The South African democracy is founded, inter alia, on the values of “universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”. The notion of open, accountable and transparent government runs like a golden thread through the Constitution which contains several specific provisions to give effect to these values. To this end the Bill of Rights contains two specific clauses that guarantees open, transparent and accountable government.
Section 16 of the Bill of Rights guarantees for everyone the right “to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research”. Section 32 guarantees for everyone the right to access ”any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights”.
The Bill of Rights, it must be noted, does not say that only some people have a right to access information held by the state, neither does it state that everyone has a right to access only that information held by the state which the government of the day believes the population could be trusted with. These provisions are sweeping and all-encompassing, giving substance to the notion of an open and democratic society established by our Constitution. Any legislation that curtails the freedom of the media to inform the public and (just as important) the freedom of ordinary people to access or receive and impart information, infringes on the right guaranteed in section 16. Legislation that prohibits people from accessing any information by the state similarly infringes on section 32 of the Bill of Rights.
There can therefore be little argument that the Secrecy Bill infringes on these two rights which the Constitutional Court has stated is pivotal for the proper functioning of the democracy. However, no right is absolute and can be limited but only to the extent that the limitation is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose”.
At the heart of the Secrecy Bill debate is whether the limitation on our rights contained in it conforms to what is acceptable in an open and democratic society and whether less invasive measures could have been employed to achieve a legitimate purpose of restricting some state information in order to protect South Africans from terrorism and other attacks and to protect us from attacks agains the constitutional order itself (attacks, it might be add, which can easily emanate form the security and intelligence services itself – just as the people of Egypt). Any restrictions that go beyond this will not pass constitutional muster. Where the restrictions are over broad, they cannot be justified. That is why the Secrecy Bill, in my view at least, is clearly unconstitutional. Let me explain.
Section 12 of the Bill allows various organs of state (the military, the police, the intelligence services and any other government department or organ of state given permission to do so) to classify documents when it could cause harm to South Africa’s national security. The first problem with the Bill is that “national security” is defined too broadly. It states that “national security” includes the protection of the people of the Republic and the territorial integrity of the Republic against various threats, including “exposure of economic, scientific or technological secrets vital to the Republic”. This definition is over broad in three distinct ways.
First, the word “includes” must be deleted as it suggests that the definition does not contain a closed list of factors that constitutes national security but is open ended. This gives classifying bodies the right to “invent” other national security concerns as it sees fit — even when these have not been included in the definition contained in the Bill.
This must be read with section 14(3), which must also be deleted. This section states that:
Specific considerations with regard to the decision whether to classify state information may include whether the disclosure may-
(a) expose the identity of a confidential source, or reveal information about the application of an intelligence or law enforcement investigative method, or reveal the identity of an intelligence or police source when the unlawful disclosure of that source would clearly and demonstrably damage the national security of the Republic or the interests of the source or his or her family;
(b) clearly and demonstrably impair the ability of government to protect officials or persons for whom protection services, in the interest of national security, are authorised;
(c) seriously and substantially impair national security, defence or intelligence systems, plans or activities;
(d) seriously and demonstrably impair relations between South Africa and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the Republic;
(e) violate a statute, treaty, or international agreement, including an agreement between the South African government and another government or international institution; or
(f) cause life threatening or other physical harm to a person or persons.
Read with the open-ended definition of “national security”, this section invites spies, the military and the police to turn South Africa into a secretive police state. It allows the security services to classify almost any document about its activities. If rogue elements in the security services use underhand methods to spy on citizens; to use dirty tricks against legitimate political opponents and social movements and to target them unfairly for criminal investigation; to undermine opponents of one or another faction within the governing party, these provisions would allow them to classify all documents relating to that.
It would also allow ministers and the top brass of the military and the policy to draw a veil of secrecy over their own activities, including their travel and their spending on hotels and other luxuries. Lastly, it would also allow the state to hide any information about money donated by a foreign government to the governing party or to ministers, state officials or the President; bribes given by a foreign company to government officials, ministers opt the President or any information about any contract concluded with a foreign company — which in future would include almost all aspects of arms sales by or to South Africa.
Section 3 should also be amended. At the moment it allows all security services (including those trusted police commissioners who seem to be so fond of crooks) from classifying documents and also allows the MInister of State Security to give permission to any other organ of state (from each municipality and government department, to the Natal Sharks Board) to classify documents. Only the Minister of State Security should be given this power and only for documents in possession of the intelligence services.
Section 15 and 43 are also over broad and hence unconstitutional. Section 15 states that a person who is in possession of a classified “record knowing that such record has been unlawfully communicated, delivered or made available other than in the manner and for the purposes contemplated in this Act… must report such possession and return such record to a member of the South African Police Service or the Agency to be dealt with in the prescribed manner”. Anyone who fails to do so commits a crime for which he or she could be sent to jail for 5 years. Section 43 prohibits many categories of people (excluding whistle-blowers in the employment of the state who complies with the strict provisions of the whistle-blower act, but including all members of the media) from disclosing the content of classified documents and anyone who contravenes this section could be sent to jail for 5 years.
Thus a person would be criminally liable if he or she is in possession of the document or makes that document public even if the document was wrongly classified to cover up corruption, authoritarian actions by the security services or to hide illegal activities or maladministration by the securocrats or the police. There are two ways to deal with this. Both are plausible and easily achievable by the legislature.
