Plaza Revolución, Havana

I have been travelling through Cuba over the past three weeks — a country venerated for its socialist commitments by both faux and sincere ‘revolutionaries’. But I still do not understand much about the country. The facts do not fit the theory, because the ideological framework that most South Africans — from the left and the right — rely on to make political and economic sense of the world doesn’t seem to work here.

The first thing that strikes me on my arrival in Havana is not all the beautiful vintage cars — although it’s hard to miss them once you start noticing. It’s the complete absence of advertising billboards, or of advertisements of any kind whatsoever. I love the feel this gives to the city and to all the other towns (Cienfuegos, Trinidad, Camagüey, Santa Clara and Jibacoa) I visited during this trip. It is difficult to describe just how significant this is. It’s a bit like visiting a country where there are no plastic bags or any other litter to be seen.

Plaza Central, Havana

But what this might mean for understanding the politics and economy of Cuba, I cannot say.

What also strikes me on my first day wandering through the (often carless) streets of central Havana are the small tuckshops on almost every corner — essentially people selling beer, cigarettes, sweets, cooking oil and other essentials from the front room of their houses or apartments, the meagre stock usually on display on a table or on a small stand positioned in a front window.

My first day in Havana is stressful in a way that travel in the age of smartphones and easy internet access now seldom is. This is mostly because of the complicated way that money works in Cuba. The websites I consulted before my departure from Cape Town all warned that, as a tourist, one should bring along hard cash for the entire amount of money one plans to spend during one’s trip — either in dollars or euros or (in my case) a combination of the two.

ATMs are scarce and they do not always work. Also, there are often long queues at ATMs. But, more importantly, the exchange rate for ATM withdrawals is 110 pesos to the euro, (the “official rate” is 25) while the unofficial exchange rate (as the taxi driver who took me from the airport to my casa particulares when I arrived in Havana immediately told me) is now closer to 250 or 260 pesos to the euro or dollar.

Even more confusing is that higher-end independent restaurants and some private shops quote prices in euros, not in pesos, while intercity shared taxis (called colectivos) can only be paid for in cash, and only in euros or dollars. Change is often given in pesos, though, so you need to ask beforehand whether the change will be calculated using the official or unofficial rate.

And then there is the matter of inflation. Currency reforms adopted in 2021 have led to rampant inflation — up to 400% — which means that prices quoted on the internet in pesos are invariably wrong, often by a lot. The restaurant menu that says they sell a beer for 100 pesos? Wrong. It will now be 300 or 400 — or 500 if you are a tourist with no street smarts.

Then there are the government shops, where the prices are all quoted in euros, and where one can only pay with a credit or debit card. To a South African these shops look rather odd, with their goods often displayed in large display cases behind a counter — one has to ask the shop assistant what you need: one case filled with toilet rolls, another stacked with tinned tomatoes, another with tractor spare parts. (Okay, I made up the last bit, but you get the idea.)

Often these shops sell only two or three products, one shelf filled with one type of deodorant, another with shower gel and a third with shampoo. Usually, a stern woman guards the entrance, admitting only one or two customers into the store at a time and checking your receipt against the goods you bought to make sure you paid. (They do the same kind of checking when you leave the Ultra Liquors store in Green Point, Cape Town.)

No hablo español

The fact that I do not speak Spanish in a country where very little English is spoken is also a challenge. Back in Cape Town, I downloaded an app on my phone to do translations from English to Spanish and back, which worked well when the internet was not throttled (when this happens — about 12 to 16 hours a day — phone calls and text messages work fine, but any other web-based access to the internet becomes impossible). That said, ordering a Cuban SIM card back in Cape Town — which I picked up at the airport in Havana on arrival — turned out to be a wise move because access to Wi-Fi, while theoretically possible, was seldom practically available.

Then there is the troubling matter of the queues.

I am distressed (not wanting the ideologues from the Free Market Foundation or the Institute of Racist Relations to be proven right) when I spot a long queue of people waiting to buy bread in Cienfuegos, a beautiful town famous for its French colonial architecture. Yes, I have read that there is a shortage of petrol in Cuba and that food production has fallen dramatically since the start of Covid, but queuing for bread is not a good look.

Sunday morning in Cienfuegos

It takes me a while to figure out (or to think I have figured out) that these queues (but not others) are for the government-subsidised food rations (subsidies by up to 90%) that every Cuban — regardless of financial position — is entitled to. In essence, this is a basic income grant paid in food — which would have been a pretty good idea to implement in South Africa had it not been for the obvious problem that the system would soon be fatally corrupted. These shops usually have details of the rations each person is entitled to written in white chalk on a blackboard.

While wandering the back streets of Cienfuegos I spot what strikes me as one of the prettiest of these shops in Cuba. (But as with everything else in this piece, I might well have got this wrong.)

At this shop, there is no queue.

Government ration shop, Cienfuegos

Cienfuegos at night

In Trinidad, another beautiful town, a Cuban artist who talks to me at length about the town’s slave history and the influence that slaves had on Cuban religious practices, implores me to avoid government-run businesses and to frequent independent establishments only. Until 2011 such establishments were illegal (which does not mean they did not exist), but in that year the government implemented a scheme which allowed Cubans to run establishments in prescribed areas of the economy. One needed to apply for a permit, which had to be paid for, but on what basis such decisions were made is not clear.

In 2021, this was changed, with everything allowed if a permit was granted, except for a list of prohibited activities. Areas that are especially important for the state for economic or political-ideological reasons remain beyond the reach of the self-employed, but all other areas have been opened to citizens.

Highly qualified professionals such as doctors, dentists, architects, lawyers, engineers or researchers in science and development, together with the printing of newspapers and books, the manufacture of motor vehicles, motorcycles, ships, trains and airplanes, as well as the press and culture sectors all remain under government control.

Trinidad, Plaza Mayor

Economic theory

It is Tino — a tall, slender, Dutch guy of more or less my age who befriends me on the terrace of a government restaurant and bar in Camagüey, after asking me if I am Dutch and then telling me (it’s more of an order that an invitation) to join him at his table for another mojito (he is paying) — who offers another explanation for the queues in non-rationing shops.

First, he tells me that he is known as Tino in Cuba because his real Dutch name —Thijs or Thijn, or something similar — is too difficult for Cubans to pronounce. Then, when I ask him what he actually does for a living, he laughs, lights another cigarette, and says that he is a hustler. A line he obviously trots out regularly. Mostly, Tino says, he hustles by arranging money transfers to Cuba for ignorant tourists from Europe. “I will never be a Cuban,” he says, “but I have learnt to hustle like a Cuban.”

A bar on Plaza San Juan de Dios, Camagűe

It is then that he offers Itme his theory on the Cuban economy and society, which

It is then that he offers me his theory on the Cuban economy and society, which he expands on in what he calls one of his “books” (a PDF document) which he WhatsApps to me after our jolly lunch at a “real Italian pizzeria” where, he says, the owner’s wife can be tricky.

“Westerners,” he says, “do not understand that Cuba has a supply economy, not a demand economy.” What do I know, only two weeks in a country that is as different from my own as it could possibly be, but Tino’s spiel does make some kind of sense to me just then.

Almost every product is available at some or other time, but you need to be patient, he says, which means that when something becomes available, the news spreads fast and people flock to buy it, hence the queues. This week it might be deodorant. Next week it might be milk or shampoo. When it becomes available you rush off and buy 10 or 20 of that product, knowing it won’t be available for another few weeks or even a few months.

Tino is enjoying himself now. Have you ever wondered why Cuba is not at all like those depressing Eastern European countries that suffered through socialism? he asks. When I shake my head as expected, he looks delighted and explains that this is “because Cubans are hustlers at heart”. Things work when they work because Cubans work around the rules. And everyone has a side hustle, preferably in dollars or euros.

I have no idea about the rest, but about Cuba not being at all as depressing as 1980s Eastern European socialist states, Tino is spot-on.

Two days later when a beautiful Cuban man tries to pick me up in a restaurant in Santa Clara — I assume money would have had to be involved for this pick-up to be consummated — I only notice after I politely rebuff his advances that he is wearing a T-shirt with the word HUSTLER printed in large silver capital letters on the front.

The post A hustle here and a hustle there — how things work (maybe) in Cuba first appeared on Constitutionally Speaking.

I have always had a complicated relationship with rugby and the Springboks, a relationship almost as complicated as (and inextricably linked to) the relationship between me and my late father. As a boy, I loved rugby and the Springboks above all else. One could say I loved the Springboks as fiercely as I yearned for my father to love and like me.

When I saw the Springbok prop Trevor Nyakane celebrate the Springbok rugby team’s victory on Saturday with his killer dance moves, I immediately thought of Uncle Norman, Trevor’s dad, and Trevor’s sisters, Abigail and Rhulani.

Back in 2015, Afrikaans writer Dana Snyman wrote about watching a Springbok game with them at the sisters’ home in Gravelotte in Mpumalanga, and how, when Trevor came on to the field in the second half, Uncle Norman placed his hand on Dana’s shoulder as if he wanted to make sure Dana saw this, and how Abigail and Rhulani jumped up and shouted, “Buti! Buti!”, and how Uncle Norman told him as he was leaving that Trevor’s second name was Ntando, and that this meant “blessings”.

I also thought about Abel Erasmus, Rassie’s late dad, who, like my own father, was an alcoholic; and about Rassie who writes of his shame and his fear that others would see his father roaming through the house in his underpants, drunk on cane spirits (which they called his father’s bloukop-soldaatjies, because of the blue cap on the Mainstay bottles), and how he tried to protect his father from the humiliation by keeping others away from their house.

Inevitably, I also thought about my own dad, also named Pierre, who died in 2003, and about the fact that the handful of perfect childhood memories I have of my father and me – of being together, happy, close; moments when I felt safe and cherished – are memories involving rugby.

There are so many things I want to say about the meaning of this Springbok rugby team and about what happened in the country and to its people over the past few weeks. But I am not sure I am able to do so just yet. All I can offer is the memories that follow – about rugby and the Springboks and me and my dad – in the hope that it may say something about the moment we are living through – even though I am not at all sure that it does, or if it does, what exactly it might say.

You see, I have always had a complicated relationship with rugby and the Springboks, a relationship almost as complicated as (and inextricably linked to) the relationship between me and my late father. As a boy, I loved rugby and the Springboks above all else. One could say I loved the Springboks as fiercely as I yearned for my father to love and like me.

Until I was in my late teens, I knew the final score of every Currie Cup final and every Springbok rugby match played since my birth; I knew who had scored the points in each of these games, and I knew how many caps each Springbok had earned for the team.

In 1974, I spent hundreds of hours making a scrapbook of the Lions’ tour to South Africa, and when the Soweto uprising started in 1976, my greatest worry was that it would lead to the cancellation of the All Blacks tour to South Africa scheduled to start two weeks later.

I tacked posters of Springbok rugby players like Jan Ellis, Morné du Plessis and Gerrie Germishuys (which I had carefully removed from the centre pages of Die Huisgenoot) on my bedroom walls, alongside posters of South Africa’s two most famous beauty queens, Miss World Anneline Kriel and Miss Universe Margaret Gardener.

Playing with my sister’s blonde-haired doll, I invented an elaborate game in which Miss South Africa (dressed in her official “African-themed” gown designed and made by myself), would hand over awards to various Springbok rugby players in different categories: “most points scored”, “most tries”, “best sportsmanship”. Then I delivered the speeches made by each winner.

“Dis slegs met die genade van Bo wat ek voor u staan.” (“It is only by the grace of God that I stand in front of you.”)

No wonder the first thing my father told me after I came out of the closet in 1993 was that the news came as no surprise to him.

I loved rugby and I loved the Springboks, but I was terrible at playing the game and feared – even hated – playing it. I was a typical sissy (hopefully, I still am). I hated my rugby kit getting dirty. I hated being tackled. And I hated the spanpraaitjies before each game where our coach would tell us to fuck up our opponents without being caught, before bowing our heads and praying to ask God for a victory.

I could not catch a ball, I could not pass a ball, and I could not throw a ball – the latter being a slight problem since I played hooker and had to do the lineout throws. I still can’t do any of these things, although the World Cup win fleetingly gave me a mad belief that Rassie would be able to teach me to do so.

In my Grade 11 year, after watching me play for the sixth team of Pietersburg Hoërskool against our arch-rivals Tom Naudé Hoërskool (I think we lost), my mother drily remarked, after taking a deep drag on her cigarette, that I had impeccable rugby instincts as I always anticipated where the ball would be and always made sure that I was nowhere near it.

It had something to do with rugby then being a sport run by Afrikaners and largely played by Afrikaners for other Afrikaners. (In this context, by Afrikaners I mean white people whose mother tongue was Afrikaans.)

While our family saw ourselves as verligte Afrikaners, our identity remained that of Afrikaner Nationalists (my mother helped to staff the Nasionale Party booth outside the local polling station in the 1977 whites-only election), and if you were an Afrikaner Nationalist, you loved rugby and the Springboks. Kant en klaar.

My love for the Springboks also had something to do with the Afrikaans radio commentator Gerhard Viviers (who we all called by his nickname, Spiekeries) who I hero-worshipped almost as much as I hero-worshipped my father.

Before the advent of television in 1976, the only way you could follow a rugby game or any other sporting event was by listening to the commentary on the radio. Spiekeries was notoriously biased in favour of the Springboks, but he had a beautiful voice and a marvellous ability to paint a picture of what was happening on the field.

By the time I was five years old, I could do a passable imitation of Spiekeries commentating on a match.

I would always pretend that I was commentating on a rugby game between the Springboks and the All Blacks, while I re-enacted the game on the open field in front of our army barracks house in Oribi, Pietermaritzburg, using a tennis ball as my prop.

The Springboks always trailed with only a few minutes to go, before they would score the winning try and clinch the series. Spiekeries would go wild.

“Jan Ellis vat die gaping en hy is regdeur! En hy druk hom! Hy druk hom net links van die linkerregoppaal! In die doodsnikke van die wedstryd! Dis ’n mooi drie. Dis ’n pragtige drie!”

I was a lonely child, scared of the other boys, scared of being mocked and bullied, scared above all else that those boys would discover I was a moffie – something I instinctively knew I was, even though I had no idea what it might mean.

Recently, I chanced upon a book review by Matthew Halse in the Foucault Studies Journal containing the following sentence which seemed to explain everything: “To be queer is always already to be in some way unknowable, and thus the basis of queer relationality must be predicated upon a certain unease, a certain distance.”

I know my father loved me in his own complicated and broken way, but I am not sure he always liked me. But I know he did like that I loved rugby and that I could tell him that in 1976, the Springboks beat the All Blacks in the fourth test at Ellis Park by one point and that the final score was 15-14.

Two memories, both lightly fictionalised in a novel I published in 1993, stand out. (When, during the Covid lockdown, I re-read that novel for the first time since it was published, I was surprised to discover that after the narrator – also the main character – betrays his father who had been a Vlakplaas hit squad member, by handing over evidence of his father’s crimes to a human rights organisation investigating police brutality, he writes that he had expected this to change everything, but that it had changed nothing. My father was a lawyer, not a policeman – the Vlakplaas bit was very much invented.)

The first memory is about what happens on 27 July 1974, the day my father takes me to Ellis Park Rugby to watch my first Springboks match. We watch the Springboks draw 13-13 with the touring Lions team, but because they had badly lost the first three tests, we are both giddy, even ecstatic.

On the way home, my father stops at a roadhouse (I might be mixing up this memory with another, as I can’t find any evidence on the internet that there is a roadhouse along the way between Ellis Park and our home in Brackenhurst, Alberton), where he buys us both an ice cream cone with a flake in the middle, and – braver than usual – I make him laugh by imitating Gerhard Viviers describing the Springboks’ equalising try scored by Peter Cronjé right in front of where we were sitting.

The second memory must have happened a few months earlier on the night in 1974 (when I was in Grade 5) before my first-ever rugby practice. (Years later I was astonished when my therapist asked me why I had not refused to play rugby – as if choosing not to play rugby was something that a white Afrikaans boy could ever do.)

My parents are in the front room of our house, my mother sipping on a pink Campari, my father gulping down his usual brandy on the rocks. The room is thick with smoke from my mother’s Ransom Select and my father’s Gold Dollar Plain cigarettes.

Pa is already a bit drunk, but not yet angry drunk, which is why I take a chance and ask him what position I should volunteer to play the next day. I am in my tattered short-sleeve pyjamas, because this will allow me to excuse myself and go to my room to sleep if things turn ugly. (When you are a child and your father is an angry and capricious drunk, you always plan ahead to make sure you have an escape route.)

But things don’t turn ugly.

Instead, when I stammer out my question, Pa laughs and tells me I should volunteer to play hooker, the same position he used to play.

“You’re not very sporty,” he says, “so you will have to be cleverer and know more about what a hooker does than the other boys.” He will teach me “some tricks”.

Pa is not a sporty man either. He does not swear, and he does not get into fights. When he is sober, he can be almost prissy. But he hates pretentious people and mocks them mercilessly, sometimes to their faces. He watches other people and points out small quirky things about them and makes us laugh with witty comments about them. He is also thin-skinned and insecure, and when he is drunk, he is more paranoid, bitchy and deceitful than even the worst English rugby writer alive today.

But for now, he plays the jolly rugby expert.

Ma is commandeered from the couch to help, because “a hooker needs two props”. Ma is loosehead prop, Pa tighthead. He shows me how to bind to my props, and how to shuffle the imaginary ball to the back of our imaginary scrum with my right foot when the scrumhalf enters the ball into the scrum after shouting: “Hakers, die bal kom, yaa!” In between practice rounds he takes large gulps of his brandy on the rocks (he only drinks Richelieu, never Klipdrift). But when the glass is empty he does not go to the kitchen to refill it as he normally would. Instead, we do another “Hakers, die bal kom, yaa!”

Ma and Pa are both laughing now.

“Tell him about the time you broke your collarbone in the match Messina played against Phalaborwa,” my mother laughs, reaching for her cigarettes and then fumbling with the matches. “You know, Pappa tried to play with that broken collarbone for another five minutes before he left the field. Men can be such show-offs.”

I know the story well, but I also know that drunk people like repeating themselves and I don’t want this to end, so I remain perfectly still. Waiting. Watching for any sign of trouble. Pa’s eyes are shining bright, and for a moment I worry that he is going to cry. Always a bad sign. Instead, he unbuttons his shirt to reveal the scar on his left shoulder where the bone had stuck through the skin.

“You can touch it,” he says, presenting his shoulder to me, like a priest in the Kinderbybel making an offering to one or other heathen God. The skin over his scar is smooth and hard.

“It was blerrie painful,” my father says while buttoning up his shirt. (“Blerrie” being the closest he came to swearing.) “You don’t want this to happen to you. Rugby is not that important.” He ruffles my hair, which gives me a funny feeling in my stomach, then scoops me up and holds me in his arms, hugging me harder and longer than I think is necessary.

He smells of cigarettes and brandy and Old Spice. What I remember thinking then is that he smells like a man. I also remember that I hugged him back. But maybe I made up that part later.

I am 38 years old before my father and I hug like this again. (But that is a story for another day.)

You probably know what is coming next. I fell out of love with rugby and the Springboks during my student days. Too white. Too brutal. All the rest.

But there is something else.

While I feared my father and his drunken rants for many more years to come, by the time I had completed my studies I had “quiet quitted” my father.

When I read the narrator describing his father in Die Storie van my Pa” (The Story of my Father – a short story in Wiefeling by the award-winning gay short story writer Koos Prinsloo who died of an Aids-related illness in 1994), as his “poor, poor, oh so spurned, oh so obstreperous, oh so lethally sorrowful and disgruntled, poor ancient fucking old father”, I thought it captured my own feelings.

Don’t get me wrong. I could never get myself to hate the Springboks or even to support the All Blacks – as so many black fans of rugby in the Western Cape did for so long, although I saw this at the time as a character flaw, a bit like I now see my failure to learn to speak isiXhosa as a character flaw.

