Category Archives: Pierre De Vos

Daily Maverick: Evictions: 0 out of 10, SANRAL – try again

http://www.dailymaverick.co.za/opinionista/2014-06-05-evictions-0-out-of-10-sanral-try-again/

Pierre de Vos

“The law is the law,” said Vusi Mona, spokesperson for SANRAL, on Tuesday when he attempted to justify the eviction of hundreds of people from their homes built on SANRAL land. Mona was invoking an interim interdict aimed at unspecified persons intending to occupy SANRAL land to justify the eviction.

The interdict purports to prohibit unspecified persons from unlawfully occupying the land, building structures on the land and inhabiting those structures. It also authorises SANRAL, duly assisted by the SAPS, to remove people from the land, demolish their homes and remove their belongings from the land.

However, the interdict clearly excludes from its ambit those who had already occupied land and were already living in structures on the land at the time that the interdict was granted.

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Daily Maverick: Cape Town evictions: Brutal, inhumane, and totally unlawful

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http://www.dailymaverick.co.za/opinionista/2013-05-09-cape-town-evictions-brutal-inhumane-and-totally-unlawful

Cape Town evictions: Brutal, inhumane, and totally unlawful

by Pierre de Vos

The City of Cape Town and its DA-led municipality will probably be cheered on by many members of the chattering classes (those who channel their inner Rhoda Kadalie by constantly moaning about how the country is going to the dogs under “these people”) for justifying its unlawful and inhumane treatment of poor and destitute occupiers of municipal land by first invoking an imaginary law and then by invoking a non-applicable common law rule. But no matter how the City tries to justify its actions, these evictions (conducted without first obtaining a court order) remain unlawful.

“Legal interpretation,” wrote the late Robert Cover from Yale Law School back in 1986, “takes place in a field of pain and death”, because acts of legal interpretation often impose violence upon others. So, when a court orders the eviction of penniless people from their makeshift homes, it uses the violence of the law to rob them of their dignity, turning them into potential criminals in the process. At night many homeless people are forced to break the law when they have to trespass on private property if they were to grab even a few hours of fitful sleep, often in the cold and the rain. Property rights, so it seems, are indeed invoked against the vulnerable and marginalised “in a field of pain and death”.

It is for this very reason that section 26(3) of the Constitution limits property rights by prohibiting anyone – including a municipality – from evicting someone from their home, or having their home demolished, without an order of court made after considering all the relevant circumstances. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) gives effect to this right, but extends the right to protect all those who unlawfully occupy not only homes but also land. An unlawful occupier protected by PIE (and who can therefore not be evicted from either land or home without a court order) is defined as “a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land”. In South Africa, only a court can order the eviction of any human being from either land or from a home.

On Wednesday 1 May 2013, the City of Cape Town’s so called “Anti-Land Invasion Unit” (a name harking back to the forced removals of the Apartheid era), acting like vigilantes, demolished the homes of 125 people who had unlawfully occupied land in Philippi on the outskirts of the city. At first the city claimed that this demolition and eviction was done in accordance with the imaginary “Protection of the Possession of Property Act”. There is no such Act on the statute books in South Africa: the city had lied about its existence and about having legal backing for its eviction without obtaining a court order. After they were caught out in this lie, they provided another justification for the unlawful eviction.

The City, enthusiastically inventing a legal argument – “in a field of pain and death” – to justify its unlawful actions, invoked the common law notion of “counter-spoliation” which, it argued, allowed a landowner to resist illegal attempts to disturb their possession without obtaining a court order. Counter spoliation allows someone to retake possession of his or her property before the person has actually been deprived of that property. For example, if a thief snatches your bag in the street and you trip the thief and take back the bag you can invoke the principle of counter spoliation. However, you cannot go the thief’s house later that day and snatch back your bag. That would constitute an unlawful instance of vigilantism.

