Constitutional Hill


Simelane: more unanswered questions

Why did Minister Jeff Radebe fail to address what appears to be one of the most egregious acts of dishonesty on the part of Adv Menzi Simelane? In his half-hearted defense of Adv Simelani, Radebe failed to explain why Simelane did not produce a letter, written by then President Thabo Mbeki to the then Minister of Justice regarding the Jackie Selebi case – even after being lawfully requested to do so.

On 22 October 2007 Vusi Pikoli’s lawyers wrote a letter to Adv Menzi Simelani, then Director General in the Department of Justice. The letter stated, inter alia:

May we please have copies of all communications and other documents relating the investigation and prosecution of Mr Selebi  which you or your Department may have sent to or received from the president or anyone in the Presidency at any time since 15 September….

This request seems pretty clear. Any half-way honest person would have understood what it meant. It must be conceded that a careless or overworked person might not have provided all the documents as requested because of an oversight or negligence.

A dishonest person, on the other hand, would have deliberately chosen not to provide all the documents as requested or would have followed instructions from his boss to be dishonest and to lie. Unless something far more sinister is at work here, Adv Simelane’s failure to produce this letter – a failure curiously not addressed by Radebe at all – suggests that he is a man who will deliberately try to mislead legal opponents by hiding information lawfully requested by them in order to protect the President.

During cross examination Simelane first conceded that the letter allegedly written by thenPresident Mbeki falls squarely within the ambit of documents requested. Yet Simelane wrote back after the request mentioned above was received and stated as follows:

We are not in posession of any documents relating to the investigation of the National Commissioner of Police, save for reports prepared by your client [Pikoli].

When first asked by Trengove why the letter was not produced Simelane said:

Well, I wasn’t informed about the letter, I became aware of the letter much later.

But later Simelane conceded that he was aware of the letter, which means his first statement was not truthful. Although he had not read it, Simelane claimed, he knew the President had sent a letter to the Minister. It was this very letter which led to the writing of another letter by Simelane which was later signed by the Minister (ordering Pikoli to stop the arrest of Selebi).  Yet he did not provide Pikoli’s lawyers with the letter as requested. Worse, he stated that there was no such documents in their possession.

When confronted about this, Simelane again changed his story and said that he did not think the letter by the President, requesting more information on the Selebi matter, related in any way to the investigation against Mr Selebi. This is unfortunately not a line of argument that could reasonably be pursued without losing every shred of credibility one might have had as a witness.

Trengove then pounces:

Trengove: You said: we have no such documents in our possession. And I want to know who decided to tell that lie. You or the Minister?

Later Simelane contradicts himself yet again and tells another wopper when he says:

No, we didn’t, we didn’t deny that the letter was there.

This is of course not correct. Simelane had written to Pikoli’s lawyers denying that there were any documents relating to the Selebi investigation in the posession of the Department. Yet the President’s letter – which he admitted he was aware of – dealt directly with the Selebi investigation. With Adv Trengove we should ask: Did Simelane decided to lie of his own accord or was he instructed to lie by the Minister, the President or any legal advisor of the President?

What makes this so curious is that the letter allegedly written by then President Mbeki to the Minister of Justice one day before the Minister of Justice signed a letter drafted by Simelane instructing Pikoli not to proceed with the arrest of Selebi does not contain the smoking gun evidence Pikoli had hoped for. The content of the Ministers letter, which contained the unlawful instruction to Pikoli not to proceed with the arrest of Selebi, seems to go much further than the request contained in Mbeki’s letter, which merely asked for more information on the Selebi case (information, we now know, which the President had already been given by Pikoli).

A conspiracy theory is doing the rounds that Simelane had not produced the letter because it contained an illegal instruction from then President Mbeki to have the arrest of Selebi stopped. According to this theory, another letter was conjured up after the fact when it became clear that it would have had to be produced to the Ginwala inquiry.

I am not sure I buy this. Surely Mbeki and his advisers would not have deliberately concocted fake evidence to escape responsibility for their unlawful actions? A more plausible explanation is that Simelane decided to lie about the existence of the letter because it showed that the suspension of Pikoli was directly related to the pending arrest of Selebi. At the time, President Mbeki had denied that the suspension of Pikoli had anything to do with the impending arrest of Selebi and this letter provided proof that Mbeki’s claim could not be sustained.

To protect the person who had appointed him, Simelane then misled Pikoli and the Inquiry by not producing the letter written by the President – despite being requested to do so and despite having a legal duty to do so.

Minister Radebe failed to explain why this action by Simelane does not warrant disciplinary action against Simelane. This is because there is no plausible explanation for this failure to produce evidence which Simelane had a legal duty to hand over.

This sorry tale provides more proof that Simelane is a man who is so loyal to his political bosses that he would try to hide the existence of evidence that would make his boss look bad. No wonder he was purportedly appointed by President Jacob Zuma as National Director of Public Prosecutions. With such a guy heading the NPA, President Zuma clearly has nothing to worry about on the legal front – even if the decision to drop charges against him is declared invalid.

What would Simelane NOT do to protect the President from prosecution?

Menzi Simelani, the alleged Advocate which President Jacob Zuma has purported to appoint as National Director of Public Prosecutions (NDPP) seems to have contempt for the Constitution, the Constitutional Court and the law in general. He believes that the National Prosecuting Authority (NPA) is not independent and should take instructions from the Minister and the President on how to deal with politically sensitive cases. He holds the view that the NPA’s independence is not guaranteed by the Constitution, a view contradicted by the Constitution as interpreted by the Constitutional Court.

The following exchange between Wim Trengove and Simelane reveals much about how Simelane sees the role of the NPA and his lack of respect for judgements of the Constitutional Court:

TRENGOVE: I see. The NDPP also enjoys Constitutional independence in the exercise of his powers and the performance of his functions, correct?

