Constitutional Hill

Transformation

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.

On the right to property

Aug 25th, 2011
by Pierre De Vos.
128 comments

Section 25 of the South African Constitution strikes a delicate balance between the interest of existing property owners and the interests of society as a whole. Because property is a social good, because the majority of South Africans were denied the right to acquire property and because many South Africans were dispossessed of their property during the colonial and apartheid eras, section 25 of the Constitution makes it clear that expropriation of property is permissible to effect land redistribution or to achieve some other public purpose or for the public interest.

But because many property owners use their land productively, paid market value for the property, owe money on bonds taken out to pay for such property or need access to property for housing purposes, section 25 prohibits the arbitrary deprivation of property as well as the expropriation of property without payment of just and equitable compensation which has either been agreed upon or which has been decided by a court of law.

Like other rights in the Bill of Rights, property rights are therefore not absolute. But what happens if the state needs to expropriate a persons property for the purpose of either land reform or for some other public purpose like building a road or a dam, but the property owner refuses to agree on the selling price at which the property is to be expropriated.

Currently, the provisions of the Expropriation Act – an Act which was adopted by the apartheid government — states that the amount of compensation and the time and manner of payment need not be determined before expropriation takes effect. Transfer of ownership and possession of the affected property may therefore take place before that determination. The obligation to pay compensation is a condition of expropriation, but not a prerequisite for its operation.

In other words, the law as it stands does not require the state to follow a “willing-buyer willing-seller” policy and the state may expropriate property even when the seller has not yet agreed to sell or, indeed, is refusing to sell at the price offered by the state — provided that a seller may always approach a court who has the final say on the appropriate selling price.

Today the Constitutional Court, in the case of Haffejee NO and Another v Ethekwini Municipality, handed down judgment in a case in which it had to decide whether the provisions of the Act which allows for expropriation (even before a price has been agreed upon by the parties or the court has made a final determination on the price) is constitutionally valid. The constitutionality of other aspects of the Expropriation Act was not challenged, so the judgment today deals with a fairly narrow legal issue.

The court, in a unanimous judgment authored by justice Johan Froneman, pointed out that the starting point for constitutional analysis, when considering any challenge under section 25 for the infringement of property rights, must be section 25(1). The interpretation of the section must promote the values that underlie an open and democratic society based on human dignity, equality and freedom. International law must be considered and foreign law may be considered and pre-constitutional expropriation law must be approached circumspectly. The historical context in which the property clause came into existence should also be kept in mind when determining the scope of section 25.

The court pointed out that allowing compensation to be fixed only after expropriation has occurred “burdens the property owner and triggers repellent memories of pre-constitutional arbitrary dispossessions”. At the same time, making the fixing of an expropriation price a pre-condition for expropriation would burden the State unduly. After analysing the wording of section 25, the Court decided that the latter consideration should weigh more heavily than the former. It thus found that the challenged provision of the Expropriation Act complied with the requirements of section 25 and summarised the findings of the court as follows:

(a) The provisions of section 25(2)(b) do not require that the amount of compensation and the time and manner of payment must always be determined by agreement or by the court before expropriation under section 25(2);

(b) Generally the determination of compensation, in accordance with the provisions of section 25(3), before expropriation will be just and equitable;

(c) In those cases where compensation must be determined after expropriation, this must be done as soon as reasonably possible, in accordance with the provisions of section 25(3);

(d) Eviction following expropriation may not take place unless agreed upon between the parties to the expropriation or in the absence of agreement, under court supervision; and

(e) In disputed cases of eviction the courts must grant orders that ensure just and equitable outcomes in accordance with the provisions of sections 25(3) and 26(3) of the Constitution.

In this case, the owners of the property to be expropriated rejected an offer to expropriate the property at the market value of that property. The property in dispute originally formed part of a larger property, which had been earmarked for expropriation by the Municipality for the purposes of a canalisation programme. Its objective was to minimise the effects of flooding of the river. By refusing the offer of a market related price, the owners of the property were obviously hampering the implementation of this programme.

The case did not deal with the question of what would constitute a just and equitable price for the property. In cases where a property owner fails to agree on the selling price, a court will have to determine the selling price taking into account all the relevant circumstances. However the judgment confirms that a property owner would not be able to delay the expropriation of property indefinitely or for a very long time by refusing to accept a reasonable offer for that property.

As the principles quoted above demonstrate, the court was nevertheless aware that a property owner needed protection to prevent unreasonable delays in the payment of the expropriation price and to prevent unreasonable evictions from the property. A court will always have the final say in such matters to ensure that the property owner whose property is expropriated is protected from abuse.

The judgment also reminds us that the debate about the need for amendments to the Constitution to speed up land reform is not informed by a proper understanding of the relevant constitutional provision. An amendment would only be necessary if the principle requiring just and equitable compensation for expropriated property is to be abolished, something which very few people have suggested.

A shallow argument not entirely based on the facts

Aug 24th, 2011
by Pierre De Vos.
64 comments

The FW de Klerk Foundation’s Executive Director, Dave Steward, has responded to a previous post on this Blog in which I argued that the imposition of a wealth tax would probably be constitutionally valid and criticised the Foundation for stating that our Constitution prohibits laws that distinguish between people based on race. In the interest of open and frank debate I posted the reply in the Seminar Room and I invite readers to study this response.

Unfortunately the response is not as rigorous and informed as it could have been. But the debate will not be taken further if I did not show the Foundation the curtesy of engaging with its response, something I am happy to do below.

