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constitutionally speaking

This blog deals with political and social issues in South Africa, mostly from the perspective of Constitutional Law.

Updated: 2017-10-17T13:08:17.819+02:00




Most of the Constitutionally Speaking archive can be accessed here or on the new site. When in doubt, try this site first, hopefully it will not disappear.

constitutionally speaking is moving


Some readers who use Internet Explorer have been having difficulty to read this Blog. I have therefore decided to move the Blog to a non-Microsoft platform. It can be found at Please bookmark the new address. Please also let me know if any of you experience tehcnical difficulties with the new site.

On a sad and shameful decision by the JSC


It comes as no surprise that the JSC has decided not to institute proceedings that could lead to the impeachment of Judge President John Hlophe (pictured). I am on record as suggesting that Judge Hlophe had skillfully used the genuine concerns about transformation and racism on the bench and in the profession to save his own skin. That does not make the decision of the JSC less shameful or shocking, though. In a country like South Africa, where race inevitably and comprehensively infects every aspect of public life, it was probably inevitable that Judge Hlophe would in effect be given a second chance by the (black) majority of members of the JSC. I heard rumours that ANC Parliamentarians had already indicated to the JSC that even if an impeachment recommendation is made, they would vote against it, so this might also have influence the JSC to make the spineless and disgraceful decision it did. On one level, the decision by the JSC reminds us of how fractured and messed up our society still is. Facing an obviously correct but emotionally difficult decision that would have seen the downfall of a man who had worked himself up from gardener to Judge President, the majority of members of the JSC could not do the right thing, perhaps because this would have seemed like an endorsement of racist stereotypes. The irony is, of course, that the decision will fuel, not undermine, the racist stereotypes that some whites have of black lawyers and judges. Those who are professional whiners and love to find fault with everything in the new South Africa will use this decision to crow about how "everything is going to the dogs". What do the rest of us tell them this morning? How do we defend this decision by the JSC - except to appeal nakedly and barrenly to race? The dishonesty of the JSC decision is clear for all to see. Their claim that there was not sufficient evidence to proceed with a public inquiry regarding the main count of receiving payment from Oasis without consent from the minister, is, in fact, laughable. The statement issued by the JSC is also contradictory because the commission expressed dissatisfaction over some of the explanations it had received from Hlophe. Lawyers have a wonderful way with words when they do not want to make the truth sound too damaging and this last sentence is a textbook example of that lawyerly skill. Dissatisfaction with some of the explanations offered by Judge Hlophe can be translated as: The Judge President had lied to the JSC but let's just forget about it because we do not have a smoking gun that will force us to act. The JSC had to say something to this effect to try and salvage some credibility for themselves. The unpalatable fact is that only those who believe that Father Christmas really delivers presents on a sleigh on Christmas eve could possibly have believed that Justice Hlophe had received permission from Dullah Omar to do work for Oasis. No member of the JSC (or Judge Hlophe for that matter) could possibly provide a cogent explanation for the fact that by the time Hlophe started doing "work" for Oasis, Minister Omar had not been the Minister of Justice for eighteen months. Please people, you are insulting our intelligence and hurting our democracy and respect for the judiciary. You are placing the interest of one rich, influential, well-connected - admittedly previously discriminated against - man (Judge Hlophe), above the interests of the 45 million South African's who wish to live in a country that adheres to the Rule of Law under an independent and respected judiciary. It is a deeply short-sighted decision and ever member of the JSC who supported Judge Hlophe should hang their heads in shame. As my mother would have said: "Sies, julle behoort julle te skaam!" [...]

Goodbye Rule of Law, hallo national security?


It suddenly struck me this morning that we might be living through another HIV/AIDS denialist moment. Has the President, in his all-knowing wisdom, decided that his Police Chief (who has admitted to a friendship with a confessed murderer “finish and klaar”) is being framed by the Dark Lord Sauron or other forces hell bent on destroying the National Democratic Revolution, the ANC and the masses of our people that it leads? Once one is armed with such a belief, one would be honour bound to rectify the situation by firing the head of the National Prosecuting Authority and ensuring the the travesty of justice is not perpetuated. This shock revelation came to me as I read the terms of reference for the Frene Ginwala enquiry. The terms of reference cover two broad areas: the fitness of Pikoli to hold office and the breakdown of the working relationship between him and Justice and Constitutional Development Minister Bridgette Mabandla. Accoring to government spokesperson Themba Maseko: The terms question whether Pikoli, when deciding to prosecute offenders, sufficiently regarded "the nature and extent of the threats posed by organised crime to the national security of the republic". They also question whether Pikoli, when he granted immunity from prosecution or entered into plea-bargain arrangements with people involved with organised crime, regarded "public interests and the national security interest". Now, we know that national security concerns is the last refuge of scoundrels. Does President Robert Mugabe not foam at the mouth about national security every time someone complains that they have no bread to eat? Did the apartheid government not suppress every embarrassing bit of information in the name of national security. Is George Bush and Dick Cheney not now allowing people to be tortured in the name of national security? It is a very clever move to try and make the enquiry about national security, because it will allow Ginwala to have some or most of the enquiry behind closed doors, thus allowing a stitch-up without us knowing about it. And if we complain about a lack of information, a government spokesperson (because His Royal Highness will not deem to speak to us mere mortals about such a trivial matter) will whisper “national security” and shake his head at us for endangering the life of the nation. The thing is: the terms of reference deal with legally irrelevant matters that should have no bearing on whether Adv. Pikoli may be fired or not. It is true that the National Prosecuting Authority is not independent and must consult with the Minister and must formulate prosecutorial policies in conjunction with the Minister. However, this does not mean that the Minister (or the President) may interfere with the day to day running of the prosecuting authority or that either of them has to be consulted or must give approval for prosecutorial decisions – including decisions about who to plea bargain with and whether to prosecute the National Director. In a democracy like ours based on a respect for the Rule of Law, no one should be considered to be above the law. This means the prosecuting authority is required to make decisions on who to investigate and who to prosecute based on the pre-announced policy guidelines agreed to with the government of the day, and not based on who that person is, what they stand for or who they know. It is therefore not surprising that section 179(4) of the Constitution explicitly states that “national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”. If reasonably possible, the relevant legislation must therefore be interpreted in such a way that it would protect the NPA from interference by the Minster or the President in any individual prosecutorial decision – including decisions to charge the Police Chief or to give indemnity to the police chiefs self-confessed murderer friends to testify against h[...]