The City claimed that the structures were not occupied (although pictures of the evictions suggest this is not true as the personal belongings – including furniture and clothes – can clearly be seen inside the houses) and that the “Anti-Land Invasion Unit” was entitled to “continue to dismantle illegally built structures every time they are erected and before they are occupied.” But from a legal point of view, it is entirely irrelevant whether the structures were occupied or not.

In Ndlovu v Ngcobo; Bekker and Another v Jika the Supreme Court of Appeal (SCA) made it clear that PIE applies to the eviction of (who it inhumanely called) “squatters”, whom Harms JA defined as those who “unlawfully took possession of land”. In the same judgment Olivier JA referred to “the situation where an ‘informal settler’ (a squatter) moves onto vacant land without any right to do so and without the consent of the landowner or his or her agent”. In City of Cape Town v Rudolph and Others the Cape High Court correctly interpreted these statements as showing that PIE also applied to those who the City of Cape Town might call “land grabbers”.

As the PIE Act does not only protect those who occupy homes but also those who occupy land it is difficult (perhaps impossible) to see – especially in the light of the precedent of the High Court and the SCA quoted above – that even those homeless people who have settled on land and are still busy erecting informal shelters on the land they are occupying, falls outside the ambit of the protection of PIE.

This view is affirmed by the dissenting judgment in the Ndlovu case where Olivier stated that:

“There seems to be general agreement that PIE applies to the situation where an informal settler (a squatter) moves onto vacant land without any right to do so and without the consent of the landowner or his or her agent. There are thousands, if not millions, of such squatters in our country. They are usually unemployed, the poorest of the poor, and live with their families in self-erected tin, cardboard or wooden shacks.”

None of the reported judgments in which the application of the PIE Act was in issue proposed the interpretation put forward by the City Council that unlawful occupiers of land are only protected by the PIE Act once they erected homes and actually lived in those homes.

In the Rudolph judgment the High Court also pointed out the obvious fact that the PIE Act has now drastically curtailed the common law rules of spoliation and counter spoliation as far as property is concerned.

“To hold that the common-law remedies available in our law for the eviction of unlawful occupiers exist alongside the remedies provided for in PIE, at the option of the applicant, or at all, would fundamentally undermine the overall purpose of PIE and particularly the purpose of the protections provided for therein.?The idea that an owner can avoid the peremptory provisions of PIE by electing to use the common-law remedies to evict an occupier from land must be rejected.”

In Port Elizabeth Municipality v Various Occupiers (Port Elizabeth Municipality) the Constitutional Court affirmed this view that the PIE Act has now extinguished many of the common law rules relating to property, stating that through the adoption of PIE:

“The former objective of reinforcing common law remedies while reducing common law protections, was reversed so as to temper common law remedies with strong procedural and substantive protections; and the overall objective of facilitating the displacement and relocation of poor and landless black people for ideological purposes was replaced by acknowledgement of the necessitous quest for homes of victims of past racist policies. While awaiting access to new housing development programmes, such homeless people had to be treated with dignity and respect.”

Arguing that the PIE Act now expressly requires the court “to infuse elements of grace and compassion into the formal structures of the law”, the Court in effect said that the court had to be aware of the violence inherent in the strict application of old style property rights and had to guard against the extreme effects that homelessness and dispossession would have on the dignity of those who were not lucky enough or connected enough to have a house of their own.

“It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when state action intensifies rather than mitigates their marginalisation. The integrity of the rights-based vision of the Constitution is punctured when governmental action augments rather than reduces denial of the claims of the desperately poor to the basic elements of a decent existence. Hence the need for special judicial control of a process that is both socially stressful and potentially conflictual.”

Of course, the PIE Act does allow the court to unleash the violence of the law on vulnerable and marginalised people who unlawfully occupy the land of others and does not prohibit a court from ordering the eviction of unlawful occupiers in certain circumstances. The capitalist system, from which us middle class citizens often benefit so handsomely, requires the law to impose some protection of property rights and the courts have to interpret and apply those legal provisions in that infamous “field of pain and death”.

