(Not even) the Queen Bee is above the law

Maybe it is true that in any set-up there can only be one Princess, but that does not mean that there is no place for other Royalty in our politics. We all know in South African politics the role of Princess has been taken on by Lindiwe Sisulu: her royal highness, her imperial and impervious majesty who rules over her (ever-expanding) chamber of secrets with her iron fist (and with the assistance of a fugitive from justice).

But now we also have a Queen Bee in the guise of Western Cape Premier Helen Zille, throwing her Royal weight around and acting like a spoilt sovereign. Like Sisulu, Zille also seems to think that she is somewhat above the law and far too good to follow the rules that she insists others adhere to.

Good heavens, Royalty MAKE the rules, they do not need to follow them. 

According to Zille the South African Human Rights Commission (SAHRC) has been doing the bidding of the ANC,  becoming a “political hit squad” orchestrating an ANC-inspired “smear campaign” against the poor, poor (much misunderstood and vilified)  DA. According to her Royal Highness (that Queen of Bees with the sting to match), this institution, stuffed with ANC deployees such as Janet Love, only investigates complaints against the DA-led institutions, choosing not to pursue complaints against the ANC-led institutions (see here and here for the words of the wise one).

The SAHRC hates the DA, see. No wonder they make legal findings against DA-led municipalities. But these attacks come as something of a surprise. Less than two weeks ago the DA-led Cape Town city government accepted an award from the SAHRC, saying the following in a media release in relation to the award:

The City of Cape Town was commended for outstanding work in putting the necessary mechanisms in place to promote openness and responsiveness within the establishment. The City was further recognised for its ‘sterling work in going beyond the call of duty in implementing PAIA and putting other mechanisms in place that not only influence the implementation of PAIA, but also influence the responsiveness and openness of other municipalities in South Africa as well.

So, two weeks ago the SAHRC gave the DA-run City of Cape Town an award, which the DA bragged about. Now the DA believes that the SAHRC is a lackey of the ANC. The same SAHRC who took a stand against the Secrecy Bill (in opposition to the ANC) and bestowed an award to the DA City Council is part of a plot by the Dark Lord Sauron himself to discredit Zille and her sidekick, the tongue tied Dan Plato. (I am reliably told that Smiegel, that slimy ANC-lackey from Lord of the Rings, is also plotting to get his grubby little hands on Zille’s – white – halo and that Zille is up half the night thwarting these devious plans. )

The reason why Premier Zille is now attacking the credibility of the SAHRC is not too difficult to determine. In one of her Thabo Mbeki-like Internet letters (has anyone noticed how she is turning into a DA version of Thabo Mbeki: intelligent, energetic, fearless, paranoid, vindictive and with a penchant for breaking the law), she claimed that the SAHRC is quickly becoming as discredited as the Public Protector was when Lawrence Mushwana held that office and noted:

One just has to read the extraordinarily biased and factually inaccurate report of the HRC on the Makhaza toilet saga to understand the agenda. The report’s analysis and conclusions are impossible to explain rationally. The inevitable inference is that the report’s purpose is to embarrass the DA and benefit the ANC. There is no other credible explanation in the light of the facts.

Well, with respect to Helen Zille, she is either very badly informed or she is lying. The SAHRC report on the Makhaza toilets, while embarrassing to the DA-run city, is very logical and easy to explain “rationally” (or on any other legal basis).  The report conforms perfectly with the Constitution, the jurisprudence of the Constitutional Court and the relevant legislation. Only Zille and her overtly defensive advisers (Gareth, are you there?) seem to think otherwise.

Maybe they need a constitutional lawyer to help them see past their own paranoia and hypocrisy to help them face the fact that the DA has broken the law. Then the party may start respecting the Constitution and its leaders will stop saying things that seem not only untrue but, in the long term, politically rather counter-productive.

The SAHRC Report took into account several rights – including the right to dignity, housing and the right to sufficient food and water – and found that while the City’s project to provide flush toilets for all residents was “reasonable and indeed commendable, the manner in which the project was implemented (no enclosures or walls for the toilet facilities) was not reasonable”. It also found that the City had infringed on the human dignity of  complainants and that there was not adequate consultation around the implementation of the project.

For anyone with even a passing knowledge of the jurisprudence of the Constitutional Court, these findings would not be controversial. The same cannot be said for a paranoid and defensive Premier who sees a Communist/ANC-lackey under every bush. In the Grootboom case Justice Yacoob said the following about the interrelationship between the right to human dignity and social and economic rights:

The proposition that rights are interrelated and are all equally important is not merely a theoretical postulate. The concept has immense human and practical significance in a society founded on human dignity, equality and freedom. It is fundamental to an evaluation of the reasonableness of state action that account be taken of the inherent dignity of human beings. The Constitution will be worth infinitely less than its paper if the reasonableness of state action concerned with housing is determined without regard to the fundamental constitutional value of human dignity.

In this particular case the right to dignity and the right of access to housing and water must be read together (as required by the Constitutional Court and as done by the SAHRC in its Report) to determine whether a breach of the Constitution occurred. As is clear from other case law, where these rights are further amplified and protected in legislation, the obligation on the state (in this case the Cape Town Municipality) becomes even more clear-cut.

