Constitutional Hill

Censoring Malema seems to have no basis in law

Last week Economic Freedom Fighters (EFF) leader Julius Malema was ordered to withdraw an “unparliamentary” remark made in the National Assembly (NA) and was then ordered to leave the NA when he refused to withdraw a remark accusing the ANC of murdering mineworkers in Marikana. It is unclear whether the ruling by the presiding officer to censor Malema was legally valid. Here is why.

At a joint sitting of the NA and the National Council of Provinces (NCOP), Thandi Modise ruled that the remarks about the Marikana massacre made by Julius Malema were “unparliamentary and do not accord with the decorum of this house.”

But the rules of Parliament do not prohibit MPs from making “unparliamentary” statements. Nor do the rules prohibit an MP from making statements that detract from the decorum of the house.

It is in any case unclear what would constitute “unparliamentary” statements and whether arbitrary rulings by a presiding officer (relying on a vague and easy to abuse concept such as “unparliamentary” speech) could legally limit the right of MPs to freedom of speech as guaranteed in the Constitution.

Section 58 and 71 of the Constitution now explicitly guarantee the freedom of speech of all Members of Parliament subject only to “its rules and orders”. The sections further state that members of the NA and the NCOP are not liable for any defamatory statements made before the NA or NCOP or any of its committees.

The question in this case – as in previous cases where presiding officers censored the speech of MPs – is whether there are valid “rules or orders” that limit the right of MPs to make statements that are critical of the governing party or of members of the government. I contend that there are none.

There are no written Parliamentary rules that prohibit MPs – either in the NA or NCOP or at a joint sitting – from making critical statements about a political party or its members, even when these statements are controversial, incendiary or arguably untrue. Neither are there any written Parliamentary rules that prohibit the making of “unparliamentary” statements. Neither are there any written rules of Parliament that regulate alleged breaches of Parliamentary privilege by MP’s.

In the absence of such written rules, presiding officers have no legal authority to discipline MPs for statements made in the house because such actions of the presiding officer would infringe on the rights to free speech of MPs as guaranteed by sections 58 and 71 of the Constitution.

Rule 14P of the Joint Rules of Parliament (mirrored by rule 63 of the NA) does prohibit the use of “offensive or unbecoming language” in Parliament. However, this section does not prohibit the content of speech but only the manner in which the speech is delivered. It covers situations like swearing, calling an MP a thief or a crook (instead of saying the member has an adventurous relationship with honesty or the truth truth) or using racist, sexist or homophobic language.

The rules of the NA also allow the Powers and Privileges Committee of Parliament to discipline an MP relating to contempt of Parliament or misconduct by a Member. However, contempt of Parliament is not defined in either the rules of Parliament or in the relevant legislation, while “misconduct” is defined as a breach of the standing rules of Parliament by a member.

But, as I have already noted, the standing rules of Parliament do not prohibit MPs from criticising the government or even from making incendiary or arguably factually dubious claims about the government or any political party in Parliament. In the absence of such rules it is unclear what legal authority a presiding officer will rely on to justify the kind of ruling made against Julius Malema last week.

Section 13 of the Powers, Privileges and Immunities of Parliament and Provincial Legislature Act does regulate speech in Parliament by prohibiting speech that constitutes contempt of Parliament.

However, the section states that an MP is guilty of contempt of Parliament if he or she contravenes various sections of that Act relating, amongst others, to bribing a Member of Parliament and the like. The section also prohibits an MP from assaulting another MP in Parliament.

Section 13 furthermore states that an MP is guilty of contempt if he or she commits an act which, in terms of the standing rules of Parliament, constitutes contempt of Parliament or a breach or abuse of Parliamentary privilege. Section 13 does not prohibit an MP from making critical, incendiary or even false statements about a political party or the government.

The rules of Parliament only limit speech in formal ways, for example, by prohibiting an MP from reflecting on the merits of a pending court judgment or upon the competence or honour of a judge.

Despite this absence of formal written rules that regulate “unparliamentary speech” in Parliament or limit speech considered to be contemptuous of Parliament, subsequent Speakers have curiously relied on customs of the colonial Westminster Parliament to justify imposing limits on the constitutionally guaranteed freedom of speech of MPs. How foreign custom can justify limiting the rights protected in the South African Constitution remains unclear to me.

Subsequent Speakers have thus assumed that something like a “common law of Parliament” (inherited from Britain) still exists in South Africa and that section 58 and 71 of the Constitution (read with the Powers, Privileges and Immunities of Parliament and Provincial Legislature Act) have not extinguished this colonial common law relating to the rights and privileges of MPs.

Invoking what appears to be a non-existent common law of Parliament subsequent Speakers have often ruled that statements made by MPs are “unparliamentary” (once again, I stress this phrase is not found in the rules of Parliament) if they “impute improper motives” to MPs or “cast personal reflection on their integrity as members” of Parliament or “verbally abuse them in any other way”.

Given the judgment of the Supreme Court of Appeal in Speaker of the National Assembly v De Lille I am not sure these rulings have ever had any legal validity. In that judgment Chief Justice Ismail Mahomed (writing for a full bench) affirmed that the Constitution – not Parliament – is supreme and is “the ultimate source of all lawful authority in the country”.

Referring to section 57 of the Constitution the court held that Parliament is authorised to make rules to:

maintain internal order and discipline in its proceedings by means which it considers appropriate for this purpose. This would, for example, include the power to exclude from the Assembly for temporary periods any member who is disrupting or obstructing its proceedings or impairing unreasonably its ability to conduct its business in an orderly or regular manner acceptable in a democratic society.

In discussing section 58 of the Constitution, the court rejected the argument advanced on behalf of the then Speaker that members of the NA would only enjoy the privileges enjoyed by the House of Commons of the Parliament of the United Kingdom. As Justice Mahomed pointed out:

The threat that a member of the Assembly may be suspended for something said in the assembly inhibits freedom of expression in the Assembly and must therefore adversely impact on that guarantee… What section 58(2) does is to authorise national legislation which will itself clearly and specifically articulate the ‘privileges and the immunities’ of the National Assembly which have the effect of impacting on the specific guarantee of free speech for members in the Assembly. It does not contemplate a tortuous process of discovery of some obscure rule in English Parliamentary law and custom justifying the suspension of a member of Parliament…

Given the fact that the national legislation referred to by Chief Justice Mahomed – in the form of the Powers, Privileges and Immunities of Parliament and Provincial Legislature Act – does not in any way regulate or prohibit “unparliamentary” statements made by an MP, it does not seem legally valid for a presiding officer to order an MP to withdraw “unparliamentary speech”.

It is extremely important that rules limiting the free speech of MPs in Parliament are clearly defined and set out in legislation, because in the absence of such clear rules about when speech of MPs overstep the boundaries of protected speech, the presiding officer (who is also a member of the governing party) will be tempted to censor MPs to protect the governing party or its members and to stifle free speech in our legislatures.

It is a fundamental tenet of the Rule of Law in a constitutional democracy that there should be no arbitrary limitations placed on the exercise of constitutionally protected rights. Where a discretion is given to a presiding officer of Parliament to limit the rights of MPs, the rules of Parliament or applicable legislation should spell out in detail how this discretion should be exercised.

As this is not done in either the rules or the relevant legislation and as the presiding officers seem to rely on colonial common law probably extinguished by the provisions of the 1996 Constitution, I would think that most of the rulings of presiding officers in our Parliament ordering MPs to withdraw statements may have been illegal.

Unless the censored speech clearly falls under the category of “offensive or unbecoming language” – which statements like those made by Julius Malema clearly do not – it seems to me presiding officers abuse their power when they order MPs to withdraw statements that they find offensive or problematic.

This does not mean that the rules of Parliament or the relevant legislation may not be amended to further allow for the clear regulation of speech in Parliament. But absent such amendments it seems to me that presiding officers are abusing their power by unconstitutionally limiting the free speech of MPs without the legal authority to do so.

Tlakula: Stark truth, stark choice

The findings of the Electoral Court that the Chairperson of South Africa’s Electoral Commission Pansy Tlakula had acted unlawfully and is hence guilty of misconduct warranting removal from office, leave the National Assembly with a stark choice. Either it ignores the damning findings of impropriety on the part of Tlakula made by three different independent bodies and destroys the credibility of the Electoral Commission, or it takes action against Tlakula and recommends her removal from office.

The judgment of the Electoral Court in United Democratic Movement and Others v Tlakula and Another is another spectacular vindication of the Public Protector and the work she does.

In essence the judgment confirmed the findings of the Public Protector as well as of an independent report commissioned by the Treasury, leaving little doubt that Adv Pansy Tlakula abused her position when she was CEO of the Electoral Commission to ensure the awarding of a lease to a company in which her “friend” and business partner had a substantial stake.

This was a costly favour done for a “friend” at taxpayers’ expense. The Court confirmed that the unlawful flouting of prescribed procedures in securing the lease of new premises for the Electoral Commission led to the wasting of at least R130.8 million of public money.

Moreover, as CEO of the Electoral Commission Tlakula also secured R59,918,380 worth of furnishings for the new office without following the required tender procedure.