Et tu Zuma?


The Constitutional Court today rejected Schabir Shaiks' leave to appeal his conviction and sentence on the charges of corruption and fraud on which he was convicted in the Durban High Court. In a decision significantly not signed by an individual judge but by "The Court", the Court argued that there was no prospect of a successful appeal on the ground that Mr. Shaik had not received a fair trial.

The defense had a high mountain to climb because it had not raised the constitutional issues in either the High Court or the Supreme Court of Appeal. In the Constitutional Court the most important argument raised by the defense was that Mr. Shaik had not received a fair trial because he was charged on his own and not together with Mr Jacob Zuma.

The Court reiterated that the right to a fair trial was a substantive right that went beyond the rights specifically enumerated in section 35(3) of the Constitution and in an implicit rebuke of the "Stalingrad" legal strategy employed by Mr. Jacob Zuma's lawyers stated that:

It is also clear that fairness is not a one-way street conferring an unlimited right on an accused to demand the most favourable possible treatment. A fair trial also requires: "fairness to the public as represented by the State. It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime."
This seems to suggest that the Court will not easily entertain technical complaints masquerading as high constitutional principle and that the accused would have to show that he or she was really fundamentally prejudiced by the actions of the state before there would be any chance of declaring a trial unfair and unconstitutional.

In this case, Mr Shaik's lawyers had not shown that the applicant had suffered any prejudice. Mr. Zuma was asked to testify on behalf of the accused but he had declined (something I did not know before), but it cannot be said that this failure to testify had prejudiced the accused because it is impossible to predict what would have happened had the parties been charged together.

On a symbolic level this judgment reflects badly on Jacob Zuma (but his supporters seem immune to any moral opprobrium heaped on him) but I am not sure it is very significant from a legal perspective. It does not tell us anything about the legal issues most pertinent to the case and the court did not consider the non-constitutional arguments about the interpretation of the facts or the law.

The fact that the Court had decided not to allow one judge to sign his or her name to the judgment is very revealing though. This has only happened before in a hand full of highly charged political cases (including the floor crossing case and the Treatment Action Campaign case). It means the Court is acutely aware that the case would be scrutinised in the light of the succession race and the possibility of charges being laid against Mr. Jacob Zuma.

It reminds us of how poisonous the atmosphere has become in the run-up to the ANC December conference. Everyone is under suspicion, every judge a possible enemy. These are dark days for our democracy indeed.

Frene Ginwala: independent?


Frene Ginwala yesterday defended her appointment by President Thabo Mbeki to investigate whether there were legal grounds to fire the National Director of Public Prosecutions, Vusi Pikoli, saying that it was not a problem that she happened to be a member of the National Working Committee of the ANC, the party just co-incidentally headed by the same President Mbeki. Business Day reports:

One of the problems we have in this country is the view that a committed politician cannot be independent and cannot be impartial,” Ginwala said. The suggestion that politicians always put party interests before national ones was very “damaging” not only for the country but for the image of politicians.

Ginwala pointed out that she refused to resign from the ANC when she was appointed speaker. She challenged those demanding she did so to lay on the table any decision she took that was motivated by party political interests.

Those of us who remember her role in emasculating the arms deal investigation of Scopa just as it was gathering steam may find it difficult to keep a straight face when confronted by Ginwala's challenge. Of course the irony is that Ms Ginwala has built up a reputation as quite an independent minded person, which was why she was fired as Speaker.

This could either be interpreted as showing that she will be fearless and will not hesitate to make a finding that would embarrass the leader of her party, or conversely that she would have learnt her lesson after being fired and that she would thus now toe the party line at all cost.

The point is that no matter what she does, there will remain a reasonable suspicion that she could not possibly be impartial, given her political commitments. This means the investigation is probably fatally flawed from the start as those who disagree with its findings will all point to her membership of the NSC to show why her conclusions were wrong and biased.

The relevant provision of the National Prosecuting Authority Act actually provides the President with wide powers to appoint anyone he deems fit to investigate this matter. He is therefore within his rights to appoint Ginwala. He could have appointed Ronald kevin Roberts if he had wanted to. (Imagine what a wonderful but macabre show that would have been!)

But the point is that it is imperative that the process is respected. The NDPP fulfills a vital role in our democracy and removing him from office should be a last step which should be undertaken in a way that would leave no reasonable suspicion that he was fired to protect corrupt friends and comrades. Frene Ginwala will find it difficult to convince any of us that she is the person to deliver such a credible investigation.

Speak to us Mr President


The rumours, counter-rumours and newspaper leaks about the suspension of the National Director of Public Prosecutions (NDPP) and the alleged warrant of arrest issued for Police Commissioner Jackie Selebi, is deeply damaging to our democracy. If it is all true, it would mean that the President had illegally and unconstitutionally suspended the NDPP to protect the Police Commissioner. This would be a blanant abuse of power and also illegal.

This is such a grave charge that one should be careful to make it. In the past President Mbeki has always formally shown great respect for the Constitution and the law and one should not assume that he has abused his power. If it were to be true it would constitute a grave constitutional crisis because the President would have interfered with the working of the prosecuting authority and would have prevented it from exercising its powers "without fear favour or prejudice" as guaranteed by the Constitution.

