another woman, he purported to amend the provisions of the trust so that his new wife and her two children might also potentially benefit from the trust.

His two birth children challenged the validity of this amendment to the trust — made a few years before his death — and both the High Court and the SCA agreed that for various technical reasons the variation of the trust deed was invalid. Normally this finding would have resulted in the implementation of the trust deed in its original, unamended form, leaving the new wife and her two children with no benefit from the trust. As the husband had changed his will at the same time that he purported to change the provisions of the trust, his intention to provide for his new wife and her two children would have been thwarted by the nullification of the amendments to the trust.  However, the High Court (in a judgment authored by Bertelsmann J) found this result in the circumstances, unpalatable, contrary to public policy and constitutionally unsound.

Relying on the majority judgment of the Constitutional Court in Barkhuizen v Napier, the judge argued that it was now part of  our contract law that, as a matter of public policy, our courts can refuse to give effect to the implementation of contractual provisions which it regards as unreasonable and unfair; and the same principle should be applied in other spheres of private law like the law of trusts.

In consequence the High Court granted an order which effectively awarded one-fifth of the trust assets to each of the two appellants as their exclusive property, while the other potential beneficiaries retained their rights in terms of the amended trust deed in respect of the remaining three-fifths of the trust assets.

The SCA, in a judgment authored by judge Brand (the same judge who, as an acting judge on the Constitutional Court, made such a hash of the case in which a deputy headmaster sued three school boys for defamation), seemed rather horrified by this line of reasoning by the High Court. How could a court possibly deviate from common law principles usually applicable to trusts by invoking the provisions of the Bill of Rights – all merely because it might result in a more fair and reasonable outcome for everyone?

This attitude of the SCA regarding the application of so called “abstract values” like reasonableness and fairness to aspects of the private law is telling. I would argue that it demonstrates a lack of appreciation for the unique nature of our Bill of Rights and the transformative vision it embodies.

The South African Constitution is often said to be a transformative Constitution, something which have been confirmed by the Constitutional Court and in extra-curial writing by various Constitutional Court judges. Minister Blade Nzimande is correct when he points out that our Constitution does not (only) serve to check the excesses of the executive. It is supposed to do much more than that. It should be used by our courts to assist with the transformation of — amongst other things — the legal system itself, including the rules developed over time by judges as part of the common law.

Rules of our common law have often been based on the assumption that we are all born free and equal, that we all have absolute agency and are empowered to make rational choices for our own benefit (even when others we contract or legally engage with are rich and powerful and we are poor or otherwise disempowered), that we are only to blame ourselves if legal rules treat us unfairly or lead to injustice. But these assumptions and the legal rules which were produced in their wake cannot be squared with the egalitarian values contained in our Bill of Rights and the concern with dignity, equality and fairness that runs like a golden thread through that document.

Moreover, section 39(2) of the Constitution states that ”when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights”. It is true that some academics have argued that this means no more than that our courts should promote the values in the Constitution once (and only once) it has decided (for some reason unrelated to the provisions in the Bill of Rights) that it was necessary to develop the comm0n law. According to this view, section 39(2) places no general injunction on our courts to ask in each case where they apply a common law rule whether a particular rule should not be developed to infuse it with the values contained in the Constitution.

In my opinion this view is politically deeply conservative and also, quite frankly, dead wrong. If followed, it would limit the transformative power of the Constitution and would largely insulate the common law rules from the salutary influence of the Constitution. Basic assumptions about freedom of choice and the essential equal power of people in society, which underlie many common law rules but are in fact fictions propagated by the rich and powerful to ensure that legal rules remain rigged in their favour, would largely remain untouched.

The anti-transformative attitude towards the common law has long been said to stem from South Africa’s conservative legal culture and the resistance of many lawyers — even seemingly progressive lawyers — from acknowledging the fact that legal rules are not without political consequences, are not free from ideological assumptions and effects, and are partly determined by the values and ideological commitments of the judges who interpret, develop and apply these legal rules. In the past it has often been said that this attitude about the sanctity of the common law and the supposed a-political and “neutral” nature of legal rules finds its greatest champion and defender amongst some judges of the SCA.

It is against this background that the arguments in the judgment in the Potgieter case should be evaluated. The judgment seeks to distinguish between the application of what it calls abstract values like reasonableness and fairness (which are supposedly vague, lead to legal uncertainty, and are therefore really bad) and the application of so called legal rules that can be distinguished from values (which are supposedly capable of predictable application and thus leads to legal certainty).

In this view, whether a set of traditional common law legal rules favour the rich over the poor or the powerful over the disempowered, and whether the application of the legal rules lead to consequences that are unfair or unreasonable are never relevant. Who cares about injustice when legal certainty is at stake? After all, the law is not political at all and we should ensure that it stays that way by preventing judges from applying abstract values instead of the precise legal rules that produce predictable results in every properly decided case.

To be fair, the judgment merely relied on a distinction between abstract values and legal rules which have long been cherished by judges and many legal academics in South Africa. It confirmed a principle set out in previous judgments of the SCA, namely that reasonableness and fairness are not freestanding requirements for the exercise of a contractual right in South Africa. Thus, the SCA quoted the following passage from one of its previous judgements:

[A]lthough abstract values such as good faith, reasonableness and fairness are fundamental to our law of contract, they do not constitute independent substantive rules that courts can employ to intervene in contractual relations. These abstract values perform creative, informative and controlling functions through established rules of the law of contract. They cannot be acted upon by the courts directly. Acceptance of the notion that judges can refuse to enforce a contractual provision merely because it offends their personal sense of fairness and equity will give rise to legal and commercial uncertainty.

The SCA interpreted the Barkhuizen decision of the Constitutional Court as meaning that it is not yet part of our contract law that, as a matter of public policy, our courts can refuse to give effect to the implementation of contractual provisions which it regards as unreasonable and unfair. Perhaps forgetting that it has a duty under section 39(2) of the Constitution to develop the common law to bring it in line with the spirit, purport and object of the Bill of Rights, Brand J then continued that ”[u]nless and until the Constitutional Court holds otherwise, the law is therefore as stated.” As I read this statement, the SCA is saying that it will only change its rigid and seemingly anti-transformative approach to our common law if it is forced to do so by those rogue judges of the Constitutional Court.

The SCA also argued that our law cannot endorse the notion that judges may decide cases “on the basis of what they regard as reasonable and fair”, as this ”will give rise to intolerable legal uncertainty”.

That much has been illustrated by past experience. Reasonable people, including judges, may often differ on what is equitable and fair. The outcome in any particular case will thus depend on the personal idiosyncrasies of the individual judge. Or, as Van den Heever JA put it in Preller v Jordaan 1956 (1) SA 483 (A) at 500, if judges are allowed to decide cases on the basis of what they regard as reasonable and fair, the criterion will no longer be the law but the judge.

The SCA thus also contended that the decision of the High Court to apply reasonableness and fairness criteria to this case offended the principle of legality, which must be regarded as part of the rule of law. ”Making rules of law discretionary or subject to value judgments may be destructive of the rule of law,” said the court.

