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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.

On Opposition

May 9th, 2009
by Pierre De Vos.
3 comments

Mr Jacob Zuma was lauded for saying during his acceptance speech in the National Assembly that he was hoping for a better relationship with the Opposition. Good thing he is not the Prime Minister of Britain. Robust debate in Parliament as it should be.

Electoral system in need of a change

May 5th, 2009
by Pierre De Vos.
29 comments

Tomorrow 400 members of the National Assembly will be sworn in and will take up their seats in Parliament.  They will then elect a new President who – if everything goes according to plan (one never knows!) – will head the Executive for the next five years. These MP’s will swear (or solemnly affirm – accommodating the non-religious) that they will be faithful to the Republic of South Africa and will obey, respect and uphold the Constitution and all other law of the Republic. They will also solemnly promise to perform their functions as members of the National Assembly to the best of their ability.

But in reality the loyalty of these MP’s – regardless of which party they belong to – will not be first and foremost to the Constitution, or even to Parliament. Because they have been elected on the basis of a list system of pure proportional representation, their first loyalty will always be to the political party they belong to and especially the leadership of that political party. Their positions in Parliament are wholly dependent on their good standing within their respective political parties and if they upset the party leadership they might well be “redeployed” as Ambassadors to Tziki-Tzikistan or as second in command of the Putsonderwater sewerage plant.

This, it seems to me, is one of the great weaknesses of our constitutional system. The National Assembly is supposed to be the engine room of our democracy and has a constitutional duty to hold the executive to account and to ensure that the executive serve the people of South Africa and not their own ego’s or the whims of the bureaucrats staffing the various government Departments. Section 42(3) of the Constitution states that:

The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action.

In the past the members of the National Assembly have not always represented the people effectively and have not fulfilled its oversight role in the manner envisaged by the Constitution. How many South Africans even know the name of the MP who is supposed to represent their interests in the National Assembly? How many have approached their MP to help them solve a problem with an often heartless and incompetent bureaucracy or to make their voices heard on the topical issues of the day?

When the arms deal scandal came to light, a majority of MP’s on SCOPA was browbeaten by Minister in the Presidency, Essops Fables, to stop their investigation and to endorsed the whitewash report by the Auditor-General, the Public Protector and the NDPP, which was “amended” (I would say, “doctored” was a better word) after a draft was submitted to President Mbeki.

When then President Thabo Mbeki – under the influence of Anthony Brink and other “dissident” scientists – developed eccentric and highly toxic views on HIV/AIDS, most MP’s remained silent as thousands of South Africans who had no money for medical aid and could not afford anti-retroviral drugs quietly succumbed to AIDS.

Those courageous and principled MP’s who did not agree with these developments – most notably Pregs Govender and Andrew Feinstein – resigned from Parliament because there was apparently no scope in the ANC caucus for expressing dissenting views. Some DA MPs have also quietly resigned after differences with Tony Leon and Helen Zille. Because of the list system of proportional representation they really had no other choice. If they had not resigned, they would have been fired.

That is why a mixed system, in which half the MP’s are elected directly in constituencies and the other half on a proportional representation basis to ensure proportional representation of parties in Parliament, stands a better chance of producing a far more active and responsive Parliament – and this would be good for especially the poor and marginalised South Africans who find themselves without a voice and feel the only way to make themselves heard is through violent protests and boycotts.

Some argue that this system has not produced a particularly responsive crop of local government councilors and that a change in the electoral system will not necessarily improve the way in which Parliament serve the people and the way it holds the Executive to account. They might have a point. Changing the electoral system will not miraculously make public representatives more hardworking and responsive to the needs of ordinary citizens.

After all, there are many reasons why public representatives are not more effective and robust. Many public representatives lack the skills, knowledge, independence of mind and courage to act as true representatives of the people – often through no fault of their own. Parliament should therefore do much more to educate and empower MP’s to do their job properly. Surely all new MP’s should receive intensive training preparing them for their role as servants of the people.

