Constitutional Hill

Should we always trust officials who remove children from their parents?

Jan 12th, 2012
by Pierre De Vos.
48 comments

We live in a world in which elites of every stripe (including many journalists, social workers, police officers, politicians and judges) often assume that poor people are dishonest, irresponsible and lacking in the basic ability to care for others – including their children. There is a deeply ingrained assumption amongst many (but, of course, not all) members of the chattering classes that poor people are to blame for their poverty and that they are prone to be less responsible and less worthy of concern and respect than middle class or rich people.

Meaning well, some often endorse interventions by the state that are aimed at “protecting” poor people from themselves (regardless of what their real needs and wishes might be) and protecting the children of poor people from assumed neglect by their parents. Acting on the questionable assumption that state officials will be better placed than parents to determine what is in the best interest of children, they endorse potentially drastic interventions by state officials to “save” or “protect” children from their poverty stricken parents.

In Australia this kind of paternalistic authoritarianism gave rise to the scandal of the Stolen Generations. Between approximately 1869 and 1969 children of Australian Aboriginal and Torres Strait Islander descent were removed from their families by the Australian Federal and State government agencies and church missions, under acts of their respective parliaments, ostensibly to protect the children and enhance their life chances.

In the South African context, how destructive this can be of the basic dignity of the poor is well illustrated by the facts that gave rise to the various judgments handed down by the Constitutional Court yesterday in the case of C and Others v Department of Health and Social Development, Gauteng and Others.

On Friday 13 August 2010, Mr C was repairing shoes on a street corner – as he does every day – but unlike other days he had his daughter with him because his partner (who normally looked after the child) had been hospitalised to give birth to another child. Ms M, a blind person, was accompanied by her two daughters while begging.

On that day designated social workers removed the children from both Mr C and Ms M and placed them in the Department’s care facilities, without notifying the parents of where they were. The social workers (along with other Tshwane officials) were taking part in a well-planned operation involving the removal of children from people found to be begging while accompanied by children. No court order had been sought for the removal of these children.

Section 152(1) of the Children’s Act empowers a social worker or police official to remove a child and place the child in temporary safe care, without a court order, if it is reasonably believed that: (a) the child is in need of care and protection and needs immediate emergency protection; (b) the delay in obtaining a court order may jeopardise the child’s safety and well-being; and (c) removal is the best way to secure the child’s safety and well-being.

In terms of the Act, a social worker is required to compile a report on whether the child is in need of care and protection in terms of section 152 within 90 days, after which the child must be brought before the children’s court for a determination of whether she or he is indeed in need of care and protection. There is no provision for automatic court review before compilation of the report and if parents are unable to appear in court or get help from an NGO to assist them, chances are that their children would permanently be deprived of the care and love of their parents.

In two separate decisions Skweyiya J (Froneman J concurring) and Yacoob J (Moseneke DCJ, Khampepe J, Nkabinde J and Van der Westhuizen J concurring) both agreed, for slightly different reasons, that the provisions of the Children’s Act that authorised this removal of children from their parents without court supervision were in breach of section 28 and section 34 of the Constitution and that this was not justifiable in terms of the limitations clause.

Although a social worker or police official is empowered by the Act to remove a child from his or her parents only if, in their reasonable belief, immediate emergency protection is so necessary that the delay in obtaining a court order may jeopardise the child’s safety and well-being, and then only if the removal of the child is the best way to secure that child’s safety and well-being, the danger is that a social worker or police officer will exercise this discretion on the basis of prejudicial assumptions about poor people and their ability and willingness to look after their children.

As Justice Yacoob emphasised, the purpose of the impugned provisions is to protect, secure and prevent the violation of the constitutional rights of children. One may well ask (if one takes an overtly formalistic view of constitutional interpretation or if one harbours the deeply paternalistic view that state officials will often be better placed that poor citizens to decide what is in the best interest of their children): how can the legislative provisions here in issue that are palpably designed to protect the constitutional rights of children be inconsistent with section 28 of the Constitution?

The answer is simple: there exists always the possibility that a removal would be wrongly made (because of overzealousness on the part of social workers or police officers or because of the prejudices against the poor harboured by many social workers and police officers. As Yacoob  therefore stated:

It is in the interests of children that an incorrect decision by a court made without hearing the child or the parents, or by a designated social worker or police official be susceptible to automatic review by a court, in the ordinary course, in the presence of the child and the parents. It follows from this that sections 151 and 152 [of the Act] do not provide for this and are therefore constitutionally wanting. Sections 151 and 152 of the Act, though their positive provisions are aimed at the best interests of children, fall short of achieving this result. They carry the potential of being counter-productive because they fail to provide for a Children’s Court automatic review in the presence of the child and the parents. In this sense, and to this extent, the laws are not in the best interests of children. They therefore limit the rights contained in section 28(2).

Having found the provisions unconstitutional, the question remained how to correct this problem. If the sections were merely declared invalid, social workers and police officers would have no power to protect children and remove them from parents (even when this was clearly required) until such time as Parliament had remedied the defect. If the order of invalidity was merely suspended and Parliament provided with one or two years to fix the problem, there would be no guarantee that the sections would not be abused.

The majority therefore endorsed a radical remedy of reading a whole new section into the Act, requiring that a social worker place the removal of children before a Children’s Court for review within 48 hours after the removal and must ensure that the child concerned and the parents, guardian or care-giver as the case may be are, unless this is impracticable, present in court for this review.

Both Skweyiya and Yacoob were at pains to say that this reading in of words into the statute by the court should not be seen as an infringement of the separation of powers doctrine because the court is now writing legislation on behalf of the legislature. As Skweyiya eloquently stated:

By making a final order of this kind, however, I do not suggest that the Court has crowded-out Parliament’s role in further investigating how best to serve the interests of children, for whom a removal from the home is necessary, and in enacting appropriate legislation. Indeed, a final order of reading-in does not give the judiciary the ultimate word on pronouncing on the law. Instead it initiates a conversation between the Legislature and the courts, for Parliament’s legislative power to amend the remedy continues to subsist beyond the granting of the relief, and may be exercised within constitutionally permissible limits at any future time. I would therefore encourage the Legislature to exercise its entitlement to alter the remedy, should it see fit to do so, in view of its specialist expertise and, of course, subject to its constitutional mandate.

For Constitutional Court watchers the minority decision in this case might be of much interest. Although the minority decision was authored by Justice Chris Jafta, it was also supported by Chief Justice Mogoeng Mogoeng. To my mind there are two serious problems with the reasoning of the minority. First, the reasoning is extremely formalistic. There is no purposive interpretation of the provisions of the Bill of Rights at all and the impact or effect of the impugned provisions on the best interest of children is never considered. Second, the assumption underlying the minority judgment seems to be that social workers and police officers will always act in the best interest of the child and that their own prejudices and assumptions about poor people will never cloud their judgment.

Thus Jafta focuses on the text of section 28 of the Constitution and notes that it does not include a requirement that any decision to remove children from their parents should automatically be reviewed. Consequently, he argues, it cannot be used as a constitutional standard for determining the validity of legislation.

In the context of section 28(1)(b) read with section 28(1)(d) and section 28(2), the scope of the right to parental care cannot include parental care that is harmful or detrimental to the safety and well-being of a child. It cannot be claimed that section 28(1)(b) entitles a child to parental care that is harmful to its safety and well-being. It follows that the right to parental care envisaged in section 28(1)(b) is limited to parental care that is beneficial to a child. In other words, this section does not protect harmful parental care. Consequently, legislation which authorises a removal of a child from harmful parental care cannot limit the right in section 28(1)(b).

Completely failing to ask how these provisions would be applied and what impact this might have on the rights of the child to parental care, the minority merely focuses on the wording of section 28 – as if the provisions of the Bill of Rights have not been written in broad and general terms and are not in need of interpretation and amplification by the Constitutional Court – and concludes that these provisions do not prohibit Parliament from empowering officials to remove children from their parents, as long as those officials believe that this is warranted.

The possibilities that state officials will be influenced by anti-poor attitudes and will not always know better than the poor parents (who will be “legally” robbed of their children) what is in the best interest of their children, are never considered. This paternalistic attitude is surprising, to say the least and, to my mind, displays the kind of attitude that is difficult to square with a progressive, pro-poor and pro-transformation vision of the Constitution.

