It is important to note that the decision does not deal with the merits of the case brought by the DA, as the NDPP and the President have been using stalling tactics to ensure that this case is not finalized before the ANC elective conference this December. The question of whether the decision of the National Director of Public Prosecutions (NDPP) to drop all corruption charges against Jacob Zuma was unlawful and should be set aside, will only be considered once an appeal of this judgment had been finalised by the Constitutional Court, and then only if the Constitutional Court confirms the SCA judgment.

Legally there is therefore still a long way to go. Even if the Constitutional Court confirms the SCA judgment, the merits of the case will then have to be ventilated in the High Court and will almost certainly be appealed to the SCA and then the Constitutional Court. But the Constitutional Court judgment might well be finalized before December, which would mean that if the SCA judgment is confirmed, the NDPP will have to hand over almost all relevant documents which were considered by the NDPP when he made the controversial decision to drop charges against Zuma to the court. The NDPP would not have to hand over the written submissions made to the NPA on behalf of Zuma as these documents are confidential – unless President Zuma waives his right to confidentiality in this regard.

As Navsa J explained, this will present difficult choices for the NDPP and for President Zuma, as they run the risk of ultimately losing the case if they fail to put sufficient documents before the court to legally justify the decision to drop the charges against the President. Such information, crucially, will have to include evidence of the tape recordings which ostensibly led to the dropping of charges as well as evidence about the way the tapes were obtained and by whom they were made. I quote from the judgment.

In the event of an order compelling production of the record, the office of the NDPP will be obliged to make available whatever was before Mr Mpshe when he made the decision to discontinue the prosecution. It will then fall to the reviewing court to assess its value in answering the questions posed in the review application. If the reduced record provides an incomplete picture it might well have the effect of the NDPP being at risk of not being able to justify the decision. This might be the result of Mr Zuma’s decision not to waive the confidentiality of the representations made by him. On the other hand, a reduced record might redound to the benefit of the NDPP and Mr Zuma.

Interestingly, the SCA decided not to deal with the question of whether a decision by the NPA to drop charges constituted administrative action under the Promotion of Administrative Justice Act (PAJA). Instead it found that the decision was reviewable under section 1(c) of the Constitution. This is where the curious statement of the ANC becomes relevant. In the statement following the judgment the ANC said, amongst others:

This matter, whilst it receives a deeper legal analysis, we however want to highlight the following:

• The continued attempt by the DA to use the Courts to undermine and paralyse government.
• The granting of blanket permission to political parties to can review any State decisions, using Courts.
• How the DA will conduct a review of the case when it can`t have access to all the information which informed the NDPPs decision, to withdraw the charges.

Given these facts, it is clear that democracy can be undermined by simply approaching courts to reverse any decision arrived at by a qualified organ of State.

Leaving aside for the moment that the NPA is not part of government as suggested by the statement, but in fact an independent body that must make decisions on whether to charge and prosecute somebody “without fear, favour or prejudice, the statement shows a worrying lack of understanding of the Rule of Law. The Rule of Law requires, at a minimum, that public power must be exercised in accordance with the law and in a rational manner. The ANC statement suggests that when the government of the day (or in this case the NPA) acted illegally (in the sense that it ignored the law or was not authorised by law to act or where there was no rational relationship between the act and the reasons given for the act, then a political party should not be allowed to approach a court to challenge this flouting of the law and the Constitution as this would open the floodgates of litigation, would undermine all organs of state and would paralyse government.

As I see it, this seems like an extraordinary admission on the part of the ANC that the government it heads flouts the law and the Constitution so regularly that it would be completely paralysed if it is taken to court every time this happens. Why else would political parties flood the courts (spending millions of Rand they could have spent on election campaigns) unless they believe they can prove that the government has flouted the law. I am not sure the statement was meant to make this admission, but that is the necessary implication of it. The SCA dealt with the floodgates argument in the following (to my mind convincing) passage, starting with a quote from a High Court judgment:

“One of the principal objections often raised against the adoption of a more flexible approach to the problem of locus standi the floodgates will thereby be opened, giving rise to an uncontrollable torrent of litigation. It is well, however, to bear in mind a remark made by Mr Justice Kirby, President of the New South Wales Court of Appeal, in the course of an address at the Tenth Anniversary Conference of the Legal Resources Centre, namely that it may sometimes be necessary to open the floodgates in order to irrigate the arid ground below them. I am not persuaded by the argument that to afford locus standi to a body such as first applicant in circumstances such as these would be to open the floodgates to a torrent of frivolous or vexatious litigation against the State by cranks or busybodies. Neither am I persuaded, given the exorbitant costs of Supreme Court litigation, that should the law be so adapted cranks and busybodies would indeed flood the courts with vexatious or frivolous applications against the State. Should they be tempted to do so, I have no doubt that appropriate order of costs would soon inhibit their litigious ardour.”

Thirdly, as was pointed out by Budlender, ‘if the cases are well-founded, there can be no objection to a flood of people trying to achieve justice’.

What the ANC does not seem to understand is what is at stake here: the very essence of respect for the Rule of Law, a founding value of our Constitution contained in section 1(c) of the Constitution. That section proclaims the supremacy of the Constitution and the concomitant supremacy of the Rule of Law. In fulfilling the constitutional duty of testing the exercise of public power against the Constitution, courts are protecting the very essence of a constitutional democracy. When a political party approaches the court on a Rule of Law question, it is also helping to safeguard democracy. This principle is important, and is explained thus in the judgment:

Put simply, it means that each of the arms of government and every citizen, institution or other recognised legal entity, are all bound by and equal before the law. Put differently, it means that none of us is above the law. It is a concept that we, as a nation, must cherish, nurture and protect. We must be intent on ensuring that it is ingrained in the national psyche. It is our best guarantee against tyranny, now and in the future.