The Foundation admits that it based its original response “on a face value reading of the [relevant sections of the] Constitution” and not on the interpretation of those provisions by our Constitutional Court, which is the body that definitively interprets the provisions of the Constitution. This was, of course, an oversight by the Foundation as the provisions of the Constitution can only properly be understood with reference to the binding interpretation of the relevant provisions by the Constitutional Court. Relying on an ostensible “face value reading” of the provisions of the Constitution is a rather risky exercise as one then assumes that one’s own supposedly common sense interpretation trumps the authoritative interpretation provided by our highest court.

The Foundation then proceeds to make the following statement:

The judgment [in the Van Heerden case], written by Deputy Chief Justice Moseneke is, indeed, singularly devoid of any concern for the constitutional rights of the white people. He goes through a number of judicial contortions to exclude the right of white citizens to protection against unfair discrimination in Section 9(3). He comes up with the remarkable idea that all and any discrimination against whites in terms of 9(2) is fair provided only that it is not so egregious that it would threaten the long-term achievement of equality.

This statement is surprising and, I have to say, in my opinion not entirely in line with the facts.

First, the claim that the judgment shows no concern for the constitutional rights of white people is impossible to square with the judgment of Deputy Chief Justice Moseneke. As anyone familiar with the judgment would know, Moseneke’s judgment does display concern for the rights of white people – although the concern might arguably not meet the special standard expected by the FW de Klerk Foundation.

I would argue that justice Moseneke engages in a serious and responsible manner with the question of redress by taking the text of section 9 of the Constitution seriously and by trying to balance the constitutional demand for racial redress with the constitutional demand to respect and protect the rights of everyone – including, obviously, white South Africans. The Foundation might feel aggrieved that this balance was not struck differently, but implicitly claiming that no balance was struck at all is at best misleading and at worse an outright falsehood.

Justice Moseneke makes the entirely uncontroversial point (quoting from the Bato Star judgment written by former Chief Justice Sandile Ngcobo) that:

In this fundamental way, our Constitution differs from other constitutions which assume that all are equal and in so doing simply entrench existing inequalities. Our Constitution recognises that decades of systematic racial discrimination entrenched by the apartheid legal order cannot be eliminated without positive action being taken to achieve that result. We are required to do more than that. The effects of discrimination may continue indefinitely unless there is a commitment to end it.

As all the judgments in the Van Heerden case make clear, this will sometimes require the imposition of race-based corrective measures. I think the judgment of justice Yvonne Mokgoro (agreeing with justice Moseneke) expresses this idea most crisply:

Another aspect of section 9(2) is that it allows a person or categories of people to be advanced. This is important because of the nature of the unfair discrimination that was perpetrated by apartheid. The approach of apartheid was to categorise people and attach consequences to those categories. No relevance was attached to the circumstances of individuals. Advantages or disadvantages were metered out according to one’s membership of a group. Recognising this, section 9(2) allows for measures to be enacted which target whole categories of persons. Therefore a person or groups of persons are advanced on the basis of membership of a group. The importance of this is that it is unnecessary for the state to show that each individual member of a group that was targeted by past unfair discrimination was in fact individually unfairly discriminated against when enacting a measure under section 9(2). It is sufficient for a person to be a member of a group previously targeted by the apartheid state for unfair discrimination in order to benefit from a provision enacted in terms of section 9(2).

No one can surely deny that black people were previously targeted by the apartheid state for unfair discrimination. This means that race based measures aimed at addressing the effects of these apartheid policies will be permissible and will, indeed, sometime be required. But this is not the end of the enquiry, as justice Moseneke made clear that the measures that are aimed at redressing the effects of past racial discrimination and which are aimed at black South Africans may not be abused. Courts must therefore also consider the rights and interests of those not targeted to benefit from the redress (in others words, the very white people whose rights the Foundation wrongly claims justice Moseneke is not concerned about).

This must be done by focusing on the effect of the corrective measures on the group that is not benefiting from the redress measures. As Justice Moseneke stated in the judgment:

However, it is also clear that the long-term goal of our society is a non-racial, non-sexist society in which each person will be recognised and treated as a human being of equal worth and dignity. Central to this vision is the recognition that ours is a diverse society, comprised of people of different races, different language groups, different religions and both sexes. This diversity, and our equality as citizens within it, is something our Constitution celebrates and protects. In assessing therefore whether a measure will in the long-term promote equality, we must bear in mind this constitutional vision. In particular, a measure should not constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened.

Although the FW de Klerk Foundation may argue – wrongly in my view – that Justice Moseneke’s judgment fails to show sufficient concern for the rights of white people, the claim that it shows no concern is therefore clearly false. One hopes that a retraction in this regard will be forthcoming. The interpretation provided by Moseneke does not strip white people of their rights. Where, to use an extreme example, Parliament passed legislation that prohibits all employers from promoting white candidates for the next 20 years, such a provision would clearly be unconstitutional as it would impose an undue burden on white South Africans.

My view is that a one-off tax aimed at redress would not impose such an undue burden. The almost negligible effect of the imposition of such a tax is neatly illustrated if one recalls that wealthy Germans (initially almost exclusively living in Western parts of Germany) have been paying a solidarity tax of up to 5.5% since 1991 in order to finance the reconstruction of East Germany. This money is directly transferred to states in the Eastern parts of Germany. It disproportionately affect West Germans, but so far I have not read anything suggesting that Germans living in the Western part of their country are rioting or are arguing that the tax demeans them or undermines respect for their human rights. That may be why the German Constitutional Court has also declined to hear a petition from a lower court on this matter.

The Moseneke judgment is therefore clearly in line with the views of Sachs, quoted approvingly by the Foundation, that to “allow section 9(2) to be interpreted in a way which says: provided the measure affecting the advantaged persons (whites, men, heterosexuals, English-speakers) is designed to advance the disadvantaged, the former can be treated in an abusive or oppressive way that offends their dignity and tells them and the world that they are of lesser worth than the disadvantaged.” Moseneke does not interpret section 9(2) in that way – that is why Sachs concurred in the judgment of Moseneke.

