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Do we have freedom of concience and religion at public schools?

Sep 22nd, 2009
by Pierre De Vos.
39 comments

Discussing freedom of religion and conscience protected by section 15 of the Constitution a few years ago, a Muslim student told me her Grade 1 daughter was forced to learn the song: “Fishing for Jesus.” When she complained about this to the teacher, the enterprising teacher made a plan. A few days later her daughter came home singing the same song, but with a second verse added: “Fishing for Allah!”

This story came back to me when I read in the Afrikaans media that Prof George Claassen of Stellenbosch University has launched a campaign to try and prevent public schools from using teaching time to conduct religious instruction at schools. Claassen is also upset that some schools describe themselves as having a “Christian character” and as institutions where “Christian values” (whatever that may mean) are taught. He is also upset that some schools organise something called a “Jesus week” during which children are encouraged to pin yellow ribbons to their uniforms to show that they are Christians.

Some constitutional law experts quoted in the article rubbished Claassen’s campaign, stating – correctly – that religious ovservance at public schools are not prohibited by our Constitution. But this is a grey area and it is far from clear where exactly our Constitution draws the line.

Many moons ago when I was still at school, our education was avowedly “Christian Nationalist” in character. This meant we were taught that Jesus loves apartheid, the National Party, and “our” boys on the border, that He had died for our sins on the cross so that we could live happily ever after in white South Africa and beat the technical school at rugby, and that evil philanthropists like Lord Phillip who believed black and white were equal in the eyes of the Lord would burn in hell for their sins.

My take of freedom of religion and conscience might therefore be slightly jaundiced.

The starting point must, of course, be section 15(2) of the Constitution which states that ”religious observances may be conducted at state or state-aided institutions, provided that those observances follow rules made by the appropriate public authorities; they are conducted on an equitable basis; and attendance at them is free and voluntary”. This must be read with section 7 of the South African Schools Act which states that:

Subject to the Constitution and any applicable provincial law, religious observances may be conducted at a public school under rules issued by the governing body if such observances are conducted on an equitable basis and attendance at them by learners and members of staff is free and voluntary.

But what does this actually mean? Our Constitutional Court’s jurisprudence on freedom of religion and conscience has been far from satisfactory, so the answer to this question is not as clear as it could have been.

The Court seems to have some difficulty with the interpretation and application of section 15 and then often reverts to the limitation clause to “solve” the problem. In one case – Christian Education - Justice Sachs even declined to make a finding on whether the ban on corporal punishment at Christian schools infringed the right to freedom of religion (spare the rod and spoil the child, and all that). He merely assumed that it did infringe on the right before deciding that even if it did, the ban would still be justifiable in terms of the limitation clause.

In the Lawrence case, Justice Chaskalson – in what was effectively a minority judgment – emphasised that the right to freedom of religion meant that school prayers had to be carried out on an equitable basis and had to be voluntary and then continued:

I doubt whether this means that a school must make provision for prayers for as many denominations as there may be within the pupil body; rather it seems to me to require education authorities to allow schools to offer the prayers that may be most appropriate for a particular school, to have that decision taken in an equitable manner applicable to all schools, and to oblige them to do so in a way which does not give rise to indirect coercion of the non-believers.

The big problem is, of course, what would constitute coercion. It is clear that coercion can be both direct and indirect in nature. Direct coercion would occur where a pupil is forced to take part in religious activities or instruction, forced to sing “Fishing for Jesus”, or forced to wear a yellow ribbbon for Jesus. 

Indirect coercion is more subtle. The examples used by Prof Claassen might amount to such indirect coercion. Justice O’Reagan pointed out in the same Lawrence case (in a majority judgment), that where an institution endorses one religion over another or religion over non-religion, the effect would be coercive in nature.

Where the institution places its prestige and authority behind one religion or behind religion in general, it will send a signal that individuals who do not adhere to that religion or are not religious at all are somehow less worthy of respect and dignity. It will then place pressure on such individuals to conform and not to opt out of religious observance or instructions for fear of being ostracised or vilified. Religious observance will then become voluntary in name only.

In such circumstances it will be difficult for individuals – especially school pupils who experience peer pressure acutely – to distance themselves from the widely endorsed religious practices of a school and they will indirectly be coerced into taking part in religious activities with which they do not agree. While the religious views of the majority of pupils could be taken into account by a school’s governing body when formulating a policy on religious observance for its school, and while a school could therefore facilitate voluntary prayers associated with that majority religion, any policy will have to be formulated in a way that would prevent indirect coercion.

A policy that explicitly endorsed one religion over another or religion over non-religion will – in my opinion – not be in accordance with the Constitution because it would signal that those with different beliefs are not “normal” or are considered to have a lesser status or dignity by the powers that be.

