Constitutional Hill

Why redress measures are not racist

Anybody who highlights the pervasive racism and racial discrimination still experienced by black South Africans are invariably attacked by enemies of equality who oppose legal measures to address the effects of past and on-going racism and racial discrimination. Claiming that measures aimed at addressing the effects of past and on-going racial discrimination are “racist”, some of them assert that the right to equality always requires all people to be treated the same, regardless of their race, sex, gender or sexual orientation. These arguments, I contend, are both ignorant and wrong.

Insisting on the equal treatment of all people in all circumstances is deeply unfair. Insisting on such equal treatment can also have bizarre and even dangerous consequences.

To use an uncontroversial example, most of us would be horrified if schools insisted that all boys and girls, regardless of age or sex, must play in the same rugby league. Most of us would also be horrified by a government policy requiring every child to pay R50,000 a month to be allowed to attend a government school.

People are often discriminated against on the basis of age, sex or financial status. Yet few of us would deny that the policies mentioned above (which insist on the equal treatment of children regardless of their age, sex or financial ability) are profoundly unfair.

We may point out, when pressed, that because the playing field is not equal for the children involved, an insistence on equal treatment is profoundly discriminatory. It would endanger the lives of some children. It would also exclude children from life-enhancing benefits and opportunities based on no more than the historical “accident” that some children were born later than others, or on the fact (entirely unrelated to the abilities of the particular child) that some parents are able to afford the school fees while most will not.

For this reason the principle of equality cannot be based on the requirement that all people must be treated in exactly the same manner at all times, regardless of their personal circumstances or their personal attributes and characteristics.

Unless you are wilfully ignorant of South Africa’s history, you would not be able to deny that when our Constitution was adopted our society was “deeply divided, vastly unequal and uncaring of [the] human worth” of black South Africans. Anyone who has eyes to see must also admit that these “stark social and economic disparities” persist to this day.

Given our history of racial subjugation and oppression, it is no surprise that these inequalities are racially marked (although, as the Constitutional Court has pointed out, this racial inequality often intersects with other forms of disadvantage based on sex, gender, sexual orientation and – not mentioned by the Court – the relative poverty or wealth of individuals).

In 2011 the average annual income of a “white” household was about R365,000, that of an “Indian” household R251,000, that of a “coloured” household R251,500 rand and that of an average “black” household R60,600. (See table below.)

 southafrica_income

Our Constitution responds to this undisputed reality. Unlike opponents of redress measures, who insist that we should ignore these facts and should turn a blind eye to the way in which past racial exploitation continues to affect the life-chances of the overwhelming majority of South Africans, the Constitution recognises the incontrovertible fact that all are not equal in our country. If legal rules and policies deny this reality, it will simply lead to an entrenchment of existing inequalities. As the Constitutional Court stated in the case of Minister of Finance v Van Heerden:

Our Constitution recognises that decades of systematic racial discrimination entrenched by the Apartheid legal order cannot be eliminated without positive action being taken to achieve that result. We are required to do more than that. The effects of discrimination may continue indefinitely unless there is a commitment to end it.

This is why section 9(2) of the Constitution contains a so-called “affirmative action” clause, which provides for the achievement of full and equal enjoyment of all rights and freedoms and authorises legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination.

Our Constitution thus allows for and in some cases, requires, “remedial or restitutionary equality”. As the Constitutional Court explained in the Van Heerden case (ironically brought by a white National Party member of Parliament who complained that he was being discriminated against):

Such measures are not in themselves a deviation from, or invasive of, the right to equality guaranteed by the Constitution. They are not “reverse discrimination” or “positive discrimination”… They are integral to the reach of our equality protection. In other words, the provisions of section 9(1) and section 9(2) are complementary; both contribute to the constitutional goal of achieving equality to ensure full and equal enjoyment of all rights…. Absent a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised under-privilege, the constitutional promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow.

As I have explained before, this does not mean that redress measures will always be constitutionally valid.

First, while the Constitutional Court acknowledges that redress measures aimed at bringing about transformation “will inevitably affect some members of the society adversely, particularly those coming from the previously advantaged communities”, a measure that constitutes “an abuse of power” or imposes “such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened” would not be permissible.

Second, the Court acknowledged that in the assessing the validity of redress measures “a flexible but situation-sensitive” approach is indispensable. This is so “because of shifting patterns of hurtful discrimination and stereotypical responses in our evolving democratic society.” Once the income of the average “black” household is more or less equal to that of the average “white” household and once the racially skewed patterns of property ownership have become less glaringly unjust, race-based redress measures may well be found no longer to be constitutionally valid.

It also does not mean that there are not, in certain cases, practical and conceptual problems with the implementation of race-based redress measures. For example, the way in which the current so called Broad Based Black Economic Empowerment (BBBEE) policy is being implemented is a recipe for nepotism and corruption. BBBEE can often look suspiciously like a form of bribery aimed at moderating the economic policies of the ANC government and at opening direct channels of communication between the big companies and government leaders.

The revelations about Cyril Ramaphosa’s direct communications with several government ministers during the strike that led to the Marikana massacre clearly demonstrate the “benefits” of political connectivity that BBBEE bring to big business.

Often the policy is implemented in ways that allow the old business elite to “buy off” the new political elite by handing large amounts of shares or board positions to politically connected individuals, without benefiting the broad community and without redistributing assets and benefits to the large majority of South Africans.

Reasonable people could therefore engage in a serious debate about the correct scope and content of such redress measures. But claims that such measures are inherently “discriminatory”, that they infringes on long established human rights norms or that they are inherently unjust, are not based on either facts or any understanding of the legal landscape.

Those who oppose redress measures in principle (not having read much about anything and smugly holding on to their own ignorance) may not be aware that in the legal and philosophical discourse, the Constitutional Court’s approach to redress is neither unique nor conceptually problematic.

In fact, with the exception of some far right-wing judges on the US Supreme Court (who believe corporations have rights – just like people) I am unaware of any modern equality jurisprudence in foreign jurisdictions or in international law supporting the notion that race-base redress measures constitutes “reverse discrimination”.

Thus the lawyers and judges who staff the Committee on Human Rights, providing an authoritative interpretation of the International Covenant on Civil and Political Rights (ratified by, and binding on, 167 countries) in a General Comment on the Equality of Men and Women endorsed the notion that states have a duty to take positive measures to achieve equal empowerment of women.

Similarly, the judges and lawyers who staff the Committee on Economic, Social and Cultural Rights, providing an authoritative interpretation of the equality guarantee in the International Covenant on Economic, Social and Cultural Rights (ratified by, and binding on, 167 countries) endorsed the need for states to take affirmative action measures and explained the need for redress measures as follows:

In order to eliminate substantive discrimination, States parties may be, and in some cases are, under an obligation to adopt special measures to attenuate or suppress conditions that perpetuate discrimination. Such measures are legitimate as long as they represent reasonable, objective and proportional means to redress de facto discrimination and are discontinued when substantive equality has been sustainably achieved.

The Committee on the Elimination of All Forms of Discrimination Against Women, in its authoritative interpretation of the International Covenant on the Elimination of All Forms of Discrimination Against Women (ratified by, and binding on, 187 countries) endorsed affirmative action measures as follows:

It is not enough to guarantee women treatment that is identical to that of men. Rather, biological as well as socially and culturally constructed differences between women and men must be taken into account. Under certain circumstances, non-identical treatment of women and men will be required in order to address such differences. Pursuit of the goal of substantive equality also calls for an effective strategy aimed at overcoming underrepresentation of women and a redistribution of resources and power between men and women.