The ANC should have thanked the DA for spending pots of money to safeguard this cherished principle, money they could have spent to fight elections. This does not mean the DA will ultimately win their case. This will have to be decided afresh by the High Court. There are two aspects relating to the Rule of Law that might be relevant to this case, depending on the facts and depending on the evidence placed before a court.

First, although the judgment does not expressly say so, the NDPP would not have acted in accordance with the law and the Constitution, if he had dropped the charges on grounds not provided for in the NPA’s prosecuting policy to which the NPA is bound. What will make the NDPP’s case more difficult is that the acting NDPP, Mokothedi Mpshe, had failed to refer to the prosecuting policy at all when he provided reasons for the dropping of charges. The argument would therefore be that the charges were not dropped in accordance with this legally binding prosecution policy and was thus unlawful and an affront to the Rule of Law.

But there is a second aspect of the Rule of Law which might apply here. This is that when public power is exercised in terms of the Constitution or other legislation, this exercise of power had to be rational. As Navsa pointed out, “the rule of law also requires rationality as a prerequisite for the validity of the exercise of all public power”. This means that where somebody exercises public power, there must be a rational connection between the decision taken and the stated reasons or goal of that decision. Where reasons were cribbed from an overturned Hong Kong decision, say, the body making the decision will have some work to do to convince a court that the decision was rational.

However, it is important to note that the SCA did not endorse the view that the decision would have to be viewed on these two grounds. That, said Navsa, was a question for the high court – the court seized with the application for the review. Because arguments made by the NDPP about the extent to which the decision was reviewable were premature, it was for the High Court to determine the grounds of review. Criticising the now suspended head of the NDPP, Menzi Simelane, (which was not the first time Simelane has been criticised by our courts) on this point, the SCA remarked that it “is difficult to understand why it persisted in pursuing the appeal on this aspect. It does not reflect well on the NDPP.”

It might well be that eventually a court will decide that there are sufficient reasons to grant a permanent stay of prosecution in this case. But usually those decisions are taken by a judge, not by the NDPP. If the NDPP had acted irrationally or if it had not followed its own prosecution policy it would have flouted the law for political reasons and would have treated one person – the current President – as above the law. That is why it is important that the courts decide whether this decision was valid or not. Who knows, the evidence provided by the NDPP (and perhaps by President Zuma, if he decides to release his submissions to the NDPP) might satisfy the courts that this decision did not flout the Rule of Law.

If that were to be the case, the ANC would have again have to thank the DA for clearing this up and for helping our courts to reaffirm our confidence in our prosecuting authority. At the moment the NPA is not a body that instils much confidence with anybody, as there is some evidence that it has been politically captured by the Zuma faction inside the ANC over the past three years (and there is some evidence that it was politically captured by the Mbeki faction before that). I suspect the statement was made not because of a sudden attack of conscience or principle on the part of the ANC, but rather because the judgment provided a political opening for opponents of President Jacob Zuma and needed to be discredited.

In doing so, this statement represents a worrying attack on the Rule of Law.

I tried to ascertain – by reading the relevant sections of the Correctional Services Act – whether the release of the 2 Waterkloof killers were unlawful, but that Act is not easy to understand and I am just about to embark on holiday and, for the time being, was defeated by the complicated provisions of that Act.

What did strike me is the manner in which this case has been reported in especially parts of the Afrikaans media. Unlike with Schabir Shailk, where the reporting focused on the possible abuse of power in ordering Shaik’s release, some Afrikaans media outlets have been treating this case as if the Waterkloof killers have been the victims of a terrible injustice. How the cold blooded killers of a homeless man can ever be seen as victims is beyond me. I guess sometimes in our society race and language solidarity trumps everything else – including considerations of justice.

In any case, this is probably my last post for the year. I will be back early in the new year. Hope all readers of this Blog have a good holiday.

]]> http://constitutionallyspeaking.co.za/the-end-of-the-year/feed/ 335 http://constitutionallyspeaking.co.za/who-can-we-trust/ http://constitutionallyspeaking.co.za/who-can-we-trust/#comments Tue, 22 Nov 2011 16:16:49 +0000 Pierre De Vos http://constitutionallyspeaking.co.za/?p=5090 Very few people implicitly and unconditionally trust all government officials, all members of the cabinet and all the members of the intelligence services of their country. Few, surely, believe that they will always act scrupulously, honestly and in strict accordance to the law and the Constitution. (Hell, I am not even sure President Zuma fully trusts all his own ministers.)

One might well implicitly trust ministers and government officials if they belong to the politically party that one passionately supports. Thus, some DA members might blindly trust Helen Zille, while some ANC members might blindly trust Jacob Zuma. But very few of those DA supporters would blindly trust Zuma and very few of those ANC supporters would blindly trust Zille.

And whether one is a die-hard ANC supporter or a die-hard DA supporter, there cannot be too many people around who would blindly trust the members of the intelligence services (in other words the spies whose job it is to deceive, to keep secrets, and to obfuscate, all in the name of protecting national security). Given the way in which our spies have been implicated in various political plots relating to various ANC factions, only a fool will tell you that he or she believes our spies always respect the letter and the spirit of the law and always act honestly, and in the best interest of the Constitution and us citizens.

Most would worry that our spies might at some point act in the interest of one or other faction in the ruling party, in the interest of members of the police or the military (as some did in attempts to try and protect the corrupt former Police Commissioner) or merely in their own interest. After all, members of the intelligence service have often acted unlawfully and unconstitutionally over the past few years and quite a few were eventually fired as a result.

