Several years ago I was involved in an argument with the principal of a high school in Polokwane. The principal had endorsed unfair discrimination against gay and lesbian learners during a school assembly (comparing homosexuality to Satanism) and I was trying to get the principal to repent and to respect the existing law. The principal was evidently an old style beneficiary of Broederbond-style affirmative action gone wrong and was clearly not the sharpest tool in the shed. He refused to acknowledge the existence of the sections of various Acts prohibiting his school from unfairly discriminating against gay and lesbian learners, choosing to repeat his own narrow-minded, racist and homophobic views as justification for his actions.

As it dawned on me that the principal lacked the basic intelligence and academic literacy required to engage in a logical and coherent debate, I am ashamed to admit I finally reverted to name-dropping. Pretending to be good friends with the then-Minister of Education, I threatened to report him to my good friend, the minister, if he did not relent.

But even this intellectually challenged man did not fall for my bluff. He knew as well as I did that I had no influence with the Minister of Education. I could drop her name a million times until her name shattered into a million bright little pieces at my feet – he would be safe in ignoring my increasingly shrill demands and threats. He knew I had no influence or power over the minister and hence that the name-dropping was nothing but an empty gesture to try to get him to do what his reactionary politics prevented him from doing.

Now, of course, the situation would have been different if I was widely known to be a friend and financial benefactor of the minister. The principal would probably have quaked in his boots if it was widely known that I were the minister’s financial benefactor and that I had been bankrolling the minister and her family. He would have jumped and done as I asked if he had thought that the minister would do anything I told her to do because I had bribed the minister. In those circumstances, not even a person as stupid as that principal would have dared to ignore my complaints. He would have been far too scared of losing his job or being transferred to Putsonderwater High School.

But because the principal correctly suspected that I would never pay bribes to a politician, because we both (probably correctly) assumed that the Minister of Education would never have taken bribes from me or anyone else, and because it was therefore highly unlikely that I had the Minister of Education in my pocket to do as I ordered her to do, that principal had no problem in ignoring my pathetic attempt at name-dropping.

The admission by Minister Radebe that “names were dropped”, is therefore telling. Using the passive voice – a classic technique of evasion – Minister Radebe on Sunday said that the Minister of Defence, the Minister of Transport and President Jacob Zuma’s names were dropped (by whom we are not told) to officials to get them to break the law.

Even if we believe Minister Radebe when he claims that no minister, nor the president, gave direct instructions to any of the officials who orchestrated this abuse of state power, the very appeal to “name-dropping” as a justification for exculpating the politicians, suggest that corruption is at the heart of this scandal. For some reason – which might or might not be linked to activities that are prohibited by the Prevention and Combatting of Corrupt Activities Act – all the officials miraculously believed that when the Gupta’s drop the president’s name, they better jump – after asking the Gupta’s how high they were required to jump.

The most telling and shameful aspect of Guptagate is that – even on the version of events dished up to us by the likes of Minister Radebe – the officials all believed that they had to follow the Gupta’s request or face the consequences from the president and the ministers whose names were dropped. On Radebe’s own version, then, senior officials believed that the president and his ministers were corrupt and willing to break the law and endanger South Africa’s security. On this version officials wilfully broke the law and endangered South Africa’s national security because they thought their jobs depended on fulfilling the corrupt and unlawful wishes of the President and his Ministers.

This is an extraordinary admission to make and I am not sure the minister and his colleagues have given sufficient thought to what they are admitting to. They are, in effect, telling us that the culture of corruption and bribery around the president and the government he leads is so deeply entrenched that – without even having to take instructions from the president or one of his ministers and regardless of what the actual situation might be – senior officials would break the law and endanger national security to please the Guptas, because they believed the Guptas had bribed President Zuma and could instruct him what to do.

What is equally astonishing is that Minister Radebe and his colleagues have failed to ask the obvious question that flows from this unintended admission of government entanglement with corruption: why would the officials believe that the name-dropping by the Guptas (or their underlings) of President Zuma’s name was anything but the empty threats made by any other citizen? After all, those officials would have been unimpressed if any of us ordinary citizens, who (unlike the Guptas) had not been paying off the bond on the house of one of the president’s wives and had not co-opted the president’s son as a business partner, had dropped President Zuma’s name in order to get those officials to break the law. I could drop President Zuma’s name a million times, and I would still not get a single official to allow me to land a civilian plane at Waterkloof Air Force base.

When Radebe claims that the scandal shows that name-dropping in the public service had to be classified as a form of gross misconduct, he is either demonstrating a tenuous grip on logic, or he is wilfully trying to mislead the public. Officials do not drop names. People like the Guptas drop names. They drop names because they have paid their dues and know that the officials will feel pressured by the name-dropping. They drop names because they have names in their pockets to drop. People who drop names have those names in their pockets because they are willing to pay for the privilege.

It is not the officials who are at fault. It is the business people who buy the influence of powerful politicians with offers of financial and other assistance (and the powerful politicians who allow this to happen), who are at fault. And there is no need for new legislation to deal with this problem. This kind of buying of influence that makes name-dropping effective is all outlawed by the Prevention and Combatting of Corrupt Activities Act. This is, not so incidentally, the very Act under which President Jacob Zuma was going to be prosecuted before charges against him were mysteriously dropped. (I guess President Zuma must have dropped his own name to get the National Prosecuting Authority conveniently to make those charges go away.)

So, dear reader, when you hear a politician bemoaning the culture of name-dropping, ask that politician whether he or she could take a lie detector test to promise that he or she had never received any financial or other benefit from any one of those rich businessmen and -women who so love to drop the names of our politicians. Then watch as that politician squirms to avoid answering your question.

The University of KwaZulu-Natal introduced the compulsory isiZulu classes to promote “nation-building” and to bring “diverse languages together”. isiZulu is among the most widely spoken official languages in South Africa and is the mother tongue for about 23% of the population.

Section 6 of the Constitution recognizes 11 official languages in South Africa and requires that “all official languages must enjoy parity of esteem and must be treated equitably”. (The late Kader Asmal was particularly proud of the inclusion of the phrase “parity of esteem” in section 6 as he borrowed this phrase from the Irish Constitution.)

This does not mean that the Constitution requires all languages to be treated in exactly the same manner in South Africa. It only requires that languages must be treated fairly, depending on how widespread the usage of a particular language is in a province and taking into account other considerations of practicality and expense. Just like Afrikaans could be treated less favourably in Limpopo and KwaZulu-Natal than in the Western Cape, so isiXhosa could be treated less favourably in Mpumalanga and Free State than in the Eastern Cape.

Despite these constitutional provisions, we all know that in South Africa  – for many elites, at least – English is more equal than other official languages. English is also the only language in which many white South Africans are conversant. Because English is a language spoken by the leaders of economically and military dominant nations like the United States, monolingual English speakers who have never travelled to South America, parts of Europe (like Spain) or China could go through life laboring under the bizarre misconception that all clever and educated people speak English.

Despite the fact that section 6 of the Constitution recognizes the “historically diminished use and status of the indigenous languages” (other than Afrikaans) due to the effects of colonialism and apartheid, and requires the state to “take practical and positive measures to elevate the status and advance the use of these languages”, little has actually been done by the South African state to promote multilingualism in society.

I think it a brilliant idea for a University to require all first year students to study the dominant neglected indigenous language of the region in which the university is situated (in other words, not Afrikaans or English, the two languages officially promoted and advanced during apartheid and the two languages still most economically dominant in South Africa). It is a pity that all other South African Universities won’t follow suit and that, say, the University of Cape Town is not going to require all first year students to study isiXhosa.

