Dewani would get a fair trial in South Africa

The Dewani murder case has been dominating headlines for weeks now and the latest “twist” in this saga is the publicity campaign to impugn the integrity of the South African judicial system.  The crusade by Dewani’s publicist and supporters against the South African judicial system is malicious, manipulative and unfortunate and their claim that Mr Dewani would not be given a fair trial in South Africa is, in my view, without merit. 

It is equally unfortunate, and very disappointing, that Adv Paul Hoffman, of the Institute for Accountability in Southern Africa, is apparently assisting the Dewani cause by adding fuel to their fire.  While some of the concerns Hoffman raises are true, they are not entirely relevant to whether an accused can expect a fair trial in South Africa;  and as he is a senior lawyer I believe we should be able to expect a more accurate and objective response from him.  In various newspaper articles Adv Hoffman is quoted as referring to the Fred van der Vyfer case and as having cited “several cases in which police work had been questionable”. 

The fact that the police are being sued for malicious prosecution by Fred van der Vyfer does not mean that Dewani would not get a fair trial in South Africa.  On the contrary, the fact that Van der Vyfer was acquitted of murder charges, despite the work of the police, and is then able to sue the state in the civil courts supports the fact that South Africa has an independent judiciary and supports the probability that Dewani would get a fair trial, regardless of what the police do.

Furthermore, the suggestion by Hoffman that a trial could be prejudiced because Judge Hlophe allocates the judge to preside over it is absurd and borders on paranoia. Judge Hlophe’s integrity and reputation may have been damaged by his prior conduct and the investigations by the Judicial Services Commission, but Hoffman’s suggestion that Hlophe’s allocation of a judge to hear the Dewani matter could thus lead to an unfair trial very unfairly, and unnecessarily, impugns the reputations of the other judges serving on the bench. 

At this time, when a well orchestrated campaign is being waged by a highly effective publicist under mandate from a well-resourced accused, which could thwart the judicial process, South Africa requires calm and objective voices.  Despite the problems with the South African criminal justice system there is no reason to doubt that an accused will get a fair trial in our courts.

“I disapprove of what you say, but I will defend to the death your right to say it” (Voltaire): A case against the Media Tribunal

A lot has been said and written about the ANC’s proposed Media Tribunal.

 The ANC has positioned much of its motivation for, and defence of, the proposed Media Tribunal on the unfairness of the press.  President Zuma indicated in Parliament (8 Sept 2010) that the media has been “overstepping the boundaries” and that the printed press was unable to make a “distinction between the respect of the dignity of other people and the manner in which they were reporting”.  He indicated that the ANC was concerned about “when the media reports about individuals and citizens you will see huge headlines…when they discover their report was in fact erroneous…their apology will be hidden somewhere in a little column”.  President Zuma emphasised the point by saying “this is not fair to an individual whose country has been told that this person did this and the media then discovers they made a mistake”.

 The gist of the President’s argument has been made by others and is also captured in the ANC’s Discussion Document: Media Transformation, Ownership and Diversity where it says a “cursory scan on the print media reveals an astonishing degree of dishonesty, lack of integrity and lack of independence.  Editorials distancing the paper from these acts and apologies which are never given due prominence and mostly which has to be forced through the press ombudsman are not sufficient in dealing with this ill”.

 The South African Press Code is the guiding document, capturing the media’s commitment to certain values, in the interests of a free press.  The Code preambles that “the primary purpose of gathering and distributing news and opinion is to serve society by informing citizens and enabling them to make informed judgements on the issues of the time…” and that “freedom of the press allows for an independent scrutiny to bear on the forces that shape society”. 

 The media makes several commitments in this Code, including that the news will be reported “truthfully, accurately and fairly” and that it will be presented in “context and in a balanced manner, without any intentional or negligent departure from the facts”.  The Code also requires that the accuracy of a report should be verified where possible and that the “publication should seek the views of the subject of serious critical reportage in advance of publication”.  Where the press breaks these rules the Code provides that the Press Ombudsman and the South African Press Appeals Panel will deal with the complaints.

Over the past few weeks I have been at the receiving end of media reports which I regard as unfair and in breach of the Press Code – each of these articles appeared in the Cape Times. 

