Now that is what I call chutzpah! Unfortunately, the President’s recent actions and utterances as well as his resolute silence about flagrant unethical behavior by members of his own party and his government, suggest that this chutzpah is born out of ignorance, bigotry and a lack of an own, constitutionally acceptable, ethical compass.

Making the proposal, our President said that using one’s own culture to judge others is unconstitutional. According to Zuma:

Each one of us must be respected. That’s what our Constitution says. No matter how you feel — some of us have very strong feelings about some of the things — we respect the Constitution, no matter how we feel…. We cannot be expected, all the time, to be respectful to others when others are not respectful to us and others.

The President is wrong on so many counts, spectacularly and ignorantly so.

It is nonsense to say that it is unconstitutional to use one’s own culture to judge others. What kind of fascist mind-set is that? The Constitution guarantees for everyone the right to freedom of thought and opinion. In our personal capacities we have a constitutional right to use our own cultural, religious or ethical beliefs to judge others, and we all do – all the time.

If one happens to be a Catholic, say, or an African traditionalist, and holds homophobic and bigoted views about gay men and lesbians, one is free to hold such opinions and to express them – as long as it does not amount to hate speech. If one is a feminist and one happens to believe polygamy is a sexist and patriarchal institution designed by lecherous and immoral old men to enforce the sexual and economic exploitation of women, one is equally free to hold and express such opinions within the limits of the hate speech laws.

For example, we have no constitutional duty to respect the values, beliefs and practices of pedophiles, rapists, murderers, racists, sexists or thieves.

Moreover, the President cannot hide behind the Constitution to avoid criticism of his own beliefs and actions which many people believe to be exploitative and immoral and lacking in honesty and integrity. Of course, depending on one’s own ideological, religious, moral or ethical views one may agree or disagree with this belief, but everyone has a constitutional right to hold and express their views on the moral probity of the President. A moral code that precludes us from either supporting or opposing the President’s private and public statements and actions will directly conflict with the rights in the Constitution and could therefore not be of any use to the President.

In a heterogenous society like ours with its many different cultures and beliefs, it would of course be prudent to strive to understand and respect the beliefs and cultural practices of others in as much as those beliefs and practices do not conflict with the values enshrined in our Constitution. But some beliefs and practices (like the President’s polygamous lifestyle based on sexism and patriarchy or Minister Lulu Xingwana homophobic hatred of black lesbians) would harm others and would perpetrate more hatred and prejudice against women and against gay men and lesbians and it would thus be unethical (but not unconstitutional) to harbor or express such prejudices in a personal capacity.

What our President does not seem to understand is that some beliefs and practices – whether inspired by our cultural and religious views or our own sense of morality - are themselves inimical to a constitutional state based on the values of human dignity, equality and freedom and as such we have an ethical duty to reject them. The government of the day also has a constitutional duty to protect people from such practices (although the beliefs on which they are based are usually beyond the reach of censure) through legislation and law reform by passing hate crimes laws and by outlawing cultural and religious practices that subjugate woman, say, or endorse societal prejudice against gay men and lesbians.

The President and cabinet members – who have a duty to uphold the Constitution and the law – do not only have an ethical but also a legal obligation to reject such harmful beliefs and practices or at least not to endorse them in public. This is something dear Minister Lulu has failed to grasp. Thus she objected to works of art that portrayed black women in intimate situations because it “stereotyped black women” and refused to open an art exhibition where these works were displayed.

By saying this, the Minister revealed how immoral she herself is and how she has failed to uphold the values enshrined in the Constitution. If she believes that depictions of black women in intimate poses stereotype black women, she must obviously believe that it is a bad thing for black women to be intimate with one another. If she was not a homophobic bigot, she would have celebrated those works of art as affirming the life experiences, with all its complexities, of black lesbians. Instead, she revealed just how immoral she was by endorsing hatred and prejudice against black lesbians, the very attitudes which have led to the murdering of many black lesbians in South Africa over the past few years.

President Jacob Zuma’s moral code is a non-starter if it does not take the Constitution as its starting point. But as Zuma is not a great fan of the law or the Constitution – unless he can use it to escape prosecution for bribery and corruption – he has reportedly tapped a religious group headed by soon to be twice divorced Ray McCauly to lead the discussion. Heaven help us. That is like asking Schabir Shaik to lead a discussion on business ethics and anti-corruption measures.

Any discussion about a moral code will have to take as its starting point respect for the human dignity of all. It will have to assume that a shared constitutional morality is based on a REJECTION of cultural beliefs and practices which refuse to respect the human dignity of some members of society because they happen to be gay and lesbian, or because they happen to be woman or because they happen to be white or black or colored or Indian or they happen to be poor.