This is why a discussion of the dangers of the Protection of State Information Bill passed by the National Assembly today (and now to be discussed by the National Council of Provinces), raises difficult questions. On the one hand the Bill on its face is not nearly as draconian as members of the media keep arguing. The Bill represents a vast improvement on the truly draconian Bill first tabled in Parliament last year and — at least on paper — now contains many safeguards to protect us against the emergence of a secretive national security state or the abuse of the Bill to cover up corruption, maladministration and other kinds of criminality in government.

However, on the other hand, the Bill cannot be judged on paper only, but must be judged in the context in which spies and politicians have often been revealed over the past few years to be less than honourable and respectful of the law.

The problem with the new “improved” version of the Bill and the safeguards included in it, is that it assumes that we can blindly trust all government Ministers, state officials and spies to understand the intricacies (and seemingly contradictory aspects) of this Bill and to always apply it in accordance with this perfect understanding of the various provisions of the Bill. It also assumes that those who are empowered to classify documents and review the classification of documents will do so with one eye on the Constitution. Furthermore, it assumes rather optimistically, that the Minister of State Security (whose wife was recently convicted of drug running), other Ministers authorised to classify documents and the spies whose job it is so sow confusion, spread lies and generally to deceive others while hiding behind a cloak of secrecy, will not abuse their powers and will only act in accordance with the letter and spirit of the Bill.

Of course we know that a number of Ministers, including Defence Minister Lindiwe Sisulu and State Security Minister Siyabonga Cwele, have refused to answer questions about their travel costs and hotel stays on the grounds that this would compromise their personal security, displaying a rather authoritarian view on keeping secrets in the interest of so called “security” and abusing the excuse of security to evade accountability for possible wasteful expenditure  (or worse). One will therefore have to be an eternal optimist to believe that Ministers, spies and other officials authorised by this Bill to classify documents as secret or top secret will not abuse that power at some point or another.

(And even if one is such an optimist as well as a member of the ANC, one should remember that no government remains in power for ever and that this Bill will one day also be applied by people who are not ANC members.)

In a country like South Africa, there are far less pressure on politicians to act in a principled, honest and consistent manner.

Unlike Constitutional Court judges, who are constrained – at least to some degree - by the text of the Constitution and by the legal precedent established by a long line of judgments, politicians do not have to be consistent, particularly honest or principled. As long as they achieve their short term goals – which usually entails, on the one hand, avoiding humiliation and avoiding being exposed as charlatans or crooks and, on the other hand, advancing their careers to climb the greasy poll - they have a relatively free hand to say and do anything that the voting public will let them get away with.

Thus, a politician like Helen Zille could effortlessly lambast ANC leaders for launching a scathing and unwarranted personal attack on the judges of the Constitutional Court, only to launch a scathing and unwarranted personal attack on a judge of the Cape High Court a few months later. Those who support her party almost all staunchly defended her – regardless of the principles involved – just as many of those who defended Jacob Zuma during his legal troubles did so – regardless of the facts.

But sometimes even politicians get caught out and then the ensuing spectacle presents such a bizarre and macabre contrast between what the politician used to say and do and what he or she now says or does, that the politician runs the risk of completely losing any credibility – even with the very gullible voting public who might once have defended the politician regardless of the facts.

Recall that after Schabir Shaik was convicted of bribing Jacob Zuma and then President Thabo Mbeki removed Zuma as Deputy President of the country in anticipation of him being charged with fraud and corruption, Zuma skilfully exploited his image as a victim. Zuma subtly encouraged his supporters to defend him and to attack his “enemies”, especially Mbeki. This Cosatu, the SACP and the ANC Youth League and their supporters did with little care for the consequences of their actions or any appeal to reason or principle.

Thus Mbeki was vilified and branded as a snake, and ANC T-shirts with his face on it was burnt by Zuma supporters who claimed that they would die for their leader – no matter whether he was corrupt and no matter what he might or might not have done with that baby oil in that room with the young daughter of an old and dear comrade friend. Cosatu, the SACP and the ANC Youth League all rallied behind Zuma because they had the short term goal of getting rid of Mbeki to unite them.

Very few of these politicians paused to ask whether Zuma might not have a case to answer in court – given the fact that Shaik had already been convicted of bribing him. They did not ask whether Zuma would make a good President of the ANC and the country. They did not really explore questions about President Zuma’s values and never stopped to ask whether – as supposedly principled and progressive organisations – they should support a leader who seemed to be rather surprisingly patriarchal and conservative in his views.

One would therefore be excused if one had a bit of a schadenfreugasm – to use a phrase popularised by Jon Stewart’s Daily Show – about the events today outside Luthuli House. While ANC Youth League President Julius Malema was facing disciplinary charges inside ANC headquarters, outside some of his supporters were pelting police and journalists with bricks, burning ANC T-shirts with the image of President Jacob Zuma and chanting slogans about how they would kill for Malema. How ironic that ANC Secretary General Gwede Mantashe, who blindly supported Zuma, today issued a statement condemning the behaviour of ANC Youth League supporters, conveniently forgetting the behaviour of the crowds outside the court when Zuma was charged with rape and when he made appearances during his many court battles with the Scorpions

Of course, many reasons could be advanced for the embarrassing but not unfamiliar display outside ANC headquarters today: the fact that Malema’s message of nationalisation resonates with some unemployed youth, that Malema is a role model for people looking at his flashy success, that the ANC leadership had encouraged this populism with their own behaviour, as well as any number of other explanations could be offered. But as I am not a professional political analyst I am far from sure that anything I could say on this topic would be of much interest or would show any special insight.