It is therefore absolutely imperitave that the the President speaks to the nation immediately to dispell these ugly rumours. Every day that he allows the rumours to swirl, is a day in which we are forced to come closer to the conclusion that our President is not a true constitutionalist and that he would be prepared to abuse his power to interfere with the workings of the criminal justice system. This would confirm all the conspiracy theories bandied about by the Zuma supporters and could easily set us on a very dangerous path towards disrespect for the Rule of Law.

If the rumours are all untrue and the President assures us accordingly, then the harm could be minimised. If he fails to dispell the rumours, then he would at best have shown utter contempt for both us, the electorate, and the constitution which requires him to uphold and protect its provisions. His silence is undermining the constitution and our respect of it.

As I am out of the country (in Amsterdam) I might be missing something - why are people not more upset, toyi-toying in the streets, storming Parliament? - but it seems to me the continuous rumours is a real disaster and a real crisis for our young democracy. It is poisoning our political system and may do it irreparable harm because it will make us distrust our leaders and the system. If our Presidnet cannot see this, or if he thinks that he does not have to deal with it, he is not worth the name of President.

Speak to us, Mr President. We voted you into office and you owe us an explanation.

Manto's advert and the Health Act


My take on the advert taken out by the Department of Health to criticise the High Court judgment which allowed the Sunday Times to comment on the Minister of Health's health records was published in the Business Day today. It can be accessed here. The crux of my argument:
This means section 14 forbids a newspaper from publishing anything about anyone’s treatment or stay in hospital — no matter how important that person may be or what that person may have done in hospital. I would argue that this section unjustifiably limits the right to freedom of expression because it is over-broad and, in effect, prohibits newspapers from uncovering corruption, maladministration or abuse of power if it relates to hospitals.

The allegation that the health minister had abused her power to jump the queue for a liver transplant is a case in point. It is exactly the role of a free press to uncover the abuse of power by the custodians of our constitution.

If the minister had in fact abused her power in such a despicable way — which is something she denies — the public interest would overwhelmingly require newspapers to publish this relevant information to allow voters to decide for themselves what to think of the government of the day and whom to vote for in the next election.

Yet, if a newspaper published allegations of such abuse of power and relied on the medical records of the minister, it would be contravening section 14 of the National Health Act and would be committing a criminal offence. Section 14 can thus in effect be used by public figures to prevent the publication of embarrassing and damning details about corruption and abuse of power. This makes the section overly broad and, I would contend, unconstitutional.

President Mbeki owes us an explanation


The suspension by President Thabo Mbeki of Vusi Pikoli, the National Director of Public Prosecutions (NDPP), is a potentially earth-shattering event for our democracy. In the present political climate in which suspicions thrive and every action by the President will rightly or wrongly be viewed as a move in the ongoing succession battle, the Presidential interference in the administration of justice must be deeply worrying. The Prosecuting Authority is a creature of the Constitution, which requires that it exercises its functions “without fear, favour or prejudice”. In other words, it is constitutionally bound to act independently and not to show any political or other bias in its day-to-day work. However, this constitutional independence is not absolute. The National Director must formulate a prosecuting policy in concurrence with the Minister of Justice and the Minister also exercises final authority over the prosecuting authority. This means that the prosecuting authority must set policy guidelines in accordance with the policy positions of the government of the day, but must otherwise operate free from interference by either the Minister or the President. In the event that either the Minister or the President is not happy with the decisions taken by the National Director, or where they fight and disagree with him, neither of them have the legal right to fire him. He is entitled to tell them to go to hell if he wants to. This is clear from the National Prosecuting Authority Act of 1998, which limits the power of the President provisionally to suspend the National Director or to remove him from office. The President can only remove the National Director from office for: misconduct; on account of ill health; on account of incapacity;or on account of the fact that he is no longer a fit and proper person. The clear implication is therefore that the President can only suspend the National Director if he has a reasonable suspicion that one of the factors set out above are present. The President then has to institute an inquiry aimed at establishing the existence of at least one of the objective facts set out above. Parliament must then endorse the existence of one of these factors and approve the removal from office before it can become final. It is therefore deeply troubling that the statement issued by the Presidency makes no mention of incapacity, ill health or misconduct, but merely claims that there has been an irretrievable breakdown in the working relationship between the National Director and the Minister of Justice and Constitutional Development, Brigitte Mabandla. The law makes clear that President Mbeki cannot fire Mr. Pikoli because of such a breakdown of trust. Morever, to fire Mr. Pikoli because he is not “fit and proper person” – also used in the Constitution as one of the reasons for impeaching a judge – would be difficult to do because the term has a restrictive meaning and suggest at least that the person targeted has done something illegal or extremely dishonest. This means the only possible reason for the suspension and the possible firing of Mr. Pikoli is that he has been guilty of misconduct. For this to stick legally, the President will have to show that Mr. Pikoli had failed to follow the provisions of the enabling act and had, for example, failed to furnish the Minister with information about the exercise of his powers as required by section 33 of the Act. In the absence of such proof we would be entitled to think that the President has overstepped his legal powers and has interfered with the administration of justice for political reasons. If it is correct that the President wants to fire Mr. Pikoli because the latter has not co-operated with the police to allow the Scorpions to report to the Minister of Safety and Security, Mr [...]

Now if they had only warned them about George Bush...


