Constitutional Hill

Pardoning criminals not such a good idea, Mr President

Apr 10th, 2012
by Pierre De Vos.
45 comments

In the nineteen seventies and nineteen eighties it was a regular storyline of Afrikaans movies and TV series: the father of our heroine – an attorney – is disgraced after it is discovered that he had stolen money from his clients by misusing the money placed by his clients in trust with him, and he is convicted of theft and sent to prison.

The reputation of the family is destroyed and, because of all the stress and the shame, the disgraced attorney’s daughter uncharacteristically finds solace in the arms of an unscrupulous pierewaaier (dandy), who seduces her and turns her into a “fallen woman”. She falls pregnant (because God believes that “bad” girls must be punished) and flees to Paris where she prettily mopes around and stares at the Eiffel tower and at the Seine. Alternatively she stays in Cape Town and commits suicide by dramatically walking into the ocean, a-la Ingrid Jonker.

The point is, those of us subjected to this script were brought under the strong impression that for an upright member of society – an attorney nogal – to steal money from his clients was a disgracefull and disgustingly dishonest act, exactly because of the trust relationship that was supposed to exist between an attorney and his or her clients. Luckily, puritanical Christian Nationalists no longer rule South Africa, so those of us who speak Afrikaans and have a pale-ish skin no longer have to fear God’s wrath because we enjoy sex or because we believe in equality for all. Neither are we forced to go to church to pray for rain or the defeat of communism and the ANC.

But maybe we have gone a bit overboard in reacting to these bizarre Christian Nationalist values. Surely some of us seem to be far too forgiving of the crooks who steal other people’s money or take bribes – even if the bribe was solicited by Schabir Shaik? We even elect some of those implicated in criminal acts as political leaders. Should we really send a signal that stealing innocent people’s money is something easily forgiven – as long as one is married to the “right” person and has opportunistically aligned oneself to the “right” political faction inside the ANC?

Was it not bad enough that we sullied our democracy by pardoning all those involved in apartheid attrocities? Surely at some point we should start insisting that commiting a crime should disqualify one from being celebrated as an upstanding member of society?

I was wondering about this when I read on Sunday in City Press that President Jacob Zuma had expunged the criminal record of the husband of the acting prosecutions boss, Advocate Nomgcobo Jiba. Zuma’s spokesperson Mac Maharaj confirmed to City Press that former lawyer and Scorpions member Booker Nhantsi’s criminal record for stealing a client’s money from his trust fund was erased in September 2010. Nhantsi, who worked as an attorney before being appointed a deputy director in the Eastern Cape Scorpions, was convicted of theft in the Mthatha High Court in 2005. He had dipped into funds totalling R193 000 held in a trust for a client in 2003. He was sentenced to five years imprisonment, two years of which were suspended for a period of five years.

City Press reports that Jiba is closely associated with Lieutenant-General Richard Mdluli, the “controversial” head of the police crime intelligence unit. (Calling Mdluli controversial is a bit like calling George W Bush controversial for allegedly ordering the torturing and also the killing of thousands of non-Americans, but sometimes we use these euphemisms to keep ourselves sane.)

Mdluli is alleged to have murdered a rival in a love triangle and to have stolen money from a secret crime intelligence slush fund. When Jiba was in some legal difficulties (she was suspended by the NPA in 2007 for allegedly assisting the police to defeat the ends of justice by countering the Scorpions’ investigation of former police chief Jackie Selebi), Mdluli assisted her by making an affidavit in Jiba’s favour that supported the notion of a conspiracy against Selebi. (Zuma and his inner circle seem to really take all this talk of conspiracies rather seriously.)

Now the slush fund that Mdluli is alleged to have corruptly misused is the same slush fund that City Press claims was used to pay for renovations of almost R200 000 to Police Minister Nathi Mthethwa’s house in KwaMbonambi, northern KwaZulu-Natal. The newspaper claims that these allegations were contained in a top-secret police report that was handed to acting police chief Lieutenant General Nhlanhla Mkhwanazi last month, which names Mthethwa in the Hawks’ investigation into the plundering of the R200 million secret service account. City Press speculated that Mthethwa had ordered an end to the Hawks probe because of his involvement in the scandal.

Mthethwa denied these charges, claiming that the “minister is the political executive of the SAPS and as such does not get involved in operational matters.” This claim of non-involvement in operational matters was directly contradicted by Hawks spokesman McIntosh Polela who conceded that acting police commissioner Lieutenant-General Nhlanhla Mkhwanazi had, on the orders of Mthethwa, instructed the Hawks to halt all investigations involving the crime intelligence department. Someone seems to be lying about something here.

But back to the tawdry pardoning of (now) former criminal, Booker Nhantsi. Could he have been pardoned by President Zuma because he happens to be on the “right” side of the internal factional fight? Was it done to keep the acting NPA boss sweet to ensure that the criminal charges against Zuma will never be resurrected? And what does this pardoning say about the moral compass of our President? Surely it reinforces the perception that our President does not have a moral compass at all and that he is not one to let small detail like criminality stand in the way of loyalty and protection of his own interests of staying out of jail.

Now, it must be said that the President has the constitutional power to pardon any criminal in terms of section 84(2)(j) of the Constitution. However, the Constitutional Court has said in the Hugo case many years ago that the exercise of this power can be reviewed. Where the President pardoned an individual he is at the very least required to exercise that power in good faith.

If, for instance, a president were to abuse his or her powers by acting in bad faith I can see no reason why a court should not intervene to correct such action and to declare it to be unconstitutional. For example, a decision to grant a pardon in consideration for a bribe, could no doubt be set aside by a court. So, too, if a president were to misconstrue his or her powers I can see no objection to a court correcting such an error, though it could not exercise the discretion itself.

The Constitutional Court confirmed this view in the Albutt case where it found that the pardoning of a group of apartheid era prisoners with the aim of effecting reconciliation was unconstitutional because the victims of the apartheid era crimes were not consulted by the President before the decision to pardon the prisoners were taken. In that case the Court stated (and this might well come as something of a surprise or even a shock to President Jacob Zuma and some of his advisors) that:

It is by now axiomatic that the exercise of all public power must comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of the rule of law. More recently, and in the context of section 84(2)(j), we held that although there is no right to be pardoned, an applicant seeking pardon has a right to have his application “considered and decided upon rationally, in good faith, [and] in accordance with the principle of legality”. It follows therefore that the exercise of the power to grant pardon must be rationally related to the purpose sought to be achieved by the exercise of it.

When asked about the reasons behind this seemingly unethical but possibly politically expedient pardon, Mac Maharaj made the following statement:

A pardon is an act of mercy by the president if the president is convinced that it is in the public interest for a pardon to be granted. In Nhantsi’s case, he was convicted of the offence of theft, which was his first and only offence. He had also served his sentence. Nhantsi is also a qualified and skilled individual who can make a contribution to society. He was therefore pardoned accordingly.

These reasons could, of course, apply to many other people who have been convicted of crimes of dishonesty (many of whom, including Schabir Shaik, who have not been pardoned by the President), but in the absence of any proof of a bribe being paid to effect the pardon or of other bad faith factors playing a role in the pardon, one will have to conclude that the pardon – although politically scandalous and unethical - was not unlawful. (I know this distinction is not one that some politicians and some supporters of the President care to make.)

Finally, in this fog of allegations, denials and counter-allegations, this pardoning of a former dishonest thief who happens to be in the “right” political faction inside the ANC (and whose wife is in a position to decide on whether to revive criminal charges against President Zuma), will further enhance the perception that our President is at least ethically (if not legally) tainted and that he makes decisions based on his personal interests and not based on the interest of the government he leads or of the nation.

But sadly none of those implicated in these unsavoury events will flee to Paris in disgrace. Neither will they beleive that the family or party they belong to was shamed by their actions. Instead they are more likely than not to claim that they have been the victims of a terrible conspiracy concocted by unnamed foreign intelligence services, opponents inside the ANC, Helen Zille, HF Verwoerd and – who knows – James Bond himself.

Watch this space.

Posted in: ANC, corruption, Jacob Zuma.

Calling all law students….

Apr 5th, 2012
by Pierre De Vos.
10 comments

Hugh Glenister has invited Southern Africans below the age of 30 to devise a ‘best practice’ implementation of the judgment in the Glenister case. The competition (with a prize of R100 000) is open to all university faculties and students, as well as to all private entrants, south of the equator (including Indian Ocean Islands). See here for the details.

Posted in: corruption.

Today they come for Malema…..

