Constitutional Hill

Chief Justice instructs judges to attend Christian leadership money spinner

Mar 15th, 2012
by Pierre De Vos.
105 comments

When Justice Mogoeng Mogoeng was “nominated” as Chief Justice by President Jacob Zuma some of us argued that, while it was perfectly normal for a judge to profess his or her religious views (or to be an atheist for that matter), Justice Mogoeng’s continued involvement (as a lay preacher) in a Church that held views that conflicted directly with the provisions of the Bill of Rights would be inappropriate. Now the Mail & Guardian reports that the Chief Justice has used his position as Chief Justice to try instruct senior members of the judiciary to attend a “leadership conference” held by an American evangelist.

The email sent on his behalf reads as follows:

—————-
From: Moekoa Desmond On Behalf Of Sejosengwe Memme
Sent: Tuesday, March 06, 2012 2:48 PM

To: Judge Mogoeng Mogoeng (Contact); Mpati Lex; Ngoepe Bernard; Mthiyane Khayelihle – Judge; Hlophe J – Judge; Musi Hendrick; Mlambo Dunstan; Leeuw Monica; Kgomo Diale; Sangoni Clement – Judge; Davis Dennis; Patel Chimanlal – Judge; Meer Yasmin

Cc: ‘Khwezi Mabaso’; Ngakantsi Boitumelo; Etsebeth Ilonka; Sheldon Astrin; Van Niekerk Sandra; Lemmetjies Gaynor; Mogotsi Reetsang; Malgas Ncumisa; Martin Heidi Deidre; Bihl Rowena; Raleie Motsholathebe; Morar Devika; Opperman Liezl; Motsepe Caroline; Molapo Emily Motlhatlego; Sejosengwe Memme

Subject: Leadership event with Drs John Maxwell and David Molapo

Honourable Judges President/ Heads of Court

Kindly see the attached invitation for your urgent attention. By the direction of the Chief Justice, Heads of Court/Judges President and their Deputies or the most senior judge in the divisions where there are no Deputy Judges President, are hereby requested to be available for the above-mentioned leadership conference.

It will be appreciated if confirmations for attendance can be submitted to the secretariat by end of business on 07 March 2012.

With kind regards

Memme Sejosengwe (Ms)
Secretariat: Heads of Court Forum
Judicial Court Services, Office of the Chief Justice

The flyer for this event depicts the smarmy faces of several blow-dried evangelicals who would be involved in this “leadership conference” hosted by the Hope Restoration Ministries. The conference cost R650 to attend but one is promised 7 DVD’s and a CD as well as a participants manuel if one attends. The flyer, in true commercial style, states that the “total package value is R2745 and that one will saveR2095 if one made use of this special offer.

Even if this event had nothing to do with the promotion of a particular evangelical Christian world view, it would be entirely inappropriate for the Chief Justice to ask senior judges to attend as it is a private business venture and by “requesting” senior judges to make themselves available for this event the Chief Justice is promoting private business interests.

It is also even more inappropriate in a country like ours where people of diverse religious beliefs serve on the bench, for a Chief Justice to send such a “request” to the leadership of the judiciary. More so because this event is a money-making racket for a set of evangelical Christians. Dr John Maxwell says that one must: “Stay focus[ed] on what God has assigned me to do. Keep my mind on what I am doing,” while the Constitution enjoins judges to stay focused on what the Constitution and the law has assigned them to do.

Imagine a senior judge had sent a similar instruction to attend a Muslim “leadership conference” or one hosted by Richard Dawkins, the avowed atheist. It would rightly have created a storm of protest as it would have signalled that the Chief Justice is attempting to influence members of the judiciary to come around to his way of thinking on religious matters. This is no different.

As judges are enjoined by the Constitution to act impartially and without fear, favour or prejudice and as the Constitution does not require judges to embrace a form of evangelical Christianity in order to do their job and as the Chief Justice is not empowered to use his position as Chief Justice to try and advance a business venture of a commercial enterprise, this email is deeply troubling.

Any judge in South Africa can hold any views about religion that he or she wishes. He or she can be a member of the Catholic Church or a devout attendee of Dutch Reformed Church services, can be an atheist, a Hindu or a Muslim or can believe that there is no god at all. What that judge is not allowed to do is to use his position to promote a commercial venture, one that is being run by a person with a particular view of Christian religion.

At the very least the Judicial Service Commission (JSC) should censure the Chief Justice for abusing his office to advance a business venture and for trying to promote a certain religious view within the judiciary. Section 165 states, inter alia that:

4. No person or organ of state may interfere with the functioning of the courts.

5. Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

To assist and protect the courts to ensure their independence, impartiality and dignity the JSC has a Constitutional duty to take steps to ensure that this abuse of office never happens again. If they do not, there is a danger that the CHief Justice will again use his position to further a specific evangelical business venture, tarnishing the dignity of the office of the Chief Justice and sending a signal that our judiciary serves not all the people of South Africa but only those who adhere to a specific evangelical Christian view of the world. This would fundamentally erode the independence of the judiciary which is guaranteed not only on formal protections but also by ensuring that the perception does not take hold that members of the judiciary act with a specific religious agenda when it hears cases.

Posted in: Constitutional Court, Judiciary, Mogoeng Mogoeng.

Surprising insights on transformation from the Constitutional Court

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

What do we mean when we talk about transformation of the judiciary and of the legal culture? Do the members of the Judicial Service Commission (JSC) and the President believe in the substantive transformation of the legal culture and legal doctrine away from its colonially-inspired formalistic roots and away from the deeply embedded assumptions about free choice and equal bargaining power, (assumptions that promote the interests of the wealthy over those who are marginalised, disempowered or poor)?

Or do they use the term rather disingenuously to try and justify the appointment of essentially anti-poor, deeply formalistic judges whose judgments will disregard the interests of the marginalised and might even champion the interests of the rich and powerful? Moreover, which judges are best placed to take on the challenges of legal transformation — within the disciplining boundaries of the separation of powers doctrine — and which judges merely cling to notions of legal formalism to the detriment of the poor and marginalised and in resistance to the transformation of the legal culture?

These questions are all raised by the fascinating Constitutional Court judgment in the case of Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd, which was handed down today.

The majority judgment, written by Justice Edwin Cameron (Moseneke DCJ, Froneman J, Nkabinde J, Skweyiya J, Yacoob J and Van der Westhuizen J concurring), grapples with the transformative effects of the Constitution and the Rental Housing Act on the relationship between landlords and tenants. The judgment also attempts to empower Rental Housing Tribunals, Tribunals created by the democratic legislature to protect the rental housing market while also addressing the unequal power relations between landlords and tenants.

The minority judgment, written by acting judge Ray Zondo, who has reportedly been earmarked for appointment to the Constitutional Court (Mogoeng CJ and Jafta J concurring), displays a surprisingly formalistic and pre-constitutional attitude to the law that applies between landlords and tenants. The minority judgment, relying on what seems to me to be misguided technical arguments, would have upheld the freedom of a landlord to cancel a lease, hike rents or have tenants evicted who cannot afford the steep hikes on rentals, regardless of how unfair the landlord might have acted (all because they supposedly failed to plead their case correctly). The minority judgment also seems rather disrespectful of the principle of separation of powers, which would have required them to engage seriously with the Rental Housing Act, a piece of legislation passed by our democratic Parliament.

The narrow question in this case seemed to turn on the question of when a landlord could legally cancel a lease and evict its tenants. But behind this formal question lurked the larger question of how the constitutional protection against arbitrary eviction (enshrined in section 26(3)), as well as the protections afforded to tenants by the Rental Housing Act, limited the discretion of the landlord to evict tenants or raise rents.

The applicants are tenants in Lowliebenhof, a ten-storey block of flats in Braamfontein, in the inner city of Johannesburg. The flats are their homes, and they live there in terms of various leases. The respondent landlord bought the building, upgraded it, and then wanted to increase the rent. To do so, it cancelled the tenants’ leases, but offered them new tenancies, on identical terms, though at rents of between 100% and 150% higher than the original rents. The tenants resisted and the landlord brought eviction proceedings. The original lease only allowed an annual rent increase of between 10% and 15% and the cancellation of the leases were aimed at circumventing these clauses.

The tenants put forward several arguments about why the landlord was not permitted to cancel the leases to raise the rents, based on the Constitution, contract law and public policy as well as on the interpretation of certain provisions of the Rental Housing Act. In the end the majority argued that it was unnecessary to develop the common law of contract to deal with this case. Instead it relied on the provisions in Rental Housing Act, which state that the landlord may not engage in “unfair practices” in its dealings with tenants. The Supreme Court of Appeal (SCA) had found that this phrase did not apply to a case like the present because an unfair practice contemplated in the relevant section was “incessant and systemic conduct”, not a once off termination of a contract aimed at hiking the rents.

The majority rejected this view and said that the Rental Housing Tribunal should have decided whether there was an unfair practice in this case. It pointed out that the Act provides that an unfair practice ruling “may include a determination regarding the amount of rental payable by a tenant” or may relate to any termination of the lease in respect of rental housing property “on grounds that do not constitute an unfair practice “.