As the Court pointed out, the expenses appear to have been incurred “with little or no regard to what the actual cost was”. In fact, Tlakula “had little concern for what things cost and merely bought what [she] wanted”.

This included R957,000 spent on “brushed steel plant pots” (nice to have, I guess); R482,942 on gym equipment; and, tellingly, no less than R898,942 on office furnishings for Tlakula’s office.

The court found that this wasting of money was not a mere mistake and could not be justified on the basis that Tlakula was ignorant of the process. She deliberately flouted the law with the aim of favouring a company in which her “friend” had a stake. The court summarised the matter as follows:

Having deliberately embarked upon an attenuated tender process, the respondent [Adv Tlakula] chose not to abide by the requirements of the law. The respondent’s reference to an error having been made (in hindsight) is refuted by her own evidence that she deliberately took the decision not to insist on the lawful procurement process to be followed. She chose not to abide by the law. Her actions in this regard are unlawful and as such, in our view, constitute misconduct. Save for the urgency issue, which is untenable, the respondent provides no justification for her deliberate decision to break the law. Once the respondent had taken this unjustifiable decision, a plethora of unlawful actions followed. They include the failure to advertise the requirements of the Commission according to the law and a failure to implement the three tiers of bid specification, evaluation and determination.

Perhaps the most damning aspect of the judgment is that it found that in defending herself Adv Tlakula was less than honest. She previously provided one explanation of her actions to the National Assembly (that she deliberately circumvented the prescribed procedures because of the urgency of the matter) before providing a completely contradictory explanation to the Electoral Court (that she made an honest mistake as she was unaware what the prescribed procedures were).

The striking incredulity of the respondent’s version of the making of a mistake appears to be an ex post facto attempt to justify that which cannot be rationally explained. The respondent cannot exercise a discretion deliberately not follow the prescripts and then claim that not to have done so was simply a mistake. One of the versions cannot be true.

In the face of a finding by a forensic report that the “procurement process followed was not fair, equitable, transparent, competitive, or cost-efficient” and that “some of the expenditure could have been avoided had reasonable care been taken”, the court rejected claims by Tlakula that the winning bidder was not unlawfully favoured by her actions and that her actions did not lead to a loss of funds by the Electoral Commission, stating:

Objectively, this statement, made under oath by the respondent, is untrue.

The judgment does not explain why Adv. Tlakula would have flouted the law in such a blatant manner, wasting millions of public funds in the process. However, it does quote from a recent Constitutional Court judgment, which explains why following prescribed tender procedures are so important.

In AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African Social Security Agency, and Others the Constitutional Court said:

…deviations from fair process may themselves all too often be symptoms of corruption or malfeasance in the process. In other words, an unfair process may betoken a deliberately skewed process. Hence insistence on compliance with process formalities has a three-fold purpose: (a) it ensures fairness to participants in the bid process; (b) it enhances the likelihood of efficiency and optimality in the outcome; and (c) it serves as a guardian against a process skewed by corrupt influences.

In terms of section 7(3)(a) of the Electoral Commission Act the recommendation by the Electoral Court must now trigger a process in which the relevant committee of the National Assembly must first decide whether to accept or reject the factual findings of misconduct made by three independent investigations against Adv. Tlakula.

If the National Assembly accepts the factual findings of unlawful action and misconduct, then it must decide whether to recommend to the President that she be removed from office.

Given the findings against her, it would be troubling of the National Assembly fails to act against Adv Tlakula. The reasons for this conclusion are spelled out by the Electoral Court.

First, the Court found that the conduct of Adv Tlakula “risks the impairing of public confidence in the integrity and impartiality of the Commission”. In the absence of swift action perceptions that the independence of the Commission has been tainted, may well take hold. Moreover Adv Tlakula:

compromised the integrity and independence of the Commission in violation of a requirement that such integrity and impartiality must be above suspicion and beyond question.

In Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 the Constitutional Court explained why the integrity of a body like the Electoral Commission is so important:

They perform sensitive functions which require their independence and impartiality to be beyond question, and to be protected by stringent provisions in the Constitution.

It is not only where the independence and impartiality of the Commission is in fact compromised that the National Assembly would have a duty to act. The mere “appearance or perception” of a lack of independence or impartiality will be devastating for the credibility of the Commission. Quoting from a Canadian judgment the court explained the matter as follows:

Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception.

There is absolutely no evidence that the integrity of the recent election was compromised by Adv Tlakula’s involvement in helping to oversee it. In the absence of evidence that the voting or counting process was not free and fair, the integrity of the election is therefore not at stake.

But because perceptions matter, the various findings of unlawful conduct and especially the findings by the Court which casts doubt on the honesty of Adv Tklakula, now require swift action from the National Assembly to restore confidence in the Electoral Commission.

In the absence of such swift conduct, those who are not happy with the outcome of a particular election will exploit the doubt about the integrity and impartiality of the Chairperson of the Electoral Commission to challenge the validity of electoral outcomes. That will be bad for democracy and bad for South Africa.

The law vs. religion: Let’s try that again

The debate sparked by Chief Justice Mogoeng Mogoeng after he stated in a speech in Stellenbosch that it would be a good thing if religion influenced “the laws that govern our daily lives starting with the Constitution”, has been both frustrating and misinformed. Instead of focusing on the veracity and desirability of the arguments advanced by Justice Mogoeng, most commentators focused on the irrelevant question of whether a Chief Justice should express his religious views in public at all.

Chief Justice Mogoeng Mogoeng was admirably honest and transparent about his personal convictions when he stated – quoting that great freedom fighter and anti-colonialist, Lord Denning – that he believed “without religion there can be no morality; and without morality there can be no law”.

Judges are not empty vessels, lacking any personal beliefs, values and opinions. Instead, the different life experiences of judges (often focused on their differences in sex, gender, sexual orientation, race, class, religious or non-religious beliefs and other circumstances) may well influence how they view the world and the legal problems they are confronted with and, to some degree, how they will interpret the often open ended provisions of the Constitution in order to solve those legal problems.

Similarly whether a judge is a Pentecostal Christian, an atheist, a cultural Anglican, a Rastafarian, an agnostic, a devout member of the Dutch Reformed Church or a member of the File Sharing Religion may well have some influence on the way in which that judge sees the world and how he or she will resolve the legal problems he or she is called upon to adjudicate on.

Of course, judges need to be impartial. But this does not and – conceptually – cannot mean that a judge is required to have no beliefs or value system on which he or she will inevitably draw to decide complicated constitutional questions raised before him or her.

It only means that a judge must not pre-judge a case and must hear all the arguments before him or her and must consider both the applicable legal text and the relevant binding case law before making a ruling on a specific matter.

I would think it is far better and more honest for a judge to admit to these personal beliefs and to declare them upfront, as the Chief Justice did in his speech. Where judges declare their views openly, it is far easier to engage with the judgments written by that judge and to construct an argument either in support of or critical of the approach taken by a specific judge.

For this reason I have come to the realisation (modifying my previous position) that I have no problem with Chief Justice Mogoeng Mogoeng stating his views on the desired role of religion in law-making and constitutional interpretation in public.

However, I do believe that judges are not beyond criticism and that citizens are entitled to engage critically with the stated beliefs and values of judges.

The far more productive debate about the speech delivered by the Chief Justice would confront the substance of his speech and would construct arguments either in defence of his views or critical of them.

I propose to do the latter. It would enhance democratic debate if others who disagree with me took the time to construct counter arguments.

In this regard I believe the views expressed by Chief Justice Mogoeng on the role of religion in law-making and constitutional interpretation are intellectually incoherent and shallow, nonsensical and (to the extent that one can make any sense out of them) socially and politically reactionary and hence in direct opposition to my own value system and the norms embedded in the Constitution.

It is of course highly controversial to argue – as the Chief Justice did – that religion can be the only source of morality in any society. This claim ignores (or is ignorant of) developments in both traditional African philosophy and Western philosophy of the past 150 years.

For example, for some of us, humanism is an attractive non-religious source of morality, given its emphasis on the value and agency of human beings, individually and collectively, and its focus on the value of critical thinking and evidence over established doctrine or faith.

Given the fact that the value of human dignity is one of the founding values of our Constitution and given, further, that dignity is closely associated with the moral agency of humans, it is easy to square humanism with South African constitutionalism.

However, it is conceptually difficult if not impossible to square the views of the Chief Justice about morality (as prohibiting human beings from engaging in forms of sexual behaviour outside of state recognised marriage – even when this does not harm others) with the demands of the constitution to protect the infinite human dignity of every human being.

If laws were put in place (as the Chief Justice suggest they should) to curtail the freedom of individuals to decide for themselves how they wish to live their lives and how they want to arrange their intimate affairs, such laws would curtail the inherent human dignity of everyone. This would be in direct conflict with one of the founding values of our Constitution, a value, which our Constitutional Court has said, runs like a golden thread throughout the Constitution.

Moreover, anyone familiar with Immanuel Kant’s attempts to formulate rules on how to determine right from wrong through the categorical imperative (the idea that actions can only be considered moral if they could be imitated by anyone else and produce good results) would also be hard-pressed to agree with the Chief Justice that religion is the only possible source of morality in society.