Apr 4th, 2012
by Pierre De Vos.
194 comments

President Jacob Zuma is not a person who seems to take kindly to criticism (and neither is he someone who can take a joke at his expense). One might even claim that he seems a bit, well, thin skinned (if not, dare I say, dictatorial) in his attitude towards those who say things about him that he does not like. Not that Julius Malema has shown a lot of tolerance towards those within the Youth League who have dared to criticise him or who opposed his leadership at one time or another. In fact, these two leaders, may, ironically, be cut from the same kind of cloth.

A few years ago Zuma announced that he was going to sue Zapiro for R5 million because he claimed the cartoonist had defamed him after the cartoonist had published a cartoon in which he suggested Zuma was violating the justice system to avoid facing fraud and corruption charges.

It therefore comes as no surprise that the National Disciplinary Committee (NDC) of the ANC – ostensibly acting completely independently of President Zuma (yeah right!) – announced this morning that it was temporarily suspending Julius Malema from the ANC with immediate effect. The purported reason for this suspension is that Malema allegedly brought the ANC into disrepute. (Malema had already been expelled from the ANC earlier, but his appeal regarding the expulsion is to be heard only later this month.)

Apparently the ANC as an organisation is brought into disrepute if one of its members criticises the leader of the party in public. (Criticism might be the lifeblood of any democratic culture, but public criticism of leaders has now suddenly become alien to the culture of the ANC – at least if that criticism is levelled at President Zuma.) How any political party can remain democratic and how it can renew itself and correct mistakes, when its members are not allowed to criticise the party leader in public, is unclear. Maybe criticism can be communicated in secret messages with the assistance of the intelligence services?

Of course, this ban on any public criticism of a sitting leader is not based on a principle that was followed by President Zuma and his supporters during his fight with former President Thabo Mbeki. But I guess consistency and an abiding respect for high principles is not really what is in play here. What is at play is President Zuma’s future survival. Remember, he might well believe that he will either get a second term or he will go to jail for 15 years, so (in his eyes) there might not be time for niceties such as respect for democratic debate inside the party.

Malema now faces fresh disciplinary charges, which will obviously lapse once the ANC Appeal Committee confirms Malema’s expulsion – surely only a formality. This is after Malema criticised Zuma on Friday in the following terms:

It is under President Zuma that we have seen the youth of the ANC being traumatised, being expelled from their own home. It is under President Zuma we have seen a critical voice being suppressed We have seen under President Zuma, democracy being replaced with dictatorship. We have seen an intolerance….people, who become impatient with the youth….

The NDC did not say who complained about the utterances made by Malema. It did stipulate the following (once again rather draconian and probably not entirely enforceable) conditions that Malema will be required to comply with during his suspension:

  • He will not exercise any duty in his capacity as an ANC member, President of the ANC Youth League and/or Member of the Provincial Executive Committee of the ANC Limpopo Province;
  • He will not attend any meeting of the ANC or any of its structures, including the Leagues, except for the purpose of the NDCA hearing and the pending disciplinary proceedings to be instituted against him.
  • He will not address any meeting of the ANC or any of its structures, including the Leagues, whether as an invited guest, in his capacity as President of the ANC Youth League and/or as a member of the ANC; and
  • He will not make any public statement on any matter pertaining to the ANC.

Of course, the first thing to note is that this will bring the clash between the Youth League and the mother body of the ANC to a head, as Malema is forbidden from attending any Youth League meeting, which the League insists can operate free from the discipline of the ANC.

Members of the Youth League Executive (with or without Malema) will now have to decide either to defy this order of the disciplinary committee or face disciplinary charges and expulsion themselves. What happens if they continue arguing that the Youth League Executive members cannot be ordered around by the mother body and cannot say whether Malema should sit on the League’s Executive or not? What if the Executive continues meeting with Malema as its President? Surely they will all then have to be suspended as well and then ultimately expelled.

President Zuma seems to have learnt well from the “mistakes” of Thabo Mbeki and he is taking no chances with those who might oppose him. Cut off their heads before they can gather steam, seems to be his motto. Whether this is a democratic attitude or closer to the dictatorial style that Malema spoke about, I leave to the judgment of the readers.

Secondly, an order purporting to ban Malema from making any public statements on any matter pertaining to the ANC infringes on Malema’s right to freedom of expression. Our Bill of Rights can also bind private individuals, organisations and political parties and I am almost certain that when an organisation bans a member from making any statements about that organisation in public that organisation is in breach of the Bill of Rights. For this reason, the probably unconstitutional censoring of Malema by the NDC seems troubling, to say the least.

A further irony is of course that this immediate suspension and the draconian (and partially unconstitutional) nature of the “conditions” imposed on Malema during this latest suspension nicely seems to illustrate the point Malema was making in his speech about the intolerance of Zuma to dissent and the inability of the leadership to listen to and accept criticism of ANC leaders and policies.

By making these points I am not arguing that Malema was wise to make the statements that got him into trouble today. Neither am I claiming that I believe Malema is an eternal democrat who is saying these things because he really has the best interests of the ANC at heart. Yet, as I warned before, one must be careful to cheer on this silencing of debate and dissent inside the ANC merely because the person being silenced is someone with whose views one does not agree and whose downfall one might applaud.

Today they come for Malema. Tomorrow they might come for you or me.

Posted in: ANC, Freedom of expression, Jacob Zuma, Julius Malema.

On self-serving and untrue criticisms of the judiciary

Apr 4th, 2012
by Pierre De Vos.
9 comments

When US President Barack Obama on Tuesday said that he was confident that the US Supreme Court would not overturn parts or all of his signature health care legislation, some South Africans who blindly repeat the self-serving but blatantly untrue claims of their preferred leaders, might have been tempted to shout: “We told you so.”

If Obama can implicitly criticise the judges of the US Supreme Court, why can’t President Zuma say that he wants to review the powers of the Constitutional Court? Why can’t Gwede Mantashe say that our judges threaten the stability of the country and act in their own self-interest because they are hostile to the ANC-led executive? Why can’t Ngoako Ramathlodi say that because of the Constitution “the black majority enjoys empty political power while forces against change reign supreme in the economy, judiciary, public opinion and civil society”? Why can’t he say that the courts in our judiciary “the forces against change still hold relative hegemony”?

They may be emboldened by this line of reasoning if they read the column by liberal New York Times columnist Maureen Dowd who lashed out at the five right wing judges who form a majority on the nine-member US Supreme Court in the following manner:

This court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once they give the last word, is well on its way to becoming one of the most divisive in modern American history. It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes. All the fancy diplomas of the conservative majority cannot disguise the fact that its reasoning on the most important decisions affecting Americans seems shaped more by a political handbook than a legal brief.

But this possible shadenfreude by South African critics of the Constitutional Court would be unjustified and more than a tinge dishonest. Very few people argue that judges and the decisions they make should never be criticised – even in harsh terms. I myself have often criticised various judgments of the Constitutional Court as well as many judgments delivered by judges in other courts in South Africa. Criticism of judgments of the judiciary is not the issue. For example, a critical analysis of the Constitutional Court judgment which refused to hear the Hlophe appeal would be potentially valuable. I for one would engage vigorously with such a critical analysis and will try to demolish any kind of argument put up (which, I believe, would not be too difficult to do).

This kind of criticism of judicial decisions is par for the course for any academic.

What we object to is the conservative  attacks on the judiciary masquerading as radical concern for transformation. Some of us take issue with Jacob Zuma, Gwede Mantashe, Ngoako Ramathlodi and others, not because they criticise court judgments or because they attack specific judges (based on the conservative or even reactionary judgments handed down by those judges). We take issue with these self-serving and undemocratic attacks, first, because the attacks on the judiciary (the Constitutional Court, in particular) and on specific judges are not based on fact at all and are mostly based on, (how shall I put this nicely), an adventurous and creative engagement with the truth.

It is not as if the Constitutional Court cannot and should not be criticised. But then it should be based on the judgments of that court and the reasoning employed in the specific judgements of that court by an individual judge.

I have yet to see any critic of that court explaining which judgments exactly demonstrate that the Constitutional Court is hostile to the ANC or that it opposes transformation.

Can it be the judgment in which the court found that search warrants in the Zuma case were valid? No, that case dealt a blow to Jacob Zuma’s attempts to stay out of jail, but obviously had nothing to do with transformation.

Can it be the judgment that declared invalid the law on which President Zuma relied when he extended the term of office of the former Chief Justice? No luck there either, as that judgment was based on a protection of the separation of powers and the independence of the judiciary (which the ANC says it will defend to the bitter end), so that judgment was actually pro-ANC.

Was it the judgment which invalidated the government’s HIV mother to child transmission policy? No, that judgment promoted the well-being of poor and vulnerable women and their children.