Such a code would also have to embrace respect for values of integrity and honesty and will have to reject a value system which valorizes materialism and the bling culture above all else and endorses breaches of the law or stealing from the poor “because we have not struggled to be poor” or because the theft or criminality is perpetrated by persons of a particular race or political party. Such a code would therefore require a complete rethink of the moral values of a large section of the present leadership of the ANC – including that of the ANC Youth League Leader, the Minister of Arts and Culture and the President himself.

Nah, not going to happen. Let’s rather get rich quick by stealing from the poor and by oppressing gays and woman while flouting the law. I am sure our President will support a moral code based on these “sound” values. After all, it would not require any change in behavior from many in the present government leadership.

In 2003, following weeks of correspondence with Zuma, the Ethics Committee of Parliament exonerated Zuma – who was then still the Deputy President and therefore a very powerful man. The Committee had accepted his explanation that the “loans” given to him by Shaik were not free, but bore interest: “As there is no evidence at hand that contradicts the authenticity of the loan agreements, it is recommended that the loan agreements submitted by the Deputy President be accepted as valid and correct,” the committee concluded.

The report tabled on 19 November 2003 said, “In this matter the Deputy President provided documents to the Committee which verified his response that there was no benefit received. It is on this basis that the Committee finds that there is no breach to the code of conduct.”

The problem is that the High Court, in finding that Shaik had paid Zuma a bribe, found that these documents submitted by Zuma to Parliament were concocted by the conspirators in order to hide the fact that the money was a benefit and not a loan.

The Shaik judgment thus provides proof “beyond reasonable doubt” that Zuma had in fact defrauded Parliament (much like Tony Yengeni, who was sentenced to three years imprisonment after his fraud came to light). Zuma, however, was never prosecuted for defrauding Parliament, despite the fact that the “loan agreements” he had submitted to Parliament were found to be fraudulently made.

In the judgment in which Schabir Shaik was convicted of bribing Zuma, the court found that the various “loan agreements” which Zuma had submitted to Parliament was nothing of the sort. As Judge Hillary Squires recounted the evidence, these various agreements were hastily drawn up in anticipation of the Code of Ethics kicking in: As Squires noted:

It is also clear from the evidence of Linda Makathini, the official legal adviser to the Deputy President, that the Executive Code of Ethics Act had been promulgated in October the previous year and the resultant Code was in the process of being drafted and actually came into existence in the following year. To show loans made without interest being payable under that Code, would amount to a benefit which would require a special declaration. If they carried interest, on the other hand, they were regarded as a liability and did not….

One only has to consider the financial position of the Nkobi Group as at the date of signature of this document [the loan agreement] to see how divorced from reality it was as a genuine business proposition….

We thought eventually the State’s contention about these documents was well founded. They are clearly not what they purport to be and were probably drawn up when this sort of information had to be disclosed by Members of Provincial Executive Councils and it would have been a suspicious circumstance if these payments had not been recorded as a loan. The evidence regarding the second such agreement, that is the agreement of loan of 16 May 1999, is hardly any better as a genuine statement of what it purports to be…

But then, even if these could be regarded as loans despite all the evidence to the contrary, the basis on which they were made would, in our view, unarguably amount to a “benefit” within the meaning of the word in the Corruption Act. [The Code also requires Cabinet Ministers to declare "benefits".]

Thus, although Zuma had contended to Parliament that the sums of money he had received from Shaik were loans and hence did not have to be declared, the court found that the money given to Zuma could not have been loans and even if they were, these “loans” were given on such beneficial terms that they would constitute a “benefit” for the purposes of the Corruption Act – let alone the Code of Ethics. Zuma was therefore misleading Parliament when he claimed otherwise. This may very well have constituted fraud for which Zuma may – if he was charged – very well have been convicted and sentenced to three years imprisonment.

When Zuma was fired as Deputy President by President Thabo Mbeki after the Shaik verdict, he also resigned as a member of Parliament despite the fact that Mbeki had made no effort to fire him from Parliament. There was a very good reason for his sudden resignation. If he had remained an MP, the Ethics Committee would have had to re-open the probe against him and would have had to accept the factual finding in the Shaik case that the “evidence” provided by Zuma that the money received from Shaik was a “loan” and not a “benefit” as defined by the Code, was fake.

Zuma would then probably have been found guilty by the Committee of breach of the Code of Ethics and could then also have been charged with fraud. He therefore had no other option but to give up his seat in the National Assembly and forfeit the salary that went with it. His very freedom depended on it.

Given Zuma’s narrow escape around the fraudulent “loan agreements”, it is no wonder that President Zuma is trying to avoid declaring his financial interests and benefits and those of his spouses, companions and dependent children. If benefits were received and they were not declared and he was caught out again, he would surely go down.