Lastly, the judges and lawyers who staff the Committee on the Elimination of All Forms of Racial Discrimination, in its authoritative interpretation of the International Convention on the Elimination of All Forms of Racial Discrimination (ratified by, and binding on, 176 countries) explicitly rejects the use of the term “positive discrimination” when dealing with race-based “affirmative action”, noting that in the context of international human rights standards, this term is a contradictio in terminis (a contradiction in terms). It then proceeded to note that such “affirmative action” measures:

include the full span of legislative, executive, administrative, budgetary and regulatory instruments, at every level in the State apparatus, as well as plans, policies, programmes and preferential regimes in areas such as employment, housing, education, culture and participation in public life for disfavoured groups, devised and implemented on the basis of such instruments.

There are, of course, some reasonably credible lawyers and philosophers who support the principle that the effects of past and on-going discrimination should be addressed by affirmative action measures, but hold that such measures should not rely on “race”. I have previously written about structural racism, which – I believe – counter these arguments by showing that in South Africa race is not a proxy for disadvantage but itself always causes disadvantage.

All I will add here is that, if you support redress measures but agree with those who oppose the use of racial categories for redress purposes, the examples provided above at the very least must remind you that your argument is neither self-evident nor widely accepted “common sense”. I despair that many people taking part in the debate (wholly ignorant of the writing and jurisprudence on equality which have developed over the past 50 years) seem to believe that it is obvious that race-based redress measures are “racist”. It is not.

My advice to those would be simple: do some basic reading on equality law and the use of racial categories in effecting redress. It may, at the very least, make you realise that the view you think is based on self-evident common sense is not nearly as obvious as you believe. It may even lead you to reflect and think.

News flash, folks: private discrimination IS illegal

Many South Africans still wrongly believe that they have an absolute right to discriminate against black South Africans by refusing  to provide them with access to a service because the service is rendered on their private property. A recent newspaper advertisement, offering “safe non-affirmative action” accommodation for female students of the University of the Free State, is a textbook example of this criminal behaviour.

The Rights in the South African Bill of Rights – unlike many other, more traditionally liberal, human rights texts – do not only bind the state. In certain circumstances the rights in the Bill of Rights also bind private individuals, institutions and businesses who are constitutionally required to respect the rights of everyone.

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Section 9(4) reinforces this principle in the field of discrimination law by stating that “[n]o person may unfairly discriminate directly or indirectly against anyone on one or more grounds”, including race, sex, gender, sexual orientation, religion, belief or culture.

The Constitution itself therefore places limits or the right to property as well as the right to freedom of association. As the Constitutional Court has indicated several times, the provisions of the Constitution must be read holistically, which means that section 9(4) must be read as placing an internal limitation on other rights such as the right to property and the right to freedom of association. This means the right to associate freely and the right to property is qualified by section 9(4) and these rights can only be exercised in conformity with the non-discrimination injunction contained in section 9(4) of the Bill of Rights.

The right to property has never been an unqualified right – even in the pre-Constitutional era. As is the case in all other countries – the law places drastic restrictions on the way in which a property owner can make use of his or her property in order to advance the common good or to protect the community.

That is why a property owner cannot dump toxic chemicals into a river running through his or her property, why a property owner is prohibited from making incessant noise, why a property owner has a duty to ensure that the roots of any trees on his or her property do not threaten the integrity of buildings on an adjacent property and why you cannot use the back yard of your suburban home to run a poultry farm.

Of course, a private property owner who does not offer a service to members of the public and complies with the many other legal restrictions imposed on the use of that property, remains free to act with the property as he or she wishes. There is therefore no law prohibiting a property owner from only inviting white friends to a braai or from only inviting male friends to come and watch a rugby match in his living room.

While we may make a moral judgment about a person who refuses to mix socially with members of another race, the law does not and cannot force that person to befriend members of a different race and to accommodate them in a purely social setting on his or her property.

Despite the very clear an unambiguous constitutional prohibition against unfair discrimination by private parties, some property owners still believe that they have a right to refuse to rent a room or a flat or house to somebody because that person is black or gay or Muslim.

Some business owners also wrongly believe that (an essentially unenforceable) “right of admission reserved” sign at the entrance to their restaurant, Bed and Breakfast or holiday resort allow them to refuse entrance to a potential customer because the customer is black or gay or a Rastafarian. Section 9(4) now limits the potential legal ambit of the right of admission rule.

I suspect few landlords (who are defined in the Rental Housing Act as including anyone who rents out an apartment, house, shack or a room in a house or an apartment to members of the public) know that it is a criminal offence to discriminate against potential or existing tenants. This is because many people are unaware of the content of section 4(1) of the Rental Housing Act, which states that:

In advertising a dwelling for purposes of leasing it, or in negotiating a lease with a prospective tenant, or during the term of a lease, a landlord may not unfairly discriminate against such prospective tenant or tenants, or the members of such tenant’s household or the visitors of such tenant, on one or more grounds, including race, gender, sex, pregnancy, marital status, sexual orientation, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language and birth.

Read with section 16 of the Act, it is clear that anyone who contravenes section 4(1) is guilty of a criminal offence and liable on conviction to a fine or imprisonment not exceeding two years. As soon as a landlord offers rental accommodation to the public, he or she is bound by the Act and is prohibited from discriminating.

The situation may be different where a property owner does not advertise the rental accommodation to the public, but asks friends or relatives to share the accommodation with him or her.

This means that “Ronel” who advertised “safe non-affirmative action” accommodation for female students of the University of the Free State, runs the risk of being criminally prosecuted and being sent to jail for two years.

Tenants who rent accommodation from unscrupulous landlords can also approach the Rental Housing Tribunal in their province, who is empowered to resolve rental disputes and address any unfair practices of a landlord. In the case of unfair discrimination, the Rental Housing Tribunal is authorised to refer the matter to the police for criminal investigation.

The Rental Housing Tribunal can also make any other ruling that is just and fair in order to terminate any unfair practice, including a ruling to discontinue overcrowding; unacceptable living conditions; exploitative rentals; or lack of maintenance. Rental Housing Tribunals are, as far as I can tell, under-utilised.

Maybe it is time that more South Africans challenge unfair rental practices before the Rental Housing Tribunal. How else will things ever change?

PS: There is no one website for the Rental Housing Tribunal as they operate on a provincial/municipal basis. But I have been able to find the following contact details (which I have not had the time to check) for the respective Rental Housing Tribunals.

PROVINCE TEL NUMBER POSTAL ADDRESS PHYSICAL ADDRESS
NORTH WEST 018 384 6201018 387 6056 PO Box 3190Mbatho, 2735 2386 Robert Sobukwe DriveUnit 1, Mbatho
JHB  EAST 011 630 5035 Private Bag x79Marshall Town,2107 1066 Corner Harrison,Pritchard Street, JHB, 2000
PRETORIA 012 358 4403012 358 4299 F Room 215, Sanlam Plaza East,285 Schoeman Str, Pretoria
CENTURION 012 358 3898012 358 4299 F Room C1 1st Floor260 Basson AvenueLyttelton, Centurion
KZN 031 336 5300031 336 5226 Private Bag x 9485Durban, 4000 Toleram House 2, Aliwal StrDurban, 4000
LIMPOPO 015 294 2000015 295 8167 F Private Bag x 9485Polokwane, 0700 28 Market Str, 20th AvenuePolokwane, 0699
EASTERN CAPE 040 639 1769040 609 5198 F Private Bag 0035Bisho, 5605 4th Floor, Tyamzarshe Building,Bisho, 5605
NORTH CAPE 053 830 9455053 831 8016 F Private Bag x 5005Kimberley, 8300 9 Cecil Sussman RoadKimberley, 8301
WESTERN CAPE 021 483 9494021 483 3511 F086 010 6166 Private Bag x 9083Cape Town, 8000 Ground Floor, 27 Wale Str,Cape Town, 8000
MPUMALANGA 013 766 6200 Private Bag x 11304Nelspruit, 1200 Mpumalanga Provincial Gov.Building, 6 Gov. BoulevardRiverside Park, Nelspruit, 1200
FREE STATE 051 405 5034 PO Box 211Bloemfontein, 9300 Lebogang st Andrews StrBloemfontein, 9300

 

Water is life, but the struggle for it is deadly

The death of at least three people protesting against the lack of access to water in Mothotlung in the Madibeng municipality, all allegedly due to action by members of the South African Police Service (SAPS), brings into sharp focus the failure of some municipalities to fulfil their constitutional obligations. It also raises the spectre of an out-of-control police force using excessive violence to punish protestors for challenging the authority of the government or the police.