But the PIE Act does prohibit the City of Cape Town’s self styled Anti-Land Invasion Unit from taking the law into its own hands – from playing God, as it were. It is not allowed to evict unlawful occupiers from land and neither is it allowed to demolish their homes unless it has obtained a court order to do so. Where a limited number of occupiers have only recently settled on private land, a court will almost always grant such an order. Where public land is in issue, be courts should be more reluctant to order the eviction. After all, where will homeless people go when evicted. It is not as if people “grab land” because they are too stingy or callous to pay for it. They often have a stark choice: either occupy land illegally or become entirely homeless.

The claim by the City Council that it is acting under the cover of law is therefore not only anti-poor, but also – this once – untrue. When it claims otherwise, it is merely trying to avoid responsibility from flouting of the Rule of Law (the very Rule of Law which the DA claims to revere).

Daily Maverick: Marikana: Avoidable, unconstitutional… and entirely predictable

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http://dailymaverick.co.za/opinionista/2012-08-23-marikana-avoidable-unconstitutional-and-entirely-predictable

Marikana: Avoidable, unconstitutional… and entirely predictable

by Pierre de Vos, The Daily Maverick

The Marikana massacre has been called an ‘avoidable’ tragedy. But given the total misunderstanding of Constitutional obligations by senior politicians and police leaders, it seems nothing short of inevitable. Looking at the way police obligations have been understood in the country over the past four years, it’s hardly surprising that we’ve come to this kind of brutality.

Many South Africans are either confused or uninformed about the Constitutional and legal duties placed on the South African Police Service to protect, rather than kill, the citizens of South Africa. Many members of the “law and order” crowd, including a large number of (white) South Africans who usually demonstrate a fierce hatred of the ANC and the government it leads, have emerged as staunch defenders of the actions of the police during the Marikana massacre and, by implication, is demonstrating support for Police Minister Nathi Mthethwa, whose resignation has been called for by opposition parties.

In support of their contention that the killing of 34 miners by members of the SAPS was justified, they argue that the miners were taking part in an illegal strike and an illegal gathering, that the police were scared because some police officers had been killed in the run-up to the massacre and some miners were brandishing traditional weapons, and that one of the miners had shot at the police and that the police were therefore merely defending themselves.

Entirely absent from these kinds of wrongheaded arguments is an understanding of the Constitutional and legal framework within which the police are required to operate in a Constitutional state like our own.

Section 199(5) of the Constitution states that the Police “must act, and must teach and require their members to act, in accordance with the Constitution and the law”. The Constitution protects the right to life of everyone – including every criminal suspect and every miner who took part in the events at Marikana last Thursday. The strikers did not forfeit their right to life because two police officers were killed by unidentified individuals in the week leading up to the massacre. Nor did they forfeit their right to life because they were involved in an unlawful strike and/or protest march or because one of the striking miners allegedly shot at the police.

This principle is underscored by section 13 of the Police Services Act, which states that members of the SAPS must act subject to the Constitution and with due regard to the fundamental rights of every person. The section continues to state that where a police officer is authorised to use force (for example, to defend him- or herself or to help apprehend a dangerous criminal suspect), he or she may use only the minimum force which is reasonable in the circumstances.

The police are not authorised to take the law into their own hands and to punish a group of miners by killing 34 of them because some of the miners might previously have been involved in the killing of a police officer. That would be nothing more than mob justice and would constitute cold-blooded murder. The fact that some of the police officers might have been scared because two of their fellow officers were killed earlier in the week would not, by itself, constitute a legal justification for the killing either. To hold otherwise would be to excuse every scared but trigger-happy police officer who goes on a shooting spree.

Neither would it normally be found to be reasonable to shoot and kill 34 protesters with automatic rifles because one of them had a gun or had shot at the police. It would also normally not be possible to claim that the police used minimum force when it killed 34 protestors with semi-automatic rifles. In the absence of other compelling evidence which demonstrates that the miners posed a grave threat to the lives of police officers, the shooting could not be considered either justifiable or legal. Evidence that such a grave threat existed might yet emerge, but so far no one has provided it, so arguments exonerating the police are not based on factual or legal considerations.

