constitutionally speaking

constitutionally speaking is moving

2007-10-06T06:06:00.000+02:00

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 http://constitutionallyspeaking.co.za. 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

2007-10-05T11:14:00.000+02:00

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?

2007-10-04T08:55:00.000+02:00

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 him.

The National Prosecuting Authority Act of 1998 strikes a fine balance between the need to uphold the Rule of Law, on the one hand, and the need to ensure that the NPA is political accountable, on the other. While confirming that the Minister of Justice has a duty to exercise final responsibility over the NPA, the Act envisages that this responsibility will be exercised by requiring the NPA to provide the Minister with information about the decisions taken by the National Director and the reason for such decisions.

The law makes clear that President Mbeki cannot fire Adv. Pikoli because of an “irretrievable breakdown of trust” between the Minister and the National Director. It seems to me there is also nothing in the act that allows the President to fire the National Director for making decisions that the President thinks is not good for national security. We are not paying the President to second-guess the decisions of the National Director and he has no power to second-guess the Director.

As we have seen before with the HIV/Aids debacle, the President is not infallible. No matter how certain he may be of his own view, he may well be wrong. It is exactly because Presidents often think they know everything and ought to be able to decide on everything that we have Constitutions with checks and balances that prevents Presidents from interfering in the way President Mbeki seems to want to interfere now.

If the President is allowed to get away with firing the National Director for vague and unspecified "national security" concerns, we are on our way to a Putin style "democracy" in which His Royal Highness has the final say in everything important - including who gets investigated and charged and who not. And then, well, good by Rule of Law and hallo to a national security state.

Et tu Zuma?

2007-10-02T03:54:00.000+02:00

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?

2007-10-01T04:40:00.000+02:00

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

2007-09-28T06:17:00.000+02:00

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

2007-09-26T03:23:00.000+02:00

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

2007-09-25T02:13:00.000+02:00

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 Mbeki might not have a legal leg to stand on.

This is because the National Prosecuting Authority Act has not yet been amended and there is therefore no legal duty on Mr. Pikoli to obey instructions to deal differently with the Scorpions as there is no legal basis for such an instruction. As an independent institution the prosecuting authority should not take instructions from the President, the Minister of the Commissioner of Police.

The statement from the Presidency suggests that the President and the Minster do not understand or support this important constitutional principle and believe that Mr. Pikoli has a duty to take orders from them. This is unfortunate as it creates the impression that the President and the Minister is interfering in, and thus undermining, the administration of justice in this country.

In any event, the cryptic announcement of the Presidency leaves open more questions than answers. The President owes it to the country to take us into his confidence and tell us the real reason for the suspension. If he fails to do that, most reasonable people will have good reason to suspect that he is abusing his power for political gain and that the whole saga is in some way or another related to the succession battle in the ANC.

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

2007-09-22T08:56:00.000+02:00

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.)

Manto officials unwise (perhaps even stupid)

2007-09-22T04:32:00.000+02:00

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 Minister’s fate.

Why would one worry about whether poor people are dying in our hospitals when one has an old friend to support and defend at all cost?

Mbeki's AIDS denialism explained

2007-09-21T01:25:00.000+02:00

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

2007-09-19T09:09:00.001+02:00

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 in the Cape Times.

In that sense Mr Chikane does have a point when he complains about the media. The only time the media shows any scepticism or any eagerness to follow up claims is when government representatives make those outrageously false claims. What Mr. Chikane is asking for is that the same leeway given by the media to shysters like Chabaan and Uys should also be shown to the ANC. If that had happened, we would all now have believed that HIV does not cause AIDS and that dear uncle Thabo needs a third term to save South Africa.

Another boot-licker shows contempt for the people

2007-09-17T11:18:00.000+02:00

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....

2007-09-14T10:48:00.000+02:00

Jacob Zuma's tax problem....

2007-09-14T00:59:00.000+02:00

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

2007-09-13T03:29:00.000+02:00

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 Fifa and the tourists driving from the airport, so they will cost a lot of money and will therefore not be affordable to most of the Joe Slovo residence.

The Minister knows this, her officials know this and the protesting residence know this too. No wonder they are protesting and no wonder they do not want to cooperate. Only people without any self respect agree to cooperate with a government hell bent on taking away your rights.

Steve Biko

2007-09-13T00:03:00.000+02:00

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?

2007-09-12T08:23:00.001+02:00

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 policies because many government policies in effect discriminate against the poor and would then become constitutionally suspect.

The government lawyers appearing before the Constitutional Court are often badly prepared and do not always present cogent and rational reasons for the government policies. If this was the case here, the men still have a chance to win, but I would not be particularly confident if I was them.

Dali Mpofu should rather not dabble in constitutional law

2007-09-10T07:00:00.000+02:00

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 politicians and others important people from the truth – especially where the truth would reflect badly on that person and may reveal that the person is incompetent, corrupt, dishonest, craven or just plain stupid. Such revelations would obviously be personally hurtful and would affect the persons subjective dignity, but it would have nothing to do with the Constitutional concept of dignity.

To argue otherwise is obviously dangerous and perverting of the Constitution and should be resisted at all cost.

Floor crossing and politics

2007-09-07T00:51:00.000+02:00

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 Floor Crossing case the judges felt that there was no plausible reason outside overt politics for them to intervene in the case. The "legal arguments" ran out and all that remained were arguments that in appearance and in reality would be based on specific party political type preferences - and would thus appear to be overtly political. The Judges felt that making such a choice would be bad for their credibility as a court and thus declined to declare invalid the Floor Crossing legislation.

I do not think this decision was unwise. The judges could have usurped the power of the legislature and could have declared the Floor Crossing invalid and this would have given them some cheap popularity with the chattering classes. But how would this have made them any different from Jacob Zuma or his supporters calling for that bloody machine gun? They would then also have become populists. And is that not the very reason we have a Court: to save us form the populists when it really matters....

Floor crossing: don't blame the Constitutional Court

2007-09-06T01:26:00.000+02:00

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 declare the constitutional amendments invalid - which does not mean the provisions are good or wise, of course.

The biggest problem with the present system of floor crossing is that it allows two window periods in the life of the legislature for members to change political parties without losing their seats – as long as at least 10% of the parties members in that legislature crosses the floor.

The 10% threshold favours the ANC and disadvantages every other party because nationally more than 27 ANC MP’s of the National Assembly would have to cross the floor to another party to make it valid, while a single crostitute can validly cross the floor from any party with less than 10 members in the National Assembly.

I think the system could be made better if this threshold was lowered to 2%. This would also make the ANC vulnerable to floor crossing and would thus make it more fair. I am also in favour of a 2% threshold for a party to obtain any seats in the National Assembly. This would immediately eradicate all the smallest parties from Parliament and this would be a good thing. Most of these one member parties are formed because their leaders can become party leaders in the National Assembly and thus can acquire more perks. Such a 2% threshold will make it impossible for people to jump ship to one person parties.

In Germany there is a 5% threshold for membership of the Legislature and this has eradicated smaller parties with sharply partisan or narrow interests. Smaller parties in Germany are forced to come together and to build consensus and this moderates their platforms.

In South Africa a 2% threshold will also force parties to form coalitions and to work together - something that might become very important if we want to hold South Africa together and want to make sure that populism and ethic politics do not take hold here.

The votes “wasted” on parties who failed to get the required 2% would then be distributed pro-rata to the other parties. That way, only serious parties with demonstrable support would ever make it to the legislature.

Kenya shows the way

2007-09-04T01:21:00.001+02:00

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.....

2007-08-30T04:20:00.000+02:00

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

Zuma for President?

2007-08-28T09:36:00.000+02:00

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.

What kind of enemy are you?

2007-08-27T05:26:00.000+02:00

I had so much fun lambasting the anonymous writer on the ANC Today website yesterday, that I did not notice the very carefully drawn list of the "enemies" of the "national democratic revolution, the ANC and the masses it leads". Apart from those forces who were opposed to the ANC revolution before 1994, the writer identifies the more devious enemies as follows:

We must also recognise the reality that this situation makes it very easy for some who might have been inspired temporarily to attach themselves to the ascendant revolution to change their positions. This includes those who might find greater comfort among, and in the positions advanced by a necessarily sophisticated opposition to the political vanguard of national democratic revolution, in the aftermath of the victory of the democratic revolution.

It also encompasses those who, for partisan reasons, might find themselves acting in collusion with the ideological opposition forces which would consciously avoid presenting themselves as opponents of the national democratic revolution, while openly positioning themselves as adversaries of the vanguard movement of the national democratic revolution.

Now I am wondering where I fit in. I am surely not one of those "enemies" who feel more comfortable with the "sophisticated opposition" than with my previously beloved ANC and has therefore felt the need to switch sides.

I don't even believe that there is a sophisticated opposition in South Africa - unless one includes civil society opposition groups like the Treatment Action Campaign, of course. Characters in the official opposition (think Theuns Botha and Dougie Gibson) are about as sophisticated as a sheep farmer from Putsonderwater and I would feel very uncomfortable to share a room with them - let alone a party.

But now that I have called the national democratic revolution a load of codswallop, I am clearly also not an "enemy" "consciously not presenting myself as an enemy" of said revolution while opposing the ANC's vanguard role in it.

O dear, I suppose the learned writer forgot to include those of us who are "enemies" of the ANC because we shockingly believe that the aim of political parties in our democracy should ideally be to change (for the better) the social and economic conditions under which especially poor and marginalised people live, while respecting and expanding the rights and freedoms that individuals need to even begin to make important life choices.

We are obviously enemies who, under the guise of supporting social and economic transformation of the masses of our people, wish to limit the power of the ANC to tell us what to think and say and do.

What kind of enemy of the ANC and the national democratic revolution are you?

Maybe a Zuma Presidency wont be that bad...

2007-08-26T08:50:00.000+02:00

Given the way the President has been behaving over the past few weeks I am seriously starting to wonder whether Jacob Zuma could be worse. At least we will have more fun with Mr. Zuma as President. Like this advert for the "Mshini Wam" ringtone. Not having dsiplayed much of a sense of humour since his elevation to the Presidency, adverts like this must drive President Mbeki nuts...

National democratic codswallop

2007-08-26T08:19:00.000+02:00

I am such a dunce. There I was thinking that in 1994 the opposing parties (ANC and NP mostly) negotiated a settlement which established a constitutional democracy in which both civil and political and social and economic rights would be enforcement by an independent judiciary.

Now I discover on the ANC Today website that we are not living in a constitutional democracy after all but in a “revolutionary national democracy". In an unsigned article ominously titled “A fundamental revolutionary lesson: The enemy manouevres (sic!) but it remains the enemy / Part I” the writer tells us that the ANC is the “primary motive force” of this national democratic revolution.

Of course, the forces opposed to this ANC revolution would never “give up their offensive to weaken, defeat and destroy the ANC”. Unfortunately the ANC had decided to put up with these “historical forces of reaction” and thus the enemy has the cheek to continue “to exist and freely represent their views and interests within our evolving national democracy.” To quote from the document:

Wisely or otherwise [my italics], and by conscious decision of our movement and the masses it leads, our national democratic revolution has deliberately avoided any resort to the “Jacobin option”. It has therefore not used revolutionary force to suppress and destroy its historical opponents, as did the English, French, Russian, Chinese and many other revolutions.

Well, what can one say about a writer who suggests that it might have been unwise not to kill all those who opposed or criticised the ANC? What does one make of the messianic assertion that only the ANC can lead this revolution and that its leaders thus have a duty:

at all times and in all field of human activity, [to] assert and exercise their hegemony as the leader of the process of the fundamental social and national democratic transformation of our country. Both in the field of theory and in practical activity, this united force must act resolutely and successfully to protect and advance its interests.

How does one respond to a writer who seems to think that the legitimate political opponents in our constitutional democracy, a critical media and civil society organisations critical of the ANC are all “enemies” not only of the ANC but also of the “national democratic revolution”? Does this not imply that the ANC – the God anointed leaders of the revolution – would have a right, in defence of this revolution, to prevent the “enemy” from every taking over the state, using all means at its disposal? And what on earth could be “democratic" about such a view?

There are many people in the ANC who are surely embarrassed by this kind of Stalinist rubbish. Defence Minister Mosiuoa Lekota only last week wisely remarked that in our democracy the ANC will only continue winning elections for as long as it continued to be trusted by the people.

The argument that the ANC, historic and natural leader of the national democratic revolution, must take control of all levers of state power and must “defend” the national democratic revolution at all cost, is a dangerous and anti-democratic argument. It presupposes that democracy is not an end in itself but is only the means through which, in the present phase, the ANC has chosen to achieve the "national democratic revolution".

This means that other important players in a democracy (the press, opposition parties, civil society) who disagree or criticise the ANC, are enemies of the state and only survive and are only tolerated through the benevolence of the ruling party.

Of course, in a true democracy the establishment and deepening of democracy is an end in itself. Parties compete for votes based on their programmes and policies. Sometimes a party wins and sometimes it loses the election. If the opposition wins an election and it believes that the “national democratic revolution” is a lot of dogs bollocks, it has every right to rule the country accordingly – until the next election when its performance will be judged by the electorate.

And of course if one is the leader of the party at the vanguard of the “national democratic revolution”, and if all those who criticise the party are viewed as enemies of the party and the state, this means that the party and its leader are omniscient and never have to face reality or admit mistakes.

Sounds familiar, doesn’t it? Wonder whether our Dear Leader did not have a hand in writing this dangerous, reactionary piffle?

Manto and Mbeki: how far can criticism go?

2007-08-23T03:52:00.000+02:00

Are Ministers and the President entitled to a certain amount of respect and deference because of their important positions in our society or should they expect to be subjected to more searing criticism and questioning than the rest of us?

It seems as if the cabinet thinks that members of the Executive are entitled to special treatment and that their credibility may not be questioned . Government spokesperson Themba Maseko said this morning that the Cabinet took a dim view of the "distasteful coverage" of the Minister of Health, particularly the unlawful publication and theft of her medical records from a hospital. "The sacrosanct principle of doctor-patient confidentiality should be respected at all times, and its application could not be dependent on a person's class, position, gender or race."

It is true that public figures do not forfeit their right to privacy just because they run the country - even when they run it very badly like Mbeki and Tshabalala Msimang. Such figures also have a right to expect that what happens between them and their doctors stay private. But the facts in this case seem to suggest that the doctor-patient confidentiality argument is a red-herring.

The Sunday Times on Sunday made very specific allegations that the Minister of Health had been given preferential treatment to enable her to get a liver transplant when she did not qualify for such a transplant because of her alcoholism. In making these allegations, the newspaper did not rely on information that could only have been known by the doctor and his patient.

The newspaper asked questions about the Minister's treatment based on evidence that she was an alcoholic. They also reported that other medical practitioners had questioned whether she had not jumped the queue for the liver transplant. The legitimate question was asked whether her doctors had not broken rules and had not lied to the public when they assured us that everything was above board.

I cannot see how this reporting was in breach of the doctor-patient confidentiality rule unless one interprets this confidentiality rule to be so broad as to prohibit any discussion or speculation about the treatment of a patient by a doctor. Such an interpretation would be absurd because it would preclude the media from ever uncovering any maladministration or abuse of power in cases of medical treatment.

Where this treatment is controversial and perhaps based on abuse of the politicians power, newspapers would have a duty to report on it - as long as they do not report on information that only the doctor and the patient could have shared.

The doctor-patient confidentiality issue mentioned by the cabinet is therefore besides the point. Like the sub judice rule it is being used here to try and shut out any questions about abuse of power and whether the Minsiter really is a drunk and a thief. Interestingly enough, the cabinet did not address the substantive issues, namely whether the Health Minister had jumped the liver transplant queue or not. They therefore never disputed the factual basis of the report but is trying to change the subject - classic tactics if you do not want the public to know what is happening.

The spokesperson for the cabinet also criticised those who suggested that President Thabo Mbeki might have interfered to secure a liver transplant for his Minister of Health and stated that caution had to be exercised when criticising the head of state.

We think it is absolutely essential for South Africans to show a level of respect for the office of the head of state ... If you look at the statement [by the DA], it says the Public Protector must investigate this allegation and the integrity of the office of the president was being called into question ...

This is a complex issue bedeviled by race, but it seems to me also deeply problematic to argue, as Mr Maseko in effect does here, that it is inappropriate ever to question the integrity of the head of state. President Mbeki had denied involvement, but it surely is legitimate to ask the question.

Firstly, we know that heads of state often have little or no integrity - think Richard Nixon or George W Bush. Secondly, we know that President Thabo Mbeki and those in his office has a particularly tortured relationship with reality and "Truth". The President likes to re-interpret it to deny problems and the Minister in his office has on occasion provided answers to questions which turned out to be, well, untrue.

In any case in a democracy where the Rule of Law is upheld, a Head of State cannot expect to get a free pass. I would agree that given our history there might be a need to be sensitive to the tone used when questioning the ethics of the Head of State - calling him a mass murdered might in certain circumstances be inappropriate. But for the President's Spokesperson to suggest that one is not allowed to question the integrity of a Head of State is rather misguided. Is this also part of the attempt to change the topic?

No one is above the law and no one is beyond scrutiny. To suggest that the President is entitled to a free pass because he is our head of state is to question the very basis of our Constitutional democracy - namely that everyone is equal before the law.

Want to sign this petition?

2007-08-22T05:31:00.000+02:00

If you feel aggrieved about the firing of Deputy Minister Nozizwe Madlala Routledge, you may want to sign this Internet petition. It won't bring her back but it might make you feel better...

Manto and doctors must sue or else....

2007-08-21T09:19:00.000+02:00

The Sunday Times is now being attacked from all sides for publishing the sensational allegations that Health Minister Manto Tshabalala Msimang was convicted thief and alcoholic and that the real reasons for her liver transplant (alcoholism) was covered up by medical staff. The National Working Committee (NWC) of the ANC (but not Kgalema Montlante!) issued a statement yesterday attacking the Sunday Times for its "character assassination" of Health Minister Manto Tshabalala Msimang. The statement read in part:

“The national working committee views these reports with grave concern, not merely because [they] violate an individual’s right to privacy, but because [they] affect the right of all South Africans to expect their medical information to remain confidential."

But the privacy of the Minister is not really the issue. Surely the statement from the ANC should have disputed the accuracy of the claims made by the Sunday Times. The "character assassination" by the Sunday Times does not stem from the breach of the Minister's medical privacy, but from seriously defamatory statements about her drinking habits and about the abuse of power and corruption by the Minister and her Doctors.

The only way the Minister, the doctors involved and the Hospital can restore their reputations is by instituting a defamation action against the Sunday Times. If the allegations are untrue, they will be able to sue the pants of the newspaper and probably get a pretty penny out of the deal.

