More chiefs, but where’s the service delivery?

I was given a little booklet by Statistics South Africa entitled Stats in Brief 2009, and a very useful little document is is too. Hardly bigger than a Kindle screen, it contains in its 200-odd pages a wealth of statistical data on South Africa, from economic statistics to tourism figures. All the data in this little book is also available on Statistics South Africa’s website, but the book format, with its ease of moving between pages/sets of data, somehow enables you to make connections that are much more difficult to detect while navigating the web. For journalists, it is a veritable treasure trove of potential stories.

For example:  on Page 64, you’ll find that there has been no virtually no job growth in the Eastern Cape province over the past nine years. Turn the page, and you’ll notice that there has been about 47% growth in one particular job category: legislators, senior officials and managers. Mmm. Thumb through to the section on municipal expenditure and – my, oh my – the Eastern Cape province spends more on municipal councillors’ remuneration than any other province save KwaZulu-Natal, which has about a third more people. In percentage terms, the Eastern Cape muncipalities devoted 4.4% of their expenditure to councillors’ salaries in 2008, compared with a mere 0.8% in Gauteng, and up from 2.8% in 2001. Now if service delivery only improved at a similar rate…

Kudos to Stats SA for making this sort of informaiton available in such a user-friendly format.

ANC’s Mantashe suggests the Press Ombudsman is biased. In fact, he’s been rather kind to the government.

African National Congress (ANC) secretary-general Gwede Mantashe has resurrected the idea of a statutory tribunal to police the media. According to a report in Business Day, he accused the media of “negativity” in their coverage of the ANC government and said the Press Ombudsman is unable to deal effectively with unethical journalism, which he claimed was “very prevalent”.

I don’t think we have to worry too much about this; a statutory media council would be too gross an infringement of media freeom to pass constitutional muster. Be that as it may, Mantashe should be called to account. What exactly does he mean by “negativity”? Reports about failures of service delivery? About corruption? And can he give examples to support his blanket statement that “self-regulation does not work”? Mantashe states that the current Ombudsman cannot fairly adjudicate complaints against the press because he is a former journalist, making him inherently biased. But is that the case? In fact, the evidence suggests the opposite.

I did a quick analysis of Press Ombudsman rulings over the past three years, and found only five cases in which the ANC, the government or a senior government official submitted a complaint to the Ombudsman. Two of those were upheld, two were partially upheld, and one was dismissed on appeal. Hardly evidence of pro-press bias!

If Mantashe and his party have genuine grievances about press coverage, perhaps they should make use of the Press Ombudsman’s complaints mechanism before declaring that it doesn’t work. They may just be surprised.

Mail & Guardian wins victory for press freedom

Mr Justice Mayat turned down an application for an interdict to muzzle the Mail & Guardian. The application was brought late last night by a Muslim organisation when it learnt the newspaper was publishing a cartoon depicting the Prophet Muhammad (see my previous post on this). As a judge and Muslim, Judge Mayat said, he was bound by the Constitution (see M&G editor Nick Dawes’  Twitter feed). Good decision by a principled judge.

Not a great day for freedom of speech…

This from Die Burger (via Legalbrief):

Freedom of speech is central to a stand-off between a Cape Town art gallery and a national company which has demanded that one of the artworks be removed. According to a report in Die Burger, Pam Golding Properties has demanded the removal of the artwork ‘Hated Communities’ by Richard Mason. Pam Golding has also sought an undertaking that the Association for Visual Arts gallery will not attempt to sell the piece. The gallery’s director, Kirsty Cockerill, said they will not be censored. The artwork was removed, but replaced with Pam Golding’s letter on the wall. The report says the artwork depicts a notice board resembling some of the attributes in Pam Golding’s logo. It is made out of perspex with a light shining from within. Mason has similar ‘satirical’ artworks focusing on Pick n Pay, BP, Woolworths and Walt Disney. An art reviewer described the work as satire with ‘commercial, political and religious propaganda’. ‘Artists don’t have the time or money to get involved in bitter legal battles with big companies. The companies can bully artists into silence,’ Cockerill said.

Shame on Pam Golding. And shame on the art gellery too,  for caving in after saying they won’t accept censorship. They have the law on their side – remember Justin Nurse and SAB? – so why not take a stand?

