READING LIST

Alberico Gentili Lectures April 2018

Justice Edwin Cameron

1. General Background

*Heinz Klug, The Constitution of South Africa, Chapter 8 (pp 1-12)

*South African Bill of Rights (pp 13-28)

Summary and excerpts of Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others (1996) (pp 29-35)

Christof Heyns and Danie Brand, Introduction to socio-economic rights in the South African Constitution (pp 36-42)

*Edwin Cameron, Justice, Chapter 7 (pp 43-48)

2. LGBT

Eric Christiansen, Substantive Equality and Sexual Orientation: Twenty Years of Gay and Lesbian Rights Adjudication Under the South African Constitution, 49 Cornell International Law Journal 565 (2016). Skim sections I-III (pp 49-74)

3. HIV

Thabo Mbeki, Mbeki addresses AIDS denialism criticism, Mail & Guardian 7 March 2016 (pp 75-79)

*Minister of Health and Others v Treatment Action Campaign and Others (2002) (pp 80-120)

*Edwin Cameron, Witness to AIDS, Chapter 2 (pp 121-135)

Nathan Geffen and Edwin Cameron, “The deadly hand of denial: Governance and politically-instigated AIDS denialism in South Africa” (pp 136-148)

4. State Capture and Rule of Law

*Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others (2016) (pp 149-175)

1 2 3 4 5 6 7 8 9 10 11 12 Chapter 2: Bill of Rights

CHAPTER 2 BILL OF RIGHTS

Rights 7. (1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights. (3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.

Application 8. (1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. (2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. (3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court— (a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and (b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1). (4) A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person.

Equality 9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed 5 13 Chapter 2: Bill of Rights

to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

Human dignity 10. Everyone has inherent dignity and the right to have their dignity respected and protected.

Life 11. Everyone has the right to life.

Freedom and security of the person 12. (1) Everyone has the right to freedom and security of the person, which includes the right— (a) not to be deprived of freedom arbitrarily or without just cause; (b) not to be detained without trial; (c) to be free from all forms of violence from either public or private sources; (d) not to be tortured in any way; and (e) not to be treated or punished in a cruel, inhuman or degrading way. (2) Everyone has the right to bodily and psychological integrity, which includes the right— (a) to make decisions concerning reproduction; (b) to security in and control over their body; and (c) not to be subjected to medical or scientific experiments without their informed consent.

6 14 Chapter 2: Bill of Rights

Slavery, servitude and forced labour 13. No one may be subjected to slavery, servitude or forced labour.

Privacy 14. Everyone has the right to privacy, which includes the right not to have— (a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed.

Freedom of religion, belief and opinion 15. (1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion. (2) Religious observances may be conducted at state or state-aided institutions, provided that— (a) those observances follow rules made by the appropriate public authorities; (b) they are conducted on an equitable basis; and (c) attendance at them is free and voluntary. (3) (a) This section does not prevent legislation recognising— (i) marriages concluded under any tradition, or a system of religious, personal or family law; or (ii) systems of personal and family law under any tradition, or adhered to by persons professing a particular religion. (b) Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.

Freedom of expression 16. (1) Everyone has the right to freedom of expression, which includes— (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research. (2) The right in subsection (1) does not extend to— 7 15 Chapter 2: Bill of Rights

(a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Assembly, demonstration, picket and petition 17. Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.

Freedom of association 18. Everyone has the right to freedom of association.

Political rights 19. (1) Every citizen is free to make political choices, which includes the right— (a) to form a political party; (b) to participate in the activities of, or recruit members for, a political party; and (c) to campaign for a political party or cause. (2) Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution. (3) Every adult citizen has the right— (a) to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and (b) to stand for public office and, if elected, to hold office.

Citizenship 20. No citizen may be deprived of citizenship.

Freedom of movement and residence 21. (1) Everyone has the right to freedom of movement. (2) Everyone has the right to leave the Republic. (3) Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic. (4) Every citizen has the right to a passport. 8 16 Chapter 2: Bill of Rights

Freedom of trade, occupation and profession 22. Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.

Labour relations 23. (1) Everyone has the right to fair labour practices. (2) Every worker has the right— (a) to form and join a trade union; (b) to participate in the activities and programmes of a trade union; and (c) to strike. (3) Every employer has the right— (a) to form and join an employers’ organisation; and (b) to participate in the activities and programmes of an employers’ organisation. (4) Every trade union and every employers’ organisation has the right— (a) to determine its own administration, programmes and activities; (b) to organise; and (c) to form and join a federation. (5) Every trade union, employers’ organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1). (6) National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).

Environment 24. Everyone has the right— (a) to an environment that is not harmful to their health or wellbeing; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that— (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development. 9 17 Chapter 2: Bill of Rights

Property 25. (1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. (2) Property may be expropriated only in terms of law of general application— (a) for a public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court. (3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including— (a) the current use of the property; (b) the history of the acquisition and use of the property; (c) the market value of the property; (d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and (e) the purpose of the expropriation. (4) For the purposes of this section— (a) the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and (b) property is not limited to land. (5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis. (6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress. (7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress. (8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results 10 18 Chapter 2: Bill of Rights

of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1). (9) Parliament must enact the legislation referred to in subsection (6).

Housing 26. (1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

Health care, food, water and social security 27. (1) Everyone has the right to have access to— (a) health care services, including reproductive health care; (b) sufficient food and ter;wa and (c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. (3) No one may be refused emergency medical treatment.

Children 28. (1) Every child has the right— (a) to a name and a nationality from birth; (b) to family care or parental care, or to appropriate alternative care when removed from the family environment; (c) to basic nutrition, shelter, basic health care services and social services; (d) to be protected from maltreatment, neglect, abuse or degradation; (e) to be protected from exploitative labour practices; (f) not to be required or permitted to perform work or provide services that— (i) are inappropriate for a person of that child’s age; or (ii) place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development; 11 19 Chapter 2: Bill of Rights

(g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be— (i) kept separately from detained persons over the age of 18 years; and (ii) treated in a manner, and kept in conditions, that take account of the child’s age; (h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and (i) not to be used directly in armed conflict, and to be protected in times of armed conflict. (2) A child’s best interests are of paramount importance in every matter concerning the child. (3) In this section “child” means a person under the age of 18 years.