Second, the idea that it might be acceptable for one group (in this case whites) to be treated differently from another group (in this case blacks) in order to achieve the realisation of substantive equality is not remarkable at all. The Supreme Court of Canada as well as courts in many other constitutional democracies embrace this idea. Apart from the US Supreme Court – who is working with a text that is more than a hundred years old – there are very few courts in modern constitutional democracies who do not embrace the substantive notion of equality postulated by Moseneke, Mokgoro, Sachs and Ngcobo (and indeed endorsed by all the other judges of the Constitutional Court) in the Van Heerden judgment.

The notion is also accepted in international law, as a quick perusal of the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the jurisprudence of the UN Human Rights Committee, the UN Committee on Economic Social and Cultural Rights and many other quasi-judicial convention bodies required to interpret international human rights treaties will attest.

Anyone familiar with academic writing in the field of equality law will also know that this idea is not remarkable at all and that it is widely embraced and discussed by legal academics and philosophers. A quick perusal of the South African Journal for Human Rights (SAJHR) would have revealed to the Foundation that academics from all over South Africa, as well as academics from other (far from radical) universities such as Oxford, have recently published admirable articles about this concept. Probably the most famous and influential living legal philosopher (and by no means a radical ivory tower academic), Rondald Dworkin, has also written admiringly about this idea.

Now, the FW de Klerk Foundation may want to argue that the conventional wisdom on equality law is wrong and that we should rather turn the intellectual clock back 50 years and embrace a formal notion of equality. Or it may want to make more nuanced arguments – as Prof Henk Botha of Stellenbosch has done in an admirable and thoughtful article published in the SAJHR – about the paradox at the heart of modern equality law, namely that in order to remedy discrimination and redress disadvantage, we have to invoke broad social categories and identities (such as race) which are themselves implicated in relations of inequality and subordination.

Sadly the Foundation did not do any of the above, but instead relied on “common sense”, which sometimes is another word for the shared prejudices and blind-spots of an insular group of privileged but out of touch individuals trying to protect their own interests. The response of the Foundation therefore represents a lost opportunity to engage in an informed and considered manner with the difficult questions around race, redress and equality. Maybe it might want to take another stab at it and produce a more thoughtful and intellectually honest and rigorous argument. I would again be happy to publish it on this Blog in the interest of vigorous and hopefully informed debate.

Are we really free?

Feb 16th, 2011
by Pierre De Vos.
58 comments

It might sounds like an incendiary thing to say, but I will say it nevertheless: As South Africans we are not really free in any sense of the word. In 1994 South Africa became a democracy and in 1995 we adopted a Constitution that guaranteed both civil and political rights and social and economic rights. On a formal level this made us free citizens living in a democracy. At the heart of the new Constitution was the notion that everyone in South Africa – yes, also non-citizens – have an inherent human dignity that must be respected and protected.

But in reality, this promise of the Constitution has remained just that: a promise, as yet unfulfilled.

When somebody starves; when somebody must sleep under a bridge; when somebody must go through life without being able to read and write; without being able to do a decent days work; when somebody is arrested and tortured by the police; when somebody is discriminated against because of the colour of her skin or her sexual orientation or gender; when somebody is harassed or intimidated by a state official when he says something that some overweight politician or captain of industry does not agree with; when somebody has to relieve themself in an open toilet; when somebody is treated like a second class citizen because she is an atheist or a Muslim, then the inherent human dignity of that person is not being respected and protected.

For some among us (as our former President Thabo Mbeki often said when he wanted to vilify some group or another who had criticised his actions), freedom is about the right to be left alone by the state so that we can enjoy the fruits of our labour. We all get what we deserve and those who are at the bottom of the ladder are there because they are lazy, stupid and depraved and those at the top are there despite the annoying interference by the meddlesome nanny state. This kind of negative liberty presupposes, of course, that we are all born free and equal and that we all have equal opportunities fully to make use of our talents. 

This negative view of liberty is obviously based on a fiction.

This view is blind to the fact that some South Africans eat three meals a day, live in comfortable houses, have access to good books, newspapers and the internet, go on foreign trips, and attend excellent schools where they are taught in their mother-tongue (almost always English) while others go to bed hungry some nights, live under bridges or in one room shacks, have never operated a computer or read a book, are taught – if at all – in their second, third or fourth language (always English) by drunk teachers who seldom take any interest in their jobs.

This view of liberty is blind to the fact that some people have a head-start in life because of the colour of their skin which might immunise them from the pervasive structural racism in our society, or because of their sexual orientation or their male gender - which may insulate them from reality and may often make them oblivious to the vilification, marginalisation, assault or even murder that is often visited upon those who are deemed by society not to fit in or not to form part of the dominant group.

Our Constitution has embraced a different understanding of freedom.

This view of freedom, linked to the notion of the inherent human dignity of every person, goes beyond a negative conception of liberty and endorses the view that to be free we need to have a fair chance in life to achieve our full potential as human beings. This, necessarily, requires both the state and others to take steps to help create the conditions in which human beings can flourish. It requires the state to help those who cannot help themselves, or at least, cannot make use of the opportunities in even remotely the same manner as those who have been born with the silver spoon of the English language in their mouths (and perhaps two Mercedes Benzes in the garage). 

In this view, freedom and equality rights are ideals we are striving to achieve, not (only) rights that we invoke now to stop others from limiting our existing enjoyment of our privileges and freedoms or to protect us from an interfering state who is trying to take away our right to speak or criticise the government or our right to own three mansions in Sandton and eat Sushi from the bodies of women in bikini’s. Most South Africans are not free – yet. Most South Africans are not equal – yet. The state and other role players must take reasonable steps progressively to create the conditions in which we can all be free to achieve our full capabilities as human beings.