You might not agree with Kant, but at the very least his philosophy – which former Constitutional Court Justice Laurie Ackermann has argued forms the intellectual basis for any understanding of the Constitutional Court’s dignity jurisprudence – posits an alternative source of morality not associated with any religious doctrine.

Of course, this idea that religion is the only source of morality for a society is especially common among those who associate morality with sexual behaviour.

Although it is difficult to tell exactly what the Chief Justice means by “religion” (there are many different religious traditions and many conflicting moral beliefs even within the Christian tradition, a tradition which the Chief Justice claimed to source his views from) his speech does suggest that he associates religious values with a strand of Pentecostal Christianity that focuses on sex as the root of all evil in the world.

Thus Justice Mogoeng stated in his speech that:

a legal framework that frowns upon adultery, fornication, separation and divorce, subject to appropriate modification, would, idealistic as this may appear to be, help us curb the murders that flow from adultery, help us reduce the number of broken families and the consequential lost and bitter generation that seems to be on the rise, which in turn cause untold harm to society.

At a press conference called to “clarify” his views, he reiterated that he saw a clear link between “morality” (as he understands it) and sexual behaviour, stating that:

Concerns that cannot be left unattended relate to the effect of religious principles on the right to secure a divorce, the freedom to indulge in adultery and promiscuous fornication.

I am sure many South Africans will claim to agree with this view of morality as espoused by the Chief Justice (even as they fail to live their lives according to it). But in a pluralistic society the moral views of the majority cannot be used to infringe on the rights of others and to rob those who do not wish to adhere to the majority view of their dignity and freedom.

Be that as it may, personally I find the views of the Chief Justice on “promiscuous fornication” and the need for laws to force people to remain married even if they wish to divorce, deeply conservative and objectionable.

This is because religious rules relating to how and with whom we are allowed to have sex function to control and discipline citizens (especially their bodies) and rob them of the freedom to decide for themselves how they wish to live their lives. It imposes the view of some about how we are allowed to use our bodies for pleasure on all of us and robs people of their right to live according to their own beliefs about how to arrange their intimate affairs.

Suggesting that the law should ideally regulate consensual sexual activity and the freedom to enter into and terminate relationships that have little or no bearing on the material wellbeing of people is disrespectful of the freedom of those who do not share your very narrow religious view of morality. It has the potential to interfere with the private choices of individuals and requires the church or the state to have a decisive say over our bodies.

This is potentially devastatingly invasive of the right of everyone to bodily and psychological integrity, which includes the right to make decisions concerning reproduction and to security in and control over their body guaranteed by section 12(2) of the Constitution.

It is therefore difficult to see how the views of the Chief Justice can be accommodated within the current constitutional regime.

Moreover, the morality espoused by the Chief Justice, does not seem to focus on the need to respect the inherent human dignity of every person and the idea that each human possesses moral agency to decide for him or herself how to live their life – as long as this does not harm others.

Instead, it seems to lean towards the view that the law as well as the power and authority of the state should be deployed to inculcate a specific religiously inspired morality in citizens.

In this regard the argument put forward by the Chief Justice that principles sourced from all religions could be infused into a “national moral code that could be taught at home and school from a tender age all the way up to adulthood” is particularly worrying. It is also intellectually incoherent as it directly contradicts other statements made by the Chief Justice in his speech.

In Stellenbosch the Chief Justice referred to the fact that the Constitutional Court has embraced the notion of South Africa as a pluralistic society. He even quoted the Court’s judgment in Prince where it stated that: “The protection of diversity is the hallmark of a free and open society.”

But once you recognise that our Constitution demands protection of this diversity – including diversity related to religious and other beliefs such as the belief not to believe in any God – it is intellectually incoherent to then argue that a very narrow conception of religious morality should influence laws that regulate the private and intimate lives of citizens. It is also incoherent to argue that certain religious values should be infused in a national moral code, which should be used to indoctrinate vulnerable children.

A society that respects diversity cannot enforce or propagate a narrow religiously inspired moral code on society as a whole. Instead, a society that respects diversity will celebrate difference – also different attitudes about morality.

For example, for some a “moral” society will be a society which censors and regulates the sexual activities of citizens and emphasises the moral superiority of monogamous marriage between one man and one women (and maybe two and a half children and a dog) till death do them part.

For others a “moral” society may be a society in which individuals are free to decide for themselves (without interference from the state) how to arrange their consensual, private, intimate affairs and in which we all fight to eradicate social injustice and economic inequality.

Because of these vastly different conceptions of what is good and moral, a society in which diversity is respected cannot enforce or promote a uniform moral code as the Chief Justice suggested.

Moreover, the view that religious values should influence laws and the interpretation of the Constitution is also in direct conflict with the precedent developed by the Constitutional Court.

In the Fourie judgment (ironically, perhaps, dealing with the need to recognise same-sex marriage), the Constitutional Court in no uncertain terms rejected the argument that religious beliefs should form the basis of legal regulation, stating as follows:

It is one thing for the Court to acknowledge the important role that religion plays in our public life. It is quite another to use religious doctrine as a source for interpreting the Constitution. It would be out of order to employ the religious sentiments of some as a guide to the constitutional rights of others. Between and within religions there are vastly different and at times highly disputed views on how to respond to the fact that members of their congregations and clergy are themselves homosexual. Judges would be placed in an intolerable situation if they were called upon to construe religious texts and take sides on issues which have caused deep schisms within religious bodies.

It is exactly because there is no universally accepted set of moral norms – religious or otherwise – on which any court can rely that the South African Constitution (not any set of religious beliefs) serves as the source of our constitutional morality.

We have a choice: either we amend the Constitution in order to ensure that the religious beliefs of some become the moral loadstar for legislation and constitutional interpretation – thus rejecting any accommodation of diversity – or we stick with the constitutional values which celebrate religious and other forms of diversity and respect for human dignity and prohibit the law from enforcing the narrow religious morally inspired beliefs of some on the whole of society.

If you favour the first route, the Chief Justice is your man. If you favour the second, well, then his speech will make you extremely nervous.

Evictions: 0 out of 10 SANRAL – try again

Hundreds of people were left homeless at Nomzamo settlement in Strand on Tuesday after the South African National Road Agency Limited (SANRAL) initiated the demolition and destruction of their homes from land owned by SANRAL. However, it is far from clear that the forced eviction and demolition was lawful, despite the claim by SANRAL that it was authorised by an interim interdict, obtained on 24 January this year.

“The law is the law,” said Vusi Mona, spokesperson for SANRAL, on Tuesday when he attempted to justify the eviction of hundreds of people from their homes built on SANRAL land. Mona was invoking an interim interdict aimed at unspecified persons intending to occupy SANRAL land to justify the eviction.

The interdict purports to prohibit unspecified persons from unlawfully occupying the land, building structures on the land and inhabiting those structures. It also authorises SANRAL, duly assisted by the SAPS, to remove people from the land, demolish their homes and remove their belongings from the land.

However, the interdict clearly excludes from its ambit those who had already occupied land and were already living in structures on the land at the time that the interdict was granted.

This means that any action taken by the SAPS – on the instructions of SANRAL – against those who were already occupying the land on 24 January would be blatantly illegal.

This does not mean that the eviction of people who occupied the land after 24 January and the demolition of their homes were constitutionally valid.

A court clearly has the power to grant an interdict to prevent people from unlawfully occupying land and building informal structures on that land to house them.

But once they occupy the land and build homes on it, only a court can order an eviction and then only after considering all the relevant circumstances as set out in the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act (PIE).

What the court cannot do, is prospectively order the eviction of unspecified people from their homes and the demolition of those homes by granting an interdict to that effect, as this would be in direct conflict with the Constitution.

The Constitutional Court is currently considering this issue (in the case of Zulu and Others v Ethekweni Muncipality and Others) but in doing so they must be guided by section 26(3) of the Constitution which 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.

In the Zulu case the Ethekweni Municipality conceded before the Constitutional Court that an interdict that actually authorised eviction and demolition would be unconstitutional. However, it argued, quite unconvincingly in my opinion, that an interdict allowing the SAPS to remove existing occupiers from land and demolishing their homes did not in fact constitute an eviction.

Where the court grants an interdict that operates prospectively and allows authorities to prevent occupation of land as well as the eviction of those who have settled on the land and the demolition of their homes, they abdicate their responsibility granted to them by section 26(3) to either private bodies or to organs of state like SANRAL or the Police.

In such a case there would be no judicial oversight over the possible eviction of people who would often be desperate because they would be occupying land illegally because they literally have nowhere else to go.

Neither would there be any consideration of all the relevant circumstances relating the manner in which the land was occupied and the desperation of the occupiers as required by section 26(3) and further elaborated upon in PIE.

As the eviction and demolition of homes at Nomzamo settlement in Strand thisweek demonstrates, a court who grants an interdict that prospectively allows an authority to evict people from their homes and demolish those homes unconstitutionally circumvents the requirements of section 26(3) of the Constitution and sabotages this section of the Constitution.

An interdict such as the one bandied about by SANRAL to justify their heartless action is therefore almost certainly unconstitutional.