First, a limited public interest defence can be written into the Bill which will set out criteria for when classified documents could be lawfully possessed and published because it was in the public interest to do so. Such a section could list situations in which possession and publication will be allowed. This could include when documents are classified merely to cover up corruption or maladministration; where it reveals criminal activity on the part of individuals inside and outside the government; where documents reveal actions by officials or politicians that have the potential to undermine the constitutional democracy; or when the documents reveal actions which endanger the lives of citizens. This could all be made subject to a very carefully crafted limitations stating that this publication will only be justifiable if the public interest in publishing the information outweighs the interest of the state in keeping it secret.
Alternatively the Bill could state that where documents are wrongly classified to cover up corruption, illegal activity or activities that undermine democracy or where the classification was never justified in terms of the act (something that can be determined by a court on objective grounds), a person could not be prosecuted for leaking or publishing the documents. I prefer the first option but perhaps the second option would go some way to limit the far-reaching effects of this legislation.
Lastly, the sections on the Classification Review Panel will have to be redrafted, especially sections 22(3)-(5) and section 24. This panel is empowered to review classification decisions and in order for it to provide the intended safeguard against wrongful or criminal classification of documents, it would need to be absolutely independent. These sections allow the majority party in the National Assembly to appoint the panel and to remove any of its members. This means that the panel van never be perceived to be independent and will be prone to political manipulation. To fix these sections, it could be rewritten to allow for the appointed (and the removal) of members of the review panel by 75% majority of members of the National Assembly. Alternatively, some other mechanism requiring consensus of all the major parties in the National Assembly to appoint and remove the members of the Review Panel is needed.
I believe these amendments would go a long way to restrict the ambit of the Act and if these amendments are made by the NCOP (or by the National Assembly after the President has referred it back to the National Assembly because of its unconstitutionality) it might pass constitutional muster. If not, the President must not complain that the Constitutional Court unlawfully makes policy by declaring invalid acts passed by the Parliament when it finds aspects of this Bill unconstitutional. All that is needed is for cool heads to listen to sound advice. It was offered here and elsewhere. Now it must just be acted upon.
Thanks Prof for your erudite piece.
I would like to invite your comment on Parliamentary Privilege. Can ANC punish any of its MPs for voting or refusing to vote for the Bill? As far as I am aware, this is unlawful. Secondly, if this is the case (as it is in the UK), is not problematic that the Speaker of Parliament is participating in meetings to discipline members who dissented? In terms of the law, he is the one who should issue a Speaker’s Certificate to the MPs as a protection against the abrogation of Parliamentary Privilege.
I have pasted below, the erudite position articulated by Edmund Burke:
To deliver an opinion, is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to hear; and which he ought always most seriously to consider. But authoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience,–these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution.
Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not member of Bristol, but he is a member of parliament. If the local constituent should have an interest, or should form an hasty opinion, evidently opposite to the real good of the rest of the community, the member for that place ought to be as far, as any other, from any endeavour to give it effect. I beg pardon for saying so much on this subject. I have been unwillingly drawn into it; but I shall ever use a respectful frankness of communication with you. Your faithful friend, your devoted servant, I shall be to the end of my life: a flatterer you do not wish for.
thanks a million 4 ur very informative piece. It worries me alot to see that some people ignore things like this new form of censorship n dnt giv it a 2nd thought. I support the idea of havin a public intrest defense clause bein writen in2 the new bill. More Transparency… Thats what we need. I heard thers talk abt internet censorship in south africa… We cnt let that happen!
I’m curious what the outcome would be if a person raises the defence of absence of unlawfulness in a situation where he possessed (and perhaps published) classified documents which reveals criminal activity and was clearly classified in order to hide the crime.
“Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation”
Well ours is just the opposite. You either represent capital/big business & White interets or Black/Poor & Marginalised interests.
BTW. These are well both represented in the ANC benchjes.
An absolutely outstanding and timely given speech by Kate O’Regan on the role of the ConCourt in our democracy:
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=268409&sn=Detail&pid=71616
“I’m curious what the outcome would be if a person raises the defence of absence of unlawfulness in a situation where he possessed (and perhaps published) classified documents which reveals criminal activity and was clearly classified in order to hide the crime.” – Chris
Classification to cover criminal activity, etc. is, per the Bill, illegitimate: in fact, criminal itself. You may not, in terms of the Constitution, be deprived of a right, in this case freedom, unless the deprivation of that right serves a legitimate governmental objective. I believe that the right question to be asked would be whether a Court would convict a person in such circumstances, where there is no legitimate reason for the information to be classified and, by implication, where there is no legitimate reason against it being in the hands of someone and/or published.
I think this to be the way around an included public interest defence and one that would fly, were a case to arise where the state attempted to charge someone for exposing crime/corruption/maladministration etc. Naturally, an included defence would be better, but, I maintain that there are (good) arguments to be made that mean its exclusion to not be the end of the world.
While I agree with most of this post, it seems that one key point is being missed. Before we get to the issue of public interest clauses, surely we need to deal with the absence of a clause that protects an individual (whistleblower or recipient) from prosecution if information should not have been classified in the first place? Logically it simply makes no sense to omit such a clause. If it was included, we would then need to turn our attention to the sections that determine proper and ‘improper’ reasons for classification. Going straight for the public interest clause seems like using a sledgehammer when a normal one would do?
http://mfundza.blogspot.com/2011/11/on-secrecy-bill.html
“Government is not reason, and it is not eloquence; it is force! Like fire, it is a dangerous servant and a fearful master: never for a moment should it be left to irresponsible action.” — A popular Americanism of unknown origin, usually attributed to George Washington.