Posted in: Constitutional Court, Dignity.

When silence should not be an option

Jan 10th, 2012
by Pierre De Vos.
34 comments

It is safe to say that the late Professor Barend van Niekerk, the campaigning legal academic and a prominent human rights and anti-apartheid activist (who died in Bolivia in 1981) was not much admired or liked by National Party leaders like HF Verwoerd or BJ Vorster (or, one assumes, by their slavish supporters). He was twice prosecuted (and once convicted) for contempt of court and was also privately sued by a former Minister - all because of his fearless criticism of the apartheid judiciary and the justice system.

In the case of S v Van Niekerk (1970 (3) SA 655 (T)) he was unsuccessfully prosecuted before the High Court in Johannesburg for publishing an article entitled “Hanged by the neck until you are dead” in the South African Law Journal the previous year. Prof Van Niekerk had obtained the opinions of several practising lawyers about the imposition of the death penalty by South African courts and concluded from the data collected that:

Whatever conclusion one may draw from the results of these two questions the fact which emerges undeniably is that a considerable number of replying advocates, almost 50 per cent in fact, believe that justice as regards capital punishment is meted out on a differential basis to the different races, and that 41 per cent who so believe are also of the opinion that such differentiation is “conscious and deliberate”.

This narrow escape did not deter Prof Van Niekerk from speaking out and towards the end of 1971 he gave a speech at a protest meeting organised to protest against the Terrorism Act and a specific trial at that time being conducted in Durban in terms of this Act. Most of the witnesses called by the State to testify in this trial had been detained for long periods by the police and any reasonable person (which apparently did not include the majority of South African judges at the time) would have been deeply suspicious that they only agreed to testify because they were tortured.

In his speech at the protest meeting, Prof Van Niekerk criticised the vast majority of South African lawyers for remaining silent in the face of the application of this draconian piece of legislation, arguing that lawyers “should realise that by remaining silent in the face of what they know to be inherently unjust, cruel and primitive they are indeed sullying themselves and the reputation of their profession”. (Whether these words have any relevance for South Africa today, I will leave to the conscience of every reader — including those readers who are busy doing fee-paying legal work as I write this.)

He also argued that the very purpose of the detention clause of the Terrorism Act was to procure evidence by way of torture and asked whether in “the face of the grotesqueness of the situation as regards the application of the Terrorism Act” whether the time had not come for judges “to stand up more dynamically in the defence of the hallowed principles of the rule of law…”, which would require them to handle with caution all evidence procured in solitary confinement, thus practically robbing such evidence secured under detention of “all creditworthiness”.

In convicting Prof Van Niekerk, the Durban High Court found his words to have constituted an “invitation to Judges to embark upon a conscious refusal to give credit, in practically all cases, to evidence obtained in the manner referred to, as a means of killing or rendering ineffective those parts of the Terrorism Act which make such things possible, and in doing so to approach their duties in a manner which is incompatible with their duty, C and the oath which they took, to do justice without prejudice”.

The judge based his conviction of Van Niekerk on the ground that although he had not actually intended to bring some influence to bear upon the judge trying the terrorism case then before the court, the above-mentioned “invitation” nevertheless had a tendency to influence that court, and thus to obstruct the course of justice. The conviction was later confirmed by the Appellate Division in a judgment written by then Chief Justice Ogilvie Thompson, who held that the test to be applied for contempt of court was “whether the statement or document in issue tends to prejudice or interfere with the administration of justice in a pending proceeding”.

Those dark days are long past and today no academic or lawyers will be convicted for contempt of court for making the kind of statements that Prof Van Niekerk made back in 1971. The constitutional guarantee of freedom of expression, read with the various provisions safeguarding the independence of the judiciary have made it very difficult to secure a conviction in this kind of contempt of court cases. In the Midi Television judgment handed down a few years ago, the Supreme Court of Appeal also explicitly rejected the dicta of the Appellate Division in the Van Niekerk case, stating that:

What is required by all those tests (implicitly, even if not always expressed) before a ban on publication will be considered is a demonstrable relationship between the publication and the prejudice that it might cause to the administration of justice; substantial prejudice if it occurs; and a real risk that the prejudice will occur. In my view nothing less is required in this country and to the extent that the pre-constitutional decisions of this court in Van Niekerk …. might suggest otherwise I do not think they are consistent with what is to be expected in contemporary democracies. But merely to ask whether there is indeed a risk of prejudice that meets those criteria does not end B the enquiry. For as I indicated earlier, the limitation must not only be directed towards a permitted end, but must also be no more than is necessary to achieve its permitted purpose.

Robust criticism of court judgments in the media and by legal academics and even politicians are now the order of the day and when a judge makes statements (in his or her judgments or in extra–curial writing) that are sexist, racist, homophobic or that otherwise displays a lack of respect of the founding values of our Constitution, it is to be expected that lawyers, journalists and legal academics will criticise that judge harshly.

A failure to speak up would constitute a betrayal of the lawyer’s ethical duty spoken about by Prof Van Niekerk all those years ago. Every patriotic citizens who believes that it is important to defend the Constitution and the democracy it has brought into existence may well feel compelled from time to time to criticise court judgments and the actions or omissions of certain judges who do not measure up to basic ethical standards we have come to expect from judges.

Of course, not everyone sees the matter in this way. During the Judicial Service Commission (JSC) interview with the current nominee for the position of Chief Justice, Minister Jeff Radebe blasted Justice Mogoeng Mogoeng’s critics (who had raised concerns about  his suitability for appointment because of statements he had made in his judgments and about his intimate involvement in a deeply homophobic church) stated that there had been a “vicious campaign against your person and dignity”. And last week, at the funeral of the late Judge Fikile Bam, the Chief Justice himself complained bitterly because “sitting and retired judges criticise their serving colleagues and do so viciously without offering alternative solutions to perceived wrongs”.

These comments raise anew questions about where one should draw the line and when criticism of court judgments and of judges would overstep the mark. Surely, where criticism of a judge, his or her behaviour inside or outside a court and the reasoning used by a judge in his or her judgments, relate directly to the fitness of that judge for judicial office or to the question of whether the judge respects the constitutional values of freedom, equality and human dignity, it will be difficult to imagine that such criticism would constitute contempt of court.

This rule may not apply to sitting or retired judges who should normally not comment on the judgments of other judges or on cases that might still come before a court. But when the Rule of Law is threatened or the independence of the judiciary or the constitutional system itself is under attack, then judges — both retired and sitting — might well have an ethical duty to speak out and not to remain silent like so many lawyers did in decades of apartheid rule. When to speak out will always be a difficult ethical issue and different judges will draw the line differently, but surely not speaking out may sometimes be far more unethical than speaking out (and then offending one’s former or current colleagues on the bench)?

The criticism of members of the judiciary might well be experienced as “vicious” by those judges who are not used to being criticised or who are particularly insecure and thin-skinned. Some criticism might well overstep the mark, especially where the criticism is extremely personal in nature and where it has no bearing on what the judge had actually done or said.

If I were to write that judge X was a drunk or that judge Y was a womaniser (without having credible evidence to back this up and without this being pertinent at all to the ability of that judge to act in an independent and impartial manner and according to the highest ethical standards) I would suspect that my criticism would go beyond what is acceptable in a constitutional democracy. But if I analysed the judgement written by judge X and concluded from this analysis that judge X is a sexist or a homophobe, I should be at liberty to say so – as long as I provide cogent reasons for my argument.

Not saying anything and keeping silent in the face of egregious ethical breaches by a judges or in the face of displays of extreme prejudice in the form of racism, sexism, homophobia or xenophobia by a judge, would often be cowardly, not professional and ethically correct. Whether a judge criticised in this manner experience the criticism as vicious or not will, from an ethical perspective, be neither here nor there.

It must be acknowledged that judges are often in a difficult position as they are not supposed to answer their critics and should really only speak through their judgments. They might feel that some criticism by other judges, lawyers or legal academics or by the media is unfair or off the mark and might bristle at know-it-all lawyers and academics who argue that they have gotten the law wrong or that they have written a judgment that demonstrates a decided lack of respect for women, black people or gay men and lesbians.