Of course, it might be that Zuma, his spouses, companions and dependent children had not received any benefits from anyone since he had become President. Even if he and his family have indeed received such benefits they might well be above board in that they might have been given in the spirit of generosity. Unlike in the Shaik case where the money was given as a bribe, it might be that any benefits given to Zuma more recently were not given to secure favors from the President in return for the benefits. In that event, Zuma would have nothing to fear from declaring these benefits (if any).

The fact that he has not declared anything and is claiming rather laughably that it is unclear whether he needs to declare anything, will, however, raise serious questions about Zuma’s honesty and integrity and his ability to stay on the right side of the corruption legislation. If he honestly declares all his interests, he will go a long way to answer those questions and clear up the dark cloud hanging over his head. If he continues to stonewall, we will be well within our rights to conclude that Zuma has not learnt his lesson from the Shaik fiasco and that he is (still) implicated in corrupt practices.

Only time will tell.

The Presidency claims that the President has failed to make these declarations – as the law requires him to do within 60 days after taking office – because ”there was a difference of opinion in his office on whether he was required to do so”.

Oh please! Tell me another one. I for one really do not believe this statement issued by the presidency. It is about as believable as statements by George Bush that there were weapons of mass destruction in Iraq or statements by Bill Clinto that “I did not have sex with that woman.” If there really is a difference of opinion in the President’s office on whether the law requires him to declare these financial interests, then god help us all because then our President has people working for him that are spectacularly stupid or spectacularly dishonest – or both.

There cannot possibly be any confusion about whether the President and his family should declare their financial interests. Here is why.

Section 2 of the Executive Members Act requires the President – after consulting Parliament – to “publish a code of ethics prescribing standards and rules aimed at promoting open, democratic and accountable government and with which Cabinet members, Deputy Ministers and MECs must comply in performing their official responsibilities”. The Act, in its definition section, makes doubly sure that this Code would also bind the President because it defines “cabinet” to mean “the Cabinet referred to in section 91(1) of the Constitution” and then, just in case anybody is too thick to get it, the Act defines  “cabinet member” as including “the President.”

Section 91(1) of the Constitution - in case anyone wondered – further states that the cabinet “consists of the President… Deputy President and cabinet Ministers.” This is about as clear as any law could possibly be.

The Code itself – which gives effect to this Act and must therefore comply with that Act - states in section 5 that every member (defined in the Code to include any cabinet member and thus, according to the Constitution as well as the Act, to include the President)” must disclose to the Secretary particulars of all his or her own financial interests as well as the financial interests of spouses, permanent companions or dependent children”. Note the word “must”, as in: “One must not kill anyone”. Pretty clear really – unless one cannot read or write or unless one is a serious crook. The statement by the presidency that the Act is unclear is therefore utter nonsense and laughable.

Why would the President be flouting the Law like this? Does he have something to hide and if so what? Well, section 6 of the Code states that like all other Cabinet members, the President must disclose his own financial interests and those of his spouses, permanent companions and dependent children including: shares and other financial interests in companies and other corporate entities; sponsorships and their sources and “other assistance” and its sources;  ”gifts and hospitality” and its sources; “other benefits” and their sources; foreign travel paid by a sponsor and the description of the sponsor; the land and property owned; and the pension owned, its sources and value.

This means if the President stopped flouting the law and started to comply with the Code, he would have to declare a wide range of benefits received by himself, his wives, his known children and, perhaps, even his various fiancées as well as the names of those who have provided the benefits. Although the details of benefits accruing to his spouses, permanent companions and dependent children would be listed in the secret part of the register, the Public Protector would have access to this information if any complaint is received about a conflict of interest (otherwise called a bribe).

If anyone had paid for the school fees of one of Zuma’s children, it would have to be declared. If rent on luxury houses used by Zuma, any of his wives, his girlfriends or his dependent children were paid by others it would have to be declared. If Schabir Shaik, say, had sponsored a private holiday for Zuma with one of his wives or girlfriends, it would have to be declared.

The fact that his private attorney, Michael Hulley, is currently handling the matter suggests that there is something very fishy going on here. Remember, Hulley was the lawyer who used illegally obtained recordings to provide the smokescreen for the dropping of charges against Zuma. Hulley was not allowed to be in possession of those recordings and probably committed a crime by taking possession of the recordings. He thus seems singularly unsuited to assist the President to comply with the law as required. Given his track record, he seems like the kind of person one calls in when one wants to evade or break the law.