By 2019 my attitude towards the Springboks had changed significantly. But trust does not come easily to me, so while I was fully committed to the team, and especially to Rassie and Siya, and wept when the Springboks won the World Cup in Japan four years ago, I hesitated. William Faulkner was not wrong when he wrote: “The past is never dead. It’s not even past.”

This year has been different. I am all in for the Springboks. For reasons I am unable to express in words, the Springboks – Rassie, Siya, Trevor, the entire team – have made it possible for me to love rugby and the Springboks wholeheartedly again.

But there is one more thing.

I recently re-read the short stories of Koos Prinsloo after they became available in an English translation, as well as an earlier book of commentary about Prinsloo’s work, written by Prof Gerrit Olivier, and discovered that I had missed something in Die Storie van My Pa from which I quoted above.

While the story at first appears to be a story of the rage of a son towards his homophobic and self-pitying father, the tone changes midway when, after speaking to his father on the phone, the narrator tells us: “My father’s voice settles into my belly. Slowly but surely my heart breaks.”

Rage softens into acceptance, Olivier writes, and the story becomes one “of liberation in the face of death”.

The post Rugby, Rassie, the Springboks, my father and me – a South African parable first appeared on Constitutionally Speaking.

Malema’s claims outside the East London Magistrates’ Court were intended to delegitimise the trial and its outcome, and to intimidate the court into ruling in his favour.

Over the past decade, as the broadcasting of court proceedings have become commonplace, populist attacks on judicial officers and the judgments they produce have become more conspiracy-fuelled and hysterical — particularly in politically charged cases.

While much of this kind of speech (no matter how uninformed or unhinged) is protected by section 16 of the Constitution, accusing a presiding officer of dishonesty and corruption — as EFF leader Julius Malema did last week — should be prosecuted as it amounts to “scandalising the court”, an incidence of contempt of court.

Addressing supporters outside the East London Magistrate’s Court on Thursday 19 October 2023, Mr Malema accused the magistrate presiding over his criminal trial, Twanet Olivier, of not writing the judgment in which she ruled against his bid to have the charges against him dismissed.

Mr Malema claimed that the magistrate interrupted her judgment to take instructions from Pravin Gordhan, President Cyril Ramaphosa and/or Shamila Batohi about how to rule, and that she thus produced a “sponsored” judgment.

He also insulted the magistrate by calling her a racist and incompetent magistrate “who comes late to court”, “can’t get her papers in order”, and “can’t read her judgments”.

Mr Malema’s claims are self-serving and unsubstantiated. The claim that the magistrate was told what to write by Gordhan, Ramaphosa and Batohi is also obviously false. The claims are intended to delegitimise the trial and its outcome, and to intimidate the magistrate into ruling in Malema’s favour — regardless of whether the state had proven its case against him or not. (I make no prediction on whether he will indeed be found guilty of any of the charges he is facing.)

Much like Donald Trump, who has railed against prosecutors, judges and (in once case) even the clerk of a presiding judge in one of the criminal cases brought against him, Mr Malema has also suggested that he was being prosecuted to hamper his ability to campaign in the upcoming election. Like Trump, Malema also lashed out at those who criticised his utterances (targeting Judges Matter and the Ministry of Justice), telling the latter on X (formerly Twitter): “You can Voetsek small bedwetting boys.”

I have previously explained that there is normally nothing wrong with criticism — even harsh criticism — of court judgments or of presiding officers such as magistrates and judges. Ideally, such criticism should be supported by reasons and based on the true facts. It should, additionally, also be based on a good faith engagement with the relevant legal rules and principles.

One finds excellent examples of this type of criticism in academic law journals, where academics often criticise judgments for their lack of rigour, their muddled reasoning, or their interpretation and application of the legal rules and principles.

But even when criticism is uninformed, intemperate, unfair, scurrilous or clearly politically motivated (as is so often the case of criticism of court judgments on social media), such speech will normally be protected by the right to freedom of expression in section 16 of the Constitution.

While such criticism would have little value and could rightly be ignored by the rest of us, section 16 of the Constitution protects the right of everyone to make a fool of themselves, for example, by criticising a judgment that they had not read or had not understood.

It is only in the most extreme and clearest of cases that criticism of presiding officers or court judgments will become a punishable offence. As the Constitutional Court pointed out in S v Mamabolo, the expansive protection of the right to criticise presiding officers and court judgments is necessary as “vocal public scrutiny” of courts and court judgments ensures that presiding officers and the judiciary more broadly are held accountable by the public.

In Mamabolo the court made clear that such criticism will only rise to the level of a criminal offence (the offence of “scandalising the court”) where “a particular remark will tend to or is calculated to bring the administration of justice into contempt”.

As the court explained in Mamabolo, the crime of scandalising the court (which is an incidence of contempt of court) is not aimed at protecting “the tender and hurt feelings of the judge or to grant him [sic] any additional protection against defamation other than that available to any person by way of a civil action for damages. Rather it is to protect public confidence in the administration of justice, without which the standard of conduct of all those who may have business before the courts is likely to be weakened, if not destroyed.”

It is for this reason that even false and obviously defamatory attacks on presiding officers will not necessarily amount to the crime of “scandalising the court”. This is so, even though presiding officers are in the somewhat unique position of not being able defend themselves against such criticism as they “speak in court and only in court” and are thus “not at liberty to defend or even debate their decisions in public”. (Unfortunately, Chief Justice Raymond Zondo has on occasion ignored this principle by unwisely responding to critics of the State Capture Commission of Inquiry and of judges more broadly, thus entangling himself in political controversy.)

In theory, presiding officers could sue any critic who makes false and defamatory claims about them, but I would argue that it would almost always be a catastrophic mistake to do so as it would inevitably entangle the presiding officer in political controversy or raise unnecessary questions about their temperament or impartiality.

The magistrate presiding in Mr Malema’s criminal trial might well feel aggrieved that Mr Malema accused her of incompetence, suggested that she cannot read, and accused her of being a racist. But this is of no relevance when assessing whether Mr Malema made himself guilty of “scandalising the court”. The only question is whether these remarks will tend to or are calculated to bring the administration of justice into contempt.

While some of Mr Malema’s remarks were clearly defamatory and in bad taste, and while they obviously reflect poorly on Mr Malema’s character, I do not believe that they rise (or should rise) to the level of a criminal offence worthy of prosecution.

If individuals were to be prosecuted for questioning the competence or even-handedness of presiding officers it would have a chilling effect (even when the insults are scurrilous) with the fear of being prosecuted for criticising the courts making courts less accountable to the public.

That said, our courts may well hold that Mr Malema’s accusation of racism amounted to scandalising the court. In 2002 the Gauteng high court in S v Bresler & Another convicted a man of scandalising the court for launching a racist attack on the coloured magistrate who had convicted his daughter of a traffic offence after Mr Bresler wrote that the magistrate was unqualified, insane and incompetent, and had applied “bush law”.

However, I agree with the criticism of this judgment by Dario Milo, Glenn Penfold & Anthony Stein in Constitutional Law of South Africa that, while the “comments were clearly reprehensible, and would have provided solid grounds for […] a complaint before the Equality Court, the conviction for contempt of court was not, in our view, a justifiable restriction of free speech”. (I am, however, not persuaded by the authors’ thought-provoking argument that the crime of scandalising the courts should be abolished.)

Mr Malema’s statement that the magistrate interrupted her judgment to take instructions from Pravin Gordhan, President Cyril Ramaphosa and/or Shamila Batohi about how to rule, and that she thus produced a “sponsored” judgment is a different matter altogether.

This statement does not merely question the competence or even-handedness of the presiding officer. Instead, it accuses the presiding officer of corruptly taking orders from the president, a Cabinet minister and the NDPP, thus suggesting that the trial is a predetermined sham directed by Mr Malema’s political opponents and by the current NDPP.

The case law seems to be clear on the point: accusing a judge or magistrate of corruption and dishonesty when there is no factual basis to do so will often amount to criminal conduct punishable as an instance of scandalising the court.

For example, in 2018 the Eastern Cape high court in Gouws v Taxing Mistress (Port Elizabeth) and Othersconvicted Mr Gouws for contempt of court for scandalising the court and sentenced him to 18 months’ imprisonment, wholly suspended for a period of three years, after he had made “serious, egregious, and scandalous statements” about various judges, magistrates and legal practitioners.

To determine whether remarks like these made by Mr Malema were calculated to bring the administration of justice into contempt, a court will not only look at the words, but also at the larger context. The fact that Mr Malema is a powerful and influential politician, that he uttered these words outside court to a large gathering of supporters who would mostly be highly susceptible to believe his claim, and that the motive was to discredit the criminal trial and its outcome, would all count against him if he were to be criminally charged for these utterances.

While I can imagine some citizens arguing that Mr Malema should not be prosecuted because it would bolster his claims of being persecuted and would be to his political advantage, this is not a permissible ground for non-prosecution. The NPA is required to act without fear or favour and may therefore not base a decision to prosecute or not to prosecute an individual on the possible impact of the decision on the electoral fortunes of any political party.

It would be rather ironic if an impartial and independent decision by the NPA to prosecute ends up boosting the electoral fortunes of the EFF, while exposing Mr Malema to possible imprisonment.

The post Julius Malema has opened himself to criminal charges of ‘scandalising the court’ first appeared on Constitutionally Speaking.

What kind of lawyer would be brazen enough to advance such mendacious legal arguments on behalf of their equally mendacious client, knowing there is zero chance that the challenge will succeed?

Earlier this week Jacob Zuma and the JG Zuma Foundation announced that they are proceeding with their court challenge to review and set aside the appointment of Justice Raymond Zondo as the Chief Justice of South Africa.

The challenge is a legal nonsense and an abuse of the court process, and thus yet another attempt by Zuma to delegitimise the State Capture Report as well as the Constitutional Court to avoid accountability for his dubious actions.

Who on earth, I wonder, is funding this folly?

And what kind of lawyer would be brazen enough to advance such mendacious legal arguments on behalf of their equally mendacious client, knowing there is zero chance that the challenge will succeed?

In its media release, the JG Zuma Foundation suggests it will challenge the appointment on two distinct grounds.

It claims, first, that the appointment was irrational because President Cyril Ramaphosa ignored the advice of the Judicial Service Commission (JSC) whose preferred candidate for appointment was now Deputy Chief Justice Mandisa Maya.

It claims that Justice Zondo “scored the lowest number of votes from the JSC following the week-long interviews”, and that the JSC “effectively declared [Justice Zondo] as unsuitable for the position”.

There are fundamental problems with this claim.

To start, the claim that the JSC effectively declared Justice Zondo unsuitable for the position is false. We know this because the lead counsel in all of Zuma’s recent failed court applications, Dali Mpofu, speaking in his capacity as spokesperson of the JSC, made clear at the time that the JSC believed “all four candidates were of a high quality”.

Additionally, section 174(3) of the Constitution makes clear that the President has the final say in appointing the Chief Justice “after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly”.

As the President is not required to appoint the Chief Justice “in consultation with” the JSC, but merely “after consulting” with the JSC, he is entitled to ignore the advice of the JSC.

Again, as spokesperson of the JSC, Mpofu confirmed this self-evident fact when he stressed that Ramaphosa was not bound by the recommendation emanating from the JSC interviews as it remained his sole, presidential prerogative in terms of the Constitution to appoint the head of the judiciary.

When asked whether there would be any consequence should Ramaphosa choose to select one of the other candidates for appointment, he said:

“There are no consequences. The Constitution is very clear that the Judicial Service Commission is making a recommendation, or to put it in the words of the Constitution, that the President, after consulting the JSC, makes the appointment. What is notable is that we are not even the only body that he consults.”

It is true that had the JSC found Justice Zondo was not appointable at all (something it did not do), the President’s decision might have been vulnerable on the ground of irrationality if he had not taken this into account. But even then, the decision would not be irrational merely because he decided not to follow the advice of the JSC.

The Zuma Foundation also argues that in choosing to appoint Justice Zondo (instead of Justice Maya) as Chief Justice, President Ramaphosa acted in breach of the equality clause and section 174(2) of the Constitution “both of which prohibit gender discrimination”. Again, there are two fatal problems with this argument.

The claim that section 174(2) of the Constitution prohibits gender discrimination is self-evidently false. What the section actually says is that the “need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”.

The section does not contain a prohibition of any kind, as the foundation claims. Instead, it imposes a duty on the body or person making the appointment, to consider – as one of the relevant factors – the need for race and gender representivity in the judiciary when making an appointment.

Moreover, as the Constitutional Court first suggested in 1997 in President of the Republic of South Africa and Another v Hugo, given the nature of the power bestowed on the President when making appointments under the Constitution, or the manner in which it is required to be exercised,  it may very well be that the provisions of “the Bill of Rights provide no ground for an effective review of a presidential exercise of such a power”.

This is so because the President, acting as head of the executive, exercises a political discretion that a court would normally not be permitted to interfere with, as this would breach the separation of powers. (This is something I already pointed out back in 2009 after Helen Zille appointed an all-male cabinet and Cosatu had the ridiculous idea of challenging this in the Equality Court.)

For example, it would be beyond absurd to argue that the President unfairly discriminated on the grounds of sex or gender in breach of section 9(3) of the Constitution because he appointed Gwede Mantashe instead of Lindiwe Sisulu as Minister of Mineral Resources and Energy. (To be clear, unlike either of these ministers, Justices Zondo and Maya were both eminently qualified for the position for which they were being considered.)

This is even more so in cases where the decision made by the President only affects one person. In the context of the pardoning of prisoners, the Constitutional Court thus held in Hugo that in cases where the President “pardons or reprieves a single prisoner it is difficult… to conceive of a case where a constitutional attack could be mounted against such an exercise of the presidential power”. The same will be true when the President is called upon to appoint somebody to a single position.

The real reason for the court challenge is revealed towards the end of the foundation’s media statement when it claims the case will require Ramaphosa to “dispel the allegations or suspicions that Zondo was being unduly rewarded for absolving Ramaphosa for his role in the Bosasa/CR17 scandal, among other things, in the so-called State Capture Commission Report”.

This claim is false, as the President cannot be legally required to dispel Zuma’s allegations or suspicions unless he provides the court with evidence that might give rise to a reasonable apprehension of bias on the part of Ramaphosa.

As there is no such evidence, this is a self-serving political (and not a legal) claim, aimed at promoting Zuma’s campaign to discredit the State Capture Commission, his successor as President, and the Constitutional Court which sent him to jail for his outrageous contempt of that court.

Very much like Donald Trump, who never stops making the false claim that he won the 2020 election against Joe Biden, Zuma cannot get over the fact that both the State Capture Commission and the Constitutional Court had the cheek to try to hold him accountable for his wrongful behaviour.

As he is going to lose this case and will almost certainly be ordered to pay the costs of his opponents, one wonders where the money for this hopeless litigation is coming from.

The cost is surely not going to be covered by the sale of Zuma’s socks.

I suspect much might be revealed about our politics if we knew who the benefactors bankrolling this folly are and what benefits they expect from doing so.

Since it became responsible for the task of disciplining lawyers in 2018, the Legal Practice Council’s lackadaisical enforcement of the applicable ethical and professional rules, as well as its sometimes irrational or politically motivated refusal to act against some wrongdoers, have rightly been criticised.

We need to talk about the Legal Practice Council (LPC), the body tasked with protecting the integrity of the legal profession by ensuring that legal practitioners conduct themselves in an honest and ethical manner to “promote and protect the public interest”.

We need to talk about the LPC because it is failing to do what it is legally obliged to do: act with speed and efficiency to protect the public and the legal profession more broadly against unscrupulous and unethical legal practitioners whose actions bring the legal system into disrepute.

Since it became responsible for the task of disciplining lawyers in November 2018, the LPC’s lackadaisical enforcement of the applicable ethical and professional rules, as well as its sometimes irrational or politically motivated refusal to act against some wrongdoers, have rightly been criticised by the courts, legal practitioners, academics and journalists, with the editors of GroundUp politely describing the LPC as “hopelessly inept, or worse”.

As illustrated by the recent exposé by Carte Blanche and other investigative journalists of the alleged corrupt and unconscionable actions of Eastern Cape attorney Zuko Nonxuba, when the LPC fails to do its job diligently, it can have catastrophic consequences for the victims of unscrupulous lawyers.

In this case, the victims are the desperately poor families of children with severe disabilities who he allegedly defrauded of many millions of rands over many years.

This conduct goes back to at least 2011 and has been widely reported in the media over the past 10 years.

In August 2016, in a case before the Eastern Cape High Court dealing with gross overcharging by Nonxuba, a “clearly incensed” Judge Jeremy Pickering said the court papers constituted prima facie evidence of gross misconduct and unconscionable over-reaching on Nonxuba’s part, and ordered that the documents be handed over to the Cape Law Society (the predecessor to the LPC) for its consideration.

This referral seemed to have had no effect.

In 2018, the Special Investigating Unit again referred damning evidence of fraud against Nonxuba to the Law Society. The LPC, who took over the duty to discipline legal practitioners from the Law Society in November 2018, refused to investigate the matter on the spurious ground that Nonxuba was facing a criminal investigation which had to be completed first.

According to Carte Blanche, the Western Cape High Court finally ordered the LPC to investigate the matter in 2019. Nonxuba was eventually suspended under an order from the Western Cape High Court on 18 April 2022.

In a Carte Blanche interview broadcast on Sunday, LPC spokesperson Kabelo Letebele (joined in the room by the LPC’s chief executive officer) falsely claimed that the first time the LPC became aware that there could be a problem in “any Nonxuba matter” was on 2 August 2021.

Not only was the LPC made aware of problems in 2018, but the LPC had in fact also submitted a damning report on irregularities in the handling of Nonxuba’s trust accounts to the Western Cape High Court on 31 March 2020.

Letebele may have based his false claim on a media statement issued by Janine Myburgh, chairperson of the LPC on 23 June 2023, in which she suggested that the LPC acted relatively swiftly against Nonxuba as the LPC only became aware “that in some of the matters in which Mr Nonxuba was ordered by the Court to establish trusts, the trusts in question had either not been established or had not received any funds from Mr Nonxuba”, on 2 August 2021.

The latter statement is misleading as the LPC had been aware of complaints that Nonxuba’s clients were not receiving money they were entitled to in terms of various court orders long before this date. Whether the LPC was aware of allegations that trusts were not established is therefore something of a red herring.

The failure of the LPC (and before it the Cape Law Society) to take timeous and effective steps to protect the public in the Nonxuba matter, is unfortunately not as rare as it should be.

A quick perusal of the law reports confirms that there is a systemic problem.

Most notably, in November 2021, in a matter dealing with a dishonest legal practitioner that took eight years to come before the court, the Western Cape High Court in Legal Practice Council v Van Wyk complained in a scathing judgment that this happened “because of a rank failure on the part of the regulatory bodies responsible for the control and governance of the profession to properly carry out their duties”.

The court took the LPC to task for the way it handled the matter, complaining that despite its “wide powers and the clear statutory injunction that disciplinary proceedings against errant practitioners are to be instituted and held as soon as circumstances reasonably allow, instances of tardiness and torpidity on the part of the LPC have become more frequent”.

The court also pointed out that it would not be sufficient for the LPC to blame “resource, capacity and financial constraints” as it was the duty of the LPC to address such matters. As a result, the court directed that:

A copy of the judgment is to be furnished to the Chairperson of the LPC, for her comment and report-back as to the causes and deficiencies responsible for the matter having taken eight years to come before the Court, and the manner in which the matter was dealt with, together with her report-back as to what steps have been taken by the LPC to hold accountable those who were responsible for what happened, and to ensure that effective measures are put in place to ensure that the LPC gives effect to its statutory obligations.

It is unclear what action the LPC took to address the problem, but it did not seem to have had the required effect. This is why it was not surprising when the same high court again took the LPC to task for refusing to investigate a complaint laid by GroundUp against a dodgy lawyer implicated in lottery corruption.