Moustache, the problem is that often there would be a grey area. A document may be classified and on its face this might be justified by the provisions of the Bill but the “real” reason might be to cover corruption. Porving unlawfulness in such a case would be tricky.
Prof, you’re presumably talking about a document or piece of info that, read on its own, did not expose something unlawful/corrupt etc, i.e. something that, only within the context of other info/documents, would show the corruption or unlawfulness?
Would it not then be the case that, in the absence of such other necessary info/documents, you do not have a right to possess it, because, then, you’re just working on a hunch, which may turn out to be wrong? If you had those other documents/info, to which my original submission would apply (if charged for possessing those), then, surely, you could make urgent application for the additional documentation required to prove your case and it would be granted within the context of the ‘prima facie’ documents?
It’s possible that I’ve misunderstood what you’ve said. Are we talking about the same thing?
I’d also like to know, Prof, within the context of finding solutions to this Bill, if it stands as is, what your thoughts are on the whistle-blowers who are presently the source of information to the media.
Let’s say that they did not accept my proposed way around the exclusion of an express PID and, hence, were too afraid to hand the information over. What do you perceive the consequences to be, if they blew the whistle on improper classification only? In other words, could these people not shout foul that something has been covered up, without exposing the contents of the information, after which an appropriate media expose would follow? Would that not then force this information before a judge?
We do not have freedom because the Constitution gives it to us; The Creator gives us our rights. The Constitution was written to keep the government from taking our rights away. We have rights granted by God and not by those in power.
Jama, if I’m correct, the Prof is an atheist, as am I. There was once a person in my 1st year legal theory class, who wrote an essay against homosexual marriage, with the Bible as their only source. That person failed. If you wish to debate the legal, political, or constitutional implications of the Bill, this is the place for you. As it stands, your utterance takes us nowhere.
http://www.timeslive.co.za/local/2011/11/24/constitutional-court-decisions-to-be-assessed-manyi
I will come to the debate later I have to go to the house for a debate and possible vote on yet two other bills. There is a cogent argument in the article by Prof.
The mechanism of total consensus of the parties may become a difficuly fetter in the process given the acrimony which usually throws the parties asunder. The country has checks and balances which always quarantee a finer product in the end.
Moustache says:
November 24, 2011 at 12:48 pm
I reckon you ought to pay Jama to listen while you get that off your chest!
Haha, yes Brett. I should have just left it.
@ Moustache : I would not presume to debate with the Prof as I am not a legal person & I only follow this blog to educate myself. In any case I tend to agree with most of what he writes here.
My “utterances” were to simply underline the point that he & others have made that: a) we cannot trust politicians to determine what information can or cannot be classified or what has been correctly / incorrectly classified and;
b) that our rights as enshrined in the Bill of Rights are not given to us by the ANC or any other party, but are universal and inalienable.
I’m interested to know since you an atheist Moustache: where do natural / human rights derive from?
Hi Jama,
Up front, my apologies for the extent to which I misread what you were trying to say. It was wrong to snap at you.
“I’m interested to know since you an atheist Moustache: where do natural / human rights derive from?”
I’d say from human beings, who have rational thought, can empathise and have made the link between not doing that to others that you do not enjoy and, thus, do not want done to you. Once you acknowledge another as your equal, for the very reason of his/her shared humanity, i.e. you can understand his/her suffering, the rest of the rights follow ‘naturally’. It is only when, for whatever skewed reason, you do not view someone as your equal, that you can talk yourself into treating them poorly. I do not think this to be such a difficult concept that it requires a deity to have conceived it originally.
Having said that, I should not have engaged on this (the religious) topic. I was led into temptation. Can we agree to disagree?
Brett
http://www.businessday.co.za/articles/Content.aspx?id=159369
@ Moustache:
Apology accepted, though I am now also tempted to add that agreeing to disagree is no agreement at all & to ask you where rational thought, empathy & other such “built in” human traits derive from & thus continuing the religious debate for I am by nature a very agrumentative sort.
But I know this is not the appropriate forum & so I will let it go.
@ Gwebecimele – is Allister Sparks arguing that greedy capitalists must regulate their own gluttony?
Jama ka Sijadu
November 24, 2011 at 15:49 pm
Hey JkS,
Do not let it go.
Religious discussion is increasingly becoming relevant to our Constitutional Project.
As you know in the jostle for appointing our Chief Justice between god on the one hand rooting for Judge Moegeng and the horned oke vying for Judge Moseneke, god (as always) won.
Note that President Zuma wisely pointed out recently that government is like god i.e. supposed to do a lot of great and good stuff but doesn’t always get round to it.
And in the past he noted that the CC is not god.
p.s. Brett and me (aka the good guys) are not blasphemous. The bad guys (JR, Dworky, Gwebs Chris-the-right-wing-guy, Advocate Bellem) are.
Maggs said “do not let it go” …
So, in summary of what could get very voluminous: JkS, you have appealed to a theological fallacy, colloquially termed ‘God of the Gaps’ whereby you conclude that, because I cannot tell you where [the things you listed] ‘derive from’, they are attributable to god/s. What is fallacious about this, however, is that my not knowing is not, in any way, conclusive of these things being ‘built in’ by god/s. You need more than a hole to conclude that something lives within it.
I would also say that [these things] are products of evolution, i.e. there are varying degrees of consciousness observable throughout the animal kingdom, within which (we think) we are the pinnacle … can you say can of worms?