Why not employ lawyers from the presidency to deal with the matter? Why employ the guy who managed to get you off the corruption charges? Outwardly, this looks very bad. Why get Hulley involved if the information required by the Code will not expose the President to further allegations of bribery and corruption? Or is Hulley there to help the President to flout the law by ensuring that the President does not reveal anything that could get him in trouble?

Any member of the National Assembly can lay a complaint with the Public Protector to investigate a breach of the Code. One would hope someone would lay such a complaint as the President is clearly in breach of the Code. One would also hope that when the President is finally forced to stop his flagrant flouting of the law, that journalists would go over all the details of his dealings and will compare the names of all those who have acted as benefactors to the President (assuming Hulley has not unlawfully hidden some of the information) with the names of business people who have received tenders from the state.

Something smells rotten about this duckling and diving by the President. Anyone with nothing to hide would surely have complied with the law as the President clearly is required to do. What is going on? What does the President have to hide? More undisclosed children?

PS: I see Presidential spokesperson, Vincent Magwenya, says if the president was hiding something he would not have given such an open and forthright response. In other words, if the President wanted to hide something he would have lied about breaking the law. But he has admitted to breaking the law instead of lying about it, so its ok then. This is so breathtaking in its arrogance, that I first thought it was a quote from the Hayibo website. Of course, if the President did not want to hide anything he would have complied with the law, but he IS the President so obviously he wrongly thinks the law does not apply to him.

When you see the draft … you will realise that the amendment will be in conformity with the guidelines established by former Constitutional Court Judge Kriegler in State versus Walters where he elaborated the guidelines that must be used by the police. That is precisely what this amendment is about. Judge Kriegler even uses the words deadly force in setting those guidelines under particular circumstances…

Being a naive sort of fellow, I thought maybe the Minister had spotted something in the Walters case that I have missed, so I re-read the judgment yesterday. It turns out the Minister had clearly failed to come to grips with the Constitutional Court precedent, perhaps because he had failed to understand that the principle of proportionality animates the judgment.

In Walters the Court made it clear that it would always constitute an infringement on a persons right to life when he or she is killed by the police. Such a limitation of one’s rights could only be justified in terms of the limitation clause which requires us to ask what is reasonable and justifiable, having regard to the purpose of the provision and the means used to effect that purpose. The purpose of the provision can be twofold: either it is aimed at protecting police officers and the public or it is aimed at ensuring that dangerous criminals are arrested.

The amendment could not be aimed to protect police officers or the public, as the common law already allows police officers or anyone else to shoot and even kill someone who poses an immediate threat to anyone’s life.

The amendments must therefore be aimed at ensuring the arrest of dangerous criminals. But it is far too broad to pass constitutional muster as it allows the use of deadly force, as opposed to the use of that force necessary, to effect the arrest. It also allows the killing of a suspect even when that suspect could reasonably be arrested at another time and place.

The proposed amendments would allow a police officer to shoot and kill any suspect who is reasonably suspected of having committed a crime involving the possibility of seriously harming anyone if they believe there was no other way of arresting the suspect “at that time or later”. This would be the case even where the suspect posed no immediate danger to the police or members of the public and even when it would be possible to arrest the suspect at a later stage.

This is clearly not sanctioned by the Kriegler decision in Walters. What is required in every case is for a police officer to decide, taking into account all relevant facts – not only the one’s mentioned in the draft amendments – what degree of force is necessary or whether any force is necessary at all. This is what any proportionality test requires.

The Constituitional Court made clear that the purpose of an arrest is to apprehend a suspect – not to kill him or her. As Kriegler stated:

The purpose of an arrest is to take the suspect into custody to be brought before court as soon as possible on a criminal charge. It does not necessarily involve the use of force. On the contrary, the use of any degree of force to effect an arrest is allowed only when force is necessary to overcome resistance (by the suspect and/or anyone else), to an arrest by the person authorised by law to carry out such arrest. And where the use of force is permitted, only the least degree of force necessary to perfect the arrest may be used. Similarly, when the suspect flees, force may be used only where it is necessary and then only the minimum degree of force that will be effective may be used. Arrest is not an objective in itself; it is merely an optional means of bringing a suspected criminal before court. Therefore resistance or flight does not have to be overcome or prevented at all costs. Thus a suspect whose identity and whereabouts are known or who can otherwise be picked up later, can properly be left until then. Even when the suspect is likely to get clean away if not stopped there and then, arrest at every cost is not warranted.

As Kriegler made clear in Walters (in a passage obviously missed by the Minister): “It can therefore hardly be said to be justified to shoot a suspect where there is no suggestion of a threat to anyone“. But that is what the amendments would sanction. Instead of requiring a police officer in each case to make a decision about the degree of force necessary (if at all) to effect an arrest, it gives a blank cheque to shoot all people suspected of committing crimes that might have entailed the threat of serious violence – as long as that would be the only way to arrest the suspect.