GroundUp alleged that the lawyer had made dishonest statements under oath in court proceedings, and falsified documents and forged signatures on affidavits in his attempt to stop GroundUp from publishing articles implicating him in corruption.

In its judgment in Groundup News NPC & 2 Others v The South African Legal Practice Council & 4 Others, the court faulted the LPC’s investigative committee for dismissing the complaint without doing any investigation, as it was legally required to do.

The court rejected the LPC’s argument that it could not investigate the matter before the allegations were “tested by an authority other than the LPC or be supported by reasonable and credible verification”, pointing out that this wrongly places the onus to investigate on complainants, when this was the task of the LPC. (The claim is also puzzling, given that GroundUp did in fact provide the LPC with credible evidence of wrongdoing on the part of the legal practitioner.)

To make things worse, the LPC claimed that the legal practitioner had “given a reasonable explanation to the allegations made against him” and that there was therefore no reasonable prospect of a charge of misconduct against him succeeding.

This claim is false.

As the judgment points out, the legal practitioner “gave no explanation whatsoever of his conduct. His only response was to raise problems with the manner in which the complaint was presented”.

This false claim raises questions about the integrity and competence of the members of the investigating committee, but it is unclear whether the LPC looked into this.

The LPC may well argue (correctly, in my view) that its task is being made more difficult by the many implicated lawyers who deploy “Stalingrad” tactics or otherwise abuse the rules applicable to disciplinary hearings and court processes to prevent or delay action being taken against them.

The fact that some implicated lawyers seem to believe that there is nothing wrong with misleading the court by advancing clearly false propositions does not help either.

One would have had more sympathy with the LPC had it provided clear guidance to members of the profession on when the use of such tactics would be in breach of the Code of Conduct, and had it called the prominent lawyers who overstep the line (some of them representing powerful politicians and politically connected clients) to account.

The Code prohibits legal practitioners, candidate legal practitioners and juristic entities from “doing anything which could or might bring the legal profession into disrepute”, and reminds practitioners that while they have a duty to treat the interests of their clients as paramount”, this is always subject to their duty to the court; the interests of justice; observance of the law and the maintenance of the ethical standards.

I would argue that the Code imposes a duty on the LPC to act against legal practitioners who serially make self-evidently false factual claims to a court or other tribunal, assist clients to have matters endlessly postponed for no valid reason or based on false claims, pursue hopeless matters with no prospect of success whatsoever on behalf of their clients as a delaying tactic or to gain a political advantage for their client, or assist their clients to facilitate the launching of scurrilous and unsubstantiated attacks against the legal system, the judiciary or individual judges.

This kind of behaviour brings the legal profession into disrepute and undermines the legitimacy of the legal system.

Earlier this year, the KwaZulu-Natal High Court, in the case of Grundler N.O and Another v Zulu and Others, summarised the problem as follows:

There is a rising trend in the legal profession of practitioners demonstrating disrespect (if not outright contempt) for courts and the judiciary. One does not need to look far to find examples of this sort of behaviour, from the ranks of senior counsel to the most junior of candidate attorneys. It manifests not only in how practitioners interact with opponents and judges in and out of court but also in the launching of prima facie spurious applications, lacking in factual or legal foundation, that are designed to “snatch bargains”, achieve ulterior objectives, delay and/or obstruct. It is a “win at all costs” attitude that does a disservice to the profession and to the country and sets an appalling example to the public at large. It ignores not only the oath that all lawyers take upon their admission but also the distinction between the duty that practitioners owe to their clients and the separate duty that they owe to the Court.

The LPC would do well to take heed of this judgment and to act proactively to protect the integrity of the profession, by providing guidance to especially new practitioners who might believe that the LPC views such abuses as perfectly acceptable.

The LPC need not wait for complaints to be lodged against practitioners, as section 39 of the Legal Practice Act imposes a legal duty on the executive officer of the LPC to refer allegations of misconduct to the investigating committee if such allegations are in the public domain and there are reasonable grounds to suspect that a practitioner may be guilty of misconduct.

Our courts are not blameless in all of this, either.

Over the past 15 years, they have done little to curb these abuses and to hold practitioners accountable.

But some judges are finally starting to push back, most recently in a judgment of the full Bench of the Gauteng High Court in Maughan v Zuma and Others in which it found that Jacob Zuma’s private prosecution of Billy Downer and Karyn Maughan constitutes an abuse of process as it has been instituted for an ulterior purpose.

Sadly, it is far from clear that the LPC will take action against practitioners who make themselves guilty of the practices highlighted by the court in Grundler.

Perhaps pressure from within the legal profession might help to nudge the LPC into doing the right thing.

Not that there is much evidence that the overwhelming majority of legal practitioners would be prepared to risk anything by speaking up.

The story of the rise and fall of Busisiwe Mkhwebane is in many ways a curious and sad one. But it is also, looking beyond the individual, a rare good news story in which the responsible institutions more or less did what they were constitutionally required to do.

On Monday, the National Assembly overwhelmingly voted to remove Public Protector Busisiwe Mkhwebane from office on the grounds of incompetence and misconduct. President Cyril Ramaphosa is now constitutionally required, diligently and without delay, to give effect to this decision.

With this vote, the National Assembly belatedly corrected its calamitous decision to appoint Mkhwebane as Public Protector more than six years ago. But I fear that the political parties who supported Mkhwebane’s appointment may well learn the wrong lessons from this fiasco.

Lessons on the appointment of Chapter 9 office bearers

It should not be controversial to point out that the decision by ANC MPs, supported by some opposition party MPs, to appoint Mkhwebane as Public Protector was bad for the office of the Public Protector, bad for the country and its citizens, and, it must be said, ultimately also bad for the politicians who secured her appointment with the aim of using that office to target and discredit their political foes inside and outside the governing ANC.

In the Nkandla judgment, former Chief Justice Mogoeng Mogoeng, in full Pentecostal flight, described the Public Protector as “the embodiment of a biblical David… who fights the most powerful and very well-resourced Goliath… one of the true crusaders and champions of anti˗corruption and clean governance”.

This would only be remotely true if the person appointed to the position was truly independent, fearless and principled.

But this is not enough. A Public Protector cannot be a truly effective anti-corruption “crusader” if he or she lacks basic legal knowledge, is incompetent, acts in a dishonest manner, and then fails to seek proper legal advice, relying instead on the advice of charlatans and political opportunists.

Not only does this lead to scathing court judgments invalidating investigative reports, but it also erodes public confidence in the office of the Public Protector and weakens the authority and political influence of that office.

The politicians who secured Mkhwebane’s appointment must be kicking themselves for selecting her. Had they appointed a knowledgeable and competent ally (one more skilful at hiding their dishonesty) to go after their political foes while shielding members of their own political camp, the office of the Public Protector might have had some success in destroying these perceived enemies and would have done far more damage to our democracy than Mkhwebane did.

Sadly, the National Assembly has only once (and probably by accident) appointed a truly fearless and independent person to the office of Public Protector. This is probably because the appointment requires the support of 60% of the members of the National Assembly, which currently means that ANC MPs have a veto over the appointment.

Given this track record, I worry about the wisdom of the appointment of Deputy Public Protector Kholeka Gcaleka as head of that office.

Gcaleka is far more knowledgeable about the law and far more competent than Mkhwebane, but during her short stint as acting Public Protector, she has not shown the kind of fearlessness one would expect from a “true crusader” against corruption willing to challenge the proverbial Goliath head-on.

Lessons on the effective functioning of parliamentary committees

Not a single speaker opposing Mkhwebane’s removal from office attempted to refute any of the damning factual findings made against her by the Section 194 committee. Instead, they complained about the alleged unfairness of the process followed by the committee. This is somewhat ironic, given the fact that the Section 194 process provided a rare example of a parliamentary committee taking its constitutionally imposed accountability function seriously.

As the Zondo Commission Report pointed out, parliamentary committees have a lamentable track record in holding members of the executive accountable.

Party political grandstanding by MPs from across the political spectrum often bedevil these proceedings, sometimes leaving one with the impression that a committee hearing is for show only; MPs already having had their minds made up for them by their party bosses. (To be fair, this is not always the case, especially when the issue before a committee is not politically divisive.)

The Section 194 process was not without its faults. Too much time was taken up by the testimony of witnesses dealing with minor infractions by Mkhwebane.

Moreover, the absence of ground rules on the exact role of evidence leaders, as well as of lawyers representing Mkhwebane, complicated the job of the chair of the committee, who mostly erred in favour of Mkhwebane and her lawyers. This was ruthlessly, but seldom skilfully, exploited by Mkhwebane and her lawyers in an attempt to turn the proceedings into a political trial of her critics.

Despite these shortcomings, the committee reached the only conclusion it could rationally have reached, given the evidence presented, and given Mkhwebane’s refusal to answer questions from evidence leaders.

Except for the committee members supporting Mkhwebane (who had made clear from the start that their minds were made up), committee members largely refrained from political grandstanding, and more or less seemed to keep an open mind about specific factual disputes. (To what extent a body made up of elected politicians can do so, remains a tricky question.)

We should ask if we can learn anything from this process as we consider ways of fixing some of the problems with the committee system identified in the Zondo Report.

Lessons on lawfare and the funding of legal fees

The Constitutional Court ruling that Chapter 9 office bearers were entitled to full legal representation during the Section 194 process no doubt contributed to the excessive cost of the process (the precise cost is not known, but amounts of up to R160-million were mentioned in the National Assembly debate on Monday) as well as to the interminable delays.

As a result, the Public Protector’s office funded Mkhwebane’s legal cost to the tune of R34-million. Peanuts for some; an astronomical amount for the rest of us.

Mkhwebane and some of her supporters claim that the refusal to fund her legal team beyond this sum amounted to a grave injustice. This is a preposterous and cynical claim. In South Africa, no one (not even the public office bearer of an independent body facing impeachment) has a right to legal representation of their choice funded by the state.

I would be shocked (really shocked, not Cyril Ramaphosa shocked) if any court in South Africa held that the Section 194 process was unfair because the state “only” forked out R34-million for Mkhwebane’s legal fees.

But this is a side issue. The dispute about legal fees raises a larger question about the use of public funds or private wealth to subvert accountability processes. A large chunk of the R34-million paid towards Mkhwebane’s legal fees was used to fund a series of court challenges and applications for the recusal of various individuals involved in the process.

While not all the challenges were entirely meritless, several were clearly hopeless and had no prospect of success. (None of the recusal applications had any prospect of success either.) These challenges were initiated only because the state provided the necessary funds.

The purpose of some of these challenges seemed to have been to delay the process and to use court hearings to gain political sympathy for the then-incumbent Public Protector. This is unfortunately part of a larger trend to demand funding for legal challenges aimed at protecting litigants from accountability.

For me, different lessons can be drawn from this aspect of the process.

First, there is an urgent need to adopt clear guidelines on when public office bearers will be entitled to state funding to cover their legal fees. Such guidelines would also need to make clear how much funding would be available and would need to make clear what the funds could be used for.

This is a practical as well as an ethical problem. Practically, the absence of guidelines leads to abuse as litigants often use the issue of funding to delay proceedings against them, leading to long delays. Ethically, it seems unconscionable that the state would pay R34-million for one person’s legal fees when it could have used that money to, say, feed 45,000 children for a month.

Second, it is striking to me that a large chunk of the available funds in this case was used for the purposes of lawfare, a term I use here to mean the strategic use of legal proceedings to intimidate opponents or gain a political or legal advantage over them, including attempts to get courts to resolve contentious political disputes.

As a result, the cost spiralled out of control and the process dragged on for far too long.

But I wonder if the litigation and threats of litigation may not also have helped to ensure the fairness of the process – at considerable cost. In this view, while the careful and considered manner in which the chairperson of the Section 194 committee dealt with both the reasonable and absurd complaints about the process did at times threaten to derail the entire process, it might have also enhanced the credibility of the process and removed any doubt in the minds of reasonable people about the fairness of the outcome.

Even if this is correct, I do not believe it would warrant the unlimited funding of legal challenges launched by public office bearers. But it does suggest that in different circumstances (for example, where an attempt is made to impeach the Public Protector for no valid reasons), litigation by civil society groups might be useful to prevent abuse.

A last word on law, facts and politics

The story of the rise and fall of Busisiwe Mkhwebane is in many ways a curious and sad one. But it is also, looking beyond the individual, a rare good news story in which the responsible institutions more or less did what they were constitutionally required to do.

The courts were pivotal in this regard.

Despite their limited power to do so, courts reviewed and set aside many of Mkhwebane’s irrational and incoherent reports. (Courts have no power to overturn reports merely because they disagree with the factual findings or legal arguments in a report.) In these judgments, the facts and the law almost always mattered much more than the identity or political affiliations of the person against whom the Public Protector made adverse findings.

It should not be, but I find this insistence that facts, law and the quality of one’s reasoning matter, quite encouraging.

While it will not, it ought to shame the many politicians and other citizens who project their worldview on to others and therefore believe that facts, law and principles are irrelevant and that every legal decision or piece of analysis is therefore necessarily based on whose “side” the person is on or on who paid them.

President Cyril Ramaphosa and his Cabinet recently approved draft legislation that will radically expand the definition of “national security” and would open the door for the intelligence service to spy on individuals and organisations in South Africa who are involved in lawful political activity, advocacy, protest or dissent. The draft bill – the General Intelligence Laws Amendment Bill of 2023 – makes for disturbing, even shocking, reading.

It also will require designated persons seeking to establish and operate NGOs or religious institutions (and perhaps churches) to undergo security vetting, and would grant wide discretionary powers to the relevant minister to control the intelligence service (which would be renamed the South African Intelligence Agency).

The draft bill – the General Intelligence Laws Amendment Bill of 2023 – makes for disturbing, even shocking, reading. Many of the proposed amendments are vague, even incomprehensible, thus leaving pivotal questions (such as the criteria to decide which NGO and religious leaders would require security clearance) within the discretion of the minister.

The bill could easily have been written by people who wish to turn South Africa into a national security state, one in which the intelligence service could be put to use to keep the governing party in power.

I know this might sound a bit over the top, so let me explain why I believe the bill is bad news.

Radical change

The bill proposes various amendments to the National Strategic Intelligence Act of 1994, the Intelligence Services Act of 2002 and the Intelligence Services Oversight Act of 1994, ostensibly to give effect to the recommendations of the High Level Review Panel Report on the State Security Agency (which was headed by Sydney Mufamadi).

The panel found, among other things, that the intelligence services “have gone ‘over the top’ in terms of the entities whose members it believes should be vetted”, and that the legislation grants too much discretionary power to the responsible Cabinet minister. The panel thus recommended that vetting be curtailed and that the powers of the minister be reviewed with a view to prevent direct political meddling in the day-to-day affairs of the intelligence services.

Perhaps not surprisingly, the bill seeks to do the opposite. If passed, it will vastly expand the categories of people subject to security clearance, and will grant additional discretionary powers to the minister, often in vague and general terms.

The bill signals a radical change in how the government (at least formally) views “national security”, and in the role it believes intelligence agencies should play in protecting “national security”.

This becomes clear when one compares the proposed change to the definition of “national security” contained in the bill with the current definition in section 1 of the National Strategic Intelligence Act.

Currently, the National Strategic Intelligence Act defines “national security” as the protection of the people of South Africa and the territorial integrity of the Republic against, among others, violent attacks, terrorism, sabotage and serious violence directed at overthrowing the constitutional order.

The current definition explicitly excludes lawful political activity, advocacy, protest or dissent from activities that could ever threaten national security.

The bill now seeks to turn all this on its head, proposing a new definition for “national security” that is as vague as it is confusing. The bill states:

“National security means the measures, activities and the capabilities of the State to pursue, advance [sic] any opportunity or potential opportunity and the security of the Republic and its people including national interests and national values as contemplated in section 198 of the Constitution.”

To the extent that the definition is comprehensible at all, it vastly expands the concept of national security by jettisoning the principle that “national security” essentially deals with threats to the constitutional order. In its place, we get a vague yet all-encompassing definition that would potentially turn almost any matter that could impact on the ability of the state (the drafters probably conflated the “state” with the “government”) to advance “any opportunity or potential opportunity” to pursue, among others, “national values” into a national security matter.

It makes things worse that the definition links these “opportunities” to the “national interest” and “national values”, notoriously vague concepts often invoked by semi-authoritarian governments to justify anti-democratic measures targeting critics and political opponents.

The definition suggests that these concepts are embodied in section 198 of the Constitution. This is not the case. While section 198 refers to equality, peace and harmony, and the ability to seek a better life, it tells us nothing about what these “national values” at the heart of “national security” might be.

Ideological shift

It is also telling that the definition references section 198 instead of section 1 of the Constitution (section 1 lists the values on which the constitutional state is founded), as this underlines the profound ideological shift signalled by the tabling of this bill.

Previously, the ANC government’s formal position was that national security was a matter of protecting the constitutional order. The bill views it as a matter of advancing supposed shared values and interests and going after those who make this difficult.

This shift, to say the least, is alarming. In a constitutional democracy – unlike in a national security state – national security should not have anything to do with lawful political activity, advocacy, protest or dissent, regardless of whether such activities challenge or seek to undermine supposed shared values or national interests.

The proposed change in the definition of national security should be read in conjunction with other proposed amendments that would vastly expand the scope of activities on which intelligence could be gathered domestically.

It would empower the intelligence services to “gather, correlate, evaluate, and analyse” domestic intelligence on “any internal threat or opportunity or potential opportunity or threat or potential threat to national security” in order, among other things, to “identify and impede any threat or potential threat to the security of the Republic and its people”, and to “supply intelligence relating to any such threat to the Department of Home Affairs for the purposes of fulfilment of any function In the absence of prescribed criteria to assess whether a person is vulnerable to ‘undue influence or manipulation’, a person could be denied clearance for almost any reason.

The bill also vastly expands the scope of activities that might constitute “threats to national security”, proposing that any “action or omission” which may “potentially cause damage, harm or loss to the national security” would constitute such a threat to national security.

The bill then lists activities that would constitute such a threat, but bizarrely this list includes affirmative action measures as well as measures “that seek to advance and promote peace and harmony and freedom” (along with terrorism, espionage, pandemics and corruption).

I assume (but who can tell?) the drafters meant to suggest that opposition to, or criticism of, BEE and affirmative action measures or other acts of dissent that may stir up dissatisfaction and may thus lead to disharmony constitute threats to national security.

The bill also proposes amendments that would vastly expand the scope of security vetting. It would do so by amending section 2A(1) of the National Strategic Intelligence Act to change a discretionary power of the Intelligence Agency (may conduct vetting) into a mandatory obligation (must conduct vetting), and by potentially expanding the categories of people who would be required to undergo such vetting to all persons who are employed by or render a particular service to an organ of state; and any person who “seeks to establish and operate a Non-Governmental Organisation or Religious institution”. (Elsewhere the drafters include “Churches” in this list – yet another example of drafting incompetence.)

The bill expands the scope of security vetting, defining it as a vetting investigation aimed at determining “the security competence of a person and if such person is suitable to access classified information or critical infrastructure of the State or is viewed as vulnerable to blackmail, undue influence or manipulation or security compromise”.

In the absence of prescribed criteria to assess whether a person is vulnerable to “undue influence or manipulation”, a person could be denied such clearance for almost any reason. It is not far-fetched to imagine somebody heading an NGO being denied such clearance because their NGO receives money from, say, George Soros or the Bill and Melinda Gates Foundation, or because that person once chatted to the American ambassador.

The bill makes it clear that the minister has the power to decide which individuals falling within the listed categories would be required to obtain security clearance. This would presumably be done in terms of section 6(1)(b) of the National Strategic Intelligence Act which already empowers the minister to make regulations regarding the carrying out of vetting investigations.

But the bill is silent on the consequences of being denied security clearance, which suggests that the regulations issued by the minister will be used to impose restrictions on those who operate NGOs or religious institutions who fail to get security clearance. (The bill also expands the powers of the minister to issue regulations on a variety of other topics.)