I would say a school breaches the provisions of section 15 if it states that it has a “Christian character” and teaches “Christian values” or where it endorses a “Jesus week” but fails to endorse other religious activities of minority religious groups or non-believers. Such actions would make it very difficult for non-believers or believers of non-majority faiths from opting out of the religious activities at schools and the non-believers or believers of other faiths will be indirectly coerced into a specific Christian religious observance – something prohibited by the Constitution.

One way to get around this would be for a school to encourage and facilitate respect for religious differences by refusing to endorse one particular religious view and by encouraging pupils to express their beliefs openly – no matter what they may be. Such a school would then be allowed to have a “religious week”, say, where pupils could wear yellow ribbons if they were Christians, orange ribbons if they were Muslim and purple ribons if they were athiests.

A school could also invite different speakers who would then inform all pupils about various religions and athiesm to send the signal that while the majority of pupils in a school adhere to Christianity, say, other religions and athiesm are just as valid and pupils who adhere to other beliefs are just as valued and respected as those who believe in fishing for Jesus.

No place for Judge who has contempt for gay men, lesbians and HIV positive South Africans Zackie Achmat

Sep 21st, 2009
by Pierre De Vos.
9 comments

No place for Judge who has contempt for gay men, lesbians and HIV positive South Africans

Zackie Achmat

I AGREE with the opinion held by many that Cape Judge President John Hlophe is an unprincipled and unethical person not fit to hold judicial office. However, I want to write about Hlophe’s phobias — his fear, contempt and discrimination against people living with HIV as well as gay men and, by extension, lesbians. This alone should disqualify him from a position in our Constitutional Court.

Hlophe allowed Christopher Moses “to get away with murder” because of HIV. The victim of a particularly brutal murder, Gerhard Pretorius was a gay man. Moses claimed he had a relationship with Pretorius and that, on the night of the murder, he and the deceased had unprotected penetrative sex for the first time. He also claimed that after the sex, Pretorius told him that he had HIV.

Moses’s defence, as stated by his psychiatrist, was that he flew into “an annihilatory rage” beyond his control. The state psychiatrist demonstrated that Moses could not have lost total control because the evidence demonstrated a sustained “complex and goal- oriented” attack. Hlophe should have found Moses guilty. The murderer’s personal circumstances indicated a reduced sentence would have been appropriate. Instead, Hlophe found that knowingly exposing a person to HIV was sufficient reason to murder them with an excuse of “uncontrollable rage”. He ignored the undisputed objective evidence of premeditation, including fetching two different knives to finish a murder and then setting about creating an alibi.

Hlophe’s decision constituted a licence to murder gay men with HIV. It could also be used by heterosexual men who assault and murder their partners. Eventually, the Supreme Court of Appeal (SCA) overturned Hlophe’s precedent and found it “a misapplication and a misreading” of its decisions.

Hlophe was to deal with HIV again during 2003, when a convicted person applied for a noncustodial sentence because she had advanced HIV-related illnesses and needed medicines. Hlophe ignored the 1994 precedent of the Johannesburg High Court.

In 1994, I started working at the AIDS Law Project. Mr C, a gay and HIV-positive prisoner at Pretoria Central Prison, was one of our clients — he had committed fraud worth R500000. His social worker, parole officer and the head of the prison had all recommended to the magistrate that his sentence for fraud be served in the community as a noncustodial sentence. An unreconstructed apartheid magistrate, with no understanding of the constitution or common law rights of people in prison, made both homophobic and AIDS-phobic remarks in refusing a sick man a community-service sentence. Denying Mr C community service, the magistrate said: “You brought this illness on yourself through your sexual conduct and you cannot escape your punishment through illness.”

Judge Monis Flemming, a former apartheid judge then of the Johannesburg High Court, reversed the magistrate’s decision. He held that in circumstances in which there is no proper care in the prison system, a custodial sentence is inappropriate for an illness such as Mr C’s. A custodial sentence would then constitute an additional punishment to one imposed by a court in ordinary circumstances. This view was confirmed by the SCA, when it overturned one of Hlophe’s most egregious judgments — the state v Magida.

In 2003, Memory Magida appeared before Hlophe. A single mother with advanced HIV illness, she contracted tuberculosis while in prison. She had a childhood that many of the poorest children in SA endure. She never knew her father and almost never lived with her mother. Between 1995 and 1999 she worked for six different employers.

Convicted of fraud, she showed remorse and pleaded guilty . She was sentenced to five years in 2001 and had no access to HIV treatment. On appeal from Bellville Magistrate’s Court, her doctors provided evidence that she needed treatment and could have access through a clinical trial at Groote Schuur Hospital. She could not access antiretrovirals in prison. This was at the height of the HIV denialism of the Thabo Mbeki era.