But in a constitutional democracy — unlike in Barend Van Niekerk’s apartheid South Africa — they would normally not be able to invoke the criminal law to have the critic charged with contempt of court. And a good thing this is too, because in the absence of robust criticism of judges, the constitutional dialogue between judges, lawyers, academics and the executive would end and judges would not feel that they are in any way accountable for their judgments.

And if judges — retired or currently serving — never speak up about perceived moves to undermine the Rule of Law and the constitutional democracy itself, one may well warn them (just as Barend Van Niekerk warned lawyers back in 1970) that through their silence they might indeed be “sullying themselves and the reputation of their profession”.

PS: I am in no way implying that the draconian and oppressive system under which Prof Van Niekerk laboured can be compared with our constitutional democracy  and the legal system we work under now. What I am arguing is that silence is not always the right option and that truly wise and brave judges, lawyers and academics will remain vigilant and will constantly ask themselves if their silence is contributing to injustice or not.

Posted in: Criticism of Courts, defamation, Mogoeng Mogoeng.

The ANC’s centenary celebrations and internal party democracy

Jan 9th, 2012
by Pierre De Vos.
73 comments

The African National Congress (ANC) celebrated its 100th birthday this weekend with such revolutionary pursuits as a golf day and a prayer service. At the end of a huge mass rally on Sunday Deputy President Kgalema Motlanthe proposed a toast and told the (by then half-empty) stadium that if they did not have champagne, they could take photographs of their leaders drinking, or raise clenched fists. “The leaders will now enjoy the champagne, and of course they do so on your behalf through their lips,” he said.

The ANC has a lot to celebrate and feel proud about (especially about its past), but the quality of its current leaders drinking champagne on that stage (and, directly related to this) the manner in which such leaders are elected, are not part of that which the organanisation can feel proud of. No wonder President Jacob Zuma announced that “the ANC will renew its internal systems and processes in order to prepare and produce new generations of leadership for our country, whose integrity and passion to serve our country is unquestionable”.

The same noises about changes to the internal election procedures of the ANC were made four years ago and nothing came of it, but there is surely an urgent need to address the manner in which party leaders are elected in the ANC – and given recent problems with internal party elections in the Democratic Alliance (DA), also in that political party - to make these processes more democratic and to try and insulate the processes from corruption and the influence of money.

This is important not only for the health of the ANC (and other political parties like the DA) but also for our democracy as a whole. Given the fact that our pure proportional representation electoral system does not allow us to directly elect any public representatives at the national or provincial levels (we can only vote for a party, never for a person), the Mandarins at Shell House might want to consider amendments to the process of electing leaders that would make such elections more transparent and bring them more in line with the democratic values of openness, accountability and transparency set out in the founding provisions of our Constitution.

However, neither the ANC nor the DA had shown an appetite before for developing binding legal rules to force political parties to adhere to minimum standards of internal democracy.  A few years ago when I suggested at an Idasa event that our Parliament should adopt a political party law that regulates the funding of political parties as well as prescribes minimum requirements for internal party democracy for the election of leaders and of representatives to our various legislatures, the then DA Chief Whip, Douglas Gibson, was not amused and accused me of wanting to impose a North Korean style system on South Africa.

Instead of starting to cry like a North Korean, I wrote the following email to Mr Gibson the next day which remains pertinent for this debate:

Last night at the Idasa event on the working of Parliament I asked whether political parties in South Africa would be prepared to consider the adoption of a party law that would, inter alia, regulate the way in which candidates are selected to stand for public office. You replied that this was unacceptable and never happens in any democracy – “only in countries like North Korea”. I thought it might be interesting for you to know that many countries do have party laws, including Germany, Argentina, Mexico, South Korea and as far as I can tell at least 40 others.

In Germany Article 17 of the Party law of 1967 (last amended in 1994) states that: “The nomination of candidates for election to all levels of government must be by secret ballot. The nomination procedure shall be as prescribed by the electoral laws and party statutes.”

Article 21 of the electoral law further regulates the matter as follows:

“(1) A person may only be named as a candidate of a party in a constituency nomination if he or she has been elected for this purpose at a members’ assembly convened to elect a constituency candidate or at a special or general delegates’ assembly. A members’ assembly convened to elect a constituency candidate shall be an assembly of members of the party who at the time of their meeting are eligible to vote in the German Bundestag election in their constituency. A special delegates’ assembly shall be an assembly of the delegates elected by such an assembly of members from their own ranks. A general delegates’ assembly shall be a general assembly appointed in accordance with the statutes of the party (Article 6 of the Law on Political Parties) by such an assembly of members from their own ranks in view of forthcoming elections.

… (5) Further details regarding the election of delegates for the delegates’ assembly, the convening and the quorum of the members’ or delegates’ assemblies as well as the procedure for the election of the candidate shall be set forth in the parties’ statutes.

 (6) A copy of the record of the election of the candidate, with details of where and when the assembly took place, the form of the invitation, the number of members present and the result of the ballot shall be submitted with the constituency nomination. In so doing, the chairperson of the assembly and two members present designated by it shall give the District Returning Officer an assurance in lieu of an oath to the effect that the election of the candidate was by secret ballot. The District Returning Officer shall be responsible for accepting such an assurance in lieu of an oath; he shall be considered an authority within the meaning of Article 156 of the Penal Code.

Your assertion regarding North Korea was therefore slightly off the mark.

These provisions illustrate that legislation may well be adopted in a democracy (especially one with some form of proportional representation electoral system) to set minimum standards and criteria for the election of party representatives in the various legislatures, but leaves it open to each political party to arrange their elections in accordance with their own character and traditions within the confines of these minimum standards. There is nothing that prevents such a law also from applying to the election of party leaders.

Such a law will have little effect, however, if it does not regulate the funding of the internal election campaigns of party leaders and if it does not require transparency in the funding of such campaigns and if it does not prohibit influence buying by large corporations or unscrupolous individuals trying to land huge government tenders.

To this day we do not know who financed Jacob Zuma’s campaign to be elected President of the ANC. Was this campaign funded by thousands of small donations by ANC members eager to see the back of Thabo Mbeki, or was it funded by people like the late Muammar Gaddafi of Libya or by Angola’s President Jose Eduardo dos Santos (as some rumours would have it)? Did Roux Shabangu or other tenderpreneurs contribute to this campaign and was Jacob Zuma beholden to these financiers when he eventually became President? Did the Gupta’s have any role in financing President Zuma and his campaigns and if so, what were they hoping to get out of it?

We simply do not know answers to these questions because there are absolutely no legal rules that bind political parties and potential leaders in those parties to reveal the sources of funding used for either internal leadership campaigns or for political party electoral campaigns in general.

If the ANC is serious about renewing its internal systems of leadership elections and if it wishes to become more democratic and to empower ordinary ANC members to have a more decisive say in leadership elections, it will have to address the influence of money on such elections as a priority and will also open up leadership contests and debates to general scrutiny and debate (as has been suggested by Julius Malema). One way of doing so is by passing a law that prescribes minimum criteria for such elections in the manner similar to that applicable in Germany.

Will the ANC bite the bullet and address this elephant in the room? My guess is that too many people with too much money and power have too much to lose from a change in the rules and from a legally enforced transparent system of leadership and public representative elections. But who knows, maybe the ANC will be overcome with a sudden attack of principle and will do the right thing after all. Or maybe a majority of ANC leaders will not act in a principled way but will nevertheless realsie that opening up leadership elections will weaken the incumbent President and his campaign for a second term and will proceed to do the right thing for the wrong reasons?

Posted in: ANC, DA, democracy.

Get up, stand up for your rights!

Jan 5th, 2012
by Pierre De Vos.
87 comments

Most people think,
Great god will come from the skies,
Take away everything
And make everybody feel high.
But if you know what life is worth,
You will look for yours on earth:
And now you see the light,
You stand up for your rights, jah!

Get up, stand up! (jah, jah! )
Stand up for your rights! (oh-hoo! )
Get up, stand up! (get up, stand up! )
Don’t give up the fight! (life is your right! )
Get up, stand up! (so we can’t give up the fight! )
Stand up for your rights! (lord, lord! )
Get up, stand up! (keep on struggling on! )
Don’t give up the fight! (yeah! )

- Bob Marley

The more things change, the more they stay the same. It might be a new year, but we are still talking about the same things we talked about in 2011…. and 2010…. and 2009. One of the things we keep on talking about is the seemingly never ending question of whether the Premier of the Western Cape, Helen Zille, is fatally addicted to Twitter. Another, and somehow related, question we cannot seem to get away from is the question of whether Cape Town is a racist city or not. 

