Constitutional Hill


Nationalisation of the Reserve Bank?

I was rather intrigued by news reports that Gwede Mantashe, Secretary general of the ANC, has hinted that the ANC-led government should consider nationalising the South African reserve Bank (SARB). Mantashe said that the “South African Reserve Bank is one of less than five central banks in private hands in the world”.

My first thought was a rather naive one: Surely that cannot be right? How can the SARB be privately owned? And if it is privately owned, who owns it and how can I buy some of those shares (that is, assuming I had any money to buy the shares with)? It would be rather nice to say I own part of the South African Reserve Bank and, I imagine, it would be a rather safe investment.

Well, Mantashe was right – sort of. When the SARB was established it was common practice for central banks to have private shareholders and as the Bank explains on its website:

The ownership structure of the SARB, however, has not been amended since its inception. It is a juristic person in terms of its own Act. The SARB has some 600 shareholders and its shares are pre-dominantly traded on an over-the-counter trading and transfer facility. The SARB is one of only nine central banks with shareholders other than the governments of their respective countries.

So, does this mean that getting rid of those private shareholders is a good idea or that it is constitutionally feasible to nationalise the SARB?

Section 224 of the Constitution states that the primary object of the SARB “is to protect the value of the currency in the interest of balanced and sustainable economic growth in the Republic”. In pursuit of this objective, it “must perform its functions independently and without fear, favour or prejudice, but there must be regular consultation between the Bank and the Cabinet member responsible for national financial matters”.

The constitutional position of the SARB is thus quite similar to that of the National Prosecuting Authority (NPA): its independence is constitutionally guaranteed and the government of the day is prohibited from interfering with the day to day running of the Bank or any of its decisions. (Menzi Simelane, the man purportedly appointed by President Zuma to head the NPA, might of course disagree with this blindingly obvious constitutional fact – either because he is very ignorant or very dangerous – but that would not change what the law says.) At the same time the Bank is required to interact with the government to ensure that the broad policy objectives of the Bank and the government are aligned.

Nationalising the SARB will not change this at all – unless the Constitution is amended to abolish the independence of the SARB to allow the Bank to follow the instructions of the government of the day. If Mantashe meant to say that it was perhaps necessary to abolish the independence of the Bank, he was obviously smoking the strong stuff from Swaziland or the former Transkei because we all know what will happen if the Bank started acting in the interest of a strong clique within the governing party.

If that happens the Bank will start to print money to finance the lavish lifestyles of the right kind of party faithful and to buy the loyalty of cadres and before we know it we will all become Rand millionaires and acquire terrific numeracy skills (without any assistance from the Minister of Education), as we will be running around with R10 00000000000 notes in our pockets to pay for a loaf of bread.

It does seem rather strange that the SARB has private shareholders though, but in practice this makes no difference to how the Bank operates. While seven of the fourteen members of the Board are appointed by the President and seven more are appointed by shareholders, the Governor of the Bank has a deciding vote on the Board, giving control of the bank to those appointed by the President. Shareholders cannot remove the governor or the other members of the Board and have very little power over the Bank.

The SARB Act can be amended without any constitutional problem to abolish private shareholding in the Reserve Bank – as long as those shareholders are adequately compensated. But, once again, this will make no difference to how the Bank operates as its independence is constitutionally guaranteed.

The “debate” about the nationalization of the Reserve Bank is therefore a red herring to hide disagreement in the ANC about more fundamental economic questions within the ANC alliance.

The larger economic question (which I am not in a position to address) is whether the Bank’s broad policies on inflation targeting, agreed to by the Bank and the Minister of Finance, is good or bad for the working poor and the unemployed. Those who are calling for the nationalisation of the Bank should rather engage the Minister of Finance (who the last time I checked was a communist) about the broad government policy framework on inflation targeting and interest rates if they wish to change the policies of the Bank.

Nevertheless, if anyone has some Reserve Bank shares they want to give away in the name of transformation I will be happy to accept on the basis of representing the gay and lesbian lobby! Given the overwhelming influence of money on our politics (Tokyo Sexwale gave lots of shares to influential opinion makers – remember Xolela Mangcu? – to buy some good publicity for himself and for Jacob Zuma) one of those Reserve Bank shareholders might believe if they give me some shares I will sing the praises of one politician or another.

I am happy for them to think that giving me shares will help their cause and will gladly take the shares – and then write exactly what I like in any case.

Just a (tongue in cheek) thought.

More questions on the AbaThembu King

Very few people – least of all anyone in government – seem to be taking seriously the claim by Votani Majola, lawyer for King Buyelekhaya Dalindyebo, that the AbaThembu tribe had seceded from South Africa. This is curious, given the fact that Dalindyebo was confirmed as the only King of the AbaThembu in 2008 by a Commission set up in terms of the Traditional Leadership and Governance Framework Act.

