Category Archives: Pierre De Vos

Constitutionally Speaking: In defense of the Internet

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http://constitutionallyspeaking.co.za/in-defense-of-the-internet/

In defense of the Internet
Sep 9th, 2010
by Pierre De Vos

Which readers of this Blog (whom I assume are mostly relatively well informed) know the names of Mr Sbu Zikode, Mr Mzwakhe Mdlalose, Ms Bandile Mdlalose, Ms Zandile Nsibande or Mr Zodwa Nsibande? They are, of course the President, Vice President, Secretary General, Chairperson of the Women’s League and Chairperson of the Youth League of Abahlali baseMjondolo, the Durban Shack Dwellers Movement, one of the most influential and vibrant social movements in South Africa who, on its website, describes itself as the largest organization of the militant poor in South Africa.

These are not household names because the leaders of Abahlali baseMjondolo hardly ever appear on SABC TV or radio or ETV and are seldom quoted in the daily serious newspapers (media consumed by the elites of all races). Abahlali is hardly ever quoted exactly because they style themselves as an organization that represents the militant poor in opposition to elites of all races – including the elites who sit in our government and drive in R1 million cars in blue light convoys. These are the very elites who control the SABC, ETV and the printed media and produce news for other elites (like those who write and read this Blog).

Last year when Abahlali leaders and ordinary members were viscously attacked by thugs, allegedly in collusion with members of the police, some newspapers did report on the matter and when it successfully challenged the constitutionality of the apartheid-style Kwa-Zulu/Natal Slums Act it was also reported – scantily – in the media.

But as a general rule, both the ANC-aligned SABC and private independent media have not done a good job of reporting on the actions of this group. What motivates its members? What are the conditions that have produced this organisation representing the interests of the militant poor? What is it that motivates its members and what does the organisation wish to achieve? What does it mean for our democracy? One would be hard pressed to find any reporting or analysis on such pressing questions in our media.

I therefore agree with Steven Friedman that there is something seriously wrong with the way in which our media operates (although I suspect that the problem is even more complex than he suggests). Writing in Business Day, yesterday Friedman pointed out that:

Government attacks on the press have ensured that it is hard to question journalists’ priorities for fear of being seen to encourage censorship. But it should be possible both to defend the press’s right to tell us everything we need to know and to complain that, in the main, it does not tell us — to oppose not only the controls politicians place on papers but those journalists place on themselves….

The problem here is a pack journalism in which some decide what the story is and everyone follows — and reportage which is obsessed with the actions of a few political figures rather than the patterns which may shape where our country is headed; its practitioners are judged by how connected they are to politicians, not by whether they identify trends.

Our media – both the SABC and the independent media – has an inherent bias in favour of process stories focusing on the official political horse races: What happens in Parliament? Which leaders of the alliance are fighting with each other? Does President Jacob Zuma have any chance of being elected to a second term? Is the Alliance a dead horse or will it survive until Jesus comes back? Is Julius Malema’s fortunes rising or falling?

Our media also has ideological and class biases, reflecting the anxieties and the concerns of members of the middle and upper classes and political elites. The way in which the scandalous behaviour by some striking workers were reported recently (by both the SABC and the private media) served certain ideological and class interests. It focused very strongly (but admittedly not exclusively) on these excesses, and this served the ideological and class interests of the rulers. (No ANC leader complained about the way in which the media vilified the strikers, for example.)

Reporting is about making choices: about what to report and what to leave out, about what to highlight and what to underplay, about how to interpret what is being reported and how to structure the narrative of our daily lives in a way that would make often chaotic events understandable to the consumers of news. We have a tendency to want to fit events into a bigger story, a master narrative if you will, and when the media constructs such a narrative they do so to serve certain class and ideological interests.

The South African media is of course not unique in this regard. Noam Chomsky writes in Manufacturing Consent that it is the primary function of the mass media in the United States to mobilise public support for the special interests that dominate the government and the private sector in that country. The same argument could be applied locally.