At the end of last year Premier Zille (who has not learnt yet that one cannot have a sensible political argument in 140 characters at a time and whose Tweets often create the impression that she lacks an appreciation of the political sensibilities and the life experiences of the vast majority of South Africans who happen not to be white and upper-middle class like herself) got involved in another spat on Twitter about alleged racism in Cape Town.

In the Mail & Guardian online Verashni Pillay wrote a beautiful piece, in which she responded quite appropriately to this spat. Writing about her time living in Cape Town she remarked:

What drove me slowly mad was how racism was an elephant in the room that you could not talk about. How white Capetonians would cringe and turn away when the topic came up, or look at you in blank confusion and ask why you were so obsessed with race. It was how, yes, there is racism everywhere in South Africa but in Cape Town it is not possible to even discuss it. And how Cape Town, with its pristine beaches, its lofty Parliament buildings and history of activism, was somehow supposed to be better than that.

Yep, my experience exactly. When my former partner was the victim of racial discrimination several years ago and we challenged the discrimination in the Equality Court, many people in Cape Town continued to argue with us that we were being “overtly sensitive” and that what we experienced were not racism at all but “something else”. (What this “something else” might be, was never made clear to me and when several years later I landed up at a party with one of the owners of the club that discriminated against my partner, the co-owner admitted that racial discrimination indeed occurred that night – on the instructions of the club owners.)

But that is not what I want to talk about in this first post of the new year. Instead, I wish to pose a different (and, perhaps, difficult) question: why is it that so many people – even middle class people who are otherwise empowered and confident – complain about experiencing racism and racial discrimination (in Cape Town and elsewhere in South Africa), but seldom challenge this discrimination in the Equality Court?

In the racist world in which we still live in South Africa, fighting to achieve a non-racial society is always going to entail a long-term struggle. If one is never prepared to stick one’s neck out and to take on the racists, the sexists, the homophobes, the ethnic chauvinists, things will never change – or they will not change as fast as they should and as fast as we are entitled to.

Some people seem to think that now that we have achieved our democracy and our freedom, there is no need to struggle against the injustices that still haunt our land. If one experiences racism or racial discrimination in Cape Town, for example, one can just give up on Cape Town and move back to Johannesburg, thus avoiding places where one suspects one will be discriminated against.

Instead of living like truly free and equal citizens who confidently assert their right to be treated with equal dignity and respect on every square centimetre of land in South Africa - whether in Cape Town, in Pofadder or in Polokwane – some people still avoid confronting the racists, the sexists, the homophobes, and never try to force them to change. Some people do not seem to think that one must first get mad and then get even by making these racists pay for their actions, actions which affront the human dignity of others.

This can – theoretically, at least – be done quite easily. The Promotion of Equality and Prevention of Unfair Discrimination Act designates most Magistrates Courts as Equality Courts and one can approach any such court when one believes one has been discriminated against. The clerk of the Equality Court will then assist one to ensure that the case is brought before the Equality Court (in terms of section 20 of the Act).

Although not all clerks of the Equality Court are as well trained as they should be and although it can be difficult to get hold of these clerks (perhaps because they are required to deal with so few cases each year and are assigned other duties), a little prodding and nagging would usually do the trick. One does not need to engage the services of a lawyer in order to win an Equality Court case and the clerk of the court is supposed to assist any claimant to ensure that one’s documents are prepared properly  and papers are served on the alleged discriminator.

The form that must be completed is also available on the internet (see here) and is easy to fill in. The Act also assists the complainant by stating that as long as one has made out a prima facie case of discrimination the onus shifts to the other party who will have to convince the court that no unfair discrimination took place. This is so because discrimination is notoriously difficult to prove as those who discriminate will always have another reason for the different treatment (“there is a private function”, “only members are allowed”, “the flat has already been rented out”, “the dress code was not complied with”, “there is a waiting list for housing opportunities”).

To circumvent this problem one only has to show that a policy, law, rule, practice, condition or situation directly or indirectly imposed burdens, obligations or disadvantage on; or withheld benefits, opportunities or advantages from, a person on one or more of the prohibited grounds, including race, sex, gender, language, ethnicity and sexual orientation.

In other words once one has shown that one was treated differently than others in some way and that one of the differences between oneself and those treated differently was one’s race, sex, gender or sexual orientation, one has provided prima facie proof of discrimination and the discriminator will then have to justify this discrimination by showing that it was not unfair. This will not be easy to do.

And if one wins the case, the Equality Court is given wide powers to make an appropriate order which may include:

  • an order making a settlement between the parties to the proceedings an order of court; an order for the payment of any damages in respect of any proven financial loss, including future loss, or in respect of impairment of dignity, pain and suffering or emotional and psychological suffering, as a result of the unfair discrimination, hate speech or harassment in question; 
  • after hearing the views of the parties or, in the absence of the respondent, the views of the complainant in the matter, an order for the payment of damages in the form of an award to an appropriate body or organisation;
  • an order restraining unfair discriminatory practices or directing that specific steps be taken to stop the unfair discrimination, hate speech or harassment;
  • an order for the implementation of special measures to address the unfair discrimination; an order directing the reasonable accommodation of a group or class of persons by the respondent; 
  • an order that an unconditional apology be made;
  • an order requiring the respondent to undergo an audit of specific policies or practices as determined by the court: an appropriate order of a deterrent nature, including the recommendation to the appropriate authority, to suspend or revoke the licence of a person.

Yet, few South Africans ever approach the Equality Courts for assistance. Why there should be such a discrepancy between the large number of acts of discrimination experienced by South Africans, on the one hand, and the number of cases brought to Equality Courts on the other, is difficult to explain.

Can it be that some of us have been so brainwashed by apartheid that we do not all believe that we have a right never, ever, to be discriminated against? Have we been made to accept the fact that discrimination against us will occur and that it is best not to make a fuss and just to “move on”? Are too many of us afraid that the economically and socially dominant racists will brand us as overtly sensitive or as people who are “playing the race card”?

The law does not always serve ordinary people well. Sometime, instead of helping us to achieve justice the law may perpetuate injustice. But the Equality Act is a powerful tool to help every individual in South Africa who has experienced discrimination to reclaim their dignity and to achieve a semblance of justice. It is time that more South Africans stand up for what is right and use this law as it was intended to be used.

Posted in: Dignity, discrimination, Race.

Another legal oversight by the President?

Dec 29th, 2011
by Pierre De Vos.
52 comments

“Americans,” said Winston Churchill, many years ago “can always be counted on to do the right thing…after they have exhausted all other possibilities.” News that President Jacob Zuma seemed to have made another u-turn by accepting the decision of the Supreme Court of Appeal (SCA) which declared the appointment of the National Director for Public Prosecutions, Menzi Simelane, invalid, one day after lodging papers with the Constitutional Court opposing the decision, might well tempt one to apply this maxim to his Presidency.

After all, this year President Zuma first appointed and then fired Willem Heath as the head of the Special Investigative Union; first opposed the establishment of an arms deal inquiry before instituting one and eventually fired two cabinet Ministers and suspended the Police Commissioner – but only months after the Public Protector had found them guilty of maladministration.

Yet, it is not clear that the recent decision of President Zuma on Adv. Menzi Simelane complies with the provisions of the Constitution and the NPA Act. It is therefore far from clear whether President Zuma has done the right thing in this case. (Or put differently, he might have done the right thing but in an unlawful or unconstitutional manner.)

In a statement issued yesterday, the Presidency (somewhat confusingly) said that it had decided not to appeal the decision of the SCA.

However, the Minister of Justice and Constitutional Development, Mr Jeff Radebe will pursue the matter, seeking clarity on various issues in the course of the mandatory Constitutional Court certification process, with the full support of the President. In the meantime, the President has decided to place Advocate Simelane on special leave. Advocate Nomgcobo Jiba, Deputy Director of Public Prosecutions, will act as the National Director of Public Prosecutions until further notice.

It is not clear on what issues clarity is being sought from the Constitutional Court. One would assume, these would include clarity on what the President is required to do to comply with the provisions of the National Prosecuting Authority Act when he appoints a “fit and proper” person as head of the NPA.