The problem with this line of reasoning is of course that it is based on the untenable fiction that legal rules do not have to be interpreted at all, that such rules just have an obvious and single meaning that suggests itself to a judge who never has to revert to value judgements when he or she interprets a legal rule.  This view also loses sight of the blindingly obvious fact that when these legal rules are applied by judges, value judgments must inevitably be made. Different judges will not always interpret the same legal rule in the same way and neither will they apply that rule to the same set of facts in exactly the same way.

As any practicing lawyer (or anyone who has read some writing by legal realists) will tell you, this kind of reasoning is not easy to square with reality. After all, often the first thing a lawyer asks when he or she has to appear in court, is who the judge is before whom he or she is going to appear. And why would anyone have been upset about the values and beliefs of our new Chief Justice if they did not think that the value of a judge played a role in adjudication — even when a judge is called upon to apply so called rigid legal rules?

The notion that legal rules provide almost absolute legal certainty is an obvious fiction that cannot bear scrutiny. If rules provided such certainty, why would anyone ever approach a court and ask a court to interpret or apply a legal rule in any dispute? All parties in a legal dispute would ask their lawyers to tell them what the outcome of their case would be and the party who is told that she will lose the case will then be persuaded not to waste her money on legal bills by pursuing the case in court. However, this does not happen in real life because real human beings apply the law.

When I read the reasoning of the SCA in the Potgieter case I was reminded of the Constitutional Court judgment in Van der Walt v Metcash. In that case the court dealt with an appeal from the SCA. The appeal stemmed from a strange situation in which the SCA had handed down two  judgments on successive days in August 2001 but made contrary orders in the two cases which were materially identical. They were made in response to petitions addressed to the Chief Justice for leave to appeal against orders of the High Court in summary judgment applications. In the first order, Mr J van der Walt, the applicant, was refused leave to appeal. In the second, a Mr Kgatle, who is not a party to these proceedings, was granted leave to appeal.

The Constitutional Court, quoting from its judgment in Dawood and Another v Minister of Home Affairs and Others, noted that “[discretion] plays a crucial role in any legal system. It permits abstract and general rules to be applied to specific and particular circumstances in a fair manner.” The Court stated that it “would seriously diminish the efficacy of this role of discretion if a decision made pursuant to its exercise bound other judicial officers in a court at the same level in the later exercise of their discretion in subsequent cases”.

The truth is that there will always be an interplay between legal rules and the values that underpin them on the one hand, and the duty of individual judges (who have their own values, life experience, and acknowledged or unacknowledged beliefs) to exercise a discretion and to treat the parties before them fairly and justly. The notion that legal rules provide absolute certainty is a fiction perpetrated by judges in order to avoid responsibility for the fact that their own values and beliefs play a role in how they interpret legal rules and how they apply those rules to a certain set of facts.

Take the Potgieter case as an example. The High Court relied on so called abstract values like reasonableness and fairness and chose not to apply the normal rules that apply to the enforcement of trusts. The SCA relied on so called abstract values (influenced by what might be perceived as the demands of the capitalist system) like legal certainty to hold the opposite. Both judgments reflect the broader ideological and policy choices the judges made when they were applying the common law. The former judgment just happens to be more just and fair than the latter and also more in line with the letter and the spirit of our Constitution.

About the “Boksburg Bomber” and the “entanglement of colours”

Sep 14th, 2011
by Pierre De Vos.
107 comments

This is a (slightly edited) extract from the second part of the inaugural lecture delivered by me tonight at the University of Cape Town Law Faculty. The lecture relies on many themes first developed on this Blog and also incorporates some of the words first published here. The lecture is entitled: ”The past is unpredictable: race, redress and remembrance in the South African Constitution” (playing with a statement made by Evita Bezuidenhout that: “The future is certain – it’s the past that is unpredictable”) and engages with the question of how we can deal with necessary race-based corrective measures without perpetuating racialised thinking.

It proposes that we engage more seriously and in a nuanced manner with our apartheid past and suggests that this might assist us to deal with the effects of past and ongoing racism and racial discrimination (through the use of race-based redress measures) without getting transfixed by the racial catgories we have to rely on.

Herewith the extract:

In Jacob Dlamini’s book Native Nostalgia he tells many stories about growing up during the apartheid years in Katlehong, a township located 35 km east of Johannesburg and south of Germiston (not far from Alberton where I had the dubious honour of completing my primary school education).

Of course, when I was a primary school child during the height of apartheid, it would have been unthinkable for me to spend time in Katlehong and to get to know Dlamini, his mother or his friends. It would also have been legally impossible for Dlamini to attend the same relatively good school as I did and unthinkable that he would spend time with me in my family home in Alberton as a friend to get to know me, my mother or my friends.

One of the stories Dlamini tells of his childhood in Katlehong is about how the people living in his street listened to the radio broadcast of the world heavyweight boxing title fight in which Gerrie Coetzee (who hailed from nearby Boksburg and was hence known as the Boksburg Bomber) took on a black American, and how they all cheered on homeboy Gerrie, who, after all, grew up not too far from Katlehong.

I too listened to that fight broadcast over the radio, albeit to the Afrikaans and ridiculously biased commentary of Gerhard Viviers – all from the relative privilege of our whites only suburb of Brackenhurst in Alberton. And I too cheered on the Boksburg Bomber, albeit with my shouting father who was already slurring his words after one brandy too many.

We were worlds apart: one slightly bewildered white boy, living in the privileged comfort afforded to white middle class South Africans by the system of apartheid, one black boy subjected to the humiliation wrought by the system from which I was to benefit so handsomely. Yet to tell the full and nuanced story of our respective childhoods, it would be a mistake not to acknowledge this shared experience, because it reminds us that – apart from belonging to the apartheid era race categories imposed on us – our life experiences intersected and overlapped in sometimes surprising and other times shocking ways and that our lives (and who we became) were influenced by many factors apart from our respective races.

As Achille Mbembe has stated: “There is an ‘entanglement’ of colours in South Africa… There is no black history in South Africa that doesn’t involve whiteness. The history is an entanglement of colour lines.” Recognizing this entanglement and recognizing, further, that this entanglement occurred and continues to occur against the backdrop of white economic and social dominance, might assist us to take race (and the devastating effects of past and ongoing racism) seriously while safeguarding against the perpetuation of a society in which race is seen as the only relevant factor in determining who one is and where one fits in, a society in which race is essentialised.

This engagement with our history would be incomplete if it did not note that in terms of the Population Registration Act the state ensured that we had very different life experiences, that we were deemed to be different in every way. As a middle class white boy I was accorded a certain status which allowed me (unthinkingly, I must add) to enjoy the privileges that were associated with being a member of the economic, social and political dominant racial minority.