SIMELANE: It’s been argued so, yes.

TRENGOVE: I beg your pardon.

SIMELANE: It’s been argued so, yes he does.

TRENGOVE: It’s been argued so?


TRENGOVE: No, it’s not being argued, the Constitution says so, correct?

SIMELANE: It says what?

TRENGOVE: It says that the – are you not acquainted with the Constitutional entrenchment of the independence of the NPA?

SIMELANE: I have heard arguments to that effect.

In other words, Simelane is saying here that ONE possible view (“I have heard arguments to that effect”!) is that the NPA is independent, but that he clearly does not share that view. His view was demonstrated by his drafting of a letter – later signed by the Minister of Justice – which illegally purported to order Vusi Pikoli not to proceed with the arrest of Jackie Selebi. Mr Simelane thus believes the NDPP must take orders from the Minister of Justice – even if this constitutes a criminal offence – and that the NPA does not enjoy any independence from the executive.

This belief is of course not only spectacularly wrong. It is also highly dangerous. A NDPP who holds such views is a NDPP who one fears may illegally take instructions from the Minister or the President to prosecute or not prosecute individuals (like the President himself!) depending on whether such a prosecution would be politically or personally advantageous for the President or not.  If charges against President Zuma are reinstated, the President will merely have to issue an illegal order to him to drop the charges and Mr Simelane may very well obey that illegal order – unless he has changed his mind about the independence of the NPA since his humiliation before the Ginwala Inquiry.

Later on in the exchange between Trengove and Simelane, Simelane reveals his utter contempt for the Constitutional Court.

TRENGOVE: The question is do you not understand that section to be a Constitutional guarantee of independence?

SIMELANE: No I don’t read it that way.

TRENGOVE: I see. And if Mr Pikoli suggests that it is, do you say that he is wrong?

SIMELANE: I would argue with him about it’s meaning, if that’s what he said.

TRENGOVE: I see. So your fundamental difference with him is that he contends that the Constitution guarantees the independence of the NPA while you dispute it, correct?

SIMELANE: I dispute that the Constitution says so.

TRENGOVE: I see. Can I tell you what the Constitutional Court says about it Mr Simelane and I am reading from the certification judgment where the Constitutional Court certified the Constitution, in paragraph 146 in which they referred to this provision of the Constitution Section 179(4). The Constitutional Court says the following:

 “Section 179(4) provides that the national legislation must ensure that the Prosecuting Authority exercises its functions without fear, favour or prejudice.”

And then please listen to the next sentence:

 “There is accordingly a Constitutional guarantee of independence and any legislation or executive action inconsistent therewith would be subject to Constitutional control by the courts.”

So the Constitutional Court agrees with Mr Pikoli, Mr Simelane, correct?


TRENGOVE: The Constitutional Court agreed with Mr Pikoli.

SIMELANE: Yes the Constitutional Court yes.

TRENGOVE: And it contradicts you, correct.

SIMELANE: Yes I would say it does in that respect yes.

TRENGOVE: Yes indeed. How dare you – (pause)

SIMELANE: I beg your pardon?

TRENGOVE: How dare you take on Mr Pikoli to the point of accusing him of impropriety and contending that he is (not) fit for office when in fact you haven’t read what the Constitutional Court has said about this section?

So our President has purported to appoint a NDPP who is either scandalously ignorant about the meaning of the Constitution as interpreted by the Constitutional Court  (hardly likely as he had requested an opinion of Senior Counsel which must surely have included reference to the Constitutional Court case) or he is contemptuous of the Constitutional Court and believes that his own interpretation of the Constitution trumps that of the Constitutional Court (rather more likely, given that we know Mr Simelane purported to order Pikoli to stop the arrest of Selebi despite having read opinion of senior counsel that the NPA is independent).

The irresistible inference must therefore be drawn that Simelane was appointed as NDPP because he has shown himself to be contemptuous of the Constitution and the Constitutional Court and willing to lie and deceive to please his political masters. What will he do (within or outside the bounds of the law) to prevent our President from ever standing trial? Obviously our President thinks he will do almost anything (legal and illegal) to protect our President from prosecution.

No wonder the President purported to appoint him as NDPP.

Neither fit nor proper

President Jacob Zuma has a wide – but not unlimited – discretion to appoint the National Director of Public Prosecutions (NDPP). By purporting to appoint Adv Menzi Simelane as NDPP, President Zuma acted unlawfully because Simelane clearly does not meet the requirements for the job as stipulated by the National Prosecuting Authority (NPA) Act.

The Constitution requires that the NDPP must be appropriately qualified and the NPA Act defines “appropriate qualification” as somebody who is: (i) a South Africa citizen; (ii) possesses legal qualifications that would entitle him or her to practice in all Courts in the Republic; and (iii) must be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity to be entrusted with the responsibilities of the office concerned.

As the Ginwala Inquiry made clear:

What the Act also envisages is that the incumbent must be a person of experience, integrity and conscientiousness to be entrusted with the responsibilities of the office of the NDPP…. The notion of integrity is one that does not attract much debate in this case. The notion relates to the character of a person – honesty, reliability, truthfulness and uprightness.

Unfortunately, we know from the Report of the Ginwala Inquiry that Simelane is not honest. Neither is he reliable, nor does he possess the necessary truthfulness and uprightness required by the Act. His appointment is therefore not legally valid as he does not meet the MINIMUM requirements for the job.

Simelane was the main witness of the government during the Inquiry but he showed himself to be a liar with a lack of understanding of his job and a willingness to mislead the Inquiry to achieve specific, politically required, ends.