And what judgment exactly threatened the stability of the country? Not one judgment comes to mind or has ever been mentioned by the critics of the Constitutional Court.

But there is a second reason why most of these attacks on the judiciary and the Constitutional Court are not just wrong, but also dangerous. They often seem to come from a deeply reactionary and undemocratic place. What is being objected to is not the politics or ideology of a specific Constitutional Court judgment or whether the judgment is pro-transformation or anti-transformation (after all, if that was the issue, the current Chief Justice – the most conservative member on that court – would never have been appointed by President Zuma).

Instead, the aim of those who attack the Constitutional Court often seems to be to create a scapegoat for the governance failures of the government. Without ever being able to name one Constitutional Court judgment which has stopped textbooks from being delivered to a school, which has stopped the government from replacing mud schools with brick and mortar schools, which has stopped the government from taking back control of schools from the out of control labour unions, attackers claim that it is the fault of the Constitutional Court that for some people little has changed in South Africa since 1994.

But it was not the Constitutional Court that imposed the GEAR policy on the government; that imposed a willing-buyer willing-seller land reform policy on the government; that forced the government to buy R40 billion worth of arms; that forced the government Ministers to stay at the Mount Nelson and buy million Rand cars. No, that was our government who did this all by itself.

So, by all means, criticise the judgments of the Constitutional Court, but be honest when you do so. Do not hide behind vague and untrue claims about the evil courts to try and justify the failures of the government. Do not attack the supremacy of the Constitution – as if this supremacy is to blame for the many “challenges” of government. Be honest about your motives for criticising a judgment. For example, why not come right out and say that the decision by the Supreme Court of Appeal (SCA) nullifying the appointment of Menzi Simelane, has nothing to do with fears of stifling transformation and everything to do with fears that an independent person will be appointed as National Director of Public Prosecutions who will not block the prosecution of well-connected politicians.

Posted in: ANC, Constitutional Court, corruption, democracy, Freedom of expression, Jacob Zuma, Judiciary.

Selling horse droppings as figs

Apr 2nd, 2012
by Pierre De Vos.
36 comments

In Afrikaans we have a striking saying describing rather accurately what the keepers of secrets (yes, the spies and double agents and professional liars in the intelligence agencies) are  trying to do with its latest range of advertisements promoting the Secrecy Bill: “Hulle will ons nou wysmaak dat perdedrolle, vye is”. (“Now they want to convince us that horse droppings are really figs.”)

Apart from the fact that the government is not supposed to promote a Bill currently still serving before Parliament and not yet passed into law (as Parliament is currently seized of this matter, and the executive has no truck with the Bill until it is actually passed and becomes law), the advertisements are about as honest and truthful as your average Senior Manager at the Department of Public Works testifying at the Bheki Cele Inquiry.

I focus on the English version, which can be played via YouTube:

 

The text of the advert is as follows:

Female Voice: “Are you following the whole debate about this new law everyone is talking about? Something about state information?”

Male Voice: “Yes. And I see why government worries. All this stuff about identity theft, people being long dead but collecting pensions, the list is endless.”

Female Voice: “But what about corruption? How will the government deal with that?”

Male Voice: “The bill makes it clear that if people try to cover up corruption they will go to jail for up to 15 years, and whistleblowers will be protected.”

Female Voice: “That’s good. But will we still be able to get the information we need from the government?”

Male Voice: “Yes. Our constitution gives us that right. As for the press, the bill doesn’t suppress press freedom at all. When you want information that is classified, you just have to apply for it. If you are still not happy, you can go to court and the judge will decide if it is in everyone’s interest.”

Female Voice: “Yes, sounds reasonable.”

Male Voice: “The thing is that government has to protect its information from criminals. There are spies out there that want to steal our information to develop their own countries at our expense.”

Female Voice: “I see. I want to familiarise myself with the bill more. There’s so much I didn’t know.”

Male Voice: “Great, ‘cause it’s really important that government protects its information. It is about protecting our country and its hard-won freedom. Ensuring that we all live in peace, security and prosperity.”

The thing is, the Secrecy Bill has absolutely nothing to do with identity theft and neither has it anything to do with people fraudulently collecting pensions if they are not entitled to do so. Although section 8 and 9 of the Secrecy Bill deals with the protection of valuable information (which could include personal information about one’s ID held by the state), and although these sections state that such information warrants “a degree of protection and administrative control and must be handled with due care and only in accordance with authorised procedures”, the Bill does not actually criminalise the selling of your ID by a state official and is in no way dealing with identity theft. What a very small part of the Bill does (about 4 of the more than 50 clauses in the Bill) is that it prohibits any person from unlawfully and intentionally destroying, removing, altering or erasing valuable information.

A state official would therefore be punished in terms of this Bill if he or she deleted your ID information from the government database. What the Bill would not deal with at all is identity theft or pension fraud. The law already punishes fraudulent selling of your ID information to others as well as pension fraud, and this Bill has absolutely nothing to do with that. In other words this advert is deceitful and dishonest. This is perhaps not surprising, as the adverts were cooked up by the very spies who, we are told, we should trust with decisions about the need to classify state documents as secret or top secret. I would not trust these people when they tell me what the weather will be like tomorrow – let alone with these decisions that may well hide serious criminality and corruption. (General Mdluli, are you there?)

Ironically, what the adverts do,  is to illustrate beyond all doubt why this Bill is so dangerous. If these people are prepared to deceive the public so blatantly and openly, why would they not lie to us about the existence of wrongly and unlawfully classified documents which we might need to get access to in order to expose corruption or in order to expose the blatant flouting of the law and undermining of our democracy by the intelligence services?

The “safeguards” in the Bill which the advert talks about are therefore illusory. If it is a criminal offense to be in possession of a classified document, and if one tries to get access to a wrongly classified document, the spies will merely claim that the document does not exist, finish en klaar. If one then claims to have seen the document, one will be arrested and charged for possessing a classified document and to admitting to having committed a crime and one could be sentenced to a long period in jail for possessing even an illegally classified document.

It is true that section 43 of the Bill states that a person who is protected by the Protected Disclosures Act may disclose documents despite any provisions in the Bill, which means that a very brave (some would say very stupid) state employee who discovers documents demonstrating criminal activity or corruption by the intelligence services, may leak such documents to, say, the Public Protector.

What the advert does not say is that the Public Protector will then immediately have to take the leaked documents showing serious criminal activity to the nearest Police Station where one of Richard Mdluli’s cronies will be able to receive the document and “deal” with it to protect the intelligence services and those exposed as criminals or crooks in the documents. The Public Protector can then try and get access to the document via various means and after several years – and assuming rather optimistically – that the document had not been “lost” (in other words, destroyed), she might finally get access to that document – long after the crime was committed and the cover up effectively instituted, the witnesses “disappeared” or intimidated into silence or packed off to Tjikitjikistan as the undersecretary of culture.

Moreover, the advert seems to suggest that all active citizens are really no more than potential criminals, suggesting how the paranoid spies view us ordinary citizens. It says that the state has to protect its information from criminals, but it is exactly the kinds of information that we need as citizens that we will be “protected” from accessing. We will not ever again be able to know that intelligence services had concocted another Browse Mole Report to discredit the enemies of the sitting President. We will not ever again be able to know that the spies had taped telephone conversations between politicians or between NPA members. We will not know that senior ANC leaders have been spied on by the intelligence services because the President thought that these leaders might pose a threat to his political ambitions.

Of course, the adverts also display the kind of paranoia that is familiar to students of any fascist police state. Hence it suggests that we need to protect state secrets because if any of these secrets held by the state are ever released, our very freedom (the freedom curtailed by this Bill) will be threatened. Now, I for one cannot imagine what secrets the spies are keeping that are so earthshattering that it would threaten the very life of our nation and our Constitution if it were to be made public. Could it be information about financial donations made by foreign dictators to the President or the governing party? Information about the sex-lives of politicians illegally spied upon by the intelligence services on instructions from the President? Maybe there are documents proving that our spies are plotting to assassinate the President of the United States, which, if revealed, could lead to a US military invasion.

But I doubt that any of these documents exist and even if they did, we will be protected by its disclosure (and disclosure of the unlawful actions by the intelligence services who might have compiled these documents illegally), not by keeping them secret.

This Bill is about protecting the intelligence services and drawing a veil of secrecy over their often unlawful activities in order to enhance the powers of the spies, create a police state within a state and protect the leadership of the incumbent faction inside the ANC from embarrassment and from being ousted in quasi-democratic party elections. It is not about freedom but un-freedom, not about democracy but a threat to our democracy.