If they fail to sue, the only reasonable conclusion to be drawn would be that the newspaper report was correct and that there was corruption involved in the liver transplant. If this happens, the Minister should be fired and the Doctors scrapped from the medical roll.

The Presidency has asked for evidence of wrongdoing before taking action against the Minister. All the proof it may need will be provided by the absence of a defamation suit. But of course, even then the President will not fire the Minister because he will look weak and disloyal if he does. This means he is now probably stuck with a Minister which may well prove to be a thief and drunk and an abuser of her power.

I give the Minister and her Doctors two weeks to institute defamation proceedings. If they fail to do so, I will assume that the story is true.

Will Mbeki be fired at end of the year?

2007-08-20T04:06:00.000+02:00

Xolela Mangcu raised an intriguing point in his column in The Weekender on Saturday. He hints that there may be another reason why President Mbeki may wish to retain the Presidency of the ANC at the December conference: short term job security.

The President of the country is elected by the members of the National Assembly and this means that the leader of the party that can gain the support of more than 50% of the members of the National Assembly will become President. It also means that if the President loses the support of the majority of members of the National Assembly, he can be ousted.

Article 102(2) of the Constitution states:

If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.

The ANC has a large majority in the National Assembly and its members are under strict party discipline. The party can therefore easily recall President Mbeki after the election of a new ANC President and can elect the new ANC President as President of the country. That would solve the "two centres of power" problem, Mangcu suggests mischievously.

The new President could then serve the rest of Mbeki's term and then begin to serve his two terms in office. This is because section 88(2) of the Constitution makes clear that serving only part of one term would not constitute a "term" for the purposes of the rule restricting a President to serving two terms.

A similar thing happened to PW Botha after he relinquished the leadership of the National Party to FW de Klerk, and De Klerk and Pik Botha then turned around and ousted him from the State Presidency. But the ANC is not the National Party and the apartheid state is not our constitutional democracy. If Mbeki is ousted, it would therefore be a truly seismic event for the ANC and for the country. Respect for and loyalty towards leaders is deeply ingrained into the ANC's official culture (although not always respected behind the scenes).

Such a scenario would therefore only be possible if President Mbeki overplays his hand to such a degree over the coming months, that party leaders feel they have no choice but to oust him or if information comes to light that he has used "dirty tricks" or had inappropriately misused the levers of powers against one of his opponents.

Is this a possible scenario? Even cynical me thinks it a bit far fetched. But then who would have thought that the Health Minister would be accused of being a thief and a drunk by one of the largest newspapers in the country?

A thief and a drunk, or just a sad victim of tabloids?

2007-08-19T11:26:00.000+02:00

I feel torn about the explosive story in the Sunday Times this morning that Health Minister Manto Tshabalala Msimang is "a drunkard and a thief". I have to admit (rather shamefully) that on one level it gives me great pleasure to see what was left of the Minister's reputation destroyed by the newspaper.

Tshabalala Msimang's management of HIV/AIDS has been so arrogant, so criminally negligent, so maddeningly wrong, that it is difficult not to lay at least some blame for the unavoidable death of hundreds of thousands of South Africans from AIDS related illnesses at her door. Reading the article in the Sunday Times thus gives as much satisfaction as seeing the baddies in a Nazi movie kicked in the balls.

But of course, our Health Minister is a real person of flesh and blood - not a character in a movie. She has a family whose members have probably suffered greatly because of her alcoholism and tantrums. I therefore wonder whether the newspaper had not gone too far in invading her privacy by revealing that she was an alcoholic and that she had been convicted of theft more than 30 years ago.

Is this not a prime example of a new kind of dangerous tabloid journalism that will make the private lives of public persons fair game - no matter how intimate and personal the information? Do we really need to know these things? Will it make our democracy stronger and better?

One may of course argue that we have defamation laws and if the Minister wants to restore her credibility she should sue the Sunday Times. But it seems pretty certain that the reports are at least partly true, so a defamation action - even if successful - would not restore her credibility. On the contrary, a defamation action will probably be disastrous for her because the newspaper will be able to present witness after witness to tell lurid stories of our drunk as a skunk Minister.

Yet - the sensational headline aside - on balance I think the newspaper was justified to publish the story. The fact that the Minister is an alcoholic and drank like a fish is not relevant on its own, but it does become relevant against the background of her liver transplant and questions about whether she jumped the queue. The fact that she was convicted of theft might also seem besides the point until one realises that it could show a pattern of dishonesty on her part.

This story is relevant and important because at its heart it is about an incompetent and dishonest Minister who abused her power to obtain a new liver that could have saved the live of a more deserving patient. If true, the allegations would show that the Minister had abused her power in a most disturbing and illegal way to save her own life, in the process depriving another person of life-saving medical treatment.

It would also prove that the Minister has a history of dishonesty - stealing items from her very own patients for goodness sake - and that her queue jumping was therefore part of a long standing pattern of breaking rules. Obviously if true, her continued presence in the cabinet has become a national scandal.

The only way to clear her name is through defamation action, but as I pointed out above, she could only afford to do this if the allegations were false. I she thus fails to institute a defamation action, the President would be obliged to fire her. But of course he won't. And that is a national scandal all of its own.

Mbeki: Sad prisoner of Western culture and values

2007-08-17T01:25:00.000+02:00

With a President like Thabo Mbeki there is bound never to be a dull moment in South African politics. (How boring it must be to live in the Netherlands or Sweden!). Our President's most recent ANC Today letter is particularly shocking and salacious because it attacks fired Deputy Minister Madladla-Routledge and those who support her in the most apocalyptic of terms.

Towards the end of the long and slightly rambling letter, President Mbeki gets to the heart of his complaint, revealing more of himself, perhaps, than he might have intended. To my mind the letter tragically demonstrates President Mbeki's great weakness which has clouded so much of the good work he has done.

He writes:

In the recent past the ANC, the government and our people as a whole have had to contend with elaborate and sophisticated disinformation campaigns intended to destabilise the ANC, the government, our democracy and country, not disconnected from similar anti-ANC campaigns during the apartheid years...

Whatever the endgame in this regard, we, and the overwhelming majority of our people, will have been painfully alerted to the fact that not everybody in our country and abroad, is happy that the ANC enjoys the confidence of the masses of our people. Equally, others are unhappy that, contrary to the predictions of the doomsayers about African countries, we have managed the transition from white minority rule to non-racial, democratic rule as well as we have, thus making the statement in practice that cannot be disproved with facts, that categorically, there exists no genetic fault that condemns Africa and Africans forever to be defined as a failed continent and civilisation.

Is it the case that to win the approval of the loudest voices in the world of the contemporary global communication system we must behave in a manner that is consistent with their stereotypes? Who will determine who our heroes and heroines will be?

In essence he is saying that there are many people and groups who wish to destroy the ANC because the ANC is disproving the racial stereotype that black people are not competent to govern. All those who criticize the government or point out its failures are therefore an enemy of the people because he or she is merely reinforcing racist stereotypes.

The tragedy of this line of reasoning is of course that President Mbeki seems to have been caught up in an endless and useless game in which all the power is handed back to the white, racists West. Because he is obsessed with the inherent racism of Western culture, he is for ever trying - sometimes it seems at any cost - to show those bastards that he and the ANC can govern just as well as any of those governments anywhere else in the world.

I agree with President Mbeki that there is an inherent racism in Western culture and politics (as well as an inherent homophobia and sexism), but I think it is useless, demeaning and counter-productive to base one's whole world view and one's actions as a leader on a crusade trying to show "them" that you are just as good as they are. This can never be successful because the Western cultural and political influence is all-pervasive and powerful.

In any case, why would we want to compare ourselves to Western governments when we have suffered 300 years of colonialism and apartheid and thus face numerous challenges - many of these not of the making of the ANC or President Mbeki?

Ironically, by hinting in a slightly paranoid and unhinged manner that the Dark Lord Sauron is out to get the ANC, the President seems to play into the hands of Western powers and the South African media whose stereotype of black leaders include the expectation that the leader would not face the often harsh political, economic and social realities in his or her country but would rather mutter on about Dark Forces and Shadows.

The fact that President Mbeki cannot see that Minister Manto Tshabalala Msimang has behaved exactly like the Western stereotype of an African leader - down to the garlic and olive oil, the "dizzy spells", the buffoonish tirades - seems to suggest that President Mbeki is so infested with anger, hatred and shame that he has lost all ability to see a reality shared not only by Western elites, but by most South Africans too.

Thus, he cannot admit that many babies of black mothers have died needlessly because of problems with the health system. He cannot get himself to accept that HIV is mostly a sexually transmitted disease affecting poor Africans in South Africa. He cannot admit that his Health minister has failed to do her job in a scandalous and criminal manner. To admit that one black person in his cabinet is an incompetent fool, would be for him like permitting that all black people are incompetent fools. Thus he is trapped in a never ending cycle of denial and response - instead of doing what needs to be done regardless of what people in the West might think.

But there is also a contradiction at the heart of the letter which makes me wonder whether President Mbeki is as clever as people say. Maybe he uses the discourse of race in a tactical and Machiavellian manner to gain sympathy and to outwit and obliterate opponents? In his letter, President Mbeki states that he knows of no Minister or Deputy Minister with which he interact virtually everyday, who is not an independent thinker and a hard worker, who behaves like a sheep and a mindless sycophant. (He also does not know anyone who has ever died of AIDS related illnesses, but that is another story.) President Mbeki then states that:

Given my constitutional and political responsibilities, defined by our Constitution and statutes, I am quite ready to listen to any contrary view in this regard, regardless of its origin.

Yet, if the rest of the letter is saying anything, it is saying that those who criticise the ANC are racists pigs, enemies of the movement and the people, that they are out to destroy the ANC and thus are not worth taking seriously - no matter to what extent their views might be reflecting what the President would call "objective reality". It seems then, that the President is not really prepared to listen unless what is said is acceptable to him - everything else is part of the Dark Lord Sauron's plot to entrench racism and oppression.

This is very handy, of course, because one never has to admit to any mistakes, never have to say you are sorry and never have to be wrong. On the other hand, if President Mbeki is cynically using race here, it is a brilliant and devious move. After all, if we agree with the President it would mean that we have to accept that opponents of the ANC and of the President (opponents of any race and any party) are evil enemies of the state who can never level valid criticism against the ANC government or the President.

When (and how) to judge the judges?

2007-08-15T03:02:00.000+02:00

The debate sparked by criticism levelled by attorney, Eric van den Berg, in the Sunday Times against a newly appointed black female judge who gagged the Mail & Guardian, is an important one, so although late in the day I decided to add my two cents worth.

In a letter to the Sunday Times Advocate Vuyani Ngalwana (picture) objected to the piece by Van den Berg, arguing that it was inappropriate for lawyers to criticise judges personally and that the criticism could only have been levelled because the judge was black. He argued, in effect, that such criticism would never have been aired had the judge been a white male.

I think it is of utmost importance to assert that lawyers, academics and even members of the public have a right – no, a duty – to criticise judges when it is appropriate to do so. Judges – like the rest of us – are subject to the Rule of Law and cannot be expected to be above criticism and complaint. We live in an open and transparent democracy in which judges should not be shielded from criticism.

Judges – who form the third branch of the government – have immense powers in our new Constitutional order and will often exercise this power in ways that will have political consequences. The work judges do, are therefore just as open to scrutiny and criticism as the work done by members of Parliament of the Executive.

After all, unelected judges have the power to declare invalid legislation passed by the democratically elected Parliament and they are only accountable to higher courts where their judgments are appealed to, and to the general public. Criticism of judges who – in one’s opinion – had made wrong legal or policy choices or had ignored the values of the Constitution serves as an important and valuable check on the exercise of power by the third branch of government.

Despite this strongly held view, I cannot but agree with Advocate Ngalwana that the article by Mr Van den berg was completely unacceptable. I emphatically disagree with the judgment of the Judge in the Mail & Guardian gagging case, and I think an article explaining the legal and policy reasons for such disagreement would have been entirely appropriate.

In the present case the problem was that Mr. Van den Berg went much further than merely explaining why in his opinion the judge had erred by gagging the Mail & Guardian. He attacked the judge personally and left the distinct impression that she was incompetent and stupid because she was an affirmative action appointment.

Such an attack is not much different from the personal attacks launched by the ANC Youth League and others on Judge Hilary Squires after the conviction of Schabir Shaik. Then many of the people who now do not see anything wrong with the Van den berg article correctly pointed out that personal attacks on judges undermine respect for the Constitution and the Rule of Law.

In this case, the attack is even more problematic because it occurs against the background of legal culture still infected with racism. It is difficult to deny that many black judges – and black female judges in particular – are often subjected to thinly veiled racially motivated criticism about their abilities and skills.

I am not saying black judges should be beyond criticism or that such criticism should be reserved for legal journals. Far from it: in my opinion lawyers and academics should not hide in their ivory towers but should take part in robust debate about the wisdom of different judgments by the various Courts.

What I am saying is that those who attack judges personally and hint broadly that they cannot do their job, are really attacking the legal system itself because they plant a seed in the minds of ordinary people who are supposed to rely on the Courts that some judges can never be trusted. This is a dangerous and stupid thing to do, not least because it will further contribute to racial polarization and suspicion mongering in our society.

Con Court life a drag?

2007-08-14T09:46:00.000+02:00

Some people are speculating that the members of the Constitutional Court have recently drifted to the right, but it seems as if the Clerks who assist the learned judges with their research and contribute significantly to the intellectual debates at the Court are less inhibited.

I got hold of the invite below to a party organised by some of the Clerks at the Court. The party was organised in response to the practice in Umlazi, where woman are being forbidden (and in one case stripped naked) from wearing trousers and also in response to the recent murders of lesbian women in Soweto and elsewhere.

Pity some of the (male) judges are not attending as well. Wearing a dress might just help some of the male judges to embrace their (as yet underdeveloped) empathetic side.

Finally he fires someone....

2007-08-14T03:06:00.000+02:00

I have missed the drama of the firing of the Deputy Health Minister, Nozizwe Madlala-Routledge, because of a trip to Senegal, where (I imagine) the services provided at Frere Hospital (even before they shipped in more equipment to please the Minister) would have been regarded as quite good or even excellent.

It is therefore tempting to agree with Business Day editor, David Bruce, that the firing is not that a big a deal. If the Deputy Minister lived in Senegal she would have been hysterical all the time shouting "national emergency" every time she left her air-conditioned office or tried to eat the local food. Besides, article 93 of the Constitution allows the President to appoint and fire Deputy Ministers and if he thinks she was not a team player or that she made the Minister look too stupid and heartless, he would be well within his rights to fire her.

However, the firing must be seen in the light of the President's infamous "bikini" ANC Today letter in which he claimed that the newspaper had lied about the conditions at Frere Hospital in order to hurt the ANC. As I wrote on this Blog, the letter revealed that our President lives in a bubble and is in deep denial about the problems faced by his government.

The firing therefore acts as a stark but scary reminder of why the President is so oblivious to the South African reality as lived and suffered by real people with flesh and blood who cry and bleed and die. In his letter firing Madlala-Routledge, the President said that the Constitution requires Ministers or Deputy Ministers to be team-players, but he seems to think this means that they must always toe the official line and must never be critical of the collective wisdom of the cabinet.

No wonder the President acts in ways that can appear cold and heartless and out of touch with real people and their problems. Obviously those around him are too scared and intimidated by him to tell him the unvarnished truth. I can well imagine that he would use the kind of obfuscating bullying tactics on full display in some of the weekly letters to shut up any advisers or ministers who do not reflect the "objective truth" as ordained by our President.

And now we know that those who are not intimidated, are the only one's who run the risk of being fired. So if you are stupid or lazy (or both), you can keep your job as long as you never question the wisdom of the Chief - even when that wisdom has nothing to do what is actually happening and how people are really experiencing the world.

President Mbeki has many admirable attributes. He is intellectually gifted, often thoughtful, respectful of the Rule of Law and the Constitution, and a stickler for rules. But he seems to me to have a fatal flaw in that he has a messiah complex and thinks he alone knows what is happening and how to deal with things in the best way. Because he sees all facts as ideological, all facts can be re-interpreted from his ideological point of view. This means that those "facts" that do not fit his understanding of "objective reality" can easily be rejected as the inventions of those who are out to destroy the ANC.

This leads our President up blind alleys and into dead-ends.

Thus, President Mbeki decided that a "virus cannot cause a syndrome" and blasted anyone who disagreed with him (ask Tony Leon or Zackie Achmat), thus setting in motion a dynamic which have probably led to the avoidable HIV infection of hundreds of thousands of South Africans and the premature death of just as many who never got access to anti-retroviral drugs.

He fires the Deputy Minister for showing compassion and understanding of the health crisis faced by many ordinary South Africans, yet continues to support a Minister who by all accounts is a nasty, selfish and vindictive individual with a drinking problem. Is it just me who thinks that he will be judged quite harshly by history because of this - despite his many fantastic qualities which otherwise would have made him a hero for many of us.

Slavery is just so last century....

2007-08-10T06:05:00.000+02:00

Yesterday we visited beautiful Goree Island, just a 20 minute Ferry ride from Dakar. At the famous old Slave House the curator told the story of the millions of Slaves captured in Africa and sold into Slavery in the so called "first" world over a period of 300 years, making the point that in Western culture a communal place is reserved for the shame that is the Holocaust, but that the same shame is not reserved for Slavery, which was arguably an even worst outrage against humanity.

When Africans talk about Slavery today and suggest that there should be at least a token restitution for the wrongs committed , the response from the Western Governments and from ordinary Westerners is that, yes, Slavery was bad, but really it was long ago so stop going on about it so much and get on with your lives. The message is: you are such losers for going on about something that happened so long ago and you are really just trying to frind excuses for being so stupid and lazy.

This is a shameful rhetorical trick, but Westerners get away with it because Africans do not, in the larger scheme of things, have the political or economic power to force people to confront the absolute disgusting horror of slavery which helped to build up the economies of Western societies, while at the same time helping to devastate Africa.

And of course, unlike the Germans who spectacularly lost the Second World War, the collective West who supported and benefited from Slavery never lost a War. On the contrary, Western culture (such as it might be) an society are truimphant in the world today. Winners never have to apologise except in the most perfunctory way, and can bully the decendants of those they terrorised and murdered into submission and silence.

The Holocaust is (rightly) burnt into our collective conscience because the families and friends of those who were murdered by the Germans had the power and influence to ensure that the losers are demonised in a way fitting their crime. But those with the power to do the same for Slavery are the very descendants who grew rich and complacent on the rivers of blood spilt during Slavery. (I have been listening to a lot of French, so I am into rhetorical overdrive at the moment.)