Later, of course, I discovered that one might also belong to other identity categories; that my sexual orientation and my HIV status could change my standing in society somewhat - from being an absolute insider to a person faced with the challenges associated with these other aspects of my identity, aspects which many in our society still insist belongs on the margins. I also discovered that other aspects of my identity – my whiteness, my economic and social privilege, my academic status – could mitigate against the deeply dehumanizing effects of the prejudices associated with those aspects of my identity (sexual orientation/HIV status) that would invite marginalisation or even rejection.

The point I wish to make is that when we reflect on race-based redress measures at institutions like UCT (an institution created by whites for whites all those years ago) and when the Constitutional Court engages with the question of whether a specific race-based redress measure is constitutionally compliant, the full complexity of our past and the history of each individual who still carries this past with them – no matter how some of us might protest that the past is behind us and that we have suddenly become race-blind and stripped of the social and economic privileges our white skins might still be affording us – must not be lost sight of.

I propose that the starting point for such a nuanced approach should be to recognise that the various identity categories – including race, including sexual orientation, including gender, including HIV status – are the product of a specific history and that they cannot be used to predict how individuals who are said to slot into these categories will behave, what their attitudes will be, and who they are as individuals. When we use these categories for purposes of redress we should do so ironically and in a contingent manner.

In other words, we should never use such categories as if they are “real”, in the sense of really saying something profound or true about any human being, all while acknowledging that the categories feel real to most people and that being assumed to be a member of one of the race categories will often have very real consequences – as  was so brutally illustrated by the fact that Eudy Simelane, a member of South Africa women’s national football team and an LGBT-rights activist, was raped and murdered in her hometown of KwaThema, Springs, Gauteng in 1998 because she was a women and she was a lesbian.

Second, a more nuanced deployment of such categories in legislation, policies and regulations is required. Apart from the category of race (which for the moment we have no choice but to rely on to help address the effects of past and ongoing racism and discrimination) we may want to add other considerations – along with the race of an individual – when we decide whether an individual should be the beneficiary of a specific programme of corrective measures.

The social and economic status of the individual and his or her parents; whether an individual is part of a first, second or third generation who has obtained secondary or tertiary education and the nature of that tertiary education (if any) received by his or her parents or grandparents; whether an individual grew up in a rural area or in the city; whether the individual is monolingual or speaks several South African languages; whether an individual attended a mud school in the Eastern Cape or a posh private school in Rondebosch; whether the individual is required to study in his or her home language or in a second or third language – these factors, along with many others, could all be considered as relevant (along with the race of an individual) when decisions about redress measures are made.

There must also other ways to deal with issues of redress. Who knows? What I do know is that we need to continue having a conversation about what will work best and that when we do so we ignore a critical but serious engagement with the past at our peril. When I talk about a conversation I do not mean a shouting match in which individuals retreat into the laager of their own apartheid era racial identities and shout abuse at others who they perceive to belong to a different apartheid race category, clinging to rigid and simplistic master narratives which the ghost of our apartheid past have fixed so firmly in many of our imaginations (even if many deny this).

In having this conversation it would be helpful if we could agree that it is important to take race and the need for racially-based redress seriously while also acknowledging that in doing so there is a danger that the use of apartheid era race categories will imprison us all in an apartheid of the mind.

This we can only do if we have a real and open discussion about what race did to all of us in the past (and continues to do to us today) and engage with the issue of how we can address the effects of race in the future; if we do not take part in the discussion as perpetual victims (of racism or of so called reverse-racism), but as equal, respectful human beings with agency and a unique take on life who believe and act like people who have the pride in themselves and the power to chart a new destiny that is fair and just for all — not just for those who belong to the same racial group we happen to believe that we belong to.

Why the Constitution is not a conservative document

Sep 7th, 2011
by Pierre De Vos.
55 comments

Prof Jane Duncan has taken issue with a post on this Blog in which I criticised the views expressed by Deputy Minister Ngoako Ramatlhodi regarding the perceived problems with our Constitution. Over at the SACSIS Blog Prof Duncan provides a relatively nuanced and interesting (but in my view misguided) analysis, in which she seems to argue that the Constitution is a major stumbling block standing in the way of addressing the major structural problems in our society which keeps poor people poor and rich people rich:

Ramatlhodi’s arguments are clearly self-serving, and reinforce a trend in the ANC’s behaviour to attack fundamental rights and freedoms. But aspects of his argument ring true, and the standard constitutionalist argument made by the likes of de Vos are inadequate to the task of responding to these criticisms. The contradictions of the type of transition that South Africa chose led to a constitution that is not nearly as transformative as they make like to think. In fact, in certain respects, the Constitution is a profoundly conservative document.

She correctly points out that the South African Constitution is a negotiated document that embodies compromise and that the Constitutional Assembly (who drafted the 1996 Constitution) was bound by 34 constitutional principles which were negotiated by an undemocratic and unelected body at CODESA. She claims that the manner in which the Constitution’s parameters were developed has limited the democratic form and content of South Africa’s constitutional order and notes that:

A clause was also inserted guaranteeing the right to property, where property may only be expropriated for a public purpose and in the public interest, and subject to compensation. So in a cruel twist of fate, the ANC government took on the responsibility of paying for the property that black people had been historically dispossessed of by the white minority. The consequences of this concession to the white minority are starkly apparent. Property relations have remained largely untransformed and land redistribution through the ‘willing buyer, willing seller’ mechanism has been largely a failure. The socio-economic rights regime in the Constitution is not geared towards changing these structural problems.

The arguments presented by Prof Duncan are, in my view, based on a misconception about the nature of the South African Constitution. As I see it, there are at least two problems with the argument presented by Prof Duncan. First, she seems to suggest that the Constitution is somehow at least partly to blame for the fact that the ANC government has not shown any appetite for revisiting the back room deals about the structure of the South African economy – deals reached between the ANC and white capital before the first democratic election in 1994. This ignores the fact that the ANC government has not effected radical change because the new political elite is benefiting just as much from this pre-1994 deal as those white capitalists who struck the deal with them.

Second, she fails to point to those provisions of the Constitution that supposedly give it the profoundly conservative character that she talks about. It is also not clear what aspects of the Constitution she is referring to when she argues that the document has limited the democratic form and content of the South African constitutional order. The only constitutional provision mentioned in the article is the property clause, which she seems to think requires the state to follow a willing buyer willing seller approach to land reform — something the property clause decidedly does not do.

It seems to me Prof Duncan is partly blaming the Constitution for the failures by the ANC government to address the fundamental structural inequalities in our economy — although, to be fair, she does admit that the ANC government should also carry some blame for these failures.

Of course, it must be conceded that the Constitution does contain a property clause which requires just and equitable compensation to be paid to anyone whose property is expropriated to address past land dispossession and to effect land reform. Just and equitable compensation does NOT, however, require the state to follow a willing buyer willing seller policy. That policy was a deliberate policy choice of the ANC government not demanded by the Constitution. Moreover, the Constitution states that the price to be paid must reflect an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including:

  •  the current use of the property;
  • the history of the acquisition and use of the property;
  • the market value of the property;
  • the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
  • the purpose of the expropriation.