If you believe otherwise, I am sure you will also believe me when I say that you should please send me all your banking details (including password) immediately so that I can transfer a few million dollars into your account, which I will do because I need your assistance with transferring fabulous amounts of money into South Africa.

Posted in: ANC, corruption, democracy, Freedom of expression, Jacob Zuma, media.

JSC will (finally) have to make a decision on Hlophe

Mar 31st, 2012
by Pierre De Vos.
25 comments

As I predicted, the Constitutional Court today dismissed the application of Judge President John Hlophe to appeal against two judgments handed down by the Supreme Court of Appeal (SCA) regarding the decision of the Judicial Service Commission (JSC) not to investigate the charges of gross misconduct against the Judge President.

In the first judgment, the SCA found that the Constitution requires the Premier of the Western Cape to sit on the JSC when it considers disciplinary action against a Western cape judge, with the effect that JSC had to reconsider both the Constitutional Court Justices’ complaint, and Hlophe’s counter-complaint.

In the second case, the SCA set aside the decision of the JSC “that the evidence in respect of the complaint does not justify a finding that HlopheJP is guilty of gross misconduct”, with the effect that the JSC had to reconsider the complaint against Hlophe by the judges of the Constitutional Court. In this second judgment it was pointed out that in a case like this where two versions of an event is presented it is required to cross-examine witnesses and make a determination on the preponderance of probabilities to determine who is lying and who is speaking the truth.

In a unanimous judgment by the Constitutional Court (Mogoeng CJ, Cameron J, Froneman J, Khampepe J, Skweyiya J, van der Westhuizen J, Yacoob J and Zondo AJ writing as “The Court”), it was decided that acting judges could not be appointed to hear the case and that it was not in the interest of justice for the “compromised” Constitutional Court to hear the merits of the two appeals from the SCA judgments.

The Court pointed out that section 167(1) of the Constitution provides that the Court consists of eleven Judges and that the Court usually sits en banc (in other words, with all 11 judges). However, section 167(2) provides that a matter before the Constitutional Court must be heard by at least eight Judges. The problem in this case arose because six of the serving Justices currently appointed to the Court were serving as Constitutional Court Judges when the complaint against the applicant was lodged with the JSC. Three of them recused themselves from the hearing before it was argued (but one acting judge – Ray Zondo - is currently serving on the Court). This left the Court with a bare constitutional quorum of eight, including three Justices who were parties to the complaint lodged with the JSC against the applicant and two others who had been involved in attempted mediation.

If these Judges were disqualified from hearing the applications for leave to appeal because of their perceived or actual interest in the outcome of the matter, there would be no quorum for this Court to hear and determine the matters. Because of this unusual situation all the parties accepted that it was necessary for the Court (even with its possible five “tainted” judges) to decide whether Acting Judges may be appointed to the Constitutional Court in terms of section 175 of the Constitution to hear the application for leave to appeal and the appeal; and, if not, whether the existing judges should adjudicate upon the substantive merits of the applications for leave to appeal.

In terms of section1 75, the President may, on the recommendation of the Minister of Justice and Constitutional Development acting with the concurrence of the Chief Justice, appoint a woman or a man to be an Acting Judge of the Constitutional Court “if there is a vacancy or if a Judge is absent”. Pointing out that the “ordinary meaning of the word ‘absent’ carries some ambiguity”, the Court nevertheless found that:

any possible ambiguity is removed when we consider that the recusal from a particular case does not preclude Constitutional Court Judges from continuing to perform duties of their office. A recused Judge remains required to perform the rest of her judicial duties. The action of recusal is the performance of a judicial duty. The effect of a recusal therefore cannot be considered to be an absence… Recusal leading to a lack of a necessary quorum in this Court is an exceptional occurrence. Vacancies of Constitutional Court posts resulting from retirement, possible ill-health and death are not. Nor are temporary physical absences of Justices of the Court, caused by periods of leave, personal circumstances or some illness unusual. Viewed in a general context, it is clear that the purpose of section 175(1) is to deal with these normal instances of vacancies and physical absences.

This interpretation is supported if one took into account the context of the Constitution as a whole. In this regard one must remember that constitutional provisions relating to the appointment of Judges must be interpreted with due regard to the constitutional imperatives of separation of powers and entrenchment of judicial independence. There was a potential danger to judicial independence and the separation of powers whenever individual  judges are appointment to hear a specific case. Mindful of this danger, it is not possible to interpret “absent” in section 175(1) as covering a situation where Constitutional Court Judges recuse themselves from hearing a specific matter.

The next question to be answered by the Court was whether the eight judges (three of them having been involved in lodging the complaint against Hlophe JP) nevertheless had to hear the substantive appeals because of section 34 of the Constitution, which states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

The Court found (once again as predicted) that they could not hear the case and pointed out that section 167(6) of the Constitution does not provide litigants with a right to have their case heard by the Constitutional Court. Litigants only have a right to consideration of any application for leave to appeal. As the Constitutional Court found in S v Pennington and Another litigants do not have an automatic right of appeal. Leave must only be granted if the Court concludes that it is in the interests of justice to do so.

A balance needs to be struck between the Court’s obligation to provide finality in this matter (as it would be intolerable to have a case pending indefinitely) and possible injustice to the applicant. These factors weigh heavily in determining the extent to which it is in the interests of justice to enter into the merits, and thus whether to grant leave to appeal. All the parties were in agreement that this matter cannot remain pending. There is a need for finality. This was not disputed. In determining the extent to which we should consider the merits, regard must be had to whether substantial injustice will be done to the applicant should this Court refuse to grant leave to appeal. The underlying right which the applicant seeks to protect on final instance to this Court is, importantly, a procedural one: the rejection of that right will result in the continuance of a process only and will not result, without more, in a finding against him on the substance of the complaint. What is more, the applicant has had the benefit of an appeal. These considerations mitigate the threat of injustice. In addition, although the parties have consented to the conflicted Judges’ sitting in the present matter, regard must still be had to the fact that they would ordinarily have to recuse themselves. For this reason, this Court should deny leave to appeal to preserve the fairness of its own processes.

As I have thus argued consistently throughout this process, there is no right for anybody to have their case heard by the Constitutional Court. It is only when it is in the interest of justice to dos o, that the Constitutional Court hears a case (if it deals with a constitutional matter, of course).

This means that Judge President Hlophe’s attempt to stall the investigation into his alleged gross misconduct has finally come to an end. The JSC will now have to consider the matter again and will have to call both Hlophe and the accusing judges who will then be cross-examined to try and determine whether it was Hlophe or the judges of the Constitutional Court who lied.

But of course the JSC has in fact already admitted that it believes it was Hlophe who lied and not his accusers as subsequent to the complaints being made it appointed one of his accusers (justice Chris Jafta) to a permanent post on the Constitutional Court, something it would surely not have done if it had thought that he had lied about the alleged attempt by Hlophe JP to influence the Constitutional Court.

It will be interesting to see how the JSC deals with this hot potato. Who knows, it might even act correctly and restore some of its lost credibility. One lives in hope.

Posted in: Constitutional Court, Hlophe, JSC, Judiciary.

A word on identity and classification

Mar 30th, 2012
by Pierre De Vos.
64 comments

This I find strange: In South Africa a serious debate is raging about the classification of people according to their racial identities and the use of those racial categories in legal or other contexts to effect redress. Why not use class instead of race, some people say? Why do we focus on race when we have experienced the harmful effect of past racial classification in apartheid South Africa?

We are on the slippery slope to a fascist state, not unlike that of Nazi Germany, people warn darkly. According to these critics of the use of racial categories in law and in other formal settings, there is something inherently evil and dangerous about classifying people on the basis of race (or about allowing people to classify themselves in terms of their race) and about invoking those classifications to try and address the effects of past and ongoing discrimination and prejudice.

What is strange is that the state and others classify people all the time in various ways, and hardly anybody ever objects to these classifications. Most people embrace different kinds of identity classifications and rely on them to describe who we are — even when these classifications were enforced by the law in the past and have been used to oppress some and advantage others. But somehow hardly anyone ever complains about this or warns about the evils inherent in these classifications — even when these identity categories have often been used to marginalise and oppress groups of people and these categories continue to form the basis of much of the prejudice and discrimination in our society.

Whether these classifications are based on our religion, our sex or gender or our sexual orientation, most of us happily admit that we are heterosexual or homosexual, Muslim or Christian or atheist, male or female. But ask (mostly white) South Africans to classify themselves as black or white and all hell breaks lose.