The point I would like to make is perhaps more mundane. If we had lived in a more normal society - a society not haunted by the lingering ghosts of our apartheid past - the bizarre events of today, which harks back to the events that led up to the ANC’s Polokwane conference and then to the dropping of criminal charges against President Zuma, might not have happened. If we had lived in a better functioning constitutional democracy, one in which the gap between rich and poor were not so vast and so obscene and in which conspicuous consumption by those with old and new money alike were not celebrated and held up as the ideal, it might have been more likely that reason, debate and sober reflection - instead of illogical rage – would have dominated the public discourse.

If we had lived in a more normal society, reason and logic might have had a better chance of being the dominant mode of doing politics. In such a democracy, leaders and ordinary citizens would have been required to be far more rigorous in justifying their decisions and would have more quickly been called to account if they failed to justify their words and actions in a credible manner. Politicians would at least have had to pretend to have principles, intellectual prowess and integrity (although, granted, in the UK of “New Labour”, Tony Blair – who was very good at pretending - turned out to be a disastrous leader). Most voters would have been shamed into opposing leaders who so clearly did not have the best interest of the poor at heart and were possibly corrupt.

But today’s events remind us that we do not live in an ordinary or normal country. We live in a country where some people (politicians and the old business elite among them) eat sushi from the bodies of semi-naked models; are protected by bodyguards and high walls from the young men and women who have no money, no jobs and little to lose; a country where some people travel across the world in first class and throw lavish parties, while the majority of South Africans languish in poverty and do not have the life chances to make meaningful decisions about their own lives.

Railing against Julius Malema and his supporters and calling them thugs and rioters will not change this basic fact – just like railing against Jacob Zuma during his battle with Thabo Mbeki had little effect. Unless we do something to address this bizarre and immoral state of affairs so many of us often seem to take for granted, everything that Mr Malema and his supporters represent will not disappear. That is one reason I support a wealth tax and why those who rail against the idea – just like they rail against Malema and his supporters – do not seem to me to have the best interests of South Africa and all who live in it at heart.

Alas, this morning the front page of The Times newspaper printed a picture of rows and rows of toilets in the veld near the Free State town of Harrismith below a picture of similar rows of toilets erected by the apartheid government in a field near Letsitele in Limpopo.

The newspaper also reported that ANC led Maluti-a-Phofung Municipality in Harrismith is now charging the poor up to R5000 for a plot of land with a flushing toilet on it. For some inexplicable reason, the municipality which erected more than 1000 lavatories on land apparently earmarked for low cost housing, is now insisting that people who qualify for such housing pay for the land – and the toilets.

The Times reports that despite numerous enquiries, municipal officials could not explain how or why more than 1000 toilets were erected on one field across the road from Tshiame township almost three years ago. Ward councillor Moeketsi Mofana is quoted as saying: “We are selling them. I’m not sure about the prices, it will depend on the size of the stand. They have to be sold. The money used to develop the site has to be recouped. For now there are no RDPs [low cost houses] in the pipeline. The priority is to move and complete this project.”

Now, why would they be selling these pieces of land attached to toilets? Who decided to build those toilets in the open veld in the first place and who benefited financially from this apartheid-style decision? Who received the tender for that project and how much was it worth? Was corruption involved in the awarding of the tenders and was the price so inflated that the municipality had no money left to build houses to accompany the toilets?

And in terms of what policy and legal framework are they now trying to sell these toilets to the poor people of Maluti-a-Phofung municipality? As far as I am aware there is no government policy in place that allows for the selling of such toilets-only pieces of land to indigent residents on an ad hoc basis. And who is going to profit from this scheme? Will the money be used to buy a new car for the mayor, perhaps, or will the money be used to finance an inauguration party for the major or a refurbishment of his office?

On its own this story would have been shocking. After all, the ANC professes to want to serve the poor, while our Constitution places a duty on all spheres of government to take reasonable steps to provide more and more people progressively with access to housing, water and sanitation. And was it not the National Party – who treated black South Africans in a way that denied them their basic human dignity – who became notorious for building rows of toilets in a veld in Limpopo?

But then I read that Julius Malema – the professed champion of all champions of the poor –  allegedly paid R78 000 in cash for a three-day frolic with five friends at the “colonial” and ultra-luxurious five-star Royal Malewane game reserve next to the Kruger National Park. His luxury adventure occurred shortly before his re-election as ANCYL president three weeks ago in an election campaign which saw him repeatedly sell himself as a champion of the poor. Malema earns about R40 000 a month as ANC Youth League President, so this cash must have been acquired in a manner other than from being paid a salary for work done.

When asked for comment by reporter Jacques Dommisse (JD), ANC Youth League spokesperson Floyd Shivambu (FS) responded as follows:

FS: Fuck you.

JD: Say again?
FS: I said: “Fuck you”

JD: Are you swearing at me?
FS: Yes.

JD: Why are you doing that?
FS: What is your problem?

JD: I have no problem.
FS: Fuck you. Fuck off, ok.

Am I the only person to see in Mr Shivambu’s response also a metaphor of the attitude of a sections of the ANC – I am talking about the ANC aligned tenderpreneurs and pseudo revolutionaries, of which Mr Malema is a prime example – to the poor people of Maluti-a-Phofung Municipality and many other communities in South Africa?

To me the juxtaposition of these two events demonstrates the absurdity and utter bankruptcy of much of the political “debate” in South Africa. While we endlessly debate whether Julius Malema should be found to have uttered hate speech when he sang dubul’ibhunu, or whether his Gucci-revolutionary slogans about the nationalisation of the mines and the expropriation of white-owned land without compensation is acceptable, poor people wait in vain for the better life they have been promised, while well-connected individuals become instant millionaires through tenders and bribes (skimming off tax money that could have been used to improve the lives of our people).