To achieve this goal will take a very, very, very long time. In fact, the achievement of the kind of equality and freedom I postulate here is probably impossible and will remain an ideal that will animate a certain kind of human rights discourse for a long time to come. We are on a journey and travelling on a bridge that is taking us to the end of the universe and we are still building that bridge while we are travelling on it, knowing full well that we will never finish with the building of the bridge and with our travels.

What do we do in the meantime to soothe our souls or to make us feel better about our own relative privilege or the perceived undeserved privilege of others around us? (Oh, those glorious weeks spent in the Mount Nelson Hotel, the wonderful luxury of an air-conditioned leather-seated BMW, the comfort of a roof over one’s head, the luxurious smell of a new coffee table book or the comforting smell of a freshly cut lawn, the wonders of a meal at The Spur or the Wimpy Bar, the indulgence of a hot bath!)

One way to deal with all of this is to wallow in debilitating guilt. Paralysed by such guilt one does nothing but express one’s shame and ostentatiously asking for forgiveness from those who cannot give it or give it too glibly. One never raises one’s voice about what is wrong or suggests how we can make things better for fear of being reminded of one’s own privileged position. One patronises others with one’s own conspicuous compassion and “understanding” and try and escape responsibility for anything by doing very little or nothing that is constructive and is helping to build that bridge.

Another way to deal with this situation of un-freedom is to work up a white-hot (but disempowering) anger and to blame others for the state of affairs. As if one has no agency oneself, as if one is helpless in the face of dark forces manipulated by others, one rails against the racist, the liberals, the whites, the blacks, the foreigners, the moffies, the counter-revolutionaries, who are to blame for everything – including one’s own sense of shame at either having it so good while so many around you have no genuine life opportunities or of not having it good at all. Blade Nzimande seems to fall into this category, railing against those who think the “darkies” cannot run the country to escape his own sense of inadequacy, helplessness and shame. 

The place where I would like us to get to – while we work on building that bridge –  is the place where the protesters in Tahrir Square in Egypt seem to be after their peaceful half-revolution. They might not be free (yet) in any sense of the word, but they are trying to live like free people. I leave you with the words of Yasmine El Rashidi, writing in the New York Review of Books about the day Hosni Mubarak finally resigned:

Cairo felt like a new place. When I got to the square, many of my friends, and tens of thousands of others who had stayed out to all hours were already back, putting things in order. A friend tweeted, “I am falling in love with brooms.” Another, “Guys, whoever is still coming to #Tahrir, we need black n white paint and rollers! We’re repainting and reconstructing pavements. Pls RT.” In the square, someone was holding a sign saying “Freedom Equals Responsibility” and groups of youth were chanting “no one throw garbage on the ground.” A guy with a loud speaker was asking people not to step on the freshly painted pavements; in some places, people were forming human shields around the wet paint.

The Empire Strikes Back

Feb 3rd, 2011
by Pierre De Vos.
106 comments

It is always good to have one’s feet held to the fire. Criticism of the legal profession and of legal academics should therefore be welcomed – whether it comes from traditional conservative quarters or from more progressive voices in our society. Criticism (hopefully) encourages self-reflection. Incisive criticism may start a debate, which might help to enlighten us and might improve the way we all engage with the law.

It was therefore great to read that Adv Jeremy Gaunlett had delivered a speech in which he criticised the legal profession for a “lack of critical faculty not merely in the Faculty, but across the face of legal life in South Africa”.  Gauntlett – who was nominated for appointed to the Constitutional Court and the Cape High Court but has not been appointed to either court – argued that there was a complacency amongst lawyers and legal academics about problems facing the legal system in South Africa.

I think as a general proposition this is correct. Lawyers and legal academics are often far too hesitant to engage with (and speak out about) issues of social injustice and the manner in which our legal system still favours the rich and well connected and disadvantages the poor and those who do not have friends in high places.

However, Gauntlett’s gripe seems to lie elsewhere. He argues that “it is time to end an approach which is insufficiently rigorous in its scrutiny of the judgments of courts, and how they function”.

[O]ther than the writing of David Dyzenhaus, Stu Woolman and Jonathan Lewis, in the tradition of John Dugard, Tony Mathews and Barend van Niekerk, and later Fink Haysom, Clive Plasket and Etienne Mureinik, what probing critique has there been in the last five years of the work of the Constitutional Court? Those of you who are public lawyers may not agree with it all.  You may or may not agree with Jonathan Lewis when he describes the output of the Constitution Court in recent years as “evidenced by an atavistic sentimentality”, “outcome-based” and “mock-Solomonic”. But then we would all benefit if you said so.

Why have you not criticised the refusal by Justice Sachs in the Sidumo case to join Justice Ngcobo and others in determining whether the right in issue was a labour right or an administrative justice right, he urging a “move away from unduly rigid compartmentalisation so as to allow judicial reasoning to embrace fluid concepts of hybridity and permeability”? Do you share my inability to understand language like that, and the concern that it is inexact because the reasoning is not rigorous?

Amongst other things the concern, says Gauntlett, is “the lack of legal clarity”.  This kind of reasoning is, of course, plausible. If one adheres to a traditional view of the law, if one does not embrace the transformative vision of the Constitution, if one believes that the common law and other legal rules should remain untouched by the values and norms enshrined in the Bill of Rights, this yearning for “legal clarity” seems logical and necessary.