It must be clear from the above, that some of the provisions in the bill make little sense (what the hell does “potential opportunity to national security” mean?), but there is no doubt that one of the main aims of the bill is to remove many of the restrictions that currently limit the ability of the Intelligence Service to lawfully spy on people and organisations inside South Africa. (Of course, as the High Level Panel Report makes clear, this has not stopped members of the Intelligence Service from unlawfully spying on people and organisations in South Africa, or from using unlawful methods to do so.)

When I first heard that the bill would require individuals heading NGOs to obtain security clearance, I assumed that this was a case of Hanlon’s Razor, the rule of thumb that one should never attribute to malicethat which is adequately explained by stupidity.

After studying the bill, I strongly suspect that the document is the product of a happy marriage between the two. DM

Democracy is about much more than voting in an election every few years. Democracy is about holding accountable those who wield power. It is about making trouble, asking questions, demanding answers, taking part. It requires work and commitment, and the capacity to deal with endless disappointment.

Next year in May or June, I will dutifully go to my polling station on election day to cast my vote in the national and provincial elections. As was the case in the past few local government, provincial and national elections, I will probably only decide who to vote for at the last minute. I might again split my vote for strategic or other reasons.

Although I do hope this time will be different, my decision may well again be a reluctant one, largely based on the vague hope that I am casting my vote for a candidate or party that might not be as bad as the other candidates and parties on the ballot.

I will probably return home and read a book or binge-watch a bad Netflix series with a nagging feeling that my vote will make no difference to how my province or my country will be governed for the next five years. I will do so fully aware that I have far less reason to feel that my voice does not matter than most citizens do.

When I vote next year, I will probably be part of the minority of eligible voters – which includes the more than 13 million eligible voters who are not registered to vote – to do so (roughly 47% of eligible voters cast their ballots in the 2019 election).

One often hears people say that these non-voters only have themselves to blame for the incompetent, corrupt or otherwise compromised government they are saddled with and that such non-voters have no right to complain.

I am not sure this is correct, and that a decision to vote is necessarily more rational than a decision not to vote. (Voting can feel like the triumph of hope over experience.) There are, in fact, many valid reasons for South African citizens to believe that their vote will not matter much because it will not change anything, or will not change anything important to them.

That this is so, is troubling, not least because the legitimacy of a democratic system of government hinges on the perceived ability of that system to produce a responsive and accountable government capable of (and willing to) address the needs of voters and the communities they live in, in a meaningful way.

The problem is not unique to South Africa, although it arguably manifests here in unique ways. Scholars often point to the election of Donald Trump in the United States, Narendra Modi in India and Jair Bolsonaro in Brazil, as well as the rise in the popularity of far-right “populist” parties in parts of Europe, as evidence for the contention that democracy is in crisis across the world.

This view reflects rising voter disaffection with traditional politics and political parties and a growing belief among citizens that the system is rigged in favour of “elites” and thus not capable (or no longer capable) of ensuring the kind of economic prosperity they have come to expect for themselves and those who look like them and share their values.

The argument here seems to be that many disaffected voters in such countries either turn away from politics altogether or throw their weight behind one or other populist charlatan like Trump, Bolsonaro or Modi who promise to change everything.

Such voters, so the argument goes, often develop a blind, cult-like, devotion to the leader because they are seduced by the fantasy that all their troubles will go away once the leader has “dealt” with some or other “enemy” (immigrants, black people, white people, Muslims, scientists, the media, judges) who they had come to believe is the cause of all their misery.

In one version of this story, these voters come to believe that the democratic system itself needs to be dismantled on the grounds that it is fundamentally “rigged” to serve the interests of a small group of people, or because it no longer serves the interests of those who really matter – themselves.

In this view, governments ignore the needs of voters because they merely implement decisions, often taken in secret, by powerful people outside government who control the media, the professions, the judiciary, and ultimately the politicians. (In a more extreme version of this story, the “rigging” is part of a vast but secretive conspiracy by dark forces who are out to destroy the world as we know it, one vaccine, one lockdown, one World Bank loan, one woke book at a time.)

But here is the catch. There is some evidence that it is not only populist voters who may be losing faith in the democratic system of government, and in the power of their vote to change things for the better.

This is very much the case in South Africa where more than 50% of eligible voters will not vote in South Africa’s national and provincial elections next year, despite (or maybe partly because of) the shocking state of governance in most parts of the country, and despite the possibility that the ANC could lose its overall majority in the National Assembly and in one or two provincial legislatures.

One can only hope that disaffected voters will have a change of heart and will flock to the polls next year to punish the governing party for its woeful governance record and for its failure to meet even the most basic needs of those whose (largely racialised) lack of access to resources make them most dependent on government.

But I am not optimistic that this will happen, and not only because the national leaders of the two largest opposition parties appear to do everything they can to convince the overwhelming majority of voters not to vote for their party.

I would have been more optimistic had there been no factual basis for some of the populist beliefs and attitudes described (or caricatured) above, and had there been no reason to worry that the populists might have a point when they claim that democratic systems of government do not always deliver what they promise to deliver – an open, accountable, responsive and effective government that works for the benefit of all, not the few.

While the scapegoating of vulnerable groups (in both the United States and South Africa, black immigrants seem to be the preferred target) is despicable as well as irrational, it is not so strange that voters would conclude that the system was designed for, and now disproportionately benefits, social, economic and political elites.

When I refer to elites in the South African context, I have in mind, among others, politicians, business owners, members of the professions, middle-class suburbanites with Twitter accounts, journalists, academics, traditional leaders, teachers, civil servants, white “civil rights” organisations, NGOs and anyone else with the funds to litigate before the courts.

As in many other democracies, the legitimacy of the democratic system is also threatened by the perceived corrupting influence of money on the system – through both illegal and legal means.

In South Africa, larger political parties are beholden to large donors who, it can be assumed, will seldom continue funding a party if the party acts against the interests of the donor. Endemic corruption and nepotism arguably pose an even bigger threat to the legitimacy of the system.

A voter who notices that their neighbour’s underqualified son got a well-paying job through ANC connections, or that the police are not investigating the assault on her daughter because the perpetrator is a politically connected businessman, would be hard-pressed to trust the system, more so if they have seen no evidence that ousting the ANC from government would end corruption.

Moreover, I would argue that white – and class – supremacy still permeates our society. It does not instil confidence in the system when the government and most of the media treat the death of one or two middle-class white children in a building collapse as a national crisis, but metaphorically shrug their shoulders when 30 poor and/or black people are killed in a gas explosion or a fire. (If the dead black people are foreign nationals, populist voters are likely to blame them for their own deaths.)

There is also evidence that the most effective (legal) way to hold politicians accountable is to turn to the courts and the Constitution, an option only available to the wealthy or to those lucky enough to have secured the support of an NGO (thank goodness for NGOs).

Apart from becoming a politician, or making pots of money to bribe those politicians with, seemingly the most effective other option – violent protest – is unlawful and potentially lethal (police officers seem to become trigger-happy when confronted by poor black protesters).

And yet, despite all its problems, I think it would be a terrible mistake to give up on democracy.

I have long accepted that most voters are more likely than not to make choices that go against their self-interest, or that I find otherwise baffling. But what do I know, in any case?

What I do know is that the voting aspect of democracy matters as it does matter who governs (even if it does not always matter nearly as much as one would hope it would), and because really bad people do get voted out of office if the election process is relatively free and fair (Trump and Bolsonaro are two recent examples of this).

Second, it is important to remember that democracy is about much more than voting in an election every few years. Having a say, through your vote, in who leads the government, is an important but limited part of any democracy.

Democracy is about having a say (or at least the possibility of having a say) in important issues that impact you and those around you, whether the immediate decision is taken by an elected representative in government or somebody else. It is about using all the (legal) mechanisms at one’s disposal (to the extent resources permit) to hold those who wield power accountable.

It is about making trouble, asking questions, demanding answers, taking part. (Trying to convince people not to vote would, I guess, also be a form of “taking part”.)

It requires work and commitment and the capacity to deal with endless disappointment.

Active citizenship is a term often invoked as an empty Viva-Mandela Rainbow-Nation cliché, but in my view, democracy is more likely to serve the interest of all citizens (or less likely to serve only the interest of selected elites) if citizens get involved in the life of their community and of the nation more broadly.

Of course, being an active citizen can take myriad forms – including voting in national, provincial and local government elections.

I have voted in every election since 1994, despite often worrying that my vote might not make any difference, reckoning that it is easy to do so and that it is not likely to make things worse. (It also helps to remind myself that voting is just one way to get involved and that my privilege makes it possible for me to be an active citizen in numerous other ways too.)

But, if I am honest, I also vote out of stubbornness.

To me, not voting would feel like a defeat, like an acceptance that the only thing that truly matters in our society is wealth, social status and access to the use of force.

I may be deluding myself, but I am not yet ready to accept this.

Jacob Zuma was saved from more prison time by an anomalous constitutional provision with historical roots in the powers of the British monarch. A closer look at the provision shows why this is not as outrageous or legally problematic as some critics suggest.

In terms of Section 84(2)(j) of the South African Constitution, the president – acting as the head of state – is “responsible for pardoning or reprieving offenders and remitting any fines, penalties or forfeitures”. President Cyril Ramaphosa relied on this provision (mirrored in Section 82 of the Correctional Services Act) to order a 12-month reduction of the sentences of all prisoners not serving time for certain categories of serious or violent crime. He granted low-risk offenders an additional 12-month remission of their sentences.

For low-risk offenders like Mr Zuma, who had less than 24 months of their sentence remaining, the remission in effect “extinguished” the remaining part of their sentence. As a result, Mr Zuma no longer had any prison sentence to serve, and was therefore a free man. Even if he had wanted to, there was nothing the Commissioner of Correctional Services could have done to ensure that he served out the required part of his original sentence. (His decision to fast-track the processing of Mr Zuma’s remission is legally a different matter.)

Informed critics of this turn of events would argue that it is not a coincidence that President Ramaphosa’s decision to remit the sentences of certain categories of prisoners, which will result in the release from prison of approximately 9,500 inmates, resulted in Mr Zuma not having to go back to prison. They might argue that the “real” purpose of (or the motive behind) the remission was not to reduce overcrowding in prisons (as Mr Ramaphosa claimed), but to ensure that Mr Zuma did not have to go back to prison.

While this may well all be true, it does not mean the decision was unconstitutional. Nor is it that clear that it demonstrates contempt for the rule of law and the principle of equality before the law – as some critics believe. To explain why this is so, it is necessary to take a closer look at the nature and scope of the powers bestowed on the president by Section 84(2)(j) of the Constitution.

The power of heads of state to pardon and reprieve offenders and remit their sentences can be found in a large number of the constitutions of constitutional democracies across the world. As Andrew Novak explains in his book Comparative Executive Clemency: The Constitutional Pardon Power and the Prerogative of Mercy in Global Perspective, this power has its roots in absolute monarchy, and it is therefore odd that so many democracies continue to allow the head of state to interfere in the justice system, to overturn criminal convictions (through pardon) and to suspend (through reprieve) or to reduce (through remittance) the punishment imposed by a sentencing court, thus blurring the separation of powers between the executive and the judiciary.

This power is also open to abuse – especially, as is the case in South Africa, where no or few restrictions are placed on the purposes for which it can be used. An infamous example from the United States is the pardoning of Richard Nixon by President Gerald Ford after the Watergate scandal. A more recent example is former President Donald Trump’s granting of clemency to several unsavoury characters, including former campaign staff members and political advisers such as Paul Manafort, Roger Stone, Michael Flynn and Stephen Bannon.

The power is also difficult to reconcile with the principle that everybody is equal before the law, as it will often – and sometimes quite randomly – benefit some offenders over others. This is especially true in cases where the president pardons or reprieves, or remits the sentence, of an individual offender.

But proponents of the retention of this power argue that it remains valuable because it allows justice to be tempered by mercy, a powerful argument in contexts where the harsh or unequal application of the law causes severe injustice. The most obvious example would be a situation where the power is used to commute the death sentence imposed on an individual whose guilt may be in doubt. (Because it is cruel, inhuman, and degrading, my view is that any commutation of the death sentence – no matter how heinous the crime – should be applauded.)

It is striking that Section 84(2)(j) of the South African Constitution grants a broad, seemingly unfettered, power to the president to pardon or reprieve offenders or remit their sentences. The section thus allows the president to exercise this power for a wide range of good or bad reasons.

The exercise of this power is nevertheless subject to judicial review in terms of the principle of legality, but because the discretion bestowed by it is so wide, courts will seldom be able to invalidate decisions made in terms of the provision. The courts will have to ask if the power was exercised for a legitimate purpose, thus a purpose permitted by section 84(2)(j) of the Constitution.

Additionally, the manner in which the decision to pardon or reprieve offenders or remit their sentences was made, as well as the decision itself, must be rationally related to the purpose sought to be achieved by the decision.

But as the Constitutional Court suggested in President of the Republic of South Africa and Another v Hugo, such reviews would seldom be successful. The majority specifically noted that “where the president pardons or reprieves a single prisoner … it is difficult to conceive of a case where a constitutional attack could be mounted against such an exercise of the presidential power”. This is so because the power may be exercised to achieve any purpose that it would normally be legitimate for a democratic state to pursue.

However, in Hugo the court did note that were the president to “abuse his or her powers by acting in bad faith”, for example by granting a “pardon in consideration for a bribe”, the court would be able to review and set aside the decision. The same is true if the president “were to misconstrue his or her powers”.

In light of the above, it would be difficult to argue that Mr Ramaphosa’s remittance decision was unconstitutional and invalid. Presidents Mandela, Mbeki (twice) and Zuma all remitted the sentences of tens of thousands of inmates during their terms as president, while this is the third time that President Ramaphosa has ordered such a remission. Had Mr Zuma not been in the mix, no one would have argued that the latest decision was irrational or made to pursue an ulterior purpose, and that it was therefore invalid.

Even if we assume that the sole purpose of the latest remission was to ensure that Mr Zuma did not have to go back to jail, it would still in all likelihood be held to be rational and constitutionally valid. This is so because Section 84(2)(j) permits the president to use this power to achieve any number of aims that a democratic state may legitimately pursue. It would have been perfectly valid for the president to remit only Mr Zuma’s sentence because he felt sorry for Mr Zuma and wanted to show mercy, or to acknowledge Mr Zuma’s contribution to the freedom Struggle, or to prevent the type of large-scale rioting that followed his previous bout of incarceration, to name but a few.

Unless the process followed to reach the remission decision was tainted by irrationality, I would be very surprised if any court found that the decision was made for an ulterior purpose or in bad faith and was thus invalid, as this would probably require it to find that Section 84(2)(j) constrains the president in ways that the section clearly does not.

The position would have been different, of course, if the president had used this power in a corrupt manner (for example, by granting a pardon or remission to an individual in exchange for money or some other personal or political benefit), or if he had exercised the power for his own personal benefit (for example, by granting a pardon to a prisoner to ensure that the pardoned individual does not testify against him in a criminal trial).

It may sometimes be difficult to distinguish between a decision that pursues a permissible purpose and one that pursues an ulterior purpose. I am not sure, for example, whether it would be permissible for a South African president to grant the types of clemencies that Donald Trump granted to his campaign staff, because this may or may not have been done to secure their loyalty to Trump in anticipation of his future legal battles. But a decision by a president to exercise this power for pragmatic reasons would not come close.

The decision to grant a general remission for certain categories of prisoners to ensure Mr Zuma would not have to return was evidently a pragmatic and not a principled one. One could argue that it was unwise, cynical, and politically expedient. But in the circumstances, it was also the least damaging way to defuse the very real practical difficulties presented by Mr Zuma’s serial constitutional delinquency.

When the president grants pardons or reprieves offenders or remits their sentences, it is less problematic from a rule of law perspective when this is not done on an individual basis, but on the basis of a set of clearly defined objective criteria, as this reduces the inherent arbitrariness of such decisions. I would therefore argue that the decision to grant a general remission instead of remitting or pardoning only Mr Zuma was by far the least bad option available to resolve the problem pragmatically.

Unlike the earlier unlawful granting of medical parole based on false claims about Mr Zuma’s health, the president’s decision arguably signals respect (instead of contempt) for the law, by (at least formally) treating Mr Zuma as just one of the many convicted criminals who will benefit from the remission. The decision to fast-track the processing of his remission is, of course, a different story.

There are valid reasons to be angry that Mr Zuma will not be required to serve the minimum part of the sentence imposed on him. There are also valid arguments to be made that a more principled and less pragmatic approach should have been followed.

But it would be better to avoid making emotional and overblown claims based on a misunderstanding of the nature of the power contained in Section 84(2)(j) of the Constitution.

It may or may not have been a bad decision. But a full frontal attack on the rule of law? Hardly.

News that the ANC government has quietly been working on draft legislation to stabilise coalition governments in the local sphere has caused some consternation among smaller political parties who attended the “national dialogue” on coalition governments held at the University of the Western Cape over the weekend. It was therefore somewhat surprising that many representatives from smaller political parties who spoke at the dialogue nevertheless supported some of the proposed measures to regulate coalition governments.

In 2017 the Constitutional Court held in United Democratic Movement v Speaker of the National Assembly and Others that nothing prohibited the Speaker of the National Assembly from allowing a vote of no confidence in the President to be conducted by secret ballot. The judgment, authored by then Chief Justice Mogoeng Mogoeng, was widely praised at the time, as it would allow a vote of no confidence against then president Jacob Zuma to be conducted by secret ballot, which would protect dissident ANC MPs who voted in favour of such a motion from censure by their party.

Because there is a natural tendency to evaluate a constitutional rule by focusing on its effect on the immediate problem at hand, and to assume that it will have the same effect in all other situations, there is always a risk that a rule adopted to fix one problem will cause other problems and make things worse in the long run. The Constitutional Court acknowledged this problem in the UDM judgment, noting that while secret ballot votes of no confidence might sometimes enhance accountability, it could also have disastrous consequences as it could result in the removal or election of a president, premiers or mayors, through “undeserved majorities” secured by “crass dishonesty, in the form of bribe-taking or other illegitimate methods”.

The Constitutional Court did not show the same caution in the Nkandla judgment in which it held that the remedial action imposed by the Public Protector was binding. Its ruling in that case “fixed” the problem of Mr Jacob Zuma ignoring the remedial action imposed by then Public Protector Thuli Madonsela, but did so by arguably creating an even bigger problem. It did so because it wrongly assumed that future Public Protectors would continue to be honest, competent and fair, and that they would not abuse the far-reaching powers bestowed on them by the Nkandla judgment.

It is with this in mind that I expressed some scepticism at the national dialogue on coalition governments about the wisdom of adopting new rules aimed at regulating coalition governments. There is a risk that even good faith policy makers will look at what happened in Johannesburg and some other problematic hung councils recently and craft regulations to “fix” the problems they have identified in these municipalities, without considering that such regulations may do more harm than good in municipalities where the political dynamics are different.

Moreover, even thoughtful and well-crafted regulations may not stabilise coalition governments as the stability of coalition governments largely depends on the quality of the politicians and political parties involved, and on other socio-political factors – something that legal regulations can do little to change.

Despite these misgivings, I do believe that that there is one immediate change to the rules regulating the formation and dissolution of coalition governments worth pursuing. This is to adopt a rule (by amending the relevant provisions of the Constitution and the Structures Act) to require an open ballot for the election or removal of the Speaker of a legislative body, as well for the election or removal of the president, premiers and mayors. (Currently a secret ballot vote is legally required for the election of any of these positions, while a secret ballot is permitted – at the discretion of the Speaker – in votes of no confidence to remove any of these office bearers.)

Requiring open ballot votes for the election or removal of these office bearers would limit the phenomenon of vote buying and would make such votes more predictable. It would enhance trust between political parties involved in negotiations about the composition of coalition governments in hung legislative bodies, as it would help to ensure that such agreements are not derailed by rogue MPs or councillors who do not toe the party line in secret votes.