The Ginwala Inquiry found that Simelane had misled the Inquiry by hiding from it the fact that he had obtained a legal opinion which contradicted his own views on the nature of the relationship between the Department of Justice and the NDPP. He only conceded that there was indeed such a legal opinion when he was confronted with this fact by Adv Wim Trengrove during cross examination. Ginwala states:

The DG: Justice had an incorrect understanding of his accounting responsibilities under the PFMA, despite being in possession of legal opinions from senior counsel explaining the ambit of his responsibilities. He allowed the Minister to continue with an incorrect understanding of the responsibilities of the NDPP.

Simelane had also drafted a letter – later signed by then Justice Minister, Brigitte Mbandla – which instructed Pikoli not to proceed with the arrest of Jackie Selebi. This instruction was clearly illegal and constituted a criminal offense in terms of the NPA Act. As Ginwala tactfully put it:

the conduct of the DG: Justice in drafting the document in the manner it reads was reckless to say the least. The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act…..

Ginwala also found that Simelane was not a man of honesty and integrity as he had made statements that were false and presented legal positions that were untenable:

I must express my displeasure at the conduct of the DG: Justice in the preparation of Government’s submissions and in his oral testimony which I found in many respects to be inaccurate or without any basis in fact and law. He was forced to concede during cross-examination that the allegations he made against Adv Pikoli were without foundation.

In the light of the above it is very difficult to sustain the fiction that Simelane is even remotely a person who could be called “fit and proper”. He is not honest. He is not reliable. He is not truthful. What counts in Simelane’s favour is that his view of the NPA – not shared by Ginwala, senior counsel or by any person who has read the Act and the Constitution –  is that the NPA is not independent, that the NPA should take instructions from the Minister of Justice and the President – even in making decisions on individual cases – and hence that the NPA is a tool in the hands of the government to do with it as it pleases.

No wonder President Zuma purported to appoint him. With Simelane at the helm, no one will ever again be prosecuted if the President and the Minister does not give the go-ahead. If this appointment is allowed to stand, it will bring an end to even the pretense that the constitutional guarantee that the NDPP must act without fear, favour or prejudice, will be adhered to.

This is the darkest and most scandalous day yet in the short life of President Zuma’s tenure. The appointment shows an utter disregard for the Constitution and the law. It is nothing more than the actions of a gangster hell bent on protecting himself and his cronies. I feel ashamed that I have given our President the benefit of the doubt for all these months.

Privacy? Security? Oh ple-e-ease!

Sometimes a politician says something so daft and indefensible that one cannot but wonder whether he or she thinks ordinary voters are complete and utter fools. Maybe this does not surprise many people because they have come to expect that politicians will lie to them. But being an eternal optimist – one of the few paid up member of the chattering classes in South Africa who seemingly still believe that voters are, as a general rule, not nearly as stupid as politicians believe they are – it really irritates the hell out of me.

That is why the reasons given by National Assembly Speaker Max Sisulu for not releasing a “detailed breakdown” of all MPs travel records to provide evidence that the system is being milked, seem so preposterous. ID Leader, Patricia de Lille claims that MPs with distant homes and constituencies are are allegedly skimming off up to R40 000 a month in travel claims by using their cars for journeys that would be cheaper by plane and requested the details from Sisulu to back up her claims.

Sisulu refused, saying that while he supported De Lille’s attempts to expose alleged abuse, disclosing travel records could infringe on MPs’ right to privacy and “pose a security risk” to them.

He might as well have said: “Yes they are stealing us blind and I do not want to public to know this, so I am not going to give you details of MPs travel records.” At least that would have been honest.

Let us get this straight: we pay MP’s to visit their constituencies to do what they have been elected to do, namely to represent us and to look after our interests. (This, at least, is the theory, but because of our pure proportional representation electoral system, many MP’s do not really represent anyone. I for one would love to know which MP represents me, but even when I phoned the local ANC office they could not or would not tell me and refused to answer any questions about my Parliamentary representative.)

But according to our Speaker we are not allowed to know how much we pay our MP’s to visit us because this would infringe their privacy and pose a security risk. How dare we ask. Next thing we would demand to actually speak to our MP’s when they visit us and this might infringe on their right to privacy and might pose a security risk to them. Who the hell do we think we are!

This is utterly ridiculous.

The Constitutional Court has stated that the protection of the right to privacy could be understood by thinking of privacy rights in terms of an onion. There are layers of privacy and the closer one gets to the inner sanctum of an individual’s life (the core of the onion, so to speak), the more strictly will privacy rights be protected. Conversely, the closer one gets to the public life and duties of an individual the weaker the privacy protection.

In terms of this metaphor, the details of MP’s travel arrangements when they travel to their constituencies with our money to represent us can be viewed as the outer skin of the onion. MP’s are exercising a public function for which they are paid with public money when they embark on such travel. Hence there is absolutely no privacy rights involved here that needs to be protected.

There is of course a right involved here, but not the right to privacy brandished by Sisulu. The right here is the right of all citizens to know whether the money we spent on our public representatives to perform a public function for our benefit, is spent wisely, or whether the system is being abused by our elected representatives and whether some of them might not have  committed a crime by defrauding Parliament.

Simple really.

Because Sisulu’s statement is so ludicrous, I will assume that it amounts to an admission that some MP’s have indeed abused the system, have defrauded Parliament and should be tried for fraud.

On Julius Malema, HIV and democracy

I must admit it made a welcome change: Instead of cringing with embarrassment, I sat at the traffic light and gave a little cheer when I heard on the radio what ANC Youth League President Julius Malema had said about HIV/AIDS.  Speaking at the Pan African Youth Union, Malema said it is up to Africa’s youth to stop the spread of HIV/Aids. He called on the continent’s youth to promote safe sex, the use of condoms and the proper use of anti-retroviral medication and continued:

Ours should be about ensuring that condoms become fashionable. Every time you greet each other you must ask, how are you? Do you have a condom with you? It should not be an apologetic issue.