Section 167(5) of the Constitution states that the Constitutional Court makes the final decision whether conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal before that order has any force. This means whether the President opposes the decision of the SCA or not, it will have no force and effect unless the Constitutional Court confirms it. Even if the Presidency does not “appeal” the decision of the SCA, it might therefore still be overturned by the Constitutional Court during the confirmation process and until that court decides on the issue, legally the National Director of Public Prosecutions (NDPP) remains in his post.

After the SCA handed down its decision, I contended that it would be in the best interest of the administration of justice for Adv. Menzi Simelane to step aside voluntary until such time as the Constitutional Court has dealt with this matter. Readers might therefore be forgiven for thinking that I would applaud the announcement that Adv. Simelane had been placed on special leave. And, of course, I cannot fault the Presidency for believing that it would be better for Adv. Simelane to go on leave until the SCA judgment had been dealt with by the Constitutional Court.

However, I am not sure that it is legally and constitutionally tenable for the NDPP to be placed on special leave by the President. In the absence of an announcement about an inquiry into Adv. Simelane’s fitness to hold office, the NPA Act makes no provision for the NDPP to be placed on special leave by the President – unless the NDPP himself requests this. There is a good reason for this: if the President could place a NDPP on special leave this would potentially fundamentally interfere with the independence of the NPA and would be illegal and unconstitutional.

The Constitutional Court confirmed in the First Certification judgment that the NDPP is independent. He or she can only be placed ons special leave, suspended or removed from office in terms of the NPA Act after following the correct procedures. The statement by the Presidency makes no mention of these procedures. I was critical of then President Thabo Mbeki when he first suspended Vusi Pikoli as NDPP after Pikoli had issued a warrant of arrest for Police Commissioner Jackie Selebi, arguing that the move reeked of interference with the independence of the NDPP.

The same principle applies here, despite the fact that the incumbent NDPP appears to be less enthusiastic about his independence. One must apply principles regardless of the personalities involved.

Section 12(5) of the NPA Act clearly states that the NDPP “shall not be suspended or removed from office except in accordance with the provisions of subsections (6), (7) and (8)”. Section 6 of that Act states that:

The President may provisionally suspend the National Director … from his or her office, pending such enquiry into his or her fitness to hold such office as the President deems fit and, subject to the provisions of this subsection, may thereupon remove him or her from office (i)  for misconduct; (ii)  on account of continued ill-health; (iii)  on account of incapacity to carry out his or her duties of office efficiently; or (iv)  on account thereof that he or she is no longer a fit and proper person to hold the office concerned.

This clearly has not happened as Adv. Simelane has not been suspended and neither has an inquiry been launched about his fitness to hold office. The only way in which the NDPP can go on special leave is if he himself requests to do so. (That is why I suggested that it would be best for Adv. Simelane voluntarily stepped aside.) Section 8 of the NPA Act provides for this, stating that:

(8(a) The President may allow the National Director or a Deputy National Director at his or her request, to vacate his or her office (i) on account of continued ill-health; or (ii) for any other reason which the President deems sufficient.

(b) The request in terms of paragraph (a)(ii) shall be addressed to the President at least six calendar months prior to the date on which he or she wishes to vacate his or her office, unless the President grants a shorter period in a specific case.

The statement that the President has decided to place Adv. Simelane on special leave is therefore perplexing and pose serious questions about the legality of this move. No mention is made of a request received from Adv. Simelane to be vacate his office (or, for that matter, to be placed on special leave), neither is mention made of the reasons given by Adv. Simelane for this or the reasons why the President had decided to waive the requirement that such a request must be received six month before the leave takes hold. In the absence of such a request, a decision of President Zuma to place Simelane on special leave would therefore be unlawful as it would interfere with the independence of the NPA and would not comply with the NPA Act.

In any case, section 8 deals with the termination of the services of the NDPP and not with being placed on special leave.

After I had suggested that it would be better for Adv. Simelane to go on leave voluntarily, he responded to questions of Adriaan Basson, a journalist from City Press, by stating that he had no intention to step aside. The statement by the Presidency does not clarify this issue and is phrased in such a manner as suggesting that the decision was taken by President Zuma without receiving the requisite request from Simelane. In the absence of a clear statement that a request was received from Adv. Simelane to vacate his position (or, perhaps, but far more arguably) go on special leave, one must assume that the President has therefore again acted unlawfully.

What is required, at the very least, is for Adv. Simelane to clarify the situation. In the absence of a specific indication by him that he requested to vacate his office (or, at a stretch, to go on special leave), the decision by the President to place him on special leave must surely be null and void. This interpretation may seem overly legalistic, but there is a very good reason for interpreting the NPA Act in this way. One should not set a precedent in which the President of the country places the head of the NPA on special leave without receiving such a request from the NDPP. This is so because the precedent set would not only be unlawful but would also potentially interfere with the independence of the NPA.

Clarity from Adv. Simelane and/or the Presidency is therefore needed urgently to remove any uncertainty about the position of the NDPP.

Posted in: Jacob Zuma, Menzi Simelane, NPA.

The end of the year

Dec 20th, 2011
by Pierre De Vos.
335 comments

It has been a long year, with so many political and constitutional twists and turns that it sometimes seemed hard to keep track of events and of who is up and who is down in our politics. The latest seemingly outrageous decision of a Parole Board to release two of the Waterkloof 4 killers to house arrest is just the latest in a long line of questionable decisions made this year by various officials.

I tried to ascertain – by reading the relevant sections of the Correctional Services Act – whether the release of the 2 Waterkloof killers were unlawful, but that Act is not easy to understand and I am just about to embark on holiday and, for the time being, was defeated by the complicated provisions of that Act.

What did strike me is the manner in which this case has been reported in especially parts of the Afrikaans media. Unlike with Schabir Shailk, where the reporting focused on the possible abuse of power in ordering Shaik’s release, some Afrikaans media outlets have been treating this case as if the Waterkloof killers have been the victims of a terrible injustice. How the cold blooded killers of a homeless man can ever be seen as victims is beyond me. I guess sometimes in our society race and language solidarity trumps everything else – including considerations of justice.

In any case, this is probably my last post for the year. I will be back early in the new year. Hope all readers of this Blog have a good holiday.

Posted in: Uncategorized.

How long will Heath last?

Dec 14th, 2011
by Pierre De Vos.
238 comments

After Adv. Willem Heath (then still a judge of the High Court) was first appointed as head of the Special Investigating Unit (SIU) by then President Thabo Mbeki Nelson Mandela, he soon became the darling of the chattering classes. He was outspoken and seemed to love the limelight, but he lacked the diplomatic and political skills that might have helped to endear him with his direct boss — the President of South Africa.

It is safe to assume that by the time the Constitutional Court found that it was constitutionally problematic for a sitting judge to head the SIU, President Mbeki was rather glad to see the back of him. The Constitutional Court had found that the appointment of Heath was unconstitutional because it infringed on the separation of powers doctrine, summarising its findings as follows:

The functions that the head of the SIU is required to perform are far removed from “the central mission of the judiciary.” They are determined by the President, who formulates and can amend the allegations to be investigated. If regard is had to all the circumstances including the intrusive quality of the investigations that are carried out by the SIU, the inextricable link between the SIU as investigator and the SIU as litigator on behalf of the state, and the indefinite nature of the appointment which precludes the head of the unit from performing his judicial functions, the first respondent’s position as head of the SIU is in my view incompatible with his judicial office and contrary to the separation of powers required by our Constitution.

Heath then re-invented himself as a private consultant and threw in his lot with several people under investigation by the now defunct Scorpions, including the late Brett Kebble and, of course, Jacob Zuma. I recall taking part in a TV debate with Heath about the Scorpions decision to charge Jacob Zuma (before charges were dropped by the NPA) and finding him to be underwhelming. I thought that he was either not very bright or that he was not entirely  on top of the issues being debated. (Maybe my judgment was clouded by the issues, but I leave that for others to decide for themselves.)

As we all know, Heath has now made a comeback and was recently re-appointed as the head of the SIU by President Jacob Zuma. Since then he has made some rather startling claims, expressing several widely held (but unproven) suspicions about the alleged interference of former President Mbeki in the independence of the NPA as well as criticism of the High Court, Supreme Court of Appeal and Constitutional Court who had all confirmed that the state had proven beyond reasonable doubt that Schabir Shaik was a crook and that he had solicited a bribe from an arms company on behalf of Zuma and had also bribed Zuma directly.