Dalindyebo’s actions might seem laughable, but he has quite an impressive family history and one would suspect the reason why the authorities are not making a big noise about this is that they do not want to inflame the passions of some of the Kings subjects. Dalindyebo is a descendent of Paramount Chief Sabata Dalindyebo who resisted efforts by Kaizer Matanzima to co-op him into supporting “independence” for the Transkei. Matanzima did everything in his power to depose Sabata as paramount chief.

Ironically Mantanzima succeeded only in 1980 when a Transkei court found Sabata guilty of violating and injuring the dignity of the state president. Sabata had told a gathering of more than 1 000 people at his Sithebe Great Place that he had refused an offer from Matanzima to become the first president of Transkei because homelands were “pigsties and dummy institutions”. Sabata fled the Transkei and ended up in Zambia, where he threw in his lot with the African National Congress and later died.

Recent events are therefore – to say the least – rather ironic. The media reported last week that Majola, the lawyer for the AbaThembu king, had served a “secession notice” on Parliament and quotes Majola as saying that the “AbaThembu Tribe have seceded from South Africa. The sooner the nation aligns with this reality and start preparing to form the State of Thembuland the better”. Majola said the nation was no longer part of South Africa and that the ANC-led government would have no say in the new independent state, which would be headed by Dalindyebo.

Dalindyebo was sentenced in the Mthatha High Court in December for crimes including culpable homicide, kidnapping, arson and assault with intent to do grievous bodily harm. He is obviously a rather eccentric character because he claimed R80 billion in compensation from the government for the indignity he suffered when he was sentenced to a term of 15 year imprisonment. Some analysts also claim that Dalindyebo is being persecuted because many of his subjects voted for the UDM in previous elections.

Obviously, the statements of the King’s legal representatives and the delivery of a secession note will not have any legal effect and Dalindyebo and all his subjects remain South African citizens. In the absence of specific unlawful acts by Dalindyebo or his subjects to undermine the authority of the South African state, it is thus understandable that the government is pretending this farce is not really happening.

But a few interesting legal questions do arise. The King is being paid almost a million rand a year by the South African government in accordance with the Remuneration of Public Office Bearers Act, which provides for the payment, amongst, others, of Kings and other traditional leaders. What will happen if the South African government stops paying him on the basis of his own claim to secession? I suspect the government could not stop payment as the secession is not legally valid and Dalindyebo thus remains the King – despite all the bluster by his legal representative.

But section 10 of the Traditional Leadership and Governance Framework Act does provide for the removal of a King, in which case he will lose the payment. This can happen where a King has been convicted for an offence and given a sentence of imprisonment for more than 12 months and the Royal family requests the President to remove the King. In such a case the next in line to the throne will be invested as the new King.

One wonders whether the present posturing does not have to do with the internal politics of the Royal family and whether the King is not trying to pre-empt any effort to remove him as King.

Lastly, a larger set of questions comes to mind: why is it that the South African tax payer is paying kings and traditional leaders such exorbitant amounts of money? What value do we get for our tax money from this system? What is it exactly, say, that King Goodwill Zwelethini does that warrants the payment of large amounts of public money to him to furnish a lavish lifestyle? Is the notion of Kings, kingdoms and traditional chiefs to be squared with a constitutional democracy at all or is it not profoundly undemocratic?

I am a Republican at heart and have always thought it was utterly ridiculous that Britain had a Queen who dressed up in funny hats, spoke in a constipated accent and travelled around her country opening factories while smiling benignly and waving to the crowds. Surely in a democracy one should not be considered better than anyone else merely because you were supposedly born to be a King or a Queen? So why do we have this same ridiculous notion in South Africa, given the fact that the traditional leadership system in our country have been thoroughly corrupted by colonialism?

The ANC used to be opposed to these anti-democratic leaders who are part of a system that was bastardised and exploited by the colonial masters and later by the apartheid government to ensure white control over the local population. But in recent years the ANC has decided to embrace the traditional leaders and has forgotten its own critique of the system which is not really in line with the achievement of the National Democratic Revolution.

What happened?

Open letter to President Jacob Zuma

Dear President Jacob Gedleyihlekisa Zuma

The media is reporting that you may appoint Jon Qwelane as South Africa’s ambassador to Uganda. I trust these reports are wrong and that the rumours about the imminent appointment of Qwelane were started by your enemies. Surely such damaging rumours have been spread by those who wish to re-enforce racist and Afro-pessimistic stereotypes about our leaders. Such rumours will obviously tarnish your name and will re-enforce widely held perceptions about your alleged lack of commitment to our Constitution and the values enshrined in it.

In terms of section 84(2)(i) of the South African Constitution you are empowered to make ambassadorial appointments. In exercising this power, you have a wide discretion to appoint fit and proper individuals of any political persuasion – as long as you act rationally and do not make appointments in bad faith. (You obviously have a sense of humour in this regard as you even appointed the former leader of the official opposition, Tony Leon as South Africa’s ambassador to Argentina.)