Education 29. (1) Everyone has the right— (a) to a basic education, including adult basic education; and (b) to further education, which the state, through reasonable measures, must make progressively available and accessible. (2) Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account— (a) equity; (b) practicability; and (c) the need to redress the results of past racially discriminatory laws and practices. (3) Everyone has the right to establish and maintain, at their own expense, independent educational institutions that— (a) do not discriminate on the basis of race; (b) are registered with the state; and (c) maintain standards that are not inferior to standards at comparable public educational institutions. 12 20 Chapter 2: Bill of Rights

(4) Subsection (3) does not preclude state subsidies for independent educational institutions.

Language and culture 30. Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.

Cultural, religious and linguistic communities 31. (1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community— (a) to enjoy their culture, practise their religion and use their language; and (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society. (2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.

Access to information 32. (1) Everyone has the right of access to— (a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise or protection of any rights. (2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

Just administrative action 33. (1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. (2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. (3) National legislation must be enacted to give effect to these rights, and must— 13 21 Chapter 2: Bill of Rights

(a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal; (b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and (c) promote an efficient administration.

Access to courts 34. Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

Arrested, detained and accused persons 35. (1) Everyone who is arrested for allegedly committing an offence has the right— (a) to remain silent; (b) to be informed promptly— (i) of the right to remain silent; and (ii) of the consequences of not remaining silent; (c) not to be compelled to make any confession or admission that could be used in evidence against that person; (d) to be brought before a court as soon as reasonably possible, but not later than— (i) 48 hours after the arrest; or (ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day; (e) at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and (f) to be released from detention if the interests of justice permit, subject to reasonable conditions. (2) Everyone who is detained, including every sentenced prisoner, has the right— (a) to be informed promptly of the reason for being detained; (b) to choose, and to consult with, a legal practitioner, and to be informed of this right promptly; 14 22 Chapter 2: Bill of Rights

(c) to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly; (d) to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released; (e) to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and (f) to communicate with, and be visited by, that person’s— (i) spouse or partner; (ii) next of kin; (iii) chosen religious counsellor; and (iv) chosen medical practitioner. (3) Every accused person has a right to a fair trial, which includes the right— (a) to be informed of the charge with sufficient detail to answer it; (b) to have adequate time and facilities to prepare a defence; (c) to a public trial before an ordinary court; (d) to have their trial begin and conclude without unreasonable delay; (e) to be present when being tried; (f) to choose, and be represented by, a legal practitioner, and to be informed of this right promptly; (g) to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly; (h) to be presumed innocent, to remain silent, and not to testify during the proceedings; (i) to adduce and challenge evidence; (j) not to be compelled to give self-incriminating evidence; (k) to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language; (l) not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted; (m) not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted; 15 23 Chapter 2: Bill of Rights

(n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and (o) of appeal to, or review by, a higher court. (4) Whenever this section requires information to be given to a person, that information must be given in a language that the person understands. (5) Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.

Limitation of rights 36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

States of emergency 37. (1) A state of emergency may be declared only in terms of an Act of Parliament, and only when— (a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and (b) the declaration is necessary to restore peace and order. (2) A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of that declaration, may be effective only— (a) prospectively; and (b) for no more than 21 days from the date of the declaration, unless the National Assembly resolves to extend the declaration. The Assembly may extend a declaration of a state of emergency for no more than three months at a time. 16 24 Chapter 2: Bill of Rights

The first extension of the state of emergency must be by a resolution adopted with a supporting vote of a majority of the members of the Assembly. Any subsequent extension must be by a resolution adopted with a supporting vote of at least 60 per cent of the members of the Assembly. A resolution in terms of this paragraph may be adopted only following a public debate in the Assembly. (3) Any competent court may decide on the validity of— (a) a declaration of a state of emergency; (b) any extension of a declaration of a state of emergency; or (c) any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency. (4) Any legislation enacted in consequence of a declaration of a state of emergency may derogate from the Bill of Rights only to the extent that— (a) the derogation is strictly required by the emergency; and (b) the legislation— (i) is consistent with the Republic’s obligations under international law applicable to states of emergency; (ii) conforms to subsection (5); and (iii) is published in the national Government Gazette as soon as reasonably possible after being enacted. (5) No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration, may permit or authorise— (a) indemnifying the state, or any person, in respect of any unlawful act; (b) any derogation from this section; or (c) any derogation from a section mentioned in column 1 of the Table of Non- Derogable Rights, to the extent indicated opposite that section in column 3 of the Table.

17 25 Chapter 2: Bill of Rights

Table of Non-Derogable Rights 1 2 3 Section Section title Extent to which the right is protected number 9 Equality With respect to unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex, religion or language. 10 Human Dignity Entirely 11 Life Entirely 12 Freedom and Secu- With respect to subsections (1)(d) and (e) and (2)(c). rity of the person

13 Slavery, servitude With respect to slavery and servitude and forced labour 28 Children With respect to: – subsection (1)(d) and (e); – the rights in subparagraphs (i) and (ii) of subsection (1)(g); and – subsection 1(i) in respect of children of 15 years and younger. 35 Arrested, detained With respect to: and accused persons – subsections (1)(a), (b) and (c) and (2)(d); – the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d) – subsection (4); and – subsection (5) with respect to the exclusion of evidence if the admission of that evidence would render the trial unfair. (6) Whenever anyone is detained without trial in consequence of a derogation of rights resulting from a declaration of a state of emergency, the following conditions must be observed: 18 26 Chapter 2: Bill of Rights

(a) An adult family member or friend of the detainee must be contacted as soon as reasonably possible, and informed that the person has been detained. (b) A notice must be published in the national Government Gazette within five days of the person being detained, stating the detainee’s name and place of detention and referring to the emergency measure in terms of which that person has been detained. (c) The detainee must be allowed to choose, and be visited at any reasonable time by, a medical practitioner. (d) The detainee must be allowed to choose, and be visited at any reasonable time by, a legal representative. (e) A court must review the detention as soon as reasonably possible, but no later than 10 days after the date the person was detained, and the court must release the detainee unless it is necessary to continue the detention to restore peace and order. (f) A detainee who is not released in terms of a review under paragraph (e), or who is not released in terms of a review under this paragraph, may apply to a court for a further review of the detention at any time after 10 days have passed since the previous review, and the court must release the detainee unless it is still necessary to continue the detention to restore peace and order. (g) The detainee must be allowed to appear in person before any court considering the detention, to be represented by a legal practitioner at those hearings, and to make representations against continued detention. (h) The state must present written reasons to the court to justify the continued detention of the detainee, and must give a copy of those reasons to the detainee at least two days before the court reviews the detention. (7) If a court releases a detainee, that person may not be detained again on the same grounds unless the state first shows a court good cause for re-detaining that person. (8) Subsections (6) and (7) do not apply to persons who are not South African citizens and who are detained in consequence of an international armed conflict. Instead, the state must comply with the standards binding on the Republic under international humanitarian law in respect of the detention of such persons.