I do not want to sound like President Mbeki (who has finally and irrevocably lost my vote by firing the Deputy Minister of Health for showing she cared), but inherent racism also make it difficult for even the most bleeding heart liberals to sympathise with the issue of Slavery. While movies about the Holocaust can still become popular (The Piano, Shindlers List), I cannnot imagine a movie that shows the true story of Slavery from the point of view of the Slaves (and not from the point of view of those "noble" whites who wished to free them) would ever win an Oscar and become a Box Office Hit.

The problem is, of course, that like the Israeli government, African states and their leaders may well use and abuse the history of Slavery for own effect. But this does not absolve the West from collective responsibility for the most shameful of acts done in the name of "Western Civilization".

A slow week

2007-08-04T10:17:00.000+02:00

I will be in Senegal this week so won't be posting regularly. Feel free to rant and rave.....

Corruption charges against Hlophe?

2007-08-04T10:14:00.000+02:00

The Mail & Guardian carries an explosive story pointing out that in terms of section 8 of the Prevention and Combating of Corrupt Activities Act 12 of 2004, Judge President John Hlophe may well be found guilty of corruption if charged.

The Act, which was introduced in 2004 to make it easier to prosecute those who bribe and take bribes, explicitly prohibits a judicial officer from accepting – either directly or indirectly – any "gratification" from any other person in order to act in a way that amounts to amongst others:.

illegal, dishonest, unauthorised, incomplete, or biased: (sic) or
the abuse of a position of authority;
a breach of trust; or
the violation of a legal duty or a set of rules;
any other unauthorised or improper inducement to do or not to do anything;

is guilty of the offence of corruption.

Section 24 contains a reverse onus provision stating that where the state can further show that despite having taken reasonable steps, it was not able with reasonable certainty to link the giving and/or accepting of the money with the abuse of power etc, that person will still be found guilty unless he or she can present evidence that would raise reasonable doubt about the commission of the offense.

This means that on the available evidence revealed in the defamation case of Judge Siraj Desai, Judge Hlophe (and also Oasis) would be presumed to have committed a crime unless they can show that they never had the intention of bribing and being bribed. This is because we know almost R500 000 in “gratification” was paid to Judge Hlophe, that after first refusing and after much pressure was brought to bear, he gave permission for Oasis to sue Judge Desai.

If charged Judge Hlophe will have to argue that he never thought of the money as a bribe and was not influenced by the payment of large sums to him by Oasis to change his mind. In other words, he will have to argue that he was not bribed but bullied by Oasis to change his mind. “I am not corrupt,” he will have to say, “just weak and easily pushed around.” Not an ideal position for a Judge President to find himself in.

The Mail & Guardian also reports that the JSC will meet next weekend to discuss the case. Surely, even the most die hard supporter of Judge Hlophe must now see the writing on the wall? If he has any good friends they must surely whisper in his ear that he should resign before he is impeached and criminally charged.

But perhaps Judge Hlophe really has convinced himself that this is all a plot against him and that he is being persecuted and thus the victim. I think that this would be a mistake and that the tide had now decisively turned against the Judge President. If he cannot see that, he is not a wise man.

As I have heard via the grapevine that Oasis bosses have said rather nasty things about me when job applicants used me as a reference for a job application at Oasis, I am particularly interested about what will happen with Oasis and its bosses. If Judge Hlophe is impeached and charged, surely the bosses at Oasis should also be charged.

If they are charged the aborted defamation case they launched against Judge Desai will go down in history (along with Oscar Wilde's defamation case against the Marques of Queensbury) as one of the most monumental blunders.

Keep politicians away from Truth process

2007-08-02T08:22:00.000+02:00

When the former Minister of Transport and good friend of Schabir Shaik, Mac Maharaj, and the leader of the DA, Helen Zille appear to agree on something, one should get worried. Both are arguing that that leaders of political parties should intervene to solve the crisis around the prosecution of those individuals who committed crimes but never applied for Amnesty from the Truth and Reconciliation Commission.

Maharaj and Zille seems to forget that one of the founding values of the Constitution is that our society is based on the Rule of Law. Mr Maharaj's statement is particularly troubling because he seems not to understand that in such a state based on the Rule of Law, everything can not and should not be sorted out by politicians.

"My concern with what is happening... is that what is a political problem is being shunted off to a bureaucracy to handle. The bureaucracy, no matter how much it is a legitimate State organ, is given the power to resolve matters behind closed doors, and even to the point where you and I will not know the truth. I don't accept that," he said.

The point is of course that in a democracy based on the Rule of Law, decisions on who should be prosecuted and who not must exactly be taken out of the political process and must be resolved by an independent body like the National Prosecuting Authority (NPA) to ensure that everyone is treated as equals before the law.

To argue that the NPA is just the bureaucracy and that the big boy politicians should sort out the mess, is to fundamentally misconstrue the nature of a Constitutional democracy. For once the Presidency has it right. Its Spokesperson points out that the politicians have already approved guidelines to be used by the NPA on who to prosecute and how not. These guidelines were approved by Parliament.

It is surely now for the NPA to apply these guidelines without fear or favour - that is without interference of the politicians.

Helen Zille's statement is more ambivalent. A generous interpretation is that she meant to say that these guidelines had to be revisited by the politicians. Once the new guidelines have been approved, they should be applied without political interference.

Of course, Parliament can pass legislation to provide blanket amnesty or to make some other arrangement to deal with the matter - as long as the legislation conforms to the Constitution. But if it did so, it would undermine the Truth and Reconciliation process. It would let all those people off the hook who rejected the TRC process and would in effect therefore vindicate their rejection of the process.

This is not an easy question to resolve. It is clearly upsetting many people and thus we get statements that further prosecutions would undermine reconciliation. One part of me have sympathy with this view, but then I have to ask: how can we have reconciliation if we do not have an acknowledgment of the horrors of the past? For a mother whose son was tortured and murdered by the ironically named security forces and who still does not know what happened to her son and where he is buried, reconciliation must be a hollow word.

As always perhaps it is the elites that will reconcile with each other so that they can make obscene amounts of money and live happily ever after, while the foot soldiers on both sides will not taste the fruits of the half-baked reconciliation at all. Is there any other way?

Mbeki in a bubble?

2007-08-01T08:31:00.001+02:00

I was quite harsh about President Thabo Mbeki's Internet letter in which he said the Daily Dispatch was lying about conditions at Frere Hospital in the Eastern Cape. But it struck me today that part of the problem might be that the President lives in a bubble and just does not know what is going on because his advisers are too scared to tell him.

Last week at an Imbizo in the Western Cape President Mbeki startled the crowd by asking: "What is Tik?". When he gave a news conference on Sunday and was asked about reports in the Afrikaans newspapers about the abuse of funds by the Deputy Minister for Home Affairs journalists were taken aback when he had not heard of these allegations - despite the fact that the story was published two days earlier and the Presidency was asked for comment.

This morning Anton Harber has an interesting column in the Business Day about joining the President on one of his Imbizo trips and writes:

Mbeki himself goes out of his way to give the event substance. He is attentive and responsive. There are scribes taking down every issue raised for follow-up and there are full minutes of the previous imbizo so the president can monitor what has been done since then. Local and provincial officials are in trepidation for the closed meeting at the end of the imbizo, in which they will have to account for their activities, and in which Mbeki is known to lambast laggards.

To be in the media contingent trailing the president’s entourage is to get a sense of the bubble in which he has to live. At every venue, curious locals press at the fence. As the security men race the convoy through streets cleared of other traffic, people gape from a distance.

I still think the President's tendency to paranoia is mostly to blame for the kind of embarrassing Internet letter published last Friday. But if he lives and travels in a bubble and if his officials are all scared of him, there would be little incentive among his staff to tell him the hard truths. Was he given a sanitised version of the report about what was happening at Frere Hospital because officials or the Minister was too scared to admit that the Hospital is a disgrace?

This would be troubling because it would mean that officials really controlled to a large degree what the President would hear and what not. They could thus shape his view of reality and could distort it beyond what its tenable. I for one would feel better if m President were surrounded by strong and honest people who never shied away from telling him the truth as they see it - no matter how unpalatable.

O Vlok, the past is unpredictable. . .

2007-07-31T04:33:00.000+02:00

The present brouhaha about the prosecution of Adriaan Vlok and allegations of wrongdoing by ex-President FW de Klerk reminded me of the comment Evita Bezuidenhout made about the Truth and Reconciliation process. “The future is certain,” she remarked, “but it is the past that is unpredictable”

We will always be fighting about the past, Evita seems to say, because what the “accepted” view of the past is in a society, depends on our view of the present. If we were now to agree that Vlok and De Klerk gave illegal orders for people to be killed or (more likely) turned a blind eye so that the foot soldiers could harm or kill the opponents of the apartheid state, we must accept that there is no moral equivalence between the De Klerk’s and the Mbeki’s of our world.

For most South African’s this is a no-brainer. The one side supported a system that was declared a crime against humanity and the other side fought for liberation and freedom, so for most people there can never be moral equivalence between the apartheid state and all those white people who supported it on the one hand, and the ANC, on the other hand.

But for many white South Africans who have never come to terms with the horror of apartheid, it seems impossible to admit this and so they keep on arguing that the two sides “both did bad things” that we now have to forgive and forget.

However, that was not the (deeply problematic) compromise reached when the Truth and Reconciliation Commission was set up. It was agreed that we will only forgive that which was known, so that we could remember the evils committed in the past and could ensure that it be avoided in future.

What some of us did not know was that in its last years the apartheid state had made it impossible for us to know and thus to remember their evil deeds. As Terry Bell reported in a fascinating article in the Cape Times, during its last years in office it destroyed tons of files and other documentary evidence of the past.

Up in smoke went any chance of really finding out how evil the apartheid system was and to what extent the leaders like Vlok and De Klerk knew or orchestrated the torture and killing committed by security forces or their surrogates in the late eighties and early nineties. Thus De Klerk’s so called halo was kept in tact. That is also why he went to court to prevent the Truth Commission from making findings that would adversely affect his standing (and indirectly the standing of all white people who supported the system).

The present fight is therefore deeply meaningful because it is about who can be called “good” and who “bad”. Of course the ANC also did bad things, but like Britain in the Second World War they did them in the name of a noble cause. Few people today hark back to the decimation of Dresden by the RAF in which hundreds of thousands of German civilians were killed as few will hark back to the Magoo’s Bar bomb in 50 years.

This is because Vlok and De Klerk will find out that the past is unpredictable and that we will continue to re-interpret it in favour of the ANC as our society changes and the power of the De Klerk’s and their constituencies in South Africa diminish.

This is why some people get so upset about the ANC and pour scorn on everything it does. As anyone who reads this Blog will know, I have often criticized the ANC government for stupid and unwise decisions, but that is different from trying to discredit the government as government. Those who do the latter (some of them commenting at length on this Blog), seem to protest too much.

History will judge them harshly. More harshly, I would think than anyone in the ANC today – including fools like Yengeni and McBride.

On "facts", bikini's and postmodernism

2007-07-30T01:17:00.000+02:00

For a person with such a strong affinity for “objective reality”, President Thabo Mbeki seems to have a rather tenuous grip on reality ("objective" or otherwise) himself. It also does not always appear that he is in touch with his own humanity – although he always (rightly) talks about the inherent dignity of all humans in general and all Africans in particular.

This is amply demonstrated in his latest Internet missive, which would have been an eye-rolling embarrassment, if it was not about a life and death matter. President Mbeki lashes out at the Daily Dispatch for publishing “false” reports about the desperately bad service received by mothers giving birth at the hospital. The report stated that hundreds of babies die needlessly every year and continues:

Internal documents show that senior management knew the situation was out of control for years, but did little to address the crisis. Minutes from weekly management meetings reveal damning admissions by doctors that patients were dying because of outright negligence. “Mothers and babies die at an alarmingly high rate,” confirmed a former hospital gynaecologist.

Worse is that hospital staff concede in documents that “most” maternal deaths and stillbirths “are avoidable due to care”. References are also made to the worrying increase in the number of maternal and neo-natal deaths from 2005 to 2006.

President Mbeki does not engage with these "facts" (or is it "Facts") but points to the report of an official government investigation which cleared the Hospital of wrongdoing, which according to him proves that the Daily Dispatch was lying in its report. He argues that we live in a postmodern age in which we often reject the proposition that “truth, manifesting itself in the form of Facts, corresponds to reality”. Attacking the DA he then continues:

The simple truth is that the DA, perhaps taking advantage of the liberties afforded by post-modernism, is making the statement that everything is Fact - truth corresponding with reality - if it communicates a negative message about the ANC and the government. On the other hand, members of the ANC, such as the Minister of Health, remain committed to the discovery of Facts - truths that corresponds with reality - precisely to empower themselves, our movement and government to act correctly in the continuing struggle to transform our country to ensure that we achieve the objective of a better life for all our people.

It might come as a surprise to those of us in the reality based community to hear that the Minister of Health, who believes in the “Fact” (or is it "fact") that garlic, olive oil and lemon is an effective alternative treatment for HIV infection, is really more interested in "Facts" than the Daily Dispatch.

But apart from the bitter irony involved in this statement, the Internet letter is deeply troubling for what it says about the mindset of our President. What he seems to say is that he and his minister know the facts, while the reporters who spent two months at the Hospital are lying to harm the ANC. As Grouco Marxs might have said: "Who are you going to believe, the President or your very own eyes?"

This shocking letter suggests that our President is a Denialist with a capital letter - he never has to confront criticism from anyone as long as his Ministers and the hand-picked task teams or other minions tell him that those who are criticizing or pointing to problems are lying. For him, the "objective reality" is always only what the ANC believes or wants us to believe is correct. It might not be postmodern, but it is very scary and messianic.

Some of us who do not want to harm the ANC and are generally supportive of the pro-poor aspects of its policies (such as they are), might want to point out to the President that the officials who wrote the report “disproving” the Daily Dispatch story may have every reason to cover up the embarrassing negligence at Frere Hospital. We might ask for an independent investigation and wonder why we should believe a Minister who has pedaled quackery as science and has turned up disoriented and confused at a news conference. Why would we believe the officials whose credibility would be on the line if they found that there were real problems?

We might point out that the Deputy Minister called what is happening at Frere Hospital a national crisis, that after a visit by the Minister to Frere Hospital, she announced that the Hospital would receive, among other things, a 10-fold increase in its maintenance budget, an extra maternity ward, more support staff, nurses, doctors and equipment. The minister conceded there were “individual cases of inappropriate” care which had been reported and promised they would be investigated. The minister also announced that the management at both Frere and Cecilia Makiwane would from now on be given direct control over their budgets, staff and services.

If the newspaper was lying and the “Facts” proved there was nothing wrong at the Hospital, then why these reforms? The only conceivable answer is that there are serious problems at the Hospital exposed by the newspaper but that our President, caught in his own fantasy world of paranoia and ANC sanctioned “object facts” refuses to admit this.

But then again, our President has a long history of Denialism, so we should not be too surprised that he now denies those mothers whose babies have died their own experience of the “Facts” and blames the newspaper for wanting to harm the ANC, instead of expressing shock and horror at the way the Hospital has dealt with real flesh and blood people who - it can be objectively proven - experience pain and anguish when their babies die because of the negligence of Hospital staff.

"Because the gays are getting married..."

2007-07-27T09:02:00.000+02:00

This video confirms all the worst fears expressed by Doctors for Life and Cardinal Napier about the consequences of recognizing gay marriage.....

Animals must be eaten and not heard.....

2007-07-26T09:30:00.000+02:00

Many humans (myself included) have profoundly hypocritical views of animals and this is reflected in our law. We profess to love animals, keep some of them as pets, and generally fawn over the furry cute ones, yet most of us have no problem in letting them be killed and slaughtered and then eating them.

We also eat the very same animals that our law forbids us to have sex with.

It might be that some animals prefer being eaten than being made love to, but we would not know because we cannot ask them. Those animals we already had killed (cowardly by workers at an abattoir) and are now busy cooking for dinner are uniquely incapable of letting us know how they feel.

I was reminded of this when I read in the newspaper yesterday that:

Animal lovers are reeling with shock after a man who decapitated his four-month-old husky with a chain saw got off with a slap on the wrist.

Phillip Matthysen was yesterday fined R10,000 or one year in prison, suspended for five years, for animal cruelty.

He took a petrol-driven chain saw to the puppy’s neck at his Mpumalanga smallholding in February after the dog had killed his parrot.

Mr. Matthysen's love for his parrot was obviously rather extreme and his actions distasteful (no pun intended). But if we follow the logic of our culture the problem is not that he cut off the puppy's head, but that he did not proceed to slaughter the puppy and prepare it for dinner.

Some would argue that I am being facetious and that there is a huge difference between the puppy, which was kept as a pet, and lambs and calves and pigs which are slaughtered at an abattoir. I would imagine the only difference is that the puppy seems more worthy of protection because it is our puppy, while we never really came to know the calf or the pig or the chicken we are eating. Now, if the pig happened to be the main character from that movie Babe, we would never even think of eating it.

I, for one, would never kill and/or eat Babe, but I have no problem killing an ant or a mosquito and I really have no problem with eating a pig as long as I do not know the pig personally. Most humans would agree with me.

Some would say that we demean ourselves as humans if we mistreat animals and that those pigs and chickens and calves sent to the abattoir are killed "humanely" and they are therefore not comparable to the poor puppy who had his head chopped off by the one person he thought he could trust.

I would say, sure, we demean ourselves if we mistreat animals but please let us not kid ourselves and pretend that animals killed at abattoirs before they are put in neat little plastic packages and sold at Pick & Pay are not mistreated. Apart from the mistreatment involved in the actual killing, most animals raised on commercial farms are disgustingly maltreated. The only reason why we think their raising and killing is not demeaning to us, is because we make sure we never have to know about it or see it.

We make ourselves feel better (I know I do) by looking at that evil Mr. Matthyssen and thinking that we would never do such an evil thing. What we do not dare admit to ourselves, is that we do not have to do it because we pay other people to kill the animals we would like to eat.

That is why the outrage at the sentence handed down against Mr. Matthysen smells like rank hypocrisy to me. By showing how cross we are with him, we do not have to take responsibility for our own complicity in the mass slaughter of sentient beings while making ourselves feel good about ourselves.

My solution is not elegant, but at least it has the virtue of being fairly honest: I will always try to treat pets (if not rodents, mosquito's and flees) with respect and love but will never complain about other people mistreating animals. I will eat meat but will try and remember that another human being had killed the animal I am eating. And lastly, I won't have sex with animals - I would not want to spoil them for the pot.

Culture is a weapon of mass destruction

2007-07-24T04:56:00.000+02:00

If patriotism is the last refuge of scoundrels, “culture” must be the last refuge of murderous patriarchs. Under the guise of what “our culture” requires, some people directly or indirectly justify rape and murder.