 On the 28^th October 2010, under the headline “Sins of the (city) fathers laid bare”, the newspaper reported on a debate in council arising from my, and another councillor’s, application in terms of Article 8 of the Councillors Code of Conduct.  The Councillors Code of Conduct requires that full-time councillors obtain the consent of council to “undertake other paid work” (with the proviso that such consent may not be unreasonably withheld).  The newspaper report focussed on the comments made by an ANC councillor during the debate and the article alludes to Satanism, sex scandals and greed.  A photograph of me appears, with the article, under which the caption “Cash Love” was printed.

 I have a number of complaints about this article and I believe it breaches the Press Code in a number of respects. The headline implies I had done something wrong (“Sins of the fathers…”); the article failed to provide the full context of the application I had made; the article was not balanced by the comments made by DA Councillors in support of my application; the journalist did not ask for my views or comment before publication and; the caption under my photograph was misleading.

Then on the 1^st November 2010 in a report under the headline “Plato queried about Pricey overseas trips”, the Cape Times writes about another debate in the Council Chamber – this time regarding overseas travel by council officials.  The report claims that an ANC Councillor “singled out mayoral committee member Brett Herron for constantly going overseas”.  I have complaints about this article too.  In the first place, the ANC Councillor did not say what was reported. More importantly, I am not constantly going overseas and in fact I have never travelled overseas on Council business, or coffers.    In my view the news article failed to report accurately and truthfully and intentionally or negligently departed from the facts.

A less personal example, although I am linked by the journalist to an angle the story takes, is contained in an article that was also published on the 1^st November 2010, under the headline “Fears after pensioners told to leave resort”.  This article concerns the City of Cape Town’s decision to upgrade the Millers Point Resort and to make it more accessible to the public.  In order to achieve this, the City has decided not to renew the leases which allowed a handful of people to occupy the resort.  The journalist made racial issues the focus of the story and implied that the racially based allocation of the leases, during apartheid, was the basis for the City’s decision.  The decision to terminate these leases had nothing to do with their historical allocation and is entirely about the upgrade of the resort and making it accessible as a public amenity.  In this article the newspaper failed to report the news truthfully, accurately and fairly.  It also failed to present the news in context and in a balanced manner.

Is there any truth to the ANC’s complaint?  Is the media conducting itself according to its code?  If the press is guilty as charged is the Media Tribunal the right response?

All of these articles, printed within a few days of each other, appear to contain several breaches of the South African Press Code and in my view they were also unfairly and unnecessarily damaging to my reputation.  I responded to the two more personal articles.  The newspaper printed a very small retraction of the allegations about my “constant” travelling, but failed to print my response to their “cash love” story.  The articles appeared to be driven by an agenda to exploit an opportunity for something scandalous, sensational or controversial – at the expense of truth, context and balance.  In the process the newspaper seems to have abandoned the guiding Code which commits the press to gathering and distributing news and opinion to enable citizens to make informed judgments.  The newspaper also appears to live up to the ANC’s accusations of acting unfairly towards an individual and perhaps even of acting dishonestly and without integrity.  The paper certainly lived up to the accusation that the press’s apologies and retractions are always insufficient!

My experience over the last few weeks confirms, for me, that there is some truth to the ANC’s complaints about the manner in which the press reports – whether an inaccurate or poorly contextualised report is a result of dishonesty, recklessness or negligence – the potential damage is enormous and the reparation insufficient.  Does this mean that we now need a Media Tribunal, created by and accountable to Parliament?  Definitely not!  

The ANC is not entirely honest when it claims it is motivated by a desire to protect people from media reports that harm their reputations.  The truth of the matter is that most people will live their entire lives without being mentioned in a media report, let alone being the subject of a report.  So when the ANC claims to be looking after the interest of the millions of individuals that make up the public they are really hiding behind these people in order to protect their elite from media scrutiny.  Enough has been said and written about the ANC elites’ connection to corruption, “tenderpreneurs” and lavish lifestyles, for ordinary South Africans to know that the ANC is not concerned with how the media treats them but rather with shutting out the seemingly endless bad press the ANC gets.  Their additional concern, that it is unaffordable for those who are defamed by the press to commence litigation, is also quiet laughable.  More often than not, those who might have a claim against the media for defamation are the elite who hold high public office, are deployed to well-paid public positions, or are well-connected business-people.  They can quite easily afford a defamation case.  The question is why they don’t sue more often.

Freedom of expression, including freedom of the press and other media, are our fundamental innate human rights.  They encompass your and my rights to receive and express information and ideas.  The ANC has attempted to make this about the conduct of the media and their response is punitive.  Their response is another revelation of their deep-seated lack of understanding of human rights issues, notwithstanding their claim that they should be trusted on this issue since they fought for these rights in the first place.