By officially requiring first year students to study a neglected indigenous language, a University would signal its willingness to engage in a practical manner with the cultural diversity of its surroundings. The move would help to promote an awareness of multilingualism among those South Africans who go through life only speaking English. It would also promote understanding and respect for diverse cultures, because language and culture is so closely connected.

Of course, there is nothing in the Constitution that prohibits a University from requiring students to take a specific course. Just as a University can force all students to take a course in English, in Media Studies or in Mathematics, so it can force all students to take a course in isiZulu. Students who do not like taking that compulsory course can always choose to study at another University.

For obvious reasons of fairness, I would not support a move by a University to force students to take one of the languages unfairly advantaged by apartheid (in other words, Afrikaans and English), but even if a University did require study of such a language, this would not be unconstitutional. It would just be politically untenable and unfair.

The move by the University of KwaZulu-Natal is not that different from the decision by the University of the Free State that all first year students be required to pass a course that engages critically with both local and global issues. The Free State course – another brilliant idea that is sadly not being followed by other Universities – is aimed at promoting diversity literacy among students and to promote social cohesion amongst students. Students who wish not to take such a course can, of course, choose to register, say, at Walter Sisulu University where taking such a course is not required.

Of course, the situation is slightly different when a University does not only require all students to take a particular language course, but when it decides to make a particular language (not widely spoken by potential students) the medium of instruction. If the University of KwaZulu-Natal required half of all lectures to be taught in isiZulu, interesting legal and moral questions would arise. Such a move would exclude most white students from attending the University and could arguably be seen as unfairly discriminating against those excluded students on the basis of race.

The issue would be complicated by the fact that isiZulu is a language diminished by apartheid and by the fact that white people are generally still reaping the benefits of apartheid, making it more difficult for white people to convince a court that an exclusionary policy unfairly discriminated against them. I am therefore in two minds about whether the compulsory use of isiZulu as a language of instruction at the University of KwaZulu-Natal would be found to be unconstitutional or not. (It would probably be academically unwise, because it would preclude many good students from attending that University.)

The situation is more problematic at an institution like Stellenbosch, where an insistence on the exclusive use of Afrikaans as a medium of instruction in certain classes would unfairly discriminate against many black South Africans. As Afrikaans was given preferential treatment by the apartheid state and as many black South Africans are not conversant in it, the exclusive use of Afrikaans as a medium of instruction would unfairly rob many black South Africans of the opportunity to be taught at one of South Africa’s primary higher education institutions (subsidized by taxpayers money).

That is why the move by the University of Stellenboch away from the exclusive use of Afrikaans as a medium of instruction is not only fair but probably also constitutionally required. The move is also good for the University, as it would allow the University to draw from a wider pool of excellent students (including excellent black students), thus increasing the quality of students attending that institution.

Be that as it may, I am surprised that all South African Universities are not promoting previously diminished indigenous languages through their various admissions policies. Why not award extra admissions points to all University applicants who can speak a diminished indigenous language like isiXhosa, isiZulu, Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga and isiNdebele as part of the affirmative action admissions policy of a University?

If Universities were to signal to potential students that they would gain easier access to that University if they spoke languages other than Afrikaans and English, many parents would insist that the school their children attend offer a wider range of indigenous South African languages and many pupils will then take such languages. This would promote wider multilingualism (and with it, social cohesion) in society – especially amongst the educated elite.

It seems to me that many of us who grew up white in apartheid South Africa, were deprived of an important tool for navigating our world when we were taught only in Afrikaans and English. We are lesser human beings for being unable to speak other indigenous South African languages or for being able to speak it only very badly. The move by the University of KwaZulu-Natal would ensure that the same damage is not inflicted on a new generation of white students.

When journalists reported that a plane full of wedding guests (attending the lavish wedding organised by the politically connected Gupta brothers) had landed at Waterkloof Air Force base, they probably did not realise that they were potentially exposing themselves to the risk of a three-year prison term for breaching the provisions of the National Key Points Act. This is because Waterkloof Air Force base has allegedly been declared a National Key Point – although there is no way of knowing whether this is true or not because the list of National Key Points is itself a state secret. (For all we know there is no list of places declared as National Key Points at all and our government makes up National Key Points as they see fit in order to cover up corruption and maladministration – we simply do not know.)

But when, first, Gwede Mantashe and then later several cabinet ministers also commented on the scandal, they must have known that they were running the risk of breaking an infamous Apartheid law – if Waterkloof Air Force base is indeed a National Key Point as alleged. But because they were trying to protect the president, they seemed to have shown little concern about the possible dangers of breaching the provisions of the National Key Points Act – and rightly so. Pity the same level-headed attitude about this Act is not in evidence as far as the corrupt use of public funds to upgrade the private home of President Zuma at Nkandla is concerned.

Section 10(2)(c) of the National Key Points Act states that any person who:

furnishes in any manner whatsoever any information relating to the security measures, applicable at or in respect of any National Key Point or in respect of any incident that occurred there, without being legally obliged or entitled to do so, or without the disclosure or publication of the said information being empowered by or on the authority of the Minister… shall be guilty of an offence and on conviction liable to a fine not exceeding R10,000 or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment.

This section is rather broad. It prohibits any person from revealing any information about any “security measures” (or lack of security measures, one would assume) applicable at a National Key Point. It also prohibits anyone from furnishing any information on “any incident” of terrorism or subversion that had occurred at the National Key Point. However, we are not allowed to know which areas have been declared National Key Points and we are asked to trust the relevant Minister who claims at will that this or that site has indeed been declared a National Key Point.

This means that the journalists and the ministers who furnished information to the public about the landing of a private plane at Waterkloof Air Force base and the relative absence of security measures at the time, as well as the manner in which the guests on that plane was dealt with, might – at a stretch – inadvertently have revealed information about “security measures” applicable at Waterkloof and in theory might have committed an offence in terms of the National Key Points Act.

But I suspect the journalists and the ministers will be safe from criminal prosecution. Although the section is indeed absurdly broad, the Act does not prohibit anyone from providing any information about the National Key Point at all. It is clear that the Act does not prohibit anyone from revealing any information on non-security related measures or incidents at a National Key Point. On this basis the journalists and the ministers who revealed information about the landing of a private plane at a National Key Point might escape criminal prosecution. They might argue that they only revealed information on events that took place there and did not reveal what security measures are in fact in place at Waterkloof.

If this is correct and if the journalists and Ministers did not commit a criminal offence when they revealed details of the Gupta plane landing, then the claim by the Minister of Public Works that the report on the Nkandla scandal cannot be made public and must be discussed behind closed doors because Nkandla is a National Key Point is demonstrated to be pure nonsense invented to hide the truth about the abuse of public funds. Just as the journalists and the ministers were allowed to reveal information around the landing of a plane at Watekloof, we are also allowed to reveal information about the use of public funds for the upgrade of the private home of President Zuma at Nkandla.

Soon the Public Protector will finalise her report on the Nkandla scandal. In a futile attempt to protect the president, the very cabinet ministers who ignored the possible infringement of the National Key Points Act in the Guptagate saga will invoke this law to try and suppress that report. Those of us who might obtain a copy of the Public Protector’s report might do well to follow the example of the various ministers by ignoring the absurd law and publishing the Public Protector’s report.