Only in the USA - Of course, it's in Phoenix, AZ. The BBC has more hilarious signs here. (Thanks Andrew for alerting me to this.) (image)

Manto officials unwise (perhaps even stupid)


The Department of Health really knows how to generate bad publicity. Just as the controversy about the Minister alleged alcoholism and liver transplant queue jumping was dying down, its officials takes out a huge advert in daily papers to attack the judgment of the High Court in the case of Tshabalala-Msimang and Another v Makhanya and Others. If only from a tactical perspective, publishing this advert was spectacularly unwise because it poured oil on a fire that was busy going out. It suggests a stubborn self-righteousness on the part of the Department officials. They really think by slagging off a judge in a paid for advert they will change the parameters of the debate around the Health Minister. Fat chance. The advert is also problematic for at least two other reasons. In a constitutional democracy like ours, there is a need to respect the principle of separation of powers. This means that the judiciary should not overstep the mark and intrude on the executive terrain. At the same time the executive should not be seen to interfere with the job of the judiciary. When officials choose not to appeal a judgment of a lower court but then use tax payers money to criticise that judgment in the most disrespectful terms, stating like Sello Ramasala, the Head of Legal Services in the Department of Health, that the judgement was “a huge disappointment in terms of its internal contradictions and lack of coherence”, it suggest that the officials do not respect the boundary between the executive and the judiciary. I am in favour of vigorous debate and criticism of court judgments as long as it does not impugn the dignity of an individual judge. It is therefore perfectly acceptable for lawyers and academics to argue that the judge in the Sunday Times case did not present a very good legal argument. But members of the executive have a duty to uphold the Constitution and the law and should not do anything seen as undermining respect for the law. This advert clearly does just that, suggesting that the judgement should not be respected. Of course the advert is also problematic because the arguments put forward by the Head of Legal Services seem to fundamentally misunderstand the scope of the judgment. Mr Ramasala argues that the judge erred in finding that the Sunday Times had broken the law by possessing and quoting form the medical records – something prohibited by the National health Act – yet allowed the Sunday Times to continue commenting on the Minister’s health issues. Mr Ramasala seems to think (or pretends to think?) that this means the judge allowed the Sunday Times to continue breaking the law from quoting from the Minister’s health records. But this is not what the judge did at all: he merely said that the Sunday Times could not be prevented from commenting on the unlawfully obtained records. This subtle but rather obvious difference eludes the learned lawyer from the Department of Health. Of course this argument about the Minister’s health records is a red herring and has been used by the Department and the ANC to divert attention from the real issue which is whether the Minister is fit to continue in public office. Did she jump the queue to get a liver transplant, thereby abusing her power to save her own life and deprive another person from a life-saving operation? If she did jump the queue, she clearly is not fit even to sell second hand cars – let alone be the Minister of Health. We also should focus on whether the Minister is actually doing her job. Given the difficult circumstances faced by our health care system, has the Minister’s stewardship made things better or has it been a disaster. Available evidence suggests the latter, but sadly this does not matter for those who can decide about the[...]

Mbeki's AIDS denialism explained


The latest London Review of Books contains a fascinating article in which Hillary Mantell reviews two important books dealing with the HIV/AIDS pandemic in South Africa. Discussing especially the work of Didier Fassin, When Bodies Remember: Experiences and Politics of Aids in South Africa, Mantell tries to make sense of the HIV denialism of President Thabo Mbeki and Manto Tshabalala-Msimang. Is it really as "irrational" as all the white folks say it is?

Money quote:

But consider what the Truth and Reconciliation Commission has been trying to do: to legitimate the memory of individuals, and at the same time to produce an official version of the past, one that everybody can sign up to. In its hearings, different realities collide. ‘Reconciliation’ is a project poised between remembering and forgetting, and the problem (or so it seems to me) is that in the case of South Africa memory, personal or collective, is often accompanied by crippling shame; whether you have been victim or victimiser – or cannot agree which role you occupy – you are ashamed to have lived under apartheid, to be the relict of such a system. Shame is what makes forgetting most urgent, and also what makes it impossible. And the virus has arrived to intensify stigma; South Africa, for so long a political untouchable, so far off the moral map, is ravaged by a disease which from its inception has been identified with sexual shame.

Fassin says: ‘The South African government and maybe society as a whole push away the intolerable,’ and try to select an alternative truth; and what is intolerable is not only the disease itself, but its stigmatising representations. Mbeki has accused the West in these terms: ‘Convinced that we are but natural-born, promiscuous carriers of germs, unique in the world, they proclaim that our continent is doomed to an inevitable mortal end because of our unconquerable devotion to the sin of lust.’

The question is: how does one deal with this shame - our hangover from apartheid? President Mbeki seems to deal with it by not dealing with it at all: in other words, through denial. But surely there is another way? Surely, following Biko perhaps, one can begin to face and challenge the shame to begin to imagine a life without it.

Without dreams of another way of being in our world, all that is left is shame and blame. And on that path one is surely doomed to remain a prisoner of the past for ever and ever?

What is (really) wrong with our media: Juan Duval Uys and Badih Chabaan


The ANC government has been bashing the media, arguing that they are part of the dark forces out to destroy the ANC and hence also the country. According to Frank Chikane, Director-General in the Office of the President, the media does not know how to work with the government – unlike the Dutch Reformed Church who has always brown-nosed government and therefore knows how to be good lapdogs. Of course we have learnt many years ago from the apartheid state that when one is in trouble the easiest way to divert attention from one’s troubles is to create a bogy man and the media seems to do for the moment. I suspect compared to other healthy democracies (therefore not the USA), our media is rather complacent and benign. Imagine what a torrid time President Thabo Mbeki would have been given by the British Press for saying and doing the things he does. For me the real problem with our media is that many journalists are far too credulous or lazy and therefore do not question even the most preposterous assertions made by known charlatans - as long as it will sell newspapers. This morning in the Cape Times (and now also carried on News24), for example, a story about disarray in the National People’s Party (the creation of Cape Town con business-man and city council member Badih Chabaan) quotes as facts several assertions made by Mr Chabaan. The introductory paragraph boldly states: Two leaders of the National People's Party have been expelled, the party's financial accounts are to be audited by KPMG and its new leader, Badih Chaaban, is to lodge complaints of embezzlement against some members. The newspaper also publishes without comment or question claims by Mr Chabaan that he had two members of the party followed while they were meant to be recruiting members in George and that instead of meeting members, the two were seen in a local nightclub. Now, I will bet at least one month of my salary that no KPMG auditors will ever see the books of this new party, that a complaint of embezzlement will never be followed up, and that no one was ever hired to follow the two members of the party in George. Over the past two months almost none of the claims made by Mr. Chabaan have come true and most claims have been shown to be outrageous lies. Why would these claims be different? Yet the Cape Times publishes these wild assertions as if they were true. One must also remember that Mr. Chabaan had hired another charlatan of note, Juan Duval Uys (pictured), as his media liaison officer. This is a match made in heaven: two epic shysters finally get together to tell the most outrageous lies to the gullible media. Mr. Uys has long entertained and bamboozled the media with completely false but sensationalist claims about his “hugely popular” Gay and Lesbian Alliance. Every time he made a new claim it was patently obvious for all of us with more than two brain cells that these claims were completely false. If, say, Mr. Juan Duval Uys claimed to be the head of a Gay and Lesbian organisation with hundreds of thousands of members and no one in the gay community has ever met anyone being a member, one would think the media would at least put such claims in scare quotes. But no, everything these guys say is reported as fact and worse, never followed up. No one at the Cape Times is going to phone Mr. Chabaan in two weeks to ask how that KPMG report is coming along and at what police station embezzlement charges were laid. And in a month or two Mr. Chabaan or Mr. Uys will hold a press conference and claim to have met Jesus Christ in a bar in Putsonderwater and that Jesus had told them that Helen Zille is the anti-Christ and, lo and behold, the next day it will be reported as fact[...]