As a constitutional law scholar I have to point out that your power is not unlimited. You may not appoint someone as an ambassador if such a person had paid a bribe or if he or she is fundamentally opposed to the values and rights enshrined in our Constitution as this would be irrational, arbitrary or capricious – given the fact that you have a duty to uphold the Constitution and promote the values enshrined in it. You have, I need to point out, a duty – when appointing ambassadors – to act in terms of the law and the Constitution.

When you took office you swore an oath of office (contained in Schedule 2 to the Constitution) and you promised on that glorious day that you would “obey, observe, uphold and maintain the Constitution and all other law of the Republic”. You also promised to “protect and promote the rights of all South Africans and to do justice to all”.

The appointment of Jon Qwelane as ambassador to Uganda will not promote the rights of gay men and lesbians living in South Africa or elsewhere in Africa or the world. In fact, such an act would present a fundamental breach of your solemn promise to uphold and maintain the Constitution and the law as it will encourage hatred, bigotry and even violence against a vulnerable minority of South Africans – something prohibited by section 9 of our Constitution and the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act.

Qwelane has written that he agrees with the sentiments expressed by President Robert Mugabe that homosexuality:

Degrades human dignity. It’s unnatural and there is no question ever of allowing these people to behave worse than dogs and pigs. If dogs and pigs do not do it, why must human beings? We have our own culture, and we must re-dedicate ourselves to our traditional values that make us human beings… What we are being persuaded to accept is sub-animal behaviour and we will never allow it here. If you see people parading themselves as lesbians and gays, arrest them and hand them over to the police!

He also wrote that “something is rotten in this country, seriously stinking”, referring to the Civil Union Act – which you promised to uphold – as the “stabani Act”. He also slammed the Constitutional Court for wanting “to make this country the “trahssie” capital of Africa.” In addition to his bigoted opinions, the use of the words “stabani” (a derogatory term for gay) and “trahssie” (derogatory term for an inter-sexed person) are particularly repulsive.

He has also equated homosexuality with bestiality and claimed that he prayed “that some day a bunch of politicians with their heads affixed firmly to their necks will muster the balls to rewrite the Constitution of this country, to excise those sections which give licence to men ‘marrying’ other men, and ditto women”. Qwelane therefore believes that many South Africans like myself are no better than animals and that we have no right to have our dignity and equality protected.

He is a bigot who hates a group of fellow South Africans who cause no one any harm – for no other reason than the fact that they are emotionally and sexually attracted to members of the same sex. Mr Qwelane hates us because we happen to love differently than he does (assuming that he is capable of love at all).

As you might know, the Ugandan Parliament is presently debating a Bill that would impose the death penalty (which was outlawed in South Africa many years ago) on “repeat offenders” guilty of the “crime” of homosexuality. The appointment of Qwelane as South Africa’s ambassador to Uganda would send a signal to all gay men and lesbians in South Africa, Uganda and the rest of the world that our government does not object to this Bill and that people like myself are deserving of the death penalty.

Worse, it will send a signal to bigoted and homophobic South Africans that our President and the government he leads, at best, turns a blind eye to the humiliation, degradation, assault and killing of gay men and lesbians and, at worse, endorses such behaviour. This would encourage more hatred and violence against gay men and lesbians in South Africa, who are often targeted for attack by hateful bigots who do not believe that every human being has the inherent human dignity that guarantees them equal concern and respect – regardless of their differences from the majority.

The appointment would also constitute a grave affront to the family of women like Eudy Simelane, former star of the Banyana Banyana national female football squad. Simelane was found dead in a creek in a park in Kwa Thema, on the outskirts of Johannesburg after being gang-raped and brutally beaten before being stabbed 25 times in the face, chest and legs – all because she was a lesbian. Many other lesbians have been attacked and killed over the years because of the attitudes propagated by people like Qwelane. In that regard, he has the blood of fellow South Africans – many of them women – on his hands. If you appoint him, you will similarly have blood on your hands.

It is unthinkable that you would appoint as an ambassador a racist man or woman who has written extensively about his or her hatred of black South Africans. This would be rightly unthinkable, given our traumatic past in which so many human beings were oppressed, humiliated and attacked, not because of what they did but merely because of the way they were born. Surely then, it must be equally unthinkable that you would appoint Qwelane as an ambassador to Uganda as he believes that those of us who happen to have been born gay or lesbian are worthy of vilification, hatred and discrimination.

Given the constitutional prohibition against sexual orientation discrimination and the fact that you had sworn a solemn oath to uphold the Constitution and to promote the rights of all South Africans, the appointment of Qwelane will signal a profound disrespect for the Constitution, the law and for a small but vulnerable section of our society. It would also confirm what some pessimists have been fearing, namely that you are not a man of your word and that you do not adhere to promises made – even when those promises were made under oath in front of the whole nation.