Maybe if someone as outspoken and popular as Julius Malema puts his full weight (so to speak) behind a campaign to make condoms fashionable and urges young people to insist on condom use we have a chance to turn this thing around. Maybe if Malema and others drop the ridiculous and counter-productive notion that we will stop the spread of HIV if we promote the ABC (“abstain”, or “be faithful” and if you cannot do the above “use a condom” – in other words, insist on a condom if you want everyone to think you are promiscuous), we have a chance.

Of course, our leaders should have said this kind of things many years ago, before hundreds of thousands of people had died needlessly of HIV related illnesses. But I suppose its better late than never, so I will be the first to applaud Mr Malema and to encourage him to continue the good work.

But then, another publication reported that at the same event, commenting on the call by Young Communist League leader Buti Manamela that Manto Tshabalala-Msimang and Thabo Mbeki should be charged with genocide for not providing dying South Africans with anti-retroviral drugs, Mr Malema said the following:  

We must never surrender our leaders.  Thabo Mbeki might have made mistakes but we can never charge him. We must not charge one of our own. If we allow that, the same thing would happen to [Zimbabwean President Robert] Mugabe, and the same would happen to [President Jacob] Zuma, and the next thing you know they will come for you.

Now, I do not want to get involved in a debate here on whether Mbeki and Tshabalala-Msimang should be charged with genocide and whether such a charge against them would stick. I do wish to take issue with young Julius’s view on the Rule of Law though. Saying that one should never charge one of your own is dangerous and undermines the Constitution and the Rule of Law.

Our leaders, no matter how well respected and loved, are not above the law. If they break the law they have to be charged. Just like every other South African – whether she lives in Houghton or Lusikisiki, Bischops Court or Pofadder, Witsieshoek or Nkandla – a leader in a constitutional democracy is not above the law.

Suggesting that leaders – because they are our leaders – should never be charged with any crime, no matter how heinous that leader’s actions have been, how detrimental to the poor and downtrodden, how murderous or anti-democratic, demonstrates a profoundly undemocratic and anti- constitutional view of politics.

This is the kind of view that allows young politicians like Julius Malema to jump out of his car in a dazed state and express his existential confusion by urgently asking those who stopped him to please tell him who he was. It is the kind of view which holds that leaders are beyond criticism and that even if they do the most shocking things, they should be above the law. Down that road lies tyranny, despotism and the most egregious abuses of the rights of ordinary citizens by powerful leaders: it is the way of Pol Pot, Adolt Hitler and Idi Amin.

In a constitutional state, leaders should actually be beyond reproach. If we are going to charge anyone it should be our leaders who have broken the law.  In a constitutional democracy we entrust them with our money, our well-being and our futures and if they abuse that trust by stealing our money, killing political opponents or ordering the police to torture the leaders of social movements who are critical of them, such leaders seize being worthy of our respect and, in effect, seize being our leaders at all.

What worries me is that Julius sees himself as a leader as well and hence believes that he is also above the law. No wonder he has failed to pay so many speeding fines and called his friends in government to reprimand traffic cops who had the audacity to stop him for speeding. Today it is traffic fines, tomorrow it is hit squads and torture.

Ag nee man Julius, just when I thought the media had been treating you harshly you say something like this which reminds me that you have a lot to learn about constitutional democracy and the Rule of Law. Stick to the condoms and  HIV: at least you are doing good work on that front.

Shoot to kill? Maybe some good will come of it

Yesterday a policeman allegedly shot and killed a three year old child sitting in the back of a car. Atlegang Phalane, 3, was hit by a bullet while seated in the backseat of a white Hyundai with his uncle, Bongani Mchunu, around 6pm on Saturday. The car was parked outside a relative’s house in Klipfontein View Extension 2, north-east of Johannesburg. Atlegang died instantly.

We all knew this kind of tragedy would happen. In fact, it has been happening for generations in our violent society. But for a while after the advent of our democracy and the renaming of the Police Force to the Police Service, most of us thought that it would come to an end. After all, members of a Police Service operating under the discipline of the Constitution are supposed to catch the criminals and not to shoot and kill innocent civilians. Everybody – so our Constitution promises us – has a right to life, bodily integrity and to be presumed innocent until proven guilty before a court of law.

Maybe we should thank the politicians who, with their careless talk, have alerted the media to the fact that the Police often shoot innocent civilians. They have been killing our mothers and fathers, our sons and daughters and brothers and sisters, our boyfriends and girlfriends, our community leaders and social movement activists in the name of upholding “law and order”.

Now, many of us are squeamish to confront the fact of widespread extra-judicial killing by our stressed and trigger happy police officers because we fear that pointing this out might embarrass the ANC government or give sustenance to the real criminals. As long as one of our own is not killed, we turn a blind eye to extra-judicial killings by the Police. This is either because we want to believe the Police behaves much better now than during the apartheid era (and to some extent they do) or because we want to cheer on the killings by the Police for teaching the “criminals a lesson” (if we fear “the criminals” and want to protect our lives and the wealth we amassed during apartheid).

But suddenly this complicit silence about the abuses of the Police have been shattered by the politicians. No wonder the chattering classes are so cross with the ANC politicians for blabbering on about the need for the Police to “shoot and kill the bastards”.  They have disturbed our hypocritical and complacent silence on this sensitive topic.

It all started last April when then Deputy Minister of Safety and Security, Susan Shabangu, told cops: “You must kill the bastards if they threaten you or the community. You must not worry about the regulations. That is my responsibility. Your responsibility is to serve and protect.” Ever since, politicians have spoken about the need for the police to shoot “criminals” (by which they mean civilians suspected of committing crime and hence – like President Zuma – entitled to be presumed innocent until found guilty by a court of law) and members of the media have been reporting on horrific incidents where innocents civilians have been killed by the Police.