19 27 Chapter 2: Bill of Rights

Enforcement of rights 38. Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are— (a) anyone acting in their own interest; (b) anyone acting on behalf of another person who cannot act in their own name; (c) anyone acting as a member of, or in the interest of, a group or class of persons; (d) anyone acting in the public interest; and (e) an association acting in the interest of its members.

Interpretation of Bill of Rights 39. (1) When interpreting the Bill of Rights, a court, tribunal or forum— (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law. (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. (3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.

20 28 Azanian Peoples Organisation (AZAPO) and Others v President of the Republic of South Africa and others

Case CCT 17/96

Explanatory Note

The following explanation is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

The applicants applied for direct access to the Constitutional Court and for an order declaring s 20(7) of the Promotion of National Unity and Reconciliation Act 34 of 1995 unconstitutional. Section 20(7), read with other sections of the Act, permits the Committee on Amnesty established by the Act to grant amnesty to a perpetrator of an unlawful act associated with a political objective and committed prior to 6 December 1993. As a result of the grant of amnesty, the perpetrator cannot be criminally or civilly liable in respect of that act. Equally, the state or any other body, organisation or person that would ordinarily have been vicariously liable for such act, cannot be liable in law.

The Court upheld the constitutionality of the section. It acknowledged that the section limited the applicants' right in terms of s 22 of the interim Constitution to 'have justiciable disputes settled by a court of law, or . . . other independent or impartial forum'. However, in terms of s 33(2) of the Constitution, violations of rights are permissible either if sanctioned by the Constitution or if justified in terms of s 33(1) of the Constitution (the limitation section). The Court held that the epilogue ('National Unity and Reconciliation') to the Constitution sanctioned the limitation on the right of access to court.

The Court held that amnesty for criminal liability was permitted by the epilogue because without it there would be no incentive for offenders to disclose the truth about past atrocities. The truth might unfold with such an amnesty, assisting in the process of reconciliation and reconstruction. Further, the Court noted that such an amnesty was a crucial component of the negotiated settlement itself, without which the Constitution would not have come into being. It found that the amnesty provisions were not inconsistent with international norms and did not breach any of the country's obligations in terms of public international law instruments.

The Court held that the amnesty for civil liability was also permitted by the epilogue, again because the absence of such an amnesty would constitute a disincentive for the disclosure of the truth.

The Court held that the epilogue permitted the granting of amnesty to the state for any civil liability. The Court said that Parliament was entitled to adopt a wide concept of reparations. This would allow the state to decide on proper reparations for victims of past abuses having regard to the resources of the state and the competing demands thereon. Further, Parliament was authorised to provide for individualised and nuanced reparations taking into account the claims of all the victims, rather than preserving state liability for provable and unprescribed delictual claims only.

1 29 The Court held that the epilogue authorised the granting of amnesty to bodies, organisations or other persons which would otherwise have been vicariously liable for acts committed in the past. The truth might not be told if these organisations or individuals were not given amnesty. Indeed, according to the Court, the Constitution itself might not have been negotiated had this amnesty not been provided for.

The judgment of the Court was delivered by Mahomed DP and was concurred in by the other members of the Court. Didcott J delivered a separate concurring judgment.

2 30 CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT 17/96

THE AZANIAN PEOPLES ORGANIZATION (AZAPO) First Applicant NONTSIKELELO MARGARET BIKO Second Applicant CHURCHILL MHLELI MXENGE Third Applicant CHRIS RIBEIRO Fourth Applicant versus

THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA Second Respondent THE MINISTER OF JUSTICE Third Respondent THE MINISTER OF SAFETY AND SECURITY Fourth Respondent THE CHAIRPERSON OF THE TRUTH AND RECONCILIATION COMMISSION Fifth Respondent

Heard on: 30 May 1996

Decided on: 25 July 1996

JUDGMENT

MAHOMED DP:

[1] For decades South African history has been dominated by a deep conflict between a minority which reserved for itself all control over the political instruments of the state and a majority who sought to resist that domination. Fundamental human rights became a major casualty of this conflict as the resistance of those punished by their

31 MAHOMED DP denial was met by laws designed to counter the effectiveness of such resistance. The conflict deepened with the increased sophistication of the economy, the rapid acceleration of knowledge and education and the ever increasing hostility of an international community steadily outraged by the inconsistency which had become manifest between its own articulated ideals after the Second World War and the official practices which had become institutionalised in South Africa through laws enacted to give them sanction and teeth by a Parliament elected only by a privileged minority. The result was a debilitating war of internal political dissension and confrontation, massive expressions of labour militancy, perennial student unrest, punishing international economic isolation, widespread dislocation in crucial areas of national endeavour, accelerated levels of armed conflict and a dangerous combination of anxiety, frustration and anger among expanding proportions of the populace. The legitimacy of law itself was deeply wounded as the country haemorrhaged dangerously in the face of this tragic conflict which had begun to traumatise the entire nation.

[2] During the eighties it became manifest to all that our country with all its natural wealth, physical beauty and human resources was on a disaster course unless that conflict was reversed. It was this realisation which mercifully rescued us in the early nineties as those who controlled the levers of state power began to negotiate a different future with those who had been imprisoned, silenced, or driven into exile in consequence of their resistance to that control and its consequences. Those negotiations resulted in

2

32 MAHOMED DP an interim Constitution1 committed to a transition towards a more just, defensible and democratic political order based on the protection of fundamental human rights. It was wisely appreciated by those involved in the preceding negotiations that the task of building such a new democratic order was a very difficult task because of the previous history and the deep emotions and indefensible inequities it had generated; and that this could not be achieved without a firm and generous commitment to reconciliation and national unity. It was realised that much of the unjust consequences of the past could not ever be fully reversed. It might be necessary in crucial areas to close the book on that past.

[3] This fundamental philosophy is eloquently expressed in the epilogue to the

Constitution which reads as follows:

“National Unity and Reconciliation This Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex. The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society. The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.

1 Act 200 of 1993, which is referred to in this judgment as “the Constitution”.

3

33 MAHOMED DP

These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation. In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date, which shall be a date after 8 October 1990 and before 6 December 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed. With this Constitution and these commitments we, the people of South Africa, open a new chapter in the history of our country.”