But a change in the electoral system will open a window of opportunity that might improve the performance of MP’s. The role of  MP’s in the national parliament differs from that of councilors and MP’s are potentially far more powerful than their local government counterparts. For example, the committee system in the National Assembly provides a very powerful platform for MP’s to make a real difference by scrutinising draft legislation and by holding the Executive to account.

Even so, a real change will only occur when ordinary voters become active citizens who engage their MP’s and place pressure on their MP’s to do their job properly. South Africans tend to be either passive citizens or, when they do organise and resist heartless and unwise decisions, to do so outside the official channels by taking to the streets in service delivery protests. If at least some MP’s are directly elected, it would make it easier for ordinary citizens to engage their MP’s and to actively take part in the governance of the country.

Sadly, almost all political parties represented in Parliament are not keen to change the electoral system because it will take away some of the power of the party leadership and will devolve some of the power to the constituency level. Party leaders do not like MP’s with an own constituency and an independent bent because this will weaken the party discipline and will make it more difficult for party leaders to force MP’s to follow the Party line.

The system will only change if the self-styled champions of the people – COSATU, the SACP and the ANC Youth League – take up this issue and make a concerted effort to fight for the rights of ordinary citizens to be properly represented in Parliament. I sincerely hope that these members of the Alliance will take up this issue and that they will try and convince the ANC to change its policy when it meets for its next conference in 2012.

Such a move will be good for democracy and good for ordinary citizens. Come on Zwelenzima Vavi, Blade Nzimande and Julius Malema, I know you can…

Why the long queues?

Apr 22nd, 2009
by Pierre De Vos.
45 comments

I voted today in Sea Point. It took fifteen minutes from the time I arrived at the polling station to the time I had cast my vote. Most of the voters in my voting district (I assume, based on previous election results) were DA voters. On television I see that there have been long queues in especially poor areas (which, past results suggest, would be ANC strongholds). Queues of three or four hours seemed to have been standard in some areas.

My question is: why the long queues in some areas? Why the lack of ballot papers? Why not more polling stations in poor areas?

I would have imagined that the IEC would make sure that ALL voters – rich and poor, black and white – would have been treated the same.

Anecdotal evidence suggest that voters in especially poor areas were often required to stand in queues much longer than voters in the affluent areas. Why?

The Constitution guarantees the right to equality for everyone. But, unless media reports are wrong, poor people often had a far more onerous task in order to ensure that they cast their ballot. Why?

Is this part of the inherent bias of state institutions towards the middle and upper classes or merely bad planning on the part of the IEC? Who knows? Either way, the IEC should do better to ensure that ALL are treated more or less the same on election day.

The fact that many people still stood in queues for many hours to cast their vote is a good sign. It means people still believe that voting really matters. While one vote cannot change anything, if every person decided not to vote because of that fact, it would completely sabotage democracy.

One vote cannot get anyone into Parliament, but voting is always a collective matter. Election day is a day in which we are reminded that we are all in this together. If many persons thought their vote would not count, this could lead to the election of an unpopular party. This happened in Zimbabwe in the election before the referendum in 2000 where the vast majority of voters did not bother to vote, giving Zanu-PF an 80% majority despite the fact that only about 40% of voters actually cast their ballots.

And in 2000, All Gore lost the election because of a 300 ballot margin in Florida. And the poor people of Iraq and the USA had to live with the consequences.

Every vote DOES count. Saying that it does not seems to me astonishingly narrow minded and takes individualism to absurd heights.

But now it is too late to convince anyone to vote. We are all awaiting the results.

Lawyers…. and then we pay them for this

Apr 14th, 2009
by Pierre De Vos.
57 comments

I am always surpised at how many legal experts and lawyers get things spectacularly wrong when they write for newspapers or comment on current affairs matters. Don’t they read the relevant sections of the Constitution, the applicable Acts and the case law on those texts? If they do, are they willfully misleading the public or merely intellectually a bit slow?