Those who are so quick to exonerate the police either do not value the lives of those who died, are defending the government and the minister of police for politically expedient reasons, or are animated by an irrational fear of everything that the miners represent.

Questions might well be asked about why so many police officers, as well as members of the public, seem to believe that the police have a right to shoot and kill anyone who threatens them or gets involved in illegal activities. Where is this idea coming from that our police do not have to respect the lives of fellow citizens when the citizens have allegedly broken the law?

The answer to this question is not blowing in the wind, but a Google search does yield some direction.

In 2008, then-deputy minister of safety and security, Susan Shabangu (who yesterday made the contradictory claim that she had negotiated with the parties involved in the dispute behind the scenes but that she had never heard of one of the unions involved in it) told an anti-crime rally in Pretoria that police shouldn’t hesitate to kill “criminals”. She did not mean that the police should not hesitate to shoot to kill those who have been convicted of a crime by our courts, but rather that the police should not hesitate to shoot and kill individuals who our Constitution presume to be innocent but whom the police officer might believe had committed a crime.

“You must kill the bastards if they threaten you or the community,” she said. “You must not worry about the regulations. That is my responsibility. Your responsibility is to serve and protect. I want to assure the police station commissioners, policemen and women that they have permission to kill these criminals. I want no warning shots. You have one shot and it must be a kill shot. If you miss, the criminals will go for the kill. They don’t miss. We can’t take this chance.”

This is the same Shabangu who yesterday warned South Africans to “exercise restraint when it comes to rushing to judgments”, pending the outcome of the judicial inquiry which will be appointed to investigate the massacre.

In 2009, South Africa’s new top cop, Bheki Cele, pleaded for the law to be changed to allow police to “shoot to kill” so-called criminals (again, suspects who must be presumed innocent until proven guilty) without worrying about “what happens after that”. Speaking to a newspaper, Commissioner Cele said the police needed to match the firepower of criminals and use “deadly force”. Cele complained that criminals were armed with the best high-calibre firearms “to deal with whoever is standing in their way, so… they are ready to shoot”. On the other hand, police responding to an attack have to “arrest their minds, thinking is this right or is it wrong? Police must think about what is in front of them and do the job, or else they get killed.”

He received backing for these starling assertions from none other than Nathi Mthethwa, the country’s police minister. “We are tired of waving nice documents like the Constitution and the human rights charter in criminals’ faces,” Mthethwa said. “We are going to meet these thugs head on, and if it means we kill when we shoot, then so be it.”

It is the same Mthethwa who yesterday claimed that the loss of life at Marikana was tragic and regrettable, but that now was not the time for “cheap politicking”. He added that the incident should teach us “as a nation, as a whole, to work doubly hard to prevent the repeat of such events.” As if the nation as a whole had made or condoned inflammatory statements about the need for the police to “shoot the bastards”. As if the nation as whole had insisted that we should ignore the Constitution. As if the nation as a whole gave the order to shoot at protestors with automatic rifles. As if those who stoked the fires of violence and those who actually killed the 34 protestors had absolutely no part to play in this tragedy.

I might be wrong, but given the bloodthirsty and irresponsible statements made by some politicians and members of the police leadership over the past four years about the need for the police to shoot and kill people who have never been convicted of any crime and must – in terms of our Constitution – be presumed to be innocent, the massacre at Marikana appears not “avoidable and tragic”, not something we as a nation “must work doubly hard” to prevent from happening again, but rather entirely inevitable and predictable.

Constitutional Court more pro-poor than the government

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http://constitutionallyspeaking.co.za/constitutional-court-more-pro-poor-than-the-government/

Constitutional Court more pro-poor than the government

Given recent statements by Gwede Mantashe, Secretary General of the ANC, and President Jacob Zuma complaining about alleged “interference” by the judiciary in the work of the elected branches of government (the legislature and the executive), it is perhaps understandable that an announcement by cabinet about a new “assessment on the transformation of the judicial system and the role of the judiciary in a developmental state” will be carried out by a “reputable research institution” created an outcry. As I wrote earlier this week, trust in the ANC government amongst the chattering classes is at an all time low, given daily reports of corruption in our media and given the passing of the Secrecy Bill by the National Assembly.