Pursuant to the provisions of the epilogue, Parliament enacted during 1995 what is colloquially referred to as the Truth and Reconciliation Act. Its proper name is the

Promotion of National Unity and Reconciliation Act 34 of 1995 (“the Act”).

[4] The Act establishes a Truth and Reconciliation Commission. The objectives of that Commission are set out in section 3. Its main objective is to “promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past”. It is enjoined to pursue that objective by “establishing as complete a picture as possible of the causes, nature and extent of the gross violations of human rights” committed during the period commencing 1 March 1960 to the “cut-off date”.2 For this purpose the Commission is obliged to have regard to “the perspectives

2 Described in the epilogue to the Constitution as “a date after 8 October 1990 and before 6 December 1993”. “Cut-off date” is defined in section 1 of the Act to mean “the latest date allowed as the cut-off date in terms of the Constitution as set out under the heading ‘National Unity and Reconciliation’ ”.

4

34 MAHOMED DP

of the victims and the motives and perspectives of the persons responsible for the

commission of the violations”.3 It also is required to facilitate

“... the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective ...”4

The Commission is further entrusted with the duty to establish and to make known “the

fate or whereabouts of victims” and of “restoring the human and civil dignity of such

victims” by affording them an opportunity to relate their own accounts of the violations

and by recommending “reparation measures” in respect of such violations5 and finally

to compile a comprehensive report in respect of its functions, including the

recommendation of measures to prevent the violation of human rights.6

[5] Three committees are established for the purpose of achieving the objectives of

the Commission.7 The first committee is the Committee on Human Rights Violations

which conducts enquiries pertaining to gross violations of human rights during the

prescribed period, with extensive powers to gather and receive evidence and

3 Section 3(1)(a).

4 Section 3(1)(b).

5 Section 3(1)(c).

6 Section 3(1)(d).

7 Section 3(3).

5

35 ¹éôöóèùçéè æý ºåæíòéø ®åøéûåý ùòèéö ðíçéòçé ëöåòøéè æý øìé ·ùæðí÷ìéö –èåøéè řŗŗŠ—†

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¹éôöóèùçéè æý ºåæíòéø ®åøéûåý ùòèéö ðíçéòçé ëöåòøéè æý øìé ·ùæðí÷ìéö –èåøéè řŗŗŠ—† 42 43 44 45 46 47 48 566 Cornell International Law Journal Vol. 49

II. Gay and Lesbian Rights at the South African Substantive Equality and Sexual Constitutional Court ...... 588 A. Decriminalization in the NCGLE Sodomy Case ...... 588 Orientation: Twenty Years of Gay and B. Getting to the Altar: Family and Relationship Recognition ...... 591 Lesbian Rights Adjudication Under C. Marriage Equality at the Constitutional Court ...... 594 III. A South African Gay Rights Jurisprudence ...... 597 the South African Constitution A. Summarizing Twenty Years of Constitutional Adjudication ...... 597 1. Impactful Engagement ...... 597 Eric C. Christiansen† 2. Contextual Assessment ...... 599 3. Transformative Values ...... 600 Introduction ...... 566 B. The Inadequacy of Constitutional Law Protections ..... 601 I. The Path to Constitutional Sexual Orientation 1. Danger and Disfavor ...... 602 Protections ...... 568 2. Social Change and the Courts ...... 604 A. The Rise of Post-Apartheid Constitutionalism in South IV. Lessons from the South African Experience ...... 605 Africa ...... 568 A. Lessons for Progressive Constitutional Drafting ...... 605 1. Negotiating a Democratic Constitution for Post- B. Lessons for Advancement of Constitutional Equality . . . 608 Apartheid South Africa ...... 568 1. Guiding Official State Action ...... 608 2. Sexual Orientation and the Post-Apartheid 2. Leveraging Legitimacy ...... 609 Constitutions ...... 572 3. Inspiring Future Claims ...... 610 a. Interim Constitution Drafting Period ...... 574 C. Lessons for Comparative Equality and b. Final Constitution Drafting Period ...... 576 Constitutionalism ...... 612 i. Technical Committee Support ...... 577 Conclusion ...... 614 ii. Gay and Lesbian Advocacy in the Final Drafting Period ...... 579 Introduction iii. Organized Opposition to Sexual Orientation On the day Nelson Mandela was elected President of the newly demo- Protections ...... 580 cratic Republic of South Africa, a new constitution ended the most egre- iv. Sexual Orientation in the Public gious system of legal discrimination in the world: South African apartheid. Participation Programme ...... 581 This past year marks the twentieth anniversary of South Africa’s transition v. Sexual Orientation is Included in the Final to democracy and the inauguration of the 1996 Constitution. There has Constitution ...... 584 been abundant exposure to South African constitutional law over the last B. Explaining Gay Equality in the Constitutional Drafting two decades because of admiration for its Bill of Rights, respect for the Process ...... 585 South African Constitutional Court, and fascination with the nation’s com- 1. The Role of History and Timing ...... 585 pelling history as a human rights state born out of radical inequality. 2. Ideology and Non-Racialism ...... 586 Scholars have paid particular attention to South Africa’s equality pro- 3. Constrained Drafting Process ...... 587 visions because of the country’s unique history. Among the exceptional elements of the South African Equality Clause is its novel and progressive 1 † Professor of Law and Faculty Chair, Golden Gate University School of Law, San inclusion of anti-discrimination protections for lesbians and gay men. Francisco, California; J.D., New York University School of Law, 2001; M.A., University of Chicago, 1995; B.A., University of Notre Dame, 1992; 2016– 17 Senior Fulbright Scholar; 1. It is worth noting that this Article intentionally uses the terminology “gays and former Foreign Law Clerk, Chief Justice Arthur Chaskalson, Constitutional Court of the lesbians” and “gay rights” rather than the more comprehensive term LGBTI (lesbian, Republic of South Africa; [email protected]. I wish to thank several colleagues for gay, bisexual, transgender, and intersex) persons and rights. The focus of this Article on their comments, insights, and support, especially Michele Benedetto Neitz, Bill homosexuality to the exclusion of other sexual orientations (like bisexuality) or affili- Gallagher, Kathleen Morris, Stephanie Hennette-Vauchez, Penelope Andrews, and ated categories of discrimination (like gender identity discrimination), except where Rachel Van Cleave. Additionally, two of my research assistants are owed particular those issues intersect with discrimination against gays and lesbians, is neither because thanks for their assistance with this Article: Jason Mustard and Olivia Porter. the discrimination and prejudice is any less severe nor the issues less compelling. Nor is 49 CORNELL INT ’L L.J. 565 (2016) the narrower focus because the South African Constitution does not prohibit discrimina- 49 2016 Substantive Equality and Sexual Orientation 567 568 Cornell International Law Journal Vol. 49