This does not mean that the ANC proposal for a Media Appeals Tribunal would be a good thing either. Such a tribunal would merely attempt further to narrow the class and ideological focus of the media to prevent reporting that would be damaging to the governing party and those individuals who circle like hyenas around the party bosses in search of influence and money. If the Tribunal is to have any teeth, it would probably be unconstitutional in any case.

What is then to be done?

My answer would be that one has to accept that in a capitalist society with a free media, that media will always be biased in favour of the elites in and outside of government and will advance their interests. Luckily we live in the age of the Internet and with a little effort one can obtain news and analysis with a slightly broader perspective from the “interweb” (as Die Antwoord might say).

When the ANC discussion document talks about a diversification of the media, it does not take cognisance of this fact. If the ANC was really interested in creating a vibrant and ideologically diverse media, it would not pin its hopes on the Gupta-financed newspaper called New Age. Instead, it would focus on the ways in which citizen journalists and members of social movements can use the internet to disseminate news about its activities and ideas which are not often reflected in the mainstream media.

What is needed is a radical programme to make the internet cheaper and more accessible to ordinary people and to provide support for the kind of citizen journalism and analysis that would provide a far broader spectrum of news and ideas than is currently available in the mainstream media? But I guess this is not what the ANC has in mind, as the Internet is an unruly beast that cannot easily be controlled. The last thing the ANC wants is to give the militant poor (to use just one example) a platform that could be used to organise against the party and the government of the day.

But the internet is here to stay and even if the ANC manages to impose a Media Appeals Tribunal to censor the mainstream media, it will soon find out that this will not stop the bad news from coming out. Neither will it stifle dissent from those whom the governing party truly fears: the unemployed and militant poor.

Constiutionally Speaking: The Rule of Law and “conflicts of interests”

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http://constitutionallyspeaking.co.za/?p=1174

The Rule of Law and “conflicts of interests”
Posted on July 2nd, 2009 by Pierre De Vos

One of the most important but often neglected aspects of the Rule of Law is the requirement that individuals must be able to enforce their rights and legal entitlements in a court of law. At the heart of the Rule of Law is the notion that we are a rule-based society and that everyone – no matter how powerful or weak – must have the equal chance to enforce their rights and legal entitlements as set out by law.

However, in South Africa most people – let alone poor people – do not have the money needed to pay for lawyers that would enforce their rights and entitlements in court. A poor person who enters into a verbal contract with someone who fails to honour his or her word, will not be assisted by the law if the powerful contractee just ignores his or her obligations. Neither will such a person have much chance to challenge an unjust, unfair or unconstitutional decision by a state official to stop her pension, evict her from her shack or confiscate her goats – simply because such a person will not be able to pay lawyers to represent him or her.

It reminds one of the famous saying by Anatole France: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

Yet, when politicians talk about the Rule of Law they often do not deal with this harsh reality which – perhaps more than the lack of transformation on the bench – negatively affect the legitimacy of the courts and of the legal system in South Africa.

For some communities – especially those who are well organised – relief can come in the form of the Legal Resources Centre, the Women’s Legal Centre or private law firms who do pro-bono work or otherwise assist poor litigants at reduced cost. One such firm is Smith Tabata Buchanan Boyes who recently represented backyard shack-dwellers with no access to formal housing in a case against the City of Cape Town (at a reduced rate at the request of the South African Council of Churches).

As Jackie Dugard and Kate Tissington reports in this morning’s Business Day:

The backyarders belong to Abahlali baseMjondolo, a national shack-dwellers’ movement with its base in Durban. They had occupied an empty piece of land in Macassar Village, on which they erected shacks, in mid-May. However, the City of Cape Town’s Anti-Land Invasion Unit, together with the police, demolished their structures and confiscated their materials.

Abahlali won the first phase of its battle when it secured an urgent interdict against the city , preventing the demolition of any shack or structure at Macassar Village without an order of court. It also compelled the city to return to the occupiers all building materials that were illegally confiscated. However, the city defied the interdict and continued demolishing shacks and confiscating building materials.