This was never clearer than last week when several callers to a South Africa radio call-in programme seem to suggest that the two lesbians who were brutally raped and murdered in Medowlands, Soweto the previous week really deserved to be killed because what they did was “sinful” and in any case not part of “African” culture.

Sizakele Sigasa, lesbian activist and outreach worker with the Positive Women’s Network (PWN), and her friend, Salome Masooa, were first tortured and then murdered and judging by the response of some callers to that programme, it is difficult not to conclude that the crime was motivated by extreme homophobia.

In South Africa, callers to radio stations usually express outrage at the rape and murder of other human beings and call for the reinstatement of the death penalty. Political parties make statements to condemn the brutal attacks and vow revenge.

But when these two women, who loved each other, were raped and murdered, the sympathy evaporated and the ugly underbelly of South African patriarchy was revealed. Why did the ANC woman’s league not issue a statement condemning the attack? Why are we still waiting for the DA or the ID to issue a statement expressing their horror and concern? Are they just spineless cowards or do they secretly share the views of those callers who think that lesbians should be raped to teach them what a “real” man needs?

At the heart of this outrage is a gutless fear to confront the poisonous use of “culture” – especially, let me be brutally and dangerously honest here, “African culture” - to justify the naked abuse of male power. All over the world people invoke culture as if it is a fixed, eternally constant thing without any inherent normative meaning. Culture, in this view, is above judgment. This invocation of culture is supposed to stop any further argument because once “my culture” tells me what is right and wrong, I am a mere zombie who has to follow that culture no matter what.

In South Africa, where the progressive values enshrined in the Constitution clash dramatically with the patriarchal values embodied by both traditional societies and the church, “culture” is often invoked in this way to close down the progressive voices that are fighting for respect for human dignity and difference.

(This is a delicate argument to make because it can easily be interpreted as a racist rant. So let me be clear: I am ranting yes, but I am ranting not against “African culture” in general, but against the certain use and abuse of the concept by some people to justify hatred of and violence against those who do not conform to the “culture”.)

Am I the only one to think that these arguments are deeply demeaning to those who make them because it purports to rob individuals of any agency? Suddenly one is not a human being who can make ethical choices about how one must live one’s life, one is merely an instrument of one’s “culture”. This kind of thinking plays into the most disgusting racial stereotypes about black people – but they do justify hatred and killing of lesbians so, I suppose for some people this is a small price to pay.

But of course cultures are not static and cultural practices and beliefs do have an ethical dimension. Afrikaner culture required me to support apartheid, force black “servants” to eat out of tin plates and to turn a blind eye to the torturing of ANC guerillas. Those aspects of Afrikaner culture were disgusting and amoral and at some point I had to dig deep and confront the ugly side of my culture and to change my own ideas about what my culture is all about.

Individuals who claim that homosexuality is “un-African” and that all “true Africans” must hate and be repelled by gay men and lesbians, have a similar ethical journey to make. Such a journey may reveal that it is homophobia, and not homosexuality, that is “un-African”.

After all, the sodomy laws and the attitudes that go with that were brought to Africa by white missionaries and the colonial masters. This abhorrence of homosexuality is therefore the product of the colonial mind. Those who think it is part of African culture to be homophobic are therefore sad captives of a colonial mindset and are ironically prisoners of the white man’s bigotry.

For some, there is clearly another freedom struggle to fight, but for the woman and men who have been assaulted and killed because they are gay, this freedom would have come too late.

"Juan Duval Uys" finally arrested

2007-07-23T05:12:00.000+02:00

Sometimes the wheels of justice grinds slowly, but it is heartening to read that Juan Duval Uys, the alleged mastermind behind a controversial anti-crime website and a slanderous male prostitute blog in which he "outed" a number of prominent South African men, was arrested at his mother's house in Kroonstad on Saturday.

He was a creature of his fax machine and lazy journalists who never checked any of the outlandish claims he regularly made until he finally went too far by claiming that members of his non-existent Gay and Lesbian Alliance were going to donate blood and give false information about their sexual histories and orientation.

He did many stupid and bad things but he would not have been able to do it all and get the attention he so obviously craves, if he was not enabled by the media. Despite warnings from many of us, they kept quoting him as if there really was a Gay and Lesbian Alliance and as if he was credible person. Quoting Uys was like quoting Max the Gorilla - highly entertaining and good for circulation but with no relation to reality.

It makes one wonder about all the stories that appear in the papers regarding the ANC succession race and the alleged conspiracies on all sides. It seems if one has a contact at the newspaper one could get almost anything published no matter how preposterous or untrue.

UPDATE: Die Volksblad reports that Juan Duval Uys is really Lodewikus Uys later called Ludi Uys and that he might be connected with a murder committed in Kroonstad in 1993. Lodewikus just does not have the same right to it as all the aliases Mr. Uys came up with.

On Robert McBride and democracy

2007-07-23T05:06:00.000+02:00

My comment on Robert McBride last week elicited quite harsh comment from some readers. I bemoaned the fact that McBride was not being held accountable as one would expect in a democracy but some readers took issue with this on the ground that we do not live in a democracy.

That, of course, was before the National Prosecuting Authority (NPA) announced that McBride is to be charged with driving under the influence of alcohol, defeating the ends of justice and fraud. Nevertheless, the comments of the readers was perplexing because it seems rather obvious to me that we live in a relatively healthy democracy.

Really, the Economist (not a left wing or PC magazine by any strech of the imagination) placed South Africa 29th out of 165 countries on its democracy Index in 2007. (Zimbabwe was placed 147^th on the list, two places ahead of Angola.)

There are perhaps three interrelated reasons why some people are so dissatisfied with what is happening in South Africa that they can claim we do not live in a democracy.

First, because South Africa never was a democracy in the past, some people fundamentally misunderstand the nature of democracy. In the past, most white people more or less saw their views reflected in government policy and actions, but they now often find themselves in violent disagreement with government policies. Because the government does not reflect their views, they claim the government is evil and undemocratic, instead of merely arguing that the government is unwise or wrong like a true democrat would have.

Second, some people have a “look-at-Zimbabwe” attitude and see signs everywhere of the imminent demise of South Africa into banana republic status. What in another country would be seen as a sign of the stupidity of a politician or political party, is often seen in South Africa as the end of democracy if not the world. When Tony Blair stupidly decided to help the USA to invade Iraq, few people in Britain saw this as the end of democracy in the UK. Conversely, in South Africa, Thabo Mbeki’s handling of Zimbabwe is seen as proof that our government is anti-democratic and Stalinist.

Lastly, people are just plain uninformed, perhaps because they believe the things that bigots whine on about on talk radio. Thus a reader rails against the Constitutional Court for endorsing legislation that only allows individuals to vote if they are present in South Africa. Only problem is, the Constitutional Court has never ruled on this issue.

Thing is, the wonder of a democracy is that we do not always (or ever!) have to agree with the government or with the judgments of the Constitutional Court and we can say so loudly and clearly. This is exactly what democracy is about. Even if one is a permanent minority (like gay men and lesbians in SA or black people in the USA) and always feel the government is not representing one’s interest, it does not mean that one is not living in a democracy.

Of course, democratic governments should adhere to some basic principles and we the people should make sure they do (because give even the most democratic government half a chance and they will cut corners). This is why I criticized McBride for failure to be held accountable.

But today I am very happy that the NPA has done the right thing and has affirmed the respect that everyone is equal before the law by charging McBride. I am eagerly looking forward to the cross examination because Mr. McBride looks like a guy who is going to make Schabir Shaik look believable and coherent under cross examination.

Such are the joys of living in a democracy under the Rule of Law.

Judge errs in gagging Mail and Guardian, but truth reavealed

2007-07-21T03:44:00.000+02:00

If the SABC internal audit report is to be believed, the head of the SABC’s legal services, Mafika Sihlali, is a fraudster and a thief of the most brazen kind. It is clearly in the public interest that such explosive allegations made by the most credible of institutions – the SABC internal auditing committee – be aired in public.

After all, we pay our TV licenses and have a right to know about serious, credible allegations of theft and fraud at the public broadcaster. However, Judge Lettie Molopa, of the Pretoria High Court disagrees. In the early hours of Saturday morning she granted an interdict against the Mail and Guardian prohibiting it from publishing details of the internal report.

She argued that Mr. Sihlali did not have sufficient time to respond to the allegations made in the report. Focusing on the potential harmful effect of publication on Sihlali she said: “No doubt once the article is published it will definitely destroy the applicant.” She said it was “just and equitable” to interdict the Mail and Guardian.

I find the logic of the learned judge, well, spectacularly flawed.

It is true that the findings in the internal audit report is damning, as it contains recommendations that Mr. Sihlali should be criminally prosecuted for theft and fraud. If the findings of the report are correct, Mr. Sihlali should surely also be barred from ever acting as an attorney again. The report finds prima facie evidence that Sihlali has defrauded the SABC of almost 2 million Rand. The fraud allegedly started only 3 weeks after he started working at the SABC.

He did this by allegedly irregularly outsourcing work to his own law firm, charging double for VAT, claiming double payments for work and giving work to his friends.

Troubling also is the fact that the Head of the SABC, Dali Mpofu (called a compulsive, sophisticated liar by Winnie Mandela in 1992) shares directorships with Sihlali in nine different companies, which are active in financial services, advisory services and mining. In addition, SABC chairperson Eddie Funde and Pearl Luthuli, the head of SABC3, share a directorship with him on Onetel, a publicly listed telecommunications company.

So far neither Mpofu or the SABC Board has taken any action against Sihlali despite the existence of the report. This seems fishy in the extreme.

In this context the judgment from the High Court seems deeply troubling. It seems to me not to have taken into account or misinterpreting the recent judgment of the Supreme Court of Appeal in Midi Television (Pty) Ltd vs National Directorate of Public Prosecutions.

In that case Judge Nugent argued that a publication could only be gagged if the prejudice that the publication might cause is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then the court would not gag a paper unless it believes that the disadvantage of curtailing the free flow of information outweighs its advantage.

In making that evaluation the court will not only consider the interests of the newspaper but, more important, the interests of every individual in having access to information. The interest of the public to know would be even more important where the state is trying to stop the publication of embarrassing information and where they would not be able to show that the publication would infringe any of the other rights in the Constitution.

In this case, Judge Molopa decided that the interest of one person – a servant of the people working for the public broadcaster who have been convincingly implicated in criminal activity – should weigh heavier that the interest of the 45 million South Africans who have a right to know how their TV licence fees and taxes are spent and how the public broadcaster deals with corruption in its midst.

This she could only do by not giving any weight to the interest of the 45 million ordinary South Africans and giving far too much weight to one (relatively important, politically connected and influential) person’s interests. It seems to me that this judgment shows a troubling contempt for the masses of the people and our Constitution, and a surprising loyalty to rich, well-connected elites.

It is profoundly in the public interest (and in the interest of democracy) for the M&G to publish such serious allegations. Mr. Sihlali could have been given the opportunity to respond to the allegations next week, but at some point surely the information would become known and he would suffer the consequences. The mere existence of the report hurts his reputation - the Mail and Guardian is merely reporting on facts but are now punished for this by the Judge. To give an interdict now only postpones the inevitable publication of the allegations that Mr. Sihlali is a crook. Why interdict the paper after it was printed except to teach the Mail and Guardian a lesson?

If Mr. Sihlali did not want to have his reputation destroyed, he should not have acted in a way that provided prima facie evidence of criminal activity to the audit committee. It is not for a judge to protect the actions of such a public servant from public scrutiny, because it sends a signal that the judge does not respect freedom of the media and thinks that the media did something wrong by exposing the credible findings of theft and fraud.

This seems to suggest that the Judge is untransformed and that she has not internalised the values of openness and freedom enshrined in the Constitution. It would be a good thing to send her on a crash course to familiarise herself with the values of the Bill of Rights. I, for one, would be happy to assist if she was at all interested in learning more about the Bill of Rights.

Thabo Mbeki = George W. Bush?

2007-07-20T09:20:00.000+02:00

In idle moments I have often wondered whether - despite the obvious ideological differences - there are not perhaps remarkable similarities between President's George W. Bush and Thabo Mbeki. Both have a messianic streak and both seem to have a tendency to ignore difficulties that do not fit into their ideologically tinted world view. Both also seem incapable of admitting a problem or a mistake, perhaps because they think they alone have a grip on the "Truth".

President Mbeki for a long time tried to get people to rethink the link between HIV and AIDS because it was untenable for him to admit that many South Africans would die because they had sex with lots of people (as if that in and of itself was a bad thing). Bush is still pretending things are going well in Iraq, which makes one fear for his sanity, really.

I was struck again by the possible similarities, reading Paul Krugman's column (subscription needed) in the New York Times this morning. Money quote:

I wrote about the Bush administration’s “infallibility complex,” its inability to admit mistakes or face up to real problems it didn’t want to deal with, in June 2002. Around the same time Ron Suskind, the investigative journalist, had a conversation with a senior Bush adviser who mocked the “reality-based community,” asserting that “when we act, we create our own reality.”
People who worried that the administration was living in a fantasy world used to be dismissed as victims of “Bush derangement syndrome,” liberals driven mad by Mr. Bush’s success. Now, however, it’s a syndrome that has spread even to former loyal Bushies.
Yet while Mr. Bush no longer has many true believers, he still has plenty of enablers — people who understand the folly of his actions, but refuse to do anything to stop him.

In South Africa, the media and commentators have not often focused on the enablers who have made it possible for Presidnet Mbeki to get away with his flirtation with Aids denialism, for example. Yes, Manto Tshabalala-Msimang have rightly been vilified, but what about all the other cabinet ministers - including Trevor Manual, darling of the chattering classes - who at the height of the Aids debate refused the answer the question of whether HIV caused Aids. We forgave him because he cut our taxes.

And do we hear enough about Mbeki's advisers who clearly do not always confront him with the hard facts needed to make clear headed decisions? In a way we are all President Mbeki's enablers because we vote for his party and we treat him with respect because he is our head of state.

For those of us who are white, it may be even more difficult not to show respect because given our racist history, showing disrespect to the country's leader may easily be interpreted as showing disrespect towards all black people.

I am often torn between an impulse to show respect for my President and all the good things he has done, and shouting at the rooftops at the dangerously arrogant and denialist actions of my President who may well have contributed to the death of hundreds of thousands of South Africans from Aids related illness.

If one keeps quiet, does one not merely act as an enabler to a dangerous man? If one shouts and screams, does one not merely align oneself with the white whiners yearning for the return to apartheid?

What the Vlok is going on?

2007-07-19T07:40:00.000+02:00

It is tempting to crack jokes about the decision of the National Prosecuting Authority (NPA) to prosecute Adriaan Vlok for the attempted murder of Frank Chikane, who at present is Director General in the Presidency. (“Poor Vusi Pikoli will have to wear waterproof shoes for the foreseeable future.”)

But it is not really a laughing matter. Vlok was rightly a much despised figure when he was the Minister of Law and Order from 1986 to 1991. He seemed to try to imitate President PW Botha by swaggering and threatening the “terrorists”. Either because of direct orders by Vlok or Botha, or because of hints and winks, the police hit squad activity increased during his tenure.

Many people were killed by the state during this period.

Vlok actually applied for and received amnesty for ordering the blowing up of Cosatu House and the headquarters of the South African Council of Churches. It was therefore a bit of a surprised when he washed the feet of Frank Chikane as part of his request for forgiveness for ordering the poisoning of Chikane, because he did not apply for amnesty in this regard.

The deal struck between FW De Klerk’s National Party and the ANC was to create a Truth and Reconciliation Commission which would give amnesty to any person who committed criminal acts, provided that those acts were associated with a political objective and the applicant had made a full disclosure of all relevant facts.

Implicit in this compromise was the understanding that those perpetrators who failed to apply for amnesty or failed to make a full disclosure could be criminally prosecuted. Some high profile prosecutions – Eugene de Kock (convicted) and Wouter Basson (acquitted) – followed, but most people who did not apply for amnesty were not prosecuted.

One reason for this was that it is difficult to prosecute those – like Vlok, Magnus Malan or De Klerk – who may have given direct or indirect orders to underlings to torture or murder opponents of the apartheid state. Such illegal orders were never given directly but were given obliquely if at all. Often Ministers merely had to hint that steps had to be taken to deal with a person or a situation for underlings to revert to torture or murder.

Of course, Ministers knew their hints would result in criminal acts, but liked the fact that they could not be directly held responsible for those deeds. That is why the claims by Mr. FW de Klerk and his supporters that he never ordered people to be killed or tortured or never knew these things happened should be taken with a pinch of salt. Even us ordinary people who only read the Weekly Mail knew people were being tortured and killed. Perhaps De Klerk and others are not legally responsible, but morally, they have a lot to answer for.

It is in that context that the prosecution of Adriaan Vlok should be welcomed. He clearly did not make a full disclosure about his activities as Minister of Law and Order and even recently has shown a remarkable lack of knowledge about what happened in his department while he was Minister of Law and Order. In his telling, he was an ignorant bumbling fool who did not know half of what was going on in his Department.

Of course, it would be problematic if he was the only one prosecuted for apartheid era crimes. The NPA is constitutionally required to make decisions about who should be prosecuted without fear favour or prejudice. This means where sufficient evidence exists, the NPA should also prosecute others who committed crimes in the name of political ideologies during the nineteen eighties and early nineties.

Cynics might well argue that the prosecution of Vlok constitutes a clever attempt by the NPA to bolster its image with its critics, who feels the NPA is used to carry out a vendetta against Jacob Zuma and other ANC politicians. By charging apartheid era politicians, the NPA can appear to show that it really acts against everyone.

To silence such cynics, it its important that the NPA also prosecute other perpetrators who did not make full disclosures to the TRC. Only time will tell whether this will indeed happen.

Xolela Mangcu on Vlok and prosecution

2007-07-19T07:19:00.000+02:00

I find myself agreeing (again) with Xolela Mangcu's column in today's Business Day. Money quote:

I sometimes find the hypocrisy in the white community quite astounding on these matters. The very same people calling for Jacob Zuma to be prosecuted for the sake of the rule of law or for Zimbabwe’s Robert Mugabe to be taken to The Hague turn around, without batting an eyelid, and plead forgiveness for Adriaan Vlok and Johann van der Merwe.

But where is the sense of justice for the families of Siphiwo Mthimkhulu and his comrades? Does this not reveal a certain callousness about black life if consideration is given only to the perpetrators.

I am not big on punishment, but if we are to have it then we must be evenhanded in its application.

Happy 89th birthday!

2007-07-18T09:54:00.000+02:00

It's very kitsch, but no rules apply to Nelson Mandela, so happy birthday Madiba!

Should sins of the wife be visited on husband?