Moustache
November 24, 2011 at 16:29 pm
p.s. Moustache is also a blasphemous guy. Not like me and Brett.
pre p.s. Cosatu will go to the Constitutional Court should attempts to amend the Protection of State Information Bill fail, its secretary general, Zwelinzima Vavi, said on Thursday.
http://www.timeslive.co.za/politics/2011/11/24/cosatu-threatens-concourt-action-on-info-bill
pre pre p.s. @ Herman Lategan and his lawyer Graham Sonnenberg and Marie Heese. Take note.
Municipal leaders and officials should stop blaming poor service delivery on apartheid, says Cooperative Governance Minister Richard Baloyi.
http://www.timeslive.co.za/politics/2011/11/24/stop-blaming-apartheid-baloyi
@ Moustache – I merely asked the question, you did all the concluding.
I’m more inclined towards what is called “intelligent design” ie: the idea that complex systems evident throughout nature are not random or created by natural selection but rather by an intelligent agent (God) with very specific purposes.
Holes don’t dig themselves.
Jama ka Sijadu
November 24, 2011 at 17:08 pm
JkS,
“not random or created by natural selection but rather by an intelligent agent … with very specific purposes.”
Just like the PoIB?
@Maggs
I have my doubts about the intelligence of the entity that created that piece of legislation.
Jama ka Sijadu
November 24, 2011 at 17:24 pm
“I have my doubts about the intelligence of the entity that created that piece of legislation.”
Caution : That entity is the same one that created Brett!
If the main reason for the bill is to cover-up corruption then don’t expect any changes. See if our god given Moegeng defends the constitution or the needs of his god-like master, our beloved government.
@ Jama
“I’m more inclined towards what is called “intelligent design” ie: the idea that complex systems evident throughout nature are not random or created by natural selection but rather by an intelligent agent (God) with very specific purposes.”
If you think that all complex things are necessarily designed, who do you think “designed” God? Another God who is even more complex?
Michael Osborne
November 24, 2011 at 18:51 pm
Hey Prof,
Who created the “intelligent agent (God)”?
The bladdy agent of course.
Here’s one for you – who created KFC’s Streetwise Two?
p.s. Wanna play double or quits?
I’ll bet you a four-piecer that Pres Zuma will not sign the bill into law in its present form.
Michael, infinite regressions like that will not bother a creationist, as there is surely some (unfalsifiable) metaphysical attribute that will be invoked that, in their minds, absolve god/s from the very questions asked of a complex universe: something like ‘he is necessary’ or ‘he is not subject to the laws of his creation’.
Maggs, Msholozi not sign? Great if you’re correct. Gut feel or inside info?
Michael Osborne says:
November 24, 2011 at 18:51 pm
Michael, I hope you’re not going away now that Maggs has reminded you of your bet – I need a favour.
(You know our Maggs does not forget bets – ask Sam!)
Anyway, I need someone to sneak a peek in Pierre’s diary to make sure that he has scratched out ‘lie kaalgat on the beach’ all over December and January and written in ‘work on scholarly article for submission to all the journals re comparison of requirement that compensation be paid for dispossession of land in the pre-and-post constitutional area and also to what extent requirements in 1913 Land Act were aimed at preventing black sellers being exploited and dispossessed of their land’….
Moustache
November 24, 2011 at 19:41 pm
Hey Moustache,
“feel or inside info?”
I could tell you, but then I’ll have to kill you.
Nah just kidding.
I’m being generous – giving Prof Mo a sporting chance, blowing caution to the wind, taking a walk on the wild side …
On the other hand as my BFF, Goofy, will tell you – I’ve not lost a bet here yet, even when it seemed that the odds were against me.
Of course the dice is probably loaded in my favour on this one – Zuma will not want to lose this battle. He’s got a war to win so he’s going to have it tested.
I reckon that he will rather have the CC say the Bill is not constitutional than the CC say an Act is unconstitutional.
Now let’s see if Prof MO (or anyone else) is up to it.
The decision South Africa needs Maggs is reflected by this statement by Kate O’Regan, with respect to ‘Justice Alliance of South Africa v President, RSA’ as follows:
… “both the legislation and the President’s decision to extend the term of office of the Chief Justice, were held to be invalid.”
‘Invalid’ is the be all and end all with respect to the Secrecy Bill.
sirjay jonson
November 24, 2011 at 20:50 pm
Sirjay,
“both the legislation and the President’s decision to extend the term of office of the Chief Justice, were held to be invalid.”
Zuma won that battle. The short version is that he did not want Moseneke as CJ, Moseneke made himself unavailable.
I’ve said previously and will repeat – Zuma is about the best political strategist (as distinct from the best politician) that our country has seen. he will not battle unless he has to and then will do so in terms and terrain which he will set.
The passage of this bill into law will make very little difference to him in the broader scale of things. But if he refuses to sign it into law by claiming to test it against the Constitution the media, political commentators and other opinion makers are going to be Adriaan Vlokking his feet by the time the next ANC National Conference comes around – an enormous advantage if there’s any chance of a challenge for the leadership.
The point being Maggs, is that Zuma’s appointment was firmly and corrrectly decided on as ‘invalid’. I do not believe this nefarious secrecy bill is anywhere close to being constitutionally acceptable.
Clauses don’t just need to be adjusted, the bill needs to be withdrawn in its entirety. The present government does not appear to be capable of producing a suitable bill for reasons most intelligent folk would agree upon. Well now, that’s not a surprise, is it?
The ANC has hit the wall on this one. Virtually everyone I know throughout all the various communities I interact with are not only talking about it, reading about it, even confused about it, but deeply shocked… and as a result mostly folk are angry. The ANC has finally shot itself in the foot. I agree with many others who have not lost optimism for South Africa that this act by our government was the final straw.