In South Africa, gay men and lesbians still experience severe forms of prejudice, discrimination and (in some cases) physical violence. People harbour severe prejudices against others because they are Muslims, atheists or (in some cases) even Christians and apartheid South Africa was often decried as a Christian Nationalist State. Discrimination against women were until recently endorsed by our laws and even today sexism is rife in society, leading to discrimination and in some cases to physical harm to women.

To counter this, the Constitution (as well as the Promotion of Equality and Prevention of Unfair Discrimination Act and the Employment Equity Act) prohibits unfair discrimination against anyone based on their sexual orientation, religion or sex and gender. Our courts have said that this means that gay men and lesbians, and woman and religious minorities cannot be unfairly discriminated against and that one should take into account the specific vulnerability of these groups when deciding whether different treatment of these groups constitute fair or unfair discrimination.

However, no one ever shouts and screams blue murder because we have not yet abolished the notion of heterosexuality, of Christianity or of being a man. No one claims that the fact that the law recognises that there is such a thing as a heterosexual or a homosexual means that we are on the slippery slope to Nazism. I have not read any angry letters in the paper because the Employment Equity Act allows affirmative action for women. No one has started a campaign to encourage all people to stop classifying themselves as Christians or Jews or Muslims, as men or women.

Why do people not claim that we are on the slippery slope to Nazism because we have separate toilets for men and women, because we distinguish between men and women in affirmative action legislation, because many people still believe that it is acceptable to treat men and women differently and to ascribe different social rules for men and women?

Surely, if the logic of the absolute danger of racial classification holds, it should be inherently dangerous or even evil to continue classifying people on the basis of identity categories which were used in the past (and continues to be used at present) to perpetuate discrimination and prejudice against certain people? Does this not mean we should stop categorising people as heterosexuals and homosexuals, as men and women, as Christians, Jews, atheists or Muslims? Should we boycott the census because it asks us whether we are male or female, Christian or Muslim?

But yet we do not. There are no angry letters by Mr Bodley-Smith from Fishoek published in the local paper because legal rules and other regulations still classify people as being either men or women. DASO does not make representations to UCT because the application forms still require an applicant to UCT to state whether that applicant is a woman or a man. (I note that UCT’s application form still requires a woman to say whether she is a Mrs or a Ms, not asking of a man whether he is married or not, surely endorsing a sexist practice but yet it is hardly ever commented on.)

Could this double standard be related to the fact that those who benefit (either directly or indirectly) from the classification system based on sexual orientation, sex and gender or religious affiliations be the very people with the social capital and with the economic or political power (the same people who usually write angry letters to the newspaper) in our society? Are so many white people anxious about racial classification because they have lost the power to classify people and have lost the power to benefit from their own racial classification? There is somehow nothing scary about being classified as a Christian or as a heterosexual because Christians and heterosexuals rule the country. White people do not.

Or is something else (also) going on?

Maybe, we do not object to being classified as men or women because we all have intimate knowledge of someone of the opposite sex and the men who (to some extent at least) still control the political and economic system therefore do not harbour unspoken fears about women. If one is a man, one may live with a woman (either because she is your girlfriend or wife), or one may have fond memories of one’s mother.

The same can, of course, not be said in South Africa about people of different races. In South Africa many white people do not have intimate relationships with black people. (Being raised by a black nanny whose surname one never bothered to learn and whose house one never visited does not count.) Moreover, there might be a deeply entrenched but invisible master narrative about race that animates the fears of some white people about being classified in terms of race.

White people grow up with stories of Dingaan’s killing of Piet Retief, of the “evil” Mau Mau who supposedly murdered white settlers in Kenya. We read in the newspapers about black criminals who commit farm murders and invade the suburban homes of white people and feel under siege (even though most violent crime is committed against black South Africans living in townships). Can it be that a deep-seated and irrational fear of black people lie at the heart of this (mostly white) anxiety about racial classification?

It might well be that our world will be a better place if we can manage to become truly blind to (often constructed) differences of sexual orientation, of sex and gender, of religion and of race. But that is not going to happen anytime soon because apart from racial classification, very few people see any problem with the classification of people on the basis of their identity commitments.

Should we therefore not rather stop obsessing about the alleged “evils” of racial classification and rather accept it as a given, but deal with all classifications on the basis that these classifications say little about who we truly are as human beings? (Although these classifications can say much about our relative economic deprivation and our experience of prejudice and discrimination.) Whether somebody is a man or a woman, black or white, gay or straight, a Christian or an atheist, in itself says nothing about what kind of person he or she is or how that person will treat you. These classifications have been invented by humans to put others in boxes and/or to help them make sense of the world. They can be used for evil purposes (the Holocaust, the Rwandan genocide and apartheid being examples of this), but in and of itself these classifications are not the issue.

In others words, is the challenge not for our society to learn to live with difference (constructed or otherwise), to celebrate the differences but to accept that these differences really says nothing about us as human beings. Rather than to pretend that differences (even if these differences are of our making) do not exist, we might do well to begin to learn to manage it.

Posted in: discrimination, Race.

Assessment of judiciary represents a retreat for reactionary forces in government

Mar 27th, 2012
by Pierre De Vos.
43 comments

When cabinet spokesperson Jimmy Manyi announced in November last year that the cabinet had decided to have the decisions of the Constitutional Court assessed to determine how “decisions of the court have impacted on the lives of ordinary citizens and how these decisions have influenced socio-economic transformation and the reform of the law”, I wrote that on its face, this statement could be viewed as a positive development.

I went on to questioned aspects of the statement which suggested that “appropriate mechanisms be developed to facilitate … regular interface between the three spheres of the State to enhance synergy and constructive engagement among them in pursuit of common transformative goals”. This criticism was recently echoed by Acting Deputy Chief Justice Zach Yacoob, who said in a speech delivered at UCT Constitution Week that he could not agree with any suggestion that the two political branches of government had to discuss matters of importance with the judiciary directly and outside a court hearing, in an effort to influence it.

Because of statements like these about the need for debates and discussion between three branches of government, statements repeated in the discussion document released last month about the proposed review of the Constitutional Court, concerns were obviously raised about the proposed review of the Constitutional Court. Why assess the Constitutional Court when we all know that the reasons for the lack of economic transformation in South Africa are structural (a huge skills shortage and race-based inequality, amongst them) and political (the deployment of unqualified politically connected people to positions in the state sector)?

This anxiety was further exacerbated by previous irresponsible and uninformed statements made by ANC Secretary General Gwede Mantashe about the judiciary destabilising the government and being used to undermine Parliament as well as the more recent perplexing comment by President Zuma that government did not “want to review the Constitutional Court, we want to review its powers”.

Now the Department of Justice has finally announced the terms of reference for the review, and it is looking good for the judiciary. There are two big surprises in these terms of reference. First, the Supreme Court of Appeal (SCA) has now been included in the review along with the Constitutional Court. Of course, given the fact that the original announcement only spoke about assessing the judgments of the Constitutional Court, there will immediately be questions asked about the inclusion of the SCA in the review so shortly after that court had made an adverse finding (on technical issues) in a case that could affect the future political career of the President of the country. But such fears may be allayed by the actual terms of reference of the proposed assessment.

This brings me to the second big surprise of this announcement, namely the actual terms of reference of this proposed assessment. These terms of reference shy away from the controversial (some would say bizarre) proposals about the fundamental weakening of the separation of powers between the judiciary and the other branches of government in order to “facilitate debates” between the three branches of government to ensure they act towards a common goal. The previous two documents both contained talk of this, but the terms of reference avoid this altogether and focuses on many of the really important issues facing the development of our constitutional jurisprudence.

The assessment will be a mammoth (if not impossible) task to complete, and will require “a comprehensive analysis of the decisions of the Constitutional Court and the Supreme Court of Appeal since the advent of democracy” to try and establish:

the extent to which such decisions have contributed to the reform of South African jurisprudence and the law to advance the values embodied in the Constitution; to assess the evolving jurisprudence on socio-economic rights with a view to establishing its impact on eradicating inequality and poverty and enhancing human dignity; assess the impact on the development of a South African jurisprudence that upholds and entrenches the founding principles and values as espoused in the Constitution and how such jurisprudence contributes to and is enriched by the development of jurisprudence in the SADC region, the continent and globally; and assess the extent to which South Africa’s evolving jurisprudence has transformed and developed the common law and customary law in South Africa as envisaged by the Constitution.

The last aspect of this part of the brief is particularly welcome. Section 39(2) of the Constitution states that when courts develop the common law or customary law, they “must promote the spirit, purport and objects of the Bill of Rights”. Because there are not many lawyers and judges whose expertise lies outside the Constitutional Law field who actually engage with this provision seriously, there has been limited development of the common law, despite this powerful tool provided to lawyers to help mould the common law into a more egalitarian and fairer system or rules that focus more directly on whether the application of common law rules lead to just outcomes in particular cases.