2007-07-18T09:00:00.000+02:00

The wife of ANC Western Cape secretary Mcebisi Skwatsha (pictured) has paid a fine of R1 000 after pleading guilty to theft. Nolusapho Skwatsha admitted reversing the transactions of four people who had paid their television licences at the post office at parliament, where she was employed. She then pocketed the money.

Skwatsha initially represented herself during the proceedings, but a later application for a Legal Aid Board lawyer was granted. Her attorney would not comment when contacted by the Cape Times.

Now, I am not a great fan of Mr. Skwatsha, who is part of the Africanist faction in the Western Cape ANC and who seems to be a rather ungenerous and shifty individual. But should Mr. Skwatsha be judged and condemned for something his wife did?

When the wife of Deputy Minister of Foreign Affairs Aziz Pahad was twice caught for drunken driving, I felt quite sorry for the guy. He was obviously married to an alcoholic, so I did not feel he should in any way be blamed for what his wife did.

Why do I then think this case is different? Is it because I do not like Mr. Skwatsha, or is it because the crime here was a premeditated act of dishonesty perpetrated by someone who probably got a job at the post office in Parliament because of her husbands connections?

The theft by his wife does and should reflect badly on the Cape secretary of the ANC and on the ANC itself. After all, Mr. Skwatsha chose to marry a woman with a deeply flawed grasp of public morality. At best it reflects badly on his judgment of character. At worst it suggests that he might share the lack of public morals displayed by his wife.

She also worked in the post office at Parliament and perpetrated the theft there. This suggests that she was placed in a position of trust because of her connections with the ANC and Parliament.

If the ANC had a better grasp of what kind of public morality was expected from public officials, Mr. Skwatsha would issue a statement to say that in the spirit of ubuntu he stands by his wife, but that what she did was despicable because it completely abused the public trust placed in her and that the ANC condemns such dishonesty in the strongest possible terms.

So far no such statement has been issued. Instead Mrs. Skwatsha first denied that she was married to the ANC secretary and then refused to answer the phone. This suggests that Mr. Skwatsha is not wanting to deal with the matter as he will probably claim it is a private matter that has nothing to do with the voters.

Of course being married to a convicted thief must be embarrassing - especially if one is a public official and a political leader. The only honorouble way to deal with it is to deal with it. By hiding away one may well create the impression that one is complicit with one's spouse or that one shares the criminal attitude of one's spouse. Surely that is not the impression Mr. Skwatsha wants to convey?

Zuma's double standard

2007-07-17T09:34:00.000+02:00

Is it just me or has Mr. Jacob Zuma once again demonstrated spectacular double standards regarding the criminal justice system? In an interview with the SABC last week Zuma argued that criminals seem to have too many rights and that they should not be let out on bail as easily as they are.

But I always thought Mr. Zuma was of the firm belief that every person is “innocent until proven guilty? He has said so often enough.

But if one is innocent until proven guilty one should surely not be locked up until one is convicted of a crime – unless it is very clear that one poses a danger to society? And that is exactly what the rules on bail (properly interpreted) now provides for.

Why tighten up bail laws unless one is of the view that, yes, all people are innocent until proven guilty but some are more innocent than others.

The problem with this mantra, of course, is that unless one is called Jacob Zuma or is a politician with strong connections to an influential political party, one is never innocent until proven guilty.

Dina Rodriguez was never thought of by Mr. Zuma or anyone else as innocent until she was convicted. And let’s face it, I would be rather surprised to hear that Mr. Zuma has always been of the firm view that Wouter Basson was innocent and remains innocent because he was never convicted of a crime.

This is why I have such a bee in my bonnet about the way this principle – which is based on the notion that one must be presumed innocent by a court of law until the state has proven the case against one – is abused by politicians.

Mr. Zuma and others have been using this important legal principle to try and stop ordinary people from making value judgments about their character. In effect they claim that our standards for judging a politician must be lowered to such a degree that we can only criticize them in any way after they have been convicted of a crime.

But there is no legal reason why members of the public – as opposed to judges hearing a case – cannot make adverse assumptions about the character of, say, Mr. Zuma or Judge President John Hlophe or Robert McBride.

By indicating that bail conditions should be tightened for others who are also “innocent until proven guilty”, Mr. Zuma is really showing his hand. What he believes in (like most politicians caught with their hands in the till or their pants down – is that he is innocent even if proven guilty.

Criminals on the other hand – those who were charged correctly – must be locked up even before they are convicted.

On judicial deference

2007-07-14T02:02:00.000+02:00

A reader seems perturbed by a column in last week’s Mail & Guardian commenting on the ANC discussion documents on the transformation of the judiciary. In it, the anonymous columnist focuses on the document’s obsession with the principle of the separation of powers and asks why this is happening.

One answer is to be found in the document's recommendations: there is a desire to guarantee a judiciary that will be as cooperative with the government as possible, nd that will produce a body of law as deferential as is constitutionally permissible.

The reader suggests this is a disturbing possibility and comments: “The word ‘objective’ would be much more comforting. There is a degree of submission associated with the word ‘deference’.”

This is a fascinating question. In the pre-democratic South African legal discourse, “deference” was used as byword to describe what judges did who uncritically applied the apartheid legislation and generally did not ask any questions.

Some more traditional commentators still use “deference” as the measure to decide how independent and progressive the members of, say, the Constitutional Court really are and often argue that they are too deferential and to eager to agree with the ANC government.

Some judges of the Constitutional Court – most notably now retired Richard Goldstone – told me that the new Constitutional Court judges were acutely aware that unlike the new Parliament, it had not been democratically elected. The judges therefore had a duty not to act as a force unto itself, but had to show respect for the other branches of government.

But respect does not mean always agreeing with the legislature or the executive. The Constitutional Court has declared invalid numerous legal provisions and numerous decisions taken by Ministers and the President. They are deferent in style, but not deferent in the orders they make.

Of course the Mail & Guardian columnist suggests that the ANC wants a Court that always agrees with it and never criticises it. If that is indeed, the impulse behind the document it is troubling. Judges are the guardians of the Constitution and must act as referees to interpret the rules of the game and to ensure that the other players (legislature and executive) stick to the rules as interpreted.

If they merely become a rubber stamp of the President, say, we have come to the end of a true constitutional state. Of course most governments want courts to agree with them and try to influence them in that regard. So far the judges of South Africa’s Constitutional Court has shown a remarkable independence and although we criticise some of their judgments as reactionary or unimaginative that they been, on balance, quite wise in striking the balance between judicial activism and showing the appropriate deference.

In doing so, they have not acted “objectively” because, I believe that is not possible. Every judge brings his or her own view to the table and has to interpret extraordinary broad and vague provisions such as “Everyone has a right to human dignity”, which is impossible to do in an “objective” manner.

What is required is to act in a more or less principled manner and not on a whim because it is thus that the Court earns respect and enhances its legitimacy, which after all, is all the Court has to defend itself against the might of the other two branches of government.

Aids denialism (II)

2007-07-12T01:53:00.000+02:00

A reader points out that my post two days ago suggests that Mbeki did not deny that HIV causes AIDS, but only that there are other issues that affect immune deficiency. I would contend that this is mere semantics.

Most South Africans would not make this distinction and would believe Mbeki to have denied the link and would have acted accordingly. Also, there is evidence to suggest that Mbeki did question the link between HIV and AIDS specifically. Moneyweb has published an interesting article relating the whole saga and concludes:

It was on July 9 that Mbeki first publicly questioned the causal link between HIV and AIDS. In his address to the International AIDS conference in Durban he stated that it seemed to him that the phenomenon of immune collapse among black Africans could not be blamed on a single virus.

In an interview with Time Magazine, September 4 2000, Mbeki stated that, "the notion that immune deficiency [AIDS] is only acquired from a single virus [HIV] cannot be sustained." When asked whether he was prepared to "acknowledge that there is a link between HIV and AIDS?" he replied, "This is precisely where the problem starts. No, I am saying that you cannot attribute immune deficiency solely and exclusively to a virus."

Over the following days various ministers were asked whether they believed HIV caused AIDS. Most refused to answer in the affirmative - clearly out of fear of being seen to contradict Mbeki. Tshabalala-Msimang, Kader Asmal, Trevor Manuel and Essop Pahad himself, were all reported to have evaded answering the question directly. It was only on September 13 that Labour Minister Membathisi Mdadlana broke ranks to publicly state, "Yes, of course HIV causes AIDS."

In his written reply to a question posed to him in parliament on the September 20 Mbeki reiterated his position: "There is no doubt that there are many factors that result in the breakdown of the body's immune system. Repeated infections, malnutrition, lack of access to clean water, impact negatively on the immune system." For Mbeki the contention that HIV contributed to this immune deficiency was an unproven one, although he was keeping an open mind on the matter. "There may well be a virus that also results in a breakdown of the immune system", he added.

In his spoken reply he answered derisively to the question of whether HIV caused AIDS: "When one asks a question: does HIV cause AIDS, the question is: does a virus cause a syndrome? How does a virus cause a syndrome? It cannot, really, truly....I think it is incorrect from everything that I read to say immune deficiency is acquired exclusively from a single virus."

On September 28 Mbeki addressed the ANC caucus in parliament behind closed doors. Howard Barrell reported in the Mail & Guardian the following week that, in the meeting, Mbeki had spoken approvingly "of a conference of about 60 dissident scientists held in Uganda in September; quoted from a document from that conference challenging the view that HIV causes AIDS; said (again) that the HI virus had never been isolated." (The declaration of the conference can be accessed here.)

He also "told ANC MPs that it was their duty to inform themselves so that they could counter the huge propaganda offensive that was being mounted to say that HIV caused AIDS."

He also, "repeated his view that if one agrees that HIV causes AIDS, then it must be treated with drugs, and those drugs are produced by the big Western drug companies; these drug companies therefore need HIV to cause AIDS, so they promote the thesis that HIV causes AIDS."

He also, "said the CIA had become involved in covertly promoting the view that HIV causes AIDS; as part of the same effort, the US government was ignoring what the dissidents' conference in Uganda had demonstrated...."

He also said it was not "clear that members of his Cabinet supported him on the HIV/AIDS issue; he wanted to know where they stood". At this point, apparently, "there was some muttering in the caucus from some MPs who pointed accusingly at, among others, Membathisi Mdadlana."

The report was so accurate a number of ANC MPs canvassed by Angela Quintal for Sapa "discounted that the information was acquired by way of routine leaks by ANC MPs, and insisted their caucus had somehow been bugged." The week after it was published the police swept parliament for bugs.

On October 4 in Business Day the head of the ANC presidency, Smuts Ngonyama, took issue with an article in which the newspaper's parliamentary correspondent, Wyndham Hartley, had called for the pressure to be kept on cabinet ministers to acknowledge the causal link between HIV and AIDS. Ngonyama (or Mbeki) stated that:

"Hartley should read President Mbeki's speech at the Durban international AIDS conference and his comments in the recent issue of Time magazine. He will see that, among other things, what the president is challenging is the assertion that AID AIDS without S is the exclusive fault of a single virus. To substantiate his opinion, Hartley must produce evidence that HIV is the sole cause of AIDS."

If AIDS is not solely caused by HIV, it suggests other factors also causes AIDS. This is not the same as saying that, say, bad nutrition hastens the onset of AIDS in individuals who are not treated with ARV's. It is saying that the link between HIV and AIDS is not as clear and direct as scientist believes and suggests that to treat AIDS patients may require something different from ARV's - like garlic, olive oil and lemon. This seems like classic denialism to me.

Sunday Times advert circa 1985. . .

2007-07-11T07:41:00.000+02:00

If only Ronald Suresh Roberts had seen this TV advert for the Sunday Times made in 1985 he would have had more to say about the sexism, racism and deeply obnoxious prejudice of this newspaper. Particularly shocking is the headline: "Exclusive picture interview with South African dying Aids victim..." Almost as bad as a headline in Huisgenoot several years ago: "Seuntjie met die pers gesig: kleurfoto's".

Judge Hlophe and the transformation of the Judiciary

2007-07-11T04:43:00.000+02:00

Cape Judge President, John Hlophe, is a perfect example of what is wrong with our discussion about the transformation of the Judiciary in South Africa. Today the Cape Times reports (subscription needed) that Judge Hlophe once again failed to answer questions put to him by the Judicial Services Commission (JSC) regarding the almost R500 000 he had received from the Oasis investment group.

As I have said before, it is very difficult to understand why Judge Hlophe is still on the bench. Most other people in his position would have resigned long ago – even if only out of embarrassment.

I suspect his tenacity has a lot to do with the discourse on judicial transformation in South Africa and points to what is wrong with that discourse. When Judge Hlophe was first accused of wrongdoing, he pointed to the racism (but not the sexism) prevalent at the Cape Bar and among some of his judicial colleagues as if to say: “See, they are racist so their criticism is unfounded”.

I was (and I still am) of the view that some of the traditional lawyers and judges in the Cape have ingrained attitudes about “standards” and “competence” that emasculate new black lawyers and judges and that is really based on racist assumptions about white excellence and black incompetence. (No different from most other workplaces dominated by elite whites.) It is a subtle but devastating assault on the integrity of black lawyers and judges.

But the fact that some of the white lawyers and judges have deeply ingrained racist attitudes (without even knowing it) cannot excuse or justify wrongdoing by a black judge (or lawyer for that matter). By pointing out the racism, however, judge Hlophe made it very difficult for honest, reasonable and sensible people to criticize him because they would know that they run the risk of being tarred by the racist or anti-transformation brush.

It was a masterstroke in self-defense because it suggests that Judge Hlophe is the champion of transformation while those who think he should rather have not taken the ~~bribe~~ "out of pocket expenses" from Oasis can be painted as anti-transformation. Given the fact that he had championed the appointment of especially black African judges to the Cape Bench, this strategy was particularly plausible.

But this strategy is deeply problematic for reasons that go beyond the question of whether Judge Hlophe is fit to be a Judge or not. I contend that by employing this strategy Judge Hlophe displays a distinct contempt for true transformation as envisaged by the Constitution in at least two ways.

First, he discredits the very notion of transformation because he so blatantly uses it to gain a personal advantage. Like the boy who cried wolf, he trivializes the real problems of racism and resistance to transformation that is clearly present in the Cape legal system. By lashing out at others just when he is being charged with wrongdoing, he makes it easy for “the other side” to dismiss the claims and to go on as if racism and prejudice is not a problem at the Cape Bar and on the Bench.

Second, his approach completely misconstrues the nature of transformation itself. The Constitutional Court has emphasized that the Constitution requires far more than a change of the racial composition of the bench. It requires a radical transformation of the mind-set of judges and lawyers – away from the formalistic, patriarchal and hierarchical view of law, towards a more open and value based approach.

It requires judges to be attuned to issues of power as it relates to, yes, race, but also to class, and gender and sexual orientation. Replacing sexist, homophobic white men with sexist, homophobic black men does not constitute a true and complete transformation of the judiciary. How many of the new black judges appointed under Judge Hlophe embrace the values of openness, transparency and respect for difference so eloquently propagated by some judges of the Constitutional Court?

Maybe some or even most do, but this is not part of the discourse espoused by Judge Hlophe. When the ANC therefore said at their policy conference that the transformation of the judiciary should be speeded up, I hope they did not have in mind the kind of transformation represented by Judge Hlophe.

Of course more black judges and women judges should be appointed to the bench. But all the judges that are appointed should also have embraced the values of the Constitution. They should be individuals who reject the death penalty, cheer on the achievement of same-sex marriage and eagerly strike down patriarchal provisions in the common law and customary law. They should eschew narrow identity politics and should embrace the notion that diversity must be celebrated.

It is probably too late to change the values of some of the old style judges appointed before 1994, so it is exactly these newly appointed judges who have a duty to change the legal discourse. Sadly, on the available evidence, this does not always happen. Sadly, also, as long as we deal with transformation in the Judge President Hlophe way, this is not going to change.

Thabo Mbeki did flirt with Aids denialism

2007-07-10T05:35:00.000+02:00

In the rewriting of history those who want to defend President Thabo Mbeki says that he never flirted with Aids denialism. However, in an interview with Tim Sebastian on the BBC HARDtalk on 6 August 2001 President Mbeki responded as follows to questioning about the 7 million people living wth HIV in South Africa:

TM: From what I read which is what the scientists are saying, you have here an acquired immune deficiency syndrome. Now a syndrome is a collection of diseases whose causes are known. You can't say one virus causes a syndrome.
TS: No, but you can say what is the common factor, what do they all have?
TM: You can say, which is what I have said is that you have a virus which causes immune deficiency. But immune deficiency is also caused by other things.
TS: These comments have caused dismay Mr President.
TM: But they are correct...
TS: Even among some of your own workers.
TM: But they are correct...
TS: In your own health ministry people have questioned...
TM: I know.
TS: AIDS workers in Soweto have said you have damaged the campaign; you've muddied the waters...
TM: I think that's a load of nonsense.
TS: Even the head of your Trade Union movement says, you know, that this can undermine the message that all South Africans must take precautions to avoid infection.
TM: Nonsense, absolute nonsense...
TS: Why are they saying this then?
TM: You see it's the misunderstanding about the science of this question. You see as I was saying immune deficiency is a reality, which is part of your AIDS. And I'm saying that that immune deficiency will be caused by many things. The reason that that becomes important is that as a government we've got an obligation to respond to this, and we've got to respond in a manner that is comprehensive, got to respond to immune deficiency that is caused by a virus, you've got to respond to immune deficiency that is caused by other things...
TS: You're the only leader of a major country that is questioning in this way. Why do you think that is?
TM: It's in the science and I'm saying you cannot say to me that of the South African population seven million people are going to die whenever they're supposed to die, and then you don't expect that we look at this matter most carefully, in the greatest detail, to make sure that our responses are correct.
TS: There's a lot of misinformation, hesitation, seeming to question the scientific basis of what respected scientists, Nobel prize winners, people of the Durban Declaration, 5 000 AIDS workers, doctors have said... I wonder whether you realise, whether you accept that your position has actually damaged the fight against AIDS in this country.
TM: I don't.

This passage serves as a reminder that Mbeki did question the link between HIV and AIDS "because one virus cannot cause a syndrome". When challenged about this view, he stubbornly asserts that he is correct and refuses to acknowledge that questions like this from a head of state will cause confusion.

The passage reminds me why President Mbeki has never been my favourite ANC politician and why - when we look back one day - he will be seen as a man with a lot on his conscience. Those who now claim Mbeki never flirted with denialism, are in denial themselves.

When Presdent Mbeki invited Aids dissidents onto the panel of experts to look into the issue of HIV/AIDS, he was flirting with denialism because he was saying that the medical consensus might be wrong. Nobody would have even argued about denialism if, say, the President had invited a panel of experts to determine whether the Holocaust ever happened and included in this panel some Holocaust denialists.