Another tyrant fell today by the way, or yesterday. Don’t think it can’t happen here with this micro collective-dictatorship now having made itself dramatically visible not just to South Africans, but to the western Democratic world.
And the ANC’s threat to the rural communities that the bill is to protect their ID cards, as dirty a trick that is… won’t inevitably work for them. The word’s out.
Give a fool enough rope and they inevitably hang themselves. And I’m not just speaking about juju.
Maggs Naidu – maggsnaidu@hotmail.com says:
November 24, 2011 at 20:34 pm
Maggs also never lets anyone forget if they owe him Kentucky – he should have joined the JHBMetroPD!
But, I see what he is getting at – and there are a lot of plusses…
@ Sirjay
“The ANC has finally shot itself in the foot.”
Sirjay, while the current leadership of the ANC may be at fault, I think you may be making a big mistake when you blame the ANC per se. The party is bigger than its leaders. It has demonstrated an astonishing capacity for self correction.
With all respect to Cmd Turok, I am outraged by the suggestion that the ANC MP’s voted for a Bill they had not read. This is a blatant subliminally RACIST suggestion that blacks can’t read!
Sirjay, have you seen JASA’s media release?
JASA REMINDS PARLIAMENT THAT THE NCOP MUST HOLD PUBLIC HEARINGS ON THE ‘SECRECY BILL’ IN THE PROVINCIAL PARLIAMENTS AND IN CAPE TOWN
ALL STAKEHOLDERS WILL HAVE A FURTHER OPPORTUNITY TO EXPRESS THEIR CONCERNS NEXT YEAR TO DIFFERENT MPs
JASA has today written to the Chairperson of the NCOP reminding him that the NCOP must hold full public hearings as required by sections 72 and 118 of the Constitution. This mandatory requirement applies to every controversial Bill as was spelt out by the Constitutional Court in the landmark decision of Doctors for Life vs Parliament 2006(6) SA416 (CC). The facts of the Doctors for Life case were very much on all fours – the NA held public hearings, but the NCOP’s efforts in some Provinces, and not at all in Cape Town, were held to be woefully inadequate . Accordingly the Acts in question in that case were struck down. Giving the judgement of the Court, Chief Justice Ncgobo said one of the reasons for requiring public participation was that “its open and public character acts as a counterweight to secret lobbying and influence peddling.” (para 115) In another paragraph in his judgment Ncgobo J said: “When it comes to establishing legislative timetables, the temptation to cut down on public involvement must be resisted…………The timetable must be subordinated to the rights guaranteed in the Constitution, and not the rights to the timetable.” (para 194)
Under section 75 of the Constitution, the NCOP has the options of passing the Bill, making amendments, or rejecting the Bill. In either of the latter cases, the Bill must then go back to the NA for reconsideration.
This means that all interested parties should prepare now to make written and oral submissions to the NCOP Select Committee and/or to the Provincial Parliaments which will deal with the Bill in the new year. Stakeholders who made submissions the NA ad hoc Committee will have a further opportunity to debate the Bill, and others will be free to join in. JASA did not make submissions to the NA Committee, preferring “to keep its powder dry”, but will certainly do so to the NCOP.
The fight is far from over!
JASA’s letter to Parliament is available on its website:
http://www.justicealliance.co.za
Moustache, in your experience, is it difficult to show that, by this logic, one might as well skip God by simply defining the universe itself as a thing that, in its essence, is eternal, and has no cause outside itself.
When the ANC issued that Three Line Whip they were in effect saying to their MPs you are stupid and incapable of thinking for yourselves so we will do it for you…….just vote yes. How profoundly insulting.
This will come back to haunt them when more and more ANC MPs realise that they are being treated like children by Luthuli House and dig their heels in.
So the prof has chainged his mind again. On the other thread he said the bill was “reasonable” it is just that he doesn’t trust our democratically elected government although he feels like his parents wewe nazis for keeping the Black hordes out lol.
Anyway I will roll with Cosatu and Solidarity on this one.
Looks like the only two ANCs who obstained from voting for it were Whites? Oh the Whiteliness strikes again.
Ignorance is obviously infectious. 26 ANC MPs did not vote, most of whom were black.
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page72308?oid=268576&sn=Marketingweb+detail&pid=90389
anton kleinschmidt
November 25, 2011 at 6:39 am
LOL AK,
“This will come back to haunt them when more and more ANC MPs realise that they are being treated like children by Luthuli House and dig their heels in.”
It must have been extremely painful for you to point out to the ANC MPs that they are being treated like children.
It’s most unlikely that you derived sadistic pleasure from rubbing salt in their raw wounds.
Er, Maggs???
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=268704&sn=Detail&pid=71616
Govt probe of ConCourt strange and sinister – Dene Smuts
Dene Smuts
24 November 2011
DA MP says move will be seen as an attempt to bend courts to the will of the ANC
No need to assess Constitutional Court judgements
Cabinet’s decision to subject the judgements of the Constitutional Court to research in order to see how they have influenced inter alia socio-economic transformation must rate as one of its strangest proposals to date. It will inevitably be seen as a sinister attempt to bend the Bench to the executive and the ruling party’s will, especially given the recent spate of hostile comment from such persons as ANC Secretary-General Gwede Mantashe and Deputy Correctional Services Minister Ngoako Ramatlhodi, and the fact that it is common knowledge that certain judgements are unpopular with the ANC.
The courts are not an instrument of government policy whose output can be measured on performance indicators and other governance criteria. They are there to give authoritative interpretation of the Constitution and the law.