“Water is life,” wrote Justice Kate O’Reagan in the Constitutional Court judgment of Mazibuko and Others v City of Johannesburg and Others. “Without it, nothing organic grows. Human beings need water to drink, to cook, to wash and to grow our food. Without it, we will die. It is not surprising, then, that our Constitution entrenches the right of access to water.”

It may well be that “water is life”, as the Constitutional Court claimed, but the killings in Mothotlung also demonstrate that the struggle for access to water in rural South Africa can itself be deadly.

For the residents of Mothotlung, the Constitutional promise of access to water, contained in section 27 of the Bill of Rights, must ring hollow. In December the inhabitants of Mothotlung were without access to water for almost two weeks. Water again stopped flowing in Mothotlung last Friday with no indication of when the problems would be solved, sparking the most recent protests.

As Merle Dipua Seema, a local resident (who also helpfully provided the correct spelling for Mothotlung) explained to me on Facebook, even when water is available in the area, its quality is of a dubious standard, with devastating consequences for the poor:

The water, when available, may be scientifically potable ,but not according to the greasy rim it leaves in my bath nor toilet. Running a water bottled water bizniz has become a lucrative opportunity. The need to boil tap water for those that can’t afford further strains the household budget.

It goes without saying that this is not the state of affairs promised by the Constitution. Section 27 of the Constitution requires the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right of access to water.

To give meaningful content to this constitutional obligation, Parliament has enacted the Water Services Act, which regulates the right of access to water and sets out the exact obligations placed on the state regarding the provision of access to clean water. Section 3 of the Act confirms that every municipality has a duty to take reasonable measures to realise the right to a “basic water supply”.

“Basic water supply” is defined in the Act as “the prescribed minimum standard of water supply services necessary for the reliable supply of a sufficient quantity and quality of water to households, including informal households, to support life and personal hygiene.”

In terms of section 9 of the Act the Minister can prescribe a compulsory national minimum standard of water supply that must be provided to residents by all municipalities. The regulations issued by the Minister determine that every municipality is legally required to provide a:

minimum quantity of potable water of 25 litres per person per day or six kilolitres per household per month at a minimum flow rate of not less than 10 litres per minute; within 200 metres of a household; and with an effectiveness such that no consumer is without a supply for more than seven full days in any year.

It is clear that the Madibeng municipality has consistently failed to meet its basic constitutional and legislative obligations as set out above. The municipality is therefore flouting the Constitution and the law and seems either incapable or unwilling to comply with it.

As the Daily Maverick reported earlier this week, it is perhaps not surprising that the Madibeng municipality is unable to provide some of its citizens with regular adequate quality supply of running water.

In March 2010, the Madibeng municipality was placed under administration after an audit exposed financial mismanagement to the tune of R100 million. In June 2011, newspapers exposed the fact that the new executive mayor was renting a BMW at the cost of R2,025 per day. In April last year, it was reported that R1 billion of assets, supposedly owned by the municipality, were missing.

The case highlights the limits of the law in situations where the political process has broken down. People living in Mothotlung do not have the funds to finance court action to have the abuse of their rights halted. (This is unlike the – mostly middle class – Gauteng residents who opposed paying e-tolls, who funded several failed court bids to stop the implementation of e-tolls.)

What are the residents of Mothotlung to do to force the municipality to comply with its legal obligations? Yes, they could try to vote out the Madibeng councillors at the next local government election, but given the organisational muscle and financial resources available to the governing party it is not clear that they would actually succeed in doing so. In any case, that election is still several years away.

They could theoretically also place pressure on ward councillors to take up their case. But the ward councillors are beholden to the governing party – not the voters – as they were nominated as ward councillors by the leadership of the governing party and depend on the patronage of the party leadership to remain in office.

And – this is just a hunch – but I suspect that a mayor of a relatively small municipality who splurged more than R2,000 of taxpayers’ money a day on renting a BMW is probably not going to respond promptly to a petition handed to him at a genteel and peaceful picket.

The theory of participatory democracy breaks down when elected officials – beholden to financial benefactors or party bosses instead of their voters – do not feel pressured to act in an open and transparent manner or to account to those whom they were elected to serve. When the elected officials are too corrupt, too heartless or too incompetent to provide residents with the most basic life-saving resources and when they utterly fail to respond to complaints by those who voted for them, it is unclear what democratic avenues are open to residents to secure access to life-saving water.

Predictably the residents of Mothotlung resorted to protest action in the wake of yet another water shutdown and, just as predictably, the protest action turned violent. The ensuing violence and the resultant police brutality finally grabbed the attention of the media and therefore also the politicians from the national government anxious about an upcoming election.

It was during these protests that the police shot and killed two protestors with live ammunition and a third protestor mysteriously fell out of a police vehicle (providing uncomfortable echoes of the Apartheid years, when detainees often “slipped on soap” or “jumped” to their deaths out of the 18th story of John Vorster Square).

Remarkably, on Twitter and other social media platforms, some commentators suggested that because the protest was not entirely peaceful, the police was perfectly justified in killing the protestors. This view is not only barbaric; it also flies in the face of the Constitution and the law.

Of course, the SAPS is legally required to protect property and to maintain or restore calm in a community. However, police officers are constitutionally and legally required to do so by using the minimum amount of force. Police officers are very seldom justified in killing anyone and are not allowed to use live ammunition on protestors unless their lives are under imminent threat.

This is so, not only because the right of everyone to life and bodily integrity is protected in the Constitution, but also because police officers are not magistrates or judges and hence do not have the power to determine the criminal guilt of protestors or to punish protestors for allegedly taking part in illegal activities. When police officers use maximum force against unarmed protestors where large scale damage to property is not threatened and subsequently maim or kill some of the protestors, they are no more than vigilantes who have unlawfully arrogated to themselves the right to judge and punish fellow citizens.

When police officers use maximum force to kill protestors who do not threaten their lives, they are doing no less than meting out the death penalty to citizens who have not been found guilty of any crime. It seems that some members of the police force, and some of their supporters who cheer on their brutality, yearn to bring back the death penalty which was found to be unconstitutional in 1995.

It’s a shocking turn of events. Parliament should, of course, call the Police Commissioner, the minister of police and ultimately the president who heads the government under whose watch these extra-judicial killings are occurring, to account. But because the majority of members in Parliament are beholden for their jobs to the leadership of the governing party (including the president and the police minister), this is not going to happen.

Changing the Constitution? Probably not.

Last week President Jacob Zuma told ANC supporters in KaNyamazane, near Nelspruit, that the party wanted a “huge majority” to change “certain things” in the Constitution because there were “certain hurdles” in the Constitution. The President’s remarks caused a predicable outcry. But in the absence of details about which particular sections of the Constitution the President believed presented “hurdles” to the ANC government, the outcry was nonsensical. This is so because there is nothing inherently problematic in changing the Constitution. It would be better to focus on the words and (especially) the deeds of the Zuma government over the past five years to try and establish which sections of the Constitution are seen as stumbling blocks to governing the country.