Hlophe demonstrated a lack of judicial compassion and a pro-business attitude when he refused the appeal, holding that “she was very lucky to get this kind of sentence”. Her employer’s financial loss was his sole concern. He demonstrated no understanding of the evidence before him — that she might never get a chance to hold her child again . In a curt judgment, his AIDS phobia illustrated in a previous case was confirmed.

“The appellant who pleaded guilty knew exactly what she was doing. When she is in prison she will still be entitled to receive her treatment. No case has been made out or no suggestion has been made that she has been deprived of treatment for her HIV status by relevant authorities. I am not aware of any good authority for the view that if someone is HIV-positive, he or she may get away with murder. In my view the sentence fits the crime. She was very lucky to get this kind of sentence for the crimes she committed. I would dismiss the appeal against sentence as being altogether without merit.”

Magida could have died in prison had the SCA not overturned his cruel decision, which was wrong in its facts and wrong in law.

The following questions should be asked of Hlophe : First, why was Moses allowed “to get away with murder” when he had consensual unprotected sex with another person irrespective of their HIV status?

Second, why was a single mother with advanced HIV sentenced to prison after she pleaded guilty to a crime in which there was no physical or mental harm to any person, on the legal pretence that Hlophe was “not aware of any good authority for the view that if someone is HIV-positive, he or she may get away with murder”.

Third, how could Hlophe be unaware of a decision of another high court, with almost identical facts, related to the crime committed by Magida, the case of Mr C , reported in law reports and in every HIV legal manual?

Fourth, Magida’s circumstances were worse than Mr C’s — she had advanced HIV disease, required antiretrovirals available only outside prison, and had a daughter. Did these facts not register with Hlophe?

Fifth, Hlophe must be asked whether he shares the view of the Justice for Hlophe Alliance on former chief justice Arthur Chaskalson. The alliance claims that Chaskalson believes nominations for the position of chief justice are “the exclusive preserve of a few white academics or gay rights activists”.

The alliance says: “We cannot leave the judicial nomination process an exclusively middle-class affair restricted to select special interest groups, including self-styled gay activists, in which there is no room for popular participation.”

Last, Hlophe should be asked about the enlightened local and international jurisprudence on sexual orientation. His view on the Delhi High Court’s judgment on decriminalisation should be canvassed. In particular, the following reasons to combat discrimination on the basis of sexual orientation by Delhi Chief Justice Ajit Prakash Shah: “The Constitution of India recognises, protects and celebrates diversity. To stigmatise or to criminalise homosexuals only on account of their sexual orientation would be against the constitutional morality.

“Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of ‘morality’ that can pass the test of compelling state interest, it must be ‘constitutional’ morality … not public morality.”

Hlophe has demonstrated a deep AIDS phobia, with an underlying homophobia. His legal fictions on HIV and sexuality are in direct conflict with our constitutional values and are much closer to the views of an apartheid magistrate.

  • Achmat is from the Centre for Law and Social Justice and is deputy general secretary of the Treatment Action Campaign.

Constitutionally Speaking is expanding

Aug 28th, 2009
by Pierre De Vos.
8 comments

Along with the new design, Constitutionally Speaking is expanding to include two new sections. Contributions are invited to the seminar room, which is a forum for debate and discussion on constitutional law and political governance issues. Submissions must be between 700 and 3000 words and can deal with any relevant constitutionalism topic, including a comment on a court judgment or academic article, a book review, a copy of a talk or original writing on a topical issue. You may also wish to send information about seminars, conferences, lectures or new publications which can be advertised on the updates page.

Send all contributions to pierre.devos@uct.ac.za

Animal cruelty and ethical double standards

Aug 17th, 2009
by Pierre De Vos.
65 comments

Don’t get me wrong: Like many other South Africans I love animals. Cats and dogs can be good pets (loving and loyal – especially around meal times), while a tender piece of steak (cut from the carcas of a dead calf and then lightly browned in a pan and served with mushrooms) can be extremely delicious.

Yet, I find it absurd that former North West agriculture MEC Jan Serfontein is facing nine charges under the Animal Protection Act. They stand accused of dumping tens of thousands of male chicks in an empty farm dam and leaving them to die every week, because they were “economically worthless”.

This move seems to me to reflect the extreme double standard our society have towards animals. We are allowed to murder animals, then cook and eat them, but it is a criminal offense to have sex with an animal or to mistreat an animal. Yet, on farms where animals are raised for consumption, such animals are often subjected to extremely cruel treatment. Let’s face it, its a good thing that a chicken is not a very bright animal because chickens are often treated appalingly in order to fatten them up quickly for slaughter or in order to extract the maximum amount of eggs from them.

Yet, the law does not seem to address this kind of cruelty. As long as the animal is mistreated with the aim of later slaughtering it and selling it as meat, everything is hunky dory. But as soon as one mistreats an animal not with the aim of later murderinga nd eating it, then it suddenly becomes animal cruelty.