Hlumelo Biko, an apologist for the Media Tribunal, wrote in BusinessDay (“South Africa: Media Tribunal Should Protect the Week”, 17 September 2010) that “the current uproar relates to the rights of journalists to have freedom of expression and speech…ordinary citizens’ rights to protect their ability to generate an income have by default been subordinate to those of members of the press”. He also says that “Our constitution needs refinement”.  Biko and the other proponents of this Tribunal miss the point. The human rights embodied within freedom of expression are not the rights of journalists they are the rights of every human-being in the world and every citizen of this country.  The media exercises and expresses those rights on our behalf.  Furthermore the Constitution does not bequest those rights to us – it merely protects them.  “Refining” the constitution will not remove our rights of Freedom of Expression – it will simply deny our rights protection from the state and position South Africa with other rogue states with poor human rights records.

So,  whilst it may be true that the media sometimes breaks its own code and reports news unfairly, inaccurately or even dishonestly, as I have experienced, the ANC’s sledge-hammer response is a danger to our democracy and would amount to an infringement of our right of freedom of expression.  It was Voltaire who said “I disapprove of what you say, but I will defend to the death your right to say it”.  Mature, benevolent democrats would take the same position.

It was Thomas Jefferson who said that our “liberty cannot be guarded but by the freedom of the press, nor that be limited without the danger of losing it”.  The ANC has taken a forked path to undermine our access to information and to shut down our fundamental right to a free press – the one route being some of the proposals contained in the Protection of Information Bill and the other, equally treacherous route, is the proposed Media Tribunal.  The Protection of Information Bill is currently being haggled over in Parliament.  The Media Tribunal is lurking in the wings.  Individually these steps are a blow to our democracy.  Together they are devastating. 

People who are offended, defamed or reported on inaccurately by the press need to exert their rights to complain. The Press Council has already indicated that it is reviewing its constitution and complaints mechanisms with an aim to strengthening these.  And the truth is that the laws of defamation provide adequate protection and a successful damages claim is punitive enough.

Cape Town cruel to demolish backyard homes one week before possible policy shift

Today I was asked to assist a family that lives in the backyard of a council flat in Scottsdene in the northern suburbs of Cape Town.  Last night they were given seven hours notice to demolish the wendy house home they were building in the backyard of a council flat, failing which the City’s Anti-Land Invasion Unit would demolish the structure.  The backyard structure would be one of tens of thousands that house hundreds of thousands of people in backyards – these people are known as Backyard Dwellers.  People are living in backyards only because there is a severe shortage of housing in the City and given that the City’s best case scenario for breaking the housing back-log is 18 years (if we can build 38 000 homes a year – and last year we only built 8000 which was our best effort to date) it is highly likely that thousands of people will live their entire lives in these backyards.

My visit to the family was of little help – by the time I got back to my office and had started making calls to see if I could prevent the demolition of the backyard structure the City’s Anti-land invasion unit had destroyed the house and had fired rubber bullets at the crowd of residents that had gathered in solidarity with the family.

The shocking part of this brutal and cruel act is that next week, on the 24 February 2010, the City will host a workshop for councillors and officials to discuss backyard dwellers – with a view to possibly changing City policy towards backyard dwellers. Backyard dwellers live in the most vulnerable conditions and are the most marginalised people – current policy does not recognise them as entitled to basic services such as water and sanitation – but assumes that they access basic services from the main dwelling.  Given that the main dwelling is probably occupied by a family that can ill-afford their own services it is unlikely that they can afford to share these with the family in the backyard. It is for this reason that I submitted a motion to the Housing Committee that the City provides basic services to backyard dwellers; and this motion is one of the reasons for the workshop next week.  It is very likely that the workshop will consider ways to regularise backyard dwellers and to provide them with some access to basic services.

In this case the structure in her backyard, that has now been demolished,  was to accommodate the tenant’s recently married daughter and son-in-law who have no-where else to live.  There is another structure in the backyard that already accommodates her son and his family.

I do not believe that the City should be destroying these structures given that there is serious consideration for a change in policy which might well see backyard structures regularised and being provided with some services.  In this particular situation the backyard structure would have accommodated an immeadiate family member of the tenant in the main dwelling – which I think is a situation the city should be encouraging, as far as possible, since in these over-crowded conditions it must be preferable that it is a family sharing the space. In any event, I believe a moratorium on these demolitions makes sense given that we are re-looking at the backyard dweller situation – to demolish this week and decide next week to regularise makes no sense and is simply cruel.