A far more radical land reform programme which would allow for the expropriation of unproductive land and would specifically target land which formed the subject of forced removals over the last 50 years of apartheid, while taking into account the need for South Africa to maintain food security, would be admissible in terms of our Constitution. It is not the fault of the property clause that this has not happened.

Although the state is required to pay compensation for all expropriated land, this compensation does not have to equate to the market value of the property and can be far below the market value, depending on the other relevant factors. The fact is that the land reform programme has been a dismal failure so far because the government has stuck to the absurd willing buyer willing seller policy and because it has failed to put structures and mechanism in place to ensure that those who benefit from land redistribution are assisted either to work the land productively or to make sustainable use of the property in some other way.

One of the major arguments used by the left against a constitutional order in which the Constitution is supreme and in which a Bill of Rights is enshrined to protect the rights of everyone, is that it leaves untouched the private wealth and power of those whose actions often far more decisively affect the lives of the unemployed and the working poor. In such a system, so the argument goes, radical structural transformation of the social and economic system is impossible because private wealth and power is protected by the Bill of Rights, but private institutions and individuals who wield this enormous power has no obligation in terms of that Bill of Rights to respect the rights of the marginal, the vulnerable and the poor.

The South African Constitution is different, as it contains some radical provisions that acknowledge the fact that private power is a major stumbling block in transforming the economy and in creating a more egalitarian society. Thus, many of the provisions of the Bill of Rights also apply to private institutions (companies like De Beers; Old Mutual; Anglo-American; SA Breweries and those owned by Patrice Motsepe) and individuals, while section 39(2) imposes an obligation on the courts to develop the common law and customary law and to interpret legislation to bring it in line with the spirit purport and objects of the Bill of Rights. Often private law rules benefit the powerful by assuming that they are engaging with the less powerful in society on equal terms. Our Constitution commands the judiciary to develop private law rules to take account of this (something, admittedly, that many judges — also those appointed as so called “transformation judges” appointed by the ANC dominated JSC — are often reluctant to do).

And the spirit, purport and objects of the Bill of Rights are fundamentally democratic and transformative. It places a positive duty on the state to take steps that would “achieve equality” (making use of racially based redress measures in appropriate circumstances); that would provide more people progressively with better access to housing, health care, social services, water and electricity; and that would protect the environment. It also places a duty on the state to provide anyone with basic education and to do so in an equitable manner (as the right to education must be read in conjunction with the right to equality).

The fact that the government of the day decided to leave the schooling system largely untouched, retaining pockets of excellence in suburban schools, while not addressing (or only addressing around the margins) the poor schooling received by learners in many township schools, was a policy choice not mandated by the Constitution. In fact, an argument could be made that a proper legal challenge might well result in a finding that the present schooling system (a system which benefits the children of the old and new elites, including the children of Cabinet Ministers) and the way it is being funded is unconstitutional.

One of my students is doing fascinating research on the manner in which teachers are funded by the Department of Education and has concluded that the funding model used by the Department is deeply flawed. This is because it has had the effect of ensuring that better performing and better qualified teachers remain in the suburban schools where they teach the children of the old and new elite, all while a majority of South African children receive a substandard education from often badly trained and unmotivated teachers. The Constitution may well be invoked to challenge this system and it definitely will not stand in the way of a radical overhaul of the system — just as it will not stand in the way of the introduction of a National Health Insurance scheme.

It must be conceded that the Constitution may be faulted for adopting an electoral system that bestows far too much power on political party leaders and bureaucrats and far too little power on ordinary citizens, allowing for an often arrogant and technocratic approach to governance encapsulated by the discourse of “service delivery”. Given the racialised nature of support for political parties, the (now slightly fading) moral authority of the governing party, the centralising and sometimes almost Stalinist tendencies of some factions within the ruling party, and the dominance of a discourse which endorses the need for a strong and less than fully democratic state (purportedly to better effect social and economic change in South Africa), it is not clear, however, that another electoral system would have really led to the kind of grassroots democracy that many of us yearn for.

The Constitutional Court has not been unaware of these problems and have developed interesting legal avenues to try and enhance the democratic nature of the way we are governed. In social and economic rights cases the court has stated that for the government to act reasonably (and hence constitutionally) when it take steps to realise the social and economic rights contained in the Constitution, it has a constitutional duty meaningfully to engage with the affected communities — the so called beneficiaries of “Service delivery” and “development”. (This failure to consult with the community affected by an attempt at “development” was one of the reasons why the Cape High Court found that the City of Cape Town had acted unconstitutionally when it built open toilets for the residents of Makhaza.)

Of course, I am not arguing that the Constitution can or will be used in order to fully and decisively address the structural social and economic inequalities in our society. The state is supposed to do that — within the disciplining boundaries of the Constitution. The Constitution can be used by social movements and political activists as well as lawyers to prod the state along and to force the state to act in a less technocratic and heartless manner or to engage in a far more democratic manner with citizens when it does so. There are limits to what the law and our courts can be expected to achieve.

But to argue that the Constitution is deeply conservative and hence that even if the ANC government wanted to it would not have been able to implement radical policies to begin to address the social and economic inequalities in our society  because of constraints placed on it by the Constitution, seems to me to over egg the pudding just slightly.

A tale of two judges

Sep 5th, 2011
by Pierre De Vos.
150 comments

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to heaven, we were all going direct the other way — in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only. - Charles Dickens, A Tale of Two Cities

The revealing interview of Justice Mogoeng Mogoeng by the Judicial Service Commission (JSC) this weekend and the subsequent decision of that body to rubber stamp the decision of the President, reminded me of the famous quote from The Tale of Two Cities reproduced above. We saw the best of judges and the worst of judges sparring with each other. As Xolela Mangcu wrote about this tale of two judges:

Moseneke stood as a symbol of authority and Mogoeng as a beneficiary of power. The question is which, then, will be the real leader of the Constitutional Court: authority or power? By nominating Mogoeng, President Jacob Zuma may well have taken our judiciary down a path where power trumps authority.

We also saw some ordinary citizens, perhaps expecting so little from themselves and from our system of government or deciding to go along with the decision of the President so that they would not alienate the government from which they need to receive work in future, cheering on mediocrity and power for power’s sake. We saw other citizens, animated by a belief in the core values embodied by the Constitution and the belief that as South Africans we deserve the best, who were shocked by what they saw, perhaps unrealistically yearning for authority to trump brute power in our political and legal discourse.

We saw some JSC members prepared to walk in the light of reason and to deal with the painful facts and we saw other members skulking in the darkness of unreason and emotions, displaying a remarkable lack of appreciation for the robust nature of openness and accountability in a system that is worth calling a democracy. And as is often the case when reason clashes with unreason, facts did not stand in the way of those who had no rational arguments to make.