As a complainant in the matter I expect to receive a copy of that report. Taking my cue from the Minister Jeff Radebe, I promise to publish it on my blog as soon as I receive a final version of that report. After all, I have no evidence that President Zuma’s Nkandla home has indeed been declared a National Key Point, and would take any claim to the contrary by the Minister of Public Works with a pinch of salt.

And even if Nkandla had indeed been declared a National Key Point as claimed, a report dealing with the use of public funds to upgrade the private home of the president will surely not reveal information about existing security measures at Nkandla. For the same reasons the Ministers ignored section 10(2)(c) of the National Key Points Act when they discussed the landing of a private plane at Waterkloof, I will also ignore that section when provided with the Nkandla Report by the Public Protector.

Surely, if we agree with Minister Jeff Radebe, who said during the Guptagate scandal that “the truth shall set you free”, we all have a duty to expose rather than cover up corruption. It is for that reason – and because it will not break any law – that the Public Protector’s Report on Nkandla must and will be made public.

When Mr William Whatcott – fired up by a queer religious fervor – distributed several flyers to the public of Saskatchewan in Canada in a campaign against what he clearly believes to be the abomination of same-sex love, he must have thought that his right to freedom of religion would trump the right of others to have their human dignity respected and protected.

Mr Whatcott’s pamphlets railed against “sodomites” who “want to share their filth and propaganda with Saskatchewan’s children!” (Mr Whatcott seems to have a rather morbid obsession with anal sex, children and exclamation marks – a rather odd combination, methinks.) In one pamphlet he claimed that “sodomites are 430 times more likely to acquire Aids and 3 times more likely to sexually abuse children!” In another that: “The Bible is clear that homosexuality is an abomination… Sodom and Gomorrah was given over completely to homosexual perversion and as a result destroyed by God’s wrath!” (Judging from these statements, poor Mr Whatcott labours under the misapprehension that only same-sex couples indulge in the delights of sodomy.)

The Saskatchewan Human Rights Commission found these pamphlets to be in breach of the prohibition on hate speech contained in the Saskatchewan Human Rights Code. Mr. Whatcott – seemingly not a man to take such a ruling lying down, so to speak  – appealed all the way to the Canadian Supreme Court, arguing that to the extent that the Saskatchewan Human Rights Code prohibition on hate speech precludes criticism of same-sex conduct or activity, it infringes on the right to freedom of religion. He argued that sexual conduct has long been a topic of religious discussion and debate, and that:

[o]bjection to same-sex sexual activity is common among religious people. They object because they believe this conduct is harmful; and many religious people also believe that they are obligated to do good and warn others of the danger.

The Canadian Supreme Court, in Whatcott v Saskatchewan Human Rights Commission, rejected these arguments, affirming the principle that the legislature could impose hate speech codes that limited the freedom of expression and the right to religious freedom of even those with strongly and sincerely held religious beliefs – if this was done in order to protect others from serious harm.

In a judgment that would alarm fundamentalist Christian preachers across South Africa (the delights or horrors – as the case may be – of same-sex sodomy being their bread and butter, so to speak) the Canadian Supreme Court affirmed the principle – also applicable in South Africa – that hate speech should be judged objectively with reference to the effects of the speech and not subjectively with reference to the feelings of those targeted by the speech.

Courts should ask whether “when considered objectively by a reasonable person aware of the relevant context and circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred”. In the course of this assessment, a judge or adjudicator is expected to put his or her personal views aside and to base the determination on what he or she perceives to be the rational views of an informed member of society, viewing the matter realistically and practically.

The Canadian Court stressed the narrow application of hate speech prohibitions. Unlike the South African Equality Act – which prohibits speech that can reasonably be construed as having the intention to be hurtful – more serious harm is required in the Canadian hate speech regime before speech would be deemed unlawful. It was only when the effects of the speech would cause “detestation” and “vilification” that the speech could be prohibited.

Representations that expose a target group to detestation tend to inspire enmity and extreme ill-will against them, which goes beyond mere disdain or dislike. Representations vilifying a person or group will seek to abuse, denigrate or delegitimise them, to render them lawless, dangerous, unworthy or unacceptable in the eyes of the audience. Expression exposing vulnerable groups to detestation and vilification goes far beyond merely discrediting, humiliating or offending the victims…. The act of vilifying a person or group connotes accusing them of disgusting characteristics, inherent deficiencies or immoral propensities which are too vile in nature to be shared by the person who vilifies.

The Canadian Supreme Court also warned against the use of hate speech provisions to limit legitimate forms of expression:

Hate speech legislation is not aimed at discouraging repugnant or offensive ideas. It does not, for example, prohibit expression which debates the merits of reducing the rights of vulnerable groups in society. It only restricts the use of expression exposing them to hatred as a part of that debate. It does not target the ideas, but their mode of expression in public and the effect that this mode of expression may have.

In South Africa, people have a tendency wrongly to invoke the hate speech provision in the Equality Act whenever somebody they do not like (or who they fear) says nasty things about them or about the group they belong to. (The Equality Act itself also draws the hate speech net far too wide and is probably unconstitutional as a result.)

So, for example, if I were to say that pastor Errol Naidoo is a smarmy homophobe, somebody will inevitably claim that I am making myself guilty of hate speech, when all I am doing is expressing my opinion about the behaviour and attitudes of a public figure whose obsession with sodomy and sex I find rather queer. Similarly, if somebody complains about the racism of a fellow South African he or she will often be vilified for indulging in so called “hate speech” when all he or she is doing is challenging the prejudices of a fellow citizen.

It is intellectually lazy to invoke the spectre of hate speech every time somebody says something you find objectionable or hurtful. Often people do so because they are incapable of pointing out why the objectionable statements are factually wrong or morally reprehensible. Often they cry “hate speech” because of an irrational fear born out of their own prejudices, instead out of a concern for the harmful effects of truly hateful speech that is aimed at stopping an argument.

For example, it would be easy to report pastor Errol Naidoo to the Equality Court for regularly indulging in hate speech against gay men and lesbians. It would take a bit more work to develop an argument pointing out the inherent contradiction between his expressed fear and hatred of consensual same-sex love and his purported endorsement of Christian doctrine regarding the all-encompassing and healing love of God. An effective challenge to the good pastor’s reasoning would require some engagement with the perverted morality that underlies the promotion of discrimination and hatred under the guise of spreading love and compassion. You would have to show that it is not very rational to say: I love you so much that I would like to ensure that you continue to be vilified and discriminated against.

I would also have to show that, psychologically, the pastor’s obsession with anal sex would suggest that he is fascinated, maybe even entranced – rather than repelled – by the notion of sodomy. That would take some intellectual work. It would also be more fun than making legal arguments before a magistrate.

Moreover, I am personally rather skeptical of the strategic wisdom of using hate speech laws to try and stop uncomfortable or unpopular speech. I, for one, will not be approaching the Equality Court to prevent fundamentalist preachers from railing against “sodomites”. I always draw attention to such speech because I believe those who are so obsessed with the sexual acts of others do themselves and their arguments no favours. It always strikes me that their prurient and seemingly lustful focus on what other consensual adults do in the privacy of their own homes is more sad than harmful as it reflects badly on their own character – not on the character of those they aim to vilify.

But although I will not rush to the Equality Court in the wake of the Canadian Supreme Court judgment, the principle established in it that even religiously inspired hate speech remain hate speech, is timely. It reminds us that religiously inspired hatred remains hatred and its stench cannot be perfumed away by waiving about quotes from the scriptures. Hopefully the South African courts will follow this example when they are confronted with the same problem in future.