Only a few minutes after the statement was released my phone started ringing as journalists anxiously sought confirmation that this statement must be read as a full-frontal attack on the independence of the judiciary. Journalists focused especially on the announcement that cabinet agreed to an approach to the transformation of the judicial system that would include an ”assessment of the decisions of the Constitutional Court”, to be “undertaken by a research institution to establish how the decisions of the court have impacted on the lives of ordinary citizens and how these decisions have influenced socio-economic transformation and the reform of the law”.

However, on its face, this statement could be viewed as a positive development. If a truly independent and reputable research institution conducts such an assessment, it will inevitably find that the decisions of the Constitutional Court – perhaps more than the actions of the legislature and the executive — have by and large impacted positively on the lives of ordinary citizens and have facilitated socio-economic transformation. Where the Constitutional Court has handed down judgments that could be viewed as anti-poor, the decisions have almost always endorsed the policies of the government.

I am thinking, for example, of the Mazibuko judgement in which the installation of pre-paid water meters in Phiri, Soweto were unsuccessfully challenged by the residents of that area. The policy was devised and implemented by the ANC-led Metro government of Johannesburg and in my view discriminated against poor black residence of parts of Soweto. The Constitutional Court declined to intervene because the Metro’s policy was adapted over time.

However, in many other cases, the Constitutional Court has either endorsed transformative policies of the government or declared invalid anti-poor policies and laws passed by the ANC national or provincial governments. In the Grootboom case, the Treatment Action Campaign case, the Khosa case, the Jaftha case, and the Glennister case the Constitutional Court handed down judgments that had the effect of extending social and economic rights benefits to the poor, protected them from discrimination and unfair treatment or placed duties on the government to fight corruption, the very corruption that disproportionately affect the lives of the poor and the marginalised who depend on the honest and efficient state to provide it with the minimum basic goods and services required for them to survive and live a meaningful life.

The most telling case in this regard is the judgment of the Constitutional Court in the case of Abahlali Basemjondolo Movement SA and Another v Premier of the Province of Kwazulu-Natal and Others in which the Constitutional Court struck down sections of the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act. This Act, passed by the ANC-led legislature in KwaZulu-Natal, represented a full frontal attack on the poor, the homeless and those living in informal settlements. It might well have been passed in an attempt to undermine Abahlali Basemjondolo and to provide the government with legal tools to harass its members. The Act would have required landlords to evict all “slum dwellers” (a term last used by the apartheid government in the 1960ties) and was thus found to breach the right of access to housing guaranteed in the Constitution.

A credible report assessing the work of the Constitutional Court will have to come to the conclusion reached above, answering the very criticism of Mantashe, Zuma and others in the ANC who have convinced themselves that the courts interfere with the abilities of the other branches of government to effect socio-economic transformation. Any other conclusion will not be credible and no academic worth his or her salt would put their name to a report that concludes differently. If the assessment is done properly, it may therefore help to silence critics of the Constitutional Court.

This does not mean that other aspects of the cabinet statement are not worrying as they suggest a complete lack of respect for the separation of powers doctrine, which is inherent in a system of checks and balances in a constitutional democracy with a supreme Constitution. Two statements in particular can be interpreted to mean that the executive wishes to meet privately (read, in secret) with members of the judiciary to “engage” judges and to try and convince them that they should stop finding that the government is in breach of the Constitution. Notably the statement says:

Thirdly, to affirm the independence of the judiciary as well as that of the executive and parliament with a view to promoting interdependence and interface that is necessary to realize transformation goals envisaged by the Constitution. ….. Appropriate mechanisms be developed to facilitate for regular interface between the three spheres of the State to enhance synergy and constructive engagement among them in pursuit of common transformative goals that are geared to benefit the society at large.