Another boot-licker shows contempt for the people


Sandile Memela, spokesperson for the ministry of arts and culture, is at it again, attacking those handy old scapegoats, the non-government media and the so called “coconut intellectuals” for being too critical of the government. Writing in the Mail & Guardian, Mr. Memela seems to suggest that the private media and all the black commentators and intellectuals should follow the government line set by His Masters Voice and the Government Communications Service. He argues that by criticizing the President and other (black) leaders, the media is racist because it perpetuates or further entrenches racist views about the ability of black people to govern. Ironically, since 1994 - especially with the advent of Thabo Mbeki to the presidency - the media have created a sociocultural context in which it becomes possible to show disdain and utter contempt for legitimate African political leadership. This is displayed in the coverage of the Manto Tshabalala-Msimang story. The single-minded purpose is to get the public to internalise racist thinking about blackness as what colonialism has always portrayed as meaning unfit to self-govern. Say what? I think what Mr. Memela is trying to say is that we should not criticize President Mbeki or Minister Manto Tshabalala Msimang because if we do we would be showing contempt for something called “legitimate African political leadership”. I think this implies that once a Minister is appointed by the President, we have no right to criticize that leader (if he or she is black) because if we did, we would really be undermining the legitimately elected leaders of the country. And we would also really just be showing what nasty racist pigs we are. But this is not all. Mr. Memela got his knickers in an even bigger knot because: more and more people are asking themselves about the media’s commitment to bolstering confidence and trust in government. These statements show a rather embarrassing lack of understanding of the nature of a constitutional democracy and the role of the media and intellectuals in such a democracy. It scarily assumes that it is the role of the media to bolster confidence in the government or act as praise singers for the President and his cronies. But the media has exactly the opposite duty in a democracy based on respect for the dignity not of the self-important leaders but of those people who are rather more important in a democracy – the voters. The media has a duty to report on both the good things and the bad things that happen in our country, both the good things and bad things our leaders do, so that we as the voters can decide whether we want to vote for this government again the next time we have an election. The government does not have a divine right to rule and therefore does not have a right to be bolstered by the media – regardless of their actual track record. To suggest that the media should lie to the electorate so that they do not present negative images of black people, is to show contempt for the very people that are supposed to be at the heart of the government’s concern. In a democracy trust and confidence is earned by leaders and should not manufactured by state media who hear or see no evil and try to mislead the people by claiming that they have a patriotic duty to bolster confidence in the government. It is a sad day when a government spokesperson inadvertently shows such contempt for the masses of our people and argue with such a utter lack of shame in favour of boot-licking and a suppression of the facts that should influence the choices we make come the next election.[...]

Political literacy lessons....



Jacob Zuma's tax problem....


The Supreme Court of Appeal (SCA) yesterday ruled that the right to use loans interest-free is ‘gross income’ which ‘accrues’ to a taxpayer and that one must therefore pay tax on that benefit. This means, amongst other things, that people who receive bribes and then claim that those bribes were not bribes at all but merely interest free loans from friends, may have a tax evasion problem.

During the trial of Schabir Shaik much was made of the fact that the more than R1 million that Shaik gave to Zuma was a loan which Zuma was intending to pay back. But experts showed that if interest were to have been charged on these loans Zuma would have found it impossible to pay back the money. In any event the Court found that the "loan agreement" presented to it was fake and that the money was indeed given as a bribe.

If Zuma is charged again his legal team will have to think carefully about how they explain the fact that Zuma received this large amount of money from a convicted fraudster and why he has not paid any of it back - with or without interest accruing.

If they claim this was a loan to Zuma and they cannot show that the loan was serviced by the accused or that interest was being charged on the loan, they may convince a court that Mr. Zuma was not guilty of corruption, but they will then face a charge of tax evasion.

But if the money was not an interest bearing loan and it was not a non-interest bearing loan, it must have been a donation. Why would anyone donate more than one million Rand to a friend in a very influential position. Why would such a person accept such a donation? Surely it is difficult not to assume that the "donation" was given and the money taken because the arrangement was mutually beneficial to the two men.