The Act states that when a Tribunal makes a determination about the rent to be charged, it “must be made in a manner that is just and equitable to both tenant and landlord”. In addition, the rent determination must take “due cognisance” of “(a) prevailing economic conditions of supply and demand; (b) the need for a realistic return on investment for investors in rental housing; and (c) incentives, mechanisms, norms and standards and other measures introduced by the Minister in terms of the policy framework on rental housing…”.

The majority thus found that the Act demands that a ground of termination must always be specified in the lease, but even where it is specified, the Act requires that the ground of termination must not constitute an unfair practice. A Tribunal can decide whether such a termination constituted an unfair practice — regardless of what the lease might have stipulated. The effect of these provisions is that contractually negotiated lease provisions are subordinate to the Tribunal’s power to deal with them as unfair practices.

It means that unfair practices are not determined by taking into account only the common law legal rights of a tenant or landlord, but by considering also their statutory interests. This makes it even clearer that the statutory scheme does not stop at contractually agreed provisions, and conduct in reliance on them. It goes beyond them. It subjects lease contracts and the exercise of contractual rights to scrutiny for unfairness in the light of both parties’ rights and interests.

Given this expansive interpretation of the Rental Housing Act (an interpretation influenced by the provisions in the Constitution that prohibits arbitrary evictions from housing and guarantees for everyone the right of access to housing), the majority held over final determination of the appeal (which was originally based on the request to have the tenants evicted) to enable the landlord and tenants, if so advised, to bring suitable proceedings before the Tribunal.

If the Tribunal should hold that the termination of the tenants’ leases was an unfair practice, and should the relief it grants include an order setting aside the termination, the eviction order granted against the applicants may have to be set aside. The parties must be granted leave to set the matter down in this Court for finalisation of the appeal on papers supplemented as they think fit.

The minority had no truck with this airy-fairy, bleeding heart, approach to the old fashioned area of contract law, which would have shown some deference to the democratically elected Parliament who passed the Rental Housing Act. Instead the minority would have preferred to rely on traditional contract law principles that would have allowed the landlord to cancel the lease, and to evict the tenants unless they agreed to a 150% hike in their rents. The minority argued that this case was never argued on the basis of the Rental Housing Act (although the SCA interpreted this Act narrowly in making a finding in favour of the landlord) and hence that the majority was wrong now to rely on this progressive piece of legislation to come to the assistance of the tenants.

The minority, seemingly channeling early twentieth Century British attitudes about the distinction between law, on the one hand, and values and morals, on the other, (as if there was an absolute distinction between these), argued that whether the landlord had engaged in unfair practices was not a legal question at all, but rather a value judgment requiring a judge to rely on moral values (not “law”). The Constitutional Court should therefore not have engaged with this issue at all, according to the minority.

Relying on the legal fiction that the parties “freely and voluntarily entered into leases with clauses that allowed either party to terminate them on notice and which did not say that the termination would not be permissible when effected for a certain purpose or when effected with a certain motive”, the minority would not have referred the matter back to the Rental Housing Tribunal (as the majority did).

Zondo AJ argued that:

the applicants may also have insisted on clauses that excluded certain reasons or motives for the termination of their leases. They did not do so and they have not put up any case to suggest that their bargaining position did not allow them to do so. The matter must then be decided upon the basis that, like the two tenants who included the unusual clauses that their leases could only be terminated at their discretion, the applicants, too, could have included a clause to the effect that their leases could not be terminated to enable the landlord to increase rents by amounts higher than those permitted by their leases. They failed to do so.

As Justice Froneman (in a concurring judgment) pointed out, this denial that it was permissible for the Constitutional Court to consider the interpretation of the Rental Housing Act (which might protect the tenants) in this case, was difficult to square with the law and the facts of this case.

Both the High Court and the Supreme Court of Appeal interpreted the Act and came to the conclusion that the respondent’s right to cancel the leases was unaffected by its provisions. The majority found “that interpretation to be wrong. That the interpretation of the Act lies at the heart of this matter, however pleaded, has never been doubted… I thus have considerable difficulty in understanding how this appeal can be determined in this Court without interpreting the Act. Whether the Act applies to leases in general is a matter of law. So is the question whether the cancellation.”

Moreover, justice Froneman also dispensed with the deeply conservative and formalistic argument about the distinction between morals and value judgments on the one hand and legal questions on the other:

It is common cause that section 26 of the Constitution is implicated. Interpretation of what constitutes an “unfair practice” under the Act in light of this is thus inevitably a constitutional issue, a matter of law. Interpretation and application of the law under the Constitution is never a mechanical application of rules; it always involves a value judgment. Our Constitution and law are infused with moral values. The days of denying the value-laden content of law are long gone.

The various judgments therefore illustrate a clear distinction between one set of judges who are engaged with the transformative project and with the transformation of legal culture and the interpretation and application of law (all done while displaying suitable respect for the elected branches of government who passed the Rental Housing Act) and another set of judges stuck in a colonial-inspired formalist mindset (with potentially adverse consequences for disempowered tenants) who rejected the notion that constitutional values and the morals underpinning them, have any role to play in the adjudicating process in this case.

For those of us studying court judgments and legal articles produced by a (still largely) conservative academia, this insight will perhaps not come as a surprise. The surprising aspect of the judgement arise from discovering which judges came out on which side of this profoundly important judicial and philosophical divide.

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

On “bribery” scandals and intelligence services

Mar 12th, 2012
by Pierre De Vos.
38 comments

Around the time when former President Thabo Mbeki fired the director-general of National Intelligence Agency, Billy Masetlha, a visibly angry Mbeki accused some of his intelligence agents of “manufacturing intelligence” and lying to him merely to please him. “The president as head of state and head of government is the principal client of civilian intelligence,” Mbeki fumed. “Now you can imagine what would happen if the president is fed false information”.

Masetlha, in court papers, called Mbeki a liar in return but lost that battle when his dismissal was confirmed by the Constitutional Court.

Masetlha was blamed for authorising the unlawful surveillance of ANC executive and businessman Saki Macozoma under the pretext that he was involved with foreign intelligence; for being involved in the fabrication of the e-mails that purport to implicate senior government and ANC officials in a plot to side-line and incriminate embattled former deputy president Jacob Zuma; for being highly involved in party political squabbles by colluding with politicians in the divisive succession battle that, at the time, was polarising the ruling party between Mbeki and Zuma camps; and for acting unlawfully in bugging and intercepting individuals’ communications for the same purpose, which could have contributed to the fabrication of the e-mails.

Later it transpired that the intelligence services were bugging the phones of various former and current law enforcement agents, including Bulelani Ngcuka and Leonard McCarthy (we were told this was done legally but no hard proof was ever provided for this claim), which tapes were then mysteriously leaked to the current President and his lawyers and was then used to justify the politically inspired dropping of criminal charges against the President.

Around the same time the Review Commission on Intelligence, chaired by former Deputy Minister Joe Matthews, found that intelligence services regularly infringed on the right to privacy through intrusive methods that are unconstitutional. For example, it found that the NCC, which intercepts electronic signals such as cell phone conversations, is engaged in eavesdropping that is unconstitutional and unlawful. This is because the centre fails to comply with the requirements of the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002, which prohibits the interception of communication without judicial authorisation.

More recently news reports suggested that several high profile appointees in the intelligence services have resigned after clashes with the Minister of State Security, allegedly in part sparked by disagreements with the Minister about the unlawful misuse of the intelligence services to spy on political opponents of the ruling Jacob Zuma-factions within the governing ANC.

In the intelligence world, a world filled with subterfuge, lies and counter-lies, misinformation and secrets, it is never easy to know which side is talking the truth. But surely all these stories do create a picture of a highly politicised set of South African spy agencies who have, for the past several years, been involved in illegal activity – some of it relating to succession battles inside the ANC.

It is not as if they have not had access to lots of scandalous or suspicious facts (not fabrications) about the political opponents they were targeting for being on the “wrong” side of the ANC factional battles. Zuma was bribed by Schabir Shaik, there were some very ambitious and greedy people who were not happy with Mbeki’s leadership of the ANC, Zuma did have sex with the daughter of an old struggle friend and for undisclosed reasons he did visit Angola and Libya when his legal and political troubles started, former NPA boss Bulelani Ngcuka did chat to the head of the Scorpions about the timing of laying corruption charges against Zuma.

But the fact that the intelligence services were involved in collecting and then, in some cases, leaking this information must surely have had everything to do with them taking sides in the succession battles inside the ANC and absolutely nothing to do with protecting the security of the state.

These facts came back to me when I read the front page story in the Sunday Times yesterday, which reported that Deputy President Kgalema Motlanthe’s partner, Gugu Mtshali, has been implicated in soliciting a R104-million “bribe” to obtain government support for a South African company trying to clinch a R2-billion sanctions-busting deal with Iran. My interest was further piqued by the revelation in the story that the Sunday Times had access to recordings of confidential discussions when the “bribe” was solicited as well as of confidential documents (which was “understood to have also been obtained and analysed by US intelligence agencies”).