I still hope that the rumours about the appointment of Qwelane are no more than an ugly smear-campaign launched by political opponents to discredit you and tarnish your name and the name of the ANC which you lead. Please Mr President, do not besmirch your name and do not besmirch the name of the ANC, who fought for our liberation and ensured that the rights of gay men and lesbians are protected by our Constitution.

Kind Regards

Pierre de Vos 

Our own Sarah Palin?

During the USA Presidential campaign, vice presidential candidate Sarah “Barracuda” Palin was rightly lambasted after giving a disastrous and laughable interview to Katie Couric. The most quoted section dealt with her lack of foreign policy experience and went like this:

Couric: You’ve cited Alaska’s proximity to Russia as part of your foreign policy experience. What did you mean by that?

Palin: That Alaska has a very narrow maritime border between a foreign country, Russia, and, on our other side, the land boundary that we have with Canada.

Couric: Well, explain to me why that enhances your foreign policy credentials.

Palin: Well, it certainly does, because our, our next-door neighbors are foreign countries, there in the state that I’m executive of.

Couric: Have you ever been involved in any negotiations, for example, with the Russians?

Palin: We have trade missions back and forth, we do. It’s very important when you consider even national security issues with Russia. As [Russian Prime Minister Vladimir] Putin rears his ugly head and comes into the air space of the United States, where do they go? It’s Alaska. It’s just right over the border. It is from Alaska that we send those out to make sure an eye is being kept on this very powerful nation, Russia, because they are right there, they are right next to our state.

Last night while watching the ETV interview with President Jacob Zuma, it suddenly dawned on me: maybe President Jacob Zuma  is our Sarah Palin! Like Palin, President Zuma has charisma, glamour and the common touch. Like Palin our President is much loved by his core supporters who believe that he is being victimized by snooty (or even racist) elites with no respect for traditional values. Like Palin, President Zuma can charm individuals when he meets them. Like Palin, Zuma has an interesting family life. And like Palin he looks completely and embarrassingly out of his depth when confronted by an intelligent and probing interviewer on TV.

Nikiwe Bikitsha did a brilliant job in the interview: she was respectful and courteous (as one should be when interviewing the country’s President to show respect for the office of the President) while asking probing and pointed questions and following up the many evasive and often misleading or plane wrong answers with pertinent follow up salvo’s – always humbly nodding along as the President basically admitted that he did not know much about what was going on in his government.  Our President kept on saying that discussions were continuing on many pivotal issues for South Africa (nationalization, schooling, Julius Malema, the NPA) but that nothing has been decided yet and that he personally had no views on any of these issues.

When asked about whether he would pardon Shaik, he wisely decided to skirt the question because the issue is so politically sensitive and because his advisors must have told him that he should not say anything about it until they have found a way of managing the inevitable fall-out of a possible pardon. Unfortunately, the President skirted the issue in such a ham-handed way that he created more trouble for himself.

“Why should I pardon him when he has not applied?,” he said. “I have nothing in front of me. If there was an application before me, you should ask the question. Why should I respond if I do not have the application before me?” Unfortunately the Presidency issued a statement on 19 October 2009 that contradicts this statement:

The Presidency received an application for pardon from Mr Shabir Shaik last year, on 24 April 2008. The application will be processed like all other applications

The President has therefore indeed received a pardon application and he therefore does have an application in front of him. He might not  have read the application himself, but he does have it on his desk and should know this as his office has confirmed this in an official press statement. Oops!

This is not a life and death issue and will not influence the legality of any pardon when it is eventually granted, but it was another embarrassing gaff on the part of the head of the South African executive which creates the impression that the President is either not aware of what is going on in his own office or that he is perfectly prepared to tell a whopper in order to avoid answering an awkward question.

But maybe there is a kinder explanation for the seeming Palinesque inability of President Zuma to answer any of the questions posed to him and his seeming lack on knowledge and grasp of the issues confronting South Africa. Maybe he avoided answering the questions because he is afraid.

In this regard the ghost of former President Thabo Mbeki seemed to hover over proceedings.

After all, Mbeki lost his job because he had opinions of his own and sometimes expressed them despite the fact that the ANC leadership had not “pronounced” on an issue. Watching President Zuma I got the palpable feeling that the power has shifted decisively from the union buildings to Luthuli House and that instead of constitutional government we now have a party political government.

Our Constitution is silent on the relationship between the executive and the political party in power. While it makes clear that the President is the head of the executive and that the executive governs the country (along with his cabinet members who are all accountable to Parliament), this power is a tenuous one – as Mbeki found out when he was fired.

Because the Constitution also allows the majority party in the National Assembly to “recall” the President by adopting a vote of no confidence against him, the President has no independent power base separate from the party who elected him. Given the fact that members of the National Assembly serve at the pleasure of the party and can be removed from their jobs at any time, the party leadership has a decisive say over members of Parliament, can therefore instruct them to take any action in Parliament and can thus also instruct them to fire the President. Through this threat of removal the party leadership can decide who serves as President and can also ensure that it tells the President how to serve.