The prohibition of discrimination based on sexual orientation is particu- the Equality Clause prohibited sexual orientation discrimination, its practi- larly important because it occurred— for the first time in any national con- cal effect has been markedly inadequate to achieve the safety and social stitution— as a result of the closely-watched drafting of South Africa’s equality of LGBT persons in South Africa. In sharp contrast to the Consti- historic “human rights” constitution.2 The South African Constitution tution’s expansive textual protections and progressive jurisprudence, South advanced the hopes of international gay rights advocates and set a bench- African gays and lesbians, particularly in poorer communities, routinely mark for future constitutional drafters. The drafters’ generous interpreta- experience condemnation, discrimination, and homophobic violence. tion of contemporary human rights developments and their reformist Hence, the Equality Clause is a symbol of both the progressive aims of the reading of international law precedents resulted in trail-blazing protections. post-apartheid constitution and the appalling gulf between those aspira- These advancements were supported by the moral authority of the South tions and reality. African victory over apartheid and buttressed by the progressive creden- Examining the historical achievements and failures of the Constitu- tials of the activists who participated in (or publically affirmed) the consti- tion’s sexual orientation protections highlights larger lessons from the last tutional result.3 twenty years of constitutionalism in South Africa. In this Article, I use the The promise of the Constitution’s equality protections was realized in drafting history, Constitutional Court adjudication, and the practical insuf- a sequence of highly visible legal victories for gays and lesbians. Over the ficiencies of the Constitution’s inclusion of sexual orientation-based pro- last two decades, the Constitutional Court of South Africa decriminalized tections to highlight three categories of insights. These lessons include an same-sex sexual activity, required equal treatment of same-sex life partners encouraging insight regarding the inclusion of novel and progressive ele- in immigration and government benefits law, and affirmed the fundamen- ments when drafting modern constitutions; some modest claims about the tal validity of same-sex relationships, including recognition of full marriage capacity of courts to combat inequality based on sexual orientation despite equality. The Court’s opinions expressly affirmed the dignity and equality the limitations of purely legal victories; and a hopeful affirmation of the of gays and lesbians in an unbroken series of unanimous, pro-gay deci- value of even unrealized constitutional aspirations for the fields of compar- sions. The rulings decisively opposed discrimination based on sexual ori- ative constitutionalism and gay and lesbian equality. entation and established the present standards for a substantial portion of the Constitutional Court’s broader equality jurisprudence. I. The Path to Constitutional Sexual Orientation Protections Indeed, the South African gay rights jurisprudence exceeds the broadest advancements of legal protections anywhere else in the world and A. The Rise of Post-Apartheid Constitutionalism in South Africa contrasts starkly with the appalling road taken by many countries, includ- In the early 1990s South Africa achieved a goal considered impossible 4 ing nearly every other sub-Saharan African country. However, court rul- throughout long decades of oppressive, state-sponsored racism: a relatively ings tell only a part of the story. Although twenty years have passed since nonviolent transition from “racial autocracy to a nonracial democracy by means of a negotiated transition, the progressive implementation of democ- tion on those additional bases; there is direct textual support that it does. However, the racy, and respect for fundamental human rights.”5 The antithesis of Constitutional Court has yet to decide a significant case applying the Equality Clause on those more expanded bases and, indeed, the Court has made no substantive statements apartheid, equality and human dignity were core values in the democratic about such discrimination in its first two decades. I do not wish to contribute to the transition and were therefore prominently placed and repeatedly affirmed further invisibility of bisexual, transgender, and intersex persons in the literature, but in both of South Africa’s transitional constitutions. for purposes of this particular Article, the absent elements of the Court’s jurisprudence leave little to comment upon— other than the Court’s silence to date. Further sociologi- cal and legal research is needed to examine the impact and consequence of this absence. 1. Negotiating a Democratic Constitution for Post-Apartheid South Africa 2. Makua wa Mutua, Hope and Despair for a New South Africa: The Limits of Rights The initial dispute between the dominant political parties at the 1991 Discourse, 10 HARV . HUM . RTS . J. 63, 65 (1997) (“[T]he first deliberate and calculated effort in history to craft a human rights state— a polity that is primarily animated by Convention for a Democratic South Africa (“CODESA”) focused on the pro- human rights norms.”). cess for drafting the constitution.6 Was the purpose of CODESA to draft a 3. See Tom Lodge, The Interplay of Non-Violent and Violent Action in the Movement minimal constitutional outline that would merely facilitate the democratic against Apartheid in South Africa, 1983– 1994, in CIVIL RESISTANCE AND POWER POLITICS : election of a popularly-elected body empowered to draft a full constitution? THE EXPERIENCE OF NON -VIOLENT ACTION FROM GANDHI TO THE PRESENT 213, 227 (Adam Roberts & Timothy Garton Ash eds., 2011). 4. See Kim Yi Dionne, Should we call Africa homophobic?, WASH . POST (July 10, 5. Albie Sachs, Constitutional Developments in South Africa, 28 N.Y.U. J. INT ’L L. & 2015), https://www.washingtonpost.com/blogs/monkey-cage/wp/2015/07/10/why-im- POL . 695, 695 (1996). See generally A Brief History of the African National Congress, not-calling-africa-homophobic-anymore/. See generally LAW LIBRARY OF CONG ., GLOB . AFRICAN NAT ’L CONG ., http://www.anc.org.za/content/brief-history-anc (last visited Sept. LEGAL RESEARCH CTR ., LAWS ON HOMOSEXUALITY IN AFRICA (2014), http://www.loc.gov/ 20, 2016) (detailing the history of the African National Congress in South Africa since law/help/criminal-laws-on-homosexuality/homosexuality-laws-in-african-nations.pdf the mid-1800s). (summarizing the treatment of homosexuality in the criminal laws of forty-nine African 6. ALLISTER SPARKS , TOMORROW IS ANOTHER COUNTRY : THE INSIDE STORY OF SOUTH nations). AFRICA ’S ROAD TO CHANGE 133 (1995). 50 2016 Substantive Equality and Sexual Orientation 569 570 Cornell International Law Journal Vol. 49