Who made these recordings? On whose instructions were they made? Were South African intelligence operates involved? How did the US intelligence obtain the material (or was this a red-herring provided by those who leaked the story)? Why has this information been leaked now, so soon after President Zuma has managed to dispense with his other opponent, Julius Malema? Is it a co-incidence that Kgalema Motlanthe is seen by many is the most credible opponent to face President Jacob Zuma at the party’s election later this year at Mangaung?

Of course if the intelligence services were in any way involved in a smear campaign against the Deputy President (and as always, smear campaigns work best when there is real dirt to smear somebody with), it would suggest that they are firmly in the Zuma camp and that they are prepared to abuse their power to secure another term for their “boss”.

If the Secrecy Bill had been in place it would have been impossible ever to find out whether the intelligence services were involved in this or not. This is because the Bill would prohibit anyone from leaking any information about their involvement (unless that person wanted to spend between 10 and 25 years in jail) in such a case. It would literally pull a veil of secrecy over the work done by the intelligence services and would make it impossible to know or reveal whether they are involved in anti-democratic smear campaigns against the political opponent of the President (or whomever is in control of the intelligence services).

It might be that this information came out now because one of the parties involved in the “bribe” is unhappy because the deal eventually fell flat. But attempting to bribe somebody is already a criminal offense, so it would be very stupid for such a person to leak information to a newspaper about his own criminal activity – unless he is pretty sure that he will be protected, either because he was involved as an agent of the intelligence service from the start as part of a sting operation, or because he knows that the various security services will protect him because this was cleared out with somebody high up in the Zuma camp.

Which just goes to show: there might well be good reasons (apart from taking a principled stand) why Kgalema Motlanthe and other leaders of the ANC are reportedly opposed to aspects of the Secrecy Bill. They might well be worried that when this Bill is passed, the dirty tricks by the intelligence services against anyone who opposes the dominant clique inside the party will be stepped up and that it will become impossible ever to reveal such dirty tricks without facing a very long prison sentence.

And once the out of control intelligence services are protected by the Secrecy Bill, one will only be able freely to take bribes and be corrupt without fear of prosecution or exposure, if one remained a loyal supporter of the political leader who happens to be in charge of the intelligence services. And what a nuisance that would be.

Posted in: ANC, corruption, Freedom of expression, Jacob Zuma, NPA, Thabo Mbeki.

Another blow to the credibility of the JSC?

Mar 9th, 2012
by Pierre De Vos.
99 comments

At first blush it may appear as if South Africa’s judges and senior constitutional lawyers have all been struck by a remarkable bout of humility and lack of ambition – not traits your average lawyer or judge is usually suspected of. Why else would no credible candidate (except Labour Appeals Court judge Ray Zondo) allow him or herself to be nominated for a job on South Africa’s Constitutional Court?

The Judicial Service Commission (JSC) announced yesterday that no one was shortlisted for the vacant position on the Constitutional Court because there were not a sufficient number of suitable candidates to shortlist for this job (despite an extension of the deadline for nomination to the highest court).

Apparently not even Justice Mandisa Maya of the Supreme Court of Appeal (who is currently acting on the Constitutional Court) put her name forward for nomination to the highest court. Neither did any of the other female candidates who might plausible stand a chance of being appointed to the Constitutional Court.

This might seem curious, as currently only two of the eleven serving judges on the Constitutional Court are female. If one were to take seriously the claim by the government and some members of the JSC that they were committed to apply section 174(2) of the Constitution when they considered judges for appointment – a section that states that “[t]he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed” – then one would have thought that the JSC would clamour to  recommend a number of credible and competent female judges for appointment and that the President would appoint a woman judge to the vacant position.

Section 174(4) prescribes the procedure for the appointment of ordinary judges to the Constitutional Court (that is, Constitutional Court judges other than the Chief Justice and the Deputy Chief Justice):

The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance with the following procedure:

  1. The Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President.
  2. The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made.
  3. The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list.

This means that when there is  one vacancy on the Court (as is presently the case), the JSC must select four appointable candidates and must submit this list of four names to the President who can then select one of the four names nominated by the JSC after the requisite consultation with the Chief Justice (and opposition parties). One assumes that the JSC decided that there were not four appointable nominees and the process was thus aborted. The reluctance of suitably qualified women judges or academics to put their names forward during this round could be explained in several ways.

First, it might be that all the strongest women candidates currently believe that the JSC and the President are not serious about gender transformation of the bench. If this were to be so, the question would arise as to why this perception could have taken hold. Some might argue that the appointment of a Chief Justice (whose previous judgments exhibited a rather lenient approach to sexual violence against women) might have helped to create this perception. The perception could also have been fostered by the previous round of appointments when only one of the four candidates appointed to the Constitutional Court was a woman, despite the fact that several strong female candidates were in the running for appointment.

Second, a perception might have been created that the Chief Justice and the majority of members of the JSC had already decided who it wanted to appoint to the Constitutional Court this time around and that any process in which candidates were interviewed would be little more than a sham aimed at providing some credibility to a formal exercise whose outcome was predetermined. (I have no credible information indicating that such a perception had been created or if it had been created, how it might have arisen and who the preferred candidate might be.)

Third, the fact that so few candidates were prepared to put their names forward for appointment to the Constitutional Court may well be based on a lack of trust in the JSC and the process it follows to decide who to nominate for appointment. Given the way in which it has conducted itself in the past, this body is perhaps suffering from a serious lack of credibility. The sycophantic behaviour of some members of the JSC during the interview conducted last year with the only “nominee” for the post of Chief Justice, might have helped to create this distrust in the ability or willingness of members of the JSC to conduct real and helpful interviews with candidates.

Moreover, the persistent failure by almost all JSC members to engage nominees on their judicial philosophy and their attitudes to the substantive legal issues, may have disheartened most credible candidates who may have felt that their intellectual abilities, their progressive judicial philosophy and their compassion will not be noticed because of a lack of substantive probing questioning put to them and, if it were to be noticed, would play no role in the decision on who to nominate or appoint.

Why do JSC members seldom ask a nominee about his or her views about the role of the courts in transforming the common law by applying section 39(2) of the Constitution to interpret and develop the common law in order to bring it in line with the spirit, purport and objects of the Bill of Rights? Such questioning would provide the JSC with telling information about the transformation credentials of the candidate. Why do members of the JSC almost never ask a candidate about his or her views on “reasonableness review” in social and economic rights cases and whether this standard of review was appropriate? Why are candidates almost never asked how they view hate speech and its limits?

Why are candidates not confronted with questions about the nature of our democracy established by our Constitution? It would be helpful to know whether a candidate is a strong supporter of the view that our Constitution requires a form of participatory democracy and that it requires judges to act decisively to protect and advance the rights of citizens to enable them to participate in our democracy. It would also, surely, be helpful, to know whether a candidate slavishly supports a narrow notion of representative democracy and envisages a limited role for courts in safeguarding the democratic rights of citizens.

Surely both the Chief Justice and the other members of the JSC need to do serious introspection about the process through which Constitutional Court judges are nominated and appointed to the Constitutional Court? Surely one can find a way to balance the requirement to appoint an intellectually curious, highly intelligent, technically competent and principled judge on the one hand, with the requirement to appoint a compassionate, progressive judge imbued with the transformative values of the Constitution on the other?

But to do that, one will have to be prepared to appoint judges that are capable and willing to engage in robust intellectual debates with the members of the JSC and incumbent members of the Constitutional Court (after appointment) and will interpret and apply the Constitution with integrity and in a fearless manner. The question inevitably arise whether the JSC is prepared to nominate and the President is prepared to appoint such judges, or whether they would rather appoint an altogether more timid, conservative and intellectually pliant crop of judges.

Posted in: ANC, Constitutional Court, democracy, Jacob Zuma, JSC, Judiciary.

Thoughts on scapegoating and endemic corruption

Mar 7th, 2012
by Pierre De Vos.
70 comments

I am currently reading Michela Wrong’s brilliant but depressing, It’s Our Turn To Eat, the story of John Githongo, the Kenyan whistle-blower who took on the government of President Mwai Kibaki, whose members were turning out to be just as deeply mired in corruption as the outgoing government of former President Daniel arap Moi. The book shows what happens if the ruling political class of a country becomes enmeshed in endemic corruption and how difficult it is to turn back the tide of corruption once it has engulfed the ruling party and its leaders.

The members of the elite are usually bribed by members of local big business or by foreign businessmen and women, out to make a fast buck at the expense of the poor. The corrupt political elites make obscene amounts of money while the business elites rake in huge profits by providing shoddy products and services (from houses, to building leases, to medical supplies, to computer equipment) at hugely inflated prices – all because they had paid the requisite bribes to the ruling party or the relevant leaders of that party.