Nowhere in the Walters judgment does Kriegler state that it would always be lawful for a police officer to use deadly force when it would be necessary to arrest a person suspected of committing a crime potentially involving violence. Where the Minister got this idea from is a mystery. Maybe that is what they used to teach in the Criminal Procedure class at Leipzig, but that is not what our Constitution allows. No matter what the Minister now claims, the draft as it stands will not pass constitutional muster.

The reason why these amendments are so dangerous is that it will take us back to a time before the advent of democracy when the police was generally feared instead of respected by the population because they were a law unto themselves. As we have seen police killings have been on the rise. The latest figures, tabled in Parliament in June 2009, revealed that 556 suspects — including 32 innocent bystanders — were shot and killed by police between April 2008 and March 2009. In 1996 the police shot and killed  380 civilians.

Surely if these amendments are allowed to go through we will soon be back to the kind of indiscriminate killing by the police during the apartheid era. In 1985 the police shot and killed 763 people. HOw long before we are back at that number again?

The police who shot and killed you will never be prosecuted – at least not if the new Draft Bill aimed at amending section 49(2) of the Criminal Procedure Act is passed by Parliament. The police officers in their unmarked car will say that your BMW (or one that looks just like yours) was used as getaway car in an armed robbery and they were trying to arrest you – and that will be the end of the matter. Your wife, husband,  or children will have to learn to live without you – albeit in fear of also being shot and killed by the police at a later stage.

So much for your right to life and bodily integrity and the right (so often invoked by President Jacob Zuma) to be presumed innocent until proven guilty. Those rights are obviously reserved for politicians driving in blue light convoys, with their thuggish bodyguards carrying black bags to hood enemies of the state. According to the Minister of Police, ordinary citizens do not enjoy those rights because, who knows, they might just be criminals.

The Draft Bill contains two important proposed changes which will make it far easier for the police to shoot and kill people without having to think too hard about whether this is reasonable or necessary.

First, the prosed amendments to section 49(2)(a) would allow the police to kill a suspect in order to protect themselves or the public from serious bodily harm – even when it might not have been immediately necessary to do so. In other words, as long it would have been necessary at some point before or during the arrest to kill the suspect to protect anyone from serious bodily harm, the killing would be lawful.

The police would also be able to kill a suspect not only when it is necessary to protect someone’s life or to protect someone from grievous bodily harm, but now also when it would have been necessary to protect someone from “serious bodily harm”. However, it is not clear what the difference between “grievous bodily harm” and “serious bodily harm” might be (except perhaps that the former is more difficult to spell and pronounce).

Second, the amendment to section 49(2)(b) would also allow the police to kill anyone who is reasonably suspected of having committed a crime involving the possibility of seriously harming anyone if they believe there was no other way of arresting the suspect “at that time or later”. So, if a police officer has reason to believe you have been involved in a serious assault on anyone, or you have been involved in an armed robbery and there are no other reasonable means to arrest you on the spot (as opposed to going to your house later and arresting you there), they can kill you right there, finish and klaar.

These amendments attempt to simplify the circumstances under which the police can shoot and kill suspects. They would also make it far easier for the police lawfully to kill suspects during an arrest. It tries to circumvent the problem of a lack of police training, by minimizing the requirement for  split-second decision-making by police officers making the arrest. Officers will not have to decide whether killing the suspect is immediately necessary and will also not have to decide whether there is a substantial risk that the suspect would cause imminent serious harm to anyone.

As long as the suspect was reasonably suspected of having committed a crime involving the threatening of serious bodily harm and as long as it was necessary to kill the suspect in order to effect the arrest of the suspect on the spots (say, because the suspect decides not to stop when ordered to do so), the police can shoot first and ask questions later.

The amendments are not only illogical but clearly also unconstitutional. Maybe I am missing something, but it does not seem logical for the law to state that the police can kill a suspect “if there are no other reasonable means of carrying out the arrest”. If they have killed the suspect, they would not be able to arrest him or her as one cannot arrest a dead person. The proposed amendments to section 49(2)(b) must therefore be read to mean that the police need not worry about whether it would be possible to arrest certain suspect at a later date. They would be able to kill the suspect on the spot if it would not be possible to arrest him or her right there and then.

Scary stuff.

The amendments are most probably also unconstitutional. As I have explained before, in the Walters case, Kriegler J set out in admirably clear language what the Bill of Rights require from any such section, and I quote:

(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.