As Jane Austen, the constitutional scholar, might have written: “It is a truth universally acknowledged, that a political party in government in a constitutional democracy must be in want of amending the Constitution. However little known the feelings or views of the leaders of such a party may be on them first entering government, this truth is so well fixed in the minds of the middle classes, that any talk of amending the Constitution by the leadership of the party will send the elites into a panic.”

It is not always clear whether such a panic will be justified. It is only when the governing party wishes to amend the Constitution to weaken the checks and balances on its power because these checks prevent it from undermining democracy, from entrenching its power in undemocratic ways and from disregarding the human dignity of those who live in that democracy, that the alarm should be raised.

The South African Constitution – like almost all modern Constitutions – provides for its own amendment albeit with heightened majorities. The founding provision in section 1 of the Constitution can be amended with the support of 75% of the members of the National Assembly (NA), while the rest of the Constitution can be amended with the support of two thirds of the members of the NA. An amendment to section 1, any provision in the Bill of Rights, and any provisions relating to provinces also requires the support of six of the nine provincial delegations to the National Council of Provinces (NCOP).

Since 1996 the Constitution has been amended on no less than seventeen occasions. Apart from the floor crossing amendments, amendments to the jurisdiction of the Constitutional Court, amendments to the appointment of the leadership of the Constitutional Court and the Supreme Court of Appeal, and amendments to the tenure of Constitutional Court judges, the amendments were of a relatively technical nature.

Over the past five years several events suggest that sections within the governing party – driven by traditional values and a kragdadige (autocratic) view of state power – are irritated by aspects of the Constitution that protect the human rights of all citizens. I will highlight some of these events here and will identify those aspects of the Constitution that place “hurdles” in the path of this section of the governing party to implement their vision for the country.

First, the introduction by the government of the Traditional Courts Bill, as well as moves late last year to force ANC controlled provinces to reverse their opposition to this Bill, present serious constitutional challenges to those who are championing the Bill. This is so because the Bill, aimed at enhancing the powers of (overwhelmingly male and undemocratically appointed) traditional leaders, is in conflict with several sections of the Constitution.

These include those sections of the Constitution which prohibits sex and gender discrimination (section 9); state that the right to practice your culture “may not be exercised in a manner inconsistent with any provision of the Bill of Rights” (section 31(2)); and state that the “institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution” (section 211). It is also almost certainly in conflict with one of the founding values in section 1 of the Constitution which establishes South Africa as a democracy based on “universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”

Second, the Marikana massacre and what now seems like the subsequent police cover up, as well as widespread and increased police brutality over the past five years – just this week Tshwane Metro Police shot dead a vegetable vendor for refusing to hand over his stock to the police – suggest that elements within the government may wish to dispense with certain fundamental human rights safeguards that render the abuse of power by the police illegal (even if, sadly, it does not prevent it from happening).

Several sections of the Constitution stand in the way of the government formalising these kinds of police brutality as normal and lawful. Section 10 of the Bill of Rights proclaims that everyone “has inherent dignity and the right to have their dignity respected and protected” (but tell that to a police officer and see how far it gets you); while section 11 states that everyone has the right to life (in other words, a right not to be killed by the police for allegedly taking part in a violent strike).

Moreover, section 12 guarantees for everyone (including non-citizens) the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause; not to be detained without trial; to be free from all forms of violence from either public or private sources; not to be tortured in any way. Section 35(3) states that every accused person has a right to a fair trial, which includes the right to be presumed innocent, a right that is breached when the police take the law into their own hands and shoot and kill people for allegedly breaking the law.

All of these sections of the Constitution will have to be scrapped if the police is legally to be given a free hand to pursue and punish those who they decide are “criminals” (without the benefit of a trial). Given the fact that few police officers are ever prosecuted for assaulting or killing ordinary citizens and given that the government has largely remained silent about such gross abuses of power by the police, a cynic may well begin to believe that the sections of the constitution mentioned here are seen as some of the “hurdles” that have to be removed by amending the Constitution.

Over the past five years the government (at especially local government level) has also increasingly been involved in the unlawful eviction of especially poor people from their homes. In this the DA government in Cape Town has found common ground with ANC councils in other parts of the country, even inventing a non-existing law to justify the unlawful eviction and demolition of shelters of people.

One would therefore assume that even without an overwhelming electoral victory, the ANC and the DA could easily get rid of this perceived constitutional “hurdle” by scrapping section 26(3) of the Constitution which states that “[n]o one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”

The one article I have not mentioned is section 25 of the Constitution, which guarantees the right to property, while placing a duty on the state to effect land reform. As I have written before, despite the fact that the section does not require the state to pay market value for all properties expropriated for land reform, the government has persisted in doing so. Recently the government paid more than one billion Rand to the owners of Mala Mala in a land restitution matter, confirming that it is comfortable to pay vast sums of money to (certain) private land owners. Despite the fears of middle class land owners, this section on property rights therefore seems relatively secure and is not viewed as one that presents a “hurdle” to the government.

Of course, it is unlikely that the ANC will make any of the changes to the Constitution that their record in government suggest they would like to make. This is so, first, because the party is not likely to obtain a two-thirds majority in the election and,second, because the business men and women who fund the ANC and it’s leaders are not in favor of such changes as such changes will spook “the market” as well as the much vaunted “international investors”.

I would therefore suggest that both the media and voters would be better off ignore the statements of President Jacob Zuma about changing the Constitution and to view it as no more that empty election rhetoric aimed as sounding “radical”.

Tentative thoughts on reconciliation

Some South Africans are fondly remembering the late Nelson Mandela as the father of reconciliation in our country. But for many others the word “reconciliation” leaves a bitter taste on the tongue. What do we mean when we talk of “reconciliation”? Is it possible to achieve it? Is it even desirable to seek it? Maybe it’s time, after Mandela has been laid to rest so beautifully over the weekend, to start a difficult conversation around this dangerous and difficult word.

When I was around ten years old my father solemnly pressed a well-worn hardcover book into my hands. “It is time you read this,” he said. The book was called Tant Miems Fisher se Konsentrasiekamp Dagboek (“Auntie Miems Fisher’s Concentration Camp Diary”). It contained the diary written by Miems Fisher while incarcerated by the British towards the end of Anglo-Boer War. It exposed the cruelties visited upon her and other women and children in those camps, where more than 30 000 Boer women and children died.

I can’t recall his exact words, but my father implied that this is an episode of Afrikaner history we should never forget. Nor should we forgive the English for perpetrating this horror. This happened more than 70 years after the War had ended, at the time when Afrikaners were at the height of their political power, which they (I should, perhaps, rather say we) used very efficiently to dehumanise and oppress the majority of South Africa’s population.

This past week my late father (and tant Miems Fisher) was much on my mind. If my father was unable to reconcile with English South Africans more than 70 years after the Anglo-Boer War had ended, why is there an expectation that fellow South Africans should reconcile with us whites merely twenty years after the advent of democracy, when the ghost of apartheid is still haunting us and the effects of its devastation is still felt every day all around us?

Let me put my cards on the table. I have a problem with the manner in which the term “reconciliation” is often used in South Africa. In this problematic formulation, “reconciliation” is a once-off event partly made possible by Madiba, one that allows us (no, requires us) to end the conversation about our past, our role in it and our present-day responsibilities as members of a social and political community.

Instead of viewing reconciliation as a long, difficult and painful process that requires us to confront our past, it becomes an incantation invoked by some South Africans to avoid talking about the demands of justice. It is based on the assumption that reconciliation is easy, that it demands little of us (especially from those of us who benefited and continue to benefit from past and on-going injustice).

It aims to wipe the slate clean and is often invoked to silence those who ask difficult questions about what reconciliation — real reconciliation — may demand of us. It does not keep open the possibility that in the present social and economic context reconciliation may be impossible to achieve and that pursuing it may be unjust or unwise.