I suspect the reason for this double standard has much to do with the fact that as a society we do not want to take ethical responsibility for the fact that we are generally not vegetarians and therefore like to eat meat. And as we do not have to see how animals are mistreated while being prepared for the table, we can happily coo about cute furry animals and we can get outraged by the mistreatment of pets or even chickens, goats and sheep, while buying our plastic wrapped dead animals at the supermarket.

Mr Serfontein’s mistake was that he decided for good commercial reasons that it was more profitable to kill the little chickens than to mistreat them for several weaks before slaughtering them and packaging them for sale in the Pick & Pay, where the same animal lovers who would be outraged by his actions would happily buy the dead chickens for their braai.

One solution is to criminalise the cruel treatment of all animals – even those we will eat later – or to prohibit humans from eating meat. But that will never happen because we love our meat almost as much as we love our alcohol. So we do the next best thing: we adopt animal cruelty laws that will be selectively enforced to make us feel better about ourselves without forcing us to make the difficult choices required to live an ethical life regarding animals.

It really does not make sense. It’s a bit like prosecuting Schabir Shaik for arms deal corruption, but then not to prosecute all the other crooks who benefited from the arms deal or paid the bribes to secure arms deal contracts. It demonstrates the inability of us humans to act consistently ethically.

No Shaiking the truth

Aug 11th, 2009
by Pierre De Vos.
79 comments

Someone at the Correctional Services Department must have been taking a course in creative fiction writing. How else to explain their  most recent press statement which argues there is no basis to review the decision to free fraudster Schabir Shaik on medical parole?

Shaik – who was released because he was supposedly in the last stages of a terminal illness because he allegedly suffers from high blood pressure – was reportedly seen driving around Durban in his fancy BMW this weekend. His usually garrulous family declined to comment on his health, giving a little more credence to the report that a DA councilor spotted Shaik this weekend buying party balloons and looking in excellent health. The DA councilor claims he then followed Shaik to his house, but the security allowed Shaik to enter for a well deserved rest without the DA councilor getting the opportunity to inquire after Shaik’s health.

Perhaps this medical miracle was the result of Shaik taking part in a medical trial in Melbourne. The Science Daily reports that the clinical trial showed significant improvement in blood pressure of participants who were given a new catheter-based treatment where blood pressure lowering medication had failed. I can only hope that if Shaik is not on this treatment yet, he would immediately get access to this treatment to save his life. Driving when one is terminally ill must surely be very dangerous to one’s health!

In any case, the Department said despite the reports of Mr Shaik’s miraculous recovery, there was no basis for a review of the decision. According to a report in the Mail & Guardian the Department said:

“It must be remembered that Mr Shaik was examined by three medical doctors who concurred that he qualified for placement on parole in terms of Section 79 of Correctional Services Act,” the department said in a statement.

In terms of the Act, offenders who were in the final phases of a terminal illness could be placed on parole to die a consolatory death. The decision of the three medical doctors was also subjected to scrutiny by the Health Professions Council of South Africa, which actually cleared them of any wrong doing, the department said.

It was also crucial to note that the Act made no provision for re-incarceration of parolees who might have recovered or not died within a given period of time.

Now, this statement is, I am sad to say, untrue. First, three doctors did not – I repeat NOT – concur that Shaik qualified for placement on parole in terms of Section 79 of Correctional Services Act. It is worth recalling that section 79 states as follows:

Any person serving any sentence in a prison and who, based on the written evidence of the medical practitioner treating that person, is diagnosed as being in the final phase of a terminal disease or condition maybe considered for placement under correctional supervision or on parole… to die a consolatory and dignified death.

We know that the doctors did not diagnose Shaik as being in the final phase of a terminal illness or condition. Instead what the doctors did say was that:

We cannot keep him in hospital indefinitely and since the prison authorities are reluctant to manage him at the prison hospital, where conditions are suboptimal, we recommend that he be considered for medical parole.

Although the doctors recommended Shaik for medical parole, they did not do so in accordance with section 79 as they did not find that he was in the final stages of a terminal illness as required by section 79. Legally, the effect of the doctors reports and recommendation was therefore utterly irrelevant and cannot be used to justify Shaik’s release. It had the same legal effect as a recommendation from a doctor to release Shaik because Shaik was a swell fellow, had a mean taste in cigars and was a friend of the President.

The factual basis for the recommendation did not conform to the requirements of section 79 and the Board was legally required to ignore the recommendation as it did not provide the factual basis required by section 79 for release. The fact that it nevertheless released Shaik, means that the Board did not act in terms of section 79 when it ordered Shaik’s release and hence, the Board most probably acted unlawfully.