President Zuma seems so scared of the party leadership – from Julius Malema down (or is it up?) – that he acts more like an automaton than like the leader of a modern constitutional democracy.

This latter explanation for the President’s embarrassing interview will mitigate against the view that President Zuma is no more than our own Sarah Palin. Let us hope the second explanation is true. Otherwise our President would not only be rather dim-witted (a bit like PW Botha who was definitely not the sharpest tool in the shed), he would also be out of his depth, ignorant and spineless. And if that is the case, we are all in big trouble – unless Kgalema Motlanthe or Gwede Mantashe is really governing the country from behind the scenes, in which case we might not be in as much trouble as it might have seemed from watching the interview.

Why all the fear, paranoia and distrust?

Why do South Africans generally seem so distrustful, fearful, and paranoid of one another? When ANC leaders or supporters do something Helen Zille does not like, she is quick to claim that it is all part of an ANC plot. When someone criticises the appointment of the CEO of the SABC, the MK War veterans claim the CEO is the victim of a plot to undermine both Minister Siphiwe Nyanda and President Jacob Zuma. We also had the “plot” against Schabir Shaik and President Zuma and the many “plots” against then President Thabo Mbeki, not to mention the “plot” by the TAC to poison South Africans with anti-retroviral drugs.

Many South Africans seem to live in constant fear of fellow citizens and believe that fellow citizens are continuously plotting to do them harm. Even legitimate academic curiosity (like asking whether polygamy would be constitutional or not) are turned into a paranoid and defensive fight as it is seen as part of a “plot” to attack or undermine a specific culture or the beliefs of a specific race group.

What’s going on?

Of course, as Alan Arkin once remarked (or was it William Burroughs?) “Just because you’re paranoid doesn’t mean they aren’t after you”.  Nevertheless, the South African obsession with plots and the tendency to see a conspiracy under every bush (just like the National Party saw a communist under every bush or under every bed) seems a bit extreme.

One way to explain this paranoid obsession with plots and conspiracies is to argue that those who allude to them do not really believe that there are plots and conspiracies against them and their group, but merely make use of a device to try and shut up criticism to avoid having to justify their crooked or unethical behaviour. By claiming that one is being persecuted, one never has to answer legitimate questions about the criticism or charges levelled against you.

Hence, Hillary Clinton spoke of a “vast right-wing conspiracy” against her husband during the Monica Lewinski scandal. This allowed her and her husband to portray themselves as victims and helped to confuse things so that the public would not remember that Bill Clinton really did have sexual relations with that woman (or to forgive him for it).

Similarly, President Jacob Zuma’s claim that there was a conspiracy against him allowed him never to have to answer a few basic questions regarding the charges brought against him. In President Zuma’s case, this tactic was particularly successful because it seemed rather likely that while evidence about his corrupt relationship with Schabir Shaik was clearly very real, he might well have been singled out for prosecution while others more friendly to then President Thabo Mbeki were never prosecuted.

A second explanation is that many people really have a fundamental misconception of the way in which the right to freedom of expression, the Rule of Law and accountable government are supposed to protect everyone in society from lies, corruption and dishonesty. Leaders are placed on a pedestal (Helen Zille just as much by her supporters as Jacob Zuma by his) and any questions about the wisdom, integrity or ethics of a leader are seen as treasonous attacks on the collective identity of the supporters.

Leaders are often seen (and then begin to see themselves) as not being subject to the same rules and degree of scrutiny as ordinary workers. Because leaders are “important”, “special” or “exulted”, they must be treated in a special manner and should be shown special respect and should be deferred to – no matter what they do or say.

This view flies in the face of what is expected from leaders in a constitutional democracy where leaders are servants of the people (and therefore are not viewed as especially “important” or “special”). In such a democracy leaders should expect to face more (not less) scrutiny, criticism and even ridicule than ordinary citizens who are not servants of the people.

Third, I suspect South Africa’s long history of racial oppression and the struggle for freedom that resulted from it have also warped views and made many of us far more paranoid than we should be. Many white South Africans were scared into supporting the National Party with “Swart Gevaar”, Rooi Gevaar” and sommer any other kind of “Gevaar” tactics, which played into the underlying racism in the white community and made many whites fearful and deeply distrustful of black people in general and black political leaders in particular.

Most if not all black South Africans experienced first hand the racial arrogance, disdain and hatred by many white South Africans and suspect that despite the changes brought about by the transition to democracy, the vast majority of white people harbour an irrational, racist animosity towards them – even if this is now sometimes disguised by politically correct platitudes.

No wonder people do not trust each other and are often prepared to believe the worst of those who criticise them or the leaders they feel emotionally close to. Such feelings are of course exploited by politicians for their own nefarious ends and are exacerbated by the cynical or racist actions of supporters across the political divide.

The important question is of course: how can we get past this paranoia, fear and distrust and arrive at a place where it would become possible to have a relatively reasoned discussion about the merits of leader X or Y without anyone ranting and raving about “plots”, conspiracies” or racism.