It also transpired that he had been given permission to do private consulting work while heading the SIU. This inevitably raised questions about the wisdom and legality of his re-appointment.

The SIU is a strange beast. It is a creature of statute given wide ranging powers to investigate serious maladministration in connection with the affairs of any State institution; improper or unlawful conduct by employees of any State institution; unlawful appropriation or expenditure of public money or property; unlawful, irregular or unapproved acquisitive act, transaction, measure or practice having a bearing upon State property; intentional or negligent loss of public money or damage to public property; and other forms of corruption. But this power is circumscribed in the sense that the SIU is only empowered to investigate a matter if the President formally requests it to do so.

Section 3 of the Special Investigating Units and Special Tribunals Act states that the President “must appoint a person who is a South African citizen and who, with due regard to his or her experience, conscientiousness and integrity, is a fit and proper person to be entrusted with the responsibilities of that office, as the head of a Special Investigating Unit established by the President”. The SIU is therefore at the same time quasi-independent, yet acts only at the behest of the President. As such the head of the SIU can be viewed as the President’s personal anti-corruption tsar.

If the head of the SIU is an employee in terms of the Public Service Act (something that is not clear to me) he would also be bound by section 30 of that Act which states that no employee is allowed to perform remunerative work outside his or her employment in the relevant department, except with the written permission of the executive authority of the department. When outside work could reasonably be expected to interfere with or impede the effective or efficient performance of the employee’s functions in the department or constitute a conflict of interest, permission should ordinarily not be given.

Whether this provision is legally applicable to Adv. Heath or not, at the very least it seems advisable that — given the nature of the work done by the SIU — Heath should reveal the nature of the outside work he is doing to prevent the perception of a conflict of interest. This is so for the same reason that Adv. Heath’s comments in City Press seem completely inappropriate.

When the SIU investigates allegations of corruption and goes after those allegedly involved in corruption, it is important that its head should be viewed as being beyond reproach and as having the requisite credibility and legitimacy to avoid allegations that the SIU is being used to settle political scores. One can well imagine that if Heath investigates corruption within the state, those fingered by any investigation will immediately claim that they are being unfairly targeted for political reasons and that Heath is assisting President Zuma to settle political scores with his opponents to improve Zuma’s chances of re-election as ANC President next year. This will negatively affect the credibility and effectiveness of the SIU and will provide those targeted for investigation with political cover to pay nt themselves as victims of a conspiracy – even when this is clearly not the case.

An interesting legal question is whether the SCA’s Simelane judgment could be used to challenge the lawfulness of his appointment. After all, the requirements of the head of the SIU needing to be “fit and proper” mirrors the requirement in the NPA Act for the National Director of Public Prosecutions having to be fit and proper.

In principle, it should therefore be possible to apply the principles developed in the Simelane case to the Heath case. In practice, the facts are slightly different as Heath’s latest rather outrageous statements were made after his appointment. But, if one follows the logic of the Simelane judgment one might well ask whether, given the fact that Heath himself has admitted to run a trust fund on behalf of Bret Keblle (from which he paid various people for undisclosed reasons), the President interrogated this issue sufficiently to ascertain whether Heath was indeed “fit and proper” as required by the SIU Act and whether zuma might not have acted irrationally in appointing Heath without asking enough questions about this unseemly arrangement.

According to news reports, Heath’s company, Heath Executive Consultants, was contracted by Johannesburg Consolidated Investments (JCI) as consultants and, according to company records, initially paid a monthly retainer of R230 000, later increased to R325 000. According to JCI’s forensic audit, Heath received payments of more than R18.5 million in the space of just over three years, more than half of which was apparently channelled to third parties.

Heath said he was not privy to the nature of contracts with third parties, and admitted it was possible, as suggested by forensic auditors, that some of these recipients were indeed former employees of DRD and Ain — two companies that were at the centre of a fierce dispute estimated to have cost Kebble more than R90-million.

Questions could therefore be asked about the legality of Heath’s appointment.

However, my guess would be that this case will never go to court (the DA perhaps feeling less worried about threats to the Rule of Law in the case of Heath?) and that his appointment will not be challenged before a court.

Nevertheless, I would not be surprised if the President decides on his own to retract the appointment of Heath, given the embarrassment already caused by him since his re-appointment. And even if the appointment is not reversed in the next few days, I would not be surprised if Heath does not last long in his new role. Being someone who seems rather clueless about politics and diplomacy (and a bit of a cowboy to boot), he is bound to disappoint and embarrass President Zuma – just as he did Mbeki. How long then before he becomes a liability for the SIU and, more importantly, for President Zuma and is fired?

PS: The original version of this article wrongly stated that Heath was appointed by Thabo Mbeki. This has now been corrected.

Posted in: ANC, Jacob Zuma.

The perils of criticising a court judgment

Dec 12th, 2011
by Pierre De Vos.
192 comments

Is the Supreme Court of Appeal (SCA) judgment declaring the appointment of Menzi Simelane as National Director of Public Prosecutions (NDPP) unlawful and unconstitutional bad in law and will it be overturned by the Constitutional Court? Prof Ziyad Motala, a law professor in the United States, thinks the decision is bad in law and has hinted that the Constitutional Court should overturn the SCA decision which is nothing more than “politics masquerading as law”.

Writing in the Sunday Times yesterday, he argued that the SCA’s “reliance” on the adverse findings against Simelane made by the Ginwala Enquiry  was misplaced. Prof Motala contends that the SCA judgment suggested that the Ginwala Enquiry findings against Mr Simelane “represent objective truths and something the President was bound by”. This was wrong because the SCA, he argued, conspicuously ignored questions about the nature of the Ginwala Enquiry. If the Enquiry was not an independent and impartial tribunal under the Constitution (which it clearly was not), then the probative value of its findings would be limited.

Prof Motala — correctly in my view — zooms in on the most difficult aspect of the case, namely the fact that there was no clear finding by an independent and impartial tribunal before the SCA which had concluded that Mr Simelane is not a “fit and proper person with due regard to his or her experience, conscientiousness and integrity” as required by section 9 of the NPA Act.

The SCA considered the findings of the inquiry to be an objective truth and not something for the President to assess. The court pays lip service to the core values of the Constitution such as the rule of law and legality. The ultimate decision and the reasoning, which underpins the result, are extraordinarily brazen. It signifies an abject dereliction of the court’s judicial function and lack of respect for the core values of the Constitution. The inquiry was neither a court of law nor a competent independent tribunal in terms of what our Constitution or international human rights would require. Instead, it was an ad hoc inquiry led by a political appointee (the former speaker of the National Assembly) selected by a prior President during a period of Machiavellian subterfuge and political maneuverings within the ruling party. The court takes no cognizance of this reality.

The case presented the SCA with a difficult problem. Section 9 of the NPA Act sets out objective minimum criteria that the NDPP must comply with if his appointment is to be deemed to be legally valid. If the appointee is not fit and proper with due regard to his experience, conscientiousness and integrity, the appointment is invalid. But what happens if there are serious questions about whether these minimum requirements have been met by the appointee, but no definitive finding about whether an appointee meets these requirements have been made by an independent and impartial tribunal? What is the duty of the court to enforce respect for the Rule of Law, when the evidence placed before it is inconclusive?

As the SCA pointed out, the Constitutional Court has stated on numerous occasions that the exercise of power by the President is constrained by the principle of legality, which is implicit in our constitutional ordering. Firstly, the President must act within the law and in a manner consistent with the Constitution. He or she therefore must not misconstrue the power conferred. Secondly, the decision must be rationally related to the purpose for which the power was conferred. If not, the exercise of the power would, in effect, be arbitrary and at odds with the rule of law.

Prof Motala argues that the SCA had wrongly relied on the findings of the Ginwala Enquiry (which he argued that court took to be the “objective truth”) to find that the appointment did not meet the objective requirements prescribed by section 9 of the NPA Act. It seems to me that although Prof Motala identified the factual difficulties surrounding the case, he misunderstood the legal reasoning of the SCA (and hence misrepresented the scope of that judgment).