The voters (and especially the poorest voters who have no political connections and who rely on the government to provide it with basic services and opportunities to enhance their life chances) end up suffering while their leaders flaunt their money by buying Rolex watches, expensive cars and gaudy three story faux Tuscan Villas that resemble badly made children’s birthday cakes. (In one poignant scene Githongo relates how it took just three months before the newly installed Kibaki was spotted with a brand new Rolex watch, a sure sign that corruption has set in, according to him.)

It becomes almost impossible to stop this tide of corruption because of an absence of truly independent institutions with the requisite power to investigate and prosecute corruption at every level. If corruption goes right to the top, and if those at the top know that they are protected from criminal investigation or prosecution because they control the police, the intelligence services (who can be relied upon to launch smear campaigns against anyone who asks too many questions or can intimidate and blackmail those who wish to fight corruption) then there is no way that corruption will be stopped. When one is safe in the knowledge that loyal lieutenants are in charge of the police, the intelligence services and any other corruption busting unit, then one can “eat” at one’s hearts content.

Of course, all the “eating” leads to discontent from voters, so a governing party, deeply mired in corruption, will then have to find scapegoats to blame for its shoddy performance and for the lack of service delivery brought about by their corrupt “eating” of state resources. One can blame the last remaining members of the former colonial elite who might be quite rich and might easily be painted as the original perpetrators of the injustices still suffered by the impoverished and unconnected citizens (especially if those colonial types have shown no remorse for their involvement in past injustice and no readiness to help build a new society, instead whining and moaning from the side-lines with a metaphoric white bread clutched under each arm).

One may also blame the Constitution or the judges who interpret and apply the Constitution and argue that these untransformed judges and a Constitution imposed by the colonists are to blame for the slow pace of change. One can blame the opposition party who, instead of loyally trying to help solve problems, moan and complain in a most disgracefully disloyal and unpatriotic manner. Or one can try to redirect the anger of voters to unpopular groups in society: gays and lesbians; foreigners from elsewhere on the continent, Jews or Indians.

It is in this context that the abolition of the Scorpions, its replacement by The Hawks and the eventual decision by a majority of judges of the Constitutional Court declaring invalid the creation of The Hawks must be seen. Although the majority judgment is probably not the best argued judgment ever delivered by the Constitutional Court, it does attempt to grapple with the problem of how to fight corruption in a country where loyalty to the ANC might well mute most attempts by crime fighting bosses to engage in a fearless fight against corruption – even if the corruption leads to the highest level.

The Constitutional Court reminded us that only an independent body – one that is viewed as independent and is indeed independent – would stand a chance of fighting corruption.

Thus the majority judgment stated that the Constitution‘s requirement that a politician must be responsible for policing does not require that the anti-corruption unit must itself function under political oversight. This did not mean that such a body had to be insulated from political accountability. But it did mean that such a body had to be insulated from “a degree of management by political actors that threatens imminently to stifle the independent functioning and operations of the unit”.

But for the majority the gravest problem with the Hawks arises from the fact that the new entity‘s activities must be coordinated by Cabinet. The statute provides that a Ministerial Committee, which must include at least the Ministers for Police, Finance, Home Affairs, Intelligence and Justice may determine policy guidelines in respect of the functioning of the Hawks as well as for the selection of national priority offences. The Hawks is therefore not explicitly a corruption fighting unit. It is a unit that fights “priority crimes” and the politicians could decide what these “priority crimes” should be. This creates a risk of political and executive influence over the Hawks. As the majority pointed out:

It is true that the policy guidelines the Ministerial Committee may issue could be broad and thus harmless. But they might not be broad and harmless. Nothing in the statute requires that they be. Indeed, the power of the Ministerial Committee to determine guidelines appears to be untrammelled. The guidelines could, thus, specify categories of offences that it is not appropriate for the DPCI [the Hawks] to investigate — or, conceivably, categories of political office-bearers whom the DPCI is prohibited from investigating.

It therefore came as a surprise to read that the proposed amendments to the South African Police Service Act purporting to give effect to the Glenister case does not remove the power of the politicians over the “new” body. Instead, it seems to grant more power to the Minister of Police (and more worrying, to the Intelligence Services) to Appoint and fire the head of the “new” unit.

In terms of this draft law the Minister appoints the head of the Directorate, who can investigate corruption but “subject to policy guidelines issued by the Minister and approved by Parliament” This means that the politicians will in effect control the kind of cases that the new unit will be able to investigate.

The Minister may suspend and ultimately fire the Director on the basis of relatively objective criteria such as misconduct, ill-health and him no longer being a fit and proper person, but also for a completely vague reason that he or she can no longer fulfil the duties of the office efficiently. Incidentally this section is headed “loss of confidence in the Head of the Directorate” which gives the game away: if the Minister no longer has confidence that the Director will investigate the “right” types of corruption and not the “wrong” types of corruption, he will be done for.

The Intelligence Service is also given powers to grant or withdraw security clearance to anyone working at this “independent” body. If clearance is withdrawn that person will no longer be able tow ork for the independent corruption fighting body. This means that the politician who controls the intelligence services (in our case this will be the President) will be able to make sure that no investigator in this “independent” unit will make too much trouble for those who are too well-connected or too close to the President himself.

The members of the “new” “independent” Directorate also remain members of the South African Police Service with all the duties of a normal Police officer.

After a first look, these proposals do not seem to come near to meeting the requirements for an independent corruption fighting unit as set out by the majority in the Glenister case. Of course, the truth of the matter is that if the corruption goes right to the top and if the intelligence services are in on the “eating” then it will probably make very little difference what “independent” corruption fighting body is created as it will not be able to fight the endemic corruption engulfing the governing party and the state.

The sad fact is that we will know that we are at that point when the scapegoating of the Constitution or other easy targets like foreigners or gays and lesbians by the ruling party reaches such a crescendo that it cannot but be an excuse to hide behind to evade responsibility for its corrupt governance. I leave it up to readers of this Blog to decide for themselves whether we have reached or are about to reach that point in South Africa.

Posted in: ANC, corruption, democracy, Governance, Scorpions.

A re-think on the Provinces?

Mar 6th, 2012
by Pierre De Vos.
19 comments

The various ANC discussion documents released by the ANC regarding the so called “second transition” makes for interesting reading. As the dominant party in our democracy, one that styles itself as a movement that represents the hopes and dreams of the nation (rather than as a normal political party) and as the driver of social change, the ANC’s discussion documents grapple with what it sees as the challenge of strengthening the party’s hold on state power, and to transform the state machinery to serve the cause of social change.

To this end, the proposals for changes to the provincial (as well as local) government is of particular interest. The ANC document recognises that at present the provincial and local government does not function as effectively as it should to provide services to the people. It rejects proposal for the abolition of Provinces, something that is in any case not politically feasible because of the vested interests of those forces in the ANC who have access to power (and the financial perks that come with it) at Provincial level and would not want to lose their influence, power and access to tenders.

Instead the document argues that the “problems emanating from the existence of Provinces are not structural but are more functional and to do with powers… Provinces must be strengthened to play a much more supportive role to local government in service delivery. Thus the powers and functions of provincial government must be re-focused and aligned to complement service delivery at local government.” This seems correct, as the Provinces at present fails to fulfil its task because they are neither full-blown policy developers and implementers, nor mere mechanisms for the implementation of national government policies.

Provinces are seen as important in enhancing the system of both representative and participatory democracy in our system of government. However, this does not mean that the Constitution might not have to be changed. To this end the following important proposals are put on the table for discussion:

The ANC government must reform, rationalize and strengthen provinces. This must ensure the following;

  • That we have fewer provinces which are functional, effective, economically sustainable, integrate communities on non-racial basis and do away with ethnic boundaries.
  • That the powers and functions of the provincial sphere of government be strengthened to ensure more functionality, economic viability and racial/ethnic integration.
  • The role of provincial legislatures be refocused, and mechanism to strengthen legislatures be developed.
  • Consideration of municipal representation in legislatures to strengthen participatory democracy and representation.
  • The roles and responsibilities of provinces to be legislated so as to remove any uncertainty and disputes. This is especially necessary since the district level of government is to be reviewed.

It is difficult not to read these proposals, with its emphasis on the need for the integration of racial and ethnic communities, as being partly aimed at the Western Cape, where the DA is in power and where Africans do not form a majority of the electorate. The ANC document seems to recognise the potentially controversial nature of any rationalisation of the Provinces – especially if it will involve the Western Cape – and as such the discussion document contains assurances that the “process to reform, rationalise and strengthen provinces” will be “open, democratic and ensure broader consultation and participation by the public”. The document then continues:

The ANC must give serious consideration to constitutional requirements to carry out the above, in case there is a need for fundamental changes to provinces. The envisaged policy changes might require constitutional amendments. The key political parties must be sufficiently consulted and be allowed a space to play a role in shaping the provincial reforms.

These sensitivities may also relate to the fact that any changes to the Constitution to rationalise the Provinces will not be easily achieved. Section 74(3) of the Constitution states that most provisions in the Constitution may be amended by a Bill passed by the National Assembly, with a supporting vote of at least two thirds of its members; and also by the National Council of Provinces, with a supporting vote of at least six provinces, if the amendment relates to a matter that affects the National Council of Provinces; alters provincial boundaries, powers, functions or institutions; or amends a provision that deals specifically with a provincial matter.