This narrative of reconciliation is deployed to ensure that we avoid talking about (mostly, still, race-based) inequality, of the need for redress, of the way in which our chances to achieve our full potential as a human being still to a large degree depends on who we are born as, who our parents are, where we stay, what school we went to, what financial and other benefits our parents are able to muster to boost our ability to succeed.

In my view, to the degree that it is possible to talk of reconciliation at all, it must be talked of as a process. I cannot speak on behalf of anyone else, but as a white South African it seems to me this idea of reconciliation is only worth pursuing (if it is worth pursuing at all) if it is going to be part of a process that disturbs and unsettles me, that makes me feel uncomfortable and reminds me of my privilege and asks difficult questions about how I must respond to it. Questions that I sometimes feel at a loss to answer.

It will also remind me of how my own response to the demands for justice will always fall short (as, I believe, us humans always all fall short of the demands that justice make on us). It is a process that might force me to consider the possibility that I am, after all, not the hero of this story. But it may be a process in which I see the possibility of becoming a fully integrated human being and not just a cardboard cutout, not just a cipher for a past that I dare not engage with.

It seems to me it is when we are disturbed, made uncomfortable, when all the easy platitudes so carefully constructed to protect us from ourselves and our history have been abandoned, that something of what makes us human is revealed to ourselves, if not always to others.

But maybe this is not a process that should be tagged with the tainted and maybe impossible demand of “reconciliation”. Reconciliation is a term that implies two sides coming together and relinquishing something: fear; suspicion; hate; anger.

For those with economic and social power it would also require another, more material, “giving up” of power. But I am not sure that it is so easy or even possible to give up one’s power. No matter what I say or do I suspect I will not be able to escape who I am, how others see me and how I am treated. I suspect it is sentimental folly to believe you can escape the consequences of the social reality of which you are a product. And how will giving up actually change the way our world remains structured in a way that continues to produce yet more injustice?

Another question comes to mind. Is it ethically responsible to expect black South Africans who continue to experience structural racism at every level of society to give up hate, anger and suspicion? This is not a question I can or wish to answer.

This means I wish to leave open the questions of whether reconciliation is possible or desirable at all in present day South Africa.

I do know that I strongly believe that white South Africans should not pursue “reconciliation” if the aim is merely to comfort us and smooth over our interactions with black South Africans. That is not reconciliation, but a form of co-optation.

I assume that these musings on “reconciliation” will make many people uncomfortable or even angry and that some will want to take me to task for writing it. How dare I, as a white person who can never know how it feels to be black in this country, write about such things? How dare I question white privilege if I still live a relatively privileged life? Am I not being, yet again, a sanctimonious little prick (as one commentator recently called me), pretending that I am better than other South Africans?

I could argue that I would welcome and celebrate any conversation that might result from an engagement by those who feel I need to be taken to task. But this, too, may be a lie. I have not always and will probably not always welcomed being disturbed and questioned and made to feel uncomfortable about who I am and how I fall short of the ideals I set for myself. But in a week that South Africans have been urged to reflect on how we, too, could take Nelson Mandela’s vision forward, maybe its time to try a bit harder.

Such conversations — if I am able to engage in them — may well make me deeply uncomfortable and unsettle me. Maybe it will also disturb some of the assumptions of others who take part in it. And (maybe far too idealistically) I believe it is when we have such disturbing and uncomfortable conversations that we may begin to get to another kind of process which, in another more ideal world, we might have been tempted to call reconciliation.

Karen Zoid tribute for the late Nelson Mandela

This week, silence is appropriate (and silence is all I have, for now). Will be back next week. Leave you with a tribute from Karen Zoid.

To call Mandela a saint is to dishonour his memory as a fighter against injustice

Nelson Mandela was not a saint. We would dishonour his memory if we treated him as if he was one. Like all truly exceptional human beings he was a person of flesh and blood, with his own idiosyncrasies, his own blind spots and weaknesses. He was also a human being who decided to take political action to fight injustice – and in the process sacrificed much in the struggle against racial oppression.

It would dishonour the late Nelson Mandela to de-politicise his legacy and to pretend that his life was not synonymous with the ANC (as it then was) and the struggle against white privilege and domination. His brilliance must surely be found in the fact that he was a principled and hard-nosed politician who also had the dignity and the self-knowledge that drove him to try and  bridge the unjust divide between races created by colonialism and apartheid.

nelson_mandela_anc

Nelson Mandela was first and foremost one of the greatest if not the greatest leader the ANC ever had. Much of what he did during his life he did in the name of the ANC. This was probably his greatest source of strength.

He was loyal to a fault, writing President Jacob Zuma a R1 million cheque a few days after Zuma was fired as Deputy President. This he did despite the fact that a few weeks earlier a court had found that Zuma’s “financial advisor”, Schabir Shaik, had solicited a bribe from an arms company on Zuma’s behalf and had also paid Zuma more than R1 million to ensure that Zuma would use his political clout to do favours for him in return. In this case Mandela’s loyalty to Zuma (and to the ANC) seemed to have trumped his disgust of corruption and nepotism.

Recognising this should not diminish him in our esteem. Instead it should remind us that he was somebody far more interesting and human than a saint. It is exactly because he was very human that his exceptional qualities come into focus so sharply.

As a politician he could be hard-nosed and steely – but always dignified. This often stood him in good stead. FW de Klerk found out that Mandela was not to be trifled with when Mandela responded to De Klerk’s opening statement at Codesa in a manner that started shifting the balance of power between the two men and between the ANC and the NP. Ahmed Kathrada has said that this was only one of two times that he saw Mandela lose his temper. But even then, the steely resolve and reasoned but cutting response to De Klerk’s remarks did Mandela proud. In that speech he said:

[De Klerk] has launched an attack on the African National Congress, and in doing so he has been less than frank. Even the head of an illegitimate, discredited, minority regime as his, has certain moral standards to uphold. He has no excuse, because he is a representative of a discredited regime, not to uphold moral standards. He has handled – and before I say so, let me say that no wonder the Conservative Party has made such a serious inroad into his power base. You understand why.

If a man can come to a conference of this nature and play the type of politics which are contained in his paper, very few people would like to deal with such a man. We have handled the question of Umkhonto we Sizwe in a constructive manner. We pointed out that this is one of the issues we are discussing with the Government. We had bilateral discussions but in his paper, although I was with him, I was discussing with him until about 20h20 last night, he never even hinted that he was going to make this attack. The members of the Government persuaded us to allow them to speak last. They were very keen to say the last word here. It is now clear why they did so. And he has abused his position because he hoped that I would not reply. He was completely mistaken. I am replying now. We are still to have discussions with him if he wants, but he must forget that he can impose conditions on the African National Congress and, I daresay, on any one of the political organisations here.

It was exactly because he was so principled and knew what he wanted that as President of the country he could also be remarkably humble and uncompromisingly principled. As President he displayed a majestic sense of right and wrong and an admirable respect for those who were not categorised as having the same race, sex, or sexual orientation than himself. He also reached out at those who are living with HIV.

In this he embodied the principle, first enunciated by the Constitutional Court in the judgment that declared invalid the criminalisation of same-sex sodomy, that equality at the very least demands respect for people who are different from oneself and at best demands a celebration of those differences.

Nelson Mandela’s displayed an astonishing and unique respect for the post-apartheid judiciary. Given the fact that he spent 27 years in jail after being sentenced to life imprisonment by the apartheid judiciary, he might easily have harboured some suspicions against old and new order judges alike. Yet, he understood that the success of South Africa’s new democracy also depended on the very judiciary, which had previously enforced apartheid legislation, often with enthusiasm and without any regard for justice.