“Legal interpretation,” wrote the late Robert Cover from Yale Law School back in 1986, “takes place in a field of pain and death”, because acts of legal interpretation often impose violence upon others. So, when a court orders the eviction of penniless people from their makeshift homes, it uses the violence of the law to rob them of their dignity, turning them into potential criminals in the process. At night many homeless people are forced to break the law when they have to trespass on private property if they were to grab even a few hours of fitful sleep, often in the cold and the rain. Property rights, so it seems, are indeed invoked against the vulnerable and marginalised “in a field of pain and death”.

It is for this very reason that section 26(3) of the Constitution limits property rights by prohibiting anyone – including a municipality – from evicting someone from their home, or having their home demolished, without an order of court made after considering all the relevant circumstances. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) gives effect to this right, but extends the right to protect all those who unlawfully occupy not only homes but also land. An unlawful occupier protected by PIE (and who can therefore not be evicted from either land or home without a court order) is defined as “a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land”. In South Africa, only a court can order the eviction of any human being from either land or from a home.

On Wednesday 1 May 2013, the City of Cape Town’s so called “Anti-Land Invasion Unit” (a name harking back to the forced removals of the Apartheid era), acting like vigilantes, demolished the homes of 125 people who had unlawfully occupied land in Philippi on the outskirts of the city. At first the city claimed that this demolition and eviction was done in accordance with the imaginary “Protection of the Possession of Property Act”. There is no such Act on the statute books in South Africa: the city had lied about its existence and about having legal backing for its eviction without obtaining a court order. After the City was caught out in this lie, it provided another justification for the unlawful eviction.

The City, enthusiastically inventing a legal argument – “in a field of pain and death” – to justify its unlawful actions, invoked the common law notion of “counter-spoliation” which, it argued, allowed a landowner to resist illegal attempts to disturb their possession without obtaining a court order. Counter spoliation allows someone to retake possession of his or her property before the person has actually been deprived of that property. For example, if a thief snatches your bag in the street and you trip the thief and take back the bag you can invoke the principle of counter spoliation. However, you cannot go to the thief’s house later that day and snatch back your bag. That would constitute an unlawful instance of vigilantism.

The City claimed that the structures were not occupied (although pictures of the evictions suggest this is not true as the personal belongings – including furniture and clothes – can clearly be seen inside the houses) and that the “Anti-Land Invasion Unit” was entitled to “continue to dismantle illegally built structures every time they are erected and before they are occupied.” But from a legal point of view, it is entirely irrelevant whether the structures were occupied or not.

In Ndlovu v Ngcobo; Bekker and Another v Jika the Supreme Court of Appeal (SCA) made it clear that PIE applies to the eviction of (who it inhumanely called) “squatters”, whom Harms JA defined as those who “unlawfully took possession of land”. In the same judgment Olivier JA referred to “the situation where an ‘informal settler’ (a squatter) moves onto vacant land without any right to do so and without the consent of the landowner or his or her agent”. In City of Cape Town v Rudolph and Others the Cape High Court correctly interpreted these statements as showing that PIE also applied to those who the City of Cape Town might call “land grabbers”.

As the PIE Act does not only protect those who occupy homes but also those who occupy land it is difficult (perhaps impossible) to see – especially in the light of the precedent of the High Court and the SCA quoted above – that even those homeless people who have settled on land and are still busy erecting informal shelters on the land they are occupying, falls outside the ambit of the protection of PIE.

This view is affirmed by the dissenting judgment in the Ndlovu case where Olivier stated that:

There seems to be general agreement that PIE applies to the situation where an informal settler (a squatter) moves onto vacant land without any right to do so and without the consent of the landowner or his or her agent. There are thousands, if not millions, of such squatters in our country. They are usually unemployed, the poorest of the poor, and live with their families in self-erected tin, cardboard or wooden shacks.

None of the reported judgments in which the application of the PIE Act was in issue proposed the interpretation put forward by the City Council that unlawful occupiers of land are only protected by the PIE Act once they erected homes and actually lived in those homes.

In the Rudolph judgment the High Court also pointed out the obvious fact that the PIE Act has now drastically curtailed the common law rules of spoliation and counter spoliation as far as property is concerned.

To hold that the common-law remedies available in our law for the eviction of unlawful occupiers exist alongside the remedies provided for in PIE, at the option of the applicant, or at all, would fundamentally undermine the overall purpose of PIE and particularly the purpose of the protections provided for therein.
The idea that an owner can avoid the peremptory provisions of PIE by electing to use the common-law remedies to evict an occupier from land must be rejected.

In Port Elizabeth Municipality v Various Occupiers (Port Elizabeth Municipality) the Constitutional Court affirmed this view that the PIE Act has now extinguished many of the common law rules relating to property, stating that through the adoption of PIE:

The former objective of reinforcing common law remedies while reducing common law protections, was reversed so as to temper common law remedies with strong procedural and substantive protections; and the overall objective of facilitating the displacement and relocation of poor and landless black people for ideological purposes was replaced by acknowledgement of the necessitous quest for homes of victims of past racist policies. While awaiting access to new housing development programmes, such homeless people had to be treated with dignity and respect.

Arguing that the PIE Act now expressly requires the court “to infuse elements of grace and compassion into the formal structures of the law”, the Court in effect said that the court had to be aware of the violence inherent in the strict application of old style property rights and had to guard against the extreme effects that homelessness and dispossession would have on the dignity of those who were not lucky enough or connected enough to have a house of their own.

It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when state action intensifies rather than mitigates their marginalisation. The integrity of the rights-based vision of the Constitution is punctured when governmental action augments rather than reduces denial of the claims of the desperately poor to the basic elements of a decent existence. Hence the need for special judicial control of a process that is both socially stressful and potentially conflictual.

Of course, the PIE Act does allow the court to unleash the violence of the law on vulnerable and marginalised people who unlawfully occupy the land of others and does not prohibit a court from ordering the eviction of unlawful occupiers in certain circumstances. The capitalist system, from which us middle class citizens often benefit so handsomely, requires the law to impose some protection of property rights and the courts have to interpret and apply those legal provisions in that infamous “field of pain and death”.

But the PIE Act does prohibit the City of Cape Town’s self styled Anti-Land Invasion Unit from taking the law into its own hands – from playing God, as it were. It is not allowed to evict unlawful occupiers from land and neither is it allowed to demolish their homes unless it has obtained a court order to do so. Where a limited number of occupiers have only recently settled on private land, a court will almost always grant such an order. Where public land is in issue, the courts should be more reluctant to order the eviction. After all, where will homeless people go when evicted? It is not as if people “grab land” because they are too stingy or callous to buy a R10 million house in Clifton. They often have a stark choice: either occupy land illegally or become entirely homeless.

The claim by the City Council that it is acting under the cover of law is therefore not only anti-poor, but also – this once – untrue. When it claims otherwise, it is merely trying to avoid responsibility from flouting of the Rule of Law (the very Rule of Law which the DA claims to revere).

The Secrecy Bill is ostensibly aimed at protecting the “national security” of the country by empowering members of the cabinet, the various security services (including the police and the military) and those bodies overseeing the security services to classify “information” as “confidential”, “secret” or “top secret”. The Minister of State Security is further empowered to grant the power to classify documents to any organ of state or part thereof – although this power cannot be granted to municipalities.