Of course, some politicians have been particularly brazen and stupid. Instead of allowing us to continue pretending the Police only shoot criminals and not innocent victims, the politicians have spoken about the need to amend section 49 of the Criminal Procedure Act to beef up the powers of the Police to defend themselves against armed criminals. To be fair, this talk of a need to amend section 49 is such nonsense that one wonders whether the politicians and the police commissioner who indulge in it have been smoking something they should not have. (Or maybe they indulge in one cup of tea too many before they speak on these matters?)

First, in terms of the common law, anyone (including cops and ordinary South Africans) acts lawfully if he or she shoots and kills somebody in self-defense. This means that if one’s life is actually threatened by someone else, one can shoot and kill the person endangering one’s life in order to save your own life. If one does so one would not have acted unlawfully and would thus not be guilty of any crime.

Second, section 49(2) of the Criminal Procedure Act provides the police with wide powers to shoot and even kill criminal suspects. The section reads as follows:

  • If any cop attempts to arrest a suspect and the suspect resists the attempt, or flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use the reasonable force necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing.
  • A cop is also justified to shoot and kill a suspect when he or she believes on reasonable grounds (a) that the force is immediately necessary for the purposes of protecting the arrestor, any person lawfully assisting the arrestor or any other person from imminent or future death or grievous bodily harm; (b) that there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed; or (c) that the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life threatening violence or a strong likelihood that it will cause grievous bodily harm.

This means that if a cop arrests a suspect he or she can use appropriate force (short of killing the suspect) to effect the arrest if the suspect resists arrests or flees. It also means that he or she can shoot and kill a person reasonably suspected of committing violent crime if the Police officer reasonably believes that the suspect was dangerous and was likely to cause harm to someone if he or she was not arrested.

Cops cannot randomly shoot and kill civilians suspected of trivial non-violent crimes. Cops can definitely not shoot and kill anyone who was not made aware that the cop was trying to arrest him or her. When the police opens fire on the passengers in a car without having indicated to the passengers that they had to stop and that they were the subject of a potential arrest the individual member of the police is acting unlawfully and can be prosecuted.

But section 49 provides quite wide cover to Police officers to shoot anyone as long as a member of the Police can show that he or she had some suspicion that the individual had committed a crime, that the officer wanted to arrest the person and that the person fled or resisted arrest. Long before the politicians started nattering on about the need for the Police to be able to shoot and kill “criminals”, the Police killed hundreds of innocent South Africans every year. Those of us not killed by the Police have just not noticed. As long as the Police officer “only” shot poor and black men or women without friends in the media, and as long as the Police left the political VIP’s, the blond American tourists and the rich and well-connected alone, they would hardly ever be prosecuted for murder.

Maybe something good will still come out of this irresponsible talk by the politicians. Now that members of the media have discovered the shocking fact that us ordinary South Africans who are not blond and studying Actuarial Science at Stellenbosch University, are not related to Rugby players or the President, are not famous or well connected, that we are the regular targets of extra-judicial Police killings, maybe the Police will be trained to act like a Police Service and not like the members of a Police Force in a fascist state.

This will only happen if us ordinary citizens – the one’s who are the potential victims of Police violence – stand up and demand a responsible Police Service who are not trigger happy. Now, maybe if the Police accidentally kill a few Fifa representative speeding along the highway, or a few blond American tourists or USA consular officials, the media will really come to the party and something will be done. Meanwhile, be afraid, be very afraid. Our Police officers have guns (and bullets) and they are ready to shoot YOU.

Zuma spy tapes: will anyone be prosecuted?

My daily newspaper reports this morning that the investigation into how the NIA’s top secret ‘spy tapes’ got into the hands of President Jacob Zuma’s lawyer, Michael Hulley – which led to the (probably unlawful)  scrapping of criminal charges against Zuma and ultimately to a change in government – has been completed.

The Inspector-General of Intelligence, Zolile Ngcakani, who has an ombud role and oversees all intelligence services in the country, confirmed that his office had finished its investigation, but said its findings could not be made public because “the report has not yet been released to the appropriate authorities”. He also revealed that the intercepting of phone conversations involving McCarthy had been conducted by the NIA “lawfully in terms of a judicial direction”.

If the South African Police Service and the National Prosecuting Authority (NPA) took seriously its job to uphold the law and to act without fear, favour or prejudice (in other words, if it adhered to the Rule of Law), it would be hard at work preparing for the prosecution of those responsible for breaking the law.

One or more members of the intelligence service or the SAP obviously broke the law by leaking the tapes to the Zuma camp. Hulley (or perhaps President Zuma, if he was shown to ever have been in possession of the tapes) also broke the law by receiving those tapes. This is because private citizens (which both Hulley and Zuma were at the time) are not allowed to possess such classified information.

Recordings by intelligence services of private conversations – even those made legally – are classified and it was clearly a criminal offense for Hulley to have been given the tapes and for him to have received it.

The newspaper further states:

The investigation also established that the police were spying on McCarthy at the same time. “We have found that the crime intelligence division of the police intercepted the phone conversations of McCarthy as part of an unrelated investigation, and such interceptions were conducted lawfully in terms of a judicial direction,” Ngcakani said….

Ronnie Kasrils, who was the minister of intelligence at the time of the spy tapes saga, said he had no knowledge at the time that the NIA was tapping McCarthy and Ngcuka’s phones. Kasrils said that after the intelligence crisis of 2005/06, when former NIA head Billy Masetlha was found to have abused the intelligence powers by instigating unlawful surveillance and eavesdropping on politicians – and creating hoax e-mails – he had issued a directive to the NIA and to the minister of police that “any interception using the National Communications Centre facilities needs to be passed by me”. But the NIA and police apparently defied this ministerial directive. “The NIA were obliged to report this to me as minister. They never did. I knew nothing about it,” Kasrils said.