But in our lovely capitalist system, no good deed usually goes unpunished, so on 18 June Smith Tabata Buchanan Boyes received a letter from the city of Cape Town terminating all the city’s contracts for legal work with the firm. The letter from the director of legal services notes: “It has come to our attention that whilst acting on behalf of the City of Cape Town … you also acted for a third party against the city. The city is therefore terminating its mandate with your firm.”

This seems deeply disturbing to me and may have serious consequences for poor litigants and for the Rule of Law. One can concede – as Dugard and Tissington does – that there might well be instances where a direct conflict of interest would preclude a law firm, say, from representing a municipality in an eviction application while also representing the people under threat of eviction by the city.

Although in practice some law firms “choose sides” and act, say, either for employers or the unions, there would usually not be any conflict of interest merely because a law firm represents an organ of state (like the city of Cape Town) in other matters, while also representing a third party against that organ of state in an unrelated matter.

It seems suspiciously like the City of Cape Town has ”punished” a law firm for acting on behalf of poor litigants in a case against the city. This sets a dangerous precedent. What would happen if the national government follows the example of the DA-led city? Law firms will then have to choose between representing poor litigants who want to take on the state on the one hand, or receiving lucrative work from the state on the other. As firms have salaries to pay and directors to keep happy, they will mostly stop representing those who wish to enforce their rights or legal entitlements against the state and we would move even further away from the ideal of a country under the Rule of Law than we already are.

The DA is trying hard to convince us that it is not (only) the party of rich white privilege anymore and Helen Zille has been dancing and singing with black voters to show how compassionate and non-racial the DA has become. But voters are not stupid and during the election almost no poor black citizens voted for the DA. And a good thing too, because decisions like this by a DA-led city seems to confirm the worst fears about the DA and what it really stands for.

There is perhaps a bright light at the end of this tunnel. Given the fact that the ANC usually does anything that the DA does not do, it might well be that the ANC-led government will not follow the bad example of the DA-led city council and will ensure that just because a firm acts for poor people against the state would not mean that the particular firm will be blacklisted from doing work for the state.

Constitutionally Speaking: A (partial) victory for Joe Slovo residents

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Click here to read the judgment in word and here to read it in pdf.

A (partial) victory for Joe Slovo residents
Posted on June 10th, 2009 by Pierre De Vos

The Constitutional Court today granted an order for the eviction of Joe Slovo residents to far off Delft to facilitate the building of houses as part of the N2 Gateway Project. The fact that the court ordered the removal of people from their homes where they have lived for the past 15 years, will rightly be harshly criticised. It has failed to display the kind of “grace and compassion” one would expect of the self-styled champion of the vulnerable and dispossessed.

However, in a 220 page judgment (which I am still digesting) the court somewhat mitigated the hardship and trauma that the inhabitants of Joe Slovo will now endure, by ordering the respondents to allocate 70% of the Breaking New Ground houses (that is low-cost government housing available at low rentals) to be built at the site of Joe Slovo to the current residents of Joe Slovo; and those former residents of Joe Slovo who left Joe Slovo after the N2 Gateway Housing Project was launched after being requested to do so by the respondents or the City; and who apply for and qualify for this housing.

The Court therefore set aside the order originally granted by Judge President John Hlophe in the Cape High Court, which would have forced Joe Slovo residents to go and live 15 km outside the city with no guarantee of being accommodated in the new development. Seeing that the government had previously broken its promise that those removed from Joe Slovo would be accommodated in the newly built houses, this can be seen as at least a partial victory for the residents of Joe Slovo.

If the original order of Hlophe was followed, the vast majority of Joe Slovo residents would have permanently been removed from their homes close to the city and – apartheid style – would have been dumped in the bundoe where they would have been forced to live indefinitely. The land next to the N2 Highway along which dignitaries and visitors to the Soccer World Cup would have driven into the city to the 400 million Rand soccer stadium would have become home to middle class families while the poor residents of Joe Slovo would have been forgotten – unless until the next election.