After all, the assumption that “legal clarity” was a good thing and that it used to be the norm rather than the exception in the pre-constitutional era, is widely shared by traditional lawyers in South Africa. (Of course, the fact that the belief in legal clarity often led judges enthusiastically to enforce apartheid laws or made them shy away from trying to re-work the law to minimise the inhumane effects of the common law and apartheid legislation on the majority of South Africans, is not often remarked upon by the adherents of this view.)

Of course, this view is based on a very particular approach to the law, one that assumes that “legal clarity”, “precision”, and “coherence” are not only ideals that are nice to have but can be (and are) indeed achieved. It takes for granted the correctness and moral superiority of traditional legal culture, which as Karl Klare pointed out in a seminal article in 1998 remains exceedingly formalistic, rule-bound, and more concerned with precedent and systems of logic than with the just outcomes of individual cases and with the achievement of a semblance of justice.

Gauntlett’s critique, it seems to me, is therefore an ideologically based one – although it professes to come from a neutral and apolitical place. If one assumes that traditional formal legal culture is the only acceptable and correct way of doing law, then one might well agree with Gauntlett. If one embraces a transformative vision of the Constitution – in the sense explored by Klare – then one might very well have serious problems with Gauntlett’s views set out above.

I obviously fall in the second category. My critique of lawyers and legal academics would therefore focus far more on the lack of engagement of many lawyers and legal academics with issues of social justice and the lack of critical reflection about the way in which the so called “precise” and “accurate” legal rules Gauntlett talk about often favour the powerful and wealthy in our society.

Gauntlett also highlights problems with the way we choose our judges. He states:

Other than the Bar, who contributes to researching candidacies for the Bench? Should your Society not have a review committee to do just that, to offer an objective assessment of their academic worth, judgments or other legal writing, and to offer informed criticism of candidates to the JSC?

Of course there have been some serious problems with the appointment of judges. We have appointed quite a few judges who – in my opinion – did not meet the minimum criteria for appointment, including that they should have embraced the progressive values enshrined in our Bill of Rights.

(Incidentally, my colleagues at the Democratic Governance Rights Unit have been submitting assessments about applicants for judicial office for the past two years, so Gauntlett is perhaps not as well informed as he could have been about the appointments process.)

What jumps out at me is the statement that an “objective assessment” of candidates is needed. But if we talk about the need for a transformed judiciary – by which I understand a judiciary which is staffed by judges who are not sexist, not racist, not homophobic, judges who take the social justice demands of our Constitution seriously – then this talk of an objective assessment seems rather strange if not impossible.

For me what would be interesting and worthwhile would be to have a conversation (or even a heated argument) about the ideological assumptions underlying Gauntlett’s critique. We all come from different perspectives and make different assumptions about the nature of the legal system we would like to see in South Africa. These are not uncontested and for me the problem with Gaunlett’s argument is that it attempts to erase or hide the politics and ideology on which his argument is built and pretends to come from a neutral place.

Let the conversation begin.

Should Freedom Under Law appeal the Hlophe judgment?

Dec 23rd, 2010
by Pierre De Vos.
22 comments

A few months after the Judicial Service Commission (JSC) decided that it was not worth trying to find out whether it was Judge President John Hlophe, on the one hand, or some of the judges of the Constitutional Court, on the other, who had lied to it, I gave a talk via video-link to academics in New York about the whole saga.

I had previously taken quite a firm stance (to say the least) against the decision by the JSC not to continue with its investigation, so some of my American colleagues seemed taken aback when I told them that while the decision by the JSC was clearly wrong and bad for the integrity and independence of the judiciary, it was quite understandable that the JSC came to this conclusion and that I had some sympathy for the members of the JSC who in effect voted in favour of protecting Hlophe – despite the evidence and the logic demanding a full enquiry.

I explained that given the fact that only a small percentage of advocates in South Africa are black or female and even fewer of them are Senior Counsel, given further that advocates work for themselves and are likely to flounder unless they are absolutely brilliant or unless they can count on the informal support of colleagues and members of the attorney’s profession, and given the fact that there are still some white advocates — maybe good people, but part of the dominant group and therefore not always attuned to both the very practical and the more intangible problems faced by black and female advocates who join what they experience as a hostile environment — many black advocates feel angry and disillusioned.

Some people in the legal profession find this perplexing. Others complain that black advocates are not buckling up and that they are far too sensitive or spoilt. These complaints often emanate from men who do not seem to “get it” because they happen to be steeped in the culture and unspoken assumptions that reflect their own life experience but not that of black, female and gay and lesbian advocates.

Some heterosexual white men who have always operated in an institutional culture that reflects their world view, their life experience and their way of being in the world find it difficult to comprehend that this culture can be extremely alienating and exclusionary to those who do not share their cultural and professional experience. This institutional culture — which is changing, but perhaps faster in Johannesburg than in Cape Town – is  constituted by both formal rules and informal rules that are so part of the dominant group’s life experience that they do not seem to them like rules at all, but just “the way things are”. I suspects large parts of the legal profession are only now beginning to grapple with the kind of changes needed to create a culture that respects or even celebrates the diversity of our country.

I cannot speak for black South Africans or for women, but as a gay man I am acutely aware of the ways in which an institutional culture that does not embrace diversity can disempower one and can make one feel inferior and excluded. This can often work in both harsh and more subtle ways.

One may not be invited to the drinks, the braai, a golf day or the team meeting where bonds are forged, informal alliances made, or informal decisions taken about who will be awarded juicy and interesting work. A feeling of being watched and judged, of always having to prove oneself because one is not “one of the boys”, can permeate one’s professional life. For people who are perhaps not as confident or outgoing as myself or are not as prepared as myself to stand up for themselves and to make “trouble” (yes, I have always had that problem), the professional consequences could be catastrophic.