The motion I submitted to the Housing Portfolio Committee in September 2009 proposes that:

This Council initiates, develops and adopts a comprehensive policy in respect of the provision of basic services such as water, toilets and electricity to so-called “backyard dwellers” and that the Housing Portfolio Committee urgently set up a special workshop in order to discuss and formulate the framework for such a policy

Khayelitsha open-air toilet “deal” is ludicrous!

Open air toilet in Khayelitsha

Cllr June Frans stands next to one of the open air toilets in Khayelitsha. Their position right next to the road is very clear.

Over the past week toilets installed by the City of Cape Town in Khayelitsha have made headlines in South Africa, and have been featured in the press in other parts of the world, since the ANC Youth League reported the City to the Human Rights Commission (HRC) for gross abuse of human rights.  The complaint to the HRC is based on the City installing these toilets without walls or roofs – open air toilets – thus impugning the dignity and privacy of the residents.  The City has claimed that the toilets were installed without enclosures with the agreement of the community (and ward councillor) – claiming that the community agreed to enclose their own toilets if the City built one toilet per household instead of the planned one per five households.

On Tuesday (26 January 2010) I visisted the informal settlement in Khayelitsha, accompanied by fellow ID Councillors June Frans and Cynthia Clayton.  We went to speak to the residents and to inspect these toilets for ourselves.  The impact of a row of toilets, outside the shacks, right along the side of the road without any enclosures was shocking.  There is no way these toilets could be used, day or night, with any privacy.  We spoke to some of the residents and they were completely unaware of this agreement with the City and  seemed somewhat bewildered by the installation of these toilets without enclosures.  Some of the residents had enclosed the toilets themselves – with corrugated iron sheets and other materials – while some were unable to afford to do so.

On Wednesday 27 January 2010 I asked that a full report on the matter be presented to the City of Cape Town’s Housing Portfolio Committee, on which I serve, at the next meeting – which is Monday 1 February 2010 – so that this decision to build these unenclosed toilets can be interogated and understood.  I do not wish to prejudge the contents of that report but I have very strong reservations about the City entering into, or negotiating, an agreement  like this  with a poor and vulenerable community.  It is, I believe, a ludicrous deal and the results we are now dealing with should have been obvious and foreseeable. It is also shocking to learn that now that a complaint has been laid with the HRC, the City has been able to offer to enclose the toilets or to provide second-hand building material to enable residents, who have not yet managed to enclose their toilets, to do so.  It raises the question as to why this wasn’t offered in the first place!

Its about time Cape Town provided services to backyard dwellers

Empowerdex recently released its Munidex – a municipal service delivery index based on a comparison of data from the 2001 census with the 2007 community survey.  According to the index Cape Town is rated the best metropolitan municipality in terms of service delivery.  For the City’s politicians and officials this is an encouraging endorsement of the fact that the City is making strides in its service delivery levels.  However, given that the city received a high 92% for provision of sanitation and an equally high 90% for provision of water, and considering the stark reality of those not serviced or under-serviced,  one can wonder how accurate the index is and whether the measure adequately interrogates the full delivery picture.

Washiela Jackson lives in a wendy-house in a backyard of a council flat in Hanover Park.  Washiela is 40 years old and a single mother of five children (aged 15 to 3 years old).  She has been living in this wendy-house for the past 12 years and has been on the Housing Waiting List since 1996.  Her wendy-house is closely neighboured by similar structure, which in turn is neighboured by another, and so it goes on.  These structures, all closely situated next to each other, are squeezed into the back-yards of council-owned flats, and Washiela and her neighbours are what are commonly referred to as “back-yard dwellers”.  The City of Cape Town is estimated to have 150 000 backyard shacks – mostly wendy-houses or informal structures – throughout the peninsula in yards that are part of council-owned residential units or on privately owned properties. 