In the judgment of Port Elizabeth Municipality v Various Occupiers the Constitutional Court displayed a far more humane and sensitive attitude towards human beings than either the judge who granted the SANRAL interdict or the spokesperson of SANRAL. Discussing the way in which PIE had to be interpreted and applied, Sachs J stated:

PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern.

The fact that SANRAL and the SAPS displayed a complete lack of grace and compassion in this case, underscores the need for court involvement in any decision to evict people from their homes.

This is important because a court that considers whether to evict people from their homes in accordance with section 26(3) of the Constitution, read with the provisions of PIE, will have to ask many questions that neither the court who issued the interdict nor SANRAL ever asked.

Section 6 of PIE states whenever an organ of state like SANRAL requests a court to grant an order for eviction the court can only do so if it is just and equitable to do so, having regard to the circumstances under which the unlawful occupier occupied the land and erected the building or structure; the period the unlawful occupier and his or her family have resided on the land in question; and the availability to the unlawful occupier of suitable alternative accommodation or land.

In City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties the Constitutional Court said that when considering whether an eviction would be just and equitable, a court must also consider the obligations of the municipality in a case. Even where a third party requests an eviction order a municipality must act reasonably in the circumstances.

In terms of Chapter 12 of the National Housing Code requires authorities like Municipalities to provide housing assistance in emergency housing circumstances. This means that the Municipality has a duty to provide assistance to people who find themselves in a housing emergency for reasons beyond their control. Where they are evicted – legally or illegally – people will find themselves in a housing emergency.

As the Constitutional Court explained in Blue Moonlight Properties a municipality cannot argue that in terms of Chapter 12 it is neither permitted nor obliged to take measures to provide emergency accommodation to those evicted. On the contrary “[t]he City is obliged to provide temporary accommodation”.

Claims by Premier Helen Zille on Twitter to the contrary are therefore false. As soon as the eviction occurred, the City of Cape Town had a duty to assist those evicted by SANRAL.

What remains incomprehensible is that many cities across South Africa still view homeless people who are forced unlawfully to occupy land because they have nowhere else to go as law-breakers – as if homeless people are not human beings imbued with incomparable human dignity.

What is needed is a complete paradigm shift on the part of authorities in South Africa. Millions of South Africans still do not have access to formal housing. Like everyone else, those who have no access to formal housing need shelter from the cold and rain. If they do not have the resources to buy or rent property they must be accommodated, and it is the state that has a responsibility to do so.

But many municipalities and provincial governments as well as the national government seem reluctant to deal pro-actively with those in desperate need of shelter. Instead of devising and implementing drastic and far-sighted policies to accommodate those in need of shelter, authorities often seem to treat the homeless as a nuisance to be combatted.

In the absence of such far-sighted policies to provide those in desperate need with access to forms of housing, many people will be forced to occupy both state and private land unlawfully. When they do, authorities often break the law by evicting the occupiers without obtaining the constitutionally required eviction orders and without providing alternative accommodation.

The result is that the authorities (in both DA and ANC municipalities) are often at war with poor people, the very people they claim to revere during elections. It’s a vicious circle: authorities fail to prioritise the needs of poor people and then rhetorically criminalise people for being poor by blaming them for having the cheek to do what is necessary to survive.

When authorities use the law as an excuse for their war on the poor – as Vusi Mona did this week – they undermine the legitimacy of the law. After all, where the law makes it impossible for poor people to survive with even a semblance of dignity, the law is an ass.

Gay Cabinet ministers: So what’s the big deal

Several media outlets reported this week that Lynne Brown became the first openly lesbian cabinet Minister in South Africa after President Jacob Zuma appointed her as Public Enterprises Minister on Sunday. In an ideal world the sexual orientation of a Cabinet Minister – like that of any other person – would be irrelevant. But we do not live in an ideal world.

I am deeply ambivalent about the ritualised staging of confessions which require some of us to make public declarations about aspects of our lives that are deemed to be different from a deeply entrenched norm.

If you happen to be gay, lesbian or HIV positive, for example, it is widely expected that at some point you will “come out of the closet”, which is often equated with making the requisite tearful “confession” to your family and friends and, later, an endless set of often nervous but dry-eyed declarations to members of the larger community.

Sometimes your “confession” is rejected out of hand or used to vilify and further marginalise you or to discriminate against you. Sometimes the “confession” leads to genuine and heartfelt questions or encouraging comments by well-meaning friends and acquaintances.

It matters not whether those who hear the confession are sympathetic or antagonistic. What matters is that you are prodded into confessing that you are different from the desired norm, from a supposedly coveted standard of human existence.

Much like a devout Catholic who is expected to confess his or her sins to either a stern or sympathetic but always elaborately frocked priest in a confession stall, you are expected to go through the ritual that confirms your difference and inherent peculiarity.

This ritual reinforces and perpetuates deeply held assumptions about being gay or lesbian: that your life is potentially difficult or filled with struggle (in my own case this is an assumption that is spectacularly wrong); that you are either a bad person or strangely brave for being able to deal with this loaded deck of cards that fate had dealt you.

When I am required to “confess” my homosexuality or HIV positive status I am required to play a game that results in me having to confirm that heterosexuality and non-HIV status are “normal” (or at the very least, the norm).

My confession, then, both signals and reinforces my perceived “otherness”. It imbues my invented “otherness” with singular meaning and provides yet another discursive tool that can be used by others to justify my marginalisation and oppression.

That is why I now try to avoid making confessions about these aspects of my identity. Instead, if I think it would be politically important to convey this kind of information about myself (or on a personal level, if I think I need to establish a measure of intimacy with someone else) I “accidentally” drop facts into a conversation that reveal more about who I am.

Talking about rugby with a colleague or acquaintance? Easy to say that although I am not sure whether he is a good fly half, I do think Kurt Coleman is exceedingly attractive, then telling the person about that time my father took me to watch the Springboks play at Ellis Park. Talking about the coming weekend? Easy to mention my romantic dinner with Lwando, then talk about my favourite restaurants.

Complaining to a colleague about being overworked? Easy to mention my visit to the doctor to do my bi-annual blood work or how my ARVs make me dream the most wonderful but tiring dreams, then talk about my computer screen that seems to be on the blink.

In short, I tend to avoid the “confessional” style of talking about my sexual orientation or my HIV status because I fear that the language of confession tends to erase the singularity of my existence as a human being and sets up a hierarchical opposition between “normal” people and poor “abnormal” me.

In an ideal world, this would scarcely have mattered. After all, in an ideal world the only normal thing about any human being would be that none of us are truly normal.

But we do not live in an ideal world.

We live in a world in which heterosexuality is deeply embedded in our culture as both normal and desirable. Conversely, the idea that homosexuality is wrong, shameful, strange or undesirable is also deeply embedded in our culture.

Because the notion that heterosexuality is desirable is so deeply entrenched in our culture, the way it permeates and infiltrates our existence becomes invisible. People tend not to notice how heterosexuality are ceaselessly advertised and promoted (almost always as normal, pure, desirable – few people mention that Adolf Hitler was straight and nod knowingly to imply this says anything about heterosexuals as a group) while homosexuality is silenced or erased, except when it is made visible to try and affirm the belief in its abnormality.

While gay men and lesbians are often told not to “flaunt” their sexuality by, for example, telling others about who they love, who broke their hearts or who they had slept with on the weekend, heterosexuals shamelessly get to “flaunt” their sexuality every day and this is called life.

At shopping malls heterosexual couples walk hand in hand, proudly advertising their heterosexuality. At the office, colleagues out themselves as straight almost as soon as you meet them for the first time, dropping not-so-subtle hints about their husbands or wives or partners in the tearoom or at other informal gatherings.

Politicians, sports stars and actors parade their heterosexuality for all the world to see, having pictures taken at their weddings (apparently You magazine actually pays “celebrities” to have their wedding pictures published) and appearing at the opening of Parliament or a new movie or at an awards ceremony with their different-sex partner on the arm.

This is the world we live in: relentlessly advertising and promoting heterosexuality; relentlessly making the rest of us invisible.

One way of being in the world (one man and one woman in love to the exclusion of all others) is valorised, incessantly promoted and rather optimistically and disingenuously lauded as an ideal that every person should strive for in order to attain eternal or at least temporary happiness.

Other ways of being in the world are vilified or erased through embarrassed or enforced silence, or “othered” by well-meaning people who insist on telling you that they have no problem with homosexuality – thus affirming that they think there is potentially something profoundly disturbing or at least strange about two men or two women loving each other, something that they are broad-minded enough not to have a problem with.

It is exactly because we live in this far from perfect world that it matters profoundly when an openly lesbian politician is appointed to an influential Cabinet position. I am not suggesting that Minister Brown herself should make a big deal out of it.

Because of my ambivalence about the politics of “confession”, of coming out, anything she says on the subject would have the potential to be counter-productive.

But when openly gay or lesbian individuals (or people living with HIV, for that matter) happen to be powerful politicians, sports stars, actors or other influential individuals like judges or business leaders, they become potential role models to others who might have internalised widespread societal prejudices and might previously have believed that being gay, lesbian is somehow shameful, something to hide from others.