There is nothing wrong with the leadership of the judiciary engaging the executive on issues dealing with access to justice and the better running of the judicial system. The government is elected to provide better access to justice and has to ensure that the system works well. In as much as formal discussions between the branches of government can facilitate the better functioning of our court system and easier access to courts, the move should be welcomed.

However, it is absolutely inappropriate for the executive to engage judges in a way that would even give the appearance that the members of the executive are trying to persuade judges to make decisions in individual cases that are more in line with the policy choices of the government. This would represent a full frontal attack on the independence of the judiciary and the system of checks and balances put in place by our Constitution.

Judges usually do not engage anyone about their past or future judgments (no matter what Judge President John Hlophe might think). They speak through their judgements and engage in this formal sense in a dialogue with the other two branches of government who can then respond appropriately to the judgments of the courts to ensure that they comply with the Constitution. Judges do not and cannot be seen to engage with members of the executive with a view of achieving “synergy” between the views of the executive and the judiciary.

In a constitutional democracy any synergy that exists between the executive and the judiciary is imposed by the various provisions of the Constitution as interpreted by the Constitutional Court. The judiciary is in dialogue with the executive in a formal way through their judgments but they are not “interdependent” with the other branches of government in the way hinted at by the statement (in the sense that they have to meet with the executive and agree on a plan of action on how best to effect transformation without embarrassing the bumbling lawyers appointed by the President and Parliament). If this is what the statement implied, it is wrong and dangerous and the intentions expressed in it would then be proposing an unconstitutional breach of the separation of powers doctrine, which is a doctrine that is deeply entrenched in our constitutional law.

What is needed is for this statement to be clarified. As it stands it can easily lead to the conclusion that the cabinet has a particularly dangerous and unconstitutional view of the relationship between the executive and the members of the judiciary. The judiciary — unlike the legislature and the executive — is completely independent and is required to be seen to be independent from the other branches of government. Secret talks about the transformative goals of the government with a view to “pull together” (which could easily mean, pull in the same direction as the executive – even when it acts in breach of the Constitution) would therefore not be acceptable. Indeed, it would represent a shocking attack against the Constitution itself.

As I suggested, the statement could, at a stretch, be interpreted differently to mean only that the executive would like to engage the leadership of the judiciary to improve access to justice and the efficiency of the courts. If that is the case, this should be made clear. If, however, the cabinet believes that it is appropriate for them to have secret chats with members of the judiciary to ensure policy synergies between them and the judiciary so that judges would not declare invalid the bumbling actions of the legislature and the executive, then the cabinet is shockingly ignorant and is embarking on a road to destroy our constitutional democracy. No judge who respects the Constitution would be party to such talks.

Constitutionally Speaking: About glue and superglue

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http://constitutionallyspeaking.co.za/about-glue-and-superglue/

About glue and superglue

by Pierre De Vos

Only the most partisan and jaded among us who read through the documents on organisational renewal prepared for the ANC National General Council (NGC) would not be impressed by the honesty of the document and by the harsh but accurate assessment of the state of the organisation contained in it.

(Helen Zille could learn a thing or two from the ANC about admitting to the difficult problems faced by her party and the shortcomings of many party members and leaders. But – like Margaret Thatcher – that lady is not for turning and not for admitting a mistake, no matter how damaging and obvious the mistake might have been.)

As the ANC document points out, leadership in the ANC is seen as steppingstone to positions of power and material reward in government and business. There are disturbing trends of “careerism, corruption and opportunism,” taking root in the party at various levels, “eating at our soul and with potential to denude our society of an agent of real change”. The document also recognizes the challenges and sins of incumbency (patronage, bureaucratic indifference, arrogance of power, corruption) and suggests approaches to the management of relations within the organisation.

The ANC – and, ironically, even its leader President Jacob Zuma – often talks about the need to deal with corruption and nepotism and Cosatu last week announced (yet another) initiative to deal with these problems in the party. Why then does the ANC seem incapable of dealing with problems of corruption and nepotism – despite many party leaders freely admitting to the problem and clearly being worried about the consequences of the corruption eating away at the moral fabric of the ANC?