More trouble. This from IoL (also via Legalbrief):

An interdict was served late last night against the Mail & Guardian and its editor Nic Dawes after publishing a cartoon by Jonathan Shapiro (Zapiro) depicting Prophet Muhammad, says a report on the IoL site. Dawes said the cartoon depicted Prophet Muhammad lying on a couch speaking to his psychiatrist. ’The cartoon picks up on the Facebook group which encouraged people to send pictures of the Prophet.’ He said when the first newspapers were distributed, he received a call from attorney Yusuf Ismail, stating that further distributions should be halted. ‘At that time I could not stop further distributions, and I would not have,’ said Dawes, according to a report in The Mercury. He said an interdict was then served and handled by Judge Mayat at the Johannesburg High Court last night.

Come on, I thought we were over this! At least I got my M&G in the post box this morning. The Eastern Cape batch must have been on the plane before the interdict was granted.

PS. Mmm. The cartoon is still on the website too. Good on you Nick.

cartoon

NYT’s Norris transforms humdrum market story

What a great example of financial writing from the New York Times’ Floyd Norris, who lifts the normally humdrum market story to new heights:

Combine one part nervous traders, one part Greek crisis and one part trader error. Stir in one part central bank complacency. Bring to boil. Panic.

Read the full story here.

In defence of Julius Malema’s right to free speech

I believe in freedom of expression. Our Constitution protects the right to freedom of expression. That is why I cannot welcome the Equality Court’s ruling that Malema was guilty of hate speech when he commented on the young woman who had accused President Jacob Zuma of rape.

Please understand that I am not defending Malema. I am defending his right to freedom of expression, which is also mine and yours and which means nothing if it does not include the right to say things that offend other people.

This is what Malema said: “Those who had a nice time will wait until the sun comes out, request breakfast and ask for taxi money. In the morning, that lady requested breakfast and taxi money.”

He made his comment after Zuma had been acquitted of rape – so in the eyes of the law, the woman is not a rape survivor –  but the words are nonetheless grossly offensive in the context of a society in which rape occurs frequently and survivors who get their day in court are often called upon to justify their sexual behaviour. 

But do his words constitute hate speech?

Hate speech is defined in the Constitution as “advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm” (my italics). Malema’s words were undoubteldy undoubtedly hurtful to many people. They may, at a stretch, be construed as “advocacy of hatred” based on gender. But did they constitute incitement to cause harm? I think not. And so, offensive though the words were to our sensibilities, they should be protected by the the Bill of Rights.

The Promotion of Equality and Prevention of Unfair Discrimination Act, under which Malema was charged and convicted, has, however, complicated issues by adopting a far wider definition of hate speech than the Constitution. The Equality Act (for short) defines hate speech as words “that could reasonably be construed to demonstrate a clear intention to be hurtful, cause harm or promote hatred on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth’.

Many legal commentators have argued that this definition is unconstitutional because it is too wide in its application. The constitutional definition applies to only four grounds: race, ethnicity, gender and religion. The Equality Act criminalises hate speech on seventeen grounds. Furthermore, the Constitution requires an intention to cause harm. The presence or not of intention That is an objective fact: in the absence of such an intention, words cannot constitute hate speech.

The Equality Act, however, requires only that words could be construed as having the intention of being hurtful, harmful or hateful to constitute hate speech, regardless of the actual intention of the person who utters them. This conjures up, as one legal commentator noted, an image of highly sensitive individuals using the Equality Act to insulate themselves inside their own intolerant world. In Malema’s case, many people would undoubtedly construe his words as having the intention to be hurtful, and that explains his conviction of hate speech in terms of the Act. But what are the implications for us as a free society?

Am I to be denied the right, for argument’s sake, of criticising to criticise Jacob Zuma’s prediliction for polygamous marriages because that may be hurtful to people who subscribe to a particular culture? Is it verboten to publish a picture of the Prophet Mohamed because that would be hurtful to Muslims, or to teach evolutionary theory because that offends some Christians?

The hate speech provisions o f the Equality Act have not yet been tested in the Constitutional Court. Perhaps this would be an opportunity. It would be a good test of how seriously we, as South Africans, take our right to freedom of expression.

PS. Times editor Ray Hartley expresses a similar sentiment on his blog.