Moreover, because such individuals have a distinctive presence in public life and are strongly associated with the characteristics that made them well known (their acting talent, their political acumen, their sporting prowess), people who would usually obsess about their sexual orientation might begin to look past this one aspect of their lives and see more of the whole person there.

When gay men, lesbians or bisexuals are appointed to important positions it also signals to the wider society that there is in fact nothing abnormal, shameful, surprising or undesirable about people who happen to love differently from themselves.

For these reasons I think it is more than noteworthy that Minister Brown has been identified as a lesbian. In another world, a world in which a person’s sexuality (whether he or she is gay, lesbian, bisexual or heterosexual) would be of no interest or importance to anyone in society, it would have been silly to take note of and report on this fact.

In the world we live in, it is far from it.

Rights and law: The untold, human stories

Oppressive legal rules and regulations can have a devastating effect on the lives of ordinary people. Conversely, ostensibly emancipatory legal rules and regulations – including rules and regulations aimed at promoting and protecting the human rights of all people – seldom provide an instant cure for the irrational fear, ignorance, greed, arrogance, superstition, stupidity and hate that lurks in the hearts of some people and lead them to marginalise, vilify, belittle and even assault or kill those who they perceived as being “different” from themselves.

After 1948 race classification and pass laws (reflecting the racist prejudices of the majority of white South Africans) helped to formalise systemic racial discrimination and instantly turned the majority of citizens into potential criminals.

These Apartheid laws did not create racism. Nor did they create the belief – widely shared by many who took part in and benefited from the colonial project – in the inherent superiority of white people.

They simply formalised the logic inherent in the project of colonialism and placed the full might of the state behind efforts to enforce the irrational belief in the superiority of the settlers – the very group whose brutality and cruelty led to much suffering among indigenous people on our continent.

These legal rules had a devastating effect on the lived experience of black South Africans. Until resistance to Apartheid made the enforcement of many of these laws difficult, if not impossible, they could be effectively enforced at least partly because they broadly reflected the values and attitudes of the ruling white elite.

As we all know, in 1994, when South Africa became a democracy and we adopted a justiciable Constitution that outlawed discrimination based on race and affirmed the inherent human dignity of all, it did not miraculously change the material conditions in which people live or the vast economic and social inequalities between many black and white people.

Nor did it miraculously lead to an end of racism and racial discrimination or to the dismantling of the structures, ideologies and beliefs that formed (and, to some degree, continue to form) the basis for racial exploitation and marginalisation of black people in South Africa.

This suggests that the law is a particularly powerful tool when it is used to regulate or enforce the beliefs and values of the economically, socially and politically dominant group in society. But, I contend, law is far less effective as a tool for social change when the legal norms embedded in it do not necessarily reflect the beliefs and values of the dominant social, economical or political class in a society.

The formal legal recognition of human rights norms (which represent an ideal that are often at odds with the beliefs and values of a sizeable section of the population) in the form of a justiciable Bill of Rights, are therefore not always as effective in changing the attitudes of citizens.

Despite this, I continue to believe in the strategic use of (and appeal to) human rights norms. In the right place at the right time on the right issue, specific human rights norms can help to protect the inherent human dignity of everyone. But in the absence of political leadership championing these “imposed” norms and in the absence of an active civil society and media promoting these norms, real, fundamental change will often be slow.

I would argue that it is because of this complex dynamic that profound strategic, ethical and practical challenges confront anyone in South Africa or in the so called West who wishes to deploy a human rights discourse to confront homophobia on our continent.

We have to be honest and acknowledge that – sometimes for good reason – human rights are often demonised in certain parts of the world as embodying normative commitments that reflect a specific cultural and racial view of the world, a view that is dominant in the very countries that committed the crime of colonialism.

I don’t think there are easy answers to deal with these challenges. It all depends who speaks, where they speak and about what, I would guess.

But this difficulty does frame the discussion of LGBT rights in South Africa and the rest of the continent.

Not that the matter of protecting the inherent human dignity of gay men, lesbians, transgendered and intersex individuals and gender-nonconformists is not profoundly important and urgent.

Take the Ugandan Anti-Homosexuality Act as an example. This Act reflects the homophobic attitudes of a majority of people living in Uganda. A recent survey concluded that 93% of Ugandans believed that homosexuality was immoral while only 1% believed it was acceptable.

The Act is both shocking and conceptually peculiar. It defines a “homosexual’’ to mean “a person who engages or attempts to engage in same gender sexual activity” and “homosexuality” as same gender or same sex sexual acts. Given the obviously constructed nature of gender (as opposed to sex which is supposedly based on biological characteristics) it is unclear how a judge in Uganda will be able to decide what the “gender” of an accused person or their sexual partner is.

Section 2 of the Act states that a person commits the “offence of homosexuality” not only if he or she actually engages in sex with somebody of the same sex (or gender!) but also if he or she “touches another person with the intention of committing the act of homosexuality”. “Touching” is defined as including touching with any part of the body; with anything else; through anything.

This means that kissing, fondling, caressing “with the intention of proceeding to have sex with somebody else of the same sex” (or gender), commits a crime. If convicted, the person must be sentenced to life imprisonment. The law could thus require a court to sentence a person to life imprisonment for kissing or touching another person.

The Act also states that a person who attempts to commit the offence of homosexuality commits a felony and is liable, on conviction, to imprisonment for seven years.

This means if you attempt to kiss or caress another person “with the intention to commit the crime of homosexuality” you are guilty of a crime and must be sentenced to seven years’ imprisonment.

The Act states that a “victim” of homosexuality cannot be penalised for any crime committed as a direct result of his or her involvement in homosexuality. This means that a person who claims to have kissed or caressed somebody against his or her will is a victim and will not be convicted.

This section does two things: first, it allows one of two parties to a sexual act to protect themselves against prosecution by claiming to be the victim which renders it more likely that one person will testify against another. Second, if you assault or kill another person because you alleged the person allegedly tried to have sex with you, you cannot be penalised for this. It is a legal provision that endangers the lives of every Ugandan who experiences same-sex sexual desire.

The Act further states that a person who purports to contract a marriage with another person of the same sex commits the offence of homosexuality and shall be liable, on conviction, to imprisonment for life.

Hopefully many South Africans would be horrified or at least slightly disturbed by the provisions of the Uganda Act which sanctions the persecution of gay men, lesbians, transgender and intersex individuals by the state.

When we turn our gaze northwards and condemn such forms of state-sanctioned persecution, the danger is that we may lose sight of the fact that neither our wonderful Constitution nor the laws enacted to give effect to it always protect our gay and lesbian brothers and sisters in South Africa.

This is so because neither the Constitution or the law, nor the occasional seemingly half-hearted statements of some of our politicians have managed completely to turn the tide against the deeply entrenched homophobia of many South Africans. A recent survey found that 62% of South Africans say that homosexuality is immoral while 18% said it was acceptable.

This attitude can be deadly. A column, written by my friend Herman Lategan and published in Rapport newspaper last Sunday, provides a deeply troubling reminder of this. I leave you with my translated extracts from his column:

It happened a few months ago, but the incident still nags at me. Maybe because it hardly caused a ripple.

Why would it?

He worked and lived in Ceres. Fruit growing district, the smell of apples and pears at harvest time. On cold winter’s mornings, light snow, smoke curling from the chimney’s of the small farmworker houses.

On Saturday 22 March David Olyne (22) arrived at his work, “Family Food and Meat Market”. His manager and friend, Heather Muller, speaks with a soft voice over the phone, in birdlike beautiful Ceres Afrikaans.

“He was sad that day,” she says, “because the previous night he was at a party where somebody broke his heart.

“I told him he should not be so down, I will allow him to go home early, then he could tell me everything about the party on Sunday.”

He left work. His hair still looked so beautiful.

That Saturday night close to the dam, a group of teenagers sat drinking when a man invited them to come and watch him kill a “moffie” (“faggot”).

According to news reports, he was already bloodied and tied up with barbed wire when the teenagers arrived on the scene.

The attacker cracked open David’s head with a rock. He then jumped on his head while shouting “voetsek”.

The young man groaned. Then the attacker took branches from the tree and placed it on top of him, before lighting it.

The teenagers (14-18 years old) left and did not say a word. It was only the next morning that somebody went to check whether David was still alive and then alerted a woman. It was the woman who told the police about the mutilated body.

On his Facebook page, which is still “live”, there are several pictures of David, also one in which he cracks a smile wearing huge sunglasses.

One of the last posts on the page was done on 3 December 2011, also a Saturday night. “’n lekker aandtjie uit gehad .nuw w3 wek wek wek (sic).” (Had a great night out. New week. Wek wek wek.”

“He was my left hand and my right hand,” Heather tells me on the phone.

“Ooh he could make the best coffee and we always had sooo much fun laughing together.” As a lark David sometimes dressed in drag.

His mother and father do not own cell phones and work respectively as a farm worker and a domestic worker.

“The mother who raised him, a white woman in town, did not want to go and identify his body,” Heather says.

“She was too upset, she wanted to remember him the way he was. So I went to the morgue. David had been badly burnt. From his hips to his head and his hair had also burnt off, except for a tiny tuft of hair right at the top.”