Well, it so happens that section 3 of the Water Services Act no 108 of 1997 states that “everyone has a right of access to basic water supply and basic sanitation”. Section 5 states that “if the water services provided by a water services institution are unable to meet the requirements of all its existing consumers, it must give preference to the provision of basic water supply and basic sanitation to them”. The Act therefore requires municipalities to give priority to the provision of basic water and sanitation to all before given the best services to some and not the minimum service to others.

The minimum standard for basic sanitation services which a municipality is constitutionally and legally required to provide is defined in the regulations accompanying the Act as:

the provision of appropriate health and hygiene education; and a toilet which is safe, reliable, environmentally sound, easy to keep clean, provides privacy and protection against the weather, well ventilated, keeps smells to a minimum and prevents the entry and exit of flies and other disease-carrying pests.

So, apart from being in breach of the constitutional provisions that guarantee human dignity, privacy and access to housing and water, the DA-led Cape Town City Council has also been flouting the provisions of the Water Services Act when it built open toilets without any walls for the people of Makhaza.

The Act does not provide a City Council with the right to give residents a choice of an open toilet for every household or a closed toilet to be shared by several households. A city council has a legal duty to provide toilets for all and these toilets must comply with minimum standards which require that the toilets be enclosed. Legally, the option of open toilets is not open to the DA or any other party. (Even in an open oportunity society, the law requires municipalities not to provide residents with the opportunity to relieve themselves in public.) The DA broke the law by building those toilets. Zille probably knows this. Now she is attacking the SAHRC to try and deflect attention away from this embarrasing illegal act.

One does not have to be an ANC lackey to know this. One must just have a working knowledge of the Constitution and the law. To claim, as Zille did, that the SAHRC Makhaza report’s “analysis and conclusions are impossible to explain rationally” is therefore not a statement that could, by any strech of the imagination, be called true. Either Zille is clueless, or she is being dishonest. And once it is conclusively established (as I did above) that the SAHRC Report is legally sound, the allegations of a dark plot by the SAHRC also become rather absurd and juvenile.

Goodness knows, the SAHRC is not perfect. Like our judiciary its actions or ommissions can and must be criticised. Zille has every right to criticise the reasoning of the SAHRC in their Makhaza report. Sadly this she never did. She just claimed the report was so irrational that it had to have been prepared as part of a dark ANC plot. We are still waiting to hear why it is irrational. What legal principle was wrongly applied? Does the Water Services Act not apply in the Republic of the Western Cape?  Zille has never said. This is not a surprise because her claim is spurious and demonstrably false.

Some defenders of the Premier might argue that the SAHRC has not investigated complaints about ANC abuses as vigorously as it did those complaints of abuses by the DA. If this is true, then the SAHRC must do its job properly and must investigate allegations of ANC abuses. If it fails to do so, Zille is entitled to criticise this failure (without defaming the Commission or the Commissioners and without launching ad hominem attacks against the Commission, of course). Constitutional democrats criticise acts or ommissions by independent institutions, they do not call into question the credibility of those institutions – thereby probably commiting a criminal offence. If one does question the credibility of an independent constitutional institution, one is an enemy of our constitutional democracy.

Of course, the argument put forward by Zille that a perfectly legitimate and – I would say legally incontrovertible – finding by the SAHRC was written merely to embarrass the DA, “cannot be explained rationally”. It is like Y complaining about being prosecuted for bribing a politician because X also bribed a politician and was never prosecuted. That is not a defence. It is merely an admission of guilt masquarading as a plea of innocence. If Zille did not want the SAHRC to make a finding against her party she should have obeyed the Constitution and the law. Surely that is not so difficult to fathom – especially not for the self-styled Queen Bee defender of the Constitution?

In any case, I am a bit worried about Zille, as she might have committed a criminal offence with her scurrilous and unfounded attacks on the SAHRC and its Commissioners. Section 18(d) of the Human Rights Commission Act prohibits any person from “defaming the Commission or a member of the Commission in his or her official capacity” while section 18(i) makes it a criminal offence for a Premier to fail to afford the Commission “such assistance as may be reasonably required for the protection of the independence, impartiality and dignity of the Commission”.

Zille is alleging that the SAHRC and its Commissioners are failing to fulfil their constitutional and other legal duties because of a criminal loyalty to the ANC. That seems pretty defamatory to me and she could probably be prosecuted successfully under section 18 of the Act. But as she has shown in her response to the Makhaza toilets scandal, she thinks she – unlike members of the ANC – is above the law and need not comply with the obligations imposed on her by the Constitution and the ordinary laws of the country.

Unfortunately that attitude is undemocratic, threatens respect for the Rule of Law and for the Constitutions and the institutions created by it, and shows a contempt for the need to be accountable to other independent institutions. According to Zille, only the ANC, so it seems, are required to be held accountable by independent organs, as the DA is already perfect and is therefore not required to account to anyone – especially not an institution who makes a finding that you disagree with. 

Why would one be accountable to the SAHRC if one can discredit them instead? Then one never has to explain why one disregarded the Constitution and disobeyed the law. Surely this kind of behaviour is better suited to an absolute monarchy than to a constitutional democracy.

But we do not live in an absolute monarchy (nor a beehive). We are all bound by the law and the Constitution – even the DA. Now, which of Zille’s advisers are going to pluck up the courage to tell her that she is acting like the Emperor who is not wearing any clothes.

Gareth, are you still there?

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