Or, were the party-appointed CODESA delegates empowered to negotiate Principles”) was agreed upon by the MPNP parties and attached to the all the terms of the nascent constitution? The popular, newly unbanned Interim Constitution as Schedule 4.15 The Thirty-Four principles were African National Congress (“ANC”) wanted to constrain CODESA’s author- intended to guide and constrain the choices made by the later drafters of ity as much as possible so that the new constitution would be drafted by a the final constitution. Second, a constitutional court was created under the newly elected (and sure-to-be ANC-dominated) Parliament.7 The incum- Interim Constitution to “certify” that any subsequent constitution con- bent, white-minority National Party (“NP”) wanted CODESA to write an formed to the negotiated agreement preserved in the Thirty-Four entire constitution, leveraging their suddenly-diminishing power to protect Principles.16 the white minority through codification of group rights, protection from This initial drafting period, including CODESA and the MPNP, lasted prosecution for apartheid-era actions, and clauses preserving the economic nearly two years. The Interim Constitution, with its thoroughly negotiated status quo.8 These diametrically opposed visions of the CODESA process Thirty-Four Principles, was agreed to on November 17, 1993.17 The provi- and the atmosphere of suspicion surrounding it were substantial enough sions of the Interim Constitution— with its Bill of Rights including protec- that CODESA discussions collapsed in mid-1992 without producing a new tions with regard to sexual orientation— came into effect on the first day of constitution.9 Significant concessions by both parties permitted the draft- South Africa’s first multiracial elections, April 26, 1994.18 The results of ers to resume work approximately a year later through a renamed drafting the election were particularly important given the elected parliamentary conference called the Multi-Party Negotiating Process (“MPNP”).10 The members’ additional role as drafters of the Constitution that would replace compromise, a two-part solution to the over-arching procedural problem, the Interim Constitution. After three days of voting, South Africa’s first included a two-stage drafting process and the formation of a constitutional democratic elections gave the ANC 62.7% of the National Assembly and court that would have authority to enforce the parties’ negotiated made Nelson Mandela the President of the Republic of South Africa.19 11 agreement. The elected members of the National Assembly and the Senate, in their The first of the two negotiated stages of the transition involved draft- additional role as the Constitutional Assembly, formally began working on ing a modest, temporary constitution (the “Interim Constitution”) and the final Constitution in May 1994.20 Under the terms of the Interim Con- holding South Africa’s first democratic elections.12 The freshly elected stitution, the Constitutional Assembly had a mandated two-year timeframe members of the Interim Constitution’s new Parliament would then select a to complete this task.21 The drafting work was conducted primarily in new president. In the second stage of the transition, the task of crafting the small, confidential Theme Committees rather than in large, public ses- full, final constitution (the “1996 Constitution”)13 was assigned to the sions.22 The Committees held hearings; analyzed submissions from politi- newly elected Parliament and Senate in their ancillary role as the Constitu- cal parties, private organizations, and citizens; and identified areas of tional Assembly.14 agreement and disagreement.23 The Theme Committees regularly reported Two safeguards linked the two stages of this carefully-crafted process. findings and made recommendations to the Constitutional Assembly as a First, a set of thirty-four binding constitutional principles (“the Thirty-Four whole, but the core of the decision-making process occurred at the Consti-

