As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Can middle and upper middle class people in South Africa demand better services from their municipality because they happen to contribute a larger portion of the municipality’s revenue than the poor? Put differently, can a municipality refuse to provide constitutionally and legally mandated services to a particular area because the people in that area are poor or even destitute and cannot pay the same rates and taxes than those who live in the more leafy suburbs?
Do we live in a dog-eat-dog world in which the rich and the politically well-connected can “buy” better services from the state, while the poor are left to their own devices and are forced to suffer or even die in silence?
This might sound like a set of ridiculous questions to ask. After all, in a constitutional state founded on the values of human dignity and equality, one would assume that the state would not be allowed to discriminate against the poor and marginalised merely because they do not pay the same amount of rates and taxes than the rich. (Of course, because we all pay Value Added Tax, which is a profoundly regressive tax, poor people usually contribute a larger proportion of their total income to taxes than the rich, but that is a story for another day.)
Yet, all over South Africa (whether an area is controlled by the ANC or the DA) middle and upper middle class people are often better served by the municipal, provincial and national government than the poor could ever hope to be. Schools in such areas mostly provide a better education to its learners, streets and parks are better maintained, refuse collection and other municipal services are superior and far fewer people are serviced by far better run police stations (although even these far better run police stations do not always provide a professional and effective service to the community).
There are many reasons for this unequal provision of services. In order to allay the fears of white South Africans and to prevent all of them from emigrating to Australia and taking their money and expertise with them, because many politicians live in these middle and upper middle class areas and send their children to the schools in such areas and rely on the police for protection in these areas (well, unless they are very important indeed, in which case they have their own VIP protection and blue light convoys), because tourists frequent these areas and their lives and safety are considered more important than the lives and safety of the poor and destitute, because of the deeply entrenched historical patterns of unequal spending which have not been addressed, because of the power and influence of the rich due to their access to (and influence on) the media and on the politicians who make decisions regarding resource allocation, because of all these and many more reasons poor people get social grants from the state (if they are lucky) while the rich usually get the better if not ideal services.
While politicians often talk about their deep concern for the plight of the poor and declare their undying love and respect for the poor, they have — as yet — not embraced a radical programme to shift spending on health, education, basic services and policing away from the privileged areas towards areas where poor people live. Some changes have occurred, but the radical shift required to create a truly fair and equitable society has not happened.
It is not often, though, that a politician is honest or stupid enough to admit this. One such politician is one JP Smith, who is the Mayoral Committee Member for Community Safety in Cape Town. (Two weeks ago I made a rather unflattering reference to Mr Smith’s physical appearance, which led him to phone me. He sounded close to tears, deeply hurt by my flippant comment. I shall therefore refrain from commenting on his appearance and will rather focus on the utter callousness and idiocy of his most recent statement.)
Mr Smith is quoted in this morning’s newspaper as refusing to deploy additional metro police units in Khayelitsha, as residents there “do not pay rates”. The Councillor is quoted as saying that he would not “squander more resources on the area” as this would mean taking resources away “from other areas where people do pay their rates”, and asks “why should a group of people who resort to violence be prioritised?” This was in response to questions arising from the inadequate police response to violent protests that have affected thousands of residents in Khayelitsha for the past month.
This statement, to put it mildly, cannot be describe as the politically most astute statement ever made by a politician. As a member of a party trying to overturn the perception that one’s party only caters for middle and upper middle class whites and that one’s party has no concern for the plight of poor Africans, this statement is about as wise as a statement by a German politician that the Holocaust never happened or that Hitler was not such a bad guy. Don’t the DA politicians go to a political school or a re-education camp – or something – where they are taught the basic rules about how not to alienate the vast majority of voters in the country?
The statement — if true — also displays a disturbing lack of respect for and understanding of the Constitution. Section 11 of the Bill of Rights provides that: “Everyone has the right to life.” Section 12 provides that: “(1) Everyone has the right to freedom and security of the person, which includes the right─ … (c) to be free from all forms of violence from either public or private sources”.
These provisions need to be read in the light of section 7(2) and 8(1) of the Constitution. Section 7(2) provides that: “The State must respect, protect, promote and fulfil the rights in the Bill of Rights.” Section 8(1) provides that: “The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.”
In Carmichele v Minister of Safety and Security, the Constitutional Court confirmed that in some circumstances the inclusion of section 7 and 8 of the Constitution means that there would be a positive component to these rights which obliges the State and its organs to provide appropriate protection to everyone through laws and structures designed to afford such protection. This principle was further elaborated on in the Rail Commuters case where the Court, in a slightly different context, held that organs of state — which include municipalities — have a positive obligation to ensure that reasonable measures are in place to provide for the security of persons and the protection of their lives and their property as guaranteed by the sections of the Bill of Rights quoted above.