The SCA had not, as far as I can tell, taken the findings of the Ginwala Enquiry to be the “objective truth”. If it had done so, Prof Motala’s criticism would be completely valid. What the SCA did do, was to find that the findings of the Ginwala Enquiry (and the extremely negative comments about Mr Simelane’s integrity made by judges of two different courts) raised serious questions about whether Mr Simelane met the objective requirements as set out in the NPA Act (requirements included in the Act to ensure the independence of the NPA) and that this required the President to follow a systematic procedure to determine whether these findings and comments disqualified Mr Simelane from being appointed NDPP or not.

Because there were serious question about Mr Simelane’s legal fitness for the job, the President had a duty to engage in a real and earnest manner with the issues raised. According to the SCA, his failure to do so was irrational as there was no rational link between the purpose of the exercise of the power (appointing a NDPP who is fit and proper and who will safeguard the independence of the NPA) and the manner in which the power was exercised.

(The Constitutional Court established this principle that the manner in which a power is exercised to achieve a specific purpose is relevant when determining whether the principle of legality had been satisfied in the Albutt case where it found that the President had acted irrationally when he approved the pardoning of apartheid era criminals in order to achieve reconciliation without allowing for consultation with the victims of the criminal offences. By failing to allow for a process of consultation with the victims, there was no rational connection between the purpose of achieving national reconciliation and the act of pardoning the apartheid era criminals.)

The SCA argument thus essentially boils down to this: Given the questions raised about Mr Simelane’s fitness to hold office, the principle of legality required the President — at the very least — to undertake a proper enquiry of whether the objective requirements of section 9(1)(b) were satisfied to ensure the independence of the NPA. What was required was for the President to obtain sufficient and reliable information about the candidate’s past work experience and performance; sufficient and reliable information about the candidate’s integrity and independence; and in cases like that of Mr Simelane where the candidate is the subject of allegations calling his fitness to hold office into question, a satisfactory process to determine the veracity of the allegations in a reliable and credible fashion.

Where Prof Motala goes wrong, in my view, is by somehow reading the SCA judgment as accepting the findings of the Ginwala Enquiry about Mr Simelane as objectively true and as binding the President to these findings. As far as I can tell, it did not do anything of the sort. As the SCA judgment clearly states:

There may well be answers forthcoming from Mr Simelane on the issues raised by the [Ginwala Enquiry] report, but at the very least they required interrogation [by the President].

What made the appointment irrational and unlawful was that there was not — in the view of the SCA – sufficient interrogation of the various findings and statements by the Ginwala Enquiry and by the judges of two different courts which cast doubt on Mr Simelane’s fitness to hold office. (Requiring interrogation of the findings of the Ginwala Enquiry can surely not be equated – as Prof Motala does -with accepting these findings as objectively true?) Thus, said the SCA, the process followed by the President was not rationally related to the purpose of the appointment — the safeguarding of the independence of the NPA.

It is so that the Constitutional Court may look at all the facts and may find that there was indeed sufficient interrogation by the President of the various adverse findings against Mr Simelane and the various adverse comments made by judges of the High Court and the Constitutional Court about Mr Simelane’s integrity. Or it may find — somewhat contradicting its Albutt decision — that in the absence of a finding by a court that Mr Simelane was fit and proper, the President was not required to follow a more onerous process of actually considering and weighing all the negative comments made about Mr Simelane by the Ginwala Enquiry and by judges of the High Court and the Constitutional Court.

If I was Mr Simelane’s lawyers I would strongly push the first point (the second point seeming to be rather difficult to sustain) by highlighting exactly what President Zuma had done to interrogate the various adverse findings and comments against Simelane and by arguing that the facts demonstrated that the President had indeed followed a procedure that was rationally related to the purpose of his exercise of power.

Now, this might be difficult to show, given the fact that the President had previously argued that as the democratically elected head of the executive he had the absolute power to decide whether Mr Simelane was fit and proper. (And legally this argument was perhaps not the wisest one to have made in the High Court and before the SCA, as it misconstrued the nature of the requirement of s 9 and ignored the fact that section 9 set some minimum objective criteria that had to be met before the appointment of the NDPP could be deemed to be valid.) But a different court may well look at the evidence and conclude that a less onerous form of interrogation was required and that the President had satisfied this less onerous standard of interrogation.

My view is that one could thus easily criticise the SCA judgment on the basis that it had not given due regard to the facts placed before the court by the President and the Minister of justice. What one could not plausibly do without misconstruing the judgment of the SCA, was to argue that the SCA had accepted the findings of the Ginwala Enquiry as objectively true and then lambasting the SCA for playing politics. The latter line of reasoning seems at best to completely misread the judgment and at worst to deliberately misrepresent it for political purposes.

Posted in: Criticism of Courts, Jacob Zuma, Rule of Law.

Lest we forget

Dec 8th, 2011
by Pierre De Vos.
177 comments

This Saturday South Africa’s Constitution celebrates its fifteenth birthday. The Constitution was signed by then President Nelson Mandela on 10 December 1996 in Sharpeville. This was only one and a half years after the Constitutional Court started its work in terms of the interim Constitution.

By December 1996 that Court had already declared invalid the death penalty as well as action taken by then President Nelson Mandela. It had confirmed the constitutional validity of the amnesty provisions in the Truth and Reconciliation Commission Act and had sent the final Constitution back for redrafting because the draft had failed to conform to the 34 Constitutional Principles agreed to by negotiators before the 1994 election.

In short, by the time the final Constitution was signed by President Mandela 15 years ago, the Constitutional Court had demonstrated a clear intention to do its job properly by declaring invalid acts of Parliament and actions of the executive which did not conform to the provisions of the supreme Constitution. 

President Mandela might well have had reason to be miffed by the Constitutional Court because in the Executive Council of the Western Cape Legislature case it had found that the Parliament had unconstitutionally tried to delegate law making power to President Mandela and that his exercise of powers in terms of this delegation was thus unconstitutional. (This judgment was one of the judgments relied upon by those who challenged the unconstitutional attempts by President Jacob Zuma to extend the term of office of the former Chief Justice Sandile Ngcobo.)

President Mandela might therefore have expressed concerns about the “intrusion” of the Constitutional Court into the realm of “policy making” and might have warned that the work of the Constitutional Court will be assessed to determine whether that court is acting in a way that questions the power of the democratically elected legislature and the executive. Yet, in his speech at Sharpeville 15 years ago President Mandela did no such thing. Instead he said the following. 

Friends and compatriots;

By our presence here today, we solemnly honour the pledge we made to ourselves and to the world, that South Africa shall redeem herself and thereby widen the frontiers of human freedom.

As we close a chapter of exclusion and a chapter of heroic struggle, we reaffirm our determination to build a society of which each of us can be proud, as South Africans, as Africans, and as citizens of the world.

As your first democratically elected President I feel honoured and humbled by the responsibility of signing into law a text that embodies our nation`s highest aspirations.

In writing the words which today become South Africa’s fundamental law, our elected representatives have faithfully heard the voice of the people. To the Constitutional Assembly, and to its Chairperson and Deputy Chairperson who guided it through a complex and arduous process, we owe thanks.

We owe thanks to the Constitutional Court which has proved a true and fearless custodian of our constitutional agreements.

In centuries of struggle against racial domination, South Africans of all colours and backgrounds proclaimed freedom and justice as their unquenchable aspiration. They pledged loyalty to a country which belongs to all who live in it.

Those who sought their own freedom in the domination of others were doomed in time to ignominious failure.

Out of such experience was born the understanding that there could be no lasting peace, no lasting security, no prosperity in this land unless all enjoyed freedom and justice as equals.

Out of such experience was born the vision of a free South Africa, of a nation united in diversity and working together to build a better life for all.

Out of the many Sharpevilles which haunt our history was born the unshakeable determination that respect for human life, liberty and well-being must be enshrined as rights beyond the power of any force to diminish.

These principles were proclaimed wherever people resisted dispossession; defied unjust laws or protested against inequality. They were shared by all who hated oppression, from whomsoever it came and to whomsoever it was meted.

They guided the negotiations in which our nation turned its back on conflict and division.

They were affirmed by our people in all their millions in our country’s first democratic elections.

Now, at last, they are embodied in the highest law of our rainbow nation.

This we owe to many who suffered and sacrificed for justice and freedom.

Today we cross a critical threshold.

Let us now, drawing strength from the unity which we have forged, together grasp the opportunities and realise the vision enshrined in this constitution.