An excellent article in this weeks Mail & Guardian about Kennedy Road and the academic article by Prof Sujit Choudhry (highlighted in the “updates” section of this Blog) on the pathologies of one party dominant democracies, go a long way to explain why the ANC will not be able to deal decisively with corruption. At its most basic level, the ANC will not be able to deal with corruption and nepotism in its midst because it needs corruption and nepotism to remain the dominant party in South Africa.

The better instincts of many ANC leaders therefore come in direct conflict with the more urgent instincts of staying in power to advance the “National Democratic Revolution” (and to hold on to the the perks and benefits of office – the cars, the blue lights, the body guards, the money, the ego-trips).

The end result is that the ANC will continue talking about corruption and the need to address it, while it will continue to turn a blind eye to it (perhaps occasionally making an example of a Tony Yengeni or a Jackie Selebi to demonstrate how serious it is about dealing with the problem). If it actually rooted out corruption, it will not be able to distribute benefits and opportunities to a wide array of people and will not be able to retain the loyalty of important but disparate groups who are currently loyal to the ANC. Corruption and nepotism is the glue that holds the ANC together.

It is true that this glue is turned into superglue by the other factors (the continued racism of large sections of the economically powerful minority; the emotional identification that many feel with the ANC because it is the party of liberation; the splintered nature of the Parliamentary opposition and the strategically shortsightedness of opposition parties which limits their chances for growth), but the fact is that the ANC is managing to dominate the political landscape in South Africa because it controls the state and its resources and can dispense benefits and opportunities to those who might otherwise have challenged the authority and power of the party.

It is essential for the ANC to be able to continue to dish out patronage to a wide array of people and to be seen to be able to do so. This they can only do if they turn a blind eye to tender fraud, corruption and nepotistic appointments and if it continues to insist on the continuation of cadre deployment. The ANC must be seen to be the only vehicle through which people can gain access to state resources and must thus be seen as the only party who can improve the lives of most voters. (That is also why the draft Bill that would prevent party leaders from holding local government jobs is meeting such stiff resistance from within the ANC.)

The brilliant article by Niren Tolsi in Friday’s Mail & Guardian (not yet available on the internet) is instructive in this regard. Writing about the aftermath of the criminal attacks on leaders of Abahlali baseMojondolo in Kennedy Road in September 2009, he notes that at the time of the attacks, Bhekisisa Stalin Mncube, spokesperson for the provincial minister for safety and security Willies Mchunu, sent out a press release on behalf of Mchunu and the provincial police commissioner Hamilton Ngidi saying that “the provincial government has moved swiftly to liberate a Durban community (Kennedy Road)”.

He shows that this “liberation” was nothing else than a move to re-establish the authority of the ANC in the area to ensure that residents would understand that it would only be through ANC structures that they would be able to access services or benefits. Abahlali baseMjondolo was a threat to the ANC because it established alternative structures in the area and provided services to the community and helped each other and this sent a signal that one need not be an ANC member or close to the ANC to benefit and to improve one’s life.

This meant residents did not have to go via ward committees and other ANC controlled structures if they wanted to get things done. But the ANC in the area could not tolerate this challenge to its authority because if enough people started believing that membership of the ANC (or at least not active opposition to the ANC) was not essential for any advancement, then the power of the ANC in the area might have been broken and people might have begun to explore other political options.

Conservative political scientists like Herman Giliomee often argue that South Africa is not a fully functioning democracy because our regular elections are no more than a racial census in which people vote either for the ANC (if they are black) or the DA (if they are white). This analysis is far too simplistic. People vote for the ANC and join the ANC for many reasons, including suspicion of the (white dominated) DA and an emotional identification with the ANC as a party of liberation.

But the dominance of the ANC – despite its dismal failure at local government level – cannot be explained purely in such terms. My view (not shared by all) is that most voters are not that stupid and usually vote for the party they perceive as the party best capable of addressing their needs and concerns. Many voters thus continue voting for the ANC exactly BECAUSE of the ANC’s dominance and its control of the levers of state power.