In this context, it was perhaps inevitable and even understandable that the complaint against John Hlophe – the Judge President of the Division with the smallest number of black Advocates – would be perceived as an attack on black lawyers in general. This is not about taking a “reasoned and principled” stand, but about a highly emotional response that emanates from a highly irregular and unsatisfactory situation.

In fact, I would suspect that for many black lawyers the very “reasons and principles” that those of us who clamoured for a full inquiry in the Hlophe matter relied on, might well have appeared — rightly or wrongly — like nothing more than the “conventional wisdom” of white and privileged lawyers who wished to impose their way of doing things on a vulnerable and angry minority in the profession or to punish an “uppity” black man.

One is always wiser in hindsight, but given my view of the legal profession described above, I might well have employed a slightly different tone on the Hlophe matter. I might well have tempered the outrage of many of my posts of the time. (This outrage, I must confess, was animated by a fierce loyalty towards, and support for, the institution of the Constitutional Court, whose judgments I often strongly disagree with but whose members I respect unconditionally.)

Which brings me to the recent judgment of Mabusa J in the North Gauteng High Court in the case of Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others.

What is not in dispute in this case is, first, that there are significant disputes of fact. Put more bluntly: either judge Hlophe lied or one or more of the Judges of the Constitutional Court lied to the JSC. Second, the JSC decided, before it was reconstituted after the 2009 election, that if the allegations against Judge President Hlophe were true (in other words, if the Constitutional Court judges were not lying) this would constitute gross misconduct that warrant impeachment. After the JSC was reconstituted it eventually decided not to proceed with an inquiry to try and establish whether it was Hlophe or one or more of the judges of the Constitutional Court who were lying because the evidence available to the JSC at that point did not provide conclusive proof either way.

What emerges from the judgment is that the JSC in effect decided that the evidence of the Constitutional Court judges (including Nkabinde and Jaftha JA) presented to the JSC was not of a sufficiently high calibre to support a prima facie case against Judge President Hlophe. At its most generous, one could argue that Mabusa J found that even if the evidence of Nkabinde and Jaftha were true (something disputed by Hlophe) there was not a clear enough case against the Judge President to prove gross misconduct.

In reviewing this decision, the High Court applied a rather old fashioned test familiar to lawyers who battled against apartheid state of emergency regulations, instead of a post-constitutional test in line with the requirements of the Rule of Law and constitutionally-enhanced rules of administrative justice. It asked whether the JSC had indeed “applied its mind” to the matter. The judgment states, correctly, that the court could not declare the JSC decision invalid merely because it disagreed with it or because it was unwise. But it seemed to throw the baby out with the bathwater. It failed to appreciate that in a constitutional state,  a court should review a decision by a constitutional body like the JSC applying a slightly more stringent test than merely asking whether the decision-makers applied their minds to the issue at hand. The Rule of Law – a founding principle of our Constitution – now requires this.

When dealing with the question of whether two members of the JSC should have recused themselves because they made statements in support of Hlophe in the months before the JSC decision was taken, the Court similarly applied a pre-constitutional standard and assumed that as long as the impugned members had given plausible explanations of why they would not have been biased, despite having made statements in support of Judge President Hlophe previously, that was the end of the matter.

This is not the constitutional era test for bias requiring recusal. In a constitutional state the test is whether a reasonable person, imbued with all the facts, might have had a reasonable apprehension that the particular members of the JSC were biased or not. The High Court failed to annunciate or apply this test.

Ironically – given the fact that Judge President Hlophe is said to be a champion of legal transformation — the judgment seems to rely on an apartheid-era style of legal reasoning to find against FUL. Those who support the transformation of the legal system — whether they are supporters of Judge President Hlophe or not — should therefore be concerned about the untransformed and conservative nature of the principles and style of reasoning relied on by the High Court to come to the conclusion it did.

But does this mean the judgment should be appealed? Given the racialised nature of the case and the damage already caused by the Hlophe affair to the judiciary, and given the possibility that Parliament would not impeach Hlophe even if the JSC recommended it, should we not perhaps let sleeping dogs lie? I am less enthusiastic about such an appeal going froward than I would have been a year ago. But on balance I would argue that in the interest of the transformation of the legal system, the highly problematic apartheid-style reasoning of the High Court should not go unchallenged.

Maybe those judges in of the Supreme Court of Appeal (SCA) in Bloemfontein – who in the past have not always embraced the transformative vision of the Constitution with the enthusiasm one would have wanted — may correct the legal misconceptions in this case so that the correct kind of legal reasoning could be applied the next time such a case comes before the High Courts.

It might well be that if the SCA sets aside the JSC decision, the JSC will revisit its decision and again decide not to proceed with an oral hearing. I would maintain that such a decision would be utterly irrational and damaging to the credibility of the judiciary but I would abide by such a decision if freshly made. But at least an appeal to the SCA would correct the deeply conservative and untransformed reasoning and application of outdated legal principles used by the High Court, which would be a good thing for the legal transformation of South Africa.

Surely both supporters of the JSC decision and those who — like FUL – would have liked to see the JSC actually making a finding on whether it was Hlophe JP or some judges of the Constitutional Court who were lying through their teeth, would agree that establishing a more progressive jurisprudence regarding the decision making standards employed by a constitutional body like the JSC is more important than the temporary setback for either Hlophe or some of the judges of the Constitutional Court that might result from this decision being overturned?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MP’s now protected from whistle blowing

Sep 14th, 2010
by Pierre De Vos.
52 comments

South African Parliamentarians – like other individuals in society – are sadly not free from the temptations of modern life. One MP has already been convicted of fraud and sentenced to a three year prison term after receiving a huge discount on a new car from an arms deal competitor and lying about it to Parliament. Many other MPs were convicted of fraud after they abused the travel benefits of Parliament in a saga that became known as Travelgate.