Speaking at the inauguration of the Constitutional Court in 1995, he said the following:

The last time I appeared in court was to hear whether or not I was going to be sentenced to death. Fortunately for myself and my colleagues we were not. Today I rise not as an accused but, on behalf of behalf of the people of South Africa, to inaugurate a court South Africa has never had, a court on which hinges the future of our democracy.

Mandela then continued:

People come and people go. Customs, fashions, and preferences change. Yet the web of fundamental rights and justice which a nation proclaims, must not be broken. It is the task of this court to ensure that the values of freedom and equality which underlie our interim constitution – and which will surely be embodied in our final constitution – are nurtured and protected so that they may endure.

Given his history, and given the respect he commanded across the political spectrum by the time he became President of South Africa, Mandela could easily have objected when unelected judges of the Constitutional Court first declared his actions unconstitutional and invalid.

But this he did not do. Instead, he embraced the principle of constitutional supremacy and set the Constitutional Court on the road to becoming one of the most respected, perhaps even revered, courts in the world.

This happened in 1995, only one year after the advent of the new Constitution, when the newly established Constitutional Court declared invalid a provision of the Local Government Transition Act. The impugned provision bestowed power on the President to amend that Act, which had been duly passed by Parliament. President Mandela had relied on this provision to amend the Act.

The New National Party government (who then governed the Western Cape Province) challenged the validity of President Mandela’s decision on various grounds, including on the basis that the provision in the Act on which President Mandela had relied was unconstitutional. The Constitutional Court found that the provision was indeed unconstitutionally because it breached the separation of powers doctrine as it handed over the power to enact legislation to the President while the Constitution reserved this power for Parliament.

After the Constitutional Court handed down this ruling, President Mandela appeared on television to affirm his respect for the power of the Court to declare his actions unconstitutional and invalid. He also affirmed that he would respect and obey the decision of the Court. After all, the power of the Constitutional Court to nullify decisions of the President that did not comply with the Constitution lay at the heart of our system of constitutional supremacy.

By affirming that it was necessary for the legislative and executive branches of government to respect and obey the decisions of the judiciary, Mandela confirmed respect for the principle of checks and balances built into the Constitution, making it difficult if not impossible for his successors to question the validity of unpopular court judgments.

It was even more remarkable when, a few years later, a judge of the High Court inappropriately compelled Mandela to testify in open court about the circumstances which led the President to appoint a Commission of Inquiry into the affairs of the South African Rugby Football Union, he complied without fanfare.

Despite being the President of the country and despite being Mandela, he agreed to testify and to be subjected to cross-examination. The Constitutional Court later criticised the High Court for subjecting the sitting President to cross examination, calling it an “unusual” decision with “far-reaching implications, particularly because of its impact on the question of separation of powers and the comity between different arms of the state.”

The Constitutional Court could not find any cases in foreign jurisdictions in which a head of state had been compelled to give oral evidence before a court in relation to the performance of official duties. Mandela might well have baulked at being ordered by a High Court judge to give oral evidence and to face cross-examination, but he did not.

Mandela was not a saint, but he could well be described as the patron saint of South Africa’s democratic order. By signaling – in both words and deeds – that he respected the system of judicial review and that he accepted the principle that the Constitution does and should limit the powers of the other branches of government, he demonstrated the insight and wisdom of a leader that only truly fortunate nations are ever blessed with.

South Africa’s first democratic President, Nelson Mandela, in his own words

When my mother passed away, my world came tumbling down. How could this happen? At first, it felt impossible to speak about her passing or about her life. As our family gathered to mourn her passing at the age of 70, and after we hugged and cried and silently thought about our regrets of what we should have told her or done for her before she died, something happened. We started using her favourite sayings and turns of phrase and when one of us five siblings did this, a smile would come to all our lips.

This event taught me something important, I think: Sometimes words at first seem too blunt, potentially too self-serving, too clumsy, often too self-important and appropriating and too lacking in precision to accurately capture what you feel or how a person has affected your life. For me, the hours after my mother passed away was such a moment. This morning, as news of the passing away of the father of our nation reached me, felt like another. However, I recall how our mothers’ words soothed us, so in order to honour the memory of the late Nelson Mandela I assembled some of his quotes. The words of our late President testify more eloquently than I ever could to what a remarkable man he was.

“No one is born hating another person because of the colour of his skin, or his background, or his religion. People must learn to hate, and if they can learn to hate, they can be taught to love, for love comes more naturally to the human heart than its opposite.” – The Long Walk to Freedom

“We stand here today as nothing more than a representative of the millions of our people who dared to rise up against a social system whose very essence is war, violence, racism, oppression, repression and the impoverishment of an entire people. I am also here today as a representative of the millions of people across the globe, the anti-apartheid movement, the governments and organisations that joined with us, not to fight against South Africa as a country or any of its peoples, but to oppose an inhuman system and sue for a speedy end to the apartheid crime against humanity.”- Nobel Prize acceptance speech in 1993

Mandela

“When there is danger, a good leader takes the front line; but when there is celebration, a good leader stays in the back of the room.” – in 2001 to Oprah.

“No country can really develop unless its citizens are educated. Any nation that is progressive is led by people who have had the privilege of studying. I knew we could improve our lives even in jail. We could come out as different men, and we could come out with two degrees. Educating ourselves was a way to give ourselves the most powerful weapon for freedom . . . the more informed you are, the less arrogant and aggressive you are.” – in 2001 to Oprah

“To spend 27 years at the prime of your life is a tragedy . . . but there are very positive aspects, too, because I had the opportunity to think about problems and to reflect on my mistakes. I also had the opportunity to read very widely, especially biographies, and I could see what men — sometimes from very humble beginnings — were able to lift themselves with their bootstrings and become international figures.” – in 1990 to US TV network

Many people in this country have paid the price before me and many will pay the price after me.” – November 1962 in his speech in mitigation of sentence.

“I like friends who have independent minds because they tend to make you see problems from all angles.” – from an unpublished autobiographical manuscript written in prison in 1975

“Death is something inevitable. When a man has done what he considers to be his duty to his people and his country, he can rest in peace. I believe I have made that effort and that is, therefore, why I will sleep for the eternity.” – Interview in 1994

A critical, independent and investigative press is the lifeblood of any democracy. The press must be free from state interference. It must have the economic strength to stand up to the blandishments of government officials. It must have sufficient independence from vested interests to be bold and inquiring without fear or favour. It must enjoy the protection of the constitution, so that it can protect our rights as citizens.” – at the International Press Institute Congress in 1994

“I have never regarded any man as my superior, either in my life outside or inside prison.”  - 12 July 1976. Letter written to commissioner of prisons while on Robben Island

When the history of our times is written, will we be remembered as the generation that turned our backs in a moment of global crisis or will it be recorded that we did the right thing?” – speaking on HIV and AIDS in Norway in 2005.

“In South Africa, to be poor and black was normal, to be poor and white was a tragedy.”  - 1994, Long Walk to Freedom

“Overcoming poverty is not a gesture of charity. It is an act of justice.” – In a speech in 2005

“Like slavery and apartheid, poverty is not natural. It is man-made and it can be overcome and eradicated by the actions of human beings.”
- Speaking at the launch of Britain’s Make Poverty History campaign.