It is not because the ANC is delivering brilliant services at local government level, but because the ANC has convinced most voters that it is the only party that can make any real difference to their lives – often by bending the rules, by dishing out tenders fraudulently, and by employing unqualified people in government merely because they are close to the ANC. If the ANC controls public resources, it makes sense to vote for or even join the ANC in order to better one’s chances of improving one’s life.

A completely neutral state machinery as required by our Constitution (in which a sharp distinction is drawn between the governing party and the state and in which one’s political affiliations makes absolutely no difference to one’s chances of getting a tender or a job and very little difference to whether the state builds a school in your community or tar the road to your house) would be disastrous for the ANC. If people did not think that the ANC and the state was basically one and the same thing, they would consider voting for another party or – even worse for the ANC – they would consider forming another party to challenge the ANC’s dominance. For most poor people to do so at present would be rather stupid or even suicidal.

But to ensure that the ANC is associated very closely with the state, the rules according to which tenders are issued, jobs are provided and services delivered must be corrupted to ensure that only ANC aligned individuals are seen to benefit (or at least are seen to benefit more than those who are not ANC members, have not voted for the ANC or actively oppose the ANC). No wonder COPE is not coping: having lost the power of incumbency it has very little to offer ordinary voters.

That is why the ANC leaders at Luthuli House have insisted on appointing Premiers and even mayors, why it is investigating changes to the provincial government system to limit the chances of provinces (like the Western Cape) attaining too much power and hence too much access to state resources, and why it cannot afford to deal decisively with corruption at national, provincial and especially local government level.

As Choudhry points out, this does not make South Africa unique at all: India, Mexico, Japan and many other countries in which one party dominant democracies enabled governing parties to retain power for many years all suffered from the pathologies of one party dominance highlighted above.

It does mean that unless the economy collapses and deprives the ANC government of sufficient resources to dispense (as happened in Zimbabwe, enabling the emergence of the MDC), or unless alternative centres of power emerge in municipalities and provinces to challenge the hegemony of the ANC, corruption and nepotism will not be addressed in the medium term. This is not because the ANC leadership is inherently corrupt or that it is morally depraved, but because it has no other choice but to turn a blind eye to corruption and nepotism if it wants to remain the dominant party.

In this, big business and the ANC are in cahoots. During the apartheid era in which the National Party dominated the (whites only) electoral landscape, big business got into bed with the Nats because the Nats had access to resources, could dish out tenders and business, and could ensure an environment in which astute and unscrupulous businessmen and women could become rich. Now that the ANC is firmly entrenched as the dominant party in South Africa, big business has found a new bed partner.

Absa is of course the perfect example of this trend. It used to be the bank of the apartheid government and the supporters of apartheid and it seamlessly turned itself into the bank of the ANC government and of the new elite. When big business bleats about corruption and nepotism, I take this with a pinch of salt. They are not against corruption and nepotism: they are just against the wrong people getting corrupted and then reaping the benefits form corruption.

What is to be done? Corruption commissions will not do the trick. It seems to me that resistance from below (as opposed to complaining by elites like myself) is our best bet.

Here the Constitutional Court can play an important role: by vigorously enforcing the Rule of Law, by making decisions that opens up or keeps open democratic space for contestation, by acknowledging that it has been called upon to interpret and enforce the Constitution in a one party dominant democracy and that this should be taken into account when it makes decisions about the nature of democracy, about the powers of the various spheres of government, and about the abuses of power by the executive that inevitably result from one party dominance, it can help to empower communities who want to take on corruption and nepotism.

In this regard, it will be interesting to see how the Constitutional Court deals with the case challenging the appointment of Menzi Simelane as National Director of Public Prosecutions. If it is asked to consider this matter and if it declines to invalidate the decision of the President on the grounds that the President should have a wide discretion to deploy incompetent and ethically challenged cadres into constitutional positions, we will know the court is not up to the task of helping to safeguard our democracy. What will the Court do? Only time will tell.