Sisulu lost the plot


I have always liked Housing Minister Lindiwe Sisulu. She seemed intelligent, hard-working and, for a cabinet minister, not without a modicum of wisdom and compassion. Her recent statements on the N2 Gateway fiasco have been so astoundingly stupid and arrogant that I have now changed my mind. In Parliament on Monday she threatened to remove protesters from Joe Slovo informal settlement from the housing waiting list. If they choose not to cooperate with government, they will be completely removed from all housing waiting lists. There are so many things wrong with this statement that it is hard to know where to begin. Section 26 of the Constitution says that everyone in South Africa has a right of access to housing and that the state has a duty to realise this right progressively, given the available resources. Moreover section 33 of the Constitution states that “everyone has the right to administrative action that is lawful, reasonable and procedurally fair”. This means that neither the Minister nor her officials can legally remove anyone from a housing list that is supposed to give people a shot of accessing housing, without a fair hearing. I can direct the “honourable” Minister to the judgment of the Supreme Court of Appeal in Permanent Secretary, Department of Welfare, Eastern Cape, and Another v Ngxuza and Others. When the Eastern Cape government unilaterally cancelled the disability grants of thousands of residence, the SCA in that case slammed the Eastern Cape government and declared their actions illegal. Writing for the Court, Justice Edwin Cameron commented that the province had: Conducted the case as though it was at war with its own citizens, the more shamefully because those it were combating were the least in its sphere ... The applicants formed part of a group of South Africans with the least chance of vindicating their rights through the legal process. For the Minster to think that she has a right to unilaterally take away the rights of the very citizens who elected her into office is a shameful disgrace. What has happened to that much abused phrase “innocent until proven guilty”. I assume Mr Jacob Zum and his supporters are as we speak preparing statements of outrage about this abuse of power by the Minster. But the statement of the Minister is shockingly disrespectful of the Constitution in another way. She seems to suggest that individuals will be punished and their rights expunged if they fail to cooperate with the government. But the Constitution guarantees for everyone the right to freedom of expression, freedom of association and freedom of conscience, which means we have a right, yes a right not to agree or cooperate with the government. The Minister’s statement speaks of an arrogance that has sadly become all too pervasive among government officials. It reflects an attitude that government knows best and that ordinary people should just shut up and follow government orders – no matter how detrimental those orders may be for a particular individual. The people of Joe Slovo are not stupid. They do not trust the government because the government has already lied to them regarding the first phase of the N2 Gateway Project. People were promised that they will be moved into the new houses, but this did not happen because they could not pay the high rents being charged. The erstwhile neighbours of those poor unfortunate souls are now being promised that they will be returned to the permanent structures to be erected on the cleared land, but these structures, we know, will be showcase housing for the benefit of Fi[...]

Steve Biko


I am reading Steve Biko's I Write what I Like and am deeply impressed by the writing. The more I read the more I think that he would not have been happy with the John Hlophe's, the Christine Quanta's, the BEE types which now so litter our political landscape. And what would he have made of President Thabo Mbeki whose vitriolic attacks seem to display a lack of pride and confidence - exactly the opposite of what Biko stood for.

Affirmative action for women or discrimination against poor men?


So why can’t the government provide women with pensions from age 60 and men only from age 65. Is this not a legitimate form of affirmative action sanctioned by section 9(2) of the Constitution? The Pretoria High Court heard yesterday that the Social Assistance Act which provide for women to start receiving pensions at age 60, but men only at age 65, discriminated against poor men. People who qualify for old age pensions are by definition poor – whether they are male or female, so the argument is that this act discriminates against men on the basis of their sex and their economic status. The state argues that it is appropriate to treat men and women differently when dishing out pensions in order to correct past injustice. This is because women: share a combination of characteristics that makes them more vulnerable to poverty than men. The age differentiation recognises this susceptibility and is aimed at eradicating the structural and systematic causes of women’s poverty. Of course section 27 of the Constitutions states that everyone has the right of access to “social security, including, if they are unable to support themselves and their dependents, appropriate social assistance”, but also states that this is subject to the availability of resources. In the Khosa case the Constitutional Court found that the provision in the Social Assistance Act that prevented permanent residence who are not South African citizens from accessing old age pensions contravened the equality guarantee, read with section 27 of the Constitution and ordered the State to extend pensions to permanent residence – even though it might cost anything between R250-R650 million. Given this judgment, it might appear that the men in this case should have an excellent chance of winning their case. But I am not hundred percent sure that they will. The cost involved to provide all deserving men with pensions from age 60 would be around R2.7 billion, a sizable amount in anyone’s book. Will the Court order the state to take on such a huge extra financial burden or will it argue that the resources just are not available to do so? I am not so sure it will be so bold and at the same time it will be extremely reluctant to take away the benefit now given to women between the ages of 60 and 65 because that would look like punishing the women. Moreover, if this is presented as an affirmative action measure to assist women who have been previously discriminated against, then the state will have a better chance of justifying the different treatment because it is quite easy to satisfy the test for affirmative action measures. All the state will have to show is that the measures are targeting a disadvantaged group, are reasonably capable of addressing past discrimination and will, in the long term help to achieve true equality. The interesting issue here on which the case may well turn, is that the real suffering here is not based on the sex of those complaining, but on the basis of their economic status. They suffer because they are poor men who have no other way of supporting themselves. But economic status is not one of the prohibited grounds of discrimination (like, race, sex and sexual orientation) explicitly listed in the Constitution. The Court can find that poverty is a status sufficiently similar to those grounds explicitly listed, and that it could therefore form the basis for a claim of discrimination. But this would be a bold thing to do in a capitalist society in which the government is following neo-liberal economic p[...]