While conducting votes of no confidence by secret ballot may, on rare occasions, enhance accountability (as it did in the Zuma case), such situations would arise rarely. In almost all cases, such votes have nothing to do with holding office bearers accountable, and everything to do with gaining or losing government power. In any event, secret ballot votes may have a negative impact on the quality of a democracy, as such secrecy shields political parties and their elected representatives from being held accountable by those who should count most in a democracy – the voters. When such votes are conducted in secret, it robs voters of vital information that might influence their voting choices in future.

Another proposal – to limit the tabling of votes of no confidence to one every 12 months (or every 24 months) – seemed to have enjoyed widespread (but not universal) support among political parties represented at the dialogue. At first glance this seems like a common sense proposal that will reduce coalition government instability by preventing legislative bodies from ousting the President, Premier, Mayor, or Speaker every few months through votes of no confidence. While amendment of the Constitution would be required to implement this rule at national and provincial level, a mere amendment of the Structures Act would be required to implement the rule ant the local government level.

It is important to understand that such a rule will reduce the power of the relevant legislative body vis-à-vis the executive by allowing a government to continue in office for a defined period even when that government no longer enjoys the confidence of the legislative body. One must therefore ask whether there is a likelihood that such a rule will be abused and that it may have unforeseen negative consequences in the future.

For example, in a hung council in an executive mayoral system, the rule may heighten contestation around the election of the Mayor. Will this encourage political parties to reach agreement on the formation of a coalition government, or will it have the opposite effect? Will it be possible for the political parties who form part of a coalition government to “cheat” the system by engineering the tabling of a vote of no confidence which they know will not succeed, thus protecting themselves and securing their position in government for another 12 or 24 months? And what will happen if the rule props up a government despite the complete unravelling of the coalition who ensured the election of a mayor?

These (and other, as yet, unanticipated) problems may never arise, and the rule may well do more good than harm. But who could say for sure?

Another proposal that seemed to enjoy significant support from the representatives of political parties at the national dialogue, is for the establishment of an independent body to oversee the management of coalition agreements, and to resolve disputes between coalition partners in accordance with the terms of coalition agreements. The proposal envisages that coalition partners  be required to deposit or register their coalition agreements with this independent body, and that such agreements would be made public.

There are good reasons to encourage political parties who form coalition governments to conclude detailed coalition agreements. Many delegates at the national dialogue bemoaned the fact that coalition negotiations between political parties in hung councils focus primarily (and sometimes exclusively) on the number of mayoral committee positions to be allocated to each coalition partner, and on the specific portfolios each party will be entitled to manage. How these coalition governments will govern and what policies they will implement are seldom discussed.

The proposal is partly aimed at addressing this problem. But it is unclear whether the implementation of this proposal will make much of a difference.

It is important to understand that the Constitution and – as far as the executive mayoral system is concerned – the Structures Act are silent on the formation of a majority or coalition government. Legally the focus is exclusively on the election of the President, Premiers, and executive mayors, who then enjoys an absolute right in law to select who serve in their governments. (This power is informally limited by what parties have agreed to and by other political considerations.) When MPs, MPLs and councillors in hung legislative bodies elect the President, Premiers or executive mayors, they do not vote in support of a specific coalition government; they only vote to elect the person who will head that government.

This means a person can be elected executive mayor in a hung council without there being any coalition agreement in place, which sometimes leads to the formation of minority governments, who remain in power only because one or more political party who is not part of the coalition refrains from supporting a vote of no confidence in the executive mayor. Political parties who hold the balance of power in a hung council often do this to keep one or more other parties out of government. For example, after the previous local government election the EFF supported the election of DA mayors in Tshwane and Johannesburg to keep the ANC out of office, without joining the government. The DA governed as a minority government, and survived only for as long as the EFF wanted it to.

While the proposal will force political parties who do reach a coalition agreement to make the terms of this agreement public, and may arguably also encourage parties negotiating with each other to focus less on the allocation of positions and more on agreed policies of the coalition, it cannot force parties to conclude a formal coalition agreement as this is not required for the election of an executive mayor. It will therefore not prevent parties from concluding a backroom deal to elect a councillor from a tiny party as executive  mayor, with an informal agreement on how that mayor would allocate positions in the government. It will also not prevent political parties from hiding unsavoury aspects of the agreement, such as the allocation of positions or tenders within the administration.

Coalition agreements are in essence political agreements that will only stick when there is a degree of trust between the parties, which means that they cannot (and should not) be made enforceable by a court or any other body. While the proposed independent body may facilitate dialogue between fighting coalition parties, this may not be of much help to stabilise coalitions. What is required to stabilise coalitions is for politicians and political parties to become more honest and principled: to become less concerned about access to positions and resources, and more concerned about the well-being of the voters they serve. Only voters can nudge politicians and political parties in this direction by punishing parties for their irresponsible and selfish behaviour at the ballot box.

A far more controversial proposal, fiercely resisted by smaller opposition parties, is the introduction of a modest electoral threshold, which would reduce the number of political parties represented in legislative bodies, thus limiting political party fragmentation and making it easier for the smaller number of parties to reach agreement on the formation of a coalition government. I have previously explained why this is a proposal worth considering, despite its obvious drawbacks, and will not rehearse that arguments again.

But smaller parties may not have anything to worry about on this score in the foreseeable future, as electoral thresholds might well be in breach of the constitutional requirement that the electoral system at all spheres of government must result “in general, in proportional representation”. The Constitutional Court has not yet given a clear indication what this may mean, but as the introduction of an electoral threshold would exclude a large number of smaller parties from representation in the various legislative bodies, the Constitutional Court may well find that it does not meet the requirement that the electoral system in general results in proportional representation.

(The amendments to the electoral system allowing independent candidates to stand for election, may well run into similar difficulties as it imposes a threshold on independent candidates, requiring them to win more or less double the amount of votes required by political parties in order to get elected to the NA.)

Leaving aside all the technicalities, the stark truth is that politicians and their parties are to blame for the instability of some coalition governments. Legislation – no matter how well-meaning – will not change any of this. Politicians and their parties will only behave better if they believe this is in their own interest, which will happen when voters punish these politicians and their parties for behaving badly.

Earlier this month the Democratic Alliance (DA) government in the Western Cape tabled a Bill it claims will create a framework for the province to fully assert its existing constitutional and legislative powers and to get more powers delegated to it from national government. While the Bill will probably pass constitutional muster, it is unclear what the practical effect of its adoption will be, and thus whether it will serve a purpose other than a purely political one.

By design, the drafters of the South African Constitution did not create a fully-fledged federal system of government. Instead, it created a quasi-federal system in which the national sphere of government retains most of the power and, in many respects, the final say on the powers exercised by the provincial and local spheres of government.

Thus, the powers of provincial legislatures and provincial executives (as well as municipal councils) are narrowly circumscribed in the Constitution, which also makes clear that these spheres may not exercise powers that are not expressly assigned to them by the Constitution or by the national parliament and executive in accordance with the Constitution.

These powers can be divided into three categories. First, provinces enjoy the exclusive competence to pass legislation on a small number of functional areas listed in schedule 5 of the Constitution, which includes abattoirs, ambulance services, liquor licences, provincial planning, and provincial roads and traffic. But even then, section 44(2) of the Constitution allows the national parliament to intervene by passing legislation dealing with these functional areas in narrowly defined circumstances.

Second, both national and provincial legislatures are empowered to pass legislation on the list of concurrent competences listed in schedule 4 of the Constitution. This shared power deals with issues of significant importance, including agriculture, casinos, consumer protection, disaster management, education at all levels, excluding tertiary education, environment, health services, housing, industrial promotion, public transport, tourism, trade, urban and rural development, and welfare services.

When a conflict arises between national legislation and provincial legislation dealing with any of the functional areas listed in schedule 4, the national legislation will prevail over the provincial legislation if any of the conditions set out in section 146(2) or (3) of the Constitution are met.

This include situation where national legislation deals with a matter that cannot be regulated effectively by legislation enacted by the respective provinces individually; where national legislation deals with a matter that, to be dealt with effectively, requires uniformity across the nation; and where the national legislation is aimed at preventing unreasonable action by a province that is prejudicial to the economic, health or security interests of another province or the country as a whole or impedes the implementation of national economic policy.

Third, the national sphere can delegate powers to a provincial on other matters that fall outside the functional areas of provincial legislature and executive. This can be done in two ways. First, the National Assembly can expressly assign such powers to the province through national legislation, or allow the relevant minister to do so. Second, national legislation can delegate the power to pass legislation on such matters to provincial legislatures. This delegation of power can, of course, be withdrawn at any time.

The Premiers of provinces, acting collectively with the other members of the Executive Council, are empowered to implement provincial legislation in the province, as well as implementing all national legislation dealing with concurrent competences like basic education, housing, health, tourism, and welfare services. They are also empowered to administer any other national legislation in the province if its administration had been assigned to the provincial executive in terms of an Act of Parliament.

Municipal Councils also enjoy exclusive and concurrent competences set out in Schedule 4B and 5B of the Constitution. Moreover, both the national and provincial spheres of government may in certain circumstances also assign additional powers not contained in these schedules to Municipal Councils.

Because provincial governments are currently empowered to implement national legislation dealing with, amongst others, basic education, housing, and health care services, a well-run province can make a real difference to the quality of schooling, housing and health services in that province. Conversely, this means that where a province does a bad job at running its basic education, housing or health department (for example, by failing to deliver textbooks, or mismanaging a learner placement policy) the power of the national minister to fix the mess is limited.

Arguing that it is able to govern better than the national government in any number of areas, the Western Cape government has tabled the Western Cape Provincial Powers Bill with the aim of maximising its legal authority to deal with a variety of issues in which it shares competence with the national government, as well as in areas where the national government enjoys exclusive competence. But given the constitutional scheme set out above, the province has little room to manoeuvre to achieve this goal, which is why the draft Bill largely reads like a policy statement or a declaration of intent, and not like the unlawful power grab it has been described as by some supporters and opponents of the Bill.

Thus section 3(1) of the Bill lists several areas in which the “Western Cape intends to assert its existing provincial and local powers and/or seek the delegation or assignment of powers”. Some of the areas identified in the Bill (public transport, trade) fall within the concurrent competences shared with the national sphere of government, others (energy, including electricity generation, international harbours, and international trade) deal with areas that fall within the exclusive competence of the national government. Another matter (policing) deals with matter in which the province is given limited constitutional powers of oversight and monitoring.

The Bill is not entirely clear on how the intension expressed in section 3 will be implemented in practice, apart from creating a requirement for the premier to draft regular reports on “the ways in which the National Government has failed to perform its constitutional obligations”, the additional powers required to rectify this, and if appropriate, to “draft provincial legislation, regulations or policies to assert those powers”.

Assuming that the Bill is not merely an election season stunt, there are two distinct, constitutionally compliant, avenues open to  the provincial government to pursue these aims. First, as far as shared competences such as public transport and trade are concerned, the provincial legislature could pass legislation to grant additional powers to the provincial government to deal with these matters.

Where a conflict arises between such legislation and national legislation, the Constitutional Court, applying section 146(2) of the Constitution, will probably have the final say on whether the national or provincial legislation prevails. It will be fascinating to see how the Constitutional Court deals with such a matter and especially whether it will be more open to claims of provincial autonomy than it has been so far. I am not sure, however, that this approach will produce the kind of results that supporters of this Bill envisage.

This leaves the second option, namely to convince the relevant national minister (and thus the cabinet) to delegate further powers – both dealing with concurrent areas of competence and areas of exclusive national competence – to the provincial government or municipality where this is authorised by existing legislation, or to convince the national parliament to delegate legislative powers on specific issues to provincial legislatures.

While this would be a more effective way of achieving the goals set out in the Bill, it depends entirely on the willingness of the national government and/or legislature to delegate powers to the province or the relevant municipality. Those who argue that this is a politically feasible strategy might well point to moves by the national government to allow municipalities to develop their own power generating projects and to access power from sources other than from Eskom.

But the fact that the Minister of transport recently rejected a request from the City of Cape Town to take over the passenger rail service in the city, and the consistent refusal by Police Minister Bheki Cele to consider the devolution of policing powers to the province suggest that this option remains, for the most, politically unfeasible. To what extent this may change after the national election next year (and whether the outcome may provide the DA with an opportunity to set devolution of such powers as a pre-condition for support of a minority or coalition government) is impossible to say.

That said, the Constitution does allow the national sphere of government to devolve specific powers to the provincial and local spheres of government, so in principle the idea (unlike the idea of Western Cape secession from the rest of the country) is not far-fetched.

However, I would argue that the extensive devolution of powers to other spheres of government should not be undertaken lightly, and should only be done in a manner that respects the basic design of the Constitution. Where such devolution inhibits economic activities across provincial or municipal boundaries; erodes the common market in respect of the mobility of goods, services, capital, and labour; further entrenches inequality; is prejudicial to the economic, health or security interests of another province or municipality; or impedes the implementation of national economic policy, it may do more harm than good, and should be avoided.

But for the moment these are largely academic concerns, not least because the Western Cape Provincial Powers Bill is not likely to achieve the devolution of power to the Western Cape and the City of Cape Town in the manner punted by some of its supporters.

The Constitutional Court’s decision not to consider an appeal by the National Commissioner of Correctional Services in Jacob Zuma’s parole matter means that Zuma must now go back to prison to serve the remaining part of his 15-month sentence, subject to his early release on either parole or on any other ground provided for in the law. The question now is whether a way could be found (or ought to be found) to spare Zuma from further incarceration.

The Supreme Court of Appeal (SCA) judgment which invalidated the granting of medical parole to Mr Jacob Zuma, made clear that this leaves Mr Zuma in the position “as it was prior to his release on medical parole”. This means that Mr Zuma “has not finished serving his sentence” and that he “must return to the Escort Correctional Centre to do so”.

It is important to note that whatever decision is taken by the commissioner about Mr Zuma’s possible early release from prison on parole or under correctional supervision, in terms of the SCA judgment Mr Zuma is first required to return to prison.

As has so often happened in the past when faced with legal difficulties, Mr Zuma has revived an undisclosed medical condition, and has jetted off to Russia, allegedly to receive medical attention there. If he indefinitely delays his return to South Africa, or if he refuses to go back to prison on his return, the National Commissioner of Correctional Services would be able to rely on 39(6)(a) of the Correctional Services Act which allows him (“if he is satisfied that a sentenced offender has been released from a correctional centre erroneously”) to “issue a warrant for the arrest of such a sentenced offender to be re-admitted to a correctional centre, to serve the rest of his or her sentence”.

If Mr Zuma goes back to prison, his stay there might well be short-lived, as it may be possible for the national commissioner to place him under correctional supervision and release him from prison almost immediately afterwards. This he is permitted to do if he believes this is the appropriate course of action after taking into account the relevant circumstances of the case.

Do these circumstances include the time he spent on unlawfully granted medical parole?

The SCA made clear that “whether the time spent by Mr Zuma on unlawfully granted medical parole should be taken into account in determining the remaining period of his incarceration” is for the commissioner to decide. However, the commissioner can only do so if he is empowered by law to do so.

The Correctional Services Act does not seem to empower the national commissioner to count the time spent on unlawful medical parole as part of the sentence already served by Mr Zuma. This means for the purposes of the granting of ordinary parole, Mr Zuma has only served 59 days of his 15-month sentence (about an eighth of his sentence).

As the commissioner is bound by section 73(6)(aA) of the Correctional Services Act, which allows the granting of parole for offenders like Mr Zuma only after they had served at least a quarter of their sentence, Mr Zuma would have to serve just short of another two months of his sentence to qualify for release on parole.

But as I read the act, nothing in it prohibits the national commissioner from considering the time spent by Mr Zuma on unlawful medical parole as a factor to justify Mr Zuma’s immediate release from prison by placing him under correctional supervision. This he would be empowered to do because he is granted a broad discretion by section 75(7)(a) of the act to place offenders serving sentences of less than 24 months under correctional supervision — even when they have not served one-quarter of their sentence.

If Mr Zuma is released under correctional supervision, he would be subject to strict conditions to which he would have to agree beforehand. Such restrictions could include a prohibition on leaving his house or magisterial district, on using drugs and alcohol, on visiting specified places, on contacting specified persons, on threatening specified persons by word or action, and on committing further criminal offences. If Mr Zuma fails to adhere to the conditions imposed on him, he could be sent back to jail to serve the rest of his sentence.

What the SCA judgment did not mention is that Mr Zuma could also avoid serving anything but a token amount of the remaining part of his sentence if the president decides to grant him parole or to shorten (remit) his sentence. This is so because section 81 of the Correctional Services Act grants sweeping powers to the president to “authorise the placement on correctional supervision or parole of any sentenced offender”, or to “remit any part of a sentenced offender’s sentence”.

When the president acts in terms of section 81 he is not bound by the other provisions of the Correctional Services Act and can authorise the granting of parole even if the offender had not served the minimum period required. It would therefore be entirely lawful for President Cyril Ramaphosa to immediately order Mr Zuma’s release on parole or to shorten his sentence to allow for his immediate release — as long as this decision is rational.

If I am correct that Mr Zuma’s immediate release would be lawful under certain circumstances, it raises a more difficult question, namely whether Mr Zuma ought to be released before he had served the minimum required part of his sentence. I believe there are cogent arguments for and against his early release, although my tentative view is that an early release may be undesirable.

The most pressing argument in favour of Mr Zuma’s immediate release is an argument that applies more broadly to non-violent offenders languishing in prison despite posing no threat to society. Imprisonment is by its very nature dehumanising and harsh. It limits the human rights of individuals, seldom leads to the rehabilitation of offenders if they need this, and places enormous strain on state resources.

Incarceration also does not appear to be much of a deterrent, negating one of the main purposes of keeping non-violent offenders in prison. One reason for this is that only a small number of offenders are ever prosecuted, sentenced and imprisoned, which means most offenders have every reason to believe that they will never be caught and punished. To such offenders, it matters little that the few offenders who are caught are sentenced to long terms of imprisonment.

As the Constitutional Court explained in S v Makwaynane the “greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is presently lacking in our criminal justice system.”

Moreover, as my colleague Anine Kriegler and other researchers have shown before, inequality is arguably the most accurate predictor of crime levels in a country. Other solutions — including, I would suggest, mandatory minimum prison sentences for certain crimes — are merely plugging the holes in a leaky bucket.

In the South African context, as in the US, the reliance of the criminal justice system on harsh prison sentences in effect targets poor, black men, which is made worse by the fact that white-collar criminals with deep pockets seldom get convicted and, if they are, tend to receive lighter sentences. For all these reasons I generally favour the early release of offenders like Mr Zuma who do not pose an obvious threat to others.

Mr Zuma’s personal circumstances — including his advanced age, the fact that he spent time on medical parole and was not completely free, and (if he can prove that he is ill) also his alleged bad health — would also mitigate against the need for Mr Zuma to serve more of his sentence.

However, in my view, it would be wrong to justify his early release based on the fact that riots occurred in parts of KwaZulu-Natal and Gauteng after Mr Zuma’s incarceration, and might occur again. To the extent that there may be a link between these events, it points us to the pressing argument against Mr Zuma’s early release from prison. This relates to the nature of the conduct for which he was punished and the threat this posed to the entire legal order and the rule of law.

Recall that Mr Zuma was sentenced to a 15-month prison term because he refused to obey an order of the Constitutional Court to testify before the State Capture Commission, thus acting in contempt of court. He compounded this contempt by launching scurrilous and unfounded attacks on the Constitutional Court and on the judiciary more broadly which the Constitutional Court described as “a series of direct assaults, as well as calculated and insidious efforts” on Mr Zuma’s part to corrode the legitimacy and authority of the court.

Mr Zuma did all this to avoid having to answer any questions about his involvement in State Capture; thus in order to escape any form of accountability. He seemed to believe that he had no duty to comply with the kind of legal obligations that all other citizens are required to obey, that he was therefore above the law, that he would launch a full frontal attack on any institution or person who would dare to tell him otherwise, and thus that he had no regard for the rules and institutions at the heart of our democratic system.