While we should be debating how we can stop the looting of state resources and tenderpreneurial corruption, how we can hold politicians to account for stealing from the poor, how we can secure the successful prosecution of corrupt politicians and officials, and how we can ensure that taxpayers money is spent wisely to help improve the lives of the poorest of citizens who rely on the state for their very survival, we get side-tracked by the smoke-and-mirrors sideshows put on by people like Mr Malema.

While journalists should be working day and night to try and find out how Julius Malema made his millions, they sit around at ANC Youth League press conferences and laugh along while Mr Malema provides them with entertaining soundbites that will help to sell the morning newspapers. While law-enforcment officials should be investigating and arresting tenderpreneurs every day, they investigate the Public Protector instead.

While our government haemorrhages money because of unwise or corrupt decisions taken by underqualified or corrupt deployed officials and politicians, money that could have been spent to improve the life chances of those who have very little hope of ever finding gainful employment, the ANC seems to be focused almost entirely on who will challenge whom for which position at the ANC conference next year.

As Samantha Vice might not have asked: “How do we live in this strange place when all most of us seem to be obsessed about are the things that do not bear directly on improving the lives of our people?” How can we expect citizens to become active and to take charge of their daily lives when we all entertain them with the bread-and-circus of ANC internal politics and the latest deliberately outrageous utterances of millionaires like Malema?

During the nineteen eighties, the AD was, to put not too fine a point on it, an almost entirely reactionary court who overturned many decisions by lower courts who – applying Administrative Law – had invalidated many draconian emergency regulations used by the government to ban, detain and censor opponents. Even after the 1996 Constitution bestowed jurisdiction regarding most constitutional issues on that court, many of its judges seemed to do whatever they could to avoid referring to the Constitution altogether, and tried to insulate the common law – which they saw as their holy domain – from the salutary influence of the Constitution.

This anti-transformative attempt to “protect” the common law from the Constitution was nipped in the bud by the Constitutional Court in the Pharmaceutical Manufacturers case. Many good appointments have also been made since to the SCA (along with a few old guard appointments) which has softened the anti-constitutional image of that court. The upshot is that the SCA now sometimes hands down decisions in the constitutional arena – the Mazibuko case dealing with water rights is a good example - that are more far reaching and progressive than the decisions of the Constitutional Court.

There still seems a to be residual reluctance at the SCA to acknowledge the full effects of section 39(2) on the common law, but this reluctance is shared by many other lawyers and judges. (Section 39(2) states that when interpreting legislation or developing the common law or customary law, judges must take into account the purport, spirit and object of the Bill of Rights.)

In the Pharmaceutical Manufacturers case the Constitutional Court rejected the SCA view that despite the Administrative Justice clause in the Constitution, common law grounds of review could still be relied upon by a litigant, and if this was done, the matter had then to be treated as a common law matter and not a constitutional matter. Justice Chaskalson wrote in that case:

I cannot accept this contention which treats the common law as a body of law separate and distinct from the Constitution. There are not two systems of law, each dealing with the same subject matter, each having similar requirements, each operating in its own field with its own highest court. There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.

This passage, read with section 39(2), means that when dealing with almost any aspect of our law - contract, delict, company law, banking law, family law, you name it - a lawyer might be able to raise a constitutional issue, and the case might well end up in the Constitutional Court. Given this legal reality, it has long been suggested that the Constitutional Court should become the highest court for all legal matters in South Africa. At present the Constitution states that the Constitutional Court is the highest court in all constitutional matters and “may decide only constitutional matters, and issues connected with decisions on constitutional matters”.

The Constitution Seventeenth Amendment Bill, aspects of which I discussed earlier this week, now proposes that the Constitutional Court becomes the apex court of South Africa and that it should be the highest court in the Republic for any matter. The proposed amendments to section 167(3) of the Constitution, state, inter alia, that the Court may decide constitutional matters on appeal or directly and “any other matter, if the Constitutional Court grants leave to appeal that matter on the grounds that the interests of justice require that the matter be decided” by that Court.

If passed, this would mean that one would be able to approach the Constitutional Court on appeal on any matter – even if that matter does not raise any obvious constitutional issue. The Constitutional Court will have no duty to hear that matter – even if there were good prospects for success – but would be able to decide to hear the case if the Court felt that it was in the interest of justice to do so. In other words, the amendment would give the Constitutional Court a very wide discretion to hear or not to hear non-constitutional appeals from the SCA (if they believed this was in the interest of justice).

Opponents of this amendment argue that it would be a mistake to extend the jurisdiction of the Constitutional Court in this way. It is a specialised court, they argue, and its judges lack the necessary legal skills and knowledge in specialised areas of the law such as Banking Law, Company Law or Trade Mark Law. Others also argue that the Court will lose its specialised character as it will be flooded by appeals and will have no time carefully to consider important constitutional issues that may have far-reaching political consequences. This, so the argument goes, will affect the quality (and probably the length!) of Constitutional Court judgments.

I am not persuaded by these arguments for many of the reasons raised above. The Constitutional Court already has jurisdiction to deal with all aspects of our law if it touches on the Constitution. A clever lawyer with the necessary resources and a working knowledge of the Constitutional Court’s jurisprudence would be able to turn almost any case dealing with the interpretation of legislation or the consideration of the common law or the customary law into a potential constitutional matter.