More importantly, section 74(8) states that any amendment that relates to a matter that affects the NCOP; alters provincial boundaries, powers, functions or institutions; or amends a provision that deals specifically with a provincial matter, but “concerns only a specific province or provinces”, can only be passed by the National Council of Provinces if the amendment “has been approved by the legislature or legislatures of the province or provinces concerned”.

This means that any amendment to the boundaries of the Western Cape Province will have to be approved by the Western Cape legislature, something that seems unlikely as long as the DA controls the Western Cape legislature. If such amendments are indeed envisaged, there are two ways around this problem.

The first would be for the ANC to win the next Provincial election in the Western Cape, something that seems unlikely in the near future. The DA has the power of incumbency that works in its favour and it will use that power (and the resources that it controls because of this) to good effect to ensure its dominance in the Province in the near future. Moreover, the ANC in the Western Cape is internally weak and has not yet recovered from the destructive internal battles which raged during the tenure of former Premier Ebrahim Rasool, leaving the party in a relatively weak position.

The second would be to try and amend section 74(8) of the Constitution itself in order to scrap the provision that would require the support of the Provincial legislature for any changes in Provincial boundaries. As section 74(8) itself does not contain a super entrenchment provision regarding its own amendment and thus does not prohibit an amendment of section 74(8) except with the approval of all the Provincial legislatures, this would be possible as long as the governing party could obtain a two-thirds majority in the National Assembly, something that might be achievable through co-option of smaller parties in the National Assembly (or through achievement of a two-thirds majority in the next national election).

Amending the boundaries of the Western Cape would make a lot of political sense for the ANC. Political scientists who write about one party dominant democracies have argued — often pointing to the loss of electoral dominance by the Indian Congress Party after it started losing elections in various states — that one way in which a dominant party often loses its electoral dominance is when other parties start winning regional elections. When this happens, the smaller parties (in this case it would be the DA) will suddenly gain an independent governance base and access to power and resources at a regional level. Ambitious politicians will then no longer have to join or remain in the dominant party to become part of government while the smaller parties can theoretically demonstrate that it is capable of governing just as well or much better than the dominant party.

The smaller party who wins a regional election will also gain access to state resources at regional level and will suddenly become an attractive partner for the business elite and other role players who would want to gain that party’s favour to get access to tenders and other economic opportunities. This will weaken the absolute dominance of the party that governs nationally and will open up opportunities for further regional gains for smaller parties in other regions (or in our case, Provinces).

Whether the DA is well placed to use its electoral dominance in the Western Cape in this way is an open question. Unless it can transform itself in quite fundamental ways the electorate in other Provinces might not flock to it under any circumstances. But as long as the DA controls the Western Cape, it poses at least a potential threat to the continued national electoral dominance of the ANC, so it would make sense for the ANC to neutralise this threat by changing the boundaries of the Western Cape to rob the DA of its majority.

Such a shameless power play by the ANC (if it were to happen) will, however, not be without its dangers. Where the dominant party acts in ways that robs it of its legitimacy in the eyes of the voters — for example, by demonstrating what appears to be a shameless hunger to cling to power at any cost — this may drive its traditional voters into the arms of the opposition as these voters may value their democracy (and their sense of having a real right to choose their leaders) just as much (or more) than they value their emotional bond with the dominant party. It may also lead to a re-alignment of the political landscape as disillusioned democrats within the dominant party may reject such a naked power grab and may then break from the dominant party.

No wonder the ANC is treading carefully and is suggesting that key political parties (which one assumes would include the DA) should be allowed a space to play its role in the re-shaping of provinces. If it is indeed its intention to rob the DA of its governance role in the Western Cape (something that is not explicitly stated in the discussion document), it may well lose credibility and legitimacy among some of its core voters — especially if it changes section 74(8) of the Constitution.

Posted in: ANC, DA, democracy, Governance.

Another brilliant idea by our political youngsters

Mar 2nd, 2012
by Pierre De Vos.
123 comments

Criticism of members of the judiciary and the supposed “undemocratic” nature of our constitutional system with its supreme Constitution, enforced by an independent and impartial judiciary, is intensifying.

This is not surprising.

In a one-party dominant democracy in which access to state power also potentially provides undeserved access to immense financial wealth, acquired legally or illegally through the tender process or through high-end government jobs (with its accompanying perks), independent institutions (especially powerful independent institutions staffed by people of integrity) can easily be seen as a mortal threat to the acquisitive ambitions of the looting classes.

In order to maintain their political dominance and in order not to lose all legitimacy in the eyes of ordinary citizens, the looting classes need to draw a veil over their venal actions, by uttering platitudes about their abiding concern for the poor (on whose behalf they so enthusiastically sip champagne) and by expressing concerns about the slow pace of transformation and the “undemocratic” nature of those independent institutions that stand between them and the enjoyment of immense wealth and, perhaps as an afterthought, political power.

After all, no one wishes to spend 15 years in jail (or, in a best case scenario, a few years in a prison hospital), so it is imperative that the “right” person heads the National Prosecuting Authority and the “right” person heads the office of the Public Protector in order to immunise the looters from criminal prosecution for corruption. And of course, it can turn into a terrible bother when cheeky judges declare invalid an Act of Parliament or an appointment of the President, especially when these judgements threaten to destroy the carefully crafted legal mechanisms and structures put in place to protect the political leadership and those who are close enough to the leadership to benefit financially from an emerging kleptocratic state.

It is therefore tempting to dismiss all the talk of a review of the powers of the courts and the expressed yearning for a return to a system of parliamentary sovereignty in which Parliament would be able to make any law – no matter how drastic it infringes on the rights of ordinary voters and no matter how much unbridled power it grants to any of the politicians who “serve” in the Executive – as nothing more than the self-serving attempt at grabbing and consolidating unchecked power.

But this would be wrong. Given South Africa’s apartheid history in which the vast majority of citizens were disenfranchised and given the general distrust in legal processes and in members of the judiciary amongst many voters, arguments about the essential undemocratic nature of judicial review may well have some traction amongst ordinary voters who may not realise that the judiciary – for better or for worse – can (at the moment, at least) probably be trusted far more than can the politicians for whom we vote out of a sense of nostalgia for a better time (that might never have been) and out of a fear of a return to white domination and oppression.

So when the Young Communist League issues a statement demanding that judges become accountable to “the people”, one may take it slightly more seriously than one would normally have done.  The statement makes for fun reading, so I quote a sizable part of it here:

We have recently called for the transformation of the judiciary as part of our National Lekgotla resolutions and have stated strongly that our judges are not perfect and that since they are human; they are bound to err, to be biased and influenced by various social and political ambiances… [W]e have found it to be our revolutionary duty to highlight that the members of the judiciary must in exercising their duty understand and respect the political authority of the legislature and the executive; as the powers vested in them are mandated and legitimised by members of society through a democratic process enshrined in our constitution.

We have called for a judiciary system that is accountable to the people and that we will campaign for amendments in the Constitution for the judiciary to be subjected to popular and democratic elections. If the judiciary, like the other branches of government serves the public, then the public must determine who should serve in such offices at all levels of the judiciary.

There are judgements that necessitate that the judiciary be transformed as they leave much to taste relating to transformation of our state and society; it cannot be normal that the courts serve as stumbling blocks of transformation and hide under the protection of the media. The judiciary is not immune from public scrutiny and its independence should never be elevated above the other branches
of government which are democratically elected by the people and are accountable to the people.

Unfortunately the young comrades did not provide any examples of specific judgments of, say, the Constitutional Court, which might have left “much to taste” and which might have acted as a stumbling block to transformation (however defined). Perhaps it has in mind the Mazibuko judgment (which I had previously criticised) where the Constitutional Court endorsed the “pay-as-you-go” water policies of the City of Johannesburg – despite the fact that section 27(1)(b) of the Constitution guarantees for everyone the right of access to water.

But that policy was implemented, as I said, by the democratically elected City Council of Johannesburg (run by the ANC, who is in alliance with the Communist Party) in line with the water policies of the democratically elected national government (a government in which Communist Party serves and whose perks – including long stays in the Mount Nelson and revolutionary free travel to Cuba – its leader seems to enjoy rather a lot). It is therefore unclear how the election of judges would make such judgments more “transformed”. The case nicely illustrates that the problem is not the judges at all, but rather the neo-liberal policies of the very government in which the Communists continue to serve and continue to benefit from.

The problem is that the voters have actually elected this government who has implemented these anti-transformation policies. One can never trust the bloody voters to do the right thing, ne? What is needed, so it seems, is to take a leaf out of the book of Berthold Brecht, and demand that the electorate be replaced. In his poem, The Solution, Brecht mocked an unnamed Communist regime’s pretensions to being democratic in the following manner: “After the uprising of the 17th June/ The Secretary of the Writers Union/ Had leaflets distributed in the Stalinallee/ Stating that the people/ Had forfeited the confidence of the government/ And could win it back only/ By redoubled efforts./ Would it not be easier/ In that case for the government/ To dissolve the people/ And elect another?”