Ngcakani’s report should of course be sent to the Joint Standing Committee on Intelligence (JSCI ) in parliament, as this is the committee tasked with overseeing the intelligence services as one of the governments checks and balances against abuse by the intelligence services. The chair of the JSCI is Cecil Burgess, one of the more pugnacious and shady new members of the Judicial Services Commission and Burgess claimed yesterday that he was not aware that the inspector-general had completed the spy tape investigation.

Asked yesterday if he would call for the report, Burgess replied: “It depends on what the report contains. There are certain things we may not be entitled to see.” He correctly pointed out that it was a criminal offense for anyone to give transcripts of tapped phone conversations – even legally tapped one’s – to a member of the public or for a member of the public (which, as I have pointed out, both Hulley and Zuma were at the time) to receive such tapes.

One would assume that Burgess and the members of his committee will insist that the flagrant breach of the law by intelligence operatives and by Hulley (and perhaps others in the Zuma camp) will be thoroughly investigated and that the cuplrits will be prosecuted. They obviously must also be deeply concerned about the possible breaches of national security (remember Vusi Pikoli was fired for not taking national security into consideration when he issued a warrant for the arrest of Jackie Selebi).

They would also, surely, be concerned about the fact that the police and the intelligence services lied to the Minister and would want to establish on which grounds the police and intelligence services obtained a warrant to tap the phones of a member of the NPA (who happened to have been investigating the Police Commissioner at the time).

The law society should surely also be deeply concerned that Hulley criminally obtained classified information which he then used to the advantage of his client? We know that professional bodies do not always act vigorously against their own members. Who will forget how the Medical Association of South Africa for many years avoided taking action against the doctors who saw Steve Biko just before his death? But surely the law society – as keen supporters of the Rule of Law – will surely not let Hulley off the hook merely because he happens to be the President’s lawyer? That would be rather self-serving and, well, dishonest.

Of course, chances are slim that anyone will ever be held responsible for the criminal activity which formed the basis for the dropping of the fraud and corruption charges against our President. This is because in our post-Polokwane world, like in George Orwell’s Animal Farm, some animals are seen as being more equal than others. (And I am not even talking about Julius Malema who believes that “Arrive Alive” and speed limits are stuff that concerns only mere mortals – not VIP’s like himself.)

What surprises me is that us mere mortals, who can actually remember who we are and do not always have to ask everyone “do you know who I am” (because I have forgotten my own name), just sit quietly by while those who style themselves as VIP’s lord it over us. Don’t we have any self-respect?  When will we rise up and tell those who act is if they are above the law (because they believe they are) that the law applies to them equally?

Return of the Groot Krokodil?

A few months ago Die Burger and Beeld carried a remarkable series of articles written by Riaan “Koedoe” Eksteen, who used to be the director general of the SABC back in the apartheid days when PW Botha was the State President of South Africa. With an astonishing lack of insight or remorse, Eksteen wrote about his rule at the SABC (which was in effect a mouth-piece of the National party) and the stormy relationship between himself and the then State President.

Old finger-wagging PW (also known as “Die Groot Krokodil” – The Big Crocodile) used to call Eksteen regularly to complain about the SABC – especially the news programmes – and on one occasion even ordered Eksteen to “correct” the news bulletin while it was still in progress – something Eksteen happily did.

Botha also complained to Eksteen (he claimed on instructions of the State Security Council) about the broadcasting by the SABC of the science fiction programme called “V”. This series chronicled the arrival on Earth of a technologically advanced alien race who ostensibly come in peace but actually have sinister motives.

PW Botha complained that in the programme the ostensibly human-like aliens turned into crocodiles at night and ate the humans. He saw it as a personal attack on him (being called Die Groot Krokodil” and all) and when Eksteen agreed to move the programme to a later slot and to broadcast the episodes nightly to speed up its completion, Botha apparently remarked: “You can obviously not wait to see the country go up in flames.”

Since those dark days the SABC has come a long way. Although it has recently been in the news because of mismanagement and corruption and although the news programmes are far from independent (it clearly had a pro-Mbeki bias before the Polokwane conference), there has not been the same kind of scandalous direct interference by politicians as during the Botha era.

This might all change if the Public Service Broadcasting Bill, hastily published for comment last week, becomes law.  The Bill has the look and feel of an apartheid era piece of legislation, and contains phrases right out of the Christian Nationalist playbook. For example it states that the South African Broadcasting System must, inter alia, strengthen “the spiritual and moral fibre of society”. The last time I read about the “moral fibre of society” was during the reign of “Die Groot Krokodil” and to see this reactionary phrase repeated in draft legislation prepared by the ANC government comes as quite a shock.

The Bill is also, bizarrely, littered with typographical and other errors and in places reads like something cobbled together by Julius Malema and his dyslexic woodwork teacher. For example section 22 states that the affairs of a community broadcaster shall be “controlled by the Governing Council Governing Counsel (sic)” while section 25 states that Community Broadcasting Service “…shall be partnership  (sic) with municipalities…” and this partnership shall include “availability of information about development to by (sic) local municipalities”. Section 33(b) states that the “powers and actions contained in subsection 30(a) shall occur (sic) in cases where….”, but section 30(a) contains no powers and actions so the section on its face make no sense – even if one thinks that powers can “occur”. Section 35(3) states that “[i]n case of case (sic) the fine shall be paid into the PSB fund…”

But these are really minor if embarrassing problems compared to the other aspects of the Bill. Section 4 proposes the establishment of a Public Service Broadcasting Fund which shall be financed by raising no more than 1% from all us through a personal income tax levy. This makes the Bill a Money Bill as it purports to impose “national taxes, levies, duties or surcharges”, but section 77(2) of the Constitution makes clear that ordinarily a money Bill can only deal with money issues, which means this Bill dealing with broadcasting cannot impose any taxes.