What constitutes reasonable measures will depend on the circumstances of each case. Factors that would ordinarily be relevant would include the nature of the duty, the social and economic context in which it arises, the range of factors that are relevant to the performance of the duty, the extent to which the duty is closely related to the core activities of the duty-bearer — the closer they are, the greater the obligation on the duty-bearer, and the extent of any threat to fundamental rights should the duty not be met as well as the intensity of any harm that may result. The more grave is the threat to fundamental rights, the greater is the responsibility on the duty-bearer. Thus, an obligation to take measures to discourage pickpocketing may not be as intense as an obligation to take measures to provide protection against serious threats to life and limb. A final consideration will be the relevant human and financial resource constraints that may hamper the organ of state in meeting its obligation. This last criterion will require careful consideration when raised. In particular, an organ of state will not be held to have reasonably performed a duty simply on the basis of a bald assertion of resource constraints. Details of the precise character of the resource constraints, whether human or financial, in the context of the overall resourcing of the organ of state will need to be provided. The standard of reasonableness so understood conforms to the constitutional principles of accountability, on the one hand, in that it requires decision-makers to disclose their reasons for their conduct, and the principle of effectiveness on the other, for it does not unduly hamper the decision-maker’s authority to determine what are reasonable and appropriate measures in the overall context of their activities.
In other contexts, the Constitutional Court has stated that when considering whether the state has acted reasonably the particular vulnerability of those affected had to be taken into account. People who are poor (and hence do not pay as much rates and taxes as the rich) are particularly vulnerable and the state has a specific duty to take reasonable measures to protect them. They need more protection, not less, because they are poor and vulnerable and a municipality has a special duty to take steps to protect them.
I might be wrong, but I suspect that not many residents in Khayelitsha engage the services of ADT or Springbok security. I do know, having engaged the station commander of Harare Police station in Khayelitsha about their lack of action against known perpetrators of horrific homophobic violence against lesbians, that the services provided by my local police station in Sea Point (where Mr Smith happens to be the councillor) are far, far superior to those services provided by the police in Khayelitsha.
The people of Khayelitsha are particularly dependent on the state to protect them from the violent protests of others that disrupt their lives and threaten their well-being, their property and even their lives. The Police Service is not providing this protection and one would have hoped that the Metro Police — controlled by the DA City council — would step up to the plate and at least would try and assist in this regard. Because many of its residents are poor and cannot contribute as much to the rates and taxes of the city, the city has a more urgent duty to take steps to protect the people of Khayelitsha from harm.
A press release of he Social Justice Coalition underlines the urgency of the matter:
Since the protest action commenced, at least twenty vehicles have been stoned and set alight causing public transport to come to a halt for many weeks. Residents are being intimidated by protestors. A local fire station was stoned. Municipal services ceased to operate, leaving refuse to collect in the streets and pathways, posing significant health risks to residents. The fire department has been unable to respond to fires, leaving shacks to burn. Innocent bystanders have been shot at with rubber bullets by police responding to protests. Last week, a bus carrying school children was attacked with stones leaving several passengers injured, and there was an attempt to burn down a crèche. Another vehicle carrying unmarked exam papers was set alight. These are just a few incidents, which serve to illustrate how comprehensively the unrest has affected residents. The situation has intensified over the past week, and is now a serious crisis which requires an urgent response including specialised police units.
The DA itself has argued that these protests are not supported by the vast majority of the residents. The ANC ward councillor for the area has implied that the protests might be related to political jockeying for positions and that the actions are not supported or perpetuated by the vast majority of residents.
Yet, Mr Smith has decided that all the residents must be punished (for being poor and black and not voting for the DA?), because a small band of violent protestors have decided to take the law into their own hands. This must be done because the local residents do not pay as much rates and taxes as the rich people living in Fresnay or Bishops Court. In effect, Mr Smith believes that the DA City council has every right to punish poor Africans for being poor and for being part of a community in which some people are resorting to violent protests.
It does not take a rocket scientist to conclude that this is not a reasonable attitude (although it might take a person with at least a basic understanding of, and respect for, the basic human dignity of all people). If decisions about the allocation of policing resources are taken solely on the basis of whether the residents pay rates and taxes or not, the city council is patently acting in an unreasonable and unconstitutional way. The Constitutional Court has conceded that municipalities have some discretion to decide how they wish to allocate resources. For example, allocating more policing resources to protect tourists that bring in substantial revenue might offend our sense of what is wise or just, but it would probably not be found to be unreasonable.
But the amount paid by residents in rates and taxes can never justifiably determine whether they deserve to have their property and their lives protected or not. The fact that Mr Smith thinks that it can, is rather scary and suggests that Mr Smith has not embraced the fundamental values enshrined in our Constitution and that his continued services as a Mayoral Committee member for Community Safety in the city of Cape Town itself poses a threat to our democracy.
And there I was, listening to this guy telling me last week over the phone that he was really a soft and cuddly kind of do-gooder and almost believing him. How naive and gullible I can sometimes be.BACK TO TOP