We all would have known that the President was questioning the conventional wisdom about the nature or existence of the Holocaust. The same surely is true for the link between HIV and AIDS.

And a President who questions the link between HIV and AIDS displays the most irresponsible kind of intellectual pride and arrogance because he wants to be right at any cost - no matter how many people may be confused by his argument and may die as a consequence. President Mbeki did many good things during his two terms, but on HIV and AIDS he has acted in the most shameful manner. Anybody who denies this, must be asked: Who are you going to believe? Ronald Suresh Roberts or your very own eyes.

ANC paranoia is troubling and childish

2007-07-09T03:44:00.000+02:00

Maybe there is something in the water at Luthuli House that makes people paranoid and stupid. The vehement response of the ANC to the report in last weeks Sunday Times that President Mbeki was defying the ANC is a case in point.

The report argued that because the policy conference had said it would be preferable for the leader of the ANC also to be the leader of the country, Mbeki`s announcement on the SABC that he was available for a third term amounted to defiance of the rank and file.

At first glance this seems at least like a credible assumption or interpretation of the available facts. But no, the ANC declaration argues that because the conference did not say in so many words that Mbeki should not stand, the conclusion arrived at by the Sunday Times was a ¨blatant lie¨.

This response is interesting for at least two reasons. First, it completely misconstrues the nature of what newspapers do when they report the news. The statement seems to be based on a sort of Stalinist understanding of news in which scientific facts (i.e. facts that correspond to the views of the party) are or should be reported by the media.

But the media cannot report such facts because the facts appear in a context and must be interpreted. Some times the interpretation of the facts by the media will differ from the interpretation by the political party. For that party to then assert that the media is peddling blatant lies, is to reveal a party with a messianic view of itself. If the party says something is so, it is a fact but if the media says something else it is a lie. Only the Party has direct access to the ¨truth¨.

This view of the all-knowing party is reflected in the following passage in the ANC response:

We trust that, in time, Mr Makhanya [the editor of the Sunday Times] will learn the important lesson about his own people, our people, that these masses know that lies have short legs, and therefore cannot travel far. As he learns this lesson, he might also come to understand why the ANC, a product of generations of African and black hope, which is deeply embedded in the psychology of these masses, is accurately described as a parliament of the people.

Maybe I am needlessly worried, but is it not potentially troubling that some members of the ANC sees the Party as the parliament of the people. Could this perhaps mean that what the ANC decides is more important than what Parliament decide? If so, what happens when Parliament stops being dominated by the ANC? This is the worst kind of exceptionalism and it can easily create the impression that the ANC is not as democratic as Mr. Suresh Roberts claims.

But there is a second troubling aspect to the statement. Why on earth is the ANC so paranoid when it has an almost 70% majority in Parliament and is in every way the dominant political force in South Africa? The statement reads in part:

It is perfectly clear that what Mr Makhanya, and presumably the newspaper he edits, seeks most fervently is to weaken the ANC. For this reason, he argues that our principled cohesion and unity, which he falsely characterises as ‘enormous power and trust (given) to one individual’ — the president — is inimical to the interests both of the ANC and the country.

The thought never occur to the mandarins at Luthuli House that the Sunday Times report was not a plot to weaken the ANC but part of the rough and tumble of politics. It is born out of the same messianic impulse described above because it is based on the notion that because the ANC is the parliament of the people only evil enemies could ever do or say anything that might not carry approval from the ANC. It is troubling and childish.

Strange how the ANC sees a plot around every corner – it is almost as if it has to conjure up enemies to keep the much vaunted unity in tact. The ANC has every right to criticize the media, but by doing it in such an over the top way, the organization really is not doing itself any favours.

McBride and the innocent until guilty charade

2007-07-06T04:32:00.000+02:00

It might well be that it was a pure co-incidence that the police officers who turned against Robert McBride after his alleged drunken driving incident, were arrested for driving with tinted windows this week. It might be that the police arrests thousands of people for this offence every week and that the poor officers just happened to be at the wrong place at the wrong time.

It is also possible, I suppose, that George W Bush will announce next week that he is firing Dick Cheney and pullimg all troops from Iraq.

But if I was a betting man, I would not be one to put even one Zimbabwean dollar on either of these scenarios being true.

Clearly, something fishy is going on. The officer has presumably been driving with tinted windows for some time. Why arrest him now? Why call McBride, the Metro Police Head, to the scene of the arrest? Any reasonable person will be hard pressed not to think that McBride is acting like the worst kind of school yard bully, victimising his colleagues because they ratted on him.

The mayor of Ekurhuleni gets it exactly wrong. News24 reports that the mayor, Duma Nkosi, has previously said that McBride is innocent until proved guilty "by credible institutions created by our democracy".

This case is rather similar to that of Police Commissioner Jackie Selebi, who has admitted to be a good friend of the alleged murderer of Brett Kebble.

In both cases a dark cloud hangs over a senior police officer. In both cases the credibility of the officer has been severely tainted. In both cases their supporters claim that they are innocent until proven guilty and that us normal people are therefore not allowed to have any opinion about them until such time as they are convicted in a court of law.

This might be true if these two were ordinary citizens. But they are not. They are public representatives charged with upholding the law. Even a whiff of scandal fatally compromises their integrity. They are innocent of a criminal offence until proven guilty, yes. But there is also a court of public opinion. In that court they have already been found guilty.

This makes it impossible for them to do their job properly. In order to protect their rights, they should both be suspended until a full investigation into their alleged nefarious activcities have been completed. If this full and independent investigation then finds that they are both angels, fine, they are cleared and can return to work. If not, they must be fired.

It is sad how public representatives hide behind the innocent until proven guilty mantra to escape all forms of public accountability. They do not understand that in a democracy public officials are accountable to the masses of the people.

And public accountability cannot only be about whether one has been convicted of a crime. Many people who have never been convicted of a crime is unfit for public office. To suggest that as long as one has not been convicted one is fit for public office no matter what one has done or is alleged to have done is an insult to us ordinary people who have a right to accountable public officials.

It suggests that the bar for public officials are set so low that any charlatan and conniving bully can become a police commisioner as long as he or she is never succesfully convicted of a crime. If we use that measure PW Botha, Magnus Malan, Wouter Basson, and George W Bush for that matter, should all have been fit to be public officials in South Africa.

And I thought we were fighting against this kind of lack of public morality.

¨Them¨ and ¨Us¨ mindset primitive

2007-07-03T11:13:00.000+02:00

Ok, I promise this is the last word on the topic. I have now finished the tome by Ronald Suresh Roberts on the train back from Machu Picchu and a few things strike me about this vigorous defense of President Thabo Mbeki.

According to the unlikable Mr. Roberts, President Mbeki is always right and his detractors always pig headed settlers from the colonial tradition - no matter what the topic. This seems rather simple minded and unbelievable. No person - no matter how well disposed to the President - could believe every word of this book. It is just too over the top.

It is also interesting that Roberts, who often lauds Mbeki for his subtlety, and obviously thinks that subtlety is a virtue, does not do subtle himself. The most grating and intellectually problematic aspect of the book is the duality set up between ¨them¨ and ¨us¨.

He argues that one is either a native (a sort of state of mind that flows from one never criticising the President) or one is a settler (which means one criticizing the President or one has family who once slept with somebody who criticized the President).

Of course, anyone who has read any 20th century Continental philosophy or who has some common sense (native or otherwise), would cringe at such a simplistic dichotomous analysis. Surely we know that there are always far more than two sides to any question or controversy.

He does a disservice to the President by arguing in this way because it suggests the President is not subtle at all, but is a bit of a paranoid bully, who sees the world in stark terms but hides it from time to time to outfox the settlers. If this is true, well, then rather Jacob Zuma.

Mr. Roberts refuses to see issues as complex and refuses to admit that one can criticize the President without being a racist colonialist pig. He often goes on an entertaining riff about the colonial or imperialist mindset and I cheer him on. But then, in a lazy sleight of hand he links the critic of the President to this analysis to prove the bad motives of the critic, sometimes in the most tenuous way.

But what is lacking is an engagement with the actual critique. A settler´s arguments is invalid per se.

This kind of them or us arguments are insulting to the intelligence of the reader and will discredit the good points made in it about the often implicit racism and assumptions of white/European superiority that forms part of our public discourse.

Having said all this, I am intrigued enough to want to spend a night at a dinner party with a lot of red wine and Mr. Roberts as an adversary. It will be highly entertaining. It will also allow me to question him on those passages in his book that suggests that he might have a bit of native homophobia in his bones.

On colonialism and Ronald Suresh Roberts

2007-07-01T10:49:00.000+02:00

It is the most disconcerting experience to be reading Ronald Suresh Roberts´book on Thabo Mbeki while also reading the Rough Guide to Peru. Roberts talks at lenghth about the way Western discourse has infected our world view and at times he is actually quite interesting.

I like the fact that he is trying to create an alternative intellectual universe in which Thabo Mbeki always makes perfect sense and is really an intellectual hero. When he talks about the ways in which what we see as normal is really situated, he is rather good.

The problem is that he often argues like a little boy. For example he points out that Tony Leon (not his favourite man!) quotes Lord Acton. He then argues that Lord Acton was a dreadful man. Then this must inevitably mean in his book that Leon is also a terrible racist pig. Nee what, this is lazy reasoning of the worst kind.

The book also gives the impression of a rush job. It is not clear whether this is because he knocked it off in the past few months when the sponsors started asking questions about the million Rand they gave for the project or whether it is because he has such a busy mind that he cannot fix on one thing for long enough to actually build a sustained and coherent argument.

In any case, to read Suresh Roberts and then the guidebook makes the colonial mindset of the guidebook jump out at you. White people from Europe invariably ¨discovered¨all the great tourist attracions - as if locals did not live here and actually built the very same attractions. It is deeply irritating and almost puts me off travel.

The guidebook us aklso deeply patronising about local culture and politics. When pointing out some problem with Macchu Picchu they add that the authorities are aware of the problema nd claim to be doing something about it. The guidebook would surelñy not say the Italians are aware of the fact that the tower of Pisa is falling over.

Light posting

2007-06-27T01:59:00.000+02:00

I am in Peru to attend a conference, so will not post as regularly in the next ten days.

The scary political logic of declonisation

2007-06-27T01:37:00.000+02:00

Ivor Chipkin gave a very interesting talk about his book Do South Africans Exist? Nationalism, Democracy and the Identity of "the People" at the Cape Town Book Fair last week that might be quite relevant as the ANCs´Policy Conference starts.

Focusing on a remark by Christine Quanta that Nadine Gordimer is so irritating because ¨she has always seemed so smug in her role as observer, interpreter and final arbiter of our struggle¨, he argues there is a political logic behind many transitions from colonialism that is not easy to endorse¨.

Money quote:

Firstly, the "we" whose anti-colonial struggle is "ours" is nothing less than people itself. Secondly, this "we", the people, is authentic only when it is either in or sanctioned by the nationalist movement. What has happened here is that the political space has come to be conflated with the space of the movement. Hence the ambivalent relationship of the nationalist movement to the democratic process.
To the extent that the movement wins a democratic election, the results then merely confirm what the movement already assumes: that it is the authentic voice of the people. In the same way, democracy is valued to the extent that it is possible to pursue "the people’s" agenda through its mechanisms and institutions.
When uncertainty enters the political scene, things look different. What does one make of a political opposition if "the people", “our people”, are always by definition unified in and around the nationalist organisation? Whom does it represent – if not "reactionary" forces (former colonisers, foreign interests, ultra-leftists). Moreover, if the nationalist movement is by definition the people’s own, then electoral loss can mean only one thing: sabotage by the enemies of the people.
In which case one pursues "the people’s" agenda by other means ("states of emergency" and so on). Is this not the brutal logic at play in Zimbabwe today? If so, then it is time to ask: Is not the condition of democracy today the weakening of nationalist organisations in the body politic?

This strikes me as a very interesting point and serves as a counterweight for the argument put forward by Ronald Suresh Roberts that those who get nervous about the ANC´s commitment to democracy are really just channeling the worst kind of racism and anti-nativism.

Not all the leaders of the ANC embraces this logic, but surely this logic is evident in our political culture and is amply demonstrated by remarks such as those of Jacob Zuma that the ANC will rule until Jesus comes.

There clearly are ANC leaders who beleive only the ANC could possibly lead South Africa. They see the ANC as having an almost mystical destiny to lead us and can also tell the poor to shut up because whatever the ANC is doing is in the interest of the country. They call for unity - which often means the unity only of the movement itself. That is why the break up of the tripartite alliance will be a huge thing and will ultimately be good for South Africa.

Once a break-up occurs and South African politics becomes more ¨normal¨, it will be more difficult for the racism liberals that Suresh Roberts hates so much to make noises about the anti-democratic tendencies of the ANC (and implicitly, black people).

Kebble got value for donation says ANC

2007-06-25T09:32:00.000+02:00

How brazen can you get? Now the ANC is arguing in court papers that it does not have to pay back the 3.5 million Rand that Brett Kebble donated to it. Kebble's estate is trying to get back the money which they claimed were paid when he was insolvent. Business Day reports:

In his affidavit, Msimang said “donors receive value for the funds donated” through the “indirect benefit” that their companies operated in a political climate “which was borne through the gallant effort and contribution of the ANC”. Msimang said that by donating to the ANC, Kebble was “maintaining an institution of democracy which (enabled) him to acquire his wealth, which in (turn), enabled him to operate his business in a democratic state free of racism, economic sanctions and free of all the negativity brought by (apartheid)”.

This argument is so preposterous, it could have been made up by The Onion. It is as if the ANC people are mocking themselves. It also seems to reflect - more darkly - the view that only the ANC can run South Africa and keep the peace and thus, by implication, that onmly the ANC has a right to rule the country.

I cannot imagine that the court would agree with this argument and then the ANC will have to pay back the money in any case. Why make such a fool of yourself if you know the chances of winning is very slim? The most obvious answer is that one makes such answers if one is exctremely arrogant and does not really care what people think. Or maybe more correctly, one does not care what the chattering classes think who actually read newspapers.

Free schooling a bad idea?

2007-06-24T06:22:00.000+02:00

Khathu Mamaila argues in today's City Press that if the ANC adopted the policy of free schooling for all South Africa's children at its Policy COnference this week, it would be disastrous for education. The crux of his argument goes as follows:

All state schools will be forced to be totally dependent on the state for funding. In many former Model-C schools, parents pay the salaries of some of the teachers. In other words, if parents are forced to stop contributing school fees, some teachers would have to lose their jobs.

This would lead to over-crowded classes. Furthermore, the fees are also used to maintain schools – payment of electricity, equipment and other things that are used in the provision of education. So, we might end up with an education that is free but in shambles.

Mamaila does not address the fact that the present system allows parents with money to buy a better education for their children. In effect it condemns children of poor parents to a third rate education merely because they were born poor. This means that poor children will never have anything close to the opportunities for betterment that children of rich parents will take for granted.

The system seems extremely unfair and flies in the face of the egalitarian values enshrined in our Constitution. Mamaila does have a point though, because "leveling down" the education standards will be harmful to society as a whole.

What to do?

A first step is to ensure that parents who cannot pay school fees do not have to pay. To ensure this system is implemented in practice, the government should have a system in place to compensate schools who waive the school fees of poor learners. In the absence of such a system, principals will have a huge incentive to force parents to pay - regardless of the means at their disposal.

Throwing more money at poor schools may be necessary but will probably not in itself make a huge difference to the standard of schooling. Given the lack of skills amongst teachers and the difficulties of learning in the kind of socio-economic milieu in which many poor kids live, it will require something close to a miracle to create a relatively egalitarian education system of an adequate standard.

But given the fact that the state has a duty in terms of section 29 of the Constitution to provide basic education to all, more radical steps may be needed. What about passing legislation that requires richer schools to mentor poorer schools? In monetary terms this would constitute a kind of double redistributive tax on rich parents because when they pay for school fees those fees will indirectly also benefit poor learners.

Maybe I am naive, but the benefits of my plan would go far beyond the money involved. As parents with resources get involved with poorer schools, those schools and their governing bodies will acquire skills to manage their schools better. And the extra teachers paid for by the rich parents school fees could be required to do extra lessons at poorer schools.

Will this work? I have no idea, but surely the present system is so unfair and unjust that something will have to be done.

Zapiro on new Mbeki Biography....

2007-06-22T06:59:00.000+02:00

The "settler media" = 1: Suresh Roberts = 0

On "terrorists" and intollerance in Jerusalem

2007-06-22T06:30:00.000+02:00

It is reported that the Israeli police arrested an ultra-Orthodox Jewish man yesterday who they say was planning to bomb a gay pride march in Jerusalem overnight. An Israeli police spokesman said police found an explosive device in the man's bag.

Several hundred ultra-Orthodox Jews held protests against the gay pride march, calling it a profanity against the Holy City. The demonstrators threw stones at police and set fire to rubbish bins. More than 7,000 police were deployed to secure the march. The march went ahead as planned. An internet report states:

Ultra-Orthodox Jews have rioted repeatedly in the past week, burning tires, assaulting policemen and damaging police cars. A 32-year-old ultra-Orthodox man was arrested Thursday morning carrying a homemade explosive device. Under questioning, the man said he wanted to plant the explosive along the parade route, said police spokesman Mickey Rosenfeld.

Marchers carried multicolored balloons and posters of Nelson Mandela and the Dalai Lama. Three men wore matching pink T-shirts, shiny pink hats and carried pink lace umbrellas. On their shirts were written, "The Israeli Gay Party."

Strange how homophobia can unite old enemies. I assume that the leaders of Hamas would also be rather upset if a gay pride march took place in Gaza. Some of Hamas' members would probably enthusiastically cheer on the killing of some homosexuals in Jerusalem. I always find it sad that people who have been persecuted and oppressed - like those Orthodox Jews, the Hamas supporters, some Afrikaners - can turn around and condemn and persecute other groups for no reason than that they are different or affront some strange moral code.

Of course, it is also interesting that the news reports did not refer to the Orthodox bomber as a "terrorist". I could not find any statements about the "war on terror" (what a ridiculous term) or the evil of those who unleash "terror" against gay men and lesbians. Is this, I wonder cynically, because the target was not "innocent", "straight", "pure" "Jewish" or "white" people, but only "filthy" and "perverted" homosexuals?

Or does the Western media reserve the term "terrorist" for those who are not "Western", but "other" - usually black and/or Muslim? Will an Orthodox Jew ever be called a "terrorist" in the Western media? I doubt it.

It reminds one that concepts like "terror" and "terrorist" have been completely hijacked and politicized by George Bush and his cronies and have, in essence, become meaningless slogans used to brand opponents. Not that meaningless, I suppose, because many people still buy into the division between "our" freedom fighters and "their" terrorists.