A case in point is the lawyer for Judge President John Hlophe,Vuyani Ngalwana, (whom I praised last week but really now am deeply disappointed with, given the fact that he has shown himself so unaware of the basic legal and constitutional issues surrouding the Zuma matter and seems to have insulted my professional integrity as well).

Ngalwana, who is allegedly an advocate, argues in an article in Sunday Tribune and again in the Cape Times today that the decision of the NPA to drop charges against Zuma cannot be set aside by a court.

He says that in a case concerning a bid to stop Parliament from passing legislation dismantling the Scorpions, the Constitutional Court ruled it could not interfere with the constitutional function of Parliament. Now, he says, the main opposition party runs to a lower court asking it to interfere with a constitutional function of the prosecuting authority.

That could be dismissed as a stunt to be expected from an opposition political party during the election season. But senior members of the Bar have now appeared on television encouraging this stunt, thus raising questions of political embedded-ness.

He says they know that a decision by the prosecuting authority to prosecute or not does not constitute administrative action and so cannot lawfully be taken on judicial review, and adds:

So why, against their better judgment, do they give this stunt a semblance of legitimacy? Opposition political embedded-ness would seem to be the only reasonable explanation. While nothing is wrong with that, they must tell the public so that it does not wallow in the false belief that theirs is an objective professional opinion when it may well not be.

Well, this is so spectacularly and embarrassingly uninformed that if I was Hlophe I would refuse to pay the legal fees for the work already done in that sad and hopeless matter before the JSC. Did Ngalwana even read the Constitution, the relevant case law or the relevant sections of the Promotion of Administrative Justice Act (PAJA) before putting pen to paper? If he read them, why did he not understand them? 

So, a quick lesson for Advocate Ngalwana is in order. (I take the time to assist Comrade Ngalwana because I assume his utter lack of understanding of the law is genuine and is not disguising a burning ambition to serve in a high position in a Zuma government or the judiciary).

First, section 1(b)(ff) of PAJA states that “a decision to institute or continue a prosecution” is not administrative action. In the Nicholson judgment this was interpreted to mean that while PAJA excludes a decision by the NPA to institute or continue a prosecution from its ambit, it does not exclude a decision to drop charges (in other words, not to continue with a prosecution.) This means a decisision to drop charges may not be excluded from administrative action and can be reviewed.

Now, although this is the most plausible interpretation of the section, one might perhaps argue that a decision “to continue with a prosecution” also includes a decision not to continue with it. I will even concede that it is possible that Nicholson might even have been wrong and that the textually more strained interpretation is better for policy reasons. But at best, this means one cannot categorically state, as Ngalwana does, that a decision to drop charges against an accused is excluded from PAJA.

But that is really not the biggest blunder made by a man who claims that those who hold a different view from his uninformed and embarrasing views are doing so because they are embedded with a political party. (In phsycological terms one would call this transference: see in others what you do not want to admit in yourself.)

He clearly does not understand that the Scorpions case is utterly irrelevant for the present matter and the arguments made by lawyers like myself about why the decision of the NPA may be reviewed. Maybe he should go and read the Doctors for Life, Matatiele and Merafong judgments of the Constitutional Court again. (I say again, because out of the kindness of my heart I assume he has actually read them.) On second thoughts maybe he should read these cases twice each. It might sharpen the mind and stop future public embarrasment and humiliation.

In these cases the Constitutional Court made it very clear that where the Constitution prescribed to Parliament HOW it had to exercise a function or a discretion, the Constitutional Court had every right to “interfere” with the work of Parliament. In such cases the Constitutional Court can declare the Act of Parliament invalid, which they did in Doctors for Life because Parliament had failed to follow the prescribed procedure set out in the Constitution for passing laws because it had not facilitatated public involvement in the lawmnaking process as required by the Constitution.