It is difficult to believe that Justice Minister Jeff Radebe would have come up with this idea. Despite his track record on the Judicial Service Commission (JSC) he has consistently respected the doctrine of separation of powers, especially when tabling new Bills such the 17th Constitutional Amendment and the Superior Courts Bills.
If anything, the proposal to assess the role of the judiciary “in a developmental state” is reminiscent of the National Planning Commission’s Vision 2030. Its otherwise sound proposals include the strange suggestion that “progressive” judges should be appointed against the background of our socio-economic context.
Quite what “measures” are now to be taken by Cabinet “to enhance the efficiency and integrity of the JSC and Magistrates’ Commission” in their appointment function will therefore be keenly watched. Will candidates have to demonstrate progressive political or economic credentials? By contrast, the Democratic Alliance (DA) intends to propose the amendment of the composition of the JSC (Section 178 of the Constitution) when the 17th Constitutional Amendment is legislated for the exact opposite purpose – its depoliticisation.
Cabinet says it wants to affirm the independence of the judiciary by promoting interdependence between the three branches of state – that is a contradiction in terms. A “regular interface” between the three spheres is to be established through “appropriate mechanisms”. No formal mechanisms are necessary to pursue the Constitutional dialogue which former Chief Justice Sandile Ngcobo postulated and practised to deal with the tensions that inevitably arise between especially the executive and the judiciary.
Statement issued by Dene Smuts MP, DA Shadow Minister of Justice and Constitutional Development, November 24 2011
Brett Nortje
November 25, 2011 at 8:25 am
Hey Goofy,
“Er, Maggs???”
I was horrified when I saw the headline “Government to assess Concourt”.
It was like a WTF moment. But the headline was misleading and mischievous.
Reading on of course it seems sensible to me (maybe premature as we don’t have all the details).
If my interpretation of the overall intention is correct well done to government.
Hi Michael,
I must be honest – I try to avoid settling on a definite view of the nature of the universe, or our place within it. I generally accept what the latest science suggests, but, of course, am willing to adapt that view in the face of any significant contradiction or change to the evidence. In other words, I support the scientific method. Essentially, I try to avoid conclusions that I’m nowhere close to being qualified to make, or that involve too much speculation beyond the evidence.
So, is the universe purposeless, without cause outside of itself? It’s certainly possible, but, I simply do not know, as based on what evidence is available to me, and am actually quite comfortable in not knowing, which is not to say that I’ve stopped looking for an answer: I’ve just not settled on one.
Pretty much my take, Maggs.
Everyone is getting hysterical because there is such mistrust in the ANusClowns.
@ak
Then we have slumped even deeper into a moral cest pool if laziness and absenteism counts for consciencious objection.
Anyhow the prof’s argument that “national security” is too vague term seems to be a recursive one. He states that secrecy may be required and acceptable when it comes to protecting SA from “terrorism”. Need i remind him that Nelson Mandela was classified as a terrorist once and that one man’s terrorist is another man’s freedom fighter?
Mikhail Dworkin Fassbinder
November 24, 2011 at 21:43 pm
Hey Dworky,
“The party is bigger than its leaders. It has demonstrated an astonishing capacity for self correction.”
hehehehe – soon you will abandon your ‘tendencies’ and become a supporter of the ANC.
Interestingly while this fight ought to be in defence of our freedoms, it’s turning out to be a fight against the ANC.
Let’s hope reason prevails and that the fight for freedom of expression does not turn out to be a political Trojan Horse.
If the choice was to either defend the ANC or defend freedom of expression, most ANC supporters, including me, will defend the ANC.
Yes, we know, principled, you are…
Brett Nortje
November 25, 2011 at 9:05 am
Goofy
“Everyone is getting hysterical because there is such mistrust in the ANusClowns.”
It seems that the M&G too is caught up in the hysteria.
The ANC has no such confidence. The Cabinet this week announced an “assessment” of the judgments of the Constitutional Court to determine whether they complied with its transformation imperatives and were appropriate for a “developmental state”.
http://mg.co.za/article/2011-11-25-the-real-fight-has-just-begun-for-mg-and-media
Coming hard on the heels of attacks by President Jacob Zuma and several other senior ANC officials on judicial “activism” and interference in the executive sphere, the message rings out from between the lines: if we don’t like the judgments we’ll find a way to change the judges.
It seems that the M&G may be punch drunk – there seems to be no other reasonable explanation of their rather silly comments.
This is constitutionally compliant.
http://www.dispatch.co.za/news/article/2363
Yes, Maggs, I thought ‘assess’ was hloplessly euphemistic.
You see, more and more people are starting to take the ANC at its viva voce. Isn’t it great?
It is a rare occasion when Dene Smuts& Co are being sensible
Gwebecimele, no plumbing-of-the-depths by the Eastern Cape ANC surprises anyone in South Africa anymore.
My brother’s application for a licence for my dad’s hunting rifle took 5 months to get from PE to Bhisho.
Snailmail?
@ Maggs
“If the choice was to either defend the ANC or defend freedom of expression, most ANC supporters, including me, will defend the ANC.”
Thanks, Maggs, this is one of the most loyal affirmations I have heard this week.
It is just a pity that there are whitist elements in the bosom of the ANC that feel otherwise …
Mikhail Dworkin Fassbinder
November 25, 2011 at 10:50 am
Eggface,
“It is just a pity that there are whitist elements in the bosom of the ANC that feel otherwise”
Name one!