According to this argument, it is necessary to protect the legal system and democratic institutions from Mr Zuma’s scurrilous campaign and to affirm (at least in a symbolic way) that he is not above the law, by requiring him to serve at least one-quarter of his sentence before being considered for release on parole, thus treating him in the same manner that ordinary offenders are treated in accordance with the Correctional Services Act.

Were he to be released because of his status as a former president, or because of fears that he and his family would incite or encourage further violence, it would signal that Mr Zuma was correct when he insisted that he has a right not to be held accountable.

These arguments pull me in two diametrically opposite directions. I changed my mind about where I stand on the issue while writing this column. Then I changed it back again.

But considering the fact that Mr Zuma faces incarceration for no longer than two months, as well as the fact that he will be held in favourable conditions unlike anything ordinary prisoners face every day, I believe (for the moment) that releasing Mr Zuma before he qualifies for ordinary parole would be a mistake.

Anyone who has read acting Public Protector Kholeka Gcaleka’s entire 249-page report on Phala Phala would be hard-pressed to still believe President Cyril Ramaphosa’s version of how hundreds of thousands of dollars landed up in a couch at his farm.

While acting Public Protector Kholeka Gcaleka’s report into the Phala Phala scandal avoids the kind of spectacular missteps for which suspended Public Protector Busisiwe Mkhwebane became famous, it does no better at uncovering the truth than the many reports of the suspended Public Protector which were reviewed and set aside by our courts.

The problem in this instance is not so much the law as the facts.

While Ms Gcaleka’s interpretation of the relevant provisions of the Constitution and the Executive Members Ethics Code on conflicts of interest and on receiving remuneration for any other work or service is, at best, questionable, these are only a side issue that does not go to the heart of the scandal.

What really taints the report is the acting Public Protector’s perplexing lack of curiosity about pivotal factual questions at the heart of the scandal.

(As an aside, while her decision not to make findings on whether certain criminal offences were committed, but instead to pass the buck on these questions to the Hawks, the NPA and the South African Reserve Bank respectively may reinforce perceptions that the report is a whitewash, this is actually the correct approach to have taken in terms of our law.)

This acting Public Protector’s aggressive lack of curiosity about pivotal matters allowed her to sidestep the set of questions at the heart of the Phala Phala scandal. These include the following: where the more than $500,000 came from; what the money was intended for; and why it was stuffed under cushions in a sofa in Mr Ramaphosa’s house?

I say these remain the main questions raised by the scandal because, as Songezo Zibi argued in a column in City Press last week, the money could not possibly have been from the sale of buffalo, and no sale of buffalo could have been intended.

The great benefit of this report is that it gathers the version of the story presented by Mr Ramaphosa and others involved in the matter in one place, and — unintentionally perhaps — reveals the inconsistencies, contradictions and general implausibility of the president’s story, a story that has more holes in it than a Swiss cheese the size of Mount Everest.

How then did the acting Public Protector reach the conclusion that “the evidence and information before the Public Protector indicate that the US dollars stolen at Phala Phala farm on or about 9 February 2020 emanate from a private cash transaction. Mr Mustafa Mohamed Ibrahim Hazim (Mr Hazim) a citizen of Sudan, arrived in the country on 23 December 2019 and thereafter purchased buffalo at Phala Phala farm on 25 December 2019”?

On a purely technical level, this conclusion may not be wrong. This is so because no evidence has yet emerged of what the actual source of this money was or how the money landed up at Phala Phala, and because the pivotal evidence before the Public Protector about the source of the money came from President Ramaphosa and “his” supporting witnesses, who — as the report pointed out — largely “corroborated” the President’s story.

But it was Ms Gcaleka’s failure adequately to probe important aspects of the evidence provided by Ramaphosa and the other witnesses that left the story of the sale of buffaloes more or less undisturbed. It is impossible to discuss all aspects of the witness evidence that called for further probing, but I will deal with what I believe are the main problems with how this aspect of the investigation was dealt with. To do so, I first need to relate the main aspects of the story about the sale of buffaloes as presented by Ramaphosa and other witnesses.

The story goes like this

The lodge manager at Phala Phala farm, Mr Dumisani Sylvester Ndlovu, received Mr Mohamed Ibrahim Hazim, the buyer of the buffaloes, at Phala Phala around lunchtime on 25 December 2019. Mr Ndlovu then showed him the buffaloes, Mr Hazim picked the ones he wanted, handed over $580,000 in cash to Mr Ndlovu along with his phone number, was given a receipt, and was told that the purchase could not be finalised before various other steps had been concluded. Mr Hazim did not sign any documents when he purchased the animals.

Mr Ndlovu placed the money in the walk-in safe on the farm, but before going on holiday a few days later, he moved the money to the couch in the main house before going on holiday a few days later, as other workers had access to the safe.

Mr Ramaphosa and the farm manager had previously decided that the buffaloes were substandard and were a drain on Phala Phala’s finances and “should be sold as a parcel, because this made better financial sense”. The president had previously advised the general manager at Phala Phala “that there were potential buyers of these buffalo from the Middle East and other African countries”, but had no knowledge of the sale until he arrived a day after the sale was concluded and was told about it.

He had also told the farm manager “that he should not worry too much about this as he had an investor that was going to facilitate a very lucrative deal with Phala Phala farm, which should ease the financial burden” on the farm.

Another curious detail: Mr Hazim entered the country through OR Tambo International Airport on 23 December 2019 at 11:05 and departed from the same airport three days later on 26 December 2019 at 17:00.

One would have to be extremely gullible to believe this version of the story. A good investigator might have started by probing Mr Ndlovu about aspects of his evidence that seemed implausible. Mr Ndlovu was the hospitality manager at Phala Phala. He welcomed guests, managed the housekeeping and kitchen staff, and bought the food and drinks.

Why was he available to receive an unannounced guest during Christmas lunch? Why was Mr Hazim — who it was claimed arrived out of the blue — allowed to enter the premises in the first place? Did President Ramaphosa alert anyone on the farm that Mr Hazim was on his way? Why would Mr Ndlovu take almost $600,000 from a stranger under the impression that he was selling buffaloes without being certain (according to his own evidence) which buffaloes were to be sold? Did he not phone somebody to check?

Who else had access to the safe, and why did Mr Ndlovu not merely collect their keys to make sure no one else had access to the safe? Why is he so sure that Mr Ramaphosa only arrived on the farm late the next day (maybe not incidentally, after Mr Hazim had left the country)?

Apparently, Mr Ndlovu was asked none of these questions. Instead, in a startling paragraph in the report, we are told that “Mr Ndlovu did not attend the physical interview with the Investigation Team as scheduled for 06 September 2022. He instead indicated that he would send his written affidavit to the Public Protector, which was received on 04 October 2022 from Haffegee Roskam Savage Attorneys.”

It is not explained why he refused to attend a personal interview and why the Public Protector did not insist that he do so. Neither do we know who paid Mr Ndlovu’s legal fees. Follow-up questions were sent to him, but pivotal questions were seemingly not posed. Was he ever asked whether Mr Ramaphosa or anyone else told him not to attend the interview or whether he had any telephonic or other discussions with Mr Ramaphosa or anyone else about his testimony?

Alleged sale

A good investigator would also have probed Mr Ramaphosa and others about other aspects of the so-called sale of the buffaloes. Had Mr Ramaphosa known Mr Hazim prior to the “sale”, or had he ever spoken to Mr Hazim, before or after the so-called sale? Had he had any dealings of a personal or any other kind with him? Did he know beforehand about Mr Hazim’s visit, and had he spoken to anyone on the farm to alert them about Mr Hazim’s visit? Was Mr Hazim one of the potential buyers from Africa and the Middle East that Mr Ramaphosa had told his farm manager about?

If Mr Ramaphosa only arrived on the farm late on the day of the 26th, what exactly was he doing on the 25thand earlier on the 26th and could he provide evidence to back this up? Had he either directly or indirectly through intermediaries communicated with any of the other witnesses about their evidence and if so, what did he say? How many buffaloes in how many transactions have been sold to walk-in buyers at Phala Phala, and what are the identities of these buyers and what are the details of each sale?

Mr Ramaphosa should also have been probed on whether he told the farm manager that he had an investor that was going to facilitate a very lucrative deal with Phala Phala farm, if so, who this investor was, what the lucrative deal entailed, whether the deal had come to fruition and if not, why not? Was the delivery by Mr Hazim of almost $600,000 to the farm part of this lucrative deal?

The acting Public Protector also does not explain in her report whether she requested Mr Hazim’s telephone number from Mr Ndlovu and whether she contacted him to solicit his version of events. Nor is there any indication that any attempt was made to find out more about Mr Hazim, how he had made his money, or whether he had any connections with South African companies or politicians, including Mr Ramaphosa.

While the report notes that the “jurisdiction of the Public Protector does not provide for powers and methods of collecting evidence from foreign sovereign states”, this did not prevent her from soliciting information from Mr Hazim himself, or use other methods to try and find out more about him.

No attempt was made to verify Mr Ramaphosa’s claim that he received no remuneration from the trust that owned Phala Phala farm of which he is a beneficiary, or to look into the finances of the trust to check whether the farm had ever before sold animals to strangers who rocked up on the farm out of the blue.

All this means that while the finding that “the evidence before the Public Protector does not support the allegation that the President undertakes paid work or receives remuneration from Phala Phala farm” may technically be correct, this may only be because the Public Protector failed to look for evidence that contradicted this conclusion.

The Public Protector also accepted the explanation provided by President Ramaphosa’s special envoy Mr Benjani Chauke and the head of the Presidential Protection Service, Major General Wally Rhoode, for the mysterious trip they took to Namibia, allegedly to meet with Namibian Police “to share operational information” about the suspects of the Phala Phala theft.

They claimed that Chauke was sent to Namibia to deliver a letter from President Ramaphosa to the president of Namibia, and that no meeting with Namibian Police ever took place. It was also suggested that General Rhoode went along to facilitate travel made difficult by the Covid-19 lockdown (the report is conveniently vague on this aspect).

But this story does not hold up under scrutiny. Why would the head of the PPS be instructed (allegedly by President Ramaphosa) to accompany Chauke, essentially to act as a travel agent or bodyguard, something that any number of more junior members of the SAPS could have done?

There is no indication in the report that Mr Ramaphosa was asked if he instructed Mr Rhoode to go along, and if so, why he issued this instruction. Neither Chauke nor Rhoode were probed on this aspect of their story to establish exactly what purpose General Rhoode served on this trip.

The fact that this was in breach of the rules regulating the rendering of PPS services to someone like Mr Chauke raises further questions about the veracity of the version provided by Rhoode and Chauke. The Public Protector nevertheless remained stoically incurious about the many odd aspects of this part of the story.

For what it is worth, I think there is a far more plausible explanation for the origins of the $580,000 stashed in a couch in Mr Ramaphosa’s house at Phala Phala.

In this version, Mr Hazim is the bag man sent to deliver the cash to Mr Ramaphosa. The cash might be a dirty money “donation” from foreign funders for Mr Ramaphosa’s re-election campaign for president of the ANC, a donation possibly given to secure influence over the President or part of a larger dirty money scheme of the kind so many ANC leaders (including Jacob Zuma) have been associated with over the years.

This is, of course, pure guesswork on my part. We may never know what really happened at Phala Phala and where the money came from. However, what must be clear from a close reading of the acting Public Protector’s report about the scandal is that the story of the sale of buffaloes is just that: a story.

The Judicial Service Commission has rightly been criticised in recent years for the atrocious manner in which it sometimes deals with the selection and disciplining of judges. The recent judgment of the Supreme Court of Appeal, invalidating a decision of the commission that the dishonest and bigoted actions of Judge Nkola Motata did not warrant impeachment, serves as a stark reminder of just how laughably inept and dishearteningly dishonest some of that body’s decisions have been in the past.

When the Judicial Service Commission (JSC) considers the appointment of judges, it is not an impartial or apolitical body. This is by design. Eleven of its members are elected politicians representing political parties. These are the minister of justice, six members of the National Assembly and four members of the National Council of Provinces. Additionally, four members of the JSC are appointed by the President as head of the executive, which means they serve at the pleasure of the President and are thus, in effect, political appointees.

I have argued before that while it may be desirable to reduce the number of politicians serving on the JSC, some participation by elected politicians in the appointment of judges is a good thing, as this enhances the democratic legitimacy of the judiciary by injecting a democratic element into the selection process.

When self-serving ANC leaders (and other shifty characters) attack the judiciary or individual judges and claim that judges are biased against the governing party, or harbour deep animosity towards some of its leaders, they often talk as if the party had no influence over the appointment of judges. But this is nonsense.

A party in government that has a big say in the appointment of ordinary judges and whose leader appoints all the judges of the Constitutional Court could hardly complain that those very judges harbour a deep animosity towards the party or some of its members.

When politicians like Jacob Zuma and Busisiwe Mkhwebane (as well as their loyalists and enablers within the legal profession) complain that judges are biased or harbour a deep animosity towards them or their claimed ideological project, what they are usually complaining about is that judges are too impartial, and thus that judges are not sufficiently biased in their favour.

Such attacks remind me of the infamous statement made by an apartheid-era minister of justice who once remarked: “The problem with these judges is that once they are appointed they think they are there on merit and they start thinking for themselves.”

While it is therefore not inappropriate that some elected politicians serve on the JSC when it considers appointments to the bench, it is wholly inappropriate for politicians or political appointees to be involved in any decision on whether a judge is grossly incompetent or is guilty of gross misconduct.

Section 179(5) of the Constitution recognises this, as the six National Assembly members and four NCOP members are excluded from participating in JSC decisions on the impeachment of judges.

But as last week’s Supreme Court of Appeal (SCA) judgment in the case of Freedom Under Law v Judicial Service Commission and Nkola Motata illustrates, the exclusion of the elected politicians from JSC decisions on whether a judge is incapacitated, grossly incompetent or guilty of gross misconduct, has not prevented the JSC from making entirely irrational decisions based on political or other loyalties, instead of on the facts and the law. (Of course, the same is true of many of the decisions the JSC has taken over the years to shield Judge President John Hlophe from accountability for his unethical behaviour.)

In the Motata case, a majority of the members of the JSC rejected the findings of a Judicial Conduct Tribunal which had found that Motata had made himself guilty of gross misconduct. The gross misconduct findings related to both Motata’s drunken and bigoted tirade at the scene of a car crash and the dishonest manner in which he conducted his defence in his subsequent drunk driving trial. Because of this decision, it declined to refer the matter to the National Assembly for possible impeachment.

By doing so, the JSC failed to “protect the integrity of the judicial system”.

It failed “to be sensitive to the expectations of a reasonably well-informed and dispassionate public that holders of judicial office would at all times remain worthy of trust, confidence and respect”.

In short, as the SCA judgment amply demonstrates, the JSC protected the judge instead of protecting the integrity of the judiciary. In doing so, the majority of JSC members ignored the proven facts and invented facts of their own.

Notably, the majority of JSC members had rejected the finding by the Tribunal that Motata had acted dishonestly when he falsely maintained that he had not been drunk at the time of the incident. It had done so by blaming the lawyer who represented Motata at his drunk driving trial for advancing this defence.

In other words, it argued that it cannot be concluded that Motata advanced a dishonest defence because he never testified at his drunk driving trial to that effect. It was his lawyer who submitted that he denied that he was drunk.

The majority of the JSC even claimed that Motata was “being crucified, terminally so, for words which were uttered not by him but by counsel, who was never called to explain his choice of words”.

But as the SCA judgment makes clear, the argument ignores the facts and is thus both illogical and dishonest.

This is so because Motata himself had falsely repeated under cross-examination before the Tribunal that he was not drunk at the time of the crash. (Earlier, he had falsely claimed that he only had two glasses of wine to drink on the night of the crash.)

Moreover, during the cross-examination before the Tribunal judge, Motata also admitted that his legal representative at the drunk driving trial had not misrepresented his instructions to any appreciable or significant extent. Yet the majority found that the mistake was that of his advocate and sought to excuse Judge Motata on this basis.

While the SCA judgment goes some way to repair the damage done by the JSC decision, the question remains of what could be done to prevent such a failure in future.

One option would be to amend the Constitution to exclude the minister of justice as well as the four presidential nominees from involvement in JSC deliberations on disciplinary matters. These are all political appointees and may thus be more likely to make purely political decisions when dealing with such matters.

Another option would be to adopt a more stringent test that would only allow the JSC to override the findings of the Judicial Conduct Tribunal in the most exceptional cases.

But, ultimately, the problem is not merely a structural one, but also a human one. In the case of Judge Motata, the JSC would not have made the irrational and dishonest decision to protect Motata if different individuals had served as the presidential nominees and as the nominees representing the legal profession on the JSC.

In this sense, the failure of the JSC to protect the integrity of the judicial system was not only caused by a bad system, but also by bad people.

A recent Labour Court judgment comes as a timely warning to legal representatives who assist their wealthy or politically powerful clients to delay or entirely escape legal accountability for their unlawful or criminal actions.

While reading the recent Labour Court judgment in the case of University of South Africa v Socikwa and Others (penned by Acting Judge Smanga Sethene and handed down on the same day that a full bench of the KwaZulu-Natal high court held that Mr Jacob Zuma’s private prosecution of Billy Downer and Karyn Maughan constituted an abuse of the court process), I could not help wondering what the many legal representatives who have assisted Mr Zuma over the past 19 years to avoid having his day in court to answer charges of fraud and corruption, would make of it.

The Labour Court judgment serves as a searing indictment of unscrupulous lawyers who mislead the court or bring utterly hopeless cases to court, and thus enable their filthy rich clients (or clients corruptly bankrolled by filthy rich benefactors) to abuse the legal process.

The judgment opens with a bang by quoting the following passage from an academic article written by Duncan Webb and published in the Victoria University of Wellington Law Review a few years ago:

Where a hopeless case is brought with the assistance of the advocate, the advocate must either be bringing it in the knowledge that it is hopeless (and therefore assisting in an abuse), or believing that it is not hopeless (and therefore incompetent) or not caring whether it is hopeless (and therefore guilty of recklessness or gross negligence). In any of these cases, the conduct of the advocate warrants action being taken by the court.

While not all the cases brought by Mr Zuma to delay his criminal prosecution were entirely hopeless, many of them were, with the most hopeless case of them all being the doomed attempt to prosecute privately Billy Downer (the lead prosecutor in Zuma’s fraud and corruption case), and Karyn Maughan (a journalist who has been reporting on Zuma’s ongoing attempts to avoid his day in court over the past 19 years).

Leaving aside the various technical problems with Mr Zuma’s attempt to prosecute privately Downer and Maughan, the most glaring problem with Mr Zuma’s attempt to use the mechanism of private prosecutions to have the prosecutor against him removed and to silence an independent female journalist, is that the entire folly is based on a false factual premise, namely that Downer and Maughan had been involved in the leaking or publication of Mr Zuma’s private medical information contained in confidential documents.

We had known for many months that there was no factual basis for the private prosecutions, because the KwaZulu-Natal high court had made this clear back in October 2021 in S v Zuma and Thint (in a judgment penned by Judge Piet Koen). Judge Koen held (as was abundantly clear to anyone vaguely familiar with the applicable legal rules) that the documents on which Maughan reported revealed no private medical information about Mr Zuma, and were in any case not confidential at the time the documents were shared with her and she reported on them.

Both the Supreme Court of Appeal (SCA) and the Constitutional Court had also dismissed Mr Zuma’s applications for leave to appeal judge Koen’s findings to either court, which means that there was no genuine dispute of fact, and it must have been obvious to Mr Zuma and his lawyers that the prosecutions could never succeed. Yet, the prosecutions were instituted and when this was challenged, more time and money was wasted on Mr Zuma’s lawyers defending the indefensible.