7. PATTI WALDMEIR , ANATOMY OF A MIRACLE : THE END OF APARTHEID AND THE BIRTH OF 15. S. AFR . (INTERIM ) CONST ., 1993, sched. 4. THE NEW SOUTH AFRICA 202 (1997) (providing general histories of the political transfor- mation of South Africa at the end of the apartheid era). 16. Id. at ch. 7; Albie Sachs, South Africa’s Unconstitutional Constitution, 41 ST. LOUIS U. L.J. 1249, 1255 (1997). 8. Id. See generally SPARKS , supra note 6 (detailing the negotiating process that led to majority rule). 17. LOURENS DU PLESSIS & HUGH CORDER , UNDERSTANDING SOUTH AFRICA ’S TRANSI- 9. See Dawid van Wyk, Introduction to the South African Constitution, in RIGHTS AND TIONAL BILL OF RIGHTS 2– 17 (1994). CONSTITUTIONALISM , THE NEW SOUTH AFRICAN LEGAL ORDER 131, 139 (Dawid van Wyk et 18. Andrew Reynolds, The Results, in ELECTION ‘94 SOUTH AFRICA : THE CAMPAIGN , al. eds., 1994). RESULTS AND FUTURE PROSPECTS 182, 184– 87 (Andrew Reynolds ed., 1994). 10. Id. at 140. 19. South Africa’s democratic elections were held over several days beginning on 11. S. AFR . (INTERIM ) CONST ., 1993, ch. 7, § 98(1). Nelson Mandela originally pro- April 26, 1994. Despite allegations of fraud and ballot tampering, the results (outside posed the two-stage drafting process one year prior to the start of CODESA. President KwaZulu-Natal) conformed with expectations to a significant degree: the ANC received a de Klerk tacitly approved it at CODESA’s inaugural session, and it was formalized over strong but not overly dominant 62.7%, the NP received a disappointing 20.4%, the Zulu- the course of CODESA. See WALDMEIR , supra note 7, at 194– 95. nationalist Inkatha Freedom Party won the KwaZulu-Natal Province, and the extremist 12. See SPARKS , supra note 6, at 134– 35. parties on both the left and right received only marginal percentages. Id. at 182– 83. 13. S. AFR . CONST ., 1996. It is, of course, a bit of a misnomer to refer to the 1996 20. Jeremy Sarkin, The Drafting of South Africa’s Final Constitution from a Human- Constitution as the final constitution. The “final” Constitution has been amended sev- Rights Perspective, 47 AM. J. COMP . L. 67, 69 (1999). enteen times since its completion in December 1996, although none are directly relevant 21. S. AFR . (INTERIM ) CONST ., 1993, ch. 5, § 73. to this Article. For a complete list of amendments to the Constitution, see Amendments 22. Theme Committees were identified by number and had the following foci: (1) to the Constitution, S. AFR . GOV ’T, www.gov.za/documents/constitution-amendments character of state, (2) structure of state, (3) relations between levels of government, (4) (last visited Mar. 31, 2015). fundamental rights, (5) judiciary and legal systems, and (6) specialized structures. See 14. S. AFR . (INTERIM ) CONST ., 1993, sched. 4; HASSEN EBRAHIM , THE SOUL OF A Sarkin, supra note 20, at 70 n.23 (1999). NATION : CONSTITUTION -MAKING IN SOUTH AFRICA 177, 180 (1998). 23. Id. at 70. 51 2016 Substantive Equality and Sexual Orientation 571 572 Cornell International Law Journal Vol. 49 tutional Committee, the authoritative party-based negotiating body of the The Constitutional Assembly adopted the 1996 Constitution by an Constitutional Assembly.24 overwhelming majority: 80 of 90 Senators and 321 of 400 National Assem- Additionally, the Constitutional Assembly launched an ambitious pro- bly members voted in favor of the proposed final text.29 This was signifi- gram to educate the public about the constitution and to engage South Afri- cantly greater than the requisite two-thirds majority of the entire cans in the drafting process: The Public Participation Programme. The Constitutional Assembly.30 The proposed constitution, however, could not Public Participation Programme “recognized the fundamental significance be signed by the President or come into force until the Constitutional of a [c]onstitution in the lives of citizens” and ostensibly “sought to place Court “certified” it.31 public participation at the centre of the [c]onstitution-making process.”25 As a result of the compromise that allowed South Africa’s first demo- The Programme was meant to invite citizen involvement in the constitu- cratic elections, the Interim Constitution’s Thirty-Four Principles estab- tional process and thereby to increase the constitution’s popular legiti- lished “the fundamental guidelines, the prescribed boundaries, according macy.26 The Programme held in-person informational sessions, to which and within which the [Constitutional Assembly] was obliged to distributed booklets related to the process (and later, the proposed text), perform its drafting function.”32 The Constitutional Court was required to and facilitated the submission of public commentary about the constitu- declare that the proposed text complied with each of the Thirty-Four Prin- tion.27 Over the course of the Programme, the Constitutional Assembly ciples annexed to the Interim Constitution.33 The expansiveness of the received more than two million submissions from citizens and domestic proposed Equality Clause text was one of the many elements challenged groups.28 when the Certification Case came before the Constitutional Court.34 The Court rejected the challenge and the Equality Clause, which included the 24. The Constitutional Committee was comprised of members of the seven political world’s first express sexual orientation protections, remained in the 1996 parties represented in Parliament in proportion to the number of seats they held in the Constitution.35 National Assembly: The African National Congress (252 seats in Parliament), the National Party (82 seats), the IFP (43 seats), the Democratic Party (7 seats), the Free- dom Front (9 seats), the Pan African Congress (5 seats), and the African Christian Dem- 2. Sexual Orientation and the Post-Apartheid Constitutions ocratic Party (2 seats). See Reynolds, supra note 18, at 183. 25. Eric C. Christiansen, Ending the Apartheid of the Closet: Sexual Orientation in the Broadly enforceable equality rights were a legal refutation of South African Constitutional Process, 32 N.Y.U. J. INT ’L L. & POL . 997, 1007 (2000) [here- apartheid-era discrimination and a substantiation of ANC claims that post- inafter Christiansen, Ending the Apartheid of the Closet] (internal quotation marks and apartheid South Africa would be based on “non-racialism.” As the end of citation omitted); see also EBRAHIM , supra note 14, at 239– 50 (detailing the successes of apartheid approached, the formerly banned ANC had to codify its policies the Public Participation Programme in engaging the public). 26. As the media releases from the Constitutional Assembly described it: “The final and protest statements into constitutional rights text. Hence, even before submission was hand-delivered to the Constitutional Assembly at 11:30pm and at mid- Mandela was released from prison or the ban on the ANC lifted, the 1989 night the fax lines were still humming as the country’s greatest ever public participation ANC publication Constitutional Guidelines for a New South Africa asserted campaign came to a close [on February 20, 1996].” CONSTITUTIONAL TALK : OFFICIAL the need for a justiciable Bill of Rights in a post-apartheid South Africa: NEWSL . CONST . ASSEMBLY (Constitutional Assembly, Rep. of S. Afr.), vol. 2, 1996 [herein- after CONSTITUTIONAL TALK , vol. 2]. Participation in all aspects of the program exceeded “The Constitution shall include a Bill of Rights based on the Freedom expectations. See CONSTITUTIONAL TALK : OFFICIAL NEWSL . CONST . ASSEMBLY (Constitu- tional Assembly, Rep. of S. Afr.), vol. 9, June 30, 1995 [hereinafter CONSTITUTIONAL TALK , vol. 9]. 29. Sarkin, supra note 20, at 72. 27. Sarkin, supra note 20, at 72. 30. The Constitutional Assembly consisted of the four hundred newly elected mem- 28. Submissions in phase one totaled 1.8 million, and submissions in phase two bers of the National Assembly and the ninety members of the Senate. REP . OF S. AFR ., EBATES OF THE ONSTITUTIONAL SSEMBLY totaled 250,000. See CONSTITUTIONAL TALK : OFFICIAL NEWSL . CONST . ASSEMBLY (Constitu- D C A , vol. 3, at 447– 52, 524– 25 (1996). tional Assembly, Rep. of S. Afr.), vol. 8, June 8, 1995 [hereinafter CONSTITUTIONAL TALK , 31. See S. AFR . (INTERIM ) CONST ., 1993, ch. 5, § 71(2) (“The new constitutional text vol. 8]. Additionally, over 80,000 people attended public meetings and constitutional passed by the Constitutional Assembly, or any provision thereof, shall not be of any education workshops sponsored by the Assembly throughout the country. CONSTITU- force and effect unless the Constitutional Court has certified that all the provisions of TIONAL TALK , vol. 2, supra note 26. While there were complaints that the program was such text comply with the [Thirty-Four] Constitutional Principles . . . .”); Certification of not fully effective at reaching rural communities, informal settlements, women, and eld- the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC) at 21 para. 32 (S. erly citizens, a 1996 independent survey found that the media campaign had reached Afr.) (“It is necessary to underscore again that the basic certification exercise involves 18.5 million people, an impressive 73% of adult South Africans. The survey was con- measuring the [final constitutional text] against the [Thirty-Four Principles]”); Certifica- ducted by the Community Agency for Social Equality. CONSTITUTIONAL TALK : OFFICIAL tion of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC) at 12 para. 17 NEWSL . CONST . ASSEMBLY (Constitutional Assembly, Rep. of S. Afr.), vol. 3, Apr. 22, 1996. (“[C]ertification mean[t] a good deal more than merely checking off each individual Over four million copies of a special thirty-two-page Constitutional Talk edition were provision of the [final text] against the several [Principles]”). produced in all eleven official languages. The publication contained the complete text of 32. Certification of the Constitution 1996 (4) SA 744 (CC) at 21 para. 32 (S. Afr.). the draft Constitution, explanatory articles outlining the issues, and a series of graphics 33. Id. at 1– 3, 8– 13, 18– 21 paras. 1– 4, 12– 19, 26– 31. aimed at making the often complex constitutional issues accessible to ordinary South 34. Id. at 61– 64 paras. 96– 103. Africans. See CONSTITUTIONAL TALK : OFFICIAL NEWSL . CONST . ASSEMBLY (Constitutional 35. Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Con- Assembly, Rep. of S. Afr.), vol. 1, Feb. 9, 1996 [hereinafter CONSTITUTIONAL TALK , vol. 1]. stitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) (S. Afr.). 52 2016 Substantive Equality and Sexual Orientation 573 574 Cornell International Law Journal Vol. 49