Section 73(2) states that only the Minister of Finance can introduce a Money Bill in Parliament. The person who included these provisions in the Bill clearly did not pay attention during his or her Constitutional law class and did not bother to read the relevant sections of the Constitution before releasing the Bill for comment.

The Bill also proposes that the money raised by the 1% income tax will be disbursed by the Public Service Broadcasting Fund according to criteria developed by it but approved by the Minister and those who receive money must be subject to the Public Finance Management Act (PFMA). Anyone who has ever read the PFMA would have been able to tell you that if community broadcasters were subject to the provisions of the PFMA, they would – as Anton Harber stated earlier this week – have to close down within weeks because they would not be able to meet the onerous obligations imposed by this act.

Large parts of the Bill might also be unconstitutional because it infringes on section 192 of the Constitution which states that “[n]ational legislation must establish an independent authority [ICASA] to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society”.

The power of ICASA as guaranteed by the Constitution is severely limited by this Bill while the powers of the Minister to interfere in the SABC is enhanced. The Bill states that the minister (and not ICASA as required by the Constitution) “is ultimately responsible for the effective monitoring of the implementation of the act”. Thus the Minister is empowered to  direct any of the entities mentioned in the Act (including ICASA and the SABC Board) to take any action in regard the act if that entity is unable to perform its function in terms of the act.

The Minister may also instruct the SABC board to take any action specified by the Minister if the SABC has failed to follow the instructions of the Minister in terms of the Act or has acted unfairly towards any person to whom it owns a duty in terms of the act.  This means if the Minister thinks the SABC has acted unfairly towards any employee of the SABC or any member of the public (maybe by not providing sufficient coverage of ANC or government events or by firing a corrupt SABC staffer!), he could instruct the SABC board to “correct” its “mistake” and if the board fails to do this, he will have the power to recommend the firing of the the board to Parliament.

The Bill is not a model of clarity, to say the least, but it is clear that the  intent of its drafters was to give the Minister a decisive say in the running of the SABC and to empower him to interfere with the day to day running of the SABC.

This is scary stuff.

I wonder what Koedoe Eksteen would make of this Bill.

Cape Town a racist city?

In our little visdorpie an argument is raging about whether Cape Town is a racist city. The argument was sparked by a report written by Dr Sabie Surtee and Prof Martin Hall of the UCT Development Policy Research Unit, which found a widespread belief amongst black African professionals working in Cape Town that the city is “hostile to black people”.

Premier Helen Zille dismissed this report by stating that it must be judged against the background of a broader ANC propaganda campaign which fuels the “myth” that Cape Town is a racist city hostile to black Africans. It was fanned by a small politically connected black business elite who are unhappy that the DA city and provincial government are preventing them from corruptly benefiting from state tenders – despite being African and ANC-aligned.

She argued that the methodology of the study was flawed because it focused on only a few companies and interviewed only African employees whose feelings and views were not subject to critical scrutiny and verification with reference to the “facts”. While Cape Town has its share of racists (like everywhere else in the country), it was those who stated that Cape Town was a racist city who were themselves racist as they were making pejorative generalisations about a whole city based on the views of a few.

It seems to me the Premier is being somewhat disingenuous.

While she might have a point that the racism narrative is being fueled by the ANC and its cronies who are unhappy that the DA is in charge of the city and the province – depriving the ANC-aligned elite of automatic access to lucrative contracts – this does not address the larger issues regarding the structural racism and dominant culture of white superiority in Cape Town.

It would have been more honest (and politically more astute) for the Premier to engage openly with the report of my colleagues and to recognise that many Africans do feel alienated and marginalised in Cape Town and that this is at least partly because of racism. This is about more than access to tenders or ANC propaganda and goes to the heart of what we mean when we talk about transformation.

The Premier’s response is unfortunate as it dismisses the sincerely expressed feelings of all those Africans interviewed for the report. “You might feel discriminated against and marginalised because you are black,” she seems to say, “but what you feel and experience is not real. Let the madam tell you what you should really feel and how you should really interpret the experiences of racism you have encountered in our city.”

This is familiar territory for everyone who has been at the wrong end of racial discrimination in the new South Africa.  Unfortunately many white people, secure in their own white world and uncritical about their own assumptions of “merit”  and “fairness”, wrongly believe that racism is by and large a thing of the past and that black people are “too sensitive” or are “imagining” the racism they experience every day. Such individuals do not realise that their world view and experience of reality is shaped by often implicit (but unspoken and unexamined) assumptions about white superiority and black inferiority.

These assumptions remain largely unexamined because they are not seen as part of a specific white dominated culture. In a place like Cape Town still dominated by a white hegemonic culture, only “others” are seen as basing their experience of the world on problematic assumptions. Because the white hegemonic assumptions are so deeply embedded in our city’s culture, they appear normal and natural (“it is just the way life is”) while the experiences of those who do not share the same culture and hence do not rely on the same unspoken assumptions are dismissed as “wrong”. Their experiences are not accepted as true, because it does not accord with the way in which we ourselves experience the world.

When a black person is denied entry to a venue, treated with disrespect at a shop or when a black person complains about being made to feel unwelcome at the workplace, it is assumed that this has nothing to do with racism. Either the black person must be to blame (she was not “properly” dressed, she was “making trouble”, she was being “difficult” or “lazy”), or the insult is dismissed on the basis that it was not based on race but on the idiosyncrasies of the individual who acted badly.

If we really want to engage with deep transformation, we need to be honest about the fact that different people from different races and cultures often experience the world differently. We need to accept than when such a large group of African professionals say that Cape Town is hostile to black people, there is something wrong – even if we cannot easily see this because it does not accord with our own experience. Denying that anything is the matter is deeply insulting and dehumanising. It dismisses the real lived experience of a group of people just because they do not experience the world in the same way as their white counterparts.