The fact that this does not happen that much, must serve as a rather damning indictment of many South African lawyers who are often sadly parochial, complacent and also uninformed about the very basic architecture of constitutional adjudication. Many lawyers believe that if they specialise in commercial law, say, they do not really have to know anything about the Constitution. (There are of course notable exceptions to this generalisation.) Clients often do not realise that they should seek out lawyers who are capable of using the Constitution as this will improve the legal representation they are paying for.

But lawyers are often encouraged to think in this way by those who teach them. Although some colleagues at various law schools in South Africa who teach Private Law and Commercial Law subjects do engage energetically with the Constitution, others eschew proper engagement with the way in which the Bill of Rights may potentially affect the part of the law that they are ”experts” in, often dismissing the Constitution in a lecture or two or ridiculing the Constitutional Court for allegedly messing up the magesterial common law.

If the Constitutional Court can devise an efficient system that would allow a conference of, say, 3 judges, to deal preliminary with all applications for leave to appeal in terms of section 167(3) in order to decide whether it might be in the interest of justice to hear the case, and if the Court as a whole does not take on too many cases but uses its discretionary jurisdiction wisely, I can see no reason why the Constitutional Court should not become the highest court for all matters.

The proposed section 167(3) makes clear that one would never be able to approach the Constitutional Court directly on a non-constitutional matter, so the Constitutional Court will always have the benefit of having access to a judgment of a High Court and the SCA when it considers a case. It will then have to decide whether it is in the interest of justice to interfere with the SCA judgment, which will often be the case only where the SCA had not considered the wider effects of the legal rule on ordinary human beings.

There will be advantages to such a system. It will confirm in a very tangible way that South Africa only has one system of law. It might force lawyers out of their comfort zones to engage more intelligently and in an informed manner with the Constitution as they might now consider the possibility of a further appeal to the Constitutional Court – even in so called non-constitutional matters relating to commercial law or private law – and might realise that the Constitutional Court might raise Constitutional issues which have to be answered properly if the best intersts of their clients are to be served.

Often the application of seemingly neutral legal rules – contained in legislation or in the common law or customary  law – affect the human rights of individuals. A truly transformed legal system will have to engage with this reality and will have to re-consider the stubborn belief in the neutrality of legal rules. If we are going to transform the legal system to bring all legal rules in line with the spirit, purport and object of the Bill of Rights, then lawyers, legal academics and judges will all have to play their part. These proposed changes might well begin to force them to do so.

In a constitutional democracy, voters vote for the political party of their choice. In our system, the representatives of political parties are thus elected to Parliament to represent the interest of voters and the leader of the majority party (or the largest party in the National Assembly) is elected as the President of the country.

Our system of democracy cannot operate without the presence of political parties and it is therefore not surprising that one of the founding provisions of our Constitution states that South Africa is a democratic state founded on the value of universal adult suffrage, a national common voters roll, regular elections and “a multi-party system of democratic government”.

In South Africa at the national and provincial level we do not vote for individual people who happen to represent a specific political party. We vote for political party of our choice and that political party decides in any way it deems fit who should appear on the electoral lists and thus who will represent the party in the various legislatures. Members of the leadership of the majority party usually then also become members of the executive.

But our Constitution does not explicitly regulate the relationship between the extra-parliamentary wing of the political party (in the case of the ANC that would be the NWC, the NEC and the “top six” of the ANC) and the intra-Parliamentary and intra-executive wings of the party.

Because we vote for a party and not an individual, members of the legislature and executive must broadly adhere to the policies of the political party they belong to. Members of the legislature do not have a free mandate to vote according to their conscience (if any). However, and somewhat paradoxically, these members have been elected to represent the interest of the voters in the legislature and the executive: they were not elected to present merely the interests of the political party they belong to.

A balance need to be struck between the need to follow party policy and the need to represent the voters. On the one hand, public representatives must be guided by the policies and decisions of their parties. On the other hand, when they are remote-controlled by unelected extra-Parliamentary forces they are not representing the voters as they are constitutionally required to do. Where members of the legislature or the executive do not in fact make any independent decisions but only execute decisions of the extra-Parliamentary leadership of the political party, the formal structures of the constitutional state are fatally undermined. Then we do not have a fully functioning constitutional democracy anymore but rather we are veering towards becoming a party autocracy.

The heart of our democratic system is supposed to be the National Assembly, but if the ANC members of the National Assembly as well as the Cabinet Ministers are mere appendages of the extra-Parliamentary wing of the ANC then the National Assembly and the Executive become mere rubber stamps for decisions taken by a body that is not democratically elected. Instead of being governed by those representing the more than 10 million voters who voted for the ANC, we are then governed by those who were voted into office by 2400 delegates at Polokwane.

Provisions requiring Parliament to facilitate public involvement in the law making process and provisions requiring members of the executive to be accountable to the legislature then become meaningless as both the majority of members of the legislature and the cabinet are then only accountable to the ANC leadership which was not elected into office by the voters. In our system, it is always going to be difficult to strike the right balance between the extra-Parliamentary and the intra-Parliamentary and intra-Executive wings of the majority party.

Former President Thabo Mbeki was accused of concentrating too much power in the hands of the Presidency and of ignoring the extra-parliamentary wing of the ANC – and he was unceremoniously dumped because of this. Now, perhaps because President Jacob Zuma is fearful that he will be dismissed by his own party, the power has swung too far in the other direction. Nothing demonstrates this better than the manner in which various intra- and extra-Parliamentary leaders of the ANC dealt with the Trevor Manuel letter to Jimmy Manyi. As Stephen Grootes noted in an article in The Daily Maverick:

It really is an interesting illustration of how politics works in this country. Last week, after the publication of the Manuel letter, you couldn’t get a minister to comment on this for love or money. Suddenly the NWC meets, and Manyi gets cabinet’s full backing. It really is just about politics, and who is in favour and who is not. Sorry, we didn’t mean to sound surprised.