Thus, some commentators and JSC Commissioners have questioned the bona fides of those who have asked critical questions about the suitability of the “nominee” to become Chief Justice, claiming that such people were animated by a hatred of the President and never support any decisions of the President or, worse, claiming that such people confronted the facts because they were racists. This is, of course, a lie. When justice Sandile Ngcobo was “nominated” as Chief Justice, many of us (who have asked questions about the suitability of justice Mogoeng’s appointment) enthusiastically supported the nomination of Ngcobo. Although we might have believed that Deputy Chief Justice Dikgang Moseneke was a better person for the job, we did not say so, but sang the praises of the nominee because he was clearly a man of integrity, somebody with a towering intellect, somebody whose judgments have demonstrated that he is imbued with the values of the Constitution.

In the same manner we cheered on the appointment of Deputy Chief Justice Moseneke and of Chief Justice Pius Langa – even if we had our political differences with then President Thabo Mbeki who nominated these candidates (all of whom happened to be black).

I suspect that the interview over the weekend would have been interpreted completely differently by different people, depending on their political views, their knowledge of the law and legal processes, and their ability to get past shallow emotions to a place where facts and reason reside. For the first group, justice Mogoeng might well have emerged as something of a hero, somebody wrongly vilified by nasty people with an axe to grind. After all, the nominee did not come across as the ogre depicted by Zapiro, nor as a bumbling fool, and he passionately, aggressively and sometimes bitterly defended himself against the sharp criticism levelled against his judgements and his judicial philosophy and displayed a moral flexibility much admired in politicians.

I happen to find myself in the second group who was deeply troubled by what emerged at the JSC, based not on emotions but on the facts and an analysis of the issues at hand. In this sense the interview was more revealing than expected.

Justice Mogoeng justified some of his rape judgments and the seemingly patriarchal reasoning employed by him in those judgments by claiming that he was merely following the precedent set by the Supreme Court of Appeal (SCA) to which he was bound as a judge, what I would call “the SCA made me do it” defence. He thus justified his views that women abusers who are “provoked” by the victim deserve leniency, that rapists who know the victim should also be given some leeway, and that child rapists can legitimately be described as having been “tender” to the child he raped because the injuries sustained by the child were not as horrific as in other rape cases, by claiming that this approach is in line with the law. The problem is that these views are not in line with the law as it has developed after the end of apartheid.

These justifications were revealing because they suggested a lack of knowledge of the law and a lack of knowledge and/or lack of respect for the legislature who has spoken quite forcefully on this issue. Thus, in defence of his judgment in S v Moipolai (handed down in 2004, ten years after the advent of democracy) in which Mogoeng stated that it was “highly insensitive of the Appellant firstly, to punch an 8 months pregnant woman, secondly, to punch her so hard that he caused her to fall, and thirdly to punch her because her sense of decency and privacy did not allow her to share the same bed with the father of her children and another woman”, justice Mogoeng relied on a judgment of the SCA in S v N, handed down at the height of apartheid in 1988. In that judgment the Appellate Division (as it was then called), displayed the kind of patriarchal values that was rife amongst apartheid era judges by stating that it was permissible to take into account  as a mitigating factor in sentencing in a rape case that there was an intimate relationship between the rapist and the survivor.

Of course, since 1988 the legal landscape in South Africa was supposed to have changed dramatically. This is what some of us mean when we talk about the “transformative” nature of our legal and constitutional system. We adopted a new Constitution in which the rights of women are now protected. Parliament passed sections 51 and 53 of the Criminal Law Amendment Act 105 in 1997, providing for minimum sentences to be imposed on rapists unless compelling circumstances existed to deviate from this. This was done exactly to prevent judges with patriarchal views from imposing inappropriately lenient sentences on rapist based on criteria that says more about the sexist assumptions of the judge, than on the way in which the survivor might have experienced the rape.

In 2001 the SCA made it clear that knowing the rape survivor would NOT constitute such a compelling circumstance that would allow for a reduction in the minimum sentence. (One could add that ordinarily it should be an aggravating circumstance that the rapist knew the survivor — at least for anyone imbued with the values enshrined in the Constitution – because the effect of being violated in this way by somebody one knew would be devastating for the rape survivor.)

Mogoeng’s justification for his rape judgments is therefore surprising as it suggested that our Chief Justice designate was at the time when these judgments were handed down wholly ignorant of the new legislative environment and the constitutional values embodied by the legislation. It also suggested that the nominee might have been unaware that the SCA had developed our law in this regard to bring it in line with the Constitution and the relevant legislation. Whether ignorance of legal precedent and legislation should be a disqualification for appointment as Chief Justice, I will leave for every reader to decide for him or herself.

Mogoeng’s defence of his “dissent” in the Dey case was perhaps more bizarre and therefore more damaging to his image. Apart from the fact that his defence was less than plausible, it also contained in it a serious admission. Justice Mogoeng claimed that he was given little time to decide on whether he agrees with the other judges of the Constitutional Court that it would never per se constitute defamation to call somebody gay. He did not give reasons for “dissenting” from this view, Mogoeng claimed, because he had not really had time to apply his mind to the issue at hand.

This argument — if indeed true — appears more like an admission of a dereliction of duty on the part of the nominee than as an exculpation for not providing reasons. Surely when a judge sits on the Constitutional Court and indicates that he or she disagrees with the opinion of colleagues and if he or she is then asked to provide reasons for the disagreement but refuses to provide such reasons, one would assume that the judge did apply his mind to the matter but decided for strategic or other reasons not to provide reasons for the disagreement. Can one ever indicate disagreement with others without having applied one’s mind to an issue? To me it sounds a bit like claiming to be half pregnant — not something widely accepted as possible amongst doctors or people with any knowledge of the human body. How could one possibly indicate a disagreement without having thought about why one is disagreeing? To me, at least, this explanation makes no sense and does not ring true.

When one is a judge and is required to decide where one stands on all the important issues before the court, one is required to apply one’s mind to all the issues at hand and if one disagrees with the majority judgement on any issue one is required to provide reasons for this disagreement. A failure to apply one’s mind to the issues at hand would suggest that one has failed to live up to one’s judicial oath of office and, in effect, that one has refused to do one’s job properly.

I imagine that for many non-lawyers justice Mogoeng’s defence might ring true. After all, we have all been in situations where we have been pressed for time and have not given an issue as much thought as one would have liked to. As a member of a tea club one might well have failed to form an opinion on whether the dues of members should be increased or not. But the difference is of course that most of us are not judges and are not required by the Constitution to uphold the law, to apply our minds to the issues raised by a case before us and to provide reasons for our decision.

And what happens now? I have heard talk of civil society groups challenging the constitutionality of the process followed by the JSC on the grounds that the JSC had failed to engage in proper consultation with the President on this issue as required. It is argued that this is so because the JSC had decided that it was impermissible for it to consider whether other candidates may have been more suited for the position. How can there be a meaningful exchange of ideas if the one party exchanging ideas sees its role in such narrow terms, some have asked? This is a plausible, perhaps even strong, legal argument.