Deputy Chief Justice Moseneke makes clear why the original order issued by Hlophe was so callous and unfair, stating:

I must emphasise that, on the facts of this case, I would have had great difficulty in holding that it is just and equitable to forcibly evict the residents of Joe Slovo and to relocate them far from their homes and modest comfort zones in order to give way to the construction of new subsidised homes in circumstances where the evicted residents would have had no reasonable prospects of satisfying their own dire need to access adequate housing. That eviction and relocation order [issued by Hlophe] would have made the residents of Joe Slovo sacrificial lambs to the grandiose national scheme to end informal settlements when the residents themselves stood to benefit nothing by way of permanent and adequate housing for themselves.

Today’s judgement remains perplexing though, because it condones a forced eviction of a large group of settled residents and endorses a government vanity project that seems to run counter to the government’s own housing policy which states that informal settlements should be eradicated through in situ upgrading where possible.

In this case the government has not shown why the informal settlement could not have been upgraded without removing the residents of Joe Slovo lock, stock and barrel. Some removals might have been necessary given the overcrowded conditions, but surely it would have been more humane to try and upgrade the settlement with the least disruption to the more than 4000 families involved?

I will have to study the judgment in more detail, but at first blush it seems to demonstrate how timid the court can sometimes be when it applies the reasonableness standard to evaluate the actions of the state. To my mind it does not seem reasonable, nor does it seem fair and just, to uproot a whole community for the sake of prettifying the major tourist access route to Cape Town.

At least the government will now be in contempt of court if it again breaks its promise to accommodate those removed in the newly built houses. Judging by its previous actions I suspect we have not heard the last of this matter.

Constitutionally Speaking: Irene Grootboom died, homeless, forgotten, no C-class Mercedes in sight

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Irene Grootboom died, homeless, forgotten, no C-class Mercedes in sight
Posted on August 11th, 2008 by Pierre De Vos

Irene Grootboom died last week, but we hardly noticed as we were all too busy obsessing about yet another court appearance of Mr. Jacob Zuma. She died homeless and penniless, not yet fifty years old, in the same week that robbers broke into the garage of ANC Youth League President Julius Malema’s upmarket home in Sandton and stole stuff from his C-Class Mercedes.

The ANC Youth League did not have time to issue a press statement about the death of Mrs. Grootboom. They were too upset about the break-in at the fancy house of Mr. Malema. Breaking into a C-Class Mercedes is apparently not a revolutionary act – especially if that C-class belongs to Comrade kortbroek Malema. Thus the Youth League did have time to pontificate on this break-in: who cares about a poor and destitute woman who made legal history if there is a revolution to be fought and a man of dubious ethical standards to be defended. The Youth League statement reads in part:

We hold a firm view that this dastardly act of cowardice is the work of desperate forces who believe they can intimidate us into submission. It is a sad day in our country to realise that we still have apartheid-style tactics where one’s residence is ransacked with impunity. We dare these forces of darkness to confront us openly in broad daylight. The Youth League condemns this act of cowardice in the strongest possible terms. An attack on leaders of the ANCYL is an attack on the ANCYL itself.

For me this juxtaposition seems to sum up much of what is wrong in South Africa (and with the ANC and the debate about Jacob Zuma) in 2008. Mrs. Grootboom made legal history when the Constitutional Court (those pesky counter-revolutionaries!) delivered judgment in a groundbreaking case that carried her name, giving some content to the right of access to housing guaranteed in article 26 of the Constitution.

Eight years ago the Constitutional Court ruled in Grootboom’s favour, saying that she and others living in an informal settlement on Wallacedene sports ground near Kraaifontein had a right to demand from the state to act reasonably to provide access to housing to all South Africans by devising and implementing a housing policy that did not neglect the most poor and vulnerable members of society.

Because the state’s housing policy did not cater at all for homeless people – those in urgent need – the Court declared the state’s housing policy to be unreasonable and thus invalid. But because it was careful to respect the separation of powers and because it feared that it did not have the institutional competence to dictate to the state exactly how it had to act to progressively provide more and more South Africans with better and better access to housing, the Constitutional Court found that Mrs. Grootboom could not demand a house from the state. She could only demand that the state act reasonably to implement a housing policy.