“If the United States of America or Britain is having elections, they don’t ask for observers from Africa or from Asia. But when we have elections, they want observers.” – Date unknown

“To deny people their human rights is to challenge their very humanity.” – Date unknown

“If the ANC does to you what the apartheid government did to you, then you must do to the ANC what you did to the apartheid government.” - Speaking to South Africa’s trade union congress, July 1993

“A Nation should not be judged by how it treats its highest citizens, but it’s lowest ones” – Long Walk to Freedom

“I was called a terrorist yesterday, but when I came out of jail, many people embraced me, including my enemies, and that is what I normally tell other people who say those who are struggling for liberation in their country are terrorists. I tell them that I was also a terrorist yesterday, but, today, I am admired by the very people who said I was one.” – Larry King Live, 16 May 2000

“You sharpen your ideas by reducing yourself to the level of the people you are with and a sense of humour and a complete relaxation, even when you’re discussing serious things, does help to mobilise friends around you. And I love that.” – From an interview with Tim Couzens, Verne Harris and Mac Maharaj for Mandela: The Authorised Portrait , 2006, 13 August 2005

“Do not judge me by my successes. Judge me by how many times I fell down and got back up again.” – Date unknown

Love me tender: Constitutional Court gives guidance on nullifying tenders

As the Nkandla scandal – and the various attempts to cover it up, twist the facts and discredit the messengers – demonstrates, public money (in other words, our tax money supposed to be used for the betterment of all South Africans) is often used and abused to enrich the well connected and the powerful. However, it is important to remember that it is not only politicians who benefit from this form of endemic corruption. Private companies play a large role in corrupting our system – often through the manipulation of tenders. A recent Constitutional Court judgment confirmed the importance of adhering to fair and equitable tender processes to avoid corruption or even the perception of corruption.

When the South African Social Security Agency (SASSA) decided to improve the efficiency and security of its system to pay social grants to more than 15 million South Africans who desperately need these grants, it issued a tender worth billions of Rand to select a service provider. Ultimately, it awarded the tender to Cash Paymaster Services. An unsuccessful tenderer, AllPay Consolidated Investment Holdings, eventually challenged the validity of the awarding of this tender all the way to the Constitutional Court.

In Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others the Constitutional Court (in unanimous judgment authored by justice Froneman) declared the awarding of the tender invalid. The Court did not find that any corruption was involved in the awarding of the tender. However, it did find that the awarding of the tender was invalid and has left open the possibility of nullifying Cash Paymaster’s contract to distribute social grants.

The case is important for two related reasons.

First, the Constitutional Court rejected the Supreme Court of Appeal’s (SCA’s) more permissive approach to reviewing the awarding of tenders. The SCA had declined to interfere with the awarding of the tender, holding that even if proven irregularities exist, the inevitability of a certain outcome is a factor that should be considered in determining the validity of administrative action. If the Constitutional Court had not rejected this approach of the SCA, it would have made it far more difficult for unsuccessful tender applicants to challenge the validity of the awarding of tenders.

According to the Constitutional Court the suggestion that “inconsequential irregularities” in a tender process are irrelevant when reviewing the awarding of a tender “conflates the test for irregularities and their import”. This would be problematic as it would minimise the role that procedural requirements play in ensuring equal and fair treatment of all bidders. It would also overlook the fact that the purpose of a fair process is to ensure the best outcome; the two cannot be severed.  Moreover, as the Court pointed out:

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.

The second important principle confirmed by the Constitutional Court in this case is that the awarding of tenders must normally be reviewed by using the provisions of the Promotion of Administrative Justice Act (PAJA). It is true the starting point for an evaluation of the proper approach to an assessment of the constitutional validity of outcomes under the state procurement process is section 217 of the Constitution. After all section 217 lays down the requirement that the tendering system must be fair, equitable, transparent, competitive and cost-effective.

But the legislative framework for procurement policy under section 217 of the Constitution (and the appropriate legislation) does not seek to give exclusive content to that section, nor does it grant jurisdictional competence to decide matters under it to a court. The framework provided by section 217 provides the context within which judicial review of state procurement decisions under PAJA review grounds must be assessed.

The requirements of a constitutionally fair, equitable, transparent, competitive and cost-effective procurement system will thus inform, enrich and give particular content to the applicable grounds of review under PAJA in a given case.

This means that PAJA will usually be the first port of call but that PAJA will have to be interpreted in the light of the various provisions in the Constitution dealing with procurement and the administration of the state as well as the applicable legislation.

In this case there were serious irregularities with the tender process, which rendered it invalid. First, when making the initial assessment about the tender bids, the tender committee failed to ask probing questions about the Black Economic Empowerment (BEE) aspects of the bids.

The Constitutional Court confirmed for the umpteenth time that economic redress for previously disadvantaged people (which focuses in our law on disadvantage because of racism, sexism and discrimination on the basis of disability) “lies at the heart of our constitutional and legislative procurement framework”.  (This reminds us again that those who oppose fundamental race-based economic empowerment measures, oppose fundamental aspects of the Constitution and can rightly be termed anti-constitutionalists.) What is important is that when considering the BEE credentials of a company and its bid, the tender committee had to look past the possible BEE window dressing that the company put in place to pull the wool over the eyes of the members of the bid committee.

This is so, amongst other reasons, because the purpose of the Constitution – read with the relevant legislation – is not merely to afford inclusion or redistribution, but to involve black people in management and control of businesses, and to facilitate skills development. As the Court pointed out, there are grave dangers in focusing on form and not on the substance of BEE:

Substantive empowerment, not mere formal compliance, is what matters. It makes a mockery of true empowerment if two opposite ends of the spectrum are allowed to be passed off as compliance with the substantive demands of empowerment. The one is a misrepresentation that historically disadvantaged people are in control and exercising managerial power even when that is not the case.  That amounts to exploitation. The other is to misrepresent that people who hold political power necessarily also possess managerial and business skills. Neither situation advances the kind of economic empowerment that the Procurement and Empowerment Acts envisage. Both employ charades.

SASSA’s failure to ensure that the claimed empowerment credentials of those who tendered for this huge project were objectively confirmed when it looked into who should be on the shortlist for the awarding of this tender, was therefore fatally defective in terms of PAJA as it amounted to non-compliance with a mandatory and material condition of the tender. This also amounted to a failure to consider a relevant consideration for awarding the tender as required by PAJA.

The tender was also invalidated because of the vagueness of the tender specifications. Although vagueness is not specifically mentioned in PAJA as a ground for review, it falls within the ambit of administrative action that is otherwise “unconstitutional or unlawful”.  As the Constitutional Court has held in the past, the doctrine of vagueness is based on the rule of law which is a foundational value of the South African Constitution.

The scope of the tender was vague because SASSA did not at first specify that the successful tenderer would not only have to provide biometric verification of the identity of grant beneficiaries when they registered, but also every time they are paid a grant.

Given the confusion over the requirements of the tender on the part of both bidders and members of the Bid Evaluation Committee, the notice given by the tender documents in this case was inadequate.  It did not specify with sufficient clarity what was required of bidders. As the Constitutional Court pointed out, the “purpose of a tender is not to reward bidders who are clever enough to decipher unclear directions”.  It is in fact to elicit the best solution through a process that is fair, equitable, transparent, cost-effective and competitive.

This did not happen in the case under discussion.

Because difficult factual and legal issues arose from the invalidation of the tender, and because the information before the Court was outdated and inadequate, the Court felt that it was not be appropriate to make a decision on a just and equitable remedy in the absence of further information and argument on these issues. The Court therefore ordered the parties to tender further submissions with a view to holding another hearing on the issue of a just and equitable remedy. This will happen early next year.

Nkandla scandal: attacking Public Protector must be seen as admission of wrongdoing

In the weeks and months to come, irrelevant technical arguments, procedural legal points, false comparisons, red herrings, shameless lies, intelligence driven smears and innuendo will almost certainly all be deployed to try and discredit the Public Protector, her office and – most importantly – her report on the use of more than R200 million of taxpayers money to “enhance” the private home of President Jacob Zuma at Nkandla. When you cannot justify something, your only option is to either admit to wrongdoing or to attack the messenger, which is the same thing as admitting to wrongdoing. This means that all reasonable South Africans must view these attacks – when they come, as they already are – as no more than an admission of guilt on the part of those who orchestrate and sanction them.