However, I am not sure it would be in the interest of the judiciary or the Constitutional Court for this matter to be litigated as it might further damage the credibility of our judiciary. Long drawn out litigation may well turn into a highly politicised and partisan matter, pitting staunch defenders of the President and the candidate against those who believe the JSC must act as a check on the exercise of power by the President when he appoints a Chief Justice.

While it would be good to get some clarity about the meaning of the constitutional provision requiring that the President must consult the JSC BEFORE appointing a Chief Justice, a legal challenge will probably ultimately not change anything as it will be based on procedure and not substance and will not necessarily lead to a different outcome — given the fact that the President does have the constitutional power to appoint a Chief Justice. Would it be possible to approach a court to give clarity on this legal point without asking for the decision of the JSC or the President to be set aside? I am not a procedural lawyer, so I am not sure how to answer this question.

In any event, President Zuma will now appoint Mogoeng Mogoeng as the new Chief Justice, despite the fact that the nominee has been tainted — to some degree, at least — by the process of his appointment. (Depending one one’s view, the nominee would have been tainted either by the “vicious attacks” against and “onslaught” on him by dark forces, or tainted by the close scrutiny of his judicial views and temperament.)

My fervent hope is that the new Chief Justice will be able to demonstrate through his words and deeds over the next ten years that those of us who asked critical questions about his appointment and about his values and commitment to the Constitution have been mistaken. Maybe the gruelling process may have allowed the nominee to reflect more seriously on his commitment to gender equality and the dignity of gay men and lesbians and might have brought a change of heart. Maybe he might have realised that he ought not to rely on his personal religious views — as far as they clash directly with the values enshrined in the Constitution – when he considers cases coming before his court. I, for one, will keep an open mind.

Why Ramatlhodi promotes an autokratic kleptocracy

Sep 1st, 2011
by Pierre De Vos.
156 comments

It is by now trite to note that in South Africa there are very serious, some would say obscene, disparities in wealth between rich and poor, made worse by the recent economic turmoil in the world. More than a million South Africans have lost their jobs over the past two years, joining the roughly 35% of the population that are unemployed or has long since stopped looking for work at all.

Many people continue to live in informal settlements (in shacks that are often flooded and are bitterly cold in winter) and many go to bed hungry. Many cannot afford the pay-as-you-go water and electricity services ostensibly provided to them by the state – if these services are provided to them at all – while many others receive substandard health care and are forced to send their children to dysfunctional schools where teachers are often not in class to teach and where children may well have no access to libraries, laboratories or sufficient computer facilities.

Of course, if one happens to be an ANC leader – inside or outside of government – or if one is one of the captains of industry (who became rich by exploiting black workers during the apartheid era and remain rich today by donating money to the ANC), one would probably not directly be affected by this reality. After all, one will be driving around in a car (who was paid for by tax money that could have fed a starving child) costing more than a million Rand (that is, when one is not renting a fancy car for hundreds of thousands of Rand a year), or one will be living in the Mount Nelson Hotel (if one is not living in a R8 million house provided by the state). Just yesterday it was reported that the state had forked out R183 million on brand new mansions to house cabinet ministers, money that could have been used to house around 2,000 poor families.

It is against this background that one should read the bizarrely immoral opinion article (penned by Ngoako Ramatlhodi, ANC NEC member, chairperson of the ANC National Elections Committee and Deputy Minister of Correctional Services) and published in The Times today.  Mr Ramatlhodi probably knows that the credibility of the ANC and the government it leads is being eroded by lavish and wasteful spending on the perks of party leaders and by the constant revelations of government corruption in our media and by the Public Protector. 

It is therefore not surprising that he is now using the South African Constitution and our indpendent constitutional institutions as scapegoats to try and divert attention from the failures of the government. Our government is failing to address the most basic needs of the poor while government and party leaders live lavish lifestyles at the expense of taxpayers and of the poor, whose lives could have been improved by the money wasted on extravagant perks and the millionaire lifestyles of ANC leaders.

According to Mr Ramatlhodi the Constitution is deeply flawed because while it bestows political power on the ANC (who by virtue of divine intervention will always represent the interests of all black South Africans even when its leaders steal from the very masses it claims to represent and when these leaders misuse funds – earmarked to address the social and economic inequality in our society - to satisfy their own venal and selfish needs), it also supposedly ”immigrates” substantial power away from the legislature and the executive and vests it in the judiciary, Chapter 9 institutions and civil society movements. He bemoans the fact that the ANC ”embraced what one calls the emptying of the state” and then continues:

Apartheid forces sought to and succeeded in retaining white domination under a black government. This they achieved by emptying the legislature and executive of real political power. On the other hand, the liberation movement was overwhelmed by a desire to create a society bereft of any form of discrimination and, as a result, made fatal concessions. We thus have a Constitution that reflects the great compromise, a compromise tilted heavily in favour of forces against change.

Thus the Constitution - interpreted and applied by the judiciary, and Chapter 9 bodies such as the Public Protector - as well as civil society groups fighting for real transformation of our society have been allowed to rob the ANC of its power to govern the country through the legislature and the executive, blocking the “fundamental change” required to turn South Africa into a true kleptocracy. (Ok, I paraphrase the honourable Deputy Minister’s words slightly, but pardon me for interpreting this opinion piece as arguing for more power for the ANC to act in the interest of its leaders without having to account to anyone for how it spends and wastes our money for the benefit of the few.)  

Mr Ramatlhodi is also upset that people challenge unlawful and unconstitutional actions of the government in our courts and that they dare to take part in democratic debates by expressing views with the aim of trying to influence public opinion for the better of society. God forbid that democracy should actually lead to a situation in which the majority of South Africans might disagree with something the governing party – with its divine right to rule - might have said or done. The ANC can surely not allow democracy actually to, well, work. What would become of the cars, the houses, the tenders, the champagne, the whiskey, the farms, the trips to visit drug-dealing girlfriends in Swiss jails?

The other tactic is to challenge as many policy positions as possible in the courts, where the forces against change still hold relative hegemony. The legislature itself has not escaped the encroaching tendency of the judiciary, with debatable decisions taken by majority views, in some instances. Decisions of the Judicial Services Commission have equally been systematically subjected to judicial reviews. The process of delegitimising the commission and its decisions has been initiated through the instrument of “public opinion”.

These views are not only uninformed and demonstrably wrong; they are also callous and dangerous. Blaming the Constitution, the courts and chapter 9 institutions for the failures of the government sufficiently to change the lives of ordinary citizens who suffered under apartheid is like a man blaming an umbrella for making him wet or a white South African blaming black citizens for apartheid. 

First, it is based on the assumption that the government of the day – who currently happens to be led by the ANC – should have a free hand to do what it likes because any check on the exercise of power of the legislature and the executive would turn these branches of government into ineffectual and impotent institution. This is of course nonsense, as the majority party in Parliament can pass any law it wishes – as long as it does not infringe on the rights of the very citizens who vote for it.