This means that the Minister of State Security has wide powers to authorise other bodies – after approval by Parliament – to classify information. If the Minister (and the majority party in Parliament) wishes to, they could empower any department of state or administration in the national or provincial sphere of government, any other functionary or institution exercising a public power or performing a public function in terms of any legislation and any owner of a facility or installation declared as a National Key Point, to classify information. The head of the Natal Sharks Board, the owner of President Zuma’s private house at Nkandla and the Vice Chancellor of UCT could all be empowered to classify information to protect the “national security” of South Africa.

‘‘Information’’ that can be classified is broadly defined to include not only information contained in documents and electronic recordings but also “verbal announcements”. This means that verbal announcements, say, made to troops sent to the Central African Republic about which private business interests they are tasked to protect could be classified as top secret. Verbal communications between the Guptas and the President or between the Guptas and any Minister or other official would also constitute “information” that could potentially be classified.

Although information can only be classified to protect “national security”, the Bill defines “national security” in a manner that is indeterminate and completely open-ended. The Bill thus states that “national security includes” – but is therefore not limited to – threats against the Republic based on terrorism and sabotage and acts directed at undermining the capacity of the Republic to respond to the use of, or the threat of the use of, force and carrying out of the Republic’s responsibilities to any foreign country.

Because the definition is open-ended, it is conceivable that a cabinet minister or the owner of Nkandla could interpret “national security” in a far broader manner than the examples mentioned in the definition of national security contained in the Bill to include almost anything that, in the mind of the classifier, would threaten “national security”. It would matter not whether this is information about how much money was spent on the upgrade of the private house of President Zuma at Nkandla, how often the Guptas meet with President Zuma and how much money President Zuma and his family have received from the Guptas - as long as it could be shown that the information was believed to involve “national security” it would be in line with the provisions of this Bill.

This means that the Secrecy Bill potentially empowers many people at various levels of government (and many organs of state) to censor information in the name of protecting “national security”, thus potentially imposing drastic limits on the right to freedom of expression and the right of access to information. It does so in two interrelated but distinct ways.

First, when information is classified anyone who leaks or holds or publishes the information commits a criminal offence, meaning that whistle blowers in possession of incriminating evidence of maladministration, “dirty tricks” by the securocrats, evidence of corruption or of criminal activities will think twice before leaking such information to the media for fear of being sent to jail for up to 25 years. Second, journalists and editors will be fearful of receiving any such information and of publishing it for fear of being sent to jail for long periods of time. The potential chilling effect of this law is therefore obvious and real. Only the foolhardy and exceedingly brave will leak or publish classified information – even if the information was wrongly classified to cover up criminal activity or maladministration.

In order to pass constitutional muster these potentially unconstitutional restrictions on the freedom of expression and information will only be justified if it can be shown that the law struck the appropriate balance between the need to protect national security, on the one hand, and the need to protect the rights of citizens to the free flow of information, on the other, and if less restrictive means could not have been used to protect national security in an appropriate manner.

Section 8 of the Bill purports to limit the potentially broad scope of the Bill by stating that classification of state information is justifiable only when it is “necessary to protect national security” and by stating that classification may not under any circumstances be used to conceal corruption or any other unlawful act, to avoid criticism, or to prevent embarrassment to a person, organisation, or organ of state or agency. The section also includes other guidelines which – if meticulously and honestly followed by the classifier – would substantially narrow the scope of the Bill.

Section 45 of the Bill criminalises the wrongful classification of information while section  46 further determines that a “head of an organ of state or an official of such organ of state who wilfully or in a grossly negligent manner fails to comply with the provisions” of the Bill could be sentenced to two years’ imprisonment. These safeguards would go some way to deter abuse of the Bill, but only if an independent body existed to investigate and to prosecute those who wrongfully classify documents to hide corruption or avoid embarrassment. Of course, there is no independent body that will dare to investigate these crimes and – unless a miracle occurs and a truly brave and impartial person is appointed as National Director of Public Prosecutions – such cases will never be prosecuted either.

Those who defend the constitutionality of the Bill will rely heavily on section 41 of the Bill to argue that it limits the rights no more than is necessary. This is so because the section provides a defence to those charged and prosecuted for disclosing even wrongly classified or corruptly classified information in a limited number of cases, included where the disclosure of the information is authorised by other legislation and where the classified information reveals criminal activity, including any criminal activity in terms of section 45 of the Bill.

Section 41 indeed provides an important safeguard for potential whistle blowers. Whistle blowers and journalists who are exceedingly brave (or just plain stupid or reckless about their own freedom and well-being) might well be prepared to take their chances in the hope that it could be shown that the leaked or published classified information indeed reveals criminal activity.

However, how this defence would work in practice is unclear. In terms of our Constitution every person is presumed to be innocent by a court of law until proven guilty. It is therefore unclear whether this defence in section 41 would be available to a whistle-blower or a journalist who receives of publishes classified information that reveals criminal activity if those involved in the criminal activity have not actually been convicted of a crime. How will a whistle-blower or a journalist be able to convince a court that the information reveals criminal activity if the criminal activity has not been successfully prosecuted? And how will the criminal activity be successfully prosecuted when the information revealing that criminal activity remains classified? This defence might therefore well turn out to be illusory.

Besides, the defence says nothing about wrongly classified information or information that do not disclose criminality, but does disclose venality, maladministration, abuse of power or just embarrassing information that would harm the political fortunes of those who classified it. Leaking or publishing such information would remain a criminal offence, which means that there would be a huge incentive for classifiers to classify information that reveals maladministration, abuse of power or other wrongdoing that would not rise to the level of actual criminality.

For example, although the use of more than R200 million of public funds to upgrade the private residence of President Zupta at Nkandla was highly embarrassing for the president, no one has been charged with any criminal offence and it is far from clear that a criminal offence was committed when this public funds were allocated to enrich the president. That means if the Secrecy Bill had been in place, all information about the Nkandla upgrade might well have been deemed national security information (protecting a so called “National Key Point”) and journalists who had published articles on the scandal might then have faced a five-year prison term.

The Act also provides for a Review Panel to review classifications of information but the panel is appointed by the majority party in Parliament and is therefore not independent. You can appeal the classification of information, but as it is a criminal offence to be in possession of classified documents it is unclear how you can appeal the classification of documents you are not allowed to know about and that you are not allowed to have in your possession.

In conclusion, given the indeterminate definition of “national security” in the Bill, the potentially broad powers granted to a wide array of people to classify documents, the lack of effective mechanisms to prevent the wrongful classification of information, the Kafkaesque review and appeal mechanisms and the limited and ineffectual defences provided for those who leak or publish classified information that reveals criminal activity or maladministration, I would be more than surprised if the Constitutional Court certifies this Bill as constitutionally valid.

It is not a secret that President Zuma and members of his family are financially entangled with the Guptas. (Previously, President Zuma was financially entangled with Schabir Shaik in what the High Court called a “mutually beneficial symbiosis” — before the relationship broke down when that encrypted fax temporarily landed Shaik in jail — and at death’s door — for corrupting and bribing Zuma.)