Harry Charlton, the guy who revealed the existence of the massive fraud perpetrated by some of our elected representatives against every single South African (who has contributed to the taxes that bankrolled this travel fraud), was fired soon after he blew the whistle on these MPs. The poor guy thought he would be protected by the law and that he would not be fired for exposing the criminal activities of some of our elected representatives.

Boy, was he wrong.

After Parliament fired him, he approached the Labour Court on the basis that the disclosures were “protected disclosures” as envisaged in the Protected Disclosures Act 26 of 2000 (“the PDA”, also known as the whistle blowers act) and that his dismissal was consequently automatically unfair in terms of our labour law. He won his case in the Labour Court, but Parliament appealed the judgment and the Labour Appeal Court (LAC) overturned the judgment on the basis that his disclosures were not protected by the PDA.

The PDA states that a whistle blower is only protected if he or she makes disclosures about criminal or other unlawful acts or some other specified objectionable actions of his or her “employer” or of a fellow “employee”. Parliament argued that Parliamentarians are neither employers nor employees of Parliament and that they are therefore not covered by the PDA.

In other words, it argued that if someone who works for Parliament makes disclosures about corruption, criminal activities or other nefarious activities of MPs, that person will not be protected by the PDA. An employee of Parliament would therefore have to think twice before ratting on crooked MP’s because he or she would not enjoy the same protection as the rest of us who blow the whistle on other kinds of corruption and criminality.

The Act defines an employee as, inter alia, “any person… who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and any other person who in any manner assists in carrying on or conducting the business of an employer”.

It furthermore defines an employer as any person “… who permits any other person in any manner to assist in the carrying on or conducting of his, her or its business, including any person acting on behalf or on the authority of such employer”.

The LAC decided that these definitions could not (or should not) be given a broad meaning to encompass MP’s. It rejected the argument that MP’s could be viewed as employers of the staff who work in Parliament – at least for the purposes of the PDA. The LAC rejected the argument that Parliament is the sum of its constituent parts, namely the MPs and as well as the parliamentary staff who support the ongoing operation of Parliament as carried out by the MPs. The argument that the staff perform work for the MPs and that the MPs must therefore be regarded as an employer of the staff members – at least for the purposes of the PDA – also found no favour with the LAC.

It also rejected the submission that even if one accepts that Parliament was regarded as a separate legal entity, MPs could fall within the definition of an ‘employer’ because they were all persons “acting on behalf of or on the authority of such employer”. In doing so, it did not take into account the purpose of the PDA. Nor did it interpret the provisions to promote the spirit purport and objects of the Bill of Rights as required by section 39(2) of the Bill of Rights. Instead it gave these terms more or less the same meaning as they would normally have in the labour law context – relying on rather formalistic and technical legal arguments.

It chose the most obvious literal interpretation of these terms which just happened to have the effect that crooked MP’s would largely be protected from the whistle blowing activities by uppity Parliamentary employees. With a bit more effort and intellectual rigour the LAC could have found a way to give these terms a broader meaning so that MP’s could also be subjected to whistle blowing laws. (That is what the lower court did.) This would have exposed crooked MP’s to far greater danger of having their criminal or unlawful activity exposed.

While one can quibble about the technicalities, the reasons why the LAC chose this path are rather more disturbing than the outcome. Writing for the Court, Patel JA argued as follows:

To subject MPs to the PDA may, in practice, run the risk of frustrating the democratic process. An extension of the application of ‘employee’ under the PDA to include MPs might cause statutes to become more complex. MPs ought to be entirely independent. ….Parliament submitted that parliamentary staff are answerable to the Secretary of Parliament and not to MPs. This point is important. Parliamentarians must be allowed to focus on their constitutional duty to make law. A MPs portfolio ought not to be cluttered with the additional and onerous responsibilities of being an ‘employer’ of parliamentary staff. This would hinder the effective performance of their duties and functions. This court accordingly finds that MPs are not included in the PDA.

In other words, MP’s should not have to worry that their crookedness and criminality will be exposed by Parliamentary staff, because then they will not be able to steal our money and to commit criminal offences (in-between passing laws and holding the executive to account, one presumes).

I find this line of reasoning quite startling and anti-democratic. It flies in the face of one of the founding values of our Constitution namely that our system is based on democratic government, to ensure accountability, responsiveness and openness. If anyone should be subjected to the PDA, it should be our public representatives in Parliament, whose activities are funded by tax payers and who are elected to deliver accountable, open and responsive government.

If the PDA must be interpreted to exclude MP’s (a plausible but not inevitable conclusion), then the PDA must surely be unconstitutional. This is because the PDA would then infringe on our right to receive and impart information as well as our right to vote. How can voters meaningfully exercise their right to vote if laws, in effect, make it more difficult for Parliamentary staff to expose the corruption and other criminality of some MP’s? If we do not know whether some of our MP’s are corrupt, we would not be able to make informed choices about which party to vote for and our vote would become far less meaningful.

MP’s obviously should not be required to act as employers of Parliamentary staff for the purposes of labour law or for other practical purposes. But for the purposes of the PDA, these MP’s should be subject to exactly the same threat of exposure than any other employer or employee. How else will wrongdoing by MP’s ever become known and how else will we be able to know how crooked some of our MP’s might be?

Like Caesar’s wife, our MP’s – above all – should be beyond reproach. Public trust in the democratic process and in our constitutional democracy itself is of utmost importance, but how can we trust MP’s if we know that they have passed a law that the LAC now says rightly protects them from whistle blowing? How any person could argue that the democratic process would be frustrated by protecting whistle blowers who wish to expose possible criminality on the part of MP’s, is beyond me.