This is partly why the full bench of the court held last week in Maughan v Zuma and Others that Mr Zuma’s attempt to prosecute Downer and Maughan constituted an abuse of the legal process, and interdicted him from “reinstituting, proceeding with, or from taking any further steps pursuant to the private prosecution” of either of them. As the court pointed out, an abuse of process takes place “where the procedures permitted by the Rules of the Court to facilitate the pursuit of the truth are used for a purpose extraneous to that objective”.

The Court quoted approvingly from Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others, where the Constitutional Court held that:

Abuse of process concerns are motivated by the need to protect ‘the integrity of the adjudicative functions of court’, doing so ensures that procedures permitted by the rules of the court are not used for a purpose extraneous to the truth-seeking objective inherent to the judicial process.

While a prosecution (whether private or not) will not be unlawful merely because a prosecutor seeks to secure a conviction for an ulterior motive, a prosecutor who does not seek to secure a conviction at all (as was the case with Zuma’s prosecution of Maughan and Downer), but only to oppress and harass individuals, and to sabotage the criminal justice system, will make himself guilty (as Zuma did with the assistance of his legal representatives) of an abuse of process.

What made things worse for Mr Zuma is that his lawyers made no attempt to provide any evidence to refute the mostly undisputed facts. Instead, as the court noted, “there are blanket, bald denials of material allegations without laying any factual basis therefor or any explanation to justify his denials”. This is not surprising as there are no factual bases for the blanket denials made by Mr Zuma’s lawyers.

While this cavalier attitude to the truth was rather dubious, Mr Zuma’s lawyers at least did not submit a sworn affidavit containing blatant lies to the court — as the Acting Executive Director of Legal Services at Unisa,  Prof Vuyo Ntsangane Peach did to the Labour Court in the University of South Africa v Socikwa matter.

The court was rather displeased by this dishonesty, complaining that “Prof Peach… elected to be a stranger to the truth. Or perhaps, Prof Peach deliberately meandered into amnesia as a tactic to deceive the court.” As a result, Acting Judge Sethene referred Prof Peach to the Legal Practice Council (LPC) “to establish if [he] deliberately concealed material facts to this court in respect of when the review application was actually filed and served”.

The court was even more displeased that the legal representatives of Unisa, among others, had been instrumental in launching “absolutely hopeless urgent applications”, thus abusing the court process. The judge then issued a warning that could easily have been directed at dozens of legal practitioners who, over the past 19 years, have aided Mr Zuma to abuse the court process:

Once appointment is confirmed and accepted, the forensic skills of legal practitioners must be ignited to ensure that they protect the court from the burden of entertaining and adjudicating absolutely hopeless cases. It remains the duty of a legal practitioner to act in the best interests of his or her client. Acting in the best interest of the clients also denotes that a legal practitioner has an obligation to disclose to the client that the case sought to be pursued is either absolutely hopeless or has prospects of success.

The judgment hints at the fact that a love of money (or one could call it greed) is one of the main reasons some legal representatives aid their clients to abuse the court process by bringing utterly hopeless cases to court on their behalf:

Understand: it must be deprecated by those who attach premium and prestige to their trade as legal practitioners to align themselves with cases that are absolutely hopeless for pecuniary reasons and thereby rendering courts as instruments to frustrate employees or employers with worthy cases for the court to adjudicate.

As a result, and at least partly because the Labour Relations Act contains provisions on the awarding of costs that allows for it, the court ordered the legal practitioners (both advocate and attorneys) who represented Unisa in this application “not to charge any fee for legal services rendered”, or if they had already been paid to repay Unisa within 60 days.

Had the many courts forced over the past 19 years to hear one after the other hopeless cases brought by Mr Zuma and his lawyers made similar orders prohibiting Mr Zuma’s lawyers from charging any fees, Mr Zuma might by now have run out of lawyers willing to represent him.

Despite the Constitutional Court decision on disclosing taxpayer information, there’s a risk the law will continue to shield most public representatives from the scrutiny of their finances and tax affairs, thus limiting the ability of voters to make informed choices at the ballot box.

The decision by South Africa’s Constitutional Court to invalidate legislation that banned access to taxpayer information by anybody other than the SA Police Service (SAPS) and the National Prosecuting Authority (NPA) – in Arena Holdings (Pty) Ltd t/a Financial Mail v SARS – is not likely to result in the release of former president Jacob Zuma’s tax records or those of anyone else, for that matter, in the foreseeable future.

The judgment creates only a limited exception to the general obligation of the SA Revenue Service (SARS) to keep taxpayer information confidential. SARS can only grant such a request if the disclosure of the tax records would reveal evidence of “a substantial contravention of, or failure to comply with, the law” and “the public interest in the disclosure of the record clearly outweighs the harm”.

A decision on whether a request for taxpayer information meets this threshold must be made by the SARS Commissioner (or other designated SARS official). But as SARS has consistently shown a profound reluctance to breach taxpayer confidentiality, it may well apply this test in an overly strict manner.

Some journalists, opposition politicians and ANC members aligned with the so-called radical economic transformation (RET) faction may also argue that SARS cannot be trusted to assess such requests fairly when it involves taxpayers who serve in government.

So, for example, while there may be suspicions that President Cyril Ramaphosa’s tax records would reveal a failure to comply with the law (suspicions raised by the Phala Phala scandal), this may not, in the absence of some solid evidence, justify disclosure of the tax records. (In the Arena Holdings case, Zuma argued before the Constitutional Court that the release of his tax record could not be justified by mere allegations contained in a book, as this was all hearsay evidence.)

Moreover, if SARS does decide to disclose the tax records of an individual, that individual could stall or even stop the release by taking advantage of the various protections afforded by the legislation. This includes lodging an internal appeal, and if that is unsuccessful, challenging the validity of the decision in court. (Conversely, a journalist whose request for the disclosure of a taxpayer’s record is denied, could also approach the court to have that decision reviewed.)

As far as Zuma is concerned, he is likely to use all the avenues open to him to prevent the disclosure of his tax records.

Officially, Zuma has not always opposed the disclosure of his tax records (more about that later), but in papers submitted to the Constitutional Court in the Arena Holdings case, Zuma strenuously objected to the release of his tax records to AmaBhungane and other journalists.

He argued that this would violate his right to inherent dignity “because it arms journalists whose demonstrated record of writing about me has shown nothing but hostility and a desire to harm my inherent dignity”, and suggested that the records would be used to “parade him as a symbol of corruption”.

This seemingly represents a dramatic change in attitude as he had previously given the impression that he had no objection to the release of his tax records.

To understand why, it is necessary to go back to 2018, when Mmusi Maimane, the then leader of the opposition, lodged a complaint with the Public Protector, requesting her office to investigate allegations contained in the book, The President’s Keepers, that Zuma had received undisclosed payments while in office and had failed to pay tax on the money received.

Surprisingly, the now-suspended Public Protector, Busisiwe Mkhwebane, announced that she had embarked on an investigation into this complaint, and subpoenaed the Commissioner of SARS to appear before her and to produce the former president’s taxpayer information.

SARS objected to the demand and refused to comply on the ground that the disclosure was prohibited by the secrecy and confidentiality regime established by the Tax Administration Act.

Protracted litigation between SARS and the Public Protector ensued.

The Constitutional Court eventually confirmed in December 2020 that section 69(1) of the Tax Administration Act permitted SARS to withhold taxpayer information from the Public Protector.

As an aside, when Mkhwebane first issued a subpoena in 2018, Zuma confidant Tom Moyane was still the SARS Commissioner, which may provide a partial explanation for the uncharacteristic enthusiasm Mkhwebane showed for the investigation into Zuma, despite the fact that she had previously demonstrated some bias in favour of the RET faction of the ANC.

Of interest here is that section 69(6)(b) of the Tax Administration Act permits the disclosure of taxpayer information to another person “with the written consent of the taxpayer”.

On 12 November 2019, shortly before the case was heard in the high court, Zuma tweeted his consent, writing: “It must be known that I have nothing to hide. If the @PublicProtector wants to see my SARS records she is free to do so. We should not make the job of the PP difficult. If she wants my records, she must have them.”

However, as a tweet is not a legally recognised way to grant written consent, SARS disputed the claim that Zuma had consented to the disclosure of his tax records.

Zuma filed a sworn statement the night before the case was to be heard to confirm under oath that he authored a tweet “to indicate that I had no objection to the public protector gaining access to the taxpayer information which she seemingly needed to complete an investigation in the public interest”.

Stating that he had “nothing to hide”, Zuma claimed that he “also intended to give unqualified consent for the use of the relevant information by the public protector or any other organ or institution of the state, which would, in any event, be bound by its own rules regarding confidentiality”.

The wording here is curious as it does not, in fact, grant consent to the Public Protector to access Zuma’s tax records.

Instead, Zuma merely states that he intends granting such consent, presumably at some undisclosed date in the future.

It serves as a reminder to journalists to scrutinise statements made by politicians very carefully to ensure that carefully crafted but potentially misleading statements are accurately reported.

We do not know whether Zuma kept his promise to grant unqualified consent for access to his tax records. I would be surprised if he did.

In any event, as far as I can tell, the Public Protector never took Zuma up on his offer, and it is unclear whether the complaint lodged against Zuma by the then leader of the opposition was ever investigated or finalised.

We may therefore never know whether Zuma really believed back then that he had nothing to hide, or whether his more recent opposition to the disclosure of his tax records (which suggests that he does believe there is something to hide – at least from journalists), was justified.

All this raises questions about the wisdom of legislation that shields our elected representatives from scrutiny. Most perplexing is that our courts seem to believe that as far as taxpayer confidentiality is concerned, the right to privacy should trump other rights – except in very limited circumstances.

The danger that the court may be wrongly conflating the right to privacy with the protection of an individual’s reputation, is illustrated by a passage in the dissenting judgment in the Arena Holdings case, where Justice Mhlantla noted that the limited exception provided for in the majority judgment “could be detrimental to the reputations and societal standings of taxpayers” and even warned that it was “a drastic measure that may have grave consequences to a taxpayer”.

While the disclosure of taxpayer records does impose a limitation on the right to privacy, I am not sure this limitation is as severe as suggested by Justice Mhlantla.

Surely, it will only have grave consequences for a taxpayer if it reveals something really bad (such as the commissioning of a criminal offence) about that taxpayer.

I also worry that the law will continue to shield most public representatives (including the president, cabinet ministers and MPs) from scrutiny of their finances and tax affairs, thus limiting the ability of voters to make informed choices at the ballot box.

Surely, the moderate limitation that would be imposed by legislation that requires complete tax transparency from our elected representatives could easily be justified, not least because of the potential effect this may have on the ability of voters to hold them accountable.

But as such legislation can only be adopted if a majority of MPs in the National Assembly supports it, it is unlikely to see the light of day.

Turkeys not voting for Christmas, and all that.

Employment equity legislation helps to ensure that black applicants are treated fairly and to limit the appointment of less talented white applicants over more talented black applicants. Utilised well, it is a powerful tool in the fight against intellectual mediocrity and stagnation.

The recent publication of draft regulations setting out compulsory employment equity targets at senior occupational levels for employers with more than 50 employees in targeted sectors of the economy attracted harsh criticism from, among others, DA leader John Steenhuisen and leaders of the Solidarity trade union (read here and here).

While the draft regulations are, quite frankly, an incoherent mess, much of the above criticism is based on misleading or demonstrably false claims about the legislation.

Let me start by showing my hand. While employment equity legislation can be exploited to justify nepotism and unlawful instances of “cadre deployment”, it is part and parcel of the pursuit for equality and a requirement for its achievement.

As the Constitutional Court held in Minister of Finance v Van Heerden, it is wrong to depict redress measures as a form of “reverse discrimination”. Without taking positive action (including in the workplace) to “eradicate socially constructed barriers to equality and to root out systematic or institutionalised under-privilege”, we cannot eradicate discrimination.

To this, I would add a personal insight, based on stints as the chair of the faculty transformation committee and as head of an academic department at a South African university, about the pivotal role employment equity legislation can play in levelling the playing field when appointments are made, and in enhancing the quality of teaching and scholarship in a university.

In my experience, employment equity legislation plays a pivotal role in limiting the impact of racial bias in appointment decisions. It helps to ensure that black applicants are treated fairly and to limit the appointment of less talented white applicants over more talented black applicants. Utilised well, it is a powerful tool in the fight against intellectual mediocrity and stagnation.

It is from this perspective that I view the draft regulations recently issued by the minister of labour in accordance with newly inserted provisions of the Employment Equity Act (not yet brought into force).

Currently, the act requires all employers who employ more than 50 people to prepare an employment equity plan for periods of up to five years to “achieve reasonable progress towards employment equity in that employer’s workforce”. The plan must set out, among others, the employment equity targets adopted by an employer to be achieved for each year of the plan, as well as the affirmative action measures to be implemented as required by section 15 of the act.

Before the adoption of the amendments, an employer was free to choose its targets (based on race, gender and disability), as long as its plan would make reasonable progress to correct the effects of past and ongoing discrimination in the employment sphere.

Because many private sector employers made very slow progress in addressing the effects of past (racial) injustice, Parliament amended the act last year to force employers to adopt more aggressive employment equity targets.

The new section 15A of the act allows the minister of labour to identify specific economic sectors (such as agriculture, mining, manufacturing, education and construction) and to set numerical employment equity targets for these sectors at all occupational levels in the workforce.

Designated employers in these sectors are required to use the sectoral targets set by the minister in their employment equity plans, and their progress will (partly) be assessed based on these “imposed” targets.

These targets are to be set nationally as well as for each province, and employers have to follow either the national targets or the targets set for their province. The minister has now issued draft regulations identifying the relevant economic sectors and proposing the equity targets for each sector as envisaged by section 15A of the act.

In response, DA leader John Steenhuisen complained that this would impose “forced quotas” in “every workplace, in every economic sector, in every province”; would “restrict” the employment of “Indians” and “coloureds” in a severe manner; claimed that “if companies don’t comply, they are severely punished”, and called on “companies, big and small, to defy a law that prevents them from hiring skilled people”.

Solidarity claimed that the adoption of the regulation would result in 71,518 “coloured” people, 116,934 “Indian” people and 404,608 “white” people losing their jobs nationally.

It also provided numbers for each sector, claiming, for example, that 50,363 “white” people (69.5%), 25,275 “Indian” people (79.4%) and 18,450 “coloured” people (45.4%) working in financial services would have to vacate their jobs in the next five years.

None of this is true.

First, the new targets do not impose “forced quotas” as claimed. Section 15(3) of the Employment Equity Act makes clear that in seeking to achieve its equity targets, employers are permitted to give preferential treatment to underrepresented groups and to set numerical targets to be achieved, but “may not impose quotas”.

South Africa’s Constitutional Court highlighted this in its judgment in South African Police Service v Solidarity obo Barnard, and noted the act requires employment equity plans to be flexible and inclusive and that a “designated employer may not adopt an employment equity policy or practice that would establish an absolute barrier to the future or continued employment or promotion of people who are not from designated groups”.

It is true that section 42 of the act empowers the director-general of the Department of Labour to assess whether a designated employer is implementing employment equity in compliance with the act by considering a wide range of factors which now includes (in terms of section 42(aA) “whether the employer has complied with a sectoral target as set out in terms of section 15A” of the act. But it would be unlawful for the DG to order the employer to meet its sectoral target if this was not reasonable in the circumstances.

In any event, if the DG determines that an employer had failed to implement an employment equity plan because it had not met the sectoral targets, he or she would not be empowered to impose a fine or to order the employer to implement the targets.

In terms of section 45 of the act, the DG will have to approach the Labour Court for an order directing the employer to comply with the request or recommendation; or to impose a fine. The DG bears the onus of proof that the employer had not complied with the provisions of the act.

This is an important safeguard against possible abuse or misapplication of the law by politically aligned functionaries. This is well illustrated by the 2009 Labour Court judgment in Director General of the Department of Labour v Comair (one of the few reported cases in which the DG had concluded that the employment equity plan of an employer did not comply with the provisions of the act), where the court concluded that the DG had failed to take into consideration all the factors set out in section 42 of the Act, and dismissed the application.

In the only reported case I could find where the Labour Court had fined an employer for non-compliance (the 2007 judgment in Director General, Department of Labour v Win-Cool Industrial Enterprise (Pty) Ltd), the court imposed a penalty of R300,000 on the employer, of which R200,000 was suspended on condition that the employer complied with its obligations within a specified period.

As far as I can tell, the vast majority of cases of non-compliance brought to the Labour Court involve cases where an employer had failed to comply with the formal requirements set out in the act, and not where there was a failure to achieve targets set out in an existing employment equity plan.

Not only does the evidence not back up Mr Steenhuisen’s claims of draconian enforcement, it suggests that since 2009, the department of labour has been extremely lax in holding companies to account for their failure to achieve even modest employment equity targets.

It is also not clear what the legal basis is for the claim by Solidarity that many hundreds of thousands of people would lose their jobs if the new provisions of the act were implemented. The law currently does not provide for this, as the Labour Court held in Robinson & Others v PricewaterhouseCoopers that “affirmative action is not, and never has been legitimate ground for retrenchment”.

While codes of good practice allow employers to consider their employment equity targets when offering voluntary retrenchment packages to employees — and also suggest that an employer could moderate the impact of mass retrenchments on its employment equity plan by using it as one of several considerations when identifying who should be retrenched — this does not allow an employer to dismiss an employee on the sole ground that this was required for the employer to meet sectoral targets set by the minister, as Solidarity suggests.

That said, the draft regulations issued by the minister are a shoddy piece of work, and largely incomprehensible. There is no explanation provided to help us understand what the various targets for each sector and each occupational level might mean and how they would have to be applied. The targets are given in percentage format, but they do not add up to 100% or even close to 100%, and we do not know why this is so. Do the compilers of these tables know how percentages work, or is there a secret explanation for this oddity? It is also worrying that some of the targets are clearly impossible to meet, no matter how aggressively employers pursue these targets.

For example, in the table for “top management” in the agriculture, forestry and fisheries sector, the proposed national targets are set as follows: “African” (30.4%), “coloured” (3.5%), “Indian” (1%), and “white” (8%) – thus a combined 43%. What happened to the other 57% of the workforce? Impossible to say.

Given that the current workforce profile for this sector is given as “African (9.1%), “coloured” (5.8%), “Indian” (1.2%) and “white” (83.1%) – the latter is not a typo; 29 years after the advent of democracy, a full 83% of top managers in the field remain white – it is not clear that the compilers of this document took any notice of reality and considered what could optimistically be achieved.

Unfortunately, this tardiness provides much ammunition for individuals and groups who oppose any measures aimed at correcting the effects of past and ongoing injustice or deny the impact of race on systemic and entrenched inequality in the workplace and in the broader society.

But, fortunately, much of this criticism has been so over the top and so misleading, and even false, that the critics have just as much egg on their faces as the drafters of the regulations.

Earlier this week the Namibian Supreme Court ruled that the government’s refusal to recognise the validity of same-sex marriages concluded outside Namibia for the purpose of immigration law infringes the rights to dignity and equality guaranteed in the Namibian Constitution. While the judgment will, for now, only benefit a few same-sex couples who marry elsewhere, it contains powerful language that could be used to challenge the validity of other legislation that currently discriminates against LGBTIQ+ individuals in Namibia.

This important victory for LGBTIQ+ rights in Namibia follows in the wake of the adoption of a draconian Anti-Homosexuality Bill by the Ugandan parliament, as well as news that an opposition MP had tabled a similar Bill – the Family Protection Bill – before the Kenyan parliament. Some might therefore interpret the Namibian development as bucking a general trend of intensified oppression of LGBTIQ+ people by governments in sub-Saharan Africa.

But the story is more complicated than this.

The first thing to note is that developments in Uganda and Kenya are linked to a concerted campaign in at least 10 countries on the African continent against gay rights, abortion, birth control, and sex education by a far-right US Christian organisation called Family Watch International and its president, Sharon Slater. Slater and her organisation were actively involved in campaigning and strategizing for the adoption of the Uganda Bill. She met with Ugandan president Yoweri Museveni on 2 April this year urging him to add an exemption to the law for LGBTIQ+ people who were being subjected to so-called conversion therapy – a set of discredited practices that attempt to change a person’s sexual orientation.