Perhaps the young comrades also did not realise that in a constitutional state (in which the judiciary is required to interpret and enforce the Constitution and thus to check the power of the other branches of government to ensure that those branches do not abuse their power or infringe on the rights of citizens), elected judges would be superfluous. Why have another elected branch of government if that branch is going to do no more than confirm the policies (like the neo-liberal policies around the pay-as-you-go supply of water) devised by the other elected branches of the state.

But, to be fair, at first glance I did not realise how brilliant this plan might turn out to be. As the young comrades pointed out, the problem with judges is that “they are bound to err, to be biased and influenced by various social and political ambiances”.

Goodness, I for one would not want to have any case about the constitutionality of an act by the President heard by judges influenced by various social and political “ambiances”. That is why the election of judges might turn out to be a brilliant idea. After all, at present the other branches of government are staffed by elected officials and we all know that they never err, that they are never biased and that they would never think of being influenced by social or political “ambiences”. No one who has ever attended a debate in the National Assembly would be able to deny that these elected representatives are always impeccable objective and diligent and that their decisions are always correct and never influenced by the wrong kind of “ambiences”.

Who would not want to take their chances in court with an elected judge – as long as that elected judge demonstrates the high degree of objectivity, and the unfailing ability always to make the correct decision, for which our members of Parliament are so well known (give or take a hundred or so Travelgate crooks).

I only have one question: how are we going to protect these elected judges from exposure to social and political “ambiances”? Oh, of course, we only need to lock them up where they can be kept safe from the corrupting influences of the Sowetan and the Mail & Guardian and ETV News to keep them safe from such dangerous influences. Then we can wheel them out whenever a show trial, I mean a constitutional decision, demands it. That will leave plenty of time for the well-connected to loot the state and to spend their money on worthwhile projects – like champagne drinking appreciation classes, visits to drug mule girlfriends in foreign prisons and attending revolutionary parties organised by Kenny Kunene or the intellectual heirs of Brett Kebble.

PS: Apologies for the frivolous nature of this post. I just could not resist it.

Posted in: ANC, Constitutional Court, corruption, Criticism of Courts, democracy, Judiciary, Transformation.

Mixed signals on the review of our courts

Feb 29th, 2012
by Pierre De Vos.
105 comments

The government yesterday sent mixed signals about its previously announced intention to “review” the decisions of the Constitutional Court when it released a “discussion document” which (laudably) affirmed its respect for the independence of the judiciary and the notion of the separation of powers, but (worryingly) seemed to question the wisdom of retaining a distinctly adversarial system of judicial review.

This antagonism towards an adversarial kind of judicial review seems to be focused primarily on cases where the courts were not enforcing social and economic rights and where the judicial review of government action would signal a failure on the part of the judiciary to “co-operate” with the other arms of government in pursuit of (unnamed) constitutional values or goals.

Speaking at a media briefing yesterday, Minister of Justice Jeff Radebe announced the release of a discussion document on the transformation of the judicial system and the role of the judiciary in a developmental state (Pdf document) to frame a “national dialogue” on this programme of “further transformation”. These documents are conceptually incoherent and its authors seem to be confused, as it tries to marry a consensual model of separation of powers with a model that retains (some form of) judicial review for an independent judiciary. One cannot have both a consensual model of separation of powers and an independent judiciary that acts as a true check on the exercise of power by the other branches of government. Suggesting that one can, is at best misinformed and at worst misleading.

This conceptual confusion probably flows from the fact that the government of the day is retreating slightly from its position taken in November last year about the need for a serious review of Constitutional Court decisions. This retreat might have been caused by the public outcry about the perceived intention of the government to interfere with the powers of the courts to review and set aside acts by the other branches of government.

It might also be animated by the sinking realisation that both the proposed review of the Constitutional Court and any possible amendments to its powers will be impossible to implement. After all, who will actually be able to peruse all the documents before the Constitutional Court in every single case ever heard by that court to make a sensible assessment of its performance? And in the absence of such a wide ranging perusal of all relevant documents, any review of the Court will be nonsensical and meaningless as it will not tell us anything about whether the court fulfilled its mandate (or whether it was, for example, hampered in its task by the tardiness of the lawyers who appeared before it or the dismal quality of the papers before it).

The discussion document talks about a need for “further transformation of the judicial system”, but fails to indicate what such further transformation would be aimed at or how it might look. The review clearly does not relate to the current package of constitutional amendments and laws before Parliament aimed at streamlining the courts and enhancing the powers of the Chief Justice. This is because the Minister stated that the current reforms will be finalised before the review is actually concluded. It is therefore unclear what “further transformation” (over and above the current package of amendments and Bills) is envisaged by the government. However, answering questions at the media briefing yesterday Minister Radebe refused to rule out further amendments to the Constitution, suggesting that the government is keeping its options open and that the outcome of this review will depend on which faction in the cabinet gets the upper hand.

In the discussion document and in the speech delivered by the Minister at the media briefing, the government re-affirmed the longstanding commitment of the ANC towards the respect for human rights. The Minister also stated that the envisaged further transformation of the judiciary is underpinned by the separation of powers and an independent judiciary.

Arguing that the values contained in the Constitution – including that of an independent judiciary and the rule of law (but significantly not including the supremacy of the Constitution and judicial review) – are also the values that the ANC has consistently stood and fought for, the Minister stated that the ANC-led government would defend these values at all cost. The Minister recognised that the judiciary had an important role to play in transforming the state and society and in safeguarding and protecting the Constitution and its values through its “constitutionally entrenched judicial authority”.

However, it is not as clear from the Minister’s speech as it should be that the ANC-led government’s continued commitment to the separation of powers and an independent judiciary includes a continued commitment to the principle of the supremacy of the Constitution and the powers of the courts to review and declare invalid not only those provisions of legislation which are in conflict with the Constitution, but also those actions by the executive which infringe on human rights, are not authorised by law or fail to comply with the requirements of rationality and non-arbitrariness which are inherent in a system based on respect for the Rule of Law.

In fact, it is clear that the government is at best uneasy with the notion of an independent Constitutional Court that acts as a vigorous but necessary check on the other branches of government. It would prefer a court that works with government to achieve a common goal – rather than a court that vigorously and in an “activist” manner checks the powers of the other two branches of government and embarrasses the legislature and especially the executive by sometimes declaring some of their actions unconstitutional and invalid.

Judges, suggested Minister Radebe, must exercise their power of judicial review “with great circumspection”. The three branches of the state, claimed Minister Radebe, “are co-equal partners entrusted with distinct constitutional powers in their quest to realise the ideals of a democratic South Africa”. Whether this would mean that one branch – the judiciary – would retain the necessary power to trump the other branches when those branches failed to act in compliance with the Constitution or ordinary law (and hence would retain the power to declare invalid unconstitutional laws and unlawful and unconstitutional acts by the President and other members of the executive), is not as clear from this statement as it should have been.

To be fair, the discussion document affirms that the modern concept of constitutionalism rests on two main pillars:

First, the existence of certain limitations imposed on the state, particularly in its relations with citizens, based on certain clearly defined sets of core values. Secondly, the existence of a clearly defined mechanism for ensuring that limitations on the government are legally enforceable. In this broad sense, constitutionalism has a certain core, irreducible and possible minimum content of values with a well-defined process and procedural mechanisms to hold government accountable.

As the discussion further notes, there are some debate about the degree to which judges should be empowered to “interfere” with the decisions of the other branches of government:

Striking a balance between policy and law becomes necessary in the current times where courts are increasingly placed in a situation where they have to pronounce on matters of public policy. The interface between the courts’ power of judicial review and the policy terrain that is the purview of the Executive and the Legislature becomes even more delicate in the South African situation where the Constitution enshrines a justiciable Bill of Rights. It is in this context, in particular in the interpretation of the socioeconomic rights in the Bill of Rights, that judicial power should, by necessity, be vested in a mechanism independent of the legislative and executive powers of the government, with adequate guarantees to insulate it from political and other influences.

The government seems to have realised that – as a matter of practical politics and constitutional design – it will not be possible at present to address its unhappiness with the courts who strike this balance differently than the government would have wanted them to, as the government will not be able to reduce the powers of the courts to review and set aside unconstitutional or other unlawful acts by the legislature and the executive.

Instead, there are passages in the document which suggest that the government is hoping that it will be able to water down the independence of the judiciary by creating mechanisms that will help to break down the strict separation between the judiciary on the one hand and the other two branches of government on the other. The conceptual incoherence comes to the fore in these passages which, quite frankly, I find rather frightening. This is because the passages suggests a fundamental lack of understanding and/or respect for the separation of powers and the system of checks and balances in a constitutional democracy. The document thus makes the following extraordinary claim:

The importance of the legislative, executive and judicial branches of the state to cooperate and act interdependently in exercising their distinctive constitutional obligations for the common good of the country cannot be over-emphasised. Government must function as an integrated, singular unit in pursuit of the vision set out in the Constitution. Formidable state machinery, acting in unison, is a requisite to overcome the colonial and apartheid legacy of inequality, and the deprivation of the majority of our people. The principle of separation of powers envisages a system of mutual co-existence and interdependence by all three branches of the state.