The proposed amendments would not require the police officer to take into account “all the circumstances” before deciding whether it would be reasonable and necessary to shoot and even kill a suspect. However, this is exactly what the Constitution requires. The amendments would tilt the scales in favor of extra-judicial police killings (a bit like the Vlakplaas hit squads but this time sanctioned by law) and will not pass constitutional muster.

The drafters of the Bill obviously failed to distinguish between cases where it would be permissible to shoot and injure a suspect in order to effect an arrest and cases where it would be permissible to shoot and kill that suspect. The Constitutional Court has made it clear that the latter would only be lawful in limited circumstances and that only the least degree of force to carry out the arrest  would be allowed.

By repeating the wording of point (h) above out of context, the drafters probably thought that the amendments would pass constitutional muster. But they failed to take into account the rest of Kriegler’s summary and have not realized that it does not give the police a blank cheque to shoot and kill suspects merely because they are reasonably suspected of committing a crime that threatened serious bodily injury.

The Constitution requires police officers to decide in each case what degree of force is reasonable and necessary to effect an arrest. The proposed amendments wants to do away with the necessity for officers to make this judgment call. This makes the amendments unconstitutional.

Last week the Supreme Court of Appeal (SCA) reminded us how true these words of Tannie Evita is for South Africa. Writing another chapter in this novel called our past, the court in effect wiped out a swath of human rights abuses perpetrated during the apartheid era.

According to the SCA, Dirk Coetzee, David Tshikalange and Butana Almond Nofomela never murdered Durban attorney, Mr Griffiths Mxenge, in November 1981. Adriaan Vlok never ordered the bombing of the headquarters of the South African Council of Churches at Khotso House, and the COSATU trade union headquarters in Johannesburg. Eugene de Kock, Craig Williamson and General Johannes Coetzee never bombed the London offices of the African National Congress in 1982.

Of course, we know these events did happen. The perpetrators were, after all, granted amnesty by the Truth and Reconciliation Commission (TRC) for having done these things. But according to the SCA, because the TRC granted the perpetrators amnesty, a newspaper could not claim that such individuals were murderers or criminals as this claim – which obviously would be defamatory – would also be false.

This, at least, is the consequence of the majority decision of the SCA in the case of The Citizen and Others v Robert McBride. Streicher JA (for the majority) thus found that The Citizen had defamed Robert McBride when it referred to him as a criminal and as murderer. While it was true that McBride planted a bomb in a pub in which three civilians had been killed and that he had been convicted and sentenced to death for these “crimes”, the newspaper could not rely on the traditional defense against defamation(that the defamatory statements were true and were in the public interest or that it was fair comment based on proven facts) because McBride was granted amnesty. It was therefore false to claim that he had been a murderer. He was not a murderer as the TRC had granted him amnesty for committing those murders.

Mthiyane JA (for the minority) disagreed, stating (correctly, I would contend) as follows:

the right thinking reader of The Citizen would have been left with the impression that the authors are clearly and principally commenting or expressing an opinion on the suitability of the plaintiff as a candidate for appointment as police chief. As I see it the reader would have understood the writers to be arguing, rightly or wrongly, that because of the plaintiff’s involvement in the bombing of Magoo’s bar and the Why Not restaurant in 1986, which had fatal and disastrous consequences for many innocent people, and his subsequent conviction and sentence, he ought not to be appointed to the post of chief law enforcement officer of a large municipality. Despite the strong and robust language used and the somewhat extreme (if not, right-wing) views expressed, the articles and editorials remain comment or opinion on the issue of his suitability for the position of the Metro Police Chief.

The fair comment defense did not require that the comment had to be fair in an objective sense, nor did it require the comment to be impartial or well-balanced. “Fair” in this context means only that the opinion expressed must be one that “a fair man, however extreme his views may be, might honestly have, even if the views are prejudiced”. Critical for the newspaper would be that the factual allegations on which the comment was based could be shown to be true. The minority points out the absurdity inherent in the majority opinion:

My colleague says that these facts cannot be obliterated from the historical record and that it is a well known fact that he is a murderer, but then goes on to suggest that the granting of amnesty rendered that fact false ─ a suggestion with which I join issue. This is by no means intended to downplay the broader motives which the plaintiff may have had, namely to free the then downtrodden majority of the people of this country from the evil system of apartheid.

The TRC Act made it clear that the effects of being granted amnesty would be to insulate a person from criminal and civil liability and to expunge the criminal record of the person granted amnesty. Last year the Constitutional Court found in the case of Du Toit v Minister of Safety and Security that Wynand du Toit, who was sentenced to 15 years imprisonment for the murder of the “Motherwell Four” but was later granted amnesty for these despicable deeds (am I allowed to write this without defaming Du Toit?), did not have a right to be reinstated as a police officer because of his amnesty. The Court warned against a “purely literal and de-contextualised reading” of the TRC Act, which would lead to a conclusion that:

the grant of amnesty has the effect of expunging not only the record of the conviction and sentence imposed on the perpetrator, but also all consequences that follow that conviction and sentence, past, present and future. There are, however, serious difficulties with that interpretation.