Charter.[36 ] Such a Bill of Rights shall guarantee the fundamental human a. Interim Constitution Drafting Period rights of all citizens . . . and shall provide appropriate mechanisms for their enforcement.”37 The ANC produced more fully developed Bill of Rights Gay and lesbian advocacy groups, which had worked to include sexual orientation protections in the early Bill of Rights proposals, continued their drafts in 199038 and again in 1992.39 To a significant degree, the civil and education and lobbying campaigns during the Interim Constitution draft- political rights outlined in those two ANC documents formed the ideologi- ing period. The success of the work of gay community activists was evi- cal core of the Interim Constitution’s Bill of Rights. Equality was a central dent at the May 1992 ANC National Conference. Sexual orientation was element of all four documents. mentioned twice in the party’s formal policy guidelines.44 It became offi- Surprisingly, the ruling white-minority NP was, like the ANC, explor- cial ANC policy that “the right not to be discriminated against or subjected 40 ing options for a Bill of Rights prior to the formal end of apartheid. Not to harassment because of sexual orientation” would be included in any only were both of the main parties to the initial constitutional negotiations new constitution’s bill of rights.45 Additionally, under “basic principles” on similar timelines, but there were certain congruencies in the core ele- related to social welfare policies, the document stated a goal of “full ments of their proposals: protection of individual rights, limits on govern- employment with a rising standard of living and quality of social and work- ment power, and independent judicial oversight.41 Among the similarities ing life for all South Africans, regardless of race, sex, class, religion, creed, were enforceable equality protections to ensure non-discriminatory state sexual orientation[,] and physical or mental disability.”46 Notably, this action.42 By the time the Interim Constitution negotiations began, every proposal’s list of prohibited grounds for discrimination is very similar to major political party agreed that the final document would include a Bill of the prohibited grounds in the Interim Constitution’s Equality Clause, fur- Rights with a substantial Equality Clause.43 ther highlighting the value of early lobbying efforts.47 Once the failed CODESA project was resurrected at the MPNP, the 36. Adopted by the 3,000-delegate Congress of the People on June 26, 1955, the various political parties made their policies more explicit. The NP’s Char- ANC-authored Freedom Charter was the political manifesto of the anti-apartheid move- ter of Fundamental Rights, adopted as government policy in 1992 (and ment. In addition to the core tenet of multi-racialism, the document also emphasized representing the NP’s Bill of Rights proposal for the Interim Constitution), redistribution of wealth, land ownership by those who work it, equal protection of the prohibited anti-gay discrimination by declaring that sexual orientation fell law, and other social and economic rights. It was the ANC’s primary statement of values throughout most of its history and has been retroactively labeled a proto-Bill of Rights. within the “other natural characteristics” against which discrimination was 48 For full text of the Charter, see The Freedom Charter, 21 COLUM . HUM . RTS . L. REV . 249, forbidden in its proposed non-discrimination clause. The ANC explicitly 249 (1989). included “sexual orientation” in their 1992 draft Bill of Rights.49 The 37. CONSTITUTIONAL GUIDELINES FOR A DEMOCRATIC SOUTH AFRICA (1989), reprinted in 21 COLUM . HUM . RTS . L. REV . 235, 237 (1989). The Guidelines were the subject of exten- 44. Christiansen, Ending the Apartheid of the Closet, supra note 25, at 1029. sive review and critique in South Africa. Albie Sachs, A Bill of Rights for South Africa: 45. Policy Documents, African National Congress, Ready to Govern: ANC Policy Areas of Agreement and Disagreement, 21 COLUM . HUM . RTS . L. REV . 13, 17 (1990) Guidelines for a Democratic South Africa as Adopted at the National Conference, AFRICAN (“Indeed, so many bodies have taken up, analysed, and criticised the Guidelines that NAT ’L CONG ., § B.5 [hereinafter Ready to Govern]. they have ceased to be simply an ANC document; instead they have become a working 46. Id. § L.1. text for the entire anti-apartheid movement.”). 47. See S. AFR . (INTERIM ) CONST ., 1993, ch. 3, § 8(2) (declaring that age, language, 38. See CONSTITUTIONAL COMM ., AFRICAN NATIONAL CONGRESS : A BILL OF RIGHTS FOR A and culture are all included). As their work with the ANC began to yield results, gay and DEMOCRATIC SOUTH AFRICA —WORKING DRAFT FOR CONSULTATION (1990), reprinted in 18 lesbian activists began lobbying other parties as well. In June 1991, the Organisation for SOC . JUST . 49, 49 (1991). Lesbian and Gay Action contacted ten political parties and questioned them about their 39. See CONSTITUTIONAL COMM ., ANC DRAFT BILL OF RIGHTS : A PRELIMINARY REVISED policy regarding general Bill of Rights protections of individual rights and the specific TEXT (1992), reprinted in ALBIE SACHS , ADVANCING HUMAN RIGHTS IN SOUTH AFRICA 215 inclusion of sexual orientation as a protected category. Only the Democratic Party (1992) [hereinafter 1992 ANC DRAFT BILL OF RIGHTS ]. responded affirmatively to the question of explicit protections for gays and lesbians: 40. See S. AFRICAN LAW COMM ’N, WORKING PAPER NO. 25, PROJECT 58: GROUP AND “The Bill of Rights will guarantee all persons irrespective of . . . sexual preference . . . the HUMAN RIGHTS (1989), reprinted in The South African Law Commission Bill of Rights, 21 following fundamental rights . . . [including] [e]qual protection of the law . . . .” See COLUM . HUM . RTS . L. REV . 241, 241 (1990) [hereinafter WORKING PAPER NO. 25]; Lynn Derrick Fine & Julia Nicol, The Lavender Lobby: Working for Lesbian and Gay Rights Berat, A New South Africa?: Prospects for an Africanist