That decision can be reviewed by a Court and set aside as it was not a legally valid decision. The principle of legality requires a public body exercising power in terms of legislation to act in accordance with that legislation. Where a public body ignores the requirements of the law when exercising a discretion it acts unlawfully and as such the unlawful decision can be reviewed and set aside by a court, which would mean Shaik was unlawfully released and that he should immediately be returned to prison where he belongs with the other 100 000 criminals duly convicted of terrible crimes.

In any case, the Minister has decided not to refer the matter the Parole Review Board despite the overwhelming evidence that the decision to release Shaik was taken unlawfully. The decision by the Minister can therefore also be taken on review on the basis that it was irrational or taken in bad faith, given the fact that the Minister was appointed by Shaik’s old friend and a benefactor of Shaik’s considerable (corrupting) generosity, President Jacob Zuma.

To be fair, if I was the Minister I might not have referred the matter to the Parole Review Board either. Driving a R1 million car and enjoying the other perks of being a Minister must surely weigh more heavily than any duty to adhere to the law. Who cares about the law? After all, the law is for poor people; for strikers and teachers and other sods who have not managed to ingratiate themselves with the powers that be.

If the matter had been referred to the Parole Review Board – as it should have been – and the Board had overturned the unlawful decision by the Parole Board, Shaik would have had to go back to prison where he belongs. The Department of Correctional Services are therefore not sticking to the truth when it says there is nothing to be done now that we seem to have come close to confirming that Shaik is not terminally ill and that he was released from prison because he happens to be a friend of the First Dude.

From Shaik’s perspective this is not a bad thing. After all, he is finally getting a return on his considerable investment in President Zuma. All those “loans” to Zuma, the sucking up, the payment of school fees and the soliciting of a bribe on behalf of Zuma is finally paying off! Who says crime does not pay – eventually.

The Public Protector in the dog box

Aug 4th, 2009
by Pierre De Vos.
15 comments

Last week Judge JNM Poswa delivered a damning judgment in the North Gauteng High Court in which he set aside a “report” (well, more like an excuse for a report, also called a “whitewash”) by the Public Protector into the so called Oilgate scandal.  The judgment bends over backward to be “fair and balanced” and not to jump to conclusions about why the Public Protector failed so dismally to adhere to its mandate and to do its job as required by the Constitution and the law.

However, after reading the full judgment it is impossible not to be concerned by the behaviour of the Public Protector’s office in this case and  not to wonder whether the author of the report, Public Protector head of special investigations Advocate Stoffel Fourie, acted in bad faith or whether he was “merely” incompetent and misguided when he failed to properly investigate complaints against the then Deputy President, the ANC, PetroSA and the Invume company whom the Mail & Guardian alleged at the time was a front company of the ANC.

Sadly, this saga further tarnishes the reputation of the Public Protector and his office. Even before this case was handed down, the Public Protector did not – to put it mildly – have a good reputation as a fearless watchdog and was widely perceived to lack the independence and courage to make findings that would embarrass well-connected individuals or politicians of the governing party.

To some extent this reputation was unfounded. The office of the Public Protector investigates over 20 000 complaints every year and has done excellent work, dealing with most of these complaints in a decisive and comprehensive manner.  The media does not report on the vast majority of these cases, and has focused only on those high profile politically charged cases where the Public Protector has often failed to deal with the complaints in a credible and comprehensive manner.

The perception that the Public Protector was not as independent and fearless as required by the Constitution was fueled in part by the fact that Lawrence Muswhana was appointed as Public Protector in 2002 after serving as an ANC MP and as the Deputy Chairperson of the National Council of Provinces (NCOP).  This appointment was clearly a mistake as it created the impression – rightly or wrongly – that the Public Protector was an ANC lackey who would do everything within his power to shield ANC politicians and the governing party from embarrasment.

Against this background the decision of the North Gauteng High Court is worrying indeed.

The judgment (which seems well-reasoned to me) is also significant because it confirms that public power conferred in terms of the Constitution or the law has to be exercised lawfully, rationally and in a manner consistent with the Constitution. The principle of legality requires that an official to exercise public power in accordance with the provisions of the law and the Constitution. Where an official misconstrues his or her powers or fails to adhere to the requirements set by the law or the Constitution for the exercise of those powers, the officials actions will be unlawful, regardless of whether it constitutes administrative action or not.

What is required is that the power had to be exercised in good faith and in a rational manner and thus should not  be arbitrary or manifest a “naked preferences” that serves no legitimate purpose. The court found that the Public Protector in this case acted irrationally because he failed to summons any person to give evidence; failed to obtain the relevant documents; failed to to contact any of the relevant role players to hear their version of events and stated that most of the facts in the Mail & Guardian stories were incorrect without ever having investigated this!

The relevance of this judgment therefore extends beyond the present case as it confirms – contrary to what Justice Minister Jeff Radebe has alleged in the Sunday Times and again in The Thinker – that the decision by the NPA to drop charges against President Jacob Zuma can be reviewed and set aside if the head of the NPA misconstrued his powers, acted in bad faith or irrationally or failed to a adhere to the provisions of the Constitution.