It was one thing to alter the public record, but another to change history and to assume for purposes of the law of defamation that certain acts – which did take place – actually never took place after all.

The majority decision has a somewhat Orwelian character as it holds that the TRC Act now requires us to pretend that what actually happened in the past, never really happened. We have to pretend that all those people who were granted amnesty for the most heinous crimes (once again, am I defaming anyone by writing this?) never really did anything wrong. It forces a kind of legal amnesia on all of us and fails to heed warnings that we should never forget the past – lest we repeat it.

I hold no personal grudge against McBride. He was granted amnesty for a politically motivated act in which several women were killed. Just like De Kock and Coetzee, he took part in the amnesty process and his criminal record was expunged. Good for him. Unlike De Kock and Coetzee his deeds formed part of the liberation struggle.

Personally I do not believe his conviction for acts for which he was granted amnesty (but which the majority in the SCA would rather us not mention at all) disqualifies him from being a police chief. The fact that he is alleged to have crashed his car after a day of heavy drinking, that he is further alleged to have obtained a fake medical certificate to cover this up and is alleged to have intimidate witnesses, might well – if proven – disqualify him from ever holding any job, but that is for a court to decide.

But the principle seems important. A ruling that the TRC amnesty process requires us to suddenly be struck by a dangerous amnesia about the past, is destructive and illogical. In a democracy with a free media it is impossible to rewrite the past and to pretend proven facts never happened. That is what the SCA majority in effect requires us to do. I do not want to have any part in perpetuating those kinds of lies and the rewriting of history. Granting all those criminals amnesty was bad enough. Surely it is a bridge too far to expect us to forget they ever did those things.

Both the Constitutional Court and the Labour Court have already made clear that although affirmative action is constitutionally mandated and sanctioned by the Employment Equity Act, representativity cannot be the only criteria used to decide on the appointment or promotion of an individual. The Employment Equity Act had to be interpreted in the light of the Constitution – especially section 9(2) of the Act which prescribes at least three conditions for a valid affirmative action policy.

As the Constitutional Court found in the case of Minister of Finance v Van Heerden, for an affirmative action plan to be valid there had to be a plan (not random preferential treatment) in which the overwhelming majority of the group targeted for advancement had to consists of individuals who belonged to a group who had suffered from past unfair discrimination.

Second, the measures had to be designed to protect or advance those disadvantaged by past discrimination. This meant that the measures had to be reasonably capable of achieving its goal. If the measures were arbitrary, capricious or displayed naked preference it would not be constitutionally valid.

Third, the measures used had to promote the achievement of equality in the long term. While the achievement of this goal may often come at a price for those who were previously advantaged (in other words, whites), the long-term goal of our society is a non-racial, non-sexist society in which each person will be recognised and treated as a human being of equal worth and dignity. In assessing therefore whether a measure will in the long-term promote equality, it should be asked whether the measures constituted an abuse of power or imposed such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened.

The Employment Equity Act reflects this careful balance struck by the Constitutional Court between the important goals of correcting past injustices and challenging inherent pro-white racial bias in appointment and promotion on the one hand, and guaranteeing respect for the human dignity of excluded individuals on the other.

The Act places a positive duty on employers to implement corrective measures but places several limits on the way this could be done.

First, it could not be done through the imposition of rigid employment quotas but rather had to be done by setting (and trying to meet) certain targets for each category of employment. Second, where there were inherent requirements for a job and members from designated groups (blacks women, the disabled) did not meet these requirements, white (often male) applicants who did meet these requirements could be appointed. Lastly, employment policies or practices which had the effect of placing an absolute barrier on the appointment or promotion of white employees would not be allowed.

In the case of Barnard she applied twice for a promotion. Twice she was recommended for the promotion and twice this recommendation was rejected by police management because her appointment would not have advanced the achievement of the race targets for that level of employment in the SAPS. Twice no other appointment was made despite the fact that other ostensibly suitably qualified candidates with far lower scores than Barnard had applied.

It is important to note that the panel which recommended Barnard’s promotion seemed to have been slightly confused. While it found that some black applicants were suitably qualified for the post (but not as qualified as Barnard), they also found that if any of them were appointed “service delivery” would have suffered. This suggests that the other applicants were not really suitably qualified, a view that the National Police Commissioner seemed to have endorsed by failing to appoint any of the other candidates, thus leaving the vacancy unfilled.