Mikhail Dworkin Fassbinder says:
November 25, 2011 at 10:50 am
Maggs is quite right. To anyone who cares to debate the issues honestly all the South African dichotomy is on this blog.
Maggs, do you mean to say ‘assess’ was not a typo and you did not really mean the ANC is about to ‘asswards’ the Con Court?
This is an incomplete story.
What stops the ex-presidents from driving (1000kms) to their destinations in a convoy of about 5 cars with about 10 or 12 body guards, sleep over at 5 star establishment. Will that be cheaper than flying the group? The e-mail is about flying but who pays for the driving & accomodation?
http://www.news24.com/SouthAfrica/Politics/Ex-presidents-free-flights-cut-20111125
Fuck the shareholders!!!
http://www.moneyweb.co.za/mw/view/mw/en/page292520?oid=556723&sn=2009+Detail&pid=287226
Michael Osborne says:
November 24, 2011 at 18:51 pm
‘who do you think “designed” God?’
Everything which has a beginning has a cause.
The universe has a beginning. Therefore the universe has a cause.
God, unlike the universe, had no beginning (& no end), so doesn’t need a cause.
Jama ka Sijadu
November 25, 2011 at 12:04 pm
Hey JkS,
“Everything which has a beginning has a cause.”
Did you also go on JR’s LOGIC++ course?
Before he died he taught us such things.
p.s. Ok, JR did not really die, being the shithead that he is, he abandoned us to go and live with other bigots – give it six months and he will be begging us to let him back here.
Hey, Gwebecimele, why do you spend your time on Moneyweb instead of doing homework about Sipho Dhlamini’s Popcornmachine and Icecream dispenser?
Think the problem to unemployment is going to be solved by everyone joining the Board of SASOL?
FLORIDA COURT SETS ATHEIST HOLY DAY
In Florida, an atheist hired an attorney to bring a discrimination case against Christians and Jews and observances of their holy days. The argument was that it was unfair that atheists had no such recognized days.
The case was brought before a judge. After listening to the passionate presentation by the lawyer, the judge banged his gavel declaring,” Case dismissed!”
The lawyer immediately stood objecting to the ruling saying, “Your honor, How can you possibly dismiss this case? The Christians have Christmas, Easter and others. The Jews have Passover, Yom Kippur and Hanukkah, yet my client and all other atheists have no such holidays..”
The judge leaned forward in his chair saying, “But you do. Your client, counsel, is woefully ignorant.”
The lawyer said, “Your Honor, we are unaware of any special observance or holiday for atheists.”
The judge said, “The calendar says April 1st is April Fools Day.
Psalm 14:1 states, ‘The fool says in his heart, there is no God.’
Thus, it is the opinion of this court, that, if your client says there is no God, then he is a fool. Therefore, April 1st is his day. Court is adjourned.”
@ Jama
“The universe has a beginning. Therefore the universe has a cause.”
Jama, how do you know the universe had a beginning? If God can be eternal, why cannot the universe also be eternal?
@ Jama
“If your client says there is no God, then he is a fool. Therefore, April 1st is his day.”
Jama, thank you very much for this splendid example of a theistic “joke.” Who says Christians don’t have a sense of humour?
Mikhail Dworkin Fassbinder
November 25, 2011 at 13:45 pm
Dworky,
“If your client says there is no God, then he is a fool”.
Then explain Brett – he says there is a god!
Michael Osborne says:
November 25, 2011 at 13:43 pm
“Jama, how do you know the universe had a beginning?”
Stephen Hawking says so!
http://www.hawking.org.uk/index.php/lectures/62
Maggs, I see you find it amusing to divert attention away from the serious subject matter of this discussion with childish catcalling. I can assure that none of us find your mischief amusing. I demand that you go and play elsewhere.
Thanks.
So, Hawking is your true God!
If so, its funny that he does not share the faith of most theists:
“I’m not afraid of death, but I’m in no hurry to die. I have so much I want to do first. I regard the brain as a computer which will stop working when its components fail. There is no heaven or afterlife for broken down computers; that is a fairy story for people afraid of the dark.”
Michael Osborne says:
November 25, 2011 at 15:06 pm
I could just as easily have quoted a religious source, I merely quoted a secular source to establish that the ‘beginning of the universe’ is a generally accepted idea, even amongst those who deny the existence of God.
On the subject of computers & brains;
The late Isaac Asimov, an ardent anti-creationist, once declared, “In man is a three-pound brain which, as far as we know, is the most complex and orderly arrangement of matter in the universe.”
It is much more complex than the most complicated computer ever built. Wouldn’t it be logical to assume that if man’s highly intelligent brain designed the computer, then the human brain was also the product of design?
Just a question
@ Jama
1. The fact that the current consensus is that the universe came into existence with Big Bang does not mean it is true. Until not long ago, the leading theory postulated a “steady state” universe, which was eternal and infinite. Now one hears that the singularity that gave rise to the Big Bang was born of a random fluctuation is a quantum vacuum. Or whatever. Which hypothesis is powerful enough to base religious faith?
2. Assuming that the human brain was the product of a design, how do we know that God was the designer? How do we know it was not a civilisation of advanced space aliens that designed animals, and humans, and the brain?
3. It does not assist to say that, if the universe had a beginning, then it had a cause, and that cause must have been God. When I ask you who created God, you say that he is eternal. But how do you know that? How do you know that God too did not have a beginning — and that God must therefore also have been created by something/someone else?
Interesting.
Our pinko progressives do not think it is worth their time and effort to debunk the myths that underlie the hate-speech that led to a couple of high-profile court cases this year, as well as South Africa being upgraded to Stage 6 by Genocide Watch, but they feel compelled to debunk what they view as creationist myths when religion is one of the few things that draw South Africans together.