When the US or Israel governments bomb civilians it is not called terrorism. It is "war" or anti-terror action. Maybe it is time that we stop using this meaningless but very intimidating term altogether.

Now Mangcu puts in the boot

2007-06-21T08:43:00.000+02:00

Xolela Mangcu has a scathing column about the new Thabo Mbeki biography in today's Business Day entitled, Roberts’ shallow ode reflects obsessions of the age of Mbeki. He hits Roberts where it hurts most, accusing him of being obsessed by what whites think. In effect, he says Roberts is a prisoner of colonialism and therefore not a free man. Ouch!

Money quote:

The problem of course is that Roberts is spending so much time convincing white people that he ignores the people who really think his subject is not fit to govern — the natives within the ANC. I suppose white people will always be a convenient diversion for racial populists.

I always feel heart sore when people misappropriate and distort Biko’s message to defend their racial chauvinism. It was perhaps in anticipation of this that Biko wrote his thoughts down.

Biko had a message for black people in his brilliant essay, Black Consciousness and the Quest for a True Humanity. This is what this intellectual and political giant said: “Blacks have had enough experience as objects of racism not to wish to turn the tables.

“While it may be relevant now to talk about black in relation to white, we must not make this our preoccupation, for it can be a negative exercise. As we proceed further towards the achievement of our goals let us talk more about ourselves and our struggle and less about whites.”

Interestingly this mirrors the critique both myself and Johnny Steinberg has leveled against Mbeki himself.

Born Gay? Who cares?

2007-06-20T10:16:00.000+02:00

A report on Slate provides new evidence for the argument that homosexuals are born that way. My response: who cares. Seeing that more than 90% of humans are heterosexual and that those include unfortunate souls like Amin, Stalin, Hitler, Bin Laden and Bush, a far more interesting and pressing question would be whether heterosexuals are born that way. Somebody please tell me its not genetic and they can change!

Unlikeable Mr. Roberts fit to write a biography?

2007-06-20T05:33:00.000+02:00

I bought Ronald Suresh Roberts' biography of President Thabo Mbeki today. Called Fit to Govern: The Native Intelligence of Thabo Mbeki, the book contains a spirited defence of Mbeki and even more spirited or even vituperative attacks on many of Mbeki's (and Roberts') critics.

I am very much looking forward to read the book because I am rather confident it won't be boring. It would be refreshing to read another view on Mbeki and to see how successful Roberts is in defending some of Mbeki's most controversial (and in my opinion disastrous) policies, such as the HIV/AIDS fiasco.

I am not a great fan of Mr. Roberts and have written on this Blog about his unfortunate defamation case, but I suspect he is correct when he predicts that the liberal white establishment is going to pull the book to pieces for all the wrong reasons.

Meanwhile, the Democratic Alliance aligned James Myburg has already weighed in with a kind of review or debunking of the book in his Moneyweb column. He reminds us that Essop Pahad lied to Parliament when he denied that the Presidency facilitated a R1.5 million grant from Absa Bank for Roberts to write the book.

Myburg conclude his "review" as follows:

One oddity of the book is that very little of it is taken up with documenting and elucidating Mbeki's own views, which do not seem to be of particular interest to the author. It is divided instead between "a theoretical dogfight in ideological outer space" (as Rian Malan put it) and vindictive attacks on Mbeki's critics and opponents. At one stage Roberts writes (p. 125) that The Discourses by Niccolò Machiavelli's are what really "illuminates Mbeki's statesmanship." Yet, in that work Machiavelli advised:

I hold it to be a proof of great prudence for men to abstain from threats and insulting words towards any one, for neither the one nor the other in any way diminishes the strength of the enemy; but the one makes him more cautious, and the other increases his hatred of you, and makes him more persevering in his efforts to injure you.

"It is the duty", Machiavelli continued, "of every good general or chief of a republic, to use all proper means to prevent such insults and reproaches from being indulged in by citizens or soldiers." This is advice the presidency has clearly chosen to ignore. By supporting this project, in the way that they did, the presidency were clearly hoping to buttress Mbeki's position, both morally and politically. Yet they may find that this book - which manages to direct "harsh sarcasms" against so many different people - has precisely the opposite effect intended.

After reading more of the book, I will weigh in with my own two cents worth. I suspect the book will become the talk of the town and that many words will be written about it. Sadly, I am not so sure much of it will be interesting or relevant. Let's see.

Declaring "coloured/kleurling" unconstitutional?

2007-06-19T01:35:00.000+02:00

Can one have the words “coloured/kleurling” declared unconstitutional? Somebody called me to ask, and was rather miffed when I told him that he would waste his money taking such a ridiculous claim to the Constitutional Court. In my estimation, such a claim will never fly.

“Why not,” he wanted to know, “I sit in meetings where people refer to me as a coloured or a kleurling and this is deeply hurtful to me. It is racism of the worst kind and I do not have to take it.”

I can understand why the caller does not like these words. They have the unmistakable odor of apartheid engineering about them. For some, they represent a kind of fabricated racial identity, which allowed the apartheid state to divide and rule black people.

But the Constitution cannot address the private hurts of every South African, so a plea to find the words unconstitutional will surely fail.

First, not all people who were classified as "coloured" by the apartheid state object to the use of the word or being identified as “coloured”. In fact many people embrace this identity and proudly talk about the “coloured culture” – which often look much like a certain kind of white Afrikaans culture.

(Of course, people who embrace this "coloured" identity are often Afrikaans speaking and working class, so there might be a certain class and language snobbery involved in the abhorrence of the term, but that is not relevant here.)

Second, section 16 of the Constitution protects the right to freedom of speech. Only speech that advocates hatred based on race, ethnicity, gender or religion and that constitutes incitement to cause harm – so called “hate speech” – is excluded from such protection. Use of the word “coloured” would seldom if ever be viewed as such a form of hate speech, especially given the fact that some people embrace the word and the identity it represents.

Third, the Constitution is really geared towards the protection of individuals from action by the legislature, executive or private individuals. It does not seem to me that a word can per se be unconstitutional. It is only when the word is used in a specific context and thus infringes another right, that it becomes possible to challenge its use in a Court.

So, where a newspaper or a radio station use the word regularly, one could try and make the argument that the use should be restricted because it infringes on the human dignity of others. In such a case, the right to dignity of some must be weighed against the right to free speech. Given the lack of consensus about the hurtfulness of the word, I cannot imagine a court will find in favour of the dignity interest.

But maybe there is a larger issue at stake. What do we do when others use words we find offensive or hurtful? It seems to me in a democracy based on human dignity, equality and freedom, one should object to the use of a word, argue about it, make a noise, try to convince others not to use the word. If one is successful, private “censorship” will ensue and it will become impolite or even disgraceful to use that word in public.

It strikes me as anti-democratic and out of sync with a human rights culture, to want to want to have a word declared unconstitutional. Let us argue about what the word means and why some feel it demeans them – that way we address the real issues and do not repress underlying prejudice. Repression surely is seldom a good idea.

Pay hikes for judges?

2007-06-18T05:10:00.000+02:00

I am not sure what to make of the article in the Sunday Times alleging that some judges are deeply unhappy about the recommendations of the Moseneke Commission which would see the pay of senior judges like th Chief Justice and the President of the Supreme Court of Appeal go up by a whopping 50% or more while their pay would "only" go up 17%.

As The Times reports today:

Should the commission’s salary adjustments be adopted, it would see Chief Justice Pius Langa’s salary increase from R103 4302 to R1.7-million — a 65 percent raise.

The current gap between Judge Langa’s salary and that of ordinary judges is R82 000. The gap will go up to almost R600 000, if the salary increases go through.
Other top judges set to benefit are Judge Craig Howie of the Supreme Court of Appeal, South Africa’s nine Constitutional Court judges and 19 appeal judges, who could get an increase of 40 percent. More than double what their “poorly” paid junior colleagues might receive.

A 17% pay increase looks rather large compared to the 7.25% the government is offering the striking civil servants. Earning a million Rand a year seems like a relatively handy salary - especially if one takes into account that at retirement judges receive their full salary for life.

It is true, however, that the top black lawyers can earn much more in private practice, but few of the top black lawyers have actually decided to become judges. If all judges would get a 65% increase, we would be overpaying most of them, I would imagine.

And what about the idea that such a big gap between the salaries of judges would make judges ambitious and could sway them to make decisions that would be good for their careers? This seems a tricky issue. On the one hand one would imagine that it would exactly be those judges who make the best decisions who would be able to look forward to promotion.

On the other hand the nature of the Judicial Services Commission process, might leave room for conjecture that judges less willing to take on the government of the day would be more likely to be promoted. The monetary incentives to get to the Constitutional Court could then be said to put pressure on the judiciary to become more compliant.

I suspect this argument is not going to hold water in the long run. The really good judges will always shine and as long as the JSC system is not completely perverted, none of the judges that will be promoted will be promoted merely because they were compliant - they would have to demonstrate expertise and some brilliance.

Maybe I have a touchingly naive notion of the judiciary, but I cannot imagine that many judges (maybe Judge President Hlophe excluded!) would even think of making judicial decisions in such a Machiavellian manner. Only time will tell.

He sells mobile phones....

2007-06-17T01:22:00.000+02:00

But he can sing and he gave me goosebumps and made me cry. . . A video from a new British series called "Britain's Got Talent".

Can someone please hug the President

2007-06-15T08:17:00.000+02:00

If I were a benevolent dictator, I would pass a decree ordering all parents to hug their children at least once a day. That way, a new generation might have a better chance to grow up kind and warm and with some understanding of the frailties and needs of human beings.

President Thabo Mbeki is obviously not a man who has a firm grasp on human frailty and on our needs and dreams. No wonder, because he was never hugged by his own father. The story is told that when he returned from exile and stepped off the plane, he did not rush to hug his own father whom he had not seen for many years, but dutifully greeted the queue of senior officials until he got to this father - and then shook his hand.

I was reminded of this when I read in the paper that President Mbeki had dismissed reports he has "rejected" the recommendations of the Independent Commission for the Remuneration of Public Office Bearers chaired by Justice Dikgang Moseneke. The statement from the Presidency read:

For the record, the Presidency wishes to state that the president has, rather than reject the commission's recommendations, requested the commission to consider concerns raised by various institutions subsequent to the publication of its report," his office said in a statement. The Presidency appealed to all South Africans to familiarise themselves with the commission's processes as laid down in legislation.

This response is technically impeccable, but it so lacks in the basic humanity we hope to see in our leaders that it leaves me in despair. Here we are in the midst of a very serious and acrimonious public servants strike in which Moseneke’s proposals to hike the President and the Cabinet’s salaries with almost 50% is a highly controversial an emotional issue. Yet our President responds through his minions in the most dry and technical of ways.

Of course, technically the two issues have nothing to do with one another, but one cannot eat or hug “technically”. Yet, the President issues a statement in which he asks us to "familiarise" ourselves with the legislation so that we will also grasp the technical reasons for him not rejecting the proposal.

A very helpful hint, that, for a nurse or civil servant on strike. Just a pity such a nurse cannot afford ADSL or money for an Internet cafe, so will not be able to get access to the legislation. Does the President and his staff actually realise this? I sometimes wonder: on what planet does this man and his staff live?

What is needed from President Mbeki is to go on national television and make a statement about the strike to try and calm the waters. In such a statement he could express his sincere understanding of the plight of the workers who have to survive on a pittance, and could also express embarrassment about the fact that Moseneke recommended a 50% increase for him while the state is offering 7.25% to the workers.

Such a gesture might not placate all the workers but it will send a signal that Mbeki is in charge and that he cares. It might just help to change the tone of the strike.

But no, we do not hear a word from our dear leader because he is busy wining and dining the leader of the DRC. When he did speak out about the strike, he only berated those workers who intimidated others - a bit like a parent of a wayward child. Sometimes I wonder whether President Mbeki does not all see us as wayward children and do not feel disappointed or even betrayed by the people he has to lead. He sure acts that way.

No wonder Cosatu and the SACP supports the opponent who was paid more than R1 million by that convicted fraudster, Schabir Shaik – at least we know that Zuma can laugh and bleed and feel emotions.

The doors of Parliament not open to all

2007-06-14T09:42:00.000+02:00

On Wednesday I attempted to take 30 US law students on a comparative Constitutional Law course to Parliament to listen to President Thabo Mbeki’s reply to his budget vote in the National Assembly. It was the same day that thousands of workers held a peaceful protest outside the main gates of Parliament.

We made arrangements to collect our tickets to the public gallery a day before the event, but when we arrived at the side gate of Parliament it was firmly locked. The polite but firm policeman informed me that all gates to Parliament had been locked on instructions form his superiors and that no one would be allowed in or out of the Parliamentary precinct for the next several hours.

This meant that I was barred from listening to my President in my Parliament answering his opposition critics. This seems to be in direct contravention of section 59 of the Constitution, which states that Parliament has a constitutional duty to conduct its business in an open manner and to allow the public access to its activities.

Yet, some power drunk fool decided that the workers, demonstrating peacefully more than a hundred meters away, posed such a mortal threat to all MPs and our President, that the gates of Parliament literally had to be locked against its own people.

Who made this heavy-handed decision? Did this person realise that he or she was sending a signal that Parliament and the President was so far removed from or even scared of the workers that it would lock the very doors of the institution against their own people?

The locking of the gates of Parliament on the very day that the President was speaking in the National Assembly, reminds me rather of the days of the apartheid regime when the President and Parliamentarians had good reason to fear the citizens of the country they were supposed to be governing.

It would be nice to think that the person who made this decision would get into serious trouble. Maybe the President - or more correctly, the Speaker - could have a word with someone so that the next time us ordinary people want to hear him speak, we will actually be allowed into the legislature.

Christopher Hitchens is not a man of one book...

2007-06-13T08:59:00.000+02:00

Unlike Martin Luther.....

Free speech and defamation in the Blogosphere

2007-06-13T03:18:00.000+02:00

When mystery Rentboy "Skye" started publishing allegations of intimate sessions with several well known South Africans on his Blog, many people - including dear Patricia de Lille - wanted to know why this kind of anonymous slandering was not outlawed.

There is an interesting article in today's Business Day dealing with this question. It points out - as I have done elsewhere - that the ordinary laws of defamation applies to those who slander others on the Internet but that it would not always be possible to find those people when they act anonymously. Normally one would then be able to go after the company who facilitated the publishing of the alleged defamatory statements, but this is more difficult on the Internet.

The article points towards section 75 of the Electronic Communications and Transactions Act of 2002 , which protects service providers who host Blogs and websites from defamation suits.

The section states that such a service provider is not liable for damages arising from data stored at the request of the recipient of the service, as long as the service provider:

does not have actual knowledge that the content of the Blog is defamatory; or
is not aware of what is written on the Blog at all; and
immediately removes the material or disables access to a Blog once the service provider receives a notice from an aggrieved party about the defamatory statements.

If a service provider takes down material that is not defamatory, such a service provider will not be liable to the Blogger for any damages. This means there is an incentive for a service provider to be "rather safe than sorry" and to take down material - even if it is unclear whether the material is really defamatory or not.

At the same time the section is helpful because it prevents pre-publication censorship. This leaves the Blogosphere relatively free and unregulated because it does not require service providers to act as policemen of the content of Blogs or websites that they host.

We can continue to write what we like until some pesky politician or judge gets upset and sends a removal notice. We can then alert the rest of the Blogosphere and the mainstream media and draw attention to the alleged defamatory remarks. This will almost always backfire and may well result in more harm to the person complaining, than if he or she had just let sleeping dogs lie. Maybe that is why they call the Blogosphere a democratic space?

I think this also means that if one links to another site that might contain defamatory statements, one will not be liable. One's service provider may however be asked to take down the link and will have a right to do so.

Why politicians flip-flop....

2007-06-12T02:04:00.000+02:00

"Whosoever desires constant success must change his conduct with the times," - Niccolo Machiavelli.

A greedy and shameless lawyer

2007-06-12T01:39:00.000+02:00

Sometimes an advocate’s astonishing arrogance is only trumped by his unrivaled carelessness and chutzpah. Mr. BLM Bokaba seems to be such an advocate.

On Friday he received by far the harshest dressing down ever handed out by the Constitutional Court. The Court is usually circumspect and polite to the point of obsequiousness in those parts of their judgments dealing with the behaviour of counsel. (The way they treat counsel in oral argument is, of course, another matter altogether.) But in the case of Shilubana v Nwamitwa the Court expressed its astonishment at the attitude of the counsel for the respondent.

This case deals with a dispute about the right to succeed as Hosi (Chief) of the Valoyi Tribe in Limpopo, between the daughter of Hosi Fofoza Nwamitwa and the son of Hosi Mahlathini Richard Nwamitwa. When Hosi Fofoza died in 1968 without a male heir, succession to Hosi of the Tribe was, according to tradition, determined by the principle of male primogeniture. But when the Hosi of the second line died a few years ago, the daughter of Hosi Fofoza Nwamitwa was selected by the tribe to succeed above the son of Hosi Mahlathini Nwamitwa and the latter challenged this decision.

The High Court, and eventually the Supreme Court of Appeal, held in the respondent’s favour and the daughter appealed to the Constitutional Court. Mr Bokaba, representing the respondent, applied for a postponement of the case on the day before the hearing was set down for oral argument. The Court granted the request but censured him in the most severe terms.

The Court pointed out that Mr Bokaba never filed his motion of intention to oppose and filed answering affidavits more than two months late. It also pointed out that this late application for a postponement was “inexcusable” and expressed shock that “at the hearing counsel admitted that he was unprepared to present his client’s case, should the application for postponement be denied. He appeared to presume that the application would be granted – a presumption one makes at the peril of one’s client”.

The Court then continued:

Counsel’s conduct went from frustrating to astonishing. During oral argument he matter-of-factly and repeatedly stated that, despite the respondent’s lack of funds, he had adamantly refused to do the matter with funding from the Legal Aid Board. The rates, he said, are too low; the payments, he lamented, are too slow. As a practising advocate, it is of course his decision whether or not to accept Legal Aid funding. He cannot be forced to do so. If he refuses Legal Aid funding, however, he must then either comply with the Court’s rules and represent his client properly, or withdraw from the brief timeously.

Mr Bokaba is doing a disservice to his client, to his honourable profession and to the constitutional principles his client seeks to vindicate. With this in mind, the Registrar of this Court is directed to bring this judgment to the attention of the Pretoria Bar Council.

Mr. Bokaba behaviour is truly shocking: he appears greedy and uninterested in what is best for his client and seems to languish in a pool of entitlement. I would have been deeply ashamed if I was him – but he does not look like the type of person with any shame.