The second thing to note is that over the past decade several countries on the African continent have gone in the other direction by repealing colonial era laws that criminalised same sex acts. These countries include Angola, Botswana, Mozambique, Lesotho, and Seychelles. These also happen to be countries not targeted by anti-LGBTIQ+ hate campaigns by far-right US Christian groups like Family Watch International. Different states on the African continent are therefore moving in different directions on this issue.

But because so many people who write about the continent persist in portraying it as a single country or amorphous entity, these complexities tend to get lost. (I am reminded here of Nigerian author Dipo Faloyin’s acerbic but inspiring book Africa is Not a Country: Notes on a Bright Continent, which, in turn, was inspired by  the Kenyan author Binyavanga Wainaina’s 2005 magnificent Granta essay, “How To Write about Africa”.)

The recent judgment of a 5-judge panel of the Namibian Supreme Court in Digashu v Government of the Republic of Namibia, Seiler-Lilles v Government of the Republic of Namibia could be added to the positive column, as it opens the door for the possible decriminalisation of same sex acts and other legal reforms in Namibia.

The majority judgment (authored by Chief Justice Shivute) came as somewhat of a surprise. This is because in 2001 the Namibian Supreme Court declared in Immigration Selection Board v Frank that “equality before the law for each person does not mean equality before the law for each person’s sexual relationships”. That judgment also stated that the term “family institution” in the Namibian Constitution and other international instruments “envisages a formal relationship between male and female”, for the purpose of procreation.

In Digashu, the majority held that these statements in Frank amounted to obiter dicta, thus merely the expression of an opinion which was not essential to the decision and was therefore not legally binding on the court in the present case. But the court went further by expressing its disapproval of the statements made in Frank, thus distancing the court from the conservative approach taken in the earlier judgment.

For me the second striking aspect of the majority judgment is its rejection of the argument that public opinion on homosexuality should be decisive in this case. (In his lone (reactionary) dissent, justice Mainga relied heavily on public opinion, complaining that the majority judgement “trashes the historical, social and religious convictions of the Namibian people”.)

Holding that the impugned provision infringed on the right to dignity guaranteed in article 8 of the Namibian Constitution, the majority confirmed the position in Namibian law that section 8 “does not permit limitations” and is thus “inviolable”, but that the ambit of the right to dignity must be determined “with reference to the constitutional values, the aspirations, norms, expectations and sensitivities of the Namibian people as expressed in the Constitution”.

The court nevertheless held that while public opinion as expressed by the elected representatives in parliament could be relevant to determine the views and aspirations of the Namibian people, “it is ultimately for the court to determine the content and impact of constitutional values in fulfilling its constitutional mandate to protect fundamental rights entrenched in the Constitution”. The majority suggested that courts should be less inclined to follow public opinion when the rights of minorities are in issue, by endorsing the following passage from the judgment of the South African Constitutional Court in S v Makwanyane:

The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process.

This is potentially of great significance as it would make it far more difficult for the government in future to defend other legal provisions that discriminate against LGBTIQ+ individuals on the ground that a majority of Namibians disapproved of same sex acts and relationships. This view is bolstered by the fact that in its equality analysis, the majority also endorsed the view expressed by South Africa’s Constitutional Court in Hoffmann v SAA to the effect that:

Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era – it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place.

The third striking aspect of the majority judgment relates to its finding that the impugned provision also infringed on the right to equality guaranteed in article 10(1) of the Namibian Constitution, which states that “all persons shall be equal before the law”. Although the reasoning of this part of the judgment is not always easy to follow, the majority did not seem to rely on article 10(2) of the Namibian Constitution (which prohibits discrimination of various listed grounds including “social status” and “sex”) because this section does not expressly prohibit discrimination on the ground of sexual orientation.

The applicants had argued that they were being discriminated against on the grounds of “social status” and “sex”. Regrettably, the majority did not express an opinion on the validity of these arguments, leaving the matter open to be decided on another day.

It nevertheless found that the impugned provision infringed on article 10(1) of the Constitution because the differentiation between same sex spouses and heterosexual spouses was “not reasonable in the sense of not being rationally connected to a legitimate statutory object”.

This was so, first, because the majority held that the government had not advanced any legitimate reason for the differentiation. It had merely relied on the earlier judgment of the Supreme Court in Frank as justification for the provision. But even if the government had advanced other justifications for the impugned provision it may have run into problems, given the fact (as I explained above) that the court rejected the idea that public opinion, and specifically public prejudice about homosexuality, could ever justify discrimination against LGBTIQ+ individuals.

Second, this conclusion is bolstered by the fact that the majority emphasised the harmful impact of the discrimination on same sex couples, suggesting that it would be difficult to justify this kind of discrimination because of this harmful impact, which the majority described “far reaching and potentially devastating when compared to spouses in a heterosexual marriage”. The majority further noted that the “result of the differentiation has led to a profound impairment of their fundamental human dignity at a deeply intimate level of their human existence”’.

The majority again quoted approvingly from (and explicitly endorsed) a judgment of the South African Constitutional Court, this time from National Coalition for Lesbian and Gay Equality v Minister of Justice, where justice Ackerman held that:

The sting of past and continuing discrimination against both gays and lesbians is the clear message that it conveys, namely, that they, whether viewed as individuals or in their same-sex relationships, do not have the inherent dignity and are not worthy of the human respect possessed by and accorded to heterosexuals and their relationships. This discrimination occurs at a deeply intimate level of human existence and relationality. It denies to gays and lesbians that which is foundational to our Constitution and the concepts of equality and dignity, which at this point are closely intertwined, namely that all persons have the same inherent worth and dignity as human beings, whatever their other differences may be.

Significantly, this passage comes from a judgement in which the South African Constitutional Court invalidated the country’s colonially imposed sodomy laws. It therefore suggests that the Namibian Supreme Court would be ready to invalidate that country’s sodomy laws if such a challenge came before it.

While the struggle for the full recognition of LGBTIQ+ rights in Namibia is far from won, the judgment is a significant first step towards that goal.

The ruling by the North Gauteng High Court last week on the government’s obligation to provide an uninterrupted supply of electricity to schools, hospitals and police stations has been widely misunderstood. Even if the judgment is not overruled, it will do little to address the fundamental problem, not only because the order is directed at the wrong party, but also because it is vague and practically impossible to implement.

According to EskomSePush, the electricity in my neighbourhood will be off for more than nine hours today. It is probably much worse for many others, and it will probably get worse for all of us before it gets better – if it ever gets better.

Because the problem is systemic and political and because of the widespread (and valid) loss of trust in the ability of the ANC government to fix what it had broken, it is not surprising that the UDM and other parties turned to the courts for help.

But court orders cannot magically fix seemingly intractable governance and management problems. When a court ignores this fact and, perhaps in frustration, succumbs to magical thinking – as a full bench of the North Gauteng High Court seemed to have done last week in a judgment penned by Judge Norman Davis in United Democratic Movement and Others v Eskom Holdings and Others – by issuing orders that appear impossible to implement and may not have any beneficial effect, it imperils the authority of the court and respect for the rule of law.

Let me explain.

The UDM originally asked the court to instruct the minister of public enterprises and/or Eskom to ensure that all hospitals, schools, police stations and various other affected parties are exempt from load shedding. In the alternative, it asked the court to order Eskom and the minister of public enterprises to “take immediate steps to procure alternative sources of electricity and/or energy” for schools, hospitals, police stations and a list of other affected parties, “including but not limited to solar panels and generators”.

The court declined to grant the exemption order. Although the judgment is not a model of clarity, it looks like the court declined to do so because it accepted that it was not currently possible to exempt all schools, hospitals and police stations from load shedding. This is so because many of these entities are “embedded” in the surrounding electricity network, which means that an exemption “would result in a whole network or suburb (or town even) having to be excluded, which would result in no actual ‘load’ being able to be shed”.

Instead, the court latched on to the UDM’s alternative request, and ordered the minister of public enterprises to “take all reasonable steps within 60 days from date of this order, whether in conjunction with other organs of state or not, to ensure that there shall be sufficient supply or generation of electricity to prevent any interruption of supply as a result of load shedding” at schools, hospitals and police stations.

As far as I can tell (the judgment is unfortunately rather superficial and lacking in substantive legal analysis) the court’s reasoning runs along the following lines:

There is currently not a sufficient supply or generation of electricity to provide schools, hospitals and police stations with an uninterrupted supply of electricity. This infringes on the right of access to healthcare (hospitals), the right to education (schools) and the right to life (police stations).

To cure these rights infringements, the minister of public enterprises (who the court seems to believe oversees the implementation of the plan to fix load shedding), must take reasonable steps to make sure sufficient electricity is generated or procured so that hospitals, schools and police stations have access to an uninterrupted electricity supply.

How exactly this must be done must be left in the hands of the minister who will need to consider the “different permutations” involved.

The first problem with the order for the minister to take “reasonable steps” to ensure a sufficient supply or generation of electricity for schools, hospitals and police stations, is that it is so vague that it would be difficult to determine whether it has been complied with or not.

In most cases where the reasonable standard is used, courts merely declare that an infringement of one or more of the rights in the Constitution occurred and leave it to the executive to address the problem. But here the court ordered the minister to take steps to fix the problem within 60 days.

Arguably this means that almost anything the minister does in the next 60 days might turn out to comply with the order to “take reasonable” steps to do something. Would reasonable steps include the appointment of a ministerial task team to do a feasibility study? Meeting the Eskom board to tell it to do better? Issuing a tender for the installation of generators and solar panels? Launch a campaign to get South Africans to use less of the electricity they only intermittently have access to?

It’s difficult to say.

The second problem is that by focusing on increasing the supply and generation of electricity – an intractable problem caused by Eskom being too dysfunctional to generate enough electricity to serve the needs of the country – the order conflates the systemic long-term problems that cannot easily be fixed, with the short-term question of how to limit the impact of load shedding on hospitals, schools and police stations.

Nothing the minister does in the next 60 days will magically fix (or even improve) the intractable problem of electricity generation. To the extent that the order requires the minister to take “reasonable steps” to generate or procure more electricity, the order is therefore meaningless. It is like ordering the Reserve Bank to take reasonable steps within 60 days to eradicate economic inequality in the country.

The third problem is that the judgment ignores complex constitutional questions about who carries the legal obligation to provide an uninterrupted electricity supply to hospitals, schools and police stations, or to mitigate the effects of load shedding for these institutions where the electricity supply is interrupted.

As a result, it wrongly assumes that the minister of public enterprises has the legal authority to take all the steps envisaged by the order to ensure such an uninterrupted supply of electricity.

Because “electricity and gas articulation” is a competence shared between the national government and municipalities, and because section 73 of the Municipal Systems Act of 2000 directly imposes the obligation to provide basic services (including electricity) in an equitable and accessible manner on municipalities, it is possible that municipalities carry the can on this.

But the matter is even more complex than this, as the provision of healthcare services and basic education are competences shared between the national and provincial spheres of government, raising questions about whether provincial departments of education and health, or the national department, are ultimately responsible for the financing and installation of solar panels and generators at schools and hospitals.

What is certain is that the minister of public enterprises is not responsible for any of this, and has no authority to interfere in the matter by instructing national or provincial departments on what to do.

To the extent that the order requires the minister to do that which the Constitution and legislation requires to be done by municipalities, provincial departments, or by other national departments, the court is instructing the minister to do something that he has no legal authority to do and cannot legally do. To this extent, the order is meaningless and cannot be implemented.

A bit like a court ordering the governor of the Reserve Bank to deliver textbooks to schools in Limpopo.

This does not mean there is no plausible constitutional argument to be made that the government’s failure to ensure the adequate supply of electricity to meet the needs of the society infringes on the right of access to healthcare and the right to basic education.

More specifically, an argument could be made that the failure of the government to take reasonable steps to limit or eradicate the impact of load shedding on the provision of healthcare services and basic education infringes on the right of access to healthcare in section 27, and the right to basic education in section 29 of the Constitution.

The fact that load shedding at schools and hospitals disproportionately impacts the lives of poor and vulnerable people who rely on public health services and attend schools that cannot mitigate the impact of load shedding, would be pivotal in making this argument.

If a plausible argument in this regard is presented to a court in a matter in which all the responsible parties have been cited, a court may then well issue a declaratory order that the relevant rights have been infringed because of the failure to develop a reasonable plan to limit the impact of load shedding on hospitals and schools.

That would be very different from the order issued by the North Gauteng High Court last week, which seemed to have ordered the wrong party to do something that seems close to impossible to do within the time frame provided.

When a court does the latter it undermines its own authority and imperils the rule of law.

After the resignation last week of Al Jamah-ah councillor Thapelo Amad as mayor of Johannesburg, the city is set to get its eight mayor in just over two years. (The DA’s Mpho Phalatse served twice: she was briefly removed from office, then reinstated by the court, then removed again.) While municipal governments in many smaller hung councils have been relatively stable, Johannesburg is by no means the only municipality where the election of a hung council (requiring the formation of a coalition or minority government) has led to instability and dysfunction.

As some opinion polls suggest that the ANC next year might lose its majority in the National Assembly (and in one or more provincial legislatures), the obvious worry is that this will lead to the same kind of instability and dysfunction in government that we have seen in places like Johannesburg.

If the ANC loses its overall majority in the National Assembly (and it remains an “if”), and if this leads to the formation of unstable and dysfunctional coalition or minority governments, it may lead to a further erosion of trust in government and its institutions, and – more broadly – in party politics in South Africa. I also fear that coalition chaos at the national level will fuel rising populism, and will further entrench the kind of scapegoat politics at which political parties across the political spectrum in South Africa seem to excel.

On paper, coalition governments are supposed to hold several benefits, most notably that they bring together a wider spectrum of people with a wide range of views, who are forced to compromise to find each other and to form a stable government. They are also supposed to curtail the abuse of power as well as corruption within government as it is thought that coalition parties will check on each other to ensure they are not tainted by shenanigans of their coalition partners.

This has obviously not been the case at local government level in South Africa, and it would be naïve to assume that coalition governments would function better at provincial and the national sphere.

Unfortunately, there are no easy solutions to the problem of unstable and dysfunctional coalition or minority governments. The problem can definitely not be solved merely by making a few well-chosen changes to the relevant parts of the Constitution and other legislation.

This is because the problem is at heart a political – and not a legal – one. If we had had more competent and honest elected politicians and more principled political parties, (and if leaders of larger political parties had the emotional intelligence and political skills to get more voters to reward such parties with their vote) much of what we see in coalition governments in Gauteng might have been avoided.

This is not to say that some minor changes to the Constitution or other relevant legislation should not be considered. As I have previously suggested, introducing an electoral threshold of 1% or 2% to limit the number of smaller parties might help to stabilise at least some of these coalition governments. Abolishing the secret ballot requirement for the election of speakers, mayors, premiers, and the president, and limiting secret ballots voting for the removal of these office bearers to cases where the vote is clearly aimed at holding the elected office bearer accountable, may also limit the ability of unscrupulous actors to “buy” the votes of elected officials of other political parties.

But such changes might not have a significant positive impact unless there is a major shift in our dysfunctional, money-and-status-driven, political culture in which political parties tend to choose their own short-term self-interest above the interest of voters, regardless of how this may impact on the most basic services the state ought to provide to citizens and without worrying too much about the long-term effect of their behaviour on the image and electoral prospects of their party.

When anything goes, anything goes.

Because of the transactional nature of our politics, gaining personal access to positions of power (and the relatively high salaries that go with such positions) often play a role in the decisions of party leaders about entering or exciting coalitions. Parties who enter into coalitions (or – like the EFF – support a particular minority coalition from the outside), often also benefit financially and politically from the access to public resources (tenders, jobs in the public service and on various boards of public institutions).

For as long as political parties believe they will get away with it, the squabbles for positions will continue to dominate coalition politics in South Africa. Put differently, until such time as it becomes politically untenable for political parties engaged in coalition negotiations to put their own short-term interests above those of the voters who elected them, the problem will continue.

What is needed is a fundamental change in the political culture.

As Prof Jaap de Visser pointed out last week at an excellent webinar on coalition governments, co-hosted by the University of the Western Cape Dullah Omar Institute, part of the problem is the absence of the type of political conventions that are rooted in respect for the outcome of democratic elections and thus respect for South African voters.

In many relatively well-functioning democracies with a long tradition of coalition governments, political conventions play an important role in preventing the kind of destructive behaviour by political parties that bedevil coalition politics in South Africa. Such conventions, which normally emerge because political parties wish to signal to voters that they respect the outcome of the democratic process, and thus the will of the voters, are absent in South Africa.

Political conventions impose informal (instead of purely legal) constraints on political parties in hung legislatures. Such conventions are broadly accepted by political parties in competitive democracies where governments are regularly voted into and out of office because politicians understand that these conventions will benefit them when their time comes to negotiate coalition agreements in the future.

One such convention is that the political party who receives the largest percentage of votes (or the largest number of seats) in the election will lead the coalition government, or will at least get a first stab at forming a coalition government.

For example, earlier this year in Finland, the National Coalition Party got the chance to form a coalition government after it came first in the national election, winning 20.82% of the votes. The Social Democratic Party of the then incumbent prime minister Sanna Marin came third with 19.95% of the votes, but made no claim to form a coalition government. Because the convention in Finland is that the winning party’s leader gets the opportunity to negotiate a coalition government after the president and the parliament convene to name the lead government negotiator, that was the end of Marin’s premiership.

Interestingly, the newly announced ANC guidelines on managing coalitions at the local level seems to embrace this principle. In terms of the guidelines, the ANC accepts the principle that the “party that has won the largest votes should lead the coalition in that municipality and executive positions should be allocated in proportion to the votes obtained by coalition partners”.

Another such convention is based on an agreement between parties that political parties who form part of a coalition government are only entitled to the number of position in the executive proportionate to the number of seats it holds in the legislature. Where this convention is upheld, a small party who obtained, say, 5% of the seats, would not be able to hold larger parties to ransom by demanding 50% of the executive positions in the coalition government.

The new ANC coalition guidelines commit the party to a weaker version of this principle, accepting that a threshold should be imposed to disqualify the smallest parties who had not won a minimum number of seats from serving in the executive.

On paper, the adoption of the guidelines by the ANC is an encouraging development. But one would be draft to take the ANC at its word on this, as its recent actions in various hung councils in Gauteng conflict with many of the principles contained in the guidelines. With the support of the EFF, the ANC installed mayors from tiny political parties to serve as figureheads for ANC-EFF coalition governments in several municipal councils, probably in the hope that voters will blame the inevitable failures of the coalition government on the hapless mayor from a Micky Mouse party.

The disastrous decision by the ANC, EFF and Patriotic Alliance to elect Thapelo Amad (whose party received less than 1% of the votes) as mayor of Johannesburg is the most obvious example of this. If the ANC follows the same strategy when Johannesburg gets to elect a new mayor in the coming days, it will cast serious doubt on the ANC’s commitment to its own guidelines.

What makes this even more depressing is that quite a number of seemingly thoughtful South Africans defended Amad’s election as the Mayor of Johannesburg, arguing that it was not illegal for him to do so (in the same way that it is not illegal to be a bigot or a bully?), or that it was the democratic right of larger political parties (by which they meant, the political party they support) to install the councillor of a 1% party to head the municipal government.

Hopefully, most voters do not share this view, and will punish the parties for imposing a candidate who received only 9000 votes as mayor of the city, and doing so in the name of “democracy”.

But I suspect that things will only really change when political parties accept that it is in their own interest to embrace the kind of political conventions discussed here, because the conventions are just as likely to benefit them than disadvantage them at some time in the future. This, in turn, may only happen when the electoral fortunes of political parties fluctuate over time and political parties are voted into and out of office at regular intervals.