Implicit in the Court’s judgment was an assumption that the state really cared about people like Mrs. Grootboom and that, given some guidance, the government would eventually address the needs of Mrs. Grootboom and others like her. It assumed that the members of government would not spend its time fighting about positions and power, but would really try to help people like Mrs. Grootboom who had placed their names on housing waiting lists many years before in the hope of accessing housing.

Eight years later this assumption seems rather optimistic, to say the least. As the disastrous anti-poor N2 Gateway project has shown, the government often seems more concerned about what Sep Blatter and rich overseas visitors might think as they drive from the airport to the new R300 million 2010 soccer stadium, than what is best for the poor and homeless citizens of South Africa.

And aided and abetted by “revolutionary” judges like Judge President John Hlophe, the state’s housing policy now often seems to consist of attempts at removing destitute citizens from prime land close to job opportunities near city centres to far-away townships in order to make way for middle income houses for people with the necessary ANC connections to jump to the front of a housing queue.

Although many houses have been built by our government and many people provided with access to housing, the needs of the really poor and destitute – like Mrs. Irene Grootboom – still do not seem to be a priority for politicians who drive around in fancy cars and live in leafy suburbs among the despicable white racists they so enjoy to deride and whom they need to give legitimacy to their (mis)rule.

Mrs. Irene Grootboom was a true revolutionary. She put her trust in the law, our courts and in politicians to help her to get access to a house. But true revolutionaries hardly ever live happily ever after. Unlike the fake revolutionaries who steal our money and spew populist platitudes masquerading as concern for the people, true revolutionaries often die young, penniless and homeless.

Mrs. Grootboom’s death shames us all. Is it too much to ask that her death might galvanize us into re-focusing our attention on the real pressing problems facing South Africa – on poverty and the lack of opportunities facing many people like Mrs. Grootboom who do not know and could not care less about Jacob Zuma or Julius Malema or anyone else driving a Mercedes (or a Porsche)?

Naaah, I am obviously being naive. Who would care about a poor destitute woman when one has so much more important things to do – like getting into one’s C-Class Mercedes to go and give another revolutionary speech about how one would kill or die for a man who took more than R4 million in bribes from a convicted crook.

No compassion for people who do not drive a Porsche?

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http://constitutionallyspeaking.co.za/?p=489

No compassion for people who do not drive a Porsche?

Posted on March 11th, 2008 by Pierre De Vos

One would think that it would have been hard for Judge President of the Cape, John Hlophe, to order the forced eviction of 20 000 poor, black people from the Joe Slovo informal settlement. After all, when he was in trouble for taking hundreds of thousands of Rand from the Oasis company and then lied about the reasons for these “out of pocket” expenses, he presented himself as a champion of transformation and a victim of racism.

But I suppose now that he is safely back in the saddle and he can enjoy his ownership of a wine farm while driving in a shiny new black Porsche, he has forgotten the values of the Constitution that requires him to consider the human dignity of the poor people whose forced eviction he has now ordered. Who cares that the order will destroy this community and that the people now living close to work opportunities will be dumped in the gramadoelas in Delft?

Yesterday the judge President handed down a judgment in Thubelisa Homes and Others v Various Occupants and Others that seems to me completely devoid of compassion and also legally misguided because it essentially ignores recent decisions by the Constitutional Court, while purporting to follow them. Thubelisa Homes applied for the eviction order so that it could bulldoze the shacks next the the N2 before erecting shiny new homes where only a few of the original occupants of the informal settlement will ever live.

The starting point of the judgment is that the residence of Joe Slovo – who have been living on the land since 1994 and have been given tacit approval for living there by the authorities – are unlawfully occupying the land needed for a vanity housing project (the N2 Gateway project) and that it would therefore be fine to remove them to Delft because it would actually “undoubtedly [be] for the benefit of the residents of the informal settlement and in line with the Constitutional values”. These pesky residence just do not want to know what is good for them. Obviously bureaucrats and a judge driving a Porsche knows much better what is good for them than they would know themselves. After all they are only poor and black.