Of course, at present there is no proof that the “mutually beneficial symbiosis” between the Zuma family and the Gupta family is directly to blame for the Waterkloof fiasco, as there is no proof that President Zuma himself instructed officials to break the law in order to help his Gupta pals. It might be that the private plane was received at Waterkloof military base, that the guests entered South Africa without any customs inspection, and that the guests were escorted by specialist policemen all the way to Sun City without Zuma’s personal knowledge. The Guptas have always bragged about their connections with the Zumas and this might have led the relevant politicians and the officials that take orders from them to break the rules to accommodate the Gupta wedding party. Sometimes in order to receive preferential treatment all you need is for people to know you have the Big Man in your pocket. A wink and a nod will do the rest.

What are the elements of the “mutually beneficial symbiosis” between the Zuma family and the Gupta family? Rumours have swirled around the nature of the financial entanglement of the Guptas with the Zuma family and the influence this has bought the Guptas. As there is no independent corruption fighting body in South Africa that is independent enough, brave enough and powerful enough to investigate corruption allegations against either President Zuma and his family members or against any of the Guptas, the exact nature of the possible benefits that flow from the Guptas to the Zumas and from the Zumas to the Guptas remain unknown. But there are many proven facts, along with untested allegations and circumstantial evidence, about this relationship that will probably never be aired in court because of the absence of an independent corruption fighting body to look into whether these links have crossed the boundaries of legality.

Late last year the Mail & Guardian reported that there was evidence that the Gupta family was helping first lady number four, Bongi Ngema-Zuma, pay off her R3.8-million home loan. We also know that Duduzane Zuma, President Jacob Zuma’s 29 year old son, jointly control Mabengela Investments with Tony Gupta while JIC Mining Services is also majority-owned by the Guptas and Duduzane Zuma. There are other links: on Thursday President Zuma was supposed to board an air force Oryx helicopter at 14:00 from Swartkop air base to Sun City to attend the Gupta wedding ceremony, but these plans were shelved after the uproar about the abuse of the Waterkloof military base.

We also know that state-owned enterprises have spent more than R100 million in “advertising” in the Gupta-owned New Age newspaper, despite the fact that the newspaper has not been able to provide audited circulation figures. Two years ago the Sunday Times alleged that the Guptas might have had a role in influencing the appointment of CEOs and chairmen in key state-owned enterprises and that this was raised at an ANC National Working Committee (NWC). The Sunday Times claimed that the Guptas telephoned at least three deputy ministers and told them they were to be promoted days before Zuma announced his cabinet reshuffle; phoned several ministers to assure them that their jobs were secure ahead of Zuma’s announcement; bragged about their influence, telling one ANC premier he was “fortunate” they went to his office to see him — as many other public officials had to meet them at the Guptas’ home. Several of these claims have been denied — in general terms — by some of those involved.

Of course, the influence of the Guptas goes beyond Zuma and the ANC. Helen Zille last year admitted to having visited the Guptas’ home, where she received a donation for the DA – although she made the startling claim that she had no idea the cheque came from the Guptas. (She did enthuse about the food, which apparently was delicious.)

But given the proven facts about the shared business interests of the Gupta and Zuma families, the widespread rumours of how this entanglement is allegedly being used by the Guptas to gain some benefits from their association with the Zuma family (they reportedly often boast of their influence over Zuma) and the brazen nature of the current breach of national security, it would be bizarre (but not unexpected) if the police fail — at the very least – to investigate the Guptas for breaching the corruption laws.

Section 3 of the Prevention and Combating of Corrupt Activities Act of 2003 creates an extremely broad definition of corruption. It punishes both the person receiving or offering to receive any “gratification” and the person who gives or offers a “gratification”. The Act punishes people who take or give “gratifications” when the “gratification” is given to corrupt either the person who is offered the “gratification” or with the understanding that the corrupted person would influence others to act in a corrupt way.

This means if someone — a Gupta family member, say — hands money to the president or provides employment for a child of the president or co-opts the president’s child as a business partner, or pays the bond on the house of one of the president’s wives with the intention of creating a “mutually beneficial symbiosis” with the president for corrupt purposes, he or she is committing a crime. It matters not whether the president ever intended to be corrupted. Neither does the Act require the person providing the “gratification” from intending to get the benefit for which the bribe is being offered directly from the person the gratification was provided to.

As the Shaik judgment illustrated, there is no need to link a specific payment or provision of a specific “gratification” with the actual benefit derived from it. The state would therefore not have to show that a specific payment or benefit was made in order to buy special treatment for the Gupta wedding guests. All it would have to show is that there was an intention to buy the favour of the president for the purpose of obtaining favours from him or those directed by him in future. As long as there was an intention to corrupt and as long as a benefit was given with that intention, the person who gave the benefit is guilty of corruption.

The person receiving the benefit can also be convicted of corruption, whether he or she had the intention actually to do a favour for the person offering or giving the bribe or not. As long as he or she knew the benefit was provided for a corrupt purpose, he or she will be guilty of corruption — even if no favours are actually done in return and even if he never intended to do such favours. This much is made clear by section 25 of the Act which states that a person charged with receiving a benefit cannot offer as a defence that he or she did not have the power, right or opportunity to perform or not to perform a specific act benefitting the corruptor or never intended to provide the benefit for which he or she was bribed.

This means that if, say, a president receives a benefit from a friend who had the intention to corrupt him — to buy his influence — and the president knew or reasonably ought to have known this was the corruptor’s intention, the president himself is guilty of corruption when he accepts the “gratification” — even if he had no intention of committing a corrupt act or of influencing somebody else to commit a corrupt act.

Of course it is easier to prove that the receiver of the benefit is corrupt if he or she actually did some favour for the corruptor or influenced another person to do the corruptor a favour. Section 3 sets out what kinds of favours will be considered as corrupt, stating that this will be the case if you have a legal obligation (in terms of statute, contract or the like) to act in one way and you act differently, for example because you act illegally, dishonestly, in an unauthorised, incomplete or biased manner and this amounts to the abuse of a position of authority, a breach of trust, or the violation of a legal duty or a set of rules or that amounts to any other unauthorised or improper inducement to do or not to do anything.

The nature of the “gratification” that must be offered, given or accepted is defined extremely broadly too. It includes giving money, any donation, gift, loan, fee, reward, valuable security, property or interest in property, as well as any office, status, honour, employment, contract of employment. It would also include any payment, release, discharge or liquidation of any loan, obligation or other liability (like paying off another person’s bond) as well as any other service or favour or advantage of any description including any right or privilege. This means if you accept the offer of someone repaying the bond on your wife’s house and you ought to have known that this offer was made for a corrupt purpose, then you are guilty of corruption yourself.

By setting out these principles I am not suggesting that I have access to evidence to prove that any of the Guptas gave the various benefits to members of the Zuma family with the intention to corrupt them. Neither am I suggesting that there is hard proof that various members of the Zuma family received “gratifications” from the Guptas knowing that this was intended to buy the influence of the president or any other family member. What I am saying is that given the bizarre favouritism shown to the Guptas by members of the government (who allowed a plane with their private wedding guests to land at a military base and then provided an official 40-man police convoy to accompany the guests to the wedding), any independent corruption-fighting body would at the very least immediately have started an investigation into the possible links between the “gratifications” provided to various Zumas and the benefits received by the Guptas in return.

But this will not happen because there is no truly independent corruption-fighting unit in South Africa who would decide — based on the prima facie evidence and acting without fear, favour or prejudice — to investigate either the Guptas or the president for potential involvement in a corrupt relationship. In any case, if there were such a body, a decision to launch such an investigation would have meant the end of its existence — just ask the Scorpions. Of course, the fact that both the Zuma family and the Guptas know this might or might not be a mere co-incidence.