Let us give practical recognition to the injustices of the past, by building a future based on equality and social justice.

Let us nurture our national unity by recognising, with respect and joy, the languages, cultures and religions of South Africa in all their diversity.

Let tolerance for one another’s views create the peaceful conditions which give space for the best in all of us to find expression and to flourish.

Above all, let us work together in striving to banish homelessness; illiteracy; hunger and disease.

In all sectors of our society – workers and employers; government and civil society;
People of all religions; teachers and students; in our cities, towns and rural areas, from north to south and east to west – let us join hands for peace and prosperity.

In so doing we will redeem the faith which fired those whose blood drenched the soil of Sharpeville and elsewhere in our country and beyond.

Today we humbly pay tribute to them in a special way. This is a monument to their heroism.

Today, together as South Africans from all walks of life and from virtually every school of political thought, we reclaim the unity that the Vereeniging of nine decades ago sought to deny.

We give life to our nation`s prayer for freedom regained and continent reborn;

God bless South Africa;
Nkosi Sikelel’ i Afrika;
Morena boloka sechaba sa heso;
God seen Suid-Afrika.

I quote President Mandela’s full speech above to remind us all – on this fifteenth anniversary of our Constitution - of President Mandela’s commitment to the Constitution and the supremacy of the Constitution enforced by a fearless Constitutional Court. Lest we forget.

Posted in: ANC, Constitution, Constitutional Court, Criticism of Courts.

Constitutional Court in Bapsfontein shuffle

Dec 7th, 2011
by Pierre De Vos.
53 comments

It is not surprising that section 26 of the Bill of Rights has become one of the sections most often invoked in cases being argued before the Constitutional Court. In a country in which many people do not have access to formal housing, one in which the property rights of some force many poor and destitute people to act in an unlawful manner, one in which such people often have no choice but to occupy land owned by others and build informal houses on that land to avoid absolute destitution, the right of access to housing guaranteed in section 26 will often come into play.

The situation is exacerbated by the failure of local, provincial and national governments to deal with this issue effectively and humanely and by officials whose elitist or extremely statist attitudes towards the poor and the homeless lead to often heartless and cynical attempts to force those who occupy land unlawfully to go and live elsewhere — anywhere — as long as it is “not-in-our-backyard”.

Yesterday, in Pheku and Others v Ekurhuleni Metropolitan Municipality (in a judgment authored by Justice Bess Nkabinde) the Constitutional Court once again came to the assistance of such a community. The Occupiers of Bapsfontein Informal Settlement had approached the court to challenge a High Court decision which found that where a Municipality declared an informal settlement a “disaster area” in terms of the Disaster Management Act it was permissible forcibly to relocate the residents of such an area and to demolish their homes. (Many years ago – during the apartheid era – Bapsfontein was infamous for hosting whites-only country dances in the hall depicted below. Country and Western singer Lance James regularly performed at these dances.)

The Bapsfontein informal occupiers had built their structures on land prone to develop “sinkholes”. They were then told that they would be “temporary moved” from this site, that their houses would be demolished and that no court order was required to do so as this action was taken in terms of the Disaster Management Act. The Municipality argued that such a “temporary move” was not an eviction at all. The Bapsfonetin residents were then forcibly removed from the area and their homes were then demolished. (So much for the care and compassion which the Ekurhuleni Municipality was required to show towards the informal occupiers and for the claim by the ANC politicians in that area that they always represent the best interests of the poor. These people might just as well have lived in a DA controlled municipality.)

The Court noted that section 55(2)(d) of the Disaster Management Act provides that evacuation is limited to cases where temporary action is necessary for the preservation of life and that this section had to be interpreted narrowly to ensure that it conformed to section 26 of the Constitution. Section 26(3) of the Constitution states that:

No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.  No legislation may permit arbitrary evictions.

The Court found that properly construed, section 55(2)(d) does not authorise eviction or demolition without an order of court. It pointed out that on its wording, the Act deals with “evacuation”.  The word “evacuate” is generally used to describe what is done in a situation where people’s lives are at risk as a result of impending “disaster”.  “Evacuate” means to “remove from a place of danger to a safer place.”  The section could only be invoked where the people concerned required immediate removal to a safe temporary shelter, away from the disaster area, in order to preserve their lives.

If one reads this section carefully it had to mean that the Act ordinarily applies only to temporary removal from a disaster stricken area to a temporary shelter. It implies that those evacuated may return to their homes, if possible. This was not the case here where the Bapsfonetin Informal Occupiers were going to be removed permanently. Evacuation is not the equivalent of eviction, much less of a demolition. On the Municipality’s own admission, no purpose would have been served by removing the applicants without demolishing their homes because they would otherwise have returned to Bapsfontein. Evidently, this is not what section 55(2)(d) sanctions.

What was required was to demonstrate that there was urgency in the evacuation and that this was done in order to save lives. However, as the Constitutional Court pointed out, the facts do not suggest that there was any need for an urgent evacuation of the Bapsfontein community at all, and although the court did not say so, this suggests that the Municipality had used the sinkhole excuse to justify an eviction without obtaining a court order as required by the Constitution.

Conversely, the history of this matter shows that the Municipality never regarded the relocation of the applicants to be urgent to warrant drastic measures of unauthorised removal and demolition of shelters. This is fortified by the fact that Bapsfontein was identified as a hazardous area as early as 1986; its first sinkhole was identified in 2004; the first commissioned report was delivered in June 2005 and the second report in September 2005; no action was taken in response to these reports for four years after they were delivered, until 2009, when another report was commissioned and delivered; and only in 2010 did the Municipality finally start taking action to relocate the residents from Bapsfontein. An evacuation does not entail the demolition of peoples’ homes or an indefinite removal. The DMA does not seek to achieve this. If the purpose of the DMA were to authorise demolition and eviction without an order of court, it would have said so.  It does not.  The forcible removal of the applicants amounts to an eviction, an indefinite removal from Bapsfontein.  The deprivation is, in the circumstances, inimical to the right in section 26(3).

The High Court had therefore erred in dismissing the application for an urgent interdict preventing the eviction of the residents and the demolition of their homes as it had failed to consider the relevant circumstances. These include whether: (a) the disaster was sudden to warrant the hasty relocation; (b) Bapsfontein could be rehabilitated; (c) the Municipality had established disaster management and relocation plans and strategies as well as their implementation; (d) there was loss of life or an imminent threat to life; (e) alternative land has been made available or could reasonably be made available; and (f) the applicants are long term occupiers in Bapsfontein.

The High Court instead approached the matter on the assumption that the Disaster Management Ac was applicable and urgent removal was necessary. In the absence of evidence, the Court compared the situation of the applicants with that of people faced with sudden emergency but failed to assess whether the circumstances warranted evacuation under the Act.

In the light of the finding that the removal of the Bapsfontein Informal Occupiers and the demolition of their homes were unlawful, the Court found that the Municipality has an obligation to provide them with suitable temporary accommodation. To this end, the Municipality was ordered to identify land in the immediate vicinity of Bapsfontein for the relocation of those who had been evicted. The Municipality was also ordered to engage meaningfully with them on the identification of the land.

Furthermore, the Municipality was ordered to ensure that the amenities provided to those evicted and people resettled in terms of the court’s order are no less than the amenities and basic services provided to them as a result of the relocation of March 2011. Because these orders were quite far reaching the Constitutional Court issued what is known as a structural interdict. This happens where the Court feels that it was necessary to retain supervision over the implementation of the order to ensure that it was complied with.

The Municipality was therefore required to file a report in the Constitutional Court confirmed on affidavit by no later than 1 December 2012 regarding steps taken in compliance with the order issued by the court. The applicants would then have the right, within 15 days of the filing of the Municipality’s report, to lodge affidavits in response to the report.

This order would ensure that the Municipality implements the order of the court properly and would protect the vulnerable and marginalised applicants from exploitation and abuse.  Although the Municipality might feel aggrieved by this order, it was clearly necessary in order to protect the poor and homeless. And once again — without even having to wait for an assessment of the work done by the Constitutional Court, the cabinet has been provided with a rather graphic illustration of the way in which the Constitutional Court stands up for the poor and how its judgments protect the poor from the exploitation and heartless decision of the ANC-led Municipality.

Posted in: ANC, Constitutional Court, Housing, Social and Economic Rights.

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