There is a real danger lurking in this development. The fact that the ANC adheres to the principle of democratic centralism (itself a highly dubious and undemocratic principle), which requires all members to toe the party line once the party has spoken, coupled with the infighting and factionalism within the ANC which leads to a tendency of representatives not to want to make any decision or take any public position until the official line has been communicated from Luthuli House, inevitably leads to a hollowing out of the constitutional institutions such as the national legislature and the national executive.

This state of affairs is not good for our constitutional democracy. If Luthuli House in effect runs the country, the role of political parties other than the ANC becomes irrelevant. This means that the votes cast for opposition parties become completely irrelevant and do not count. At least at present some of the extra- and intra system members of the ANC overlap – for example the President of the ANC is also the President of the country – which mitigates the problem. This does not address the problem of undermining opposition parties, but it does make the whole system slightly less undemocratic.

That is why it was such a bad idea for President Thabo Mbeki to stand for a third term as President of the ANC. Given our system, if President Mbeki had won at Polokwane he would have been able to run the country from Luthuli House and this would have been even more undemocratic than the present system because Mbeki would not have been directly or indirectly elected by the voters (as President Jacob Zuma at least is) yet, through Luthuli House, he would have been able to run the country merely because just more than 2000 people had voted for him at an ANC conference.

This distinction came to mind  when I read about the rather outrageous actions of Christopher Taute, the executive mayor of the Hessequa Municipality in the Western Cape. He has written a letter (on the official municipal letter head) asking companies to sponsor the ANC election campaign in order to retain “good relationships with (the) ANC-controlled council”.

The letter reads in full:

Hessequa Municipality
Office of the Executive Mayor

2011-01-20

Dear Manager/Owner,

I herewith wish to request your company for a donation to the ANC for our election campaign. As you currently have contracts with our municipality – which were made possible by this ANC-run council, I would like to make a friendly request that you contribute a donation to the ANC for the election campaign, in order to continue building on your good relations with this ANC-run council. If you would like to make a donation to our election campaign, it would be appreciated if you could do so by cheque, made out to the “ANC.”

Best wishes
CP Taute
Executive Mayor

Now, Mayor Taute will argue that what he did was not a criminal offense. Yes, his letter hints that a donation to the ANC might assist a business in retaining contracts with the municipality. Yes, the letter says that a business who does not donate money to the ANC might not build on their good relationship with the municipality. Yes, the mayor is the political head of the municipality and probably has informal links with the tender committee who makes decisions about such contracts. But nowhere does it state that a business will not be given a contract unless it donates to the ANC. One could therefore argue that the “request” was not unlawful.

Here is why.

Section 3 of the Prevention and Combating of Corrupt Activities Act no 12 of 2004 states that:

Any person who directly or indirectly accepts or agrees or offers to accept a gratification from any other person, whether for the benefit of himself or herelf or for the benefit of another person…. in order to act personally or by influencing another person so to act in a manner that amounts to the illegal, dishonest, unauthorised, incomplete, or biased… carrying out or performance of any powers, duties or functions arising out of a constitutional, statutor. contractual or any other legal obligation that amounts to the abuse of a position of authority; a breach of trust; or the violation of a legal duty or a set of rules; designed to achieve an unjustified result; or that amounts to any other unauthorised or improper inducement to do or  not to do anything  is guilty of the offence of corruption.

It might well be that the mayor intended to indicate to the businesses that if they donated money to the ANC he would try and influence the tender committees (appointed by the ANC municipality) to ensure that they continue receiving tenders from the municipality. Given the dominance of the ANC members on the tender committees and the phrasing of the letter, one would be forgiven for coming to just that conclusion. Attempted corruption might well have taken place here. That, at least, is how it appears on the available evidence.

The letter is, however, sufficiently ambivilant to allow for the argument that the state would not be able to prove beyond reasonable doubt that such an intention to solicit a bribe indeed existed. In the absence of other evidence about the way in which tenders have been dealt with in that municipality and the exact donations made to the ANC in the past by businesses who had obtained tenders with the municipality, a successful prosecution would therefore seems unlikely.

This does NOT mean that what the mayor did was acceptable. In fact it was despicable and morally (if not criminally) corrupt. The letter suggests that the mayor believes that there is nothing wrong with giving the impression to businesses that they would obtain tenders with the municipality if they donate money to the ANC. In other words, the mayor is suggesting that the ANC is prepared to sell its soul for a few Rand. It suggests that the ANC is prepared to make decisions that are not in the best interest of the inhabitants of those towns if sufficient money is donated to the party.

This undermines the authority and legitimacy of the ANC. In the long term, it will erode the standing of the ANC in the community and will contribute to anger and frustration. The next time that municipality fails to deliver services in the manner it is required to do, people will wonder whether this is because an inept business was givena  tender merely because it donated money to the ANC. The next time the municipality states it has no money to upgrade roads, to build houses, to provide sanitation, people will begin to wonder whether this is becauise too much money was paid to a business who had inflated its tender but was awarded that tender in any case because that business donated money to the ANC.

In other words, the ANC leadership has a duty to intervene and to condemn this behaviour of the mayor. It also has a duty to take steps to discipline the mayor. If it does not, it will signal that to it, money is far more important than service delivery and the needs of the people it professes to serve.

The decision to charge all three for contravening section 15 of the Sexual Offences Act was taken after the 15-year-old girl, who had claimed that she had been drugged and raped by two boys, aged 14 and 16, on the sports grounds of Jules High School on November 4, allegedly “confessed” that the sex was consensual.