In an article published in 2010 in the South African Journal on Human Rights, Dennis Davis and Karl Klare surveyed judgments over the first 15 years of the new dispensation, and found that although some leading judgments demonstrated the capability of the courts to transform the common law and provided glimpses of a more egalitarian, inclusive, and caring legal infrastructure, the jurisprudence is not without its limitations.

The authors found that the chief disappointments are the absence thus far of a coherent exploration of the Constitution’s values or an explicit and sustained effort to develop new legal methodologies appropriate to transformative constitutionalism; the reluctance to interrogate the distributive consequences of private law rules in the routines of economic life; the emergence of a neo-liberal strand in constitutional application; and the lack of critical sharpness with respect to separation-of powers issues. The authors argued that while the inhibiting effect of mainstream legal culture was not entirely responsible for these difficulties, it is nevertheless true that concerns expressed a decade ago that the courts would be held back by the traditionalism of South African legal culture were well taken.

It is also welcome to see that the review envisages a study of the implementation of the decisions of the Constitutional Court and the Supreme Court of Appeal by the State and would aim to determine:

progress made and challenges encountered in the implementation of the decisions of these courts; legislation, policies and government programmes that have been put in place to give effect to these decisions; and capacity of the state within the available resources to realise the outcome envisaged by such court decisions.

This is indeed a huge and complex task, both in terms of the sheer volume of judgments that would have to be scrutinised but also because of the methodological challenges that will arise in deciding how progress by the State should be measured. How does one measure whether a particular decision about an unreasonable housing policy, say, was indeed implemented by the various departments (including provincial housing departments)? Would the study focus only on national government, or would it also focus on provincial government and local government (where most of the “delivery” happens and where most of the problems in implementing social and economic rights occur)? The terms of reference are unclear on this point.

Of course, one of the biggest problems in South Africa relating to the promotion and protection of the rights in the Bill of Rights is that most South Africans do not have access to courts. Poor people almost never get their cases heard by the Constitutional Court unless they can persuade an NGO’s (not a group of institutions much loved by the government) to take up a case on their behalf. Without NGO’s our jurisprudence would have been much impoverished – both in the field of social and economic rights jurisprudence and more general Rule of Law jurisprudence.

The review therefore requires that a study be conducted on direct access to the Constitutional Court through a comparative study of other jurisdictions, to identify factors that inhibit access to justice in relation to:

the costs of litigation; legislative frameworks, structures and processes that inhibit access; the right of access to the Constitutional Court by indigent and unrepresented persons; and whether the rules and the practices with regard to direct access to the Constitutional Court promote access to justice in particular to the indigent and unrepresented persons.

The Constitutional Court discourages direct access to the highest court as such an approach will fail to ensure that the ordinary High Courts and the SCA deal with Constitutional Law cases and engage vigorously with Constitutional issues. It will also make it very difficult for the Constitutional Court to deal properly with cases that come before it. In the absence of a comprehensive programme to fund human rights litigation ordinary people will often not be able to get to the highest court. Of course, another option is to amalgamate the various Chapter 9 institutions dealing with human rights and to create a super Human Rights Commission that will take up cases on behalf of indigent people whose rights have been infringed by the state or private institutions. This was proposed by the Asmal Report, but the proposal has never been taken up by the government or by Parliament.

Judging from the terms of reference of the assessment of the Constitutional Court (and now the SCA), the government has retreated from its innitial far more problematic position about why the review was needed. Gone is the threatening tone and any mention of the assessment being needed “to ensure the judiciary conforms to the transformation mandate as envisaged in the Constitution of the Republic in terms of non-racialism, gender, disability and other transformational variables”. Gone is any talk of the review being needed to promote “interdependence and interface that is necessary to realize transformation goals envisaged by the Constitution”.

In short, as is often the case with the ANC-led government, there are obviously two competing views about the judiciary inside the government represented by the various statements about this assessment. The one faction is deeply hostile to the judiciary (after all, judges review and set aside unlawful and unconstitutional actions by the President and unconstitutional laws made by Parliament and judges also convict and send to prison those who have been proven to be corrupt). The other faction understands the importance of an independent judiciary that is eager and empowered to implement the many progressive aspects of the Constitution. The original cabinet statement seemed to be influenced by the first faction, while the latter faction seemed to have had a bigger hand in preparing the terms of reference.

If done well, it might well assist the government to provide better access to justice and to create the mechanism that would help it to better implement progressive court judgments.

It remains an open question whether any institution or a number of institutions will actually be able to complete this review in the 18 month period envisaged by the terms of reference. After all the SCA delivers over 250 judgments each year while the Constitutional Court hands down between 30 and 40 judgments a year. That means the reviewers will potentially have to consider more than 5000 judgments and will then have to ask how all the relevant judgements (selected from these 5000) have impacted on the state and to what extent the state has actually implemented the relevant judgments. Quite frankly, I am not sure this is practically possible at all.

All I can say is: I am glad it’s not a job I will have to do.

Posted in: ANC, Constitution, Constitutional Court, Judiciary.

Another unconstitutional law on the horizon?

Mar 26th, 2012
by Pierre De Vos.
13 comments

I was asked to prepare a memorandum on the draft amendments to the South African Police Service Act, purporting to give effect to the Constitutional Court judgment in the Glenister case. The Glenister judgemnt found that the abolition of The Scorpions and the creation of The Hawks was unconstitutional in several respects and ordered Parliament to fix the problem within 18 months. These amendments are a purported attempt to comply with the judgment.

In the memorandum I concluded that the proposed amendments fall far short of the minimum requirements as set out in the majority judgment in the Glenister case. (The full memo can be accessed here.)

What is clear from the draft is that there is no political will to create an independent body free from political influence or interference to fight corruption. It would be far too dangerous for the kleptocratic members of the political elite to create such a body, hence the minimalist attempts contained in the draft Bill which attempts to create a partly independent body, but one which will retain “sufficient” political control over it to ensure that the body does not investigate the “wrong” people.

But creating a partly independent corruption fighting body is like making a woman half pregnant – not something that seems possible at present. (Not that I am an expert on that particular score.)

As the Glenister judgment set out, at the heart of the inquiry is whether the body will be free from political influence and interference so that it can do its job effectively, on the one hand, while remaining financially and politically accountable, on the other hand. What is essential in achieving this balance is to depoliticise the anti-corruption institution or institutions. To achieve this a body need not attain the kind of independence guaranteed for the judiciary (“full independence”), but it does need to be sufficiently independent so as to enable the anti-corruption agency to function effectively without being exposed to undue political influence.

Legal mechanisms must be established that limit the possibility of abuse of the chain of command and that will protect the agency against interference in operational decisions about starting, continuing and ending criminal investigations and prosecutions involving corruption. An effective corruption-fighting unit thus needed to meet two basic interrelated requirements. It needed to be both structurally and operationally independent – in accordance with the fundamental principles of the South African legal system and in line with South Africa’s international law obligations – to enable it to carry out its functions effectively and free from any undue political influence or undue intervention.

The Bill opts of a “minimalist approach”, including amendments to several sections of Chapter 6A of the South African Police Service Act but retaining the DPCI, albeit in a slightly different format, instead of creating a completely new body. The amendments represent a rejection of a return to the previous position where the DSO was situated within the National Directorate of Public Prosecutions. The approach also rejects the option of creating an independent body outside the formal structures of the South African Police Service. This approach is not necessarily precluded by the majority judgment in the Glenister case (although the judgment did not deal with the difficulties regarding financial independence that will arise because of the non-independent National Commissioner of Police’s role as the Chief Financial Officer of the “independent” unit). As long as the amendments create an independent corruption-fighting unit free from potential political influence and interference, a body that – judged in its entirety – is not only in fact sufficiently independent but is also reasonably perceived as being independent, the amendments will comply with the judgment.

As it stands, an overall assessment of the proposed amendments suggest that the amendments fall far short of what is required by the Glenister judgment in several ways. This is because the amendments do not remove the potential for political influence and interference in the work of the Hawks because the new body is neither sufficiently structurally or operationally independent to and cannot reasonably be perceived as being so independent. The amendments provide far too much power for politicians to regulate the work of the unit, rendering it not sufficiently operationally independent. Neither is it sufficiently structurally independent because of lack of safeguards regarding security of tenure for all members of the unit as well as effective mechanism to report and investigate allegations of political influence and interference in its work. Both in fact and in terms of a reasonable perception of independence the proposals for a reconfigured Hawks fail to safeguard independence as required by the judgment. In this regard, the following are the main problems with the proposed amendments.

