The Public Protector cannot realise the constitutional purpose of her office if other organs of State may second-guess her findings and ignore her recommendations. Section 182(1)(c) must accordingly be taken to mean what it says. The Public Protector may take remedial action herself. She may determine the remedy and direct its implementation. It follows that the language, history and purpose of s 182(1)(c) make it clear that the Constitution intends for the Public Protector to have the power to provide an effective remedy and direct its implementation.
At a widely publicised event, Trollip said he was “very proud” to welcome the king to the DA. The King, who joined the DA over the weekend, faces a 15-year prison sentence after being convicted of several serious crimes – including kidnapping, culpable homicide and assault with intent to do grievous bodily harm. He is awaiting his appeal against his conviction and sentence, which might or might not have something to do with his Damascus conversion about the wonders of the DA.
The King is of course free to join any political party that thinks it can afford to have him. I hear the Dagga Party is looking for members. His right to do so is protected by section 19(1) of the Constitution, which states that:
Every citizen is free to make political choices, which includes the right: to form a political party; to participate in the activities of, or recruit members for, a political party; and to campaign for a political party or cause.” (isiXhosa translation: “Wonke ummi ukhululekile ukuba azikhethele ngokwezopolitiko, oku kubandakanya ilungelo: lokuseka iqela lezopolitiko; lokuthabatha inxaxheba kwiintshukumo zeqela lezopolitiko, okanye ukufunela iqela lezopolitiko amalungu; kunyenokugayela iqela elithile lezopolitiko okanye injongo ethile yezopolitiko.
This means that Parliament is prohibited from passing laws similar to those passed by the Apartheid Parliament, which allowed the then National Party government to “ban” the ANC, the SACP, the PAC and other movements who fought for liberation from operating legally in South Africa.
Section 19(1) also prohibits Parliament from passing Apartheid-style laws that would forbid any person from belonging to a political party or movement that operates in South Africa.
Whether Parliament may – under certain narrow circumstances – ban political parties whose aim is to overthrow of the democratically elected government or to replace the constitutional democracy with a totalitarian regime, is of course another matter.
The German Constitutional Court banned the Communist Party as well as a Neo Nazi Party in the early days of the German democracy, but recent moves to ban another far right party has run into some opposition. In any case, as far as I know, there are no parties in South Africa whose stated aim is to eradicate democracy altogether, so this point is not currently of interest to us.
The right to join a political party and to remain a member of a political party is, of course, not an absolute right. A political party has the right to take disciplinary steps against members or to refuse membership to potential members in order to protect its image and to ensure that some of its members do not bring the party into disrepute or undermine the basic values espoused by that political party.
Just ask Julius Malema, who was expelled from the ANC after being found guilty of breaching its Constitution.
Speaking of Constitutions, the DA’s own Constitution seems to have been flouted by the DA when it welcomed a convicted kidnapper and assaulter as a member.
Section 126.96.36.199 of the DA Constitution states that “[e]very person wishing to become a member of the Democratic Alliance must subscribe to the Vision, the Principles, the Programme of Action and the Mission Statement of the Party.” So far, so good. If the King really believes in the so called “equal opportunities society”, and if his conversion to the DA is not as opportunistic as it might appear to the reasonable outsider, this section would not prevent him from joining the party.
Interestingly, section 3.2.1 of the DA Constitution also allows the Executive of a Constituency or the relevant Regional or Provincial Executive of the DA to refuse to accept the membership of any person who applies to join. These bodies failed to exercise this power, instead welcoming the King as a member of the DA – despite his criminal convictions.
But the decision to welcome the King as a DA member is even more inexplicable if you read section 188.8.131.52 of the DA Constitution. This section states that a member of the DA automatically ceases to be a member if he or she is “found guilty of any offence listed in Schedule 1, 2, 5, 6 or 7 of the Criminal Procedure Act”. Curiously, schedule 1 offences include culpable homicide, kidnapping and assault when a dangerous wound is inflicted”.
King Dalindyebo has been convicted of all three crimes. Although he is appealing his conviction and sentencing and could still be acquitted on appeal, the fact remains that he has been convicted of crimes which the DA constitution itself states automatically terminates his membership.
In the past the DA has shown far less leniency when public figures aligned with the ANC were convicted of criminal offences. At the time it demanded the firing of then Deputy President Jacob Zuma after the conviction of Schabir Shaik – even though Zuma had not been convicted of any crime himself.
At the very least the stench of hypocrisy hangs over the DA. At worst, it is flouting its own Constitution for perceived short-term political gain. (It is an open question whether the King’s decision to join the DA will benefit the party as hoped – did anyone in the DA check how much support the King actually has?)
It must be said that political parties are, by their very nature, opportunistic. They want to win votes while appearing to be principled and honest, but will do almost anything to get more votes if they think they can get away with it. It might therefore appear unfair to single out the DA for being so blatantly unprincipled and opportunistic.
But because the DA presents itself as more principled and honest than other political parties (notably the ANC) and as being implacably opposed to criminality, its embrace of King Dalin . dyebo – despite his criminal conviction on schedule 1 offences – must surely damage its image. By welcoming a convicted kidnapper, someone who was found guilty of culpable homicide, as a member of the party while he is still awaiting the outcome of an appeal, the DA is sending the message: “Do as we say, not as we do.”
What next? A public event where Helen Zille openly welcomes Oscar Pistorius into DA fold?
All is not lost. Section 3.6.1 of the DA Constitution further states that the membership of any member of the party may also be terminated by a provincial executive or the Federal Executive, but only after a Disciplinary Committee has found a member guilty of misconduct.
I would think that the DA could win back some lost credibility by starting the process of expelling the King, who it has so recently enthusiastically welcomed as a member. But I am not holding my breathBACK TO TOP