So, chickens, slowly now (advocate Ngalwana, are you still with me?) remember section 179(5)(a) of the Constitution? It states that the National Director of Public Prosecutions­ must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process.

So, this is a Constitutional duty placed on the NPA to observe the policy in the prosecution process – very much like the duty placed on Parliament to facilitate public involvement when it makes laws is a constitutional duty. A Court has every right to “interfere” with such a decision if it was not done in accordance with the constitutional prescription set out in section 179(5)(a).

This is – to me at least – so bloody blindingly obvious and the arguments used by Ngalwana so absurd and lazy that (to use a phrase allegedly stolen by Mpshe from a Hong Kong judge) it shocks the conscience.

I dare advocate Ngalwana to a public debate on the legal issues involved. We can also debate who is really embedded with a political party and who is giving bad legal opinions because of such embeddedness. Let us see who is correct in their interpretation of the law and the Constitution. We can even get an independent panel of judges to adjudicate a winner and the loser will have to give one month of his salary to the winner.

As I will win, I hereby promise to donate my winnings to a charity of my choice. Maybe I will start my own charity: “The Vuyani Ngalwana Education Trust”. He sure as hell need some education.

Did Michael Hulley give the game away?

Apr 11th, 2009
by Pierre De Vos.
25 comments

When Mr Jacob Zuma’s lawyer was asked about the origins of the tapes illegally and criminally handed over to the Zuma camp and then used by the NPA to drop charges against Mr Zuma he said that attorney-client priviledge prevented him from saying where the tapes came from.

Interesting.

Who is Mr Hulley’s client whom he is protecting?

Jacob Zuma?

Seems to me it is reasonable to ask whether Mr Hulley gave away the game with this comment. It strongly suggests that the tapes come from Mr Zuma himself. Could that be why there is attorney-client priviledge between the person handing over the tapes and Mr Hulley who received them. Or does Mr Hulley have other clients who have an interest in this case. Can he claim attorney-client priviledge when he was party to a crime and or covering up a crime?

So, when will the police begin investigating this crininal act of handing over and receiving the tapes? Will the NPA ever charge Mr Hulley and or Zuma or any other client of Mr Hulley for this criminal act?

I am sure they will. And I am sure Thabo Mbeki will soon admit that he was wrong on HIV and Aids, Xolela Mangcu will give his shares back to Tokyo Sexwale and the Independent Democrats will win the election.

Pity they are not on the ballot…

Mar 31st, 2009
by Pierre De Vos.
10 comments

The Social Justice Coalition will be holding a protest meeting on Thibault Square in Cape Town on Saturday morning from 12 a.m. to protest the Dalai Lama decision, the arms deal corruption and the dismal service delivery. Their plan of action states that they demand a commitment by all political parties to:

  • Always act in solidarity with marginalised people by actively promoting the bill of rights and the UN declaration of human rights, both locally and internationally, and make decisions based on its principles;
  • Enforce the principle that all are equal before law
  • Protect the independence and integrity of the courts and allow for due judicial process without political interference;
  • Prioritise the needs of the poor, disenfranchised and most vulnerable;
  • Work actively to stamp out racism, bigotry, xenophobia, sexism, religious discrimination and homophobia;
  • Ensure that corporations locally and globally engage in fair trade with fair labour practices and openness in financial institutions.

Pity they are not on the ballot because then I could vote for a party in whose principles and values I actually believe. See you there?

The Dalai Lama and human rights day

Mar 23rd, 2009
by Pierre De Vos.
32 comments

The only surprising thing about the news that the South African government has declined to issue a visa for the Dalai Lama to visit South Africa to attend a peace conference, is that anyone was surprised by this callous and mercenary decision.  One can only be surprised by this decision if one assumes that human rights principles come in to play in the formulation of South Africa’s foreign policy.