Maybe in 2010 we should start a discussion on this important question, because if we fail to answer it, unscrupulous politicians will exploit our fears and hatreds to escape responsibility for their own failings – and all South Africans, but especially poor and marginalised one’s relying on the state to create the conditions for a better life for them and their children, will continue to suffer.

Medical Miracles (ad infinitum)

Schabir Shaik, who was convicted of bribing President Jacob Zuma and sentenced to 15 years imprisonment for bribing our President, was unlawfully released from prison on 3 March 2009 on medical parole “to die a dignified death” because he was supposedly in the last stages of a terminal illness. Mr Shaik has now been a free man for more than 250 days after being released for supposedly being at death’s door, which just goes to show that he was released based on lies and deception.

Of course, we know Shaik was not at deaths door (because we saw the report prepared by the doctors who never said that he was in the last stages of a terminal illness), and we thus know for a fact that the parole board released Shaik unlawfully as Shaik did not meet the legal criteria for release.

Meanwhile Shaik has been spotted playing golf (but not – yet – doing what that other famous golfer seems to have been doing over the past few years). A medical miracle indeed.

In a written reply to a parliamentary question by the Democratic Alliance, Correctional Services Minister Nosiviwe Mapisa-Nqakula said  last week Shaik was authorised to attend physiotherapy from 10.30am to 12.30pm on the Wednesday when he was spotted on the golf course, which prompts one to wonder whether his physiotherapist might not be an avid golfer.

The newspaper article about him allegedly being spotted playing golf at a club in Durban was brought to his attention and an explanation was requested from him. “Mr Shaik submitted a statement in this regard wherein he refuted the allegation,” Mapisa-Nqakula said.

So, let’s get this straight. The Minister is taking at his word, a man who was convicted of fraud and corruption and was found by the trial judge to lack any honesty and credibility. I really have a nice piece of lush forest land in the Karoo I want to sell to the Minister along with shares in a pyramid scheme. Come to think of it, maybe I can get the Minister to ask Father Christmas to bring me a Porsche. (I have always been envious of the Judge President because he drives a Porsche while claiming to care about transformation and the poor.) If she believes Shaik, she must surely also believe in Father Christmas, the tooth fairly and the integrity of the arms deal.

Mapisa-Nqakula also said she had no evidence that the doctors erred in their recommendation to grant Shaik medical parole, nor that the Correctional Supervision and Parole Board erred in its decision. Well, this is unfortunately not true. The Act states that a person has to be in the last stages of a terminal illness and THEN the parole board can consider him or her for release. The doctors never said that Shaik was in the last stages of a terminal illness, hence the parole board erred. The Minister’s claim that there is no evidence that it erred is so preposterous and laughable that it really casts a very dark shadow over the integrity and honesty of our Minister.

It is amazing how some among us would not play fast and loose with the truth in order to ingratiate yourself with The Leader.

We all know Shaik was released because that is what President Zuma wanted. The fact that the release was illegal is just by the by. It has been more than 250 days now since the parole board has first acted unlawfully and since various Ministers have condoned this unlawful actions by providing ridiculous and untrue explanations for the release, for the legal basis of the release and for the reasons not to refer the matter to the parole appeals board.

Nothing will of course be done about this flagrant disregard of the law in order to benefit the man who bribed our President, because in the world of some people the law only applies to ordinary people – not to friends of the President (especially not friends of the President who bribed that President) and definitely not to her holy highness the Minister of Correctional Services.

Wonder how long before we spot Shaik having tea with President Zuma and Julius Malema? Another 250 days perhaps?

Ruling elite not interested in democracy or the Rule of Law?

When EP Thompson, the Marxist historian considered by many to be the greatest British historian of his time, wrote that the Rule of Law was “an unqualified human good”, he created quite a stir. It was an article of faith among Marxists that the law was always used by the ruling class to legitimise its oppression of the working class.Thompson was heavily criticised by fellow Marxists who argued that the Rule of Law was a deeply oppressive concept as it masked the inherent violence deployed by the ruling class to protect their own interests.

But Thompson, it seems to me, was on to something. Although the law is often used to promote and legitimise the interests of the ruling elite and although the law is thus often unjust, the law can also be used as a mechanism to restrain the unbridled and unprincipled exercise of power by the ruling elite.

In South Africa, the Rule of Law is often mentioned by members of the chattering classes who bemoan the fact that some members of the ANC government and some ANC “deployees” to constitutional institutions (such as the NPA and the JSC) show an utter disregard for the law. Yet, the erosion of the Rule of Law affects all of us who do not form part of the ruling elite, a ruling elite which is composed of apartheid era big business, ANC leaders, BEE and other tender millionaires, the Black Lawyers Association and Black Management Forum and other elite institutions with close, mutually beneficial, ties to the government.