Second, it assumes that a majority party will always have the best interest of the country and its people at heart, that it will never act in a selfish or corrupt manner and that it must always be trusted to respect the rights of everyone and to act in a manner that will advance the interests of those who most rely on the state for their survival and well-being. This is a truly bizarre view as governments are formed by people – and not ordinary people but politicians whose job it is to amass power and to act in their own interest while pretending to serve the public - who are not superhuman and will not act like angels unless they are forced to. 

Lastly, this assumes that the ANC government actually always acts in the interests of the poor and the marginalised – even when it spends R183 million on new houses for a few cabinet Ministers, when cabinet Ministers stay at the Mount Nelson Hotel at taxpayers’ expense, when its officials enter dubious and probably corrupt leases with well-connected businessmen and waste billions of Rand in the process, money that could have been spent on really making a difference to the lives of those South Africans who are unemployed and depend on the state for its survival and well-being.

The view of the courts expressed in the Ramatlhodi piece is also either shockingly uninformed or deliberately misleading, which is, I guess, understandable as one needs to manufacture an enemy when one is losing the trust of the electorate because one is so obviously acting in a selfish and venal manner to line one’s own pockets to enable one to live a life of luxury at the expense of the poor. If Mr Ramatlhodi had read only a few judgments of the Constitutional Court, he would have known that our highest court – far more than the legislature and the executive – has been acting as a champion of transformation and of the interests of the poor.

If it was not for that court, the government would not have been forced to provide anti-retroviral drugs to poor, mostly black, pregnant women, thus saving the lives of hundreds of thousands of (mostly black) babies – all while people like Mr Ramatlhodi kept criminally silent. How many hundreds of thousands of babies died as a result of this communal silence, Mr Ramatlhodi? He would have known that thousands of people have been protected from unlawful eviction through the intervention of that court.

He would have known that the Constitutional Court has enthusiastically endorsed affirmative action and land reform and has taken the ANC government to task for not doing anything to scrap some of the most scandalous pieces of racist apartheid era legislation. One wonders whether this oversight might have been caused by the fact that leaders were too busy to benefit from tenders and to wine and dine their friends at taxpayer’s expense at the Mount Nelson Hotel or at their government provided mansions to actually care enough to table changes to the oppressive apartheid laws in our democratic Parliament. 

He would have known that the Constitutional Court declared invalid sections of the truly shockingly named KwaZulu-Natal Slums Act adopted by the ANC government in that province because that Act tried to punish the landless or homeless poor for being landless or homeless (which is understandable, I guess, because a person like Mr Ramatlhodi would probably not want to be reminded of the landless and the homeless when he is sipping champagne in his R8 million government provided house).

He would also have known – just to be fair – that sometimes the Constitutional Court has not been as progressive in its judgments as some of us would have liked but that this have almost always been when it has endorsed government policies or pieces of legislation that are anti-poor, anti-women or anti- the marginalised and the vulnerable. Thus it found that it was ok for the government to cut off the electricity of destitute people and for the government to have pay-as-you-go electricity meters installed in the homes of Joburg residents – even if this was only done in poor areas where black South Africans live and not in rich areas where the ANC leaders and white people live.

It also found constitutionally valid a law which basically left destitute a women who had looked after her partner for more than ten years because that law only required the estate of a deceased partner to support a women if she had been legally married to her partner. That the ANC of Mr Ramatlhodi would support such a law is probably not surprising, seeing that the ANC President has now nominated a man for Chief Justice who has made the following remarks in a case in which a man was found guilty of raping a innocent and defenceless child (in the case of S v Sebaeng (CA 16/2007) [2007] ZANWHC 25 (22 June 2007) about the “shortcomings” in the victim’s evidence:

She claims that the sexual intercourse was very painful but there was clearly nothing about her to suggest that she was in any pain when she arrived home and even during her stay there at her grandmother’s home … When she arrived at her grandmother’s home, the only strange things observed and spoken about by those who saw her were the Simba chips, the R30.00 and the 9 o’clock appointment with the Appellant….

One can safely assume that [the accused] must have been mindful of her tender age and thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and the R30.00.

So, while Mr Ramatlhodi believes we should entrust our legislature and executive with unlimited powers, I do not: not this government, not a DA government not ANY government anywhere in the world. Down that road lies tyranny and oppression of the worst kind. As the ANC government of which Mr Ramatlhodi is a member has demonstrated over and over again, even where the power of a government is limited and even where the Constitution exhorts it to address the needs of the poor and vulnerable, it often acts in the interests of its own members and not that of the broader public whose interests it claims to serve.

Whether the ANC is in power or anyone else is in power, we need the very institutions that Mr Ramatlhodi attacks. These institutions – created by our Constitution – protect us from the government of the day, no matter which party might serve in government.  This is true in South Africa as it is true in the United States, France, India or Nigeria. If  it was not for institutions like our courts – interpreting and enforcing the progressive provisions of our constitution – and of the Public Protector – exposing the scandalous corruption of Ministers and of government officials - how far away would we have been from Muammar Gaddafi’s Libya?

The “opinion” of Mr Ramatlhodi is no more than an argument in favour of an autocratic kleptocracy in which a few well-connected party leaders and businessmen would live an obscenely opulent life, while the rest of us wouldl try to survive in a world that would be nasty, brutish and probably far too short.  

What we talk about when we talk about transformation

Aug 29th, 2011
by Pierre De Vos.
107 comments

“Transformation” has become one of the most used but least examined words in our political discourse. It is a word often bandied about by people in a way that suggests a rather narrow understanding of the word – as if transformation is about replacing reactionary middle aged white patriarchs with reactionary middle aged black patriarchs. If this is what we mean by “transformation”, then we do not understand the word as it has been developed by the Constitutional Court and academics.

We are then also demonstrating that we have a rather narrow and less than inspiring imagination and have little ambition to fundamentally change the nature of power relations in our country away from an authoritarian apartheid past to a more inclusive and egalitarian future.

This does not mean that transformation – even in the constitutional sense – is not a complex and sometimes contested term. We might not all agree on the exact nature of the end goal of transformation, but we must surely agree that transformation cannot mean a harking back to the values and beliefs held dear by those who governed the apartheid state or acted as their hand-maidens. If we were to take the notion of transformation seriously, we cannot use it to mean the opposite of what it was intended to mean.

Thus, even though Deputy Chief Justice Dikgang Moseneke once remarked that ”the meaning of transformation in juridical terms is as highly contested as it is difficult to formulate,” support for transformation must surely mean that we understand that patterns of discrimination, disadvantage and harm are still perpetuated by the way in which society was structured by and during apartheid and remains structured – to some degree – even today. No wonder that in the context of talking about a transformative constitution, former Chief Justice Pius Langa approvingly quoted the following passage dealing with the need for transformation:

[Transformation] requires a complete reconstruction of the state and society, including a redistribution of power and resources along egalitarian lines. The challenge of achieving equality within this transformation project involves the eradication of systemic forms of domination and material disadvantage based on race, gender, class and other grounds of inequality. It also entails the development of opportunities which allow people to realise their full human potential within positive social relationships.