“And so, you know, I still thought,” says Heather, “that same hair which was his pride and joy, now there was hardly anything left of it. God, my dear friend, what did you do to anyone? Nothing.”

“And now… all that remains of his pride is a small tuft of hair.”

Nkandla report in court: Zuma’s interest or legal considerations?

News that the security cluster of ministers is to approach a High Court to review and set aside the public protector’s report on Nkandla does not come as a surprise. While it is difficult to see any plausible legal justification for the review, such a review will tie up the report in the courts for a year or two and will allow attention to be diverted away from the damning findings made in the report against President Jacob Zuma – at least for the foreseeable future.

According to acting government spokesperson Phumla Williams, the government is seeking a review of the public protector’s Nkandla report “to seek clarity” from the court on aspects of the report. In an interview on SAFM Ms Williams explained that the government had asked the public protector to discuss her report with them with a view to “clarify” it. As the public protector refused to revisit her final report, Ms Williams argued, it was hoped the court would provide the necessary “clarity”.

If this is indeed an aim of the government in having the public protector’s Nkandla report reviewed by a court, it demonstrates a worrying lack of basic knowledge of (and respect for) the Constitution and, most notably, for the independence of the public protector as guaranteed in section 181(2) of the Constitution.

As the Constitutional Court confirmed in at least two judgments, Chapter 9 institutions are not part of government and are thus outside of government and independent from it. Moreover, as stipulated in section 181(4) of the Constitution, no organ of state may interfere with the functioning of the public protector. As an ad hoc committee report of Parliament made clear, this means that neither parliament nor the executive could interfere with decisions taken by the public protector relating to a specific investigation.

An attempt to get the public protector to revisit a final report and to “clarify” aspects of it, constitutes a prima facie attempt to interfere with the independence of the public protector. If the public protector had indeed agreed to assist government to “clarify” aspects of her final report, she would have acted in a manner in breach of her constitutional duty to act independently and without fear, favour or prejudice.

For this reason, no judge in South Africa who is even vaguely familiar with the Constitution and the jurisprudence of the Constitutional Court is ever going to agree to interfere with the findings made by an independent Chapter 9 institution by “clarifying” the Nkandla report.

It just ain’t gonna happen.

This does not mean that a report issued by the public protector cannot be reviewed by a court and set aside on the basis that its findings are irrational. If a court finds that no rational person could have made the findings contained in a report of the public protector (based on the facts exposed in the report), a court can set aside that report as invalid.

However, rationality review sets an extremely exacting standard to meet and it will only be in the most exceptional circumstances that a court will set aside the findings contained in a report of the public protector on the basis that these findings are irrational.

As the Supreme Court of Appeal (SCA) indicated in the judgment of Public Protector v Mail & Guardian a court will not direct the public protector as to the manner in which an investigation is to be conducted.

A proper investigation might take as many forms as there are proper investigators. It is for the Public Protector to decide what is appropriate to each case and not for this court to supplant that function…. It would be invidious for a court to mark the work of the Public Protector as if it was marking an academic essay.

What is required, said the SCA, is that an investigation “must have been conducted with an open and enquiring mind” as an “investigation that is not conducted with an open and enquiring mind is no investigation at all”.

Rationality review does not allow the court to enquire into the correctness or the wisdom of the findings contained in a report. Even where the investigation and the findings of the public protector could be faulted or even where reasonable people could differ on whether the conclusions reached by the public protector in a report were correct, this will not render the report invalid.

However, where no rational person could possibly have made the findings contained in a report – based on the facts revealed in that report – a court would have a duty to set the report aside.

This means that it would not be sufficient for the security cluster ministers to point to contradictions between their own exculpatory report (in which they investigated and exonerated themselves) and the public protector’s report and then to argue that the findings in her report were irrational.

It is clear that the president and his security cluster ministers do not agree with some of the findings of the public protector’s report on Nkandla, are aggrieved that the latter report did not exonerate them all like their own report did, and prefer the findings of the government task team report. Who would not prefer a report conducted by your own underlings and exonerating you from any wrongdoing?

Unlike the ministerial task team who supposedly “investigated” the Nkandla scandal, the public protector is an independent constitutional body tasked with investigating such matters without fear, favour or prejudice. While the former report has no constitutional standing, the latter does. The former was not an independent investigation, the latter was. The former was a slap-dash effort of less than 50 pages; the latter was a more than 400 pages long.

But legally this is not the crux of the matter. What is the crux of the matter is that no court in South Africa is going to review and set aside a report conducted by an independent constitutional body because it conflicts with a report drafted by the very people implicated in wrongdoing or by people whose bosses are implicated in wrongdoing.

For this reason I thank my lucky stars that I am not the lawyer tasked with trying to convince a court that the public protector’s report on Nkandla must be set aside because it is irrational. The potential embarrassment and humiliation facing that lawyer is not something that I would wish on my worst enemy.

Having said this, if I had to attack the public protector’s Nkandla report on the basis of irrationality, I would focus on the finding that the president never meant to lie to Parliament. The facts contained in the report clearly suggest otherwise.

Moreover, the president refused to provide the relevant answers and documents requested of him, as he is obliged to do by the Public Protector Act. Prima facie this refusal to co-operate to provide the public protector with the answers that could have proven that he did not lie to Parliament constitutes a criminal offense.

The most plausible interpretation of the facts contained in the report suggest that the president did indeed lie to Parliament in breach of the Executive Members Ethics Code and then refused to co-operate with the public protector to cover up this lie.

The finding that the president did not lie to Parliament was therefore, in my opinion, clearly wrong. Whether it was irrational, thus rendering the report invalid is another matter.

Ms Williams also made another, to my mind, bizarre statement today. “It is the ministers’ view that the public protector’s report and the investigation she conducted trespass on the separation of powers doctrine and… section 198(d) of the Constitution which vests national security in Parliament and [the] national executive,” she said.

This argument is, quite frankly, a legal nonsense. I cannot imagine that any lawyer vetted it.

First section 182 of the Constitution states that the public protector has the power, as regulated by national legislation, to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice”. The only matter which the Constitution prohibits the public protector from investigating is court decision.

Moreover, the Public Protector Act makes it clear that while the functions of the public protector include those that are ordinarily associated with an ombudsman, he or she may investigate, amongst other things, any alleged improper or dishonest conduct with respect to public money, any alleged offence created by specified sections of the corruption legislation with respect to public money, and any alleged improper or unlawful receipt of improper advantage by a person as a result of conduct by various public entities or functionaries. This includes, of course, the president, which, it may surprise the security cluster Ministers to hear, is not above the law.

Secondly, section 198(d) of the Constitution states that: “National security is subject to the authority of Parliament and the national executive.” It affirms that issues of national security cannot be exempted from civilian oversight. Parliament and the national executive have the final authority to direct decisions about national security, but nothing in the section excludes the public protector from investigating matters alleged to be related to national security.

To hold otherwise would be to argue that the president and his government is above the law as long as they claim an issue relates to national security. The argument is one in favour of impunity and lawlessness.

Third, in his reply to the National Assembly in which he responded to the findings of the public protector, the president stated that: “The Security Cluster Ministers, the SIU and the Public Protector all have a constitutional and a legislative mandate to conduct their respective investigations”.

The president has therefore already acknowledged that the public protector was empowered to investigate the matter, despite allegations that it relates to “national security”. The statement today thus directly contradicts the president’s previous acknowledgement that the public protector has the legal mandate to investigate the Nkandla matter.

For these reasons it is difficult to see how the decision to ask the court to review the Nkandla report can be based on any legal considerations. This is therefore almost certainly not a decision based on law, but instead a decision based on what is in the best interest of President Zuma (if not the ANC).

Democracy: let the real work begin

Until 1994 the majority of South Africans were denied the right to vote as equal citizens imbued with inherent dignity. For that reason, for many of us national elections remain a powerful and important event that affirms our dignity. But as the votes are being counted in this election, citizens must remember that democracy is about much more than making a cross next to the party of their choice once every five years on election day.

Like many people of my generation I have ecstatic (and somewhat romanticised) memories of the weeks in 1994 in which South Africa finally became a democracy.

On the evening of the 26 April 1994, I stood in front of the provincial government building in Wale Street in Cape Town and, along with others who had gathered there, shouted “down! down! down!” as the old South African flag was being lowered. I also cheered myself hoarse and cried and hugged my boyfriend as the new flag was hoisted up the flagpole at exactly midnight.

The next day my partner and I drove around Cape Town, from one polling station to the next, quietly (and sometimes not so quietly) cheering on the people patiently standing in long queues, while we scouted around for a polling station where the line was not too long.

But, to be honest, we were really just enjoying the moment, fearful that we would miss out on even one second of the joy and emotion of that day. My boyfriend was waving an ANC flag through the window of the car (my rusted white Jetta) while Miriam Makeba’s voice blasted loudly over the crackling car speakers.

I specifically remember the old middle class white woman with her grey hair (probably wearing clothes bought at “Teals of Kenilworth”), who was standing in the voting queue at Jan Van Riebeeck High School.