Of course, if the three branches were to act in complete unison as an integrated singular unit “for the common good” (a common good defined by those politicians who happen to be in power), it would be difficult to see how one branch of that government would consistently declare invalid the acts of the other branches of the government with which it works in unison. At best the branches will debate the constitutional issues at stake beforehand and the two political branches will alter course to ensure compliance with the Constitution. At worst the two political branches will be able to prevail politically on the judiciary to re-interpret the provisions of the Constitution to give the legislature and executive more leeway to do as they please.

This vision of the three branches all working as an integrated whole towards a common goal (defined by the political party in government) therefore seems to be at odds with a modern notion of a separation of powers in a constitutional state in which the courts retain the power vigorously to check the power of the other two branches of government. The document quotes from a chapter in a Canadian Law Commission Report entitled “Interdependence not independence: Institutional and administrative dimensions of judicial independence”, written by Richard Simeon to support its view. Simeon argues for the need for interdependence and the collegiality of effort for the effective coordination and consolidation of programmes of the state towards a common vision. With reference to the American Constitution (but not in line with the South African jurisprudence) Simeon makes the claim that no clear lines can be drawn between the branches of government:

The doctrine of separation of powers is often invoked to justify the institutional independence of the Judiciary. But sometimes forgotten is the other core of the principle of the US Constitution, checks and balances. The American constitutional design does not envision the three branches as existing in splendid isolation from each other. Rather, tyranny is avoided by having each branch check and balance each other – in other words to be interdependent. The relationship among them is indeed ‘indelibly political’. A blend, as a US judge puts it, of ‘separateness, but interdependence, autonomy, but reciprocity’. At any time there is a dialogue, or negotiation with the other branches about… budget, jurisdiction, size, procedures, and administration.

What the document fails to say is that the chapter from which it quotes was written by a political scientists (and not a judge or a lawyer) and that the author introduced his remarks by saying that he was talking as someone concerned with public administration, a person who believed that the constitution was not of much help in any discussion about the relationship between the branches of government. It also does not mention that this view flies in the face of the view taken by the Canadian Supreme Court (which is indeed staffed by real judges, not political scientists) in the Reference re Remuneration of Judges of the Provincial Court (P.E.I.) judgement, a case in which that court made the following statement directly at odds with the views expressed by the discussion document:

under no circumstances is it permissible for the judiciary — not only collectively through representative organizations, but also as individuals — to engage in negotiations over remuneration with the executive or representatives of the legislature. Any such negotiations would be fundamentally at odds with judicial independence. … The prohibition on negotiations therefore does not preclude expressions of concern or representations by chief justices and chief judges, and organizations that represent judges, to governments regarding the adequacy of judicial remuneration….

What is at issue here is the character of the relationships between the legislature and the executive on the one hand, and the judiciary on the other. These relationships should be depoliticized. When I say that those relationships are depoliticized, I do not mean to deny that they are political in the sense that court decisions (both constitutional and non-constitutional) often have political implications, and that the statutes which courts adjudicate upon emerge from the political process. What I mean instead is the legislature and executive cannot, and cannot appear to, exert political pressure on the judiciary, and conversely, that members of the judiciary should exercise reserve in speaking out publicly on issues of general public policy that are or have the potential to come before the courts, that are the subject of political debate, and which do not relate to the proper administration of justice.

In the light of the above the proposal in the document regarding the closer co-operation between branches and the need for the branches to engage with one another in order to co-ordinate its activities so that it can operate as a single unit, is deeply troubling. The following proposal is therefore a non-starter and any judge – including the Chief Justice – who values judicial independence should reject it out of hand. The document namely proposes that one aim of any review would be to facilitate:

the establishment of mechanisms for the three branches of state to engage in regular debates to manage their interface within the context of the separation of powers in pursuit of a common transformative goal that is geared to benefit society at large.

Of course these proposals are not only conceptually incoherent, and in conflict with the understanding given to the separation of powers by judges and lawyers in other modern democracies, they are also doubly problematic in a country like South Africa with a one party dominant democracy in which the legislature and the executive (as well as the institution tasked with appointing judges) are dominated by one political party and where there is little chance that another party will take control of these branches of government or of the JSC in the medium to long term. In a one party dominant democracy, a proposal for the creation of mechanisms to allow for “debates” between the three branches of government, is a proposal to infuse party political concerns into the relationship between the three branches of government.

While the decisions of judges cannot be divorced from politics and while many judicial decisions will have political consequences, the infusion of party politics in the relationship between the legislature and executive on the one hand and the judiciary on the other will render a fatal blow to the principles of respect for the separation of powers and the independence of the judiciary as it will lead to an inevitable exertion of political pressure on the judiciary – as the Canadian Supreme Court warned so clearly.

The question that arises from this discussion document is the following: will the leadership of the judiciary go along with the proposals to infuse party politics into the relationship between the three branches of government or will they resist and fight for their independence and for their constitutionally conferred power to check the other two branches of government?

Posted in: ANC, Constitutional Court, Criticism of Courts, democracy, Governance, Judiciary.

Why so little trust in the judiciary?

Feb 28th, 2012
by Pierre De Vos.
48 comments

In 2006, several years after the disastrous invasion of Iraq by the US military, a survey found that almost 50% of Americans believed that Iraq had weapons of mass destruction when the U.S. invaded that country. This belief was false as no weapons of mass destruction were ever found. In the same year Rick Santorum, who is running neck and neck with Mitt Romney in the nomination for the Republican Party’s Presidential candidate, also claimed that the US had found weapons of mass destruction in Iraq after its invasion of that country.

A poll of South Carolina voters conducted by Winthrop University last year showed that only 24 percent of Republicans and Republican-leaning independents in that state believed President Obama was “definitely” born in the United States. (Obama was born in Hawaii which became part of the US about 60 years ago.) Only one in three of those same voters correctly identified Obama’s religion as Christian. Nearly the same proportion, 29.5 percent, believed that Obama is “Muslim.”

It should therefore come as no surprise that South African’s views on the impartiality of the judiciary and its transformation are, at best, mixed. Like its US counterparts, large numbers of South African voters seem to be ignorant and superstitious. The survey, conducted by TNS, found that only 31% of respondents in metro areas of South Africa believed that the judiciary is impartial and unbiased while 31% felt exactly the opposite. A very large number of respondents – 38% of them, in fact – indicated that they did not know whether the judiciary was impartial and independent, suggesting a large amount of ignorance or at least uncertainty amongst South Africans about the judiciary.

It is perhaps also not surprising that 38% of respondents agreed with the statement that “judges were biased towards the government”, while only 27% disagreed. The “don’t know” response was again very high at 36%. Given the relentless attacks on the judiciary by some members of the ruling party (and, it must be said, given attacks by Helen Zille on the credibility of some judges) and given the fact that the government often loses cases before the courts because of criminally bad legal advice or even worse legal representation, and given the electoral dominance of the ANC, I am surprised that the number of people who believe the courts are biased against the government is not higher.

People who do not follow the finer technical legal points of judgments and never read court judgments – depending on the SABC or on The Voice for its information about the judiciary instead – would be forgiven for equating the many legal defeats of the ANC-led government (or the DA-led Provincial government in the Western Cape) with “bias” on the part of the judiciary. In the absence of reasoned analysis about why a law was declared invalid or why an act by the President, Premiers or cabinet ministers were declared invalid, and without a deep appreciation of the principle of constitutional supremacy, a ruling against any ANC or DA politician or ANC or DA-dominated body could easily be confused with “bias” on the part of judges.

I find it surprising that only 38% of respondents indicated that they believed the judiciary was biased. This means that many supporters of both the ANC and the DA who might be upset that “their” government has lost yet another case nevertheless believe that the judiciary is impartial and independent.

Unfortunately the survey did not distinguish between the Constitutional Court, High Courts and magistrates’ courts. Previous surveys were interesting in this regard as it indicated a much higher level of trust in the Constitutional Court – especially amongst black South Africans – than in other courts in South Africa. It is therefore unclear whether attacks on the Constitutional Court by members of President Zuma’s inner circle and by supporters of Judge President John Hlophe as well as the ugly spat about the appointment of a new seemingly under-qualified Chief Justice have not taken a toll on the credibility of the Constitutional Court.

I would guess that these attacks and controversies might well have taken its toll on the image of our highest court. This is because ordinary members of the public do not study the many pro-poor and pro-transformation judgments of the Constitutional Court and might be unaware of the fact that the Constitutional Court often rules against the powerful and in favour of the socially and economically marginalised. It also does not help that the SABC and other news media do not always report in sufficient depth about these rulings.

For example, a few months ago in the Blue Rout Trading case the Constitutional Court ruled in favour of inner-city residents of Johannesburg who were going to be left homeless after eviction by a private company. This made the City Council of Johannesburg very unhappy but was an unashamed pro-poor and pro-transformation judgment, suggesting that the anti-transformation impulses in this case emanated from the ANC-led Municipality and not from the Constitutional Court.