Dali Mpofu should rather not dabble in constitutional law


It’s a good thing Dali Mpofu, Group CEO and Editor-in-Chief of His Masters Voice also known as the SABC has stopped arguing constitutional law cases because he obviously has no clue of how to interpret the Bill of Rights. In his letter announcing the SABC’s resignation from the South African National Editors Forum (SANEF) he argues (quite correctly) that at the heart of our Bill of Rights is the protection of human dignity and that most rights flow from the understanding that peoples’ human dignity should be respected and protected. But then he makes a logical jump: human dignity must trump the right to freedom of expression and newspapers therefore never have the right to publish things that would affect the personal dignity of an important elected representative like our beloved Minister of Health. We cannot remain quiet while our mothers and our democratically chosen leaders are stripped naked for the sole reason of selling newspapers. The problem is that Dali – like many lawyers still stuck in the pre-constitutional common law paradigm – confuses the personal subjective dignity of an individual usually protected by the common law and the very different objective constitutional right and value of dignity. The constitutional notion of dignity flows from the assumption that every individual has an inherent human dignity because he or she is human being. The apartheid government did not respect this dignity because it denied individuals the right to moral agency and thus the right to define for themselves who they are and how they want to live their lives. If one denies people the right to an identity, one denies that the person has an inherent moral worth and thus deny that person her dignity. Protecting a person’s dignity in the constitutional sense therefore has very little to do with ensuring that important politicians do not have their feelings hurt by the truth - the common law of defamation takes care of that potential harm in appropriate cases. The Constitution, on the other hand, deals with a far more profound and important notion of dignity because it aims at creating a society in which each human being’s humanity is equally respected – whether one is a mother of the nation, an elected official, a homeless DA supporter or even Dali Mpofu. This notion of dignity is aspirational and deeply optimistic. It suggests that humans are so special that we should respect their moral agency equally so that they can decide for themselves who they are and how they want to live. In short: a society where the equal moral worth of all will be respected. But we cannot decide for ourselves how to live and who we are, we cannot begin to have moral agency, if we are not informed by the media about what is happening in the world and what our options are. To suppress information of public importance is to treat people like children and hence to disrespect their human dignity. Politicians and boot-lickers of the powerful and influential who claim that their personal subjective dignity should trump the objective, more profound, dignity protected in the Constitution, are therefore self-serving charlatans hiding behind a completely false understanding of the Constitution. The constitution protection of the dignity of every person therefore demands that we protect the vigorous, critical and fearless media from interference by self-serving politicians and other higher ups. What people like Dali Mpofu really seem to think is that the Constitution should protect politician[...]

Floor crossing and politics


A thoughtful reader took issue with my post on floor crossing, arguing, first, that the the "argument that, so long as the legislature's procedure is followed, any amendment [of the Constitution] may stand is excessively legalistic" and, second, that my "argument that any attempt to judge the merits of floor-crossing would be an unwarranted involvement of the Court in politics is disingenuous" because no court is above politics. On the first point: The Constitution is the highest law of the land and in a Constitutional state like ours any law or state action and many private acts that contravene the Constitution will be declared invalid because of this clash with the higher law. For this reason it is rather difficult to change the Constitution and this can only be done in South Africa if a complicated procedure is followed and, for the most part, if at least two thirds of the members of the National Assembly and six of the nine Provincial delegations in the NCOP agree to the amendment. But those people who made the Constitution did not make it impossible to change any part of the Constitution. I cannot see what is formalistic about insisting therefore that if the correct procedures are followed to amend the Constitution, those amendments should not be testable against other provisions in the Constitution. How can one part of the Highest law be tested against another part of that same Highest law if both parts are of the same height, so to speak? Also, why should unelected judges be given the power to thwart the will of the people to change the Constitution as expressed by two thirds of its representatives. It would be extremely undemocratic and would fly in the face of any semblance of the separation of powers doctrine to do so. The Constitution itself give the legislature and not the Courts, the power to decide if and how they want to amend the Constitution and the Court cannot take back this power which was given to another body. If we do not want the politicians to change the Constitution, we should not vote for them. The courts cannot protect us in every situation from our own stupidity as voters and cannot act as a super legislature - that would be rule by judges and once Judge Hlophe becomes Chief Justice you will see how quickly everyone agrees what a bad idea THAT would be! On the second point: I chose my words very carefully when I said that the Court felt that there was a danger that it would descend into the overt political arena if it declared invalid the amendments to the Constitution. Of course courts play a political role - both in constitutional and other cases - and I will be the last person to deny this. Courts make decisions that will have consequences for people and these decisions are based on the judges' interpretation of the law. Texts do not interpret themselves and judges have to make choices about what kind of interpretation and hence what kind of outcome they wants. And these choices have legal and political consequences (and the two things can not really be separated in any case). But judges are not completely unconstrained. They have to try and make decisions and must justify them in ways that will be legitimate and coherent and will not undermine their credibility and influence. For their decisions to have a semblance of legitimacy they must be more than mere party political decisions based on the beliefs of the judges - or at least the decisions must appear to be more than party political choices.... In my post I was pointing out that in the F[...]

Floor crossing: don't blame the Constitutional Court


We are now right in the middle of the distasteful spectacle officially known as the “floor crossing window”. It is a sad spectacle that undermines public confidence in politics and it should be changed. This much almost everyone with a modicum of integrity agrees on. But many people – including some informed journalists – have gone further, blaming the Constitutional Court for not declaring the legislation unconstitutional and arguing that the Court had suffered a self-inflicted wound because of this decision. I, however, am not so sure this criticism of the Court is justified, although I think the Court's credibility did (wrongly) suffer because of their Floor Crossing decision. It is important to remember that the legislation which legalized floor crossing at national level was in fact two amendments to the Constitution. In the United Democratic Movement v President of the RSA the Constitutional Court made it clear that when Parliament amends the Constitution in the constitutionally prescribed way, these new provisions of the Constitution cannot be challenged because they are in conflict with any of the other provisions of the Constitution. The Constitution, as amended, must be read as a whole and its provisions must be interpreted in harmony with one another. There is therefore very little scope for constitutionally challenging amendments to the basic law. If Parliament amended the Bill of Rights to scrap the right to property, say, the Court will not be able to do anything about it – as long as Parliament followed the correct procedure in doing so. Those who challenged the amendments to the Constitution had to argue that the amendments were so far-reaching that they undermined the “basic structure” of the Constitution or that they were inconsistent with the founding values in the Constitution which guarantees a “multi-party system of democratic government” and thus had to be passed by a 75% majority of the National Assembly. But it would be exceedingly difficult to show that the amendments were so far reaching that it basically abolished democracy. The unanimous Court agreed that the system of floor crossing in South Africa may not have been the best way to arrange our democratic system. However, it argued that this did not mean that democracy itself was being abolished. Where laws prohibited political groups from organizing, promoting their views through public debates and participating in free and fair elections, there would have been a fundamental interference with multi-party democracy and this would have been constitutional problematic. But floor crossing merely allowed members of Parliament to change parties half way through the life of the Parliament. This is less problematic, say, than the Westminster first-past-the-post system in which all the votes cast in a constituency for the losing parties are in effect wasted. The Court also pointed out that many parties (including the Democratic party of Tony Leon) argued vociferously in favour of floor crossing during the constitutional negotiations. For the court to interfere with the amendment of the Constitution to allow floor crossing – a politically contentious issue on which parties differed and had often changed their minds – would bring the Court into the overt political arena, which would impinge on the separation of powers principle. Given this context, I think it is difficult to imagine the Court finding cogent constitutional reasons to d[...]