He is supposed to represent the interest of the client and should feel honoured to be able to take such an interesting and important case all the way to the Constitutional Court. Instead, he forces the Court to postpone such an important case because he does not work for Legal Aid Rates.

I hope the Pretoria Bar Council takes firm steps against him. Or am I naive about the way advocates are supposed to behave? I would hate to think this kind of behaviour is acceptable at the Bar and cannot imagine that it is. Off with his head!

Oasis, Hlophe must rue defamation action

2007-06-11T02:44:00.000+02:00

Interesting to note that Oasis Asset Management company is now punting itself in half page advertisements in the Sunday Times. The company obviously needs to try and repair the damage caused by its aborted defamation case against Judge Siraj Desai.

The case might well go down as one of the most spectacular own goals in the legal history of South Africa. Before Oasis dropped its case, it transpired that it had paid Judge President John Hlophe almost R500 000 in “out of pocket” expenses. Judge President Hlophe first denied Oasis permission to sue judge Desai and then changed his mind. This happened while he was receiving money from Oasis, which could lead a suspicious person to suspect that Oasis was trying to bribe Justice Hlophe so that he would give permission for the action.

Hlophe was first left off the hook by the Judicial Services Commission (JSC) but because of the defamation suit new evidence has now emerged that casts new suspicions on Hlophe, as The Weekender reports:

Among the new documents that members [of the JSC] have been given as a result of the court action that was ultimately withdrawn by Oasis last month, is evidence of the fact that Hlophe was a trustee of Oasis only from November 2000. This raises a number of questions about the permission he claims to have been given to become involved with the company.

According to Hlophe, he was authorised to take the job by former justice minister Dullah Omar. However, Omar had quit as minister at least 18 months before Hlophe took on the position.

On what basis, the commission members will want to know, would Omar have been able to grant permission to a judge to take on what amounts to additional outside employment, at a time when Omar was no longer the justice minister and was therefore unable to give such permission?

This means that if the JSC vigorously pursues this matter, Judge Hlophe may well be impeached, in which case the image of Oasis would also be irrevocably tarnished. Oasis is already reeling from the bad publicity – which is why they dropped the case against Judge Desai. It has clearly realized that going through with the case would have been disastrous.

In another development Carmel Ricard hints in her column in The Weekender that the court files in the case have been removed in an untoward way. When she looked for the files there was an “upliftment note” instead of all the juicy files. She dares not point a finger at Judge Hlophe, or does she? Judge for yourself:

This “upliftment note” says that the file was removed at the end of March. But, as I expected, a phone call to the highly respected firm concerned indicated the file was borrowed when they first became involved, in order to make copies of everything, and it was then returned.

Some court staff told a journalist colleague that the file had been called for by Hlophe himself. But this cannot be so. It would have been improper and Hlophe, as a highly respected judge, would not have done anything unless completely kosher.

Because Hlophe was personally implicated in the case, neither he nor any judge of his division would have heard the case or have had anything to do with it. Instead it was referred to another judge-president to send an “outside” judge to hear the matter. Judge-President Bernard Ngoepe organised that Judge Frans Malan would deal with it; the court file relating to the case was thus under his control and not that of any Cape Town judge, least of all the Cape judge-president.

Curiouser and curiouser is what I say. The more evidence emerge, the more I feel that Oasis and Judge Hlophe deserve each other...

Omnipotent God like living in North Korea. . .

2007-06-08T06:31:00.000+02:00

I do not agree with Christopher Hitchen's on the Iraq war, but he can be mercilessly funny and brutal in argument. Here he argues with an interviewer of right wing Fox news channel. I like the bit where he says if there really was an omnipotent God it would be like living in North Korea. . .

But maybe hitting a child is like smoking dagga...

2007-06-07T04:32:00.000+02:00

An alert reader points out that the new legislation prohibiting corporal punishment of children by their parents in their own home, is bound to be challenged in the Constitutional Court on religious grounds. Commenting on my Blog posts here an here, the reader has an excellent point because such a challenge would not at all be far-fetched.

At the very least, the Court would look long and hard at the fact that the new legislation fails to make an exception for Christian parents who believe that God requires them to hit their children. After all such parents will be able to point to Bible verses like the following:

Proverbs 22:15 - Foolishness is bound in the heart of a child, but the rod of correction shall drive it far from him.

Proverbs 19:18 - Chasten thy son while there is hope and let not thy soul spare for his crying.

Proverbs 23:13 and 14 - Do not withhold discipline from a child, if you punish with a rod he will not die. Punish him with a rod and save his soul from death.”

This argument was already considered by the Constitutional Court in 2000 in the case of Christian Education South Africa v Minister of Education, when a society of Christian schools challenged the sections of the South African Schools Act which prohibit corporal punishment at schools.

Justice Sachs confirmed in that case that the Court would only question claims that a particular practice is based on religion in the most extreme cases. He therefore assumed that corporal punishment was part of the religious beliefs of the parents who sent their children to the religious schools.

Relevant for this case is that Sachs drew a sharp distinction between prohibiting corporal punishment only at schools on the one hand and placing an absolute ban on corporal punishment on the other hand.

[C]orporal punishment administered by a teacher in the institutional environment of a school is quite different from corporal punishment in the home environment. . . . Such conduct happens not in the intimate and spontaneous atmosphere of the home, but in the detached and institutional environment of the school.

The Court was careful to indicate that it was not deciding the issue of whether a complete ban on corporal punishment of children by their parents would be unconstitutional. However, when deciding whether the restriction on the right to freedom of expression was justified in terms of the limitation clause, Sachs looked at the extent to which the religious rights of the parents had been infringed and observed:

The parents are not being obliged to make an absolute and strenuous choice between obeying a law of the land or following their conscience. They can do both simultaneously. What they are prevented from doing is to authorise teachers, acting in their name and on school premises, to fulfill what they regard as their conscientious and biblically-ordained responsibilities for the guidance of their children.

Of course, if the new Bill is passed, parents who believe that God had instructed them to hit their children will have to make a “strenuous choice” between obeying the law or obeying their God. Christian parents will be able to make a strong case that such an absolute restriction on one of their religious practices cannot be justified in an open and democratic society.

On the other hand (how us lawyers like that phrase!) it is possible that the Constitutional Court will point out that we live in a brutal and violent society in which children suffer incomprehensible harm and will argue that the state’s obligation to protect children should override the right of parents to religious freedom.

If the Court chooses the latter route, Christian parents will suddenly find themselves in much the same invidious position as Rastafarians, who – after a ruling by the Court – must choose between smoking the holy weed or obeying the law.

Zuma is fading fast

2007-06-06T10:31:00.001+02:00

It is always dangerous to predict what will happen in politics and more so when one is foolish enough to want to make predictions about the ANC Presidential succession. But I am a brave man, so I will predict that Jacob Zuma's Presidential bid is done for.

First Mr. Zuma's legal troubles seem to be multiplying. He recently suffered several defeats in court, which may not be relevant for his ultimate criminal innocence or guilt, but which are further tarnishing his standing in the community. Mr. Zuma's lawyers are playing a high stakes game in which they are trying to achieve two things.

More immediately, they wish to prevent Mr. Zuma from being charged until after the December conference. This will allow Mr. Zuma to stand for President of the ANC without being an accused in a criminal case and will allow this supporters to talk darkly about a conspiracy.

In the long term, the lawyers want to wear down the less well resourced NPA by challenging its every move and admitting nothing. They hope that this scorched earth policy will allow them to claim that Mr. Zuma is a victim of state shenanigans and will also force the state into stupid mistakes.

In order to save time and money, Schabir Shaik's lawyer, Kemp J Kemp, made many admissions on his behalf and allowed many documents to be submitted by the state because they decided challenging the authenticity of every document when some of them are clearly authentic would tarnish Mr Shaik's credibility. Unlike Zuma, Shaik also did not have access to millions of Rand to pay his lawyers.

But with Mr. Zuma, Kemp J Kemp and his cohorts are doing exactly the opposite and the results will be predictable. In the court of public opinion, at least, people will begin to ask questions about a strategy in which obvious facts and truths are denied by the potential accused. People are already starting to ask: If Mr. Zuma is so bloody innocent, why is he so bloody desperate to stop the state from investigating the case? Even if this strategy brings legal success, it is bound to bring political ruin.

There is a second reason why, in my opinion, Mr. Zuma is done for. Despite ANC delegates deciding this race. he still needs the media to give him a platform. But it seems to me that both the print media and the electronic media - even His Masters Voice! - have now turned against him. They now either ignore him or criticise him - and the criticism is often scathing. That is why he has launched quixotic defamation actions against several newspapers: he is trying to intimidate the medi into giving him better coverage. Fat chance.

This souring of the media is nicely encapsulated in a post on Prof Anton Harber's Blog. He contrasts the performances of President Mbeki and Jacob Zuma at the international gathering of publishers in Cape Town this week and say Mbeki was astute and careful while Zuma was clueless. This kind of comment illustrates just how disillusioned main stream opinion is with Mr. Zuma and also suggest how elites will try and spin this before the conference. Surely not even the delegates to the ANC conference in December will be immune from all this negative publicity?

Goodbye Jacob. Interested in that diplomatic posting to Tjikitjikistan yet?

How will you be defined in a dictionary?

2007-06-05T11:50:00.000+02:00

A bit of fun (and flattering too!). This is what the site says about my name. Click on link to see what they say about your name:

Pierre -- [adjective]: Visually addictive

'How will you be defined in the dictionary?'

at QuizGalaxy.com

Why hitting a child is not like smoking

2007-06-05T02:05:00.000+02:00

Should Parliament only adopt legislation if it knows the legislation would be enforced successfully, or are there other benefits to the adoption of legislation beyond immediate enforcement?

I am asking because a friend berated me for arguing on this Blog that those parts of the Children’s Amendment Bill banning corporal punishment of children by their parents was a rubbish move on the part of Parliament.

She points out that many people shouted to high heaven when the anti-tobacco legislation was introduced and argued that it would not be enforced, yet most Restaurants now comply and there has been a dramatic change in the public attitude towards smoking – at least amongst the middle classes.

This means that the law can change behaviour - even where it is not perfectly enforced - because new legislation can change the way we look at a specific issue and can thus change the very culture which tolerated the anti-social behaviour in the past. The policing - such as it was - of the anti-tobacco law came from fellow diners and not from the police, but it resulted in most formal restaurants having to comply with the law.

This is a good point. Maybe now that hitting your children will become a criminal offense, you will think twice of hitting those children because the neighbours might not like it and might even report you to the police.

Yet, I am not completely convinced. Unlike with smoking, most parents do not hit their children in public but only in the privacy of their own home. This makes it far less likely that informal public pressure will change the way our society view corporal punishment of children.

What is more likely to happen is for parents to hit the bejeezus out of their children at home, but behave impeccably in public, thus driving the whole thing underground, as it were. The other fear is that – unlike with public smoking – the acceptance of corporal punishment of children is so widespread that the law will have no effect on how others view the matter.

There might well be a communal shrug of the shoulders, accompanied by an exasperated “the-law-is-an-as” roll of the eyes whenever the matter comes up. And that is exactly what one does not want because it breeds contempt for the law more generally. Today that shrug, tomorrow cable theft and the day after that you have become the new Dina Rodriguez.

On Warlords and democrats

2007-06-04T03:52:00.000+02:00

When Graham Brady, the Conservative Party's Europe spokesperson, quit the front bench of the Party last week in protest at policies adopted by the Tory leader, David Cameron, I received an email that rhetorically asked: “Who are the MPs for Khutsong, and why have they not resigned yet?”

Of course, Mr Brady did not resign from the UK Parliament – merely from the front benches of Parliament. The MP’s for Khutsong would have had to resign as cabinet Minister or Chief Whip to have acted in a comparably manner than Mr. Brady.

Nevertheless, the implicit question remains: why do South African politicians never resign any position of power as a matter of principle. Why did no ANC cabinet ministers resign, for example, about the HIV/AIDS fiasco six years ago or when Jacob Zuma was fired or when South Africa decided to support Robert Mugabe?

There are several answers to this question. One is that our MP’s are so wedded to their political parties that they would never speak against their own – a bit of the Hansie Cronje syndrome.

A second reason is that MPs are not directly elected in constituencies and are therefore beholden to party bosses. If they resign in a fuss from cabinet, they will soon be kicked out of the National Assembly as well. Before they know it they will be redeployed as South Africa’s ambassador to Tjikitjikistan. In Britain, if you resign a cabinet post you go back to being an ordinary MP, but you retain some independence because the party cannot kick you out of Parliament – only your constituents can.

Having a constituency system also has other advantages. MPs who actually serve a constituency, must try and please their constituents and will therefore generally be far more responsive to the needs of the electorate than MPs selected by party bosses. Given this obvious advantage, one has to ask: Why is it that the ANC does not want to bring back some form of the constituency system?

The traditional argument is that the party bosses (i.e. Thabo Mbeki and Co) do not want to lose their power over the MPs. If one has a list system of proportional representation, the party and not the electorate decides who becomes MPs.

But recently some ANC people whispered into my ear that there is another reason for sticking to the list system. There is a real fear, according to my source, that independent constituency MPs will become a force onto themselves and would act like Warlords. This would then eventually destroy the ANC.

According to this view, all that holds the various factions of the ANC together and the only moderating force on the ANC is the Central Party structures. If one devolved matters to individual constituencies, demagogues and anti-democratic forces will take over. Without the instructions from head quarters, there would be no more gay rights and no more capitalism. And there would be far more renaming upheavals and other forms of populist politics. Think an ANC version of George Galloway!

These musings prompted another friend to ask: But what happens when the Warlords take over head office? My answer: we will have to wait until December to see!

Parents soon to become criminals

2007-06-02T05:26:00.000+02:00

When the National Assembly passes the Children’s Amendment Bill in the coming weeks, many parents will instantly become criminals. This is because the Bill outlaws all forms of corporal punishment against children – including corporal punishment by parents of their children.

Many South African parents use corporal punishment as a form of discipline, which means that many parents will now become liable for conviction on charges of assault. An aggrieved child would be able to lay a charge of assault with the Police who will then have to investigate the charges against the parent.

Of course an ordinary person who hits another person will usually be guilty of assault. However, until now the common law allowed parents to hit their children as long as this did not go beyond “reasonable chastisement”. The Bill now scraps that exception.

I personally believe that parents should not hit their children – and neither should they cut off part of their child’s penis as part of a bizarre religious ritual, for that matter. It is barbaric and cruel and can scar someone forever. (I also do not have any children that will drive me to extreme violence so it is easy for me to talk.)

Section 12 of the Constitution also states that ever person has the right not to be treated or punished in a cruel, inhuman or degrading way, and the right to security in and control over their body. The state therefore has a duty to try and stop parents from assaulting their children.

But I do not think the introduction of a complete ban on corporal punishment at this stage is a wise idea. One does not have to be a rocket scientist to know that this amendment is not going to stop parents from hitting their children. It is also obvious that the members of an overworked and under-qualified police force are not going to pursue cases of assault against parents unless that assault goes beyond “reasonable chastisement”.

This means that the legislature is passing a law that everyone knows cannot and will not be enforced. It is also a law that will not actually change the way parents treat their children. The legislature recognises this because section 139(5) of the Bill states that the Department of Social Development must take all reasonable steps to ensure that education and awareness-raising programmes concerning the effect of the ban are implemented throughout the Republic.

Of course we know and the legislature knows that “reasonable steps” are going to turn into no steps at all.

Why implement the ban then? All it will do is further to erode respect for the Rule of Law. Unfortunately as a society, we are still rather primitive and very far away from accepting that hitting children is a bad idea. When a law now criminalises corporal punishment by parents, those parents are going to start thinking that the law is an ass and need not be obeyed.

This is the typical reaction of a weak state. Because it feels the cannot really change the way people treat their children, they pass a law they know will not be obeyed and then they can feel better about the problem without having to do the real work needed for social change.

The end result is that the society stops believing in the law and it becomes socially perfectly acceptable to disobey the law - even when the law is a good one that needs to be obeyed.

constitutionally speaking

Archive

constitutionally speaking is moving

On a sad and shameful decision by the JSC

Goodbye Rule of Law, hallo national security?

Et tu Zuma?

Frene Ginwala: independent?

Speak to us Mr President

Manto's advert and the Health Act

President Mbeki owes us an explanation

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

Manto officials unwise (perhaps even stupid)

Mbeki's AIDS denialism explained

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

Another boot-licker shows contempt for the people

Political literacy lessons....

Jacob Zuma's tax problem....

Sisulu lost the plot

Steve Biko

Affirmative action for women or discrimination against poor men?

Dali Mpofu should rather not dabble in constitutional law

Floor crossing and politics

Floor crossing: don't blame the Constitutional Court

Kenya shows the way

In Kenya.....

Zuma for President?

What kind of enemy are you?

Maybe a Zuma Presidency wont be that bad...

National democratic codswallop

Manto and Mbeki: how far can criticism go?

Want to sign this petition?

Manto and doctors must sue or else....

Will Mbeki be fired at end of the year?

A thief and a drunk, or just a sad victim of tabloids?

Mbeki: Sad prisoner of Western culture and values

When (and how) to judge the judges?

Con Court life a drag?

Finally he fires someone....

Slavery is just so last century....

A slow week

Corruption charges against Hlophe?

Keep politicians away from Truth process

Mbeki in a bubble?

O Vlok, the past is unpredictable. . .

On "facts", bikini's and postmodernism

"Because the gays are getting married..."

Animals must be eaten and not heard.....

Culture is a weapon of mass destruction

"Juan Duval Uys" finally arrested

On Robert McBride and democracy

Judge errs in gagging Mail and Guardian, but truth reavealed

Thabo Mbeki = George W. Bush?

What the Vlok is going on?

Xolela Mangcu on Vlok and prosecution

Happy 89th birthday!

Should sins of the wife be visited on husband?

Zuma's double standard

On judicial deference

Aids denialism (II)

Sunday Times advert circa 1985. . .

Judge Hlophe and the transformation of the Judiciary

Thabo Mbeki did flirt with Aids denialism

ANC paranoia is troubling and childish

McBride and the innocent until guilty charade

¨Them¨ and ¨Us¨ mindset primitive

On colonialism and Ronald Suresh Roberts

Light posting

The scary political logic of declonisation

Kebble got value for donation says ANC

Free schooling a bad idea?

Zapiro on new Mbeki Biography....

On "terrorists" and intollerance in Jerusalem

Now Mangcu puts in the boot

Born Gay? Who cares?

Unlikeable Mr. Roberts fit to write a biography?

Declaring "coloured/kleurling" unconstitutional?

Pay hikes for judges?

He sells mobile phones....

Can someone please hug the President

The doors of Parliament not open to all