Imagine you have a disabled child who moves around in a wheel chair. Now imagine Vodacom, Cell-C, 8-ta and MTN all “feel uncomfortable” with selling their product to your child because they think it would be bad for their brand to be associated with a disabled person. Imagine, further, that Pick & Pay, Woolworths, Checkers and Shoprite similarly “do not feel right” about allowing a person in a wheel chair to shop at their supermarkets. Imagine SAA, Kulula, British Airways and whatever other fly by night airline operating in the country similarly feel that it would be against their principles to allow passengers in wheelchairs onto their flights.

Imagine every guest house and hotel owner in the town you intend to visit for a holiday adhere to religious beliefs that command them to discriminate against disabled people and bar your child from access to their establishments. Imagine every restaurant owner in the town or city you live in believe that their god would not want to allow a disabled person into their establishment. Although strangely irrational, bigotry is endemic and it would be difficult to persuade such business institutions that they would be better off not discriminating against disabled people – especially if the discrimination is justified on religious grounds. Some people who would not hurt a fly have a tendency to blindly support harmful practices because they believe these practices are mandated by their religious beliefs

Unless the law prohibits all these private institutions from discriminating against your child on the basis of his or her disability, both you and your child will be denied your basic rights to live a life in which your dignity is respected and protected. A failure of the law to ban such private bigotry will have disastrous consequences for all disabled people, who will be treated as semi-humans not worthy of concern and respect.

The absence of a legislation banning private discrimination would relegate some citizens to second class status. In a capitalist society private institutions often have powerful influence on the lives of citizens and merely banning the state from discriminating against citizens would sanction the most egregious forms of unfair discrimination in the name of the freedom of the few.

The owners of these private companies might argue that in order to protect their own freedom of choice and the right to private property the law had to “respect” their private (bigoted) beliefs or feelings and should therefore allow them to discriminate against whom they want. If they don’t want to have gay men marry on their business premises they should be able to say so. If they want to prohibit black people from using their business premises to get married they should be able to do so as well. In short, they argue that to deny them the right to act like bigots is itself bigoted.

This argument cannot fly.

A law that prohibits a business from discriminating against others based on the race, sex, sexual orientation or disability of the potential customer is not preventing the owner from holding his or her bigoted views. Such a law does not ban the owner from abhorring disabled people or believing that his or her god demands him to hate all disabled people. The owner continues to have the right privately to hold these views and to apply these views when deciding who gets access to his private home. The business owner is not forced to invite the disabled person to his own house for a drink or a braai. Neither would the law require him or her to change his bigoted views about disabled people.

What laws regulating businesses normally do is to require the owner of a business to meet various minimum norms and standards in order to carry on a business. This the law does to protect the public from the harm that might ensue if unscrupulous business owners indulge in practices to the detriment of customers.  That is why the owner of a business must obtain a business licence and, if he or she wants to sell liquor, a liquor licence too.

The owner of a guest house would have to meet minimum hygiene and safety standards. No one is going to argue that the owner of a business has a right not to install a fire hydrant at his guest house because he or she “feels uneasy” about this terrible invasion of his property rights. You cannot open a 500 seat theatre and refuse to install fire hydrants or emergency exists. Similarly you have a duty to comply with the prohibition on unfair discrimination.

If the owner of a business does not want to comply with the minimum standards (imposed to protect customers from harm) for conducting business then he or she would have no business to conduct business in South Africa at all. If, say, a business owner tells us he or she would like to offer accommodation in a life threatening structure teeming with cockroaches and TB bacteria because he “feels uneasy” about providing a safe and clean environment to human beings because his or her god instructed him to infect the world with TB, we would start asking around for the number of a good psychiatrist. Of course, the person is free to emigrate to a country where the law does not protect the general public against exploitation and against harm. He is also free not to use his property for business purposes.

This is all uncontroversial, I would think. Only the most extreme crackpots would argue that the state has no right to regulate businesses to protect the general public from harm because such regulation would infringe on the freedom of conscience of the business owner or on his or her property rights. When you offer your services on private property to the general public you choose to subject yourself to the applicable minimum norms and standards aimed at protecting the public from harm.

But somehow when the law prohibits a business owner from unfairly discriminating against a gay couple, many people suddenly argue that these obviously sound and uncontroversial general principles should no longer apply. This means the argument they make is not one based on principle. Instead, it is an argument based on emotion and on their own racial or homophobic bigotry.

Luckily our law does not sanction such prejudice. Section 9(4) of the Bill of Rights explicitly prohibits any person (including a juristic person) from unfairly discriminating – either directly or indirectly – against anyone on the basis of race, sex, gender, sexual orientation, and a long list of other grounds. The section also instructs Parliament to pass national legislation to prevent or prohibit such private discrimination. This Parliament did when it passed the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). This Act overrides the common law property rights of an owner. So when you see a sign at a restaurant, bar or holiday resort that the “right of admission is reserved”, you must know this rights has been qualified by the PEPUDA Act.

Yes, as the owner of private business you have a right to refuse admission to a prospective client – but not on the basis of a persons, sex, race, sexual orientation, disability or any of the other grounds listed in section 9 of the Constitution. If you do, you are harming that prospective client. The law often prevents owners from indulging in business practices that harm consumers and in the case of PEPUDA it does so by protecting vulnerable groups against the harm of being treated like a second class citizen.

It is important to note that PEPUDA also bans indirect discrimination. This means a business cannot use seemingly “neutral” criteria to admit or exclude patrons which will have the effect of excluding a disproportionate number of people based on one of the prohibited grounds like race, sex and sexual orientation. Often clubs or bars invoke an (imaginary) dress code to exclude black or gay and lesbian patrons. Or a business might exclude you because it is “full” (while allowing other white or heterosexual patrons entry).

These are examples of indirect discrimination and once you have shown that you have been treated differently from others it will be assumed it is based on your race, sexual orientation or other prohibited ground. The owners will then bear the onus of proving that they did not exclude you because you are black or gay. This will be rather difficult to do. This means that owners of private establishments should think twice before invoking their now severely truncated “right of admission reserved”. It also means that those refused entry or service on spurious grounds will often have a strong legal case of discrimination against the owners of a business.

Not knowing this basic legal fact, Daan and Jeanette Morkel, owners of Diemerskraal, have actually been stupid enough to admit to the whole world that they are breaking the law.

This past week Afrikaans poet Antjie Krog has been much on my mind. In a volume of poetry published in 1995, Krog wrote about being a white Afrikaner woman, a member of the UDF, an ambivalent if loving wife, living in Kroonstad in the late nineteen eighties trying to make sense of the messed-up world in the dying days of Apartheid. In one poem she writes about a necessary visit to a filthy toilet while menstruating, with her handbag clenched between her teeth and her blood-red tampon (folded into bank deposit slips) clutched in her hand:

“dinge natuurlik waaroor ‘n mens nooit ‘n gedig sou skryf nie/ dring in die nuwe territory poetic temas binne…./ pis ek rillend verstard effens hurkend/ tussen my bene deur/ in ‘n toiletbak tot in die helfte opgehoop/ met minstens vier verskillende kleure kak/ elke senupunt van weersin orent om mal te word/ as maar net ‘n enkele druppel op teen my sou spat.” (“Things of course about which one would never write a poem/ force their way into the territory of poetic themes …/I piss shuddering rigid half squatting/ between my legs/ into a toilet bowl heaped halfway up/ with at least four different colours of shit/ every nerve-ending of aversion alert to go mad/ if even a single drop would splash against me.”)