Interestingly, the issue of transformation yielded a 42% “don’t know” response with 34% of metro adults feeling that there has not been enough transformation in the judiciary and 24% feeling that there has. The question is of course what the respondents understood with the concept of transformation. Did they understand the term to mean a change in the racial (and – as an afterthought – the gender) composition of the judiciary or did they understand the term to mean the appointment of judges infused with progressive values enshrined in the Constitution?

If respondents understood transformation in its first meaning, then their perception was clearly mistaken. All leadership positions in the judiciary are now filled by black judges and only about 40% of judges remain white. Of course, in High Courts and on the Supreme Court of Appeal there are many judges (black and white, male and female) who are deeply conservative, pro-big business and anti-gender equality, so if one has a broader understanding of transformation the respondents to the survey who felt that there was insufficient transformation on the bench might well have a point.

Despite these explanations, it must be worrying that so many South Africans either have no opinion or believe that judges are not impartial and independent. This suggests that any attempts by politicians to interfere with the powers of the judiciary or to interfere with its work will be less unpopular than it should be in a functioning constitutional democracy. Judges have no army or police force and neither do they have the power of the purse. Judges are also not elected and do not have the natural support that leaders of the majority party might have by mere virtue of being leaders of the party.

But without support from the broader public for an independent and impartial judiciary that is free from interference by the other branches of government or from big business interests (like the Oasis company), it is not clear that the judiciary in its present form will survive an onslaught by the tenderpreneurs and their political backers who see the judiciary as a threat to their kleptocratic interests. Both members of the judiciary (with the Chief Justice in the lead) and members of the media therefore need to reflect on how they can better inform the public about the way in which the judiciary operates and how it protects the rights and interests of ordinary citizens – including the social and economically marginalised members of society.

Posted in: ANC, Constitutional Court, Criticism of Courts, democracy, Judiciary.

On corrective measures in the Western Cape

Feb 24th, 2012
by Pierre De Vos.
170 comments

News that the Department of Correctional Services will have to defend its employment equity policy in the Labour Court now that the matter of three aggrieved “coloured” officers has been referred to that court by the CCMA, must be welcomed. It means that our courts once and for all will be able to give guidance on the permissibility of the use of the four apartheid era race categories in affirmative action policies.

The court will also once and for all be able to deal with the “Jimmy Manyi” scenario in which a company (or in this case a government Department) uses national racial demographics in its Employment Equity Plan, even in a province (like the Western Cape or Kwa-Zulu-Natal) where the local racial demographics differ sharply from the national demographics.

The three aggrieved “coloured” officers are objecting to an instruction by the department of Correctional Services that national demographics should be used for Employment Equity targets across the country – including in the Western Cape. According to the Employment Equity targets of the Department, some 79.3% of employees should be “black Africans”, 8.8% “coloureds”, 9.3% “whites” and 2.5% “indians”. People who used to be classified as “coloured” during apartheid make up 54% of the population of the Western Cape.

Three legal issues may arise in this case. First, given the fact that the Employment Equity Act does not state in the text that Employment Equity Plans of employers should or may distinguish between “black African”, “coloured”, “indian” and “white people”, but instead speaks of the advancement of “designated groups” which include “black people”, a term that is defined as being “a generic term which means Africans, Coloureds and Indians”, the question arises whether the regulations promulgated in terms of the Act which requires employers to distinguish between different types of “black” people is legally valid or not.

I would guess (but I might be wrong) that the Constitutional Court will not have a problem with this kind of distinction in the law between different categories of “black” South Africans. Many years ago the Durban Supreme Court in the Motala case found that it was acceptable for the University of Natal to distinguish between “indian” and “african” applicants to that institution’s medical school as these groups – although both “black” – have experienced different levels of discrimination under apartheid and cannot be said at present to enjoy the same social and economic opportunities.

The Constitutional Court has also stated that questions about affirmative action need to be evaluated in the particular social economic and legal context, and that it is a situation sensitive enquiry. The context in which the Employment Equity Act Regulations should be read is one in which the lingering effects of past apartheid distinctions based on “african”, “indian” and “coloured” race categories are still felt in our society. For example, in South Africa those who belong to the group classified as “indian” during apartheid are generally far wealthier than those who used to be classified as “african”.

Second, the question arises whether the Employment Equity Act allows an employer to use national racial demographics when setting employment equity targets – even where local demographics may sharply differ from national racial demographics. At present, section 42 of the Employment Equity Act states that in determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General of Labour must take into account all other factors mentioned in section 42 which includes the “demographic profile of the national and regional economically active population” and the “pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees”.

It must be noted that this section does not seem to impose a direct legal duty on an employer to take into account both national and provincial demographics (or to look at the pool of suitably qualified available employees available in the region) when devising an Employment Equity Plan. This suggests that there is nothing in the Employment Equity Act that prevents the Department of Correctional Services from using national instead of provincial racial demographics when devising and implementing an employment equity plan.

However, the Department of Labour must, inter alia, look at provincial racial demographics when it evaluates the Employment Equity Plan of the Department. This suggests that the Employment Equity Act may perhaps be interpreted to imply that the achievement of “employment equity” in a workplace can only be achieved if the regional and not the national demographics are taken into account. This interpretation is somewhat strained as section 42 requires the Department of Labour to take into account both national and regional racial demographics and it is far from clear whether these provisions could be read to place a legal duty on the Department of Correctional Services to use regional and not national racial demographics in its Employment Equity Plan,

Ultimately, the court will have to decide which interpretation is correct.

One must recall that section 13, read with section 15, of the Employment Equity Act states that what employers are legally required to do is to implement affirmative action measures for people from “designated groups: in order to achieve “employment equity”. “Employment equity” is not defined in the Act but section 15 defines the scope and limits of required affirmative action measures. It states:

(1) Affirmative action measures are measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer.

(2) Affirmative action measures implemented by a designated employer must include: (a) measures to identify and eliminate employment barriers, including unfair discrimination, which adversely affect people from designated groups; (b) measures designed to further diversity in the workplace based on equal dignity and respect of all people; (c) making reasonable accommodation for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented in the workforce of a designated employer; (d) … measures to: (i) ensure the equitable representation of suitably qualified people from designated groups in all occupational categories and levels in the workforce; and (ii) retain and develop people from designated groups and to implement appropriate training measures, including measures in terms of an Act of Parliament providing for skills development.

The section further states that affirmative action measures will “include preferential treatment and numerical goals, but exclude quotas”. It also states that the section does not require “a designated employer to take any decision concerning an employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups”.

I would suspect that these provisions, read holistically, might well be interpreted by a court to mean that the duty on employers to strive towards equitable representation of suitably qualified people from designated groups in the workforce requires them to take into account the regional and not national racial demographics when it formulates its affirmative action targets. As we know, the Department of Correctional Services’ current policy (which uses national racial demographics) in effect places an absolute barrier on the advancement of “coloured” correctional services personnel in the Western Cape – especially given the bloody-minded manner in which it is reportedly being implemented. Under the current plan, if a Western Cape officer working the Department of Correctional Services wishes to be promoted, he or she will almost always have to move to another part of the country.

Although the “coloured” personnel can, of course, apply for jobs elsewhere (where there is not – in the offensive words of Jimmy Manyi – an “oversupply of coloureds”), this requirement would place “coloured” members of the Department of Correctional Services in a very difficult position. If their roots are in the Western Cape, if their families live and work here, and if they speak predominantly Afrikaans, one of the dominant languages in the region, such employees may in effect be forced to choose either never to be promoted or to uproot themselves entirely. This may force many of them out of the service of the Department altogether.

This interpretation of the Employment Equity Act would be in line with the Constitutional Court’s jurisprudence on corrective measures as developed in the Van Heerden case, in which Deputy Chief Justice Moseneke stated that it was not constitutionally permitted to impose corrective measures on a group if those measures constituted “an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal” of achieving equality in a diverse society would be threatened. The Correctional Services Department’s policy may therefore be declared unlawful and not in line with the carefully interpreted provisions of the Employment Equity Act.

If the court found that the Act could not be interpreted in this way, I suspect it would have to declare unconstitutional the provisions in the Act which could be interpreted as allowing an employer to ignore regional racial demographics when it imposed an employment equity plan. This would be because such provisions (interpreted to allow for national demographics to be used exclusively when formulating Employment Equity Plans) would not meet the requirements for a valid corrective measures programme developed in the Van Heerden case.

Whatever happens, unless for strategic reasons the Department settles this matter to avoid a definitive judgment by the Constitutional Court on these vexing issues (something the Department would be well advised to do and which it might still do if good lawyers are advising it), the case will probably go all the way to the highest court, where that court will finally be able to put these highly contentious issues to rest by giving guidance on corrective measures that apply differently to people previously classified as “coloured”, “indian” and “african”.

Posted in: Dignity, discrimination, Race.

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