If the Head of the NPA had dropped the charges without having regard to the prosecution policy – which he is constitutionally bound to do – he would have acted contrary to the principle of legality and a court would then have to declare the dropping of charges unlawful.

As the Acting Head of the NPA had failed to mention the prosecution policy when he gave reasons for his decision to drop the charges against Zuma, plagiarised a Hong Kong decision which was later overturned on appeal in justifying his decision and relied on as yet unpublished recordings that must have been illegally handed over and obtained by the legal team of President Zuma, it seems to me there is a very strong possibility that a court could find that the dropping of charges were unlawful.

But that is perhaps a debate for another day and another court.

Innocent until proven guilty – but only when you are a politician

Aug 3rd, 2009
by Pierre De Vos.
35 comments

The newly appointed National Commissioner of Police, Bheki Cele, seems to have a very short memory. Just a few months ago he was one of the politicians who regularly attended the various court appearances of Jacob Zuma – who was then still an accused in a criminal trial. Then Cele and everyone who knew which side their bread was buttered on and wanted a cabinet post, an ambassadorship to the French Riviera or a lucrative government tender, reminded us all that in South Africa an accused person must be presumed innocent until proven guilty in  a court of law.

But now that Zuma is safely ensconced in the Union Buildings and Cele is trying to win applause from the peanut gallery, clamouring for (an impossible) quick-fix crime solution, it seems as if Cele has conveniently forgotten about section 35 of our Constitution. Now he wants the law to be changed to allow the Police to “shoot to kill criminals”. With “criminals” Cele means accused persons (such as Zuma was until recently) who have never been tried or convicted of any crime. In other words, he wants police officers to have the power to kill innocent civilians without having to bother with the fair trial or the procedural safeguards that Zuma and his supporters demanded for the President.

One rule for politicians, another for ordinary citizens. And then people who should know better applaud this kind of police-state talk.

According to a Cape Argus report, Commissioner Cele said the police needed to match the firepower of criminals and to use “deadly force”. In the process, he wants to create a country “where people aren’t told they’re safe, but actually feel safe”. He said the call to revisit section 49 of the Criminal Procedure Act, which provides grounds for justifiable homicide, had been made because police officers spent more time working out what the law allowed than actually using it in a quick response. According to the report, Cele said the law had placed the burden on individual police officers when faced with using firearms in retaliation, and that he agreed with the Minister of Police that the onus should be on the SAPS as an organisation. “Don’t make it the problem of the individual,” he said.

It is worth noting that section 49 of the Criminal Procedure Act was amended after the Constitutional Court in the Walters case found that the previous version of this section did not comply with the requirements of the Bill of Rights, including the guarantee to the right to life (a rather important right guaranteed by our Constitution) and was not justifiable in terms of the limitations clause. The Court then set out the permissible law regarding the use of force by the Police.

(a) The purpose of arrest is to bring before court for trial persons suspected of having committed offences.

(b) Arrest is not the only means of achieving this purpose, nor always the best.

(c) Arrest may never be used to punish a suspect.

(d) Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest.

(e) Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used.

(f) In deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed; the force being proportional in all these circumstances.

(g) Shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances only.

(h) Ordinarily such shooting is not permitted unless the suspect poses a threat of violence to the arrester or others or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of carrying out the arrest, whether at that time or later.

(i) These limitations in no way detract from the rights of an arrester attempting to carry out an arrest to kill a suspect in self-defence or in defence of any other person.

That is why the present section 49 does not preclude the use of force by Police officers and attempts to strike the right balance between protecting the rights of accused persons (who like Zuma might never be found guilty of any crime!) and the interests of society. It states:

If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing:

Provided that the arrestor is justified in terms of this section in using deadly force that is intended or is likely to cause death or grievous bodily harm to a suspect, only if he or she believes on reasonable grounds (a) that the force is immediately necessary for the purposes of protecting the arrestor, any person lawfully assisting the arrestor or any other person from imminent or future death or grievous bodily harm; (b) that there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed; or (c) that the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life threatening violence or a strong likelihood that it will cause grievous bodily harm.

So the law as it stands does allow the police to use deadly force against individual criminal suspects who – like Zuma – must be presumed innocent until convicted of a crime in a court of law, but only in certain circumscribed situations. These situations are not limited to one’s where the police act in self-defense or in the defense of the lives of others. Police officers are also allowed to shoot and kill suspects if there is a substantial risk that the suspect will flee and then seriously hurt or kill someone else or where an arrest is in progress and the suspect violently resists arrest.