Certain incontrovertible facts about the Nkandla scandal are very difficult to ignore or explain. These facts stand independent of the content of the alleged leaked report of the Public Protector on Nkandla.

It is beyond controversy that the people of South Africa were forced to donate more than R200 million of their money to “enhance” President Jacob Zuma’s private homestead and surrounding area, despite the fact that he already has access to no less than three well-protected and secure official residences (whose considerable upkeep South Africans already fund). In a universe in which morals and ethics are known terms, this can only be viewed as a scandalous misuse of public funds for private gain.

It is an incontrovertible fact that a President and a government who respected and cared for the people of South Africa and was eager to manage their money carefully in order to do the most good with this money would not have spent more than R200 million of taxpayers money on the private home of a person who – in less than 6 years – will again become a private citizen. Such a person would have stayed at his official residences where security was tight in order to save taxpayers money for the use of the betterment of the people of South Africa – many of whom are desperately poor and in need of assistance from the state.

It is an incontrovertible fact that the President’s private architect spearheaded this project (as the President himself admitted this in Parliament) and that some of the tax-payer funded “enhancements” at his Nkandla home (clearly visible on photographs of Nkandla that we were briefly told were illegal to publish), such as a swimming pool (renamed a “fire pool” with a cynicism that would have made the rulers in 1984 blush), a cattle kraal, a chicken coop, a visitor’s centre, an amphitheatre and houses for relatives, could not possibly be related to the security of the President.

It is an incontrovertible fact that it would be impossible for any owner of a property who is of sound mind and who regularly visited and stayed at that property while more than R200 million of construction work was carried out at that property, not to be aware of the scale of the construction (or, that the construction included the building of a swimming pool and other non-security related “enhancements” which would have made the presenters of Top Billing swoon with fake enthusiasm).

It is an incontrovertible fact that R200 million of public funds could have been used to build houses, to provide sanitation, to pay teacher’s or nurses salaries, to fix potholes, to fund school feeding schemes, to train police officers, to provide clean water, or to provide an array of other goods and services to the people of South Africa who need them.

It is also an incontrovertible fact that after the Public Protector finalised a provisional report she shared it with Ministers within the security cluster, providing them with a secret pass word. The Ministers then shared this report with a several of their officials. This means that it is at least as likely that the provisional report on Nkandla was leaked by a Minister or an official in the security cluster (and we do not know whether these Ministers shared the report with their boss – number 1 or his lawyers) than it is that the report was leaked by somebody in the Public Protector’s office.

As the Public Protector remarked: “We work with sensitive information for months without any leakages. It cannot be a coincidence that the so-called leaks only occur after the reports leave our offices into the hands of parties.”  It is thus an incontrovertible truth that the ANC Youth League, the SACP (and now the ANC) who are accusing the Public Protector of leaking the report have not a shred of evidence to back up this accusation and that they are in fact smearing her to turn attention away from the unpalatable facts around the misuse of more than R200 million of public funds for the private benefit of the President.

It is also an incontrovertible fact that the ANC Youth League, the SACP and ANC leaders in the past argued (when the President was accused of taking bribes and was facing criminal charges before they were mysteriously and incomprehensibly dropped) that a person should be considered innocent until proven guilty and that no one should ever accuse a person of wrongdoing when they have no evidence to base that accusation on.

It is also an incontrovertible fact that the last time the President was in serious trouble with the law and he was facing corruption charges and the Constitutional Court decided to uphold the Constitution, thus posing a threat to the President’s long term freedom and his political career, those who protect the President attacked the credibility of the Constitutional Court and called some of its judges “counter-revolutionary” and asked whether their powers should not be curtailed. There is therefore a pattern of failing to deal with credible accusations against the President and, instead, of doing everything to discredit those who engage with the incriminating facts in a logical and rational manner.

What we do not know (and, at this stage, we cannot know now) is what exactly the final report of the Public Protector’s Report on Nkandla will say. For example, if it is correct that the provisional report found that the President lied to Parliament in breach of the Executive Members Ethics Act, by saying all the non-security related “enhancements” were paid for by President Zuma and his family, President Zuma and his lawyers may convince the Public Protector (through legal arguments and other less legally tenable pressures) that he was only speaking of his family’s “homes” and not of the swimming pool, the amphitheatre or the other enhancements. They may use the Bill Clinton type: “it depends what the definition of ‘is’ is” defence to argue that, although misleading, the President did not actually, really and blatantly lied to Parliament but only misled Parliament.

Or they can argue that the state paid for these “enhancements” but that the President always had the intention of asking his Gupta friends to repay the state and that technically he did not intend to lie.

But, given the known facts, it is difficult to see how – ethically and politically – this should be of much relevance. Regardless of what the final report of the Public Protector finds, all of us (including all the Ministers in President Zuma’s cabinet) know in our hearts that the incontrovertible facts as set out above reveal a scandal of immense proportions and that no person with a conscience can actually justify this spending of public funds on the private house of a politician, nor the attempts by the security cluster ministers to use “national security” to try and suppress and censor the Public Protector’s report on Nkandla.

It is for this reason that I won’t be surprised if the President and his lawyers invoke section 7(9)(a) of the Public Protector Act (and perhaps will also use the intelligence services) to put pressure on the Public Protector to water down any adverse findings she might have made against the President and to try and stall the publication of the report for as long as possible – at least until henchmen have managed thoroughly to discredit the Public Protector, her office and the Nkandla report in the eyes of some gullible voters.

This section states that:

If it appears to the Public Protector during the course of an investigation that any person is being implicated in the matter being investigated and that such implication may be to the detriment of that person or that an adverse finding pertaining to that person may result, the Public Protector shall afford such person an opportunity to respond in connection therewith, in any manner that may be expedient under the circumstances.

Of course the section does not say that this must be done only after a provisional report has been finalized. If the President, through his lawyers, already had an opportunity to comment on the evidence of wrongdoing allegedly found against him, then the section would already have been complied with. Neither does it say that the legality or even legitimacy of the report will be compromised if some aspects of a draft report leaks to the media. The alleged leaking of the report therefore has very little effect on the legal force of any final report that may be published.

But it will not be surprising if this section is used as the basis for drawn out litigation to try and distract the public from the incontrovertible facts and to paint President Zuma as the innocent victim of a conspiracy or a plot by his enemies or (my favourite!) foreign agents and dark forces. Richard Mdluli you are needed! Before long we might be told that it is the media and the Public Protector who had decided to build that “fire pool” at Nkandla and that they are the one’s who wrote President Zuma’s remarks to Parliament in which he had denied that any public funds were used for non-security related enhancements.

The attacks on the Public Protector have already started, probably in contravention of section 9 of the Public Protector Act. This section states that:

(1) No person shall: (a) insult the Public Protector or the Deputy Public Protector; (b) in connection with an investigation do anything which, if the said investigation had been proceedings in a court of law, would have constituted contempt of court.

The SACP has already suggested that this section should be amended because, one assumes, the only way in which one can minimize the potential damage of adverse findings against your boss and benefactor (when it is impossible to justify the misuse of funds for the benefit of your boss) is by discrediting the person or body who made those findings. And how can one discredit that person or body if one cannot insult her and the office she holds?

In the weeks and months to come every member of President Zuma’s cabinet should be asked at every opportunity whether – regardless of what the final report of the Public Protector may contain – they personally find the spending of R200 million of public funds on the “enhancements” of a private home morally acceptable (given that the home owner has access to no less than three official residences), whether they truly believe that the President knew nothing about this construction at his own house, whether they support the attempts to undermine the credibility of the Public Protector and her office and whether they plan to resign as cabinet Ministers out of protest and if not, how they are managing to live with their consciences – if any.