Moreover, Zille’s response is particularly insulting as it comes close to dismissing all the black people who complain of racism in Cape Town as dishonest and corrupt. That is called “blaming the victim”.

Surely a more honest response would have been to take the complaints seriously, to admit that there is indeed a problem and to propose ways of addressing the very real concerns of the many black people who have made Cape Town their home. Like an alcoholic who can only begin to manage his illness after admitting to having a drinking problem, Cape Town can only begin to address the problem of structural racism when its leaders admit that there is a problem in the first place.

Merely blaming the ANC – no matter how tempting that might look – just reinforces the same old patterns and do not bring us closer to a solution. Such a solution would require some critical self-reflection on the part of those of us who are not African, perhaps by asking: what have I done to understand the reasons behind the alienation felt by many Africans in Cape Town and what have I done to address this.

Wanted: a culture of accountable democracy

What do we mean exactly when we talk about our South African democracy? Some among us (as one of our former Presidents used to say) seem to believe that democracy is only about five-yearly elections in which the ANC gets a mandate from the people to govern the country in between elections as it sees fit. Others think  democracy is about allowing ANC members (regardless of who paid for their membership fees) to elect a new leadership and adopt policy positions at its five-early conference, coupled with oversight of the government by the elected ANC leaders at Luthuli House.

Others, yet again, believe (maybe because they will never win elections) that democracy is about “effective opposition” and about opposition parties shouting and screaming and moaning bitterly about the excesses of the governing party. The rich and powerful often seem to think democracy is all about making large donations to political parties or befriending politicians by lavishing them with shares, whiskey and cash in order to secure political influence and contracts or to “buy” the economic and political stability required to continue making obscene amounts of money for CEO’s and shareholders.

And, of course, in selfish South Africa, democracy for many means no more than always getting your own way and screaming blue murder and complaining about a scandalous infringement of your rights (maybe because of a conspiracy/racism/”reverse-racism”/arrogance/or abuse of power) when what you want is not handed to you forthwith.

In South Africa – so its seems to me – most of us are in favour of democracy (even if some are more grudging about the need for this than others), yet we do not share an understanding of what such a democracy should look like. Maybe it is time to start a discussion about the nature of the kind of democracy we would like to see flourishing on this southern tip of Africa.

As a constitutional scholar, my starting point is the Constitution, most notably section 1(d) which states that ours is a sovereign and democratic state based on “[u]niversal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.

Accountability. Responsiveness. Openness.

Of course, our Constitution contains all the formal trappings of democracy, which the Constitutional Court has stated contains aspects of both direct democracy (regular elections) and participatory democracy (the right of citizens to take part in the decisions of the legislature and executive). However, in the absence of a culture of accountability, responsiveness and openness, these formal trappings of democracy cannot provide us with more than an impoverished form of democracy.

What is required, it seems to me, is for the political, community and business elites to embrace a culture of justification (as Prof Etienne Mureinik memorably called it) within the disciplining framework of the Constitution. Such a culture of justification must not be equated with a legalistic and formalistic justification of outrageous, immoral or incompetent acts as this merely allows the powerful to hide behind laws, processes and structures to avoid real accountability to those who really matter: the ordinary, long suffering citizens who rely on the state and private institutions to create the environment which would deliver “a better life for all”.

A culture of justification would require ministers to do more than to point to the Ministerial Handbook to justify the purchase of outrageously expensive cars and extended stays in the most expensive hotels. A real culture of justification would require a mayor to explain why her team had never realised that the budget for the Cape Town BRT system was wrongly calculated and would not allow her to justify this by blaming a low-level official for the balls-up.

It would require a Minister to explain to Joe Slovo residence why they are being forced to move to far off Delft when other land much closer to the city (but too close to land owned by powerful business interests) were available. A Public Protector would have to explain why he needed a R7 million golden handshake for merely doing his job and how such a handshake would improve the lives of ordinary South Africans. A mayor would have to go to Phiri and justify to residents why their community was singled out for the installation of pre-paid water meters while the rich white folks in Sandton would continue paying for water only at the end of the month.

A culture of justification seems to me the antithesis of a culture of contempt, which treats voters as gullible children to be bamboozled and blinded with empty promises and legalistic arguments devoid of any ethical substance.

If our society embraced a culture of accountability it would not mean that those in power would always have to follow the wishes or dictates of the community to the detriment of the country or of other communities. Sometimes people in power must make unpopular decisions for the greater good, but when that happens, such decisions must only be taken after the needs of the affected communities have been recognised and considered and after the relevant person or body has accounted to those affected.

In such a democracy, the government of the day will not act contemptuously towards those whom they are supposed to serve, but would respectfully take their individual needs into account. Instead of top down democracy, a bottom up democracy will emerge. Although the needs of the few will sometimes have to yield to the interest of society as a whole, it will not be left up to bureaucrats  and political and business elites to decide what is best for communities (but really, would usually mean what is best for them and their friends) and then to implement the policies without having to justify their decisions to those it might affect.

Implicit in a culture of justification is a recognition of the need for an ongoing democratic dialogue between the rulers and the ruled, an openness to change and an understanding that different communities might need different things at different times.

In a constitutional state this dialogue will not necessarily lead to a kind of oppressive communitarianism, because the Constitution – especially the Bill of Rights – places constraints on everyone to act within the pre-determined rules which protect the marginalised and the vulnerable from the tyranny of the majority.

Of course a culture of justification can only flourish where people respect one another, where they talk and listen to each other and where disagreements are not dealt with by issuing insults and death threats. Sadly, most South Africans (and to some extent the media) seem to have a vested interest in the shouting and screaming as it serves their immediate political, emotional and class interests. But maybe, just maybe (I know I am hopelessly romantic and naive here), starting a conversation about the kind of democracy we want and deserve can begin to change all this.