The judgment refers to an earlier Constitutional Court judgment in the Port Elizabeth Municipality case where justice Albie Sachs stated that a court should be reluctant to grant an eviction order against relatively settled occupiers unless it is satisfied that a reasonable alternative is available. Thus, Justice Sachs continued, the legislation expressly requires:

the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and to promote the constitutional vision of a caring society based on good neighbourliness and shared concern. The Constitution and PIE confirm that we are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy.

But the judgment then approvingly quotes from the Supreme Court of Appeal judgment (handed down by that champion of transformation, Harms ADP) in City of Johannesburg v Rand Properties (since overtaken by the Constitutional Court judgment two weeks ago!) to the effect that the Constitution does not give a person a right to housing at State expense at a locality of that person’s choice and concludes that it is fair and reasonable to dump the 20 000 Joe Slovo residence in Delft – even though it is 15 kilometers from Joe Slovo, far away from the city center of Cape Town.

This line of reasoning is perplexing, to say the least, as the Constitutional Court in the City of Johannesburg case in effect overruled the SCA judgment by ordering the parties to negotiate with one another and by implicitly accepting that it would not be humane or in conformity with a respect for the human dignity of the inner city dwellers to dump them at alternative accommodation 35 km outside of town. In that judgment Justice Yacoob stressed that the human dignity of those affected by removal must be respected and that their views must be heard.

This seems to imply that high handed and unilateral action by officials or judges telling people what is good for them will not suffice. A real and meaningful engagement is required and merely telling the people of Joe Slovo that it was in their own interest to be dumped in godforsaken Delft would not be good enough. What is sorely lacking in the Hlophe judgment is the “grace and compassion” that Justice Sachs spoke about.

For me what permeates the judgment is a complete lack of compassion for the plight of the Joe Slovo residence. There might be a case to be made to upgrade the Joe Slovo informal settlement, but then it should surely be done within the confines of the Constitutional values of dignity and respect. By repeating over and over that the Joe Slovo residence are living unlawfully on the land, the judgment seems to suggest that they are criminals who are thus less deserving of concern, compassion and respect.

It accepts that the government policy that would force most Joe Slovo residence to permanently live far away from their places of work is completely reasonable because the government says that it is reasonable. It emphasises the need for the court to respect the separation of powers and thus suggests that the court should take at face value assurances by the government that it would be better for Joe Slovo residence to be moved. It completely ignores the fact that the Joe Slovo residence do not think it would be better for them to go and live in the veld.

It is hard to argue that “elements of grace and compassion” animate the conception of reasonableness in this case. It suggests that it is perfectly acceptable for the state to forcibly remove a large group of people who have been living on a piece of land for thirteen years merely because the government of the day has decided this is what needs to happen.

Maybe I am too harsh on the judgment, but it seems to me that given our history in which the apartheid government forcibly removed people at the drop of a hat, courts should be extremely sensitive to give eviction orders where such a large group of people will be moved and their lives disrupted for ever. In this case there is a complete absence of this historical perspective.

To my mind it once again shows the difficulties of judicial transformation and poses questions about what kind of judges we need on the bench. Surely real judicial transformation requires judges who are sensitive to the needs of the poor and destitute and at least an honest engagement with their fears and complaints. In this judgment there is a complete absence of such engagement and the Joe Slovo residence and their needs are completely ignored. They are treated as recalcitrant individuals standing in the way of the government housing programme and their needs and wishes are completely ignored.

Before the law they have once again become invisible. They are not treated as individual human beings with feelings and needs but merely as a problem to be dealt with. What we need are more judges who really wrestle with the very difficult issues presented by gentrification of informal settlements and the real hurt and pain of forced removals. This is what the Constitution – as interpreted by the Constitutional Court, not the SCA – requires.

Perhaps this is too much to ask of a judge who might experience this informal settlement on the N2 as an eyesore and a stumbling block to progress – even as he speeds to his wine farm in his shiny Porsche.