In this searing but ironic poem in which the poet recoils from the bodily excretion of others while herself excreting bodily fluids and contributing to the filth, Krog hints at the problematic nature of living even a relatively privileged life (whether you are a politician, a tenderpreneur, a businessman or somebody “who worked for” your money by being lucky enough to have rich parents) in a shockingly unequal society. There is always a danger that you will easily slide into self-congratulatory handwringing about the horror and injustice you find around you. You might also find solace in the angry and self-righteous condemnation of others who are not doing more to eradicate inequality. You can also easily become immobilised by a sense of hopelessness and futility in the nihilistic belief that change is no longer possible.

On a visit to several schools in rural Eastern Cape organised by Equal Education as part of a delegation led by Archbishop Thabo Makgoba, we indeed saw much that would anger most sane people and could easily lead to a sense of despair. We saw 132 grade 9 learners crammed into one classroom at Ntaphane Senior Secondary School, hardly a textbook in sight. At Nyagilizwe Senior Secondary School, filthy overflowing toilets with broken doors might have challenged even Krog’s abilities of description. At Sampson Senior Primary School in the Libode District, our little ones get taught in mud huts and do not have the “luxury” of toilet facilities at all (they have to go into the bushes to relieve themselves). At one school we were told that the school had to close for two days because SADTU, the teacher’s union, was conducting regional elections for office bearers (although the principle was too scared to be quoted on this), hinting at the sometime destructive role played by union leaders in this education crisis.

How learners and teachers manage this overcrowding, lack of facilities and often also lack of textbooks, is beyond me. Why this shocking, often racialised, inequality in education is allowed to continue and why our politicians are not treating this as a national crisis is beyond my comprehension. Compare the situation in many of these schools to the suburban schools in and around Cape Town, and the human cost of inequality in South Africa hits home.

But not all is gloom and doom. Some teachers and principals soldier on and try to make a difference, despite the conditions. I saw a feisty school principal overseeing an overcrowded school with magisterial self-discipline and belief in the children. I saw another teacher conducting the school choir that won the national championship last year. Everywhere we went we saw evidence of poor communities scraping together funds to build extra classrooms and to improve the school facilities without any help from the Department. These are not people who, in the imagination of some big city grouches, are lazy leeches waiting for government handouts.

What is to be done? What immediate steps can be taken to begin the process that would give all learners – regardless of race and social and economic background – a fighting chance to flourish and to reach their full potential as a human being? (Surely this is what our Constitution promises?) There is no silver bullet that will fix our education system. I am skeptical about populist gestures (like declaring teaching an essential service or re-introducing inspectors), because, on their own, these measures won’t make much of a difference. (And we must remember that teachers enjoy the same human rights guaranteed for everyone else in the Constitution.)

But here are some humble suggestions for turning the ship around and beginning to address the national emergency that is our unequal education system.

Section 5A of the South African Schools Act empowers the Minister of Basic Education to promulgate Minimum Norms and Standards for School Infrastructure. Promulgating such norms and standards would constitute an important first step at addressing the basic infrastructure problems in education because it would set a minimum benchmark and would provide a tool that communities, principals and NGOs could use to hold the Education Department and its often lethargic and bungling officials accountable. Everywhere I saw evidence that communities are ready to play their role, but the Minister has so far been too scared or too callous to provide these communities with an important empowering tool to hold officials to account.

The Minister – in terms of an out of court settlement with Equal Education – has promised to promulgate such norms and standards, but the draft norms and standards issued for comment are so laughably vague that they would not serve any accountability function at all. The draft states that in order to create even the basic minimum standards in which children could learn with a semblance of dignity, these goals had to be realised “progressively” (no respect for the dignity of learners in the meantime) and that MECs for education had to develop plans to provide all schools in each province with the basic minimum facilities. (Remember these basic facilities do not include libraries and laboratories found in most former model C schools – but merely working toilets, manageable class sizes, brick and mortar structures.)

But on Friday, Eldred Fray, an official of the Eastern Cape Department responsible for infrastructure development in the province for the past 19 years, told us that the Department had no medium- or long-term plan for addressing infrastructure problems. Where are the excel spreadsheets, the maps, the statistics, the set of principles according to which priorities would be determined? Why are officials and politicians not having sleepless nights about the fact that even 19 years after the advent of democracy, we are perpetuating instead of eradicating inequalities in our education system?

Are we going to have to wait another 19 years before the Eastern Cape MEC finalises a medium- and long-term plan to address infrastructure deficiencies in schools across the province? If these draft norms and standards are adopted, this seems like a likely scenario. Unless the minimum norms and standards set clear and precise targets and deadlines for meeting those targets, there is no hope that the officials tasked with implementing the plan will do their jobs properly or that they will be held accountable if they don’t. After all, in 2010 National Treasury allocated almost R7 billion for the eradication of mud schools, but most of that money was never spent and was returned to Treasury or rolled over to future years.

Improving infrastructure in schools to a level that would at least give children a fighting chance to learn – in an environment befitting a human being, with inherent human dignity – is a first step to deal with the education crisis. But it won’t solve the problem. A second step would be to get officials to do their jobs and to hold them accountable if they do not. Everywhere we went we were told that managers from the Department were inaccessible or missing in action. Officials from District Offices fail to answer correspondence, seldom visit schools (in one school we were told the last time an official visited was 1991) and seldom inform their superiors of problems in schools in their jurisdictions in order to avoid “trouble” and to make sure that they do not make more work for themselves. How many officials have been fired for not doing the job South Africans pay them to do?

Many teachers are demoralised, not only because of the appalling conditions and large classes, but also because some of their fellow teachers shirk their duties. Almost 40,000 teachers are absent from school every day, and absenteeism falls disproportionately on Mondays and Fridays. Surely the system can only work if teachers who are serial absconders are held to account? Yet teachers’ unions often protect such teachers instead of doing what is in the interest of the learners, and that is why political will is needed to challenge the faction inside the union leadership who places the narrow interest of its members above the interest of society.

These proposals would only constitute modest first steps to begin to turn the ship around. But even such modest steps will not be taken unless there is political will right from the top. We need a president who drops in unannounced at District Offices across the country and demands accountability for officials. We need a Minister who is prepared to set minimum norms and standards and to hold officials accountable if they do not meet these. This is a burning issue of transformation. A government who purports to have as its raison d’être the eradication of inequality and the transformation of society has no excuse not to show the political will to deal with the crisis. (The DA in the Western Cape is another matter.) If we want to begin to address educational inequality, our politicians must stop playing politics with education and must be honest and brave enough to stick their necks out and to demand accountability from officials and, yes, also from those teachers who are not doing their jobs.

As citizens of a free country, this, surely, is the least that we can demand? It is only when ordinary voters in their millions make their voices heard and tell the responsible politicians that we will only lend our vote to their political party (whether ANC nationally or DA in the Western Cape) if they show that they will take action and will hold those officials accountable whose inaction is robbing many of our children of their future.

I will write a more reflective piece when I get time. Meanwhile I post a few pictures taken yesterday.

At Putuma Junior Secondary School more than hundred children cram into one classroom. The school is known for its choir which won the national championship last year. This is a picture of one children in grade 9.

At Sea View Secondary School only 13% of matrics passed last year. These unfinished classrooms are being built by the community. Students waiting for fellow class mates to complete their lesson in the classroom they share, hang out in these unfinished classrooms.