But human rights principles have not had any role in South Africa’s foreign policy since Thabo Mbeki took over as President of South Africa in the late nineties. Our foreign policy is based on naked self-interest, power politics, a misplaced loyalty to scoundrels and the leaders of rogue nations and a wish – born out of insecurity, vengefullness and a lack of pride and self respect – to try and embarrass the United States and other Western states. In the process our foreign policy has ironically mirrored the deeply unethical and unwise foreign policy of the United States under George W Bush.

It should also not surprise us that the South African government, in dealing with the inevitable fallout of the decision not to issue a visa for the Dalai Lama, has been amateurish and confused, leaping from one explanation to the other to try and justify what it surely knows is unjustifiable. That is why Foreign Affairs and the Presidency are contradicting each other on this issue, looking like the rank amateurs they are. Real tyrants would have anticipated the outcry and would have decided on a single lie to tell the world before getting tied up in all kinds of knots.

Thus we get Foreign Affairs spokesman Ronnie Mamoepa saying on Sunday that it was in South Africa’s “best interests” not to issue the visa to the Dalai Lama, who was due to attend conference to be held on Friday and insisting that no pressure had been placed on South Africa by the Chinese government to deny the visa to the Dalai Lama. At the same time, in a move that would have pleased Thabo Mbeki, he immediately contradicted himself by making claims that were clearly not true. As the The Times reports:

“As far as the SA government is concerned, no invitation was extended to the Dalai Lama to visit South Africa,” Mamoepa said. “So therefore the question of the visas doesn’t exist. This is an independent, sovereign decision. I am not aware of any approach by the Chinese.” Dai Bing, ministerial counsellor at the Chinese embassy in Pretoria, said his government had appealed to the South African government not to allow the Dalai Lama into the country, warning that if it did so, it would harm bilateral relations. South Africa is one of China’s key trade partners in Africa, accounting for around 20.8 percent of China’s trade with the continent.

But today President Kgalema Motlanthe’s spokesperson Thabo Masebe seems to have changed the story a bit. The South African government does not have a problem with the Dalai Lama, he said. Then he used the oldest trick in the book to hide his misrepresentation, namely to deny what was never claimed:

“But at this time the whole world will be focused on the country as hosts of the 2010 World Cup. We want the focus to remain on South Africa. A visit now by the Dalai Lama would move the focus from South Africa onto issues in Tibet.” Masebe said China, a major trading partner of South Africa, had played no role in the government’s decision. “The decision was made by the government and not by the People’s Republic of China,” he said. “This issue is that this simply would not be in the best interests of South Africa at this stage.”

Of course, no one had claimed that the government of China had made the decision – only that it had placed pressure on the South African government, so for Masebe to deny that the decision was made by the Chinese government is laughable. It is obvious that there was pressure from China as the Chinese embassy had confirmed this. Why now try and deny the undeniable? If one is going to lie one  should really try and stick as closely to the truth as possible. Not doing so and denying that which was never claimed is just amateurish.

It should be obvious to anyone with more than three brain cells (and maybe even to those with less than three brain cells, of whom many seem to work for Foreign Affairs or the Presidency) that China placed pressure on South Africa not to issue the visa, given the fact that the 60th anniversary of the uprising in Tibet is approaching and given the fact that China is a big trading partner with South Africa.

It would be far better to have an honest debate about South Africa’s foreign policy and to ask whether human rights principles should play a role in our foreign policy at all. Maybe we can dispense with this charade that we are champions of human rights across the world and just admit that we are mercenary and unprincipled and that we do not really believe in the protection of human rights – unless it can embarrass the West.

Should we vote against gay rights at the UN – as our government has done more than once – because we want to retain influence with tyrants, sexists and homophobes in the rest of Africa? Should we vote at the UN to protect murderous regimes in Sudan, Burma and Zimbabwe because we want to act like insecure bullies who can also throw its weight around and can embarrass the USA? In short, should we act like Africa’s own Republican Party-led USA government, or should we acknowledge the difficult choices to be made between respect for human rights and pragmatic foreign policy?