This means that one cannot credibly support any notion of transformation while opposing equality for all social groups regardless of their race, gender, religion or sexual orientation. Belonging to an organisation which promotes hatred of individuals based on their race, gender, religion or sexual orientation or which propagates the idea that people are not as worthy of respect and concern as others because of such attributes (and hence have to be forced to change who they are as human beings to be accepted and respected by society), would mean that one cannot be viewed as a supporter of transformation. Rather one, must be viewed as being anti-transformation.

Former Chief Justice Langa also pointed out that transformation – in the constitutional sense – requires the establishment of a culture of justification, “a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force of its command. The new order must be a community built on persuasion, not coercion”.

Thus a person who fails to justify decisions – especially controversial decisions – taken as a politician or a judge, or a person who tries to silence those who disagrees with him or her by using ad hominem attacks against those critics and opponents (claiming that the opponents are yearning for apartheid, hate the President or the Premier, is plotting against the opposition, is a deployed cadre, or do not support transformation), is not a person who can be said to have embraced the ideal of transformation as embodied by the Constitution. As Chief Justice Langa said:

The Constitution demands that all decisions be capable of being substantively defended in terms of the rights and values that it enshrines. It is no longer sufficient for judges to rely on the say-so of parliament or technical readings of legislation as providing justifications for their decisions. Under a transformative constitution judges bear the ultimate responsibility to justify their decisions not only by reference to authority, but by reference to ideas and values.

Where judges, politicians and those who take part in the public discourse, fail to provide cogent reasons for their arguments, instead, thrashing their opponents on completely spurious grounds by questioning their right to speak or to be heard, then such judges, politicians and debaters are opponents of transformation – not supporters of it.

But, credible support for a transformative vision of the Constitution requires us to do even more. As Chief Justice Langa remarked, this approach to transformative constitutionalism requires us to view the law differently from the way it used to be viewed by the supporters of apartheid and by the legal conservatives who are – alas – still very much with us and among us (in University lecture halls, in law firms, at the Bar and on the Bench). This is because the transformative vision of the constitution requires an acceptance of the politics of law.

There is no longer place for assertions that the law can be kept isolated from politics. While they are not the same, they are inherently and necessarily linked. At the same time, transformative adjudication requires judges to acknowledge the effect of what has been referred to elsewhere as the ‘personal, intellectual, moral or intellectual preconceptions on their decision-making. We all enter any decision with our own baggage, both on technical legal issues and on broader social issues. While the policy under apartheid legal culture was to deny these influences on decision-making, our constitutional legal culture requires that we expressly accept and embrace the role that our own beliefs, opinions and ideas play in our decisions. This is vital if respect for court decisions is to flow from the honesty and cogency of the reasons given for them rather than the authority with which they are given.

This means that we have to accept that the beliefs, values, and history of a judge will be important for the way in which she or he does his or her job and that these factors will play a role in the interpretation and application of the Constitution and of other law.

That is why it will always be important and relevant to ask whether a judicial candidate belonged to the Broederbond or some other secret organisation; whether a candidate opposed apartheid or defended the policies of the apartheid state or of an apartheid Bantustan; whether the candidate has demonstrated a commitment to the values enshrined in the Constitution by word and deed; whether the candidate belongs to a racist, sexist or homophobic organisation; whether the prospective judicial candidate has demonstrated an appreciation of the need to persuade others through reasoned debate by providing reasons for a decision and by engaging in a measured and logical manner with opponents.

For all the above reasons the discussions on the suitability of appointing Justice Mogoeng Mogoeng as Chief Justice is important. It helps to remind us that “transformation” is not only about replacing white faces with black faces (although changing the racial and gender composition of the bench is important) - it is also about the values and beliefs; about what is best for all South Africans, for the poor, for women, for religious minorities, for gays and lesbians, for people living with HIV and people living in rural areas who are often being subjugated by patriarchal chiefs.

For those who wish to run away from the transformative vision of the Constitution and those who actively oppose transformation, the nomination of Justice Mogoeng will come as a godsend. Just to remind us why Justice Mogoeng appears to be an anti-transformation judge, here are some of the concerns raised about him:

  • The National Association of Democratic Lawyers claims that, in 1988, Mogoeng pushed for a convicted man, whose legal team did not represent him properly, to be executed in the Bophuthatswana Supreme Court and that this happened while Mogoeng was a prosecutor serving a Bantustan government;
  • The Johannesburg Bar Council criticised Mogoeng for not giving reasons for dissenting when other Constitutional Court judges ruled that a person could not be defamed by being a labelled a homosexual. This would seem to indicate a prejudicial attitude towards the gay community, the bar council said;
  • Civil society organisations such as Section27, the Lesbian and Gay Equality Project, the Sonke Gender Justice Network, the Tshwaranang Legal Advocacy Centre and the Treatment Action Campaign have lodged submission with the Judicial Service Commission (JSC) about Mogoeng’s nomination, questioning his approach to gender-based issues;
  • City Press reported that Mogoeng is a counsellor of Winners’ Chapel International, Johannesburg. The church claims to cure “deviations” such as homosexuality by prayer and counselling and this means Mogoeng is a member of an organisation that discriminates against a social group.

Now, if one sees transformation only as a race issue and if one is opposed to the restructuring of South African society along more egalitarian and humane lines, then one might well dismiss these concerns. That is why the “nomination” of Justice Mogoeng has been defended by some - usually by attacking the motives of those who have expressed these concerns, and by trying to discredit and silence those who raise concerns about the nominees transformation credentials by absurdly suggesting that raising questions is anti-transformative in itself.

For me, whether one is prepared to consider these concerns or not says much about one’s politics and whether one supports a progressive or a reactionary vision for our country. This does not mean that I am suggesting those who support justice Mogoeng’s nomination has no credibility and should have their views dismissed out of hand. I am merely claiming that they cannot pretend to be progressive or to speak in support of a progressive cause.

Many South Africans are deeply conservative or even reactionary in their politics – as regular posts by contributors to this Blog demonstrate – and it is important that their voices are heard. But when engaging in debate, they should not try and mislead the public by claiming they are progressive when, instead, they are seemingly yearning for a society that (apart from the issue of race) looks quite similar to the closed, patriarchal, socially reactionary and authoritarian society we suffered under during the apartheid era.

Meanwhile justice Mogoeng will have the opportunity to respond to the sustained criticism and to questions about his fitness to lead the South African judiciary for the next ten years when he appears before the Judicial Service Commission on Saturday. Whether he lashes out at his critics in a desperate attempt to evade scrutiny and be held accountable; whether he evades answering difficult questions by playing the court jester; or whether he commits himself to a truly transformative constitutional project will determine whether he regains some legitimacy and public confidence in his abilities or whether he completely destroys trust in himself and in the judiciary which he might be appointed to lead.

← Earlier Posts