In a deeply divided society, in which economic injustice is deeply embedded and a few elites benefit from a parasitic capitalist system to the detriment of the majority of citizens, a semblance of social stability often seems to depend on the ability of the ANC government to paper over the “class contradictions” by deploying a kind of race-nationalism in which the same white big business and its beneficiaries who shared in the spoils of apartheid are held up as the villains against whom all black South Africans had to unite.

In this context, poor, marginalised black citizens do not always buy into the idea that an erosion of the Rule of Law represents a fundamental threat to their potential well-being. However, recent events have reminded us that the Rule of Law is not only to the benefit of the rich. Without it, it will be difficult for real democracy (as opposed to the watered-down Parliamentary version enacted for our benefit by the ANC and the DA) to flourish.

It seems to me real democracy will flourish only if social movements and grassroots activism (in opposition to policies and practices of the ruling elite) can flourish. No wonder some ANC leaders are fearful of social movements and have taken unlawful and dictatorial action to try and blunt the power of such movements. A prime example of such undemocratic, anti-Rule of Law action, is the recent harassment of leaders of Abahlali baseMjondolo in KwaZulu-Natal.

I was reminded of this when I received a press release from the inestimable Prof Stephen Friedman of the Centre for the Study of Democracy who recently hosted a discussion on this topic. The Centre had called the meeting out of a concern that the violence, directed at leaders and members of the Abahlali baseMjondolo (AbM) shackdwellers’ movement, was politically motivated and designed to drive the movement out of the informal settlement because it was seen as a rival to the African National Congress (ANC) in the area, and because it had launched a Constitutional Court challenge to provincial legislation which gives the provincial government wide powers to force landowners and municipalities to evict informal occupiers.

Part of this statement reads as follows:

The Centre is particularly concerned that the attacks on an independent and peaceful citizens’ organisation have been effectively endorsed by the KwaZulu-Natal MEC for Community Safety, Mr Willies Mchunu, and by senior officials of the provincial government. This reinforces the impression that a provincial government is attempting to silence a critical voice in violation of core democratic values.

Discussion at the meeting heightened this concern. The president of AbM, Mr Sbu Zikode, and other leaders of the movement, described how they had been driven into hiding and were now forced to conduct their entirely lawful activities in Kennedy Road in secrecy. AbM leaders told the meeting that they were now forced to operate much as underground anti-apartheid activists had been forced to do before South Africa became a democracy. While our Constitution guarantees every citizen freedom of speech and association and the right to use the courts, AbM appears to have been denied the first and to have been punished for exercising the second. Further, AbM argued that those who have been arrested for their alleged involvement in the attacks and denied bail, are actually victims and are, in effect, political prisoners.

Academic analysts who delivered presentations pointed out that democracy is meant for all citizens, not simply for those who are well-heeled and well-connected. If basic democratic rights are denied to shackdwellers, they warned, South African democracy is in great danger.  If citizens in the suburbs are allowed to speak their mind and criticise government actions and policies but those in the shack settlements are not, our country will, they suggested, lapse back into what it was pre-1994, a state in which some enjoy the right to speak but others do not. The allegations raised about the Kennedy Road violence are therefore extremely serious because they suggest that the democracy which so many fought so hard to achieve is now in danger because some political power-holders are not prepared to tolerate peaceful and legal citizen action if they feel threatened by it.

Participants were obviously aware that the allegations about events at Kennedy Roadremain untested. But all agreed that, given their seriousness, they need urgently to be tested. They added that that the best way to ensure that this happened would be support AbM’s call for an independent and neutral inquiry into the events. At present, a Task Team comprising those who are alleged to be complicit in the attacks has been given the official mandate to investigate. This is obviously unacceptable. The inquiry must be entirely independent and its impartiality should be beyond reproach.

We therefore urge the State President to demonstrate his and government’s commitment to democracy and concern to protect the rights of citizens by urgently appointing such an inquiry.

If President Zuma was a true democrat who respected the Rule of Law, he would agree to the request to institute an inquiry into the events that lead to the Kennedy Road tragedy. If the President fails to do so, one will be hard pressed not to conclude that the narrow economic self-interest of the party elite (in cahoots with big capital and the champions of a kind of middle class transformation), trumps concerns for the plight of the poor. The failure of opposition parties, including the DA, to highlight the plight of social movement leaders also suggests that they do not have the interest of the majority of South Africans at heart.

The ANC always talks about its concern for the poor. Maybe this is true in its own way. The ANC leaders are just MORE concerned about their own fancy cars and lavish lifestyles and the benefits flowing from the BEE tenders for their wives and cousins, than they are for the plight of the poor. In such circumstances, the last thing they would want or encourage is real grassroots democracy.

In a democracy, suckers will be sucked

When someone (like myself!) criticises the President of the day (for making homophobic statements, say, or for appointing a dishonest lackey as head of the prosecuting authority), it is often said that such criticism is wrong because it does not show respect for the incumbent head of state as an individual and also insults the Office that he holds.