Washiela and her family have no direct access to basic services such as water, sanitation and electricity. Her electricity is supplied by a neighbour using an extension cord that runs from the neighbour’s flat through rooms and windows and, slightly above head-level, over a pathway and into her structure.  She also receives water from a neighbour and has rigged a hose from a tap in the neighbour’s flat to her wendy-house.  When it comes to basic sanitation facilities, like the toilet, Washiela and her family have to knock on doors to find a bathroom they can use – their only option is to wander the streets trying to find a neighbour who is at home and willing to allow them to use the toilet.  Washiela’s daily circumstances are not unique to her and her family – hundreds of thousands of Capetonians live this every single day – and have done so for many years.  We have all experienced temporary interruptions of services and so it is not difficult to imagine how trying it must be to live without access to basic services for years and years.  Given the housing backlog and the slow rate of housing delivery – and the fact that the best case scenario for breaking the backlog is 18 years if the City is able to deliver 38 000 housing units a year (and our best delivery rate so far is approximately 9000 units in a year) – the prospect of relief from these conditions, in the short-term, is bleak and so these living conditions should not be regarded as temporary.

There are several national and local government policies in place that are aimed at ensuring that all South Africans receive basic services, and that those who are poor receive some access to these services free.  The Constitution, which is perhaps the motivating source document for some of these policies, provides that everyone has the right to water.  The National Strategic Framework for Water Services provides that all people were to have access to a functioning basic water supply by 2008; and that all people are to have access to functioning basic sanitation by 2010.   

The framework provides that a basic water supply facility is “The infrastructure necessary to supply 25 litres of potable water per person per day supplied within 200 metres of a household … (in the case of communal water points) or 6 000 litres of potable water supplied per formal connection per month (in the case of yard or house connections)”. 

A basic sanitation facility is defined as “the infrastructure necessary to provide a sanitation facility which is safe, reliable, private, protected from the weather and ventilated, keeps smells to the minimum, is easy to keep clean, minimises the risk of the spread of sanitation-related diseases by facilitating the appropriate control of disease carrying flies and pests, and enables safe and appropriate treatment and/or removal of human waste and wastewater in an environmentally sound manner.”  The provision of a basic sanitation service is “The provision of a basic sanitation facility which is easily accessible to a household, the sustainable operation of the facility, including the safe removal of human waste and wastewater from the premises where this is appropriate and necessary, and the communication of good sanitation, hygiene and related practices.”

The City of Cape Town’s Water Services Plan incorporates the National Framework targets.  The City’s plan is to achieve the basic sanitation supply target by 2012 (with a target of 70% achievement by 2010) and it claims to have already achieved the basic water supply target in 2005/6. While the City has made significant progress in providing these basic services to informal settlements and, to a lesser extent, to those in rural parts of the city, it is not entirely true that it has achieved 100% of the water supply target – the City has failed the backyard dwellers dismally and has not provided (or planned to provide) these services to them.  The City, in terms of policy, assumes that the backyard dweller accesses these services from the main dwelling.  This is a legalistic but false assumption. It may be legally true that the backyard dweller is a tenant (or sub-tenant) and so should access services from the main dwelling but the reality is that, as illustrated by Washiela’s story, backyard dwellers are at the mercy of their neighbour’s goodwill, good mood or presence at home for access to these services. Furthermore, backyard dwellers are most often living in the yard’s of those who are only accessing the free basic service – which can be, in the case of water, a restricted service.  Sharing this limited service is therefore an extra burden that they most often cannot afford. 

In essence, the City’s assumption that “Backyard dwellers (are) considered to be serviced from main dwelling” marginalizes a very large and already vulnerable group of citizens.  It is a grossly unfair and inhumane attitude and is possibly unconstitutional.  The long term goal is clearly to ensure that all South Africans have a dignified home.  Given the housing backlog and the pace of housing delivery it is essential that the City adopts a more realistic policy to ensure that in the interim everyone has access to basic services.  This will mean abandoning the assumption with regards to backyard dwellers and extending basic services to every house-hold, including those in backyards. In September I submitted a motion to the City’s Housing Portfolio Committee calling for the City to adopt a new policy that will see backyard dwellers being given access to basic services, including water and sanitation.  This motion has been sent to the City’s Legal Services department and to the Utilities Portfolio Committee for consideration also.  Formulating, adopting and implementing such a policy will go a long way towards achieving the National Framework’s vision which is “Water is life. Sanitation is dignity”.  More importantly, it will bring some relief from extreme hardship to hundreds of thousands of our City’s citizens and help reduce some of the burden of poverty and improve human health.  It is the right thing to do and it is long overdue.

 

 

 

 

Brett Herron CIVIC DUTY

Brett Herron is a lawyer involved in legal skills training. He serves as a Councillor in the City of Cape Town representing the Independent Democrats. This blog includes commentary on the issues and politics of South Africa and the City of Cape Town. The views expressed are not necessarily the policy positions of the Independent Democrats.