The amendments provide insufficient guarantees to safeguard the structural independence of the Directorate as it fails to provide security of tenure for all the members of the Directorate and fails to establish statutory secured levels of remuneration for all members of the Directorate.

In terms of a newly created section 17M all members of the Directorate remain members of the South African Police Service “with all the powers, duties and functions of other members of the South African Police Service”. Section 17G which states that the remuneration, allowances and other conditions of service of members of the Directorate shall be regulated in terms of section 24 of the Act (a section which allows the Minister to make regulations about the reduction in rank of members as well as the remuneration structure of members), falls short of the security of tenure for all members. As the majority judgment in Glenister made clear, in the absence of explicit provisions entrenching the employment security and remuneration levels of members of the Directorate, “individual member could be threatened – or could feel threatened – with removal for failing to yield to pressure in a politically unpopular investigation or prosecution”, which would be inimical to structural independence.

Ordinary members of the Hakws would therefore remain subject to the hierarchical structure and discipline of the SAP and could be removed by the National Police Commissioner (who is not an independent person). The National Commissioner would retain the power to “discharge” any member of the DPCI from the SAPS on account of redundancy or the interests of the SAPS. The Commissioner would also still be empowered to discharge a member of the service if, for reasons other than unfitness or incapacity, the discharge “will promote efficiency or economy” in the SAPS, or will “otherwise be in the interest of” the SAPS. Ordinary members of the Directorate therefore would therefore not be sufficiently protected in terms of job security as required by the Glenister judgment.

Moreover, although a newly inserted section 17DA provides limited protection for the employment security for the Head of the Directorate, and the newly inserted section 17CA(c) provides limited remuneration protection for the Head, Deputy Head and Provincial Heads of the Directorate, it contains no such protection for other members of the Directorate. This means that ordinary members of the Directorate will be subject to the ordinary remuneration regime of the SAPS in exactly the same manner as other members of the SAPS, rendering them insufficiently independent in a structural sense. This falls foul of the Glenister judgment as discussed in section 2.3.2.3 above.

The security of tenure of the Head of the Directorate is not sufficiently protected as required by the judgment as discussed in section 2.3.2 above. A newly inserted section 17DA deals with this matter, but provides wide discretion for the Minister in suspending and removing the Head of the Directorate from office. In terms of the proposed amendment, the Minister is empowered in terms of section 17DA(2)(a) provisionally to suspend the Head of the Directorate, pending an “enquiry into his or her fitness to hold office as the Minister deems fit” and then may then remove him or her from office for misconduct; on account of ill-health; on account of incapacity to carry out his or her duties of office efficiently; or on account thereof that he or she is no longer a fit and proper person to hold the office concerned. Subsection (3) allows removal from office by an address of the two Houses of Parliament for the same reasons as set out above. Where the Head is suspended, he or she shall receive no salary or such salary as the Minister will determine.

Four aspects of this provision might cause problems. First, any enquiry into the fitness of the Head of the Directorate to hold office will be conducted as the Minister sees fit. There are no formal requirements for how this enquiry should be conducted or who should conduct the enquiry. This wide discretion means that an enquiry could be conducted by the Minister him or herself or by someone in the Minister’s office watering down the safeguard of an objective determination on whether one of the four criteria for removal is in fact present. Second, the third requirement relating to the Head’s possible incapacity to carry out his or her duties of office efficiently, is exceedingly broad and not easily susceptible to objective determination.

The notion of efficiency renders the subsection overbroad and potentially allows the Minister to remove the Head of the Directorate if, in his or her opinion (or, in his or her stated opinion), the Head has not been efficient, opening the door for removal on non-objective grounds, which is not compatible with actual independence or perceived independence.

Third, when the Head of the Directorate is preliminary suspended, he or she could be suspended without a salary and could therefore in effect be punished even before he or she is formally removed, placing considerable potential power in the hands of the Minister to put pressure on the Head of the Directorate, and thus rendering the independence of the Head of the Directorate tenuous at best. Lastly, the two Houses of Parliament can remove the Head of the Directorate by “praying for such removal on any of the grounds” referred to above.

No enquiry is required in this regard and the wording is vague, which means the section could be interpreted as not requiring the two Houses of Parliament actually to have established as objective fact that one or more of the grounds listed is actually present. In one reading of this section, this would render this power as little more than the exercise of a political discretion which may not easily be reviewed by a Court, rendering the security of tenure and hence the independence of the Head of the Directorate.

These fears are reinforced by the heading of this section, which states that the section relates to “Loss of Confidence in Head of Directorate”. A “loss of confidence” is a subjective standard, not an objective standard, as it relates to whether the Minister or the Parliament had stopped having confidence in the Head of the Directorate and such loss of confidence could just as well relate to political reasons as to objective criteria reviewable by a court of law.

Despite the proposed amendments, the possibility of political influence and interference in the work of the Directorate looms large, both in fact and in terms of reasonable perceptions about such influence and interference. The requirements set out in the Glenister judgment (as discussed in section 2.2.3 above) have therefore not been met. Section 17CA(1) proposes that the Minister of Police, with the concurrence of the Cabinet, appoint the Head of the Directorate for a non-renewable term “not exceeding seven years”, while section 17CA(3) requires that the Deputy Head be appointed by the Head with the concurrence of the Minister of Police and section 17CA(4) requires that the Provincial Head of the Directorate to be appointed by the Head with the concurrence of the Minister of Police. This means that the Minister has a veto right over the appointment of the Deputy Head and the Provincial Heads of the Directorate.

No objective minimum criteria are prescribed regarding the skills, experience or commitment to independence of any of the men or woman appointed to these positions. In theory the Minister could appoint an outgoing member of Parliament of the governing party (or another political party) or a sitting member of the highest decision making body of the governing political party (or another political party), somebody without any police experience or someone embroiled in allegations of corruption, in any of these positions. Absent a mechanism that provides for safeguards against the appointment of individuals who are in fact or are perceived not to be politically partial, the perception may well be created that the Directorate is not in fact independent and will thus fly in the face of the requirement that the body should be independent in fact and in terms of perceptions.

The amendments also do not include any legally binding requirement that the Head of the Directorate or any other member of the Directorate need to fulfill his or her duties independently (or, alternatively) without fear, favour or prejudice. A proposed insertion of section 17E(9)(a) states that a member of the Directorate “shall serve impartially and exercise his or her powers or perform his or her functions in good faith” while section 17E(1) requires members to take an oath to “enforce the Law of the Republic without fear, favour or prejudice and, as the circumstances of any particular case may require, in accordance with the Constitution and the Law”.

There are several problems with this section. First, there is a distinction between serving impartially and acting in good faith, on the one hand, and being independent on the other. Second, there is no sanction for anyone not acting independently and impartially. Third, the oath seems to be at best ambivalent as it states that one needs to act without fear favour or prejudice but only “as the circumstances of any particular case may require” leaving open the possibility that this means that in certain cases one need not act so and need not act in accordance with the Constitution and the law if the circumstances of the particular case requires it.

A new proposed section 17D(1)(a)(A) states that the functions of the Directorate are, inter alia, to prevent, combat and investigate “in particular selected offences contemplated in Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities Act.” It is unclear what these “selected offenses” are intended to be and who will select the offenses. However section 17D(1)(a) and 17D(1)(c) states that national priority offenses and other offences can be investigated at discretion of Head or if it is referred to the unit by the National Commissioner, but this remains subject to policy guidelines issued by the Minister (currently the guidelines are to be issued by the Ministerial Committee).

The insertion of a specific focus on charges in terms of the Corruption Act, goes some way to allay fears of political influence and interference. However, corruption is often closely aligned with other offenses such as fraud. The fact that the Minister therefore would retain broad discretion to issue policy guidelines on which priority crimes to investigate might potentially hamstrung investigations in which fraud and corruption are intertwined. Such a broad discretion provided to apolitical actors was not compatible with independence as required by the judgment.

The judgment required far more effective mechanism to protect members of the Directorate from political influence and interference, both prospectively and retrospectively. The judgment thus found that section 17L did not meet the requirements for independence in this regard as the retired judge empowered to investigate allegations of undue influence could only deal with retrospective complaints of interference. Curiously, the proposed amendments wholly fail to address these concerns.