PPS. So does Tim Cohen in Business Day.

PPPS. So does constitutional expert Pierre de Vos on his blog Constitutionally Speaking.

PPPPS. David Watson has a different view.

PPPPPS. Eusebius McKaiser in Business Day makes my point exactly.

PPPPPPS. Mmm. The above are all men…

McBride defamation judgment is a step backward for press freedom

Harvey Tyson, a former editor of The Star, memorably remarked that editing a newspaper during the dark days of the emergency legislation was like “walking blindfold through a minefield”. The job may be slightly easier these days, but the Supreme Court of Appeal’s judgment in Robert McBride’s defamation case against the Citizen illustrates that some of those landmines are still out there. News media had better tread carefully.

McBride, the former Ekurhuleni police chief, won R150 000 in damages, plus most of his legal costs, from the Citizen for calling him a murderer, a criminal and unfit to be appointed as police chief. The ruling sets off alarm bells for several reasons. For one, it is one of the largest-ever damages awards for defamation in South Africa, and together with legal costs would prove crippling to many a news organisation (if not for the Citizen). It is sure to have a chilling effect on future news reporting and commentary. Secondly, in rejecting the Citizen’s appeal against a High Court ruling, the SCA in effect ruled that it is defamatory to refer negatively to the past actions of someone who has been granted amnesty for those actions by the Truth and Reconciliation Commission. That could make it very difficult to report and comment on the activities of people who were involved in human rights abuses during apartheid, and received amnesty.

Does our Constitution protect polygamy? I don’t think so.

I agree with columnist Justice Malala that polygamy is a selfish and predatory practice – but is it, as it now seems widely believed, a constitutionally protected practice?

I am not a constitutional expert, but I can read, and I can’t find any reference at all to polygamy in the constitution. What the constitution does is to protect cultural practices that do not clash with other protected rights in the Bill of Rights (see Section 30). In other words, you may live according to your culture, as long as you do not trample on the rights of others.

Polygamy was legalised by the Recognition of Customary Marriages Act of 1998. But the mere fact that the practice of polygamy (and polyandry) is given legal status by statute does not mean that it is constitutionally acceptable. No aspect of the Recognition of Customary Marriages Act has , as far as I can ascertain, been challenged in the Constitutional Court. In my view, a strong case could be made the polygamy constitutes unfair discrimination on the basis of gender (especially in forms which grant different hierarchical status to wives).

Perhaps a constitutional expert out there would care to comment?

No Mr President, it is not unconstitutional to criticise your culture

President Zuma has called for a national discussion about our “moral code” as a nation because, he says, it is unconstitutional to judge others by the standards of one’s own culture.

“Each one of us must be respected,” Zuma said, according to News24.com. “That’s what our Constitution says. No matter how you feel, some of us have very strong feelings about some of the things, but we respect the Constitution, no matter how we feel… It is about redefinition of ourselves. Who are we? What are our values?

“For, there is no standard that is agreed. The Constitution says there are diversities. It recognises this. And that we should respect cultures of others.

“No-one has a right, therefore, to use his or her own to judge others. It’s unconstitutional if you do so.”

In one sense, I agree with the president. There is a tendency among some South African and foreign observers to judge African behaviour by Western standards, and to belittle some apsects of African culture. We should respect cultural differences. But when Mr Zuma argues that it is unconstutional per se to criticise the cultural practices of others, he is wrong (and I suspect the fact that his own so-called cultural practices have come in for severe criticism has something to do with his this).

Billions of rand later, Old Mutual may be returning to its roots

So Old Mutual has slapped a for-sale sign on its US business. Speculation is rife that the insurer may also offload its European business Skandia, to concentrate on expanding its presence in Africa.

Wouldn’t that be a rich irony? After pouring billions of rand down the drain in disastrous overseas ventures, the geniuses who run Old Mutual may find themselves back where they started: at the helm of a (highly profitable) South African life insurer.

The share price tells the story: reacting to the news of the planned sale, it jacked up more than 3% to R13.22, what it was at the IPO. If you bought Old Mutual shares five years ago – in the midst of one of the biggest market booms in history – you would still be down 10% today. If you’d bought Sanlam, which chose to stay in South Africa, you’d be 85% better off.