The Labour Court found that it was not rational to leave a post unfilled merely because the appointment of suitably qualified white candidate would not have advanced the employment equity goals of the employer. Where service delivery would suffer if the black applicant was appointed over a more qualified white one the white candidate had to be promoted. As I read the judgment, the question was really whether there were suitably qualified black candidates to appoint. In this case there were none because the appointment of any of the black candidates would have impacted negatively on service delivery, so the post was left vacant rather than appoint the white candidate. This was impermissible.

If a suitably qualified black candidate had applied (in that his or her appointment would not have negatively affected service delivery) it would have been perfectly legal to appoint that black candidate over the white candidate – even where the selection panel thought the white candidate was the best candidate for the job.

The judgment therefore has an important but limited effect on the way in which the application of affirmative action should be understood. It does not constitute a rejection of affirmative action, but merely confirms, first, that an unqualified black candidate could not be appointed above a qualified white candidate, and second, that a white candidate could not be denied appointment merely because no suitable black candidate applied for the job.

In my view the judgment therefore strikes the correct balance between the need for affirmative action, on the one hand, and the need for effective service delivery on the other. “Merit” (however one might define this nebulous concept) must play a role, but it must not play the only role when appointing or promoting members of the civil service or police. Race must also play a role, but it cannot play the only role when appointing or promoting members of the civil service or police.

The problem with affirmative action is that these rules are often ignored when affirmative action is used as a smoke-screen to hide nepotistic or corrupt appointments of friends and family members who are not qualified for a job. It’s the employment equivalent of Julius Malema’s company obtaining R140 million worth of tenders in Limpopo despite not having any obvious qualifications to deliver the work contracted for. Opponents of affirmative action point to such cases to challenge the correctness of applying affirmative action at all. In this they are wrong.

Details are still sketchy, but the initial legal question is clearly whether Simelane has the power to stop the trial half way through the prosecution. Section 179(5)(d) of the Constitution allows the NDPP to drop charges against an accused, but only when this is allowed in terms of the prosecution policy agreed to between the NDPP and the Minister of Justice. I might be missing something, but section 179(5)(d) of the Constitution does not seem to allow the NDPP to stop a trial already in progress.

However, the prosecutor (not the NDPP) is empowered to stop the trial after a plea has already been entered, but only in very limited circumstances. The prosecution policy states as follows:

Criminal proceedings may sometimes be stopped after a plea has already been entered. This would normally only occur when it becomes clear during the course of the trial that it would be impossible for the State to prove its case or where other exceptional circumstances have arisen which make the continuation of the prosecution undesirable.

If a prosecution is stopped, an accused will be acquitted and may not be charged again on the same set of facts. A prosecutor may therefore not stop a prosecution, unless the Director of Public Prosecutions or his or her delegate has consented thereto. Such decisions should therefore be made with circumspection.

The prosecutor may therefore stop the case in “exceptional circumstances”. One imagines this is rather unlikely as prosecutors are usually prosecuting a case because they think it is winnable. A prosecutor is also unlikely to agree that there was prosecutorial misconduct in a case run by him or her and would – correctly, in my view – defer to the judge on whether there was any misconduct and if there was, whether it fundamentally affected the fairness of the trial.

However, section 179(5)(c) states that the NDPP “may intervene in the prosecution process when policy directives are not complied with”. If Simelane thus wants to stop the Selebi trail he will have to rely on this section and such a move will have to be based on evidence that the prosecuting policy was flouted. The relevant section of the prosecution policy states that:

prosecutors should present the facts of a case to a court fairly. They should disclose information favourable to the defence (even though it may be adverse to the prosecution case) and, where necessary, assist in putting the version of an un-represented accused before court.

A credible submission by Selebi’s lawyers will have to provide hard evidence that demonstrates prosecutorial misconduct. A fabrication of evidence by prosecutors will obviously constitute such misconduct. As the Supreme Court of Appeal has made clear evidence that a prosecution was brought for an ulterior purpose would not constitute such conduct as long as the prosecutor always had the intention to secure a conviction.

Even then, given the fact that the trial is already underway and given the question mark hanging over Simelane’s credibility and independence, it would be advisable for Simelane not to intervene in this case. If evidence of misconduct exist, the honest option would be to put this before the court and to argue that it would be impossible for Selebi to get a fair trial. It is always better in such cases for a court – and not for a tainted political appointee – to make a decision about the ability of Selebi to get a fair trial. That way the credibility of the criminal justice system would not be placed under undue stress.

If the ETV repot is correct, it would represent Simelane with his first real test. Will he act in the interest of justice with an eye towards securing the credibility of the NPA and the criminal justice system or will other factors persuade him to intervene in this matter? Only time will tell.