Although it is proposed that section 17L(7) be amended to allow a retired judge to obtain information from the NDPP, there are no proposals to create a structure that ab initio prevents political interference in the work of the corruption-fighting unit. As the judgment found, in some cases irreparable harm may have been caused which judicial review and complaints can do little to remedy. More importantly, many acts of interference may go undetected, or unreported, and never reach the judicial review or complaints stage. That is why it was necessary to create “adequate mechanisms designed to prevent interference in the first place” as this was required to ensure that political interference does not happen from the start. This failure renders the proposed Bill unconstitutional.

Posted in: ANC, Constitutional Court, corruption, democracy.

On changing the Constitution

Mar 23rd, 2012
by Pierre De Vos.
93 comments

Recent statements by politicians about the need to review the judgment of the Constitutional Court with a view to assess the need for changes to the Constitution, is often accompanied by assurances that the South African Constitution has already been amended 16 times. It is argued that the Constitution was a compromise document foisted on the people of South Africa by evil right-wingers, that the document has become a stumbling block to the effective governing of the country and hence has become a hinderance to the economic transformation of the country. Over the past year many ordinary folk, taking its cue from those talking about changing the Constitution, have taken up this whispering campaign against the Constitution.

There are two problems with this line of reasoning. First, the mere fact that the Constitution has been amended 16 times is irrelevant, as the number of amendments is not what is in issue. Rather what is in issue is the nature of any proposed amendments. Are they good for democracy and for the country or are they bad? Would they insulate the governing party from scrutiny when it flouts the law and the Constitution or would it enhance oversight and democratic accountability for any governing party? Would amendments rob citizens of their rights and their ability to have those rights enforced by the courts, or would it make it easier for citizens to enforce their rights? Would amendments hamper economic transformation by protecting the corrupt in government and the private sector, or would it advance transformation by ensuring open, accountable and transparent government with the requisite oversight powers for the courts?

What those who argue that the Constitution has been amended 16 times do not say, is that almost all of these amendments passed so far have been mere technical amendments of no real substantive or political effect. Where substantive amendments have been made, this has tended to weaken the Constitution and the checks and balances in it, instead of strengthening it, and as such was criticised by many in academia and civil society.

But most amendments have been entirely uncontroversial.

Thus the first amendment dealt with the oath of office to be sworn by the Acting President. Amendment two, inter alia, changed the name of the South African Human Rights Commission to that of Human Rights Commission. Amendment four was needed to confirm that a provincial legislature remains competent to function from the time it is dissolved or its term expires, until the day before the first day of polling for the next legislature. The fifth amendment, inter alia, was aimed at allowing a proclamation calling and setting dates for an election of the National Assembly to be issued either before or after the expiry of the term of the National Assembly. And on it goes.

So far only four sets of amendments of some importance and political relevance have been made to our Constitution. The sixth amendment stated that the head of the Constitutional Court (and not the head of the Supreme Court of Appeal) will become the Chief Justice of South Africa and also provided for the extension of the term of office of a Constitutional Court judge by the legislature. The second part of this amendment was highly controversial as it potentially affected the separation of powers and the security of tenure of Constitutional Court judges and was vigorously opposed by academics and civil society groups. It did not help that Parliament unconstitutionally tried to delegate the power to extend the term of office of a Constitutional Court judge to the President, a provision that was first relied upon by President Jacob Zuma when he wanted to extend the term of office of former Chief Justice Sandile Ngcobo.

The eighth, ninth and tenth amendments were passed to introduce the highly contentious floor crossing provisions, which allowed members of national and Provincial Parliaments and Municipalities to cross the floor during two window periods — as long as more than 10% of the members of the party crossed the floor. These provisions insulated the ANC from floor crossing (as it would have required between 25 and 30 ANC members to cross the floor together) but decimated smaller parties where even 1 person could easily cross the floor.

In 2009, after the Polokwane conference and in the face of threats of factionalism within the ANC, the fourteenth and fifteenth amendments were adopted to abolish the floor crossing, thus protecting the ANC from possible floor crossing defections by the losing factions of party elections at national, provincial and local government level.

The twelfth and thirteenth amendments provided for the elimination of cross-border municipalities by changes to the boundaries of certain provinces. These were highly contentious as citizens living in KwaZulu-Natal and Gauteng did not want to be moved to worst performing provinces of the Eastern Cape and North-West respectively. Despite valiant efforts by the people of Matatiele and Merafong, and despite some promises made to the contrary before national elections, the ANC used its then two-thirds majority to force these communities into provinces they did not want to go to.

Every proposed amendment to the Constitution must surely be evaluated on its merits. Amending the Constitution is not per se a problem. Only those proposed amendments to the Constitution that will protect the governing elite at the expense of citizens or will undermine the very nature of our Constitutional democracy, will be problematic. Each proposed amendment will have to be judged on its own merit.

Which brings me to the second problem with this talk about amending the Constitution. Those who argue that the Constitution must be amended because the Constitution has become a stumbling block to the effective governance of the country and hence in effect prevents social and economic transformation, are rather vague about how the Constitution should be amended.

There seems to be two general arguments circulating and being whispered about in this regard. First, some among us are upset that the courts can review and set aside decisions by the President, other members of the executive and other organs of state, when such decisions are not authorised by the Constitution or the law, do not comply with the Constitution or ordinary law or when these decisions are not rational (in other words, when the decisions are arbitrary, made in bad faith or capricious). This argument is based on the premise that those in government should not be bound by the law and should, in effect, be above the law.

For example, if the Constitution or an ordinary piece of legislation requires the President to appoint a “fit and proper” person to a position and he then decides to appoint somebody to that position who has been found guilty of corruption or murder, so the argument goes, it is not for the non-elected members of the judiciary to declare such an appointment invalid merely because the appointment did not meet the minimum requirements set by the law.

Such an argument is no more than an argument for lawlessness. Of course, in such a case there is nothing that prevents the legislature from amending the relevant legislation (or the Constitution – if the requisite majority can be mustered to do so) to abolish the requirement that only a “fit and proper” person should be appointed to the job. What cannot ever be accepted in a constitutional democracy, is a situation where the law and the Constitution can be flouted at will, with no recourse open to the courts to check this flouting of the law.

A second argument is made that the Constitution is a compromise document agreed on by the Constitutional Assembly in line with the 34 Constitutional Principles contained in the interim Constitution and as such lacks legitimacy because it contains many anti-transformation provisions.

Of course, the interim Constitution contained a provision that would have allowed the final certified Constitution to be submitted to voters in a referendum if two-thirds of the members of the Constitutional Assembly could not agree on the text. If at least 60% of the voters approved of the draft Constitution in a referendum, it would have taken effect. The ANC and the NP both avoided this by agreeing on the text. The fact that a referendum was never enforced suggest that the ANC was worried that its version of the Constitution would not obtain a 60% majority in a referendum. Instead both parties, after extensive public participation, agreed to a document which it could live with – although almost all commentators have since argued that the ANC out negotiated the National Party and secured a Constitution that was far closer to its original plans than they could have dreamed about.

In any case, it is unclear which provisions of the Constitution hinders social and economic transformation in South Africa. The property clause is often singled out in this regard, but as I have pointed out several time before that section does not require a “willing-buyer willing-seller” land reform process. Neither does it require the payment of market value for all land expropriated for purposes of land reform. Those who claim that the Constitution obstructs social and economic change has not yet been able to point to any other provisions in the Constitution that mitt be objectionable. This is probably because there are none.

Ours is not an exclusively liberal Constitution. Although it contains a system of government based on the separation of powers and checks and balances as well as all the traditional liberal human rights like freedom of expression, it also contains a set of social and economic rights that places a positive duty on the state to take reasonable steps to provide better and more expansive access to housing, health care, education and other social and economic rights. Moreover, the Constitution applies, to a large degree, horizontally also binding private individuals and institutions like businesses. This aspect is based on the view that the human rights of an individual can be trampled on not only by the state but also by powerful private interests and by individuals.

My question would be: which sections of the Constitution exactly are those that hinder transformation? In my view there are no such sections to be found in our Constitution. Those who argue that it might be time to amend the Constitution to effect social and economic transformation need to say which sections they find objectionable. We can then have a sensible debate about this question. In the absence of such clear proposals and arguments, the mutterings and whispers about the need to change the Constitution can be treated as ill-informed and self serving drivel by those who are seeking a scapegoat to avoid accountability for governance failures over the past 18 years.

My challenge to those who whisper and grumble about the need to change the Constitution is this: either put your cards on the table so that we can debate the issue or stop your self-serving campaign to discredit the Constitution. In the absence of concrete proposals one will have to assume that those who talk about changes to the Constitution are not interested in the well-being of South Africans, but rather in retaining power and access to tenders by scapegoating the Constitution.

Posted in: ANC, Constitution, corruption, Criticism of Courts, democracy, Governance.

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