Kenya shows the way


President Thabo Mbeki has a habit of writing ANC Today newsletters about the good news stories of Africa but I suspect he will not refer to the Kenyan example in the near future. You see this past weekend the two oppositions groupings chose their candidate to represent them in the Presidential elections in December.

Both parties had several candidates who had declared their ambitions months in advance and on the weekend each of them got to present their platforms in front of the party faithful who then could choose their candidates in a secret ballot. Democracy in action.

On Saturday we had a huge Nama Choma (a braai with lots of beer) chatting to the local elites, including some judges of the High Court. In between jokes about the drinking and the eating and the fact that some group had lodged a case in the Kenyan Constitutional Court suing Pontuius Pilate, Tiberius and others for the unfair trial of Jesus (really!) we returned to the topic of the election.

Everybpody was deeply interested in the outcome of the two party elections and we speculated on the chances of these candidates against the incumbent, President Mwai Kibaki. This was important, but it was not a life and death fight between some "enemy" and the forces of light.

The contrast with South Africa and the behaviour of President Mbeki and others in the ANC was striking. Perhaps because Kenyans threw out the equivalent of the ANC after more than 35 years in power four and a half years ago, they have matured politically and see the election for what it is: An important but ordinary contest between rival parties.

Maybe we will only be able to have real elections for ANC leaders oncethe ANC is thrown out of power for the first time? Maybe President Mbeki should come and visit Kenya to see how it is done?

On such a visit he may also be shocked by how tedious many Africans in other parts of the world find talk about race and about the "enemies" of Africa in general and Africans in particular. But the ANC needs enemies to quell the enemy within, so we are unfoirtunately stuck with this discourse for time to come.

PS: After writing this post, I read an interesting piece in The Nation, reminding me that the then ruling Kanu party (the equivalent of the ANC in Kenya), broke up shortly after it became the first party in Kenya to have a free leadership election which was soon followed by their electoral defeat. Maybe that is the lesson members from the ANC would take from Kenyan politics?

PPS: I was sitting in an internet cafe with a keyboard that hardly worked when I typed a first version of this post, so it was riddled with typos. I have now fixed it up.

In Kenya.....


I am at a conference in Nairobi so there will be light posting if at all until after the weekend.

Zuma for President?


My slightly tongue in cheek statement a few days ago that, given the behaviour of our Dear Leader lately, a Jacob Zuma Presidency is looking more and more attractive, elicited quite a lot of reaction. After all, Mr. Zuma does often ask for his machine gun and is also no stranger to the inside of our courts so he hardly seems like a suitable candidate for the top job.

The sad fact is that Jacob Zuma and Thabo Mbeki seem to represent the worst the ANC could offer in the line of leadership and also seem to bring out the worst in each other. We always blame President Mbeki for his paranoia and his tendency to spot enemies under every bush while warning us against the Dark Forces out to destroy the ANC, leader of the national democratic revolution.

But of course, although the President started this sad decent into the world of conspiracy theories and victimhood way back when he forced Mr Zuma to declare publicly that he had no ambition to become President, Mr. Zuma has neatly used this atmosphere of suspicion against the President to elicit sympathy from the masses of our people.

Now the two both fan the flames of conspiracy and victimhood in attempts to get the upper hand in the so called succession battle. In the process they are both hurting the ANC and, of course, the country.

In most other democracies Mr Zuma would have been politically dead long ago. Although he has not (yet) been convicted of any crime, his financial adviser Schabir Shaik, has been convicted of giving him a bribe. Yet he Mr Zuma never explained how this does not make him a crook himself. He used to say that he wished he could get the opportunity to tell his side of the story but when he was charged and given the opportunity to do just that, he and his lawyers used the vast resources provided by the state to do everything in their power to prevent him from having to provide his side of the story.

Although Mr. Zuma might never be convicted of a crime, he will remain deeply tainted. As a politician it is simply not good enough to say he has a right to use any means necessary to prevent the prosecution against him from taking place. Reasonable voters must all surely now ask what he has to hide and whether we really want to have a President who is unwilling to explain why he took more than R1 million from a convicted fraudster for whom he did several political favours.

That said, at least he is not Thabo Mbeki. He might have had sex without a condom and might have claimed that taking a shower helps to prevent HIV transmission but at least he has never doubted the link between HIV and AIDS and at least he has not endorsed a Health Minister who believes people must be given a choice between taking anti-retroviral drugs and garlic and beetroot.

So, I will not vote for the ANC while either Mbeki or Zuma leads the organisation, but if I had to choose between the two I am not as sure as I was a year ago that I would choose President Mbeki. Maybe Mr Zuma will listen to advice? Maybe he will admit mistakes and face up to them? Maybe he will show that he cares about the suffering of ordinary people. Maybe he would feel so embarrassed about taking a bribe that he will come down heavily against corruption in government.

Stranger things have happened in politics.