Mikhail Dworkin Fassbinder
November 25, 2011 at 14:48 pm
Dworky,
“Maggs, I see you find it amusing to divert attention away from the serious subject matter of this discussion with childish catcalling”.
It was a sincere and innocent question. I deny your insinuations.
Brett is not an absolute fool despite what Jama has to say.
And there is nothing more important than god for Brett.
Except maybe Mshini Wam!
JkS, in invoking god/s as an explanation for the unexplained (i.e. ‘gap’) complexity of the universe, you are assuming the burden of proving your claim. This is not proved by attacking current theories as that only, if you’re successful, brings us back to knowing nothing. On top of dismissing current theories, you have to provide something more than an unfalsifiable claim like, ‘God is there, but is eternal, invisible and unbound by the laws of the physical universe’ as the same could then be said for invisible pink unicorns (prove to me now that they do not exist and I will then use your method to disprove your God).
If the MPs think getting answers now are a challenge, they better do all they can to improve the PoIB.
The frustration of MPs with inadequate answers from government officials reached boiling point when Parliament’s public spending watchdog, the standing committee on public accounts (Scopa), began its hearings into irregular, wasteful and fruitless expenditure by state departments.
http://www.iol.co.za/news/politics/mps-fume-as-billions-go-to-waste-1.1187481
The ANC MPs are fuming because those billions are not flowing their way…
Brett Nortje
November 28, 2011 at 10:37 am
Hey Goofy,
“The ANC MPs are fuming because those billions are not flowing their way…”
It took them 17 years to find that out?
Nah – this it seems is what kids do in junior grade “show and tell”.
I don’t believe their performance – the MPs haven’t demonstrated any real concern to date apart from some occasional noise making and fake annoyance.
If it was not so serious it would be comical!
@ Maggs
“It took them 17 years to find that out?
Maggs, it will take more than a decade or two for the ANC to fix the devastation wrought by 620 years of colonialism!
And, sadly, mistakes will be made along the way – even if those mistakes cost at quick count way past the R300bn mark for the last 5 years….
[...] For a comprehensive analysis of this Bill within the wider constitutional context, see this note by my alma-mater’s Prof. Pierre De Vos posted here. [...]
This argument makes no sense. Essentially what is being said are two things: the definition of national security is too wide (and read with other sections) is ‘over-broad’. Now does ‘over-broad’ mean that the offending section goes to far in limiting s16 and s32? I figure that’s the argument. National Security clauses are notoriously difficult to define. In fact the prof should do himself a favour and reference some of the debates that took place regarding defining Canada’s version of National Interest/Security. In some sense such clause need to be broad, over-broad as the prof may say. That in itself doesn’t make it unconstitutional. As prof does (selectively so mind you), you have to juxtapose other sections in your reading in of an ‘over-broad’ limitation of s16 and s32. For instance, an inherent check and balance is the ‘how’ and the ‘why’ in classifying docs. The bill eliminates the dangers of arbitrariness in classifying information. In fact it goes even further creating a stark disincentive for officials acting outside of the spirit of constitutional order.
This brings me to what I deem the main and second point pierre’s argument: the lack of a public interest defense. He argues that to save the bill from the odour of illegality one must include a public interest defense. Now this is the main argument of the blacktuesday types. This argument is interesting in that as a starting point, the argument avers that the bill is unconstitutional not because of what it contains but because of what it doesn’t contain. Where does one draw the line with such argument, whereby one weighs the constitutionality of legislation on a multitude of variables and hypothetical as opposed to what the bill actually says. In short the fact that there is no public interest defense in itself doesn’t make the legislation unconstitutional. Moreover regarding the public interest argument, the bill does clearly state what it considers misclassification, thus fulfilling the very same requirement you stipulate above. In fact some of those criteria are so subjective, ‘over-broad’ that a defense would be easier to make. Here I particularly refer to the hiding embarrassment clause. How does one define embarrassment in this context, has a court ever taking Notice of what embarrassment to govt is. This will make for very interesting analysis.
The fact is the many of the arguments on this page and elsewhere speak more directly to the potential misapplication of this law as opposed to the inherent unconstitutionally of it. This is a subtle but important difference. And pierre should know the difference.
I am somewhat suprised that the bogey of section 6(j) which provides:
in balancing the legitimate interests … the relevant Minister, relevant official or a court must have due regard to the security of the Republic, in that the national security of the Republic may not be compromised.
Whilst the starting point is innocous the emboldened text contains a wonderful little rabbit hole of escalating national security beyond that of the Constitution. Surely the supremacy clause cannot be ignored when a statute seeks to place national security (however defined) above the Constitutional state. That it is the intention of the clause to elevate national security above the Constitution is clear in the fact that the items listed in the “legitimate interests” include:
“regard to the freedom of expression, the right of access to information and the other rights and freedoms enshrined in the Bill of Rights”
Of course Salus reipublicae suprema lex is applicable but for our wonderful, perfect and most endearing constitution which so wonderfully holds itself to be immutable and has the state of emergency clauses. It is hardly plausible for a court to be bound to interpret the Bill of rights with a doctrine applicable in a state of emergency when none exists. The truth is the salus populi – where populi includes everyone emboldenned in the Constitution and designed to replace the reipublicae is replaced by a doctrine that Survival of Zuma suprema lex.
O and the Latin phrases are used simply because I don’t believe that an English translation captures the underlying doctrines.