Zapiro, for example, has been lambasted for drawing our President with a showerhead on his head while the Presidency appeared to get rather upset when I used intemperate language when criticising his purported appointment of Menzi Simelane as the head of the National Prosecuting Authority (NPA).

There are, of course, good strategic reasons for the Presidency to pick fights like this. It can change the public narrative and can divert attention from the real scandals – which would usually be the unlawful or scandalous behaviour of the head of state himself. By creating a scapegoat, supporters of the President who might have a complete lack of understanding of what vigorous debate in an open and democratic society should entail, can be made to forget that their leader has acted in a way not becoming of a person who should enjoy our trust and respect.

Similarly there may be good strategic reasons for not attacking the Head of State in over the top or intemperate language as this provides the Presidency with an opportunity to divert attention from the actions of the Head of State, actions that may appear to be illegal, blatantly self-serving or unconstitutional. Such attacks can also lower the tone of democratic debate and before we know it we might all be speaking in dumbed-down soundbites or utter thuggish threats (like Julius Malema has  a habit of doing) instead of talking about the real issues facing our nation – including poverty, crime and corruption. 

However, if one leaves such strategic considerations aside, there is a more fundamental principle regarding freedom of expression at stake in such cases. The assumption underlying statements by the Presidency and some of his supporters that one has a duty to show respect for the incumbent head of state, both as an individual and for his office, is profoundly anti-democratic.

In a constitutional democracy the Head of State is entitled to LESS respect than the rest of us, not to more respect as the Presidency and some of his supporters sometimes argue.

This is because as the Head of State, the President is also a politician and usually the head of a political party. He has chosen to embark on a career in the public eye that is at the heart of our democracy and what he says and does is of profound importance to our democracy and to our lives. If the President says or does something to endorse homophobic violence, for example, it could embolden others to attack gay men and lesbians whose very lives might be endangered by such action.

As citizens we therefore have a rights and a duty to criticise what the President says and does because without such criticism there can hardly be any talk of real democracy. If we choose to express this criticism in harsh terms or intemperate language we might be strategically dumb. However, it should really be tough luck for the President who should not have chosen a career in politics if he was thin-skinned. Just ask Barack Obama or Tony Bliar, who have both endured extraordinary viscious personal attacks over the years. (When one types “gangster” and “Barack Obama” into Google more than a million hits appear.) As my Mother used to say: “If you are a sucker you must be prepared to be sucked.”

It might be strategically dumb to call the President a gangster, but it is not necessarily unlawful or unacceptable.

Some might argue that my view cannot be squared with “African tradition” as us Africans have a culture of respecting our leaders – no matter what they do or say. (Obviously Julius Malema will not make this argument, but that is a story for another day.) They would be wrong.

You do not have to take my word for it. Instead I could refer you to a 1998 opinion of the African Commission on Human and Peoples’ Rights which dealt with just such a case. The African Commission was set up in terms of the African Charter on Human and Peoples’ Rights, which South Africa has signed and ratified and is bound by, and the Commission can hear individual complaints of human rights abuses by African states and can issue authoritative findings about breaches of the African Charter.

In Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project vs Nigeria the Commission had to deal with the actions of the then military dictatorship in Nigeria when 50,000 copies of TELL magazine were seized by heavily armed policemen and other security officers on the printer’s premises. That week’s issue was entitled: “The Return of Tyranny – Abacha bares his fangs”. The story involved a critical analysis of certain legislation enacted by the military government which ousts the jurisdiction of the courts. The magazine had in effect called the head of state a tyrant and so action was taken against them.

The Commission had to interpret article 9 of the African Charter which states that “every individual shall have the right to receive information”; and “every individual shall have the right to express and disseminate his opinions within the law”. It found that the Nigerian government had breached this article:

In the present case, the government has provided no evidence that seizure of the magazine was for any other reason than simple criticism of the government.  The article in question might have caused some debate and criticism of the government, but there seems to have been no information threatening to, for example, national security or public order in it. All of the legislation criticized in the article was already known to members of the public information, as laws must be, in order to be effective.

The only person whose reputation was perhaps tarnished by the article was the head of state.  However, in the lack of evidence to the contrary, it should be assumed that criticism of the government does not constitute an attack on the personal reputation of the head of state. People who assume highly visible public roles must necessarily face a higher degree of criticism than private citizens; otherwise public debate may be stifled altogether. It is important for the conduct of public affairs that opinions critical of the government be judged according to whether they represent a real danger to national security.

The African Commission is therefore of the view that unless statements critical of a Head of State threaten national security (by inciting the overthrow of the government, say) they are protected by the right to freedom of expression. Ridiculing the Head of State by, say, drawing him with a showerhead on his head can never be said to  threaten national security.

Of course, a Head of State can embark on a politically highly risky strategy of instituting a defamation claim against the person who criticised or ridiculed him, but then – as often happens with defamation cases – the President himself will be subjected to judicial scrutiny – which could backfire quite badly. Just ask Ronald Suresh Roberts.

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.