As we noisily drove by, she peered at us (one youngish white man and one youngish black man giggling like school girls, giddy with the emotion and excitement of the day). At first she looked worried (or maybe confused) before her face lit up and she flashed her teeth in the brightest smile and lifted a hand in a friendly, slightly ironic wave.

It was then that I cried again. (I did a lot of crying in the week before and after that election.)

Strangely, what I have no memory of is the bombs that went off in the week running up to the election. I vaguely recall that some white people had stocked up on tinned food and candles, fearful of the violent revolution that never came. But I have no memory of the pre-election violence or the serious problems with the counting of votes that almost derailed the whole election.

No election will ever be as emotional and meaningful for me as that first democratic election in 1994. Yet, as I stood in the queue on 7 May 2014 to cast my vote, (unlike in 1994, still worrying at that late stage whether I was making a wise voting choice) emotions came flooding in.

For me, casting a vote in a national election remains a magnificent event. For this one day life seems relatively uncomplicated. Because it only happens every five years and because it requires no more of me than to stand in a queue and to draw a cross next to the name of the party of my choice, it makes democracy seem effortless, a morally pure event, something that affirms my dignity as a citizen but requires little real effort.

But as we turn our attention to the counting of the votes I must remind myself that casting a vote in an election only represents a tiny part of my duties as a citizen in a constitutional democracy.

Don’t get me wrong, representative democracy – in which citizens vote for public representatives in relatively free and fair elections – remains an important prerequisite for the legitimate exercise of public power in a constitutional state. In the absence of free and fair elections, citizens are disempowered and not treated as fully human. Politicians are rulers and not servants and are feared rather than ironically tolerated.

The establishment of representative democracy is a necessary but not sufficient requirement for the creation and maintenance of a system of government in which politicians fear citizens but citizens do not fear politicians.

The real – often messy, complicated and morally confusing – work needed to maintain the democracy occurs in-between elections. Democracy does not begin and end with the casting of a vote. More is required of citizens to make a democracy flourish.

It is only when representative democracy is supplemented by lively and vigorous participatory forms of democracy – which requires citizens actively to take part in the governance of the country – that there is any chance that the government that we have elected will serve ordinary citizens and not only politicians and those with money or the right political or family connections.

It is relatively easy to vote in an election. It is far more difficult to engage actively, in a principled manner (but with an open and enquiring mind) in political and governance processes.

It is even more difficult for ordinary citizens to take back the power from politicians and political party leaders in a system like ours in which we vote for a party and not for individual public representatives at national and provincial level.

Unless you join a political party and become actively involved in the activities of that party, you can easily believe that your voice and your actions do not matter at all – except every five years at the ballot box.

But if we cherish our democracy we must find ways to remain actively involved in holding elected representatives accountable and to fight for what we believe is best for our country and its people.

How can this be done?

If the party you voted for and to whom you are loyal happens to be elected into government at national or provincial level (yes, I am talking to ANC and DA loyalists) you must recognise that it is in the best interest of your party to make your voice heard about the decisions they take in government.

Even if you are not active in the party you are loyal to, nothing prevents you from expressing your concerns about an issue you feel strongly about.

You can organise a letter writing campaign, flood party headquarters with emails and phone calls, organise petitions, contact the office of a Minister or MEC, attend branch meetings, join protest marches organised by civil society groups, unions or community based organisations, write letters to the newspaper, call in to radio talk shows, to let your party know what you think.

As the Treatment Action Campaign demonstrated so brilliantly at the start of the previous decade, even a political party with overwhelming support nationally or in a province is not immune from public pressure of this kind. In the face of its politically astute campaign for free access to anti-retroviral (ARV) drugs for all HIV positive people who require it, the ANC government reversed its opposition to the rollout of ARVs.

If you love your party, and if you have its best interests at heart, you will not be scared to demand accountability from the public representatives that belong to the party of your heart. Often, criticism comes from a place of love and respect and from the desire to help your party to do better. The absence of criticism and protest is often a sign of indifference.

Those who have no strong loyalty to any political party can do many of these things too. If you have access to human or financial resources you can also make submissions to Parliament or organise your community to make submissions on an issue that is being considered by the legislature.

On those occasions that I have made written and oral submissions to the National Assembly, I have always been pleasantly surprised by the seriousness with which MPs engage with such submissions.

For example, after making submissions on a draft version of the Civil Union Bill (which extended marriage to same-sex couples) the National Assembly completely redrafted that Bill to accommodate most of the constitutional objections those of us who appeared before the Portfolio Committee raised.

(I am not sure whether the bet I jokingly made with the Chair of the Committee – that I would give him one year of my salary if their version of the draft Bill passed constitutional muster if he gave me one year of his salary if it did not – had any effect on this decision.)

I am sure every citizen will have his or her own ideas on how to keep public representatives honest and accountable. There is no shame in experimenting with these ideas. However, to me there is a shame in complaining about what you think is wrong, but not doing anything to change it.

Of course, not all forms of citizen protest or criticism will be effective or will change the course embarked on by our elected government. That is also part of democracy. There is nothing illegitimate in an elected government implementing a policy that is not popular – as long as the governing party is prepared to suffer the consequences of their actions at the next election.

The least effective form of protest, I have found, is the mere incessant whining and carping about all that is wrong without offering alternatives. Complaining about our government at dinner parties and shisa nyama’s while not bothering to do anything about it as a citizen is a rather useless and narcissistic exercise.

But if both party loyalists and citizens without any strong emotional or historical connection to a political party in government are prepared to make their voices heard loud and clear in ways that they feel appropriate (within the boundaries of the law), it will make our elected representatives far more accountable and responsive than they have been.

After all, the elected representatives of governing parties and the party leadership know that they will have to beg for your vote at the next election. If they really believe that a proposed policy or decision is going to cost them many votes at the next election, they will listen – unless they are completely irrational, which I believe few politicians are.

Democracy belongs to citizens, not only politicians. Now use it.

The voting process at a glance


Address of Chief Justice at AACCEI Conference, Turkey on 29 April 2014






29 April 2014


Your Excellency, President HasimKiliç, the President of the Turkish Constitutional Court and the Association of Asian Constitutional Courts and Equivalent Institutions (AACCEI), your Excellencıes Presıdents and Chıef Justıces of Constıtutıonal Courts and Equıvalent Instıtutıons, distinguished guests, ladies and gentlemen, I greet you.

I am deeply honoured and humbled by the invitation extended by the AACCEI to the Conference of Constitutional Jurisdictions of Africa (CCJA) to participate in the Second Congress of this august body whose noble objectives set out in Article 4 of the Statute are to promote: the protection of human rights, development of democracy, implementation of the rule of law, the independence of the Constitutional Courts and Equivalent Institutions, through the exchange of information and experiences related to constitutional justice.  My presentation is based on theme 4 entitled “The Role of the Constitutional and Supreme Courts in the Protection of Constitutional Order”.

Prerequısıtes for the Capacıty to Protect the Constıtutıonal Order

I am persuaded that truly the pre-eminent desire of every human being, barring negligible exceptions, is to be above all others, to dominate, to outclass and to rule over them and a dısdaınfor any dissenting voice. For this reason, when politicians appoint Judges particularly to the highest court in the land, and when members of opposition political parties and a diversity of lobby groups support or seek to dıscredıt certain appointments, it is at times motivated not so much by what is in the best interests of the nation, but by what is in the best interests of the holders of a supportıve or opposıng viewpoint or the sector they represent.

The ability of the Constitutional and Supreme Courts to protect the constitutional order well, depends to no small measure on the selection of the Judges who are to be appointed to these courts. If Judges so appointed are beholden to any political outfit, or big business or some or other pressure or lobby group or secret organization or even world superpower with vested economic interests, then justice will be adulterated because the justice-dispensing institutions would be toys remote-controlled by the kingmakers or puppet-masters.

We as Judges need to identify and propose the essential ingredients of a selection and appointment process that is objectively credible and sufficiently transparent to protect the courts from otherwıse legitimate and justifiable criticism. I must hasten to state that many younger and smaller democracies that are rich in mineral and natural resources are often criticised severely, by agencies or units sponsored by older democracies whose appointment processes are indefensible in comparison to those under attack. This hypocrisy must be taken into account in the assessment of the legitimacy of the criticism. Some of the essentıalıa of a Constıtutıonal or Supreme Court capable of protectıng and promotıng a constıtutıonal democracy follow below.

The competence of Judicial Officers is not negotiable. A demonstrable track-record of fair-mindedness, commitment to human rights, and the rule of law, decisiveness, humility and personal independence are some of the key traits of a personality fit to serve in the highest court in the land.

The institutional arrangements must be such as to facilitate the independence of an individual Judge to decide any case without being unduly influenced by another Judge, a politician (of a ruling party or opposition party), big business or well organised and highly resourced lobby groups. Securıty of tenure, contınuous judıcıal educatıon, tools of trade, and support systems necessary for a Judge to take his or her own decisions without fear, favour or prejudice, are important.