Cele seems to want the Police to have the right to shoot and kill any South African citizen without having to have to think about it first or to have to explain their individual decisions that led to the killing of a suspect. Many South African’s gatvol of high crime rates might applaud this sentiment, but they have to remember two things.

First, the sentiment is profoundly anti-Bill of Rights and anti-constitution. The Constitutional Court has already set the limits regarding the use of force by police and Cele’s proposal will only be viable if we change the Constitution. Maybe we can dispense with that silly provision that says every accused is innocent until proven guilty at the same time? Or what about scrapping the right to property?

Second, the sentiment is dangerous and will – if implemented – turn us into citizens who fear their police (instead of into citizens who respect the Police). Every night one would be driving home from dinner with fear in one’s heart because one would know the police could shoot and kill you right there, claiming afterward you looked like a dangerous criminal. If you happen to walk home from a shebeen after an argument with the friend of a police officer about the merits of Kaizer Chiefs strikers, you might find yourself dead on the pavement, shot by a police officer doing his buddy a favour knowing that he would never have to explain his killing of a “criminal” to anyone.

We will not address the crime problem by allowing police officers randomly to shoot innocent citizens. One will begin to address the problem by training an efficient and hard working police force who can investigate crimes without bungling even the most basic of procedures. We must rather teach the police officers how to read and write, how to use forensics to solve crimes, how to infiltrate criminal gangs and smash them by gathering evidence that will stand up in court, and leave this dangerous cowboy stuff for police states. I hear the Police in North Korea is quite effective and I am sure they also have a shoot to kill policy.

Weekend breather

Aug 1st, 2009
by Pierre De Vos.
4 comments

Some fun definitions from Ambrose Bierce’s Devil’s Dictionary:

DEFAME, v.t. To lie about another. To tell the truth about another.

POLITICS, n. A strife of interests masquerading as a contest of principles. The conduct of public affairs for private advantage.

POLITICIAN, n. An eel in the fundamental mud upon which the superstructure of organized society is reared. When he wriggles he mistakes the agitation of his tail for the trembling of the edifice. As compared with the statesman, he suffers the disadvantage of being alive.

RADICALISM, n. The conservatism of to-morrow injected into the affairs of to-day.

Retired Chief Justice Chaskalson speaks

Jun 25th, 2009
by Pierre De Vos.
36 comments

Retired Chief Justice Arthur Chaskalson has published a good article today on the unprecedented campaign by a certain individual to have Judge President John Hlophe appointed Chief Justice. In it the Chief Justice tries to address – in a rational manner – on this campaign and concludes:

One comment, however, needs to be made. It is a complaint alluded to by Ngobeni in his campaign; the complaint against Judge President Hlophe, which is presently before the Judicial Service Commission (JSC). It comes from 13 of the most senior judges in our country. All but four are black. Unlike Judge President Hlophe, who took no part in the struggle against apartheid, the present chief justice and deputy chief justice and others who signed the complaint have a proud record of having been active in that struggle, the ultimate struggle for transformation, and having done so at considerable risk to themselves and their families.

No one could legitimately suggest they are “self-hating blacks” opposed to transformation, or are part of a racist conspiracy to undermine the judge president because he has shown himself to be in favour of transformation.

What about transformation? Judges are not appointed by judges; they are appointed on the recommendation of the JSC. Of the 23 members of the JSC, only three are judges. All three are black. When appointments to a particular High Court are dealt with, the judge president of the court concerned and the premier of the province form part of the commission. Apart from five nominees of the broad legal professions, including the academy, the other members are either members of parliament or nominees of the president.

The JSC, of which I was a member for more than 10 years, has taken seriously its constitutional mandate to recommend fit and proper persons for judicial appointment, and in doing so, it has always kept in mind the constitutional requirement to consider “the need for the judiciary to reflect broadly the racial and gender composition of South Africa”.

In 1994, all but five of the more than 100 judges of the higher courts were white men. There were only two female judges, both white, and three black male judges. There was a somewhat different but substantially similar profile within the legal profession, and because of our history, a comparatively small number of experienced black and women practitioners.

Today, seven of the 11 judges of our highest court, the Constitutional Court, are black. The chief justice, the deputy chief justice, the president of the Supreme Court of Appeal and all judges president of the high courts and the Labour Court are black. All of them, and not only Judge President Hlophe, support the transformation of the judiciary.

Comparing the calm and rational voice of the retired Chief Justice with the ranting and frothing at the mouth of Hlophe’s Supporter in Chief, it is difficult not to laugh at the “campaign” being run on the Judge President’s behalf. I suspect it is doing the Judge President more harm than good – even among those who might otherwise have been sympathetic to his cause. If I was the Judge President I would call off this campaign to stop futher embarrasment.

FW De Klerk needs a lesson on the Constitution

May 21st, 2009
by Pierre De Vos.
54 comments

Former President FW de Klerk is said to be a lawyer. He studied law at Potchefstroom University for Christian Higher Education (they forgot to add the “Nationalist” in that name) at a time when our constitution law was based on the Westminster system and only white people were represented in Parliament.