Section 15 of the Act states that:

(1) A person (‘‘A’’) who commits an act of sexual penetration with a child (‘‘B’’) is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual penetration with a child. (2) (a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the National Director of Public Prosecutions if both A and B were children at the time of the alleged commission of the offence: Provided that, in the event that the National Director of Public Prosecutions authorises the institution of a prosecution, both A and B must be charged with contravening subsection (1). (b) The National Director of Public Prosecutions may not delegate his or her power to decide whether a prosecution in terms of this section should be instituted or not.

For the purpose of section 15 a child is defined as someone older than 12 but younger than 16. This section makes clear that it is a criminal offence for a teenager younger than 16 to have sex with another teenager younger than 16 – even when the sex is consensual. The National Director of Public Prosecution (NDPP) is given a discretion on whether to charge such children with statutory rape or not, presumably to prevent our courts from being flooded with cases of consensual teenage sexual conduct. However, the NDPP does not have a discretion to charge only the boy or boys and not the girl involved in the alleged offence.

Normally the NDPP will not charge the perpetrators in a case like this as the Child Justice Act allows him to “divert” a matter involving a child who is alleged to have committed this offence if: (a) the child acknowledges responsibility for the offence; (b) the child has not been unduly influenced to acknowledge responsibility; (c)  there is a prima facie case against the child; (d) the child and, if available, his or her parent, an appropriate adult or a guardian, consent to diversion; and (e) the prosecutor indicates that the matter may be diverted.

Diversion programmes must, where reasonably possible, impart useful skills; include a restorative justice element which aims at healing relationships, including the relationship with the victim; include an element which seeks to ensure that the child understands the impact of his or her behaviour on others, including the victims of the offence, and may include compensation or restitution; be presented in a location reasonably accessible to the child; be structured in a way that they are suitable to be used in a variety of circumstances and for a variety of offences;  be structured in a way that their effectiveness can be measured; be promoted and developed with a view to equal application and access throughout the country, bearing in mind the special needs and circumstances of children in rural areas and vulnerable groups; and involve parents, appropriate adults or guardians, if applicable.

The first question that arises is why this matter was not diverted. Was the decision taken for political reasons after the initial outcry that followed the lack of action against the two boys by the prosecuting authority? In any case, once the decision was taken to charge the boys, the NDPP had no choice to also charge the girl. I assume the magistrate will now decide on this and that — unlike the NDPP – the magistrate will apply the Child Justice Act and divert the case.

Second, one might ask whether the criminalisation of consensual sex between children older than 12 but younger than 16 is actually constitutional. Section 12(2) of the Bill of Rights states that: “Everyone has the right to bodily and psychological integrity, which includes the right (a) to make decisions concerning reproduction; (b) to security in and control over their body”. This must be read with section 28(2) of the Bill of Rights which state that: “A child’s best interests are of paramount importance in every matter concerning the child”.

It is clear that section 15 of the Sexual Offences Act limits this right to control one’s own body. The question would be whether the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. This will hinge on whether there is a valid reason for the limitation and whether this reason is pressing enough to outweigh the considerable limitation on the rights of teenagers to have consensual sex.

Why did the legislature criminalise sex between teenagers? Was it to try and impose a certain narrow moral attitude about teenage sexuality on everyone or was it to protect children? One argument would be that given the special vulnerability of teenagers and the peer pressure they face, it will always be difficult for them to give informed and voluntary consent to sex. It would therefore be necessary to criminalise consensual teenage sex.

Our courts might well accept this argument, although I am far from convinced that this is the real reason for the ban. Surely it is impossible to make broad generalisations like this. Would it not depend on the teenagers involved and would the true nature of the consent not hinge on many factors, including the context within which the sex occurred and the nature of the relationship between the consenting teenagers?

Is it not more likely that because our society is uncomfortable with teenage sexuality the legislature had decided to criminalise teenage sexuality in a vain attempt to curtail it? Personally, it seems to me as if the criminal law is not the right mechanism to deal with teenage sexuality. Teenagers will have sex — whether the law prohibits it or not. By criminalising consensual sex between teenagers, are we not making them more vulnerable instead of less vulnerable by turning all sexually active teenagers into potential criminals?

Should our society not deal with this issue in a more nuanced manner? Surely there are many reasons why teenagers are having sex so young? The absence of strong adult role models, social and economic conditions, the sexualisation of our society by the media, the fact that some teenagers grow up faster than before may all contribute to this. Surely the criminal law is not going to address this? It seems to me that the criminalisation of all teenage sex is profoundly anti-child and does not take into account the best interest of children. I am not sure, however, that the Constitutional Court will see it in the same way and it might well endorse this rather draconian piece of legislation.

If there is indeed an epidemic of teenage sex, the criminal law is not going to deal with it. Given the fact that teenagers will have sex, is it not better to talk more openly about sex and to help teenagers to deal with the possible consequences of having sex. That is why condoms should be freely available in schools and why HIV prevention programmes should be run in our schools to empower teenagers to make sensible decisions around their sexuality. That is also why education on respect for women and the equality of men and women as well as the consequences of sex should be part of the high school curriculum.

Merely criminalising consensual teenage sex, is like putting a plaster on a freshly amputated leg. This law makes no sense to me and seem to have far more to do with the moral scruples of adult law-makers (who wish to hide from the fact that teenagers are having sex) than with the lived reality of teenagers and with their true needs and concerns. The fact that there is now an outcry about the decision to charge the three teenagers, it seems to me, demonstrates that this law is an ass and needs to be rethought.