A Judge should guard against being lured to the point of being compromised by gifts, introduction to exclusive networks that would usher him or her to prestigious clubs or gatherings of the who’s who of this world, positive coverage and the maximization of whatever they say or do however minıscule it may be, the ever-flowing praise from certain quarters that may makeıt difficult for hım or her to disappoint them come decision-making time. It ıs necessary to keep a critical distance from anything oranybody that may compromise one’s integrity, impartiality and independent decision-making. A Judge should always be mindful, without being unduly suspicious, of the exıstence of forces out there vyıng for the control of the institution in which he or she serves. These are forces that want to secure your vote or support whenever matters affecting them are before your court.

One of the worst betrayals of the legitimate aspirations of any nation is by a Judge, whomakes decisions, not because he or she believes they are correct, but in order to please a friend, “constituency” or a lobby or pressure group. That is corruption of the worst kind. As functionaries in the Constitutional and Supreme Courts, we must be our Brothers and our Sisters’ Keepers. We must establish some informal or formal and yet courteous and effectıve peer-review mechanism that would allow us to raise concerns with colleagues who appear to be doing a disservice to these courts, that are central to the protection and promotion of our constitutional democracies.

Judges are themselves their best protectors and best guardians of the institutions in which they serve. It will help us all to remember always that power corrupts, and absolute power corrupts absolutely. Judges are human and they individually and collectively wield enormous power. The potential to be corrupted by this power and by those seekıng to corrupt the system always looms large.

Let me give some context to the magnıtude of this danger based on the powers vested ın the South African Constıtutıonal Court. The Constitution of South Africa is the supreme law of the Republıc. Any law or conduct inconsistent with it is invalid to the extent of the inconsistency and falls to be set aside by the Constıtutıonal Court. The Constitutional Court is the apex court in all matters and the final arbiter of the constitutional validity of decisions taken by the President, Cabinet Members or Premiers etc and laws made by Parliament and Legislatures. In sum, the Constitutional Court has a say in virtually all matters because the Constıtutıon has a bearıng on almost every matter of some ımportance ın our country. The Constitutional Court is the guarantor of our constitutional order. Subject to the separatıon of powers doctrıne, whıch means what the Court says ıt means, the power of our Constıtutıonal Court ıs arguably immeasurable. And thıs could be very dangerous ıf not handled wıth humılıty, due sensıtıvıty and care.

Nothing about the conduct of Judges, theır public statements, decisions,  the trend in decision-making and the potency or otherwise of the reasoning, should give any grouping, any sector of society, any political formation or any class of people, a sound reason to believe that groups or associations which hold certain world-outlooks are always guaranteed a favourable outcome.  For that would be a danger to a constıtutıonal order and a recipe for a dictatorship or anarchy, anarchy wıth tıme dependıng on who ıs on the receıvıng end of the real or perceived ınjustıce.

When the highest court in the land gives a portion of the populationa legitimate reason to believe, that it is not true to its constitutional mandate, but is in the pocket of some powerful or influential personalities or institutions, then public confidence ın them, respect for them and theırmoral high ground would be undermıned. When it ceases to be or begıns to look lıke ıt ıs not the genuine conscience of the nation, but a tool, at the beck and call of some, then it becomes easy to disregard its orders and to openly renounce it on solid grounds and at tımes persuasıvely.

Courts that have given stakeholders reason to believe that they are favourably disposed to some illegitimate interests, because they fear the venomous bite of the power wielded by those they favour,are in no position to protect any constitutional order. Such courts lack the capacıty to fulfil theır role descrıbed by the late Justıce Black of the United States Supreme Court, in the following terms:

Under our constitutional system, courts stand, against any winds that blow, as a haven of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement.[1]

Historically, the Executive has been the most powerful institution of governance.  The tendency by the Executive to downplay the authority of the Judıcıary has been universally observed throughout the ages, wıth great concern.  Thıs ıs what drove Chıef Justıce John Jay of the Unıted States Supreme Court who served as Chıef Justıce for fıve years from 1789 to 1795, to resıgn from the position of Chıef Justıce, because he belıeved that the posıtıon lacked prestıge, to become the Governor of New York.

The South African Constıtutıonal Court and the Protection of Constitutional Order

The South Afrıcan Constıtutıonal Court has done a lot to protect and promote our constıtutıonal order.  Laws that were passed wıthout affordıng the affected publıc the opportunıty to participate meanıngfully ın the law-makıng process, were set aside. Many Acts of Parlıament were declared constıtutıonally ınvalıd by reason of theır ınconsıstency wıth the Constıtutıon.  Several decısıons of the Presıdent and Members of Cabınet suffered the same fate owıng to theır constıtutıonal ınvalıdıty.

Educatıonal, housıng, employment and socıal welfare opportunıtıes or related matters were addressed by our Constıtutıonal Court to gıve the natıon a sense that theır constıtutıonal democracy ıs safe ın the hands of a truly ındependent Constıtutıonal Court.[2]

The Constitution vests judıcıal authority of South Afrıca ın the courts.[3] It further provides that these courts are independent and subject only to the Constitution and the law, which they must apply impartially. And thıs ıs the freedom that the South Afrıcan Judıcıary has been left to enjoy.

Section 38 of the Constitution entitles any person to approach a competent court, ıncludıng the Constıtutıonal Court, to vındıcate hıs or her constıtutıonal rıghts. It does not have to be the aggrieved person herself who approaches the Court. Anyone may act on behalf of another who cannot act on his or her own approach the Court.  Addıtıonally, anyone actıng ın the publıc ınterest may approach the Constıtutıonal Court for the same reason.[4]

As part of ıts efforts to enhance access to justice, the South African Constitutional Court, has over the years assisted indigent and unrepresented litigants, whose papers are ıncoherent by approachıng bodies lıke the Legal Aid South Africa, public interest litigation institutions, the General Council of the Bar and the Law Society of South Afrıca to assist in prosecutıng their matters for free.

All of these achıevements and much more were facılıtated by the ındependence enjoyed by our courts, ıncludıng the Constıtutıonal Court, to decıde cases wıthout any interference whatsoever from any quarter.


The judicial function is seen by many as the last bastion in the defence of individuals.[5]The Judiciary is the third branch of Government, the third arm of the State.  There simply can be no State or government without an ındependent Judiciary in a genuine constitutional democracy.[6]

Appointment to the apex court of any constitutional democracy is a special honour and rare privilege indeed. It must be treasured and allowed to ınfuse ın us an ever-abiding consciousness of the awesome responsibilities that rest on our shoulders for the benefıt of our natıons, the vulnerable, the voıceless and the forgotten poor. We are the bearers of the legitimate hopes and aspirations of the millions that approach our courts daıly, trusting that as final arbiters of what is right or wrong, what is constitutionally valid or invalid, we will refuse to be moved by the power, influence, fame and wealth commanded by any of the parties or sympathetic lobby or pressure groups in matters before us. We will “administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.”[7]

The Judiciary should never be “imperialised”, “adulterated” or corrupted for any reason including the advancement of corrupt, illegitimate or sectoral agendas. We owe our honour, our credibility, our moral high ground and status as guarantors of any constitutional order and as the conscience of our respectıve nations,to always frownıngat all illicit attempts to corrupt our  independence as well as our jurisprudential and philosophical outlook.


[1] Chambers v Florida, 309 U.S 227, 241 (1941). Also see The Supreme Court: Reflections on the Constitutional Protection of Human Dignity, Earl L Neal
[2] See for example, Chrıstıan Educatıon South Afrıca v Mınıster of Educatıon 2000 (4) SA 757 (CC); MEC for Educatıonş KwaZulu-Natal and Others v Pıllay 2008 (1) SA 474 (CC); Government of the Republıc of South Afrıca v Grootboom 2001 (1) (SA) 46 (CC); Mazıbuko and Others v Cıty of Johannesburg and Others 2010 (4) SA 1 (CC);Resıdents of Joe Slovo Communıty, Western Cape v Thubelısha Homes and Others (Centre on Housıng Rıghts and Evıctıons and Another, Amıcus Curıae) 2010 (3) SA 454 (CC); Khosa and Others v Mınıster of Socıal Development and Others; Mahlaule and Others v Mınıster of Socıal Developmentand Others 2004 (6) SA 505 (CC); Bhe and Others v Magıstrate, Khayelıtsha and Others (Commıssıon for Gender Equalıty as Amıcus Curıae), Shıbı v Sıthole and Others; South Afrıcan Human Rıghts Commıssıon and Another v Presıdent of the Republıc of South Afrıca and Another 2005 (1) SA 580.
[3] Section 165 of the Constitution of the Republic of South Africa, 1996.
[4] The Minister of Health and Others v the Treatment Action Campaign case (2002 (5) SA 721 (CC)) is but one of the cases where civil society approached the courts acting on behalf of HIV positive mothers and children who were denied by the government access to medication prescribed to curb mother to child transmission of HIV.
[5] Justice B Ngoepe, Vice President of the African Court: Judicial Dialogue between the African Court and National Judiciaries, Arusha, Tanzania, 18-20 November 2013.
[6]The Rule of Law in South Africa; Measuring Judicial Performance and Meeting Standards. The Hon. MogoengMogoeng, Chief Justice of South Africa: Chair SuellaFernandes, Chair of Trustees, Africa Justice Foundation, 25 June 2013
[7] Schedule 2 of the South Afrıcan Constıtutıon