So perhaps he should be forgiven for embarrassing himself by making uninformed, deceitful and legally just plain wrong statements about affirmative action. According to Die Burger De Klerk said that affirmative action was ‘racist’ and ‘unconstitutional’.  He said those who drafted the Constitution never intended affirmative action to apply to private actions.

Affirmative action was only to be implemented in the judiciary and civil service, De Klerk said, noting Section 9(2) of the Constitution was ‘distorted’ to justify affirmative action in the business environment, civil society and cultural sphere, which he labels as ‘ridiculous’ and ‘silly’. He said the relevant part of the Constitution should be amended ‘to make affirmative action less racist’ and to ensure that it is implemented regardless of race or colour. ‘One cannot implement it in the case of somebody who is already advantaged and qualifies purely on racial grounds, can one,’ he asked.

He asked how it could possibly be that the management and workforce of the Afrikaner Christian Women’s Society could be required to represent the demographic make-up of South Africa when it served a specific audience.

Mr De Klerk should take some time off from his busy schedule gallivanting across the world as a celebrated Nobel Prize winner, and  should rather spend some time re-read section 9 of our Constitution – especially sections 9(2) and 9(4). As our Constitutional Court has stated in the Van Heerden case, section 9(2) – which deals with affirmative action – should not be read as an exception to the rest of section 9 (which guarantees equal treatment for everyone regardless of race, sex, gender, sexual orientation or any other ground), but a requirement for its full achievement.

Section 9(2) – thus affirmative action – is a requirement for the achievement of equality, not an exception to it and may place a positive duty on the state to implement corrective measures to eradicate past injustice. This is because our Constitution embraces a substantive notion of equality – not a formal one – and focuses not on the equal treatment, but rather on the effects or outcomes of laws and policies to ask whether they are fair, given our history of racial oppression and the marginalisations of women and other minorities.

Section 9(4) clearly states that this unfairness test must also be applied to private individuals and organisations and required Parliament to adopt legislation to ensure the prohibition of unfair discrimination. Mr De Klerk is therefore misguided when he says affirmative action was never intended to apply in the business environment or other private relations.

One may well decry the sometimes illegal abuse of affirmative action to justify nepotism or corruption, but De Klerk does not understand that legal affirmative action as required by the Constitution and the relevant legislation places limits on affirmative action and at all times requires the application of a kind of contextual fairness test. He conflates the principle with its application – very sloppy for a supposedly clever lawyer.

I am also shocked that he suggests that the Constitution should be amended to make affirmative action “less racist”. His remarks undermine the legitimacy of a respect for the Constitutional Court. He should also be careful to advocate amendments to the substantive provisions of the Bill of Rights. Do we really want to open that can of worms? If we are going to debate amendments to the Bill of Rights, we will also have to discuss the abolition of the right to property or a fair trial, the re-introduction of the death penalty or the removal of protection for gay and lesbian members of society. Surely this is a very dangerous road to embark upon?

By using the example of the Afrikaner Christian Women’s Society he also demonstrates a lack of knowledge and understanding of the Constitution. The right to freedom of association is guaranteed in section 18 of the Constitution while section 31 guarantees for everyone the right to belong to a cultural, religious or linguistic community and to form, join and maintain organisations that reflect these interests.

Where these rights are in conflict with the equality guarantee, the latter would often trump the former. The more private the organisation I belong to and the less it intrudes on the public sphere, the more likely it is that the Constitutional Court would find that freedom of association trumps the requirement to achieve equality.

If I form a book club for Afrikaner Christian Women, for example, and the aim and effect of this book club is merely to provide a safe space for women to discuss the latest book by Maretha Maartens on the duties of a good white Christian wife, this club would not be subjected to the requirements of affirmative action. It might be different if this Book Club was really a political front for the promotion of Afrikaner economic interest and women used it to make contacts and friends to help them land government contracts in the Western Cape.

It is true that affirmative action is often abused, but this is not the fault of the Constitution or the other laws aimed at rectifying past injustice. But opponents of affirmative action argue in an a-historical manner and conflate the principle with its practice to try and win an argument that seems ethically dubious at best and reprehensible at worst.

Let us forget the past, Mr De Klerk seems to say, when we stole the land from the original inhabitants of South Africa, exploited and oppressed black people, tortured and killed them and did so in the name of Christianity and Western civilization. (As Gandhi once remarked when asked what he thought of Western civilization: “it is a good idea”.) Let us look only to the future, because that will allow us white people to keep everything we have stolen and never having to take responsibility for our disgraceful past actions. After all, we have always been right and “these people” have always been wrong.

To think the Nobel committee gave this guy a peace prize.

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