Our government has long since opted for the former approach and it is laughable to suggest that a concern for human rights plays ANY role in our foreign policy. Please, we are not the good guys and we have not been for at least ten years. Not that it would make a difference to ordinary South Africans or even those “principled” politicians of the South African Communist Party and Cosatu. Who cares about the abuse of human rights in other countries?

Yes, the people of many of these countries supported the struggle against apartheid – often at great financial or physical cost – and yes, without the international community apartheid would have taken a lot longer to get rid of, but hey, who cares. We are free now to steal as much money from our taxpayers as we can get away with, so stuff the rest of the world. And the Dalai Lama too. Time to make money, my China.

Niehaus, loyalty and the Rule of Law

Feb 15th, 2009
by Pierre De Vos.
58 comments

It is a difficult call: when one’s friend finds himself in a tight spot – say because he has defrauded the government or is exposed as a serial liar – should one support him or condemn him? There is something laudable about friends sticking together, after all, and when a mother of a convicted murderer stands outside the court and refuses to condemn her son, I personally feel empathy for that mother.

So when it transpired that Carl Niehaus defrauded the Gauteng government, that he is not only an ANC spin doctor trying to convince us all that Jacob Zuma is the victim of a dark conspiracy, but also a man who lied about his own sisters death in order to score a business class ticket to London for his wife, I was not surprised that some in the ANC leadership would feel some sympathy for the man.

After all, he spent many years in jail for the cause and despite the fact that he is a man who has no morals and felt it was better to lie and crook than to scale down his opulent lifestyle, as a friend it is laudable that members of the ANC feel that they have to support him. Ok, some of us might wonder what’s wrong with driving a Chicco and living in a two bedroom apartment, rather than swish about in a Porsche and live in a grotesquely kitch tuscan villa. But we might have some understanding of the loyalties that animate the deep bonds forged in struggle.

Yet, that said, I find it ethically depraved and morally reprehensible that the ANC is now saying that they will not only support Neihaus personally in his hour of need, but that they will “redeploy” him in the movement so that he can mend his ways. I find it deplorable that his boss, Gauteng Premier Paul Mashatile, failed to report his fraud to the police. I find it deplorable that there seems to be one set of rules for ordinary people and another set of rules for ANC cadres.

What does it say about the ANC that even after their spin doctor had admitted to the most callous and selfish criminality, they are not prepared as a movement to fire him, but feels it is appropriate that he be deployed? What kind of job can this man ever do again with any kind of credibility? How can the ANC think its ok for such a morally depraved man to work for them?

It is really fine to support him personally, but as a political party who is supposed to have zero tolerance for corruption, the decision by the ANC to protect Neihaus suggests that is either so arrogant or so morally depraved itself that it cannot see the spectacular double standard it is using here.

What happened to the Rule of Law – the principle that all are equal before the law? The ANC is saying that if one is an ANC cadre the ANC will protect you no matter what. The ANC will look after you even if you are a liar and a cheat, even when you lie about having cancer and lie to your creditors and lie about, well, who knows what else? One now wonders whether he even believed anything he had said in defense of Zuma or if that was also just a tissue of lies. The ANC will talk about zero tolerance of corruption and its Ministers will tell the police to shoot the bastard criminals – as long as they are not ANC members.

This move shows a spectacular disrespect for the law and also for the voters and makes a mockery of statements by ANC leaders that it is opposed to corruption and dishonesty.

If the ANC had any moral compass left they would have expelled this man from the party immediately. This does not mean they could not have supported him personally as a friend – by sending him a note to offer condolences or by bringing him some food to Pollsmoor Prison – but keeping him on and redploying him suggest the ANC believes its own members are above the law and that they must be held to a different standard than us mere mortals.

The fact that Gwede Mantashe cannot or will not see this really should worry us all. Where are the moral leaders in the ANC? or does loyalty trump everything else – even common sense, decency and respect for the truth?

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