The judgment of the LAC demonstrates rather vividly what happens when the transformation of our legal system is not at the forefront of judicial appointments. When judges are appointed who are not imbued with the values of our Constitution, they produce this kind of formalistic reasoning which will diminish, rather than enhance, the quality of our democracy.

Who is digging a big hole for itself?

Sep 7th, 2010
by Pierre De Vos.
188 comments

Maybe Rooseveld High School in Gauteng is a wonderful school with a truly nurturing atmosphere where real learning takes place and the critical thinking abilities of learners are developed so that they can become active citizens in our society. You know, a school where children are taught to respect diversity and embrace difference, to work hard and to think for themselves.

That would make Rooseveld High School a very different school from Pietersburg High School in Polokwane (where I matriculated in the 1980s). There, we were told to love God and our country (which belonged only to white people as black South Africans belonged in Homelands – unless they worked for white people). We were also warned to show pride in our bodies by shaving our hair poenskop (like they did in the army), by refraining from self pleasure and by marching around in military uniforms every Wednesday in preparation for defending apartheid on “The Border” (a mythical place that was somewhere in illegally occupied Angola.

Nothing much seemed to have changed at Pietersburg High School. The present headmaster of Pietersburg High School, one DW Schoeman, earlier this year gave an astonishing speech at assembly saying that ”the ethos of the school requires zero tolerance for the use of alcohol and drugs, Satanism and gay activities”.

Leaving aside for the moment the worrying fact that somebody in charge of educating children at one of the top schools in Limpopo believes in Satanism (has anyone ever seen a Satanist and is it true that they play Kurt Darren songs backward to listen to the hidden messages about skinning cats, smoking at school or kissing girls and liking it?), it is rather worrying that Mr Schoeman had not heard that section 9(3) of the Constitution prohibits unfair discrimination on any ground including sexual orientation.

Equating the use of drugs with “gay activities” displays the kind of reactionary attitude that was rife amongst teachers when I was at school there. At least one assumes it has stopped employing a nasty maths teacher called “Koorspen”, who came to class on Monday’s with a heavy hangover bragging about how he and some selected boys from the residence had gone out at night to assault black people.

All this came back to me when I read that a pupil called Luthando Nxasa was having some trouble at Rooseveld High School at the moment. According to her father she was thrown out of class after she spoke isiXhosa to a girl who sits next to her in class.  Nxasana was also allegedly prevented from writing two mid-year exams or going to the toilet, and forced to spend three school days standing in a foyer. Luthando takes up the story:

“It was a free lesson. Everyone was chatting among themselves. Even the teacher was just chatting to some other learners,” said Luthando, who sits close to the desk of her business teacher, Mrs C Venter.  Lebo sits next to me. She was worried about not completing her work. I told her to relax, she shouldn’t worry.” But then the teacher heard the conversation.  “Mrs Venter said to me: ‘Luthando, either you speak English or you get the hell out of my class.’ I stopped and looked at her and decided to take my bag and walk out.” As Luthando walked out, she confronted the teacher, telling her that the reprimand was racist. Venter then allegedly said: “You’re digging a big hole for your small little body.”

If even half of this is true (and the details of the story and the fact that a spokesperson for the school trotted out that hoary chestnut called the sub judice rule, suggests that there was some truth to this story), the school, rather than Luthando, is the one that has been digging a big hole for itself.

What is clear is that a school is prohibited from telling pupils that they cannot speak their home language at school and that they have to speak English – even in a free period where no lessons are taking place. Although the rule might apply to all pupils, the effect of the rule would be to exclude and marginalise some pupils based on their race, language or culture and would therefore unfairly discriminate against those pupils whose first language was not English.

As the Constitutional Court made clear in the Pillay case (dealing with the Hindu pupil who was prohibited from wearing a nose stud), a school had a special duty to accommodate diversity and difference (whether on the basis of their culture, race, language or sexual orientation). This meant that the school could not make rules which, while formally neutral, would enforce the basic assumptions of the dominant group at the school. (I note from the schools website that there are no African representatives on the school governing body, so I assume that the ethos of the school is still very much white and English – despite the diversity of the pupil body.)

It was also not very comforting to note that the code of conduct of the school prohibits pupils from talking to teachers unless being invited to do so. How can one actually become a thinking, reflective person if one is not allowed to speak to a teacher unless invited to do so. If this rule was actually adhered to, one would not be able to ask a teacher any questions (unless invited to do so), and will not be able to challenge a teacher – even when he or she says something racist, sexist or homophobic. This would be absurd and pedagogically disastrous.

Maybe because the school is trying to instil a Waspish reserve in it students in order for them to be able to fit in when they emigrate to the UK? The code also states that “any excessive display of affection is unacceptable”. God forbid one would want to show affection – next thing one might want to talk about one’s emotions too and that, my dear Watson, just won’t be cricket.

This case forces us to ask serious questions about the manner in which schools deal with diversity in post apartheid South Africa. Do the teachers and members of  governing bodies of former “white” schools in South Africa understand that they come to the task of teaching and running the school weighed down by many unexamined assumptions, prejudices and beliefs which – if not checked – would marginalise and alienate pupils who do not share their race, religious, cultural or language background. Do they understand that they have a special duty to review policies and codes of conduct to ensure that these are not used merely to try and force all pupils to become perfect little white, heterosexual, conformist, Englishmen or Afrikaners (who all went along with apartheid after all)?

Somehow – and not only because of the stories relayed above – I have my doubts. If my suspicions are correct, the question may be asked: what kind of society are we creating where we teach pupils that they can only get ahead if they betray their own identities and strive to become good little white, heterosexual, English speaking, Christians? Are we not creating a time bomb by promoting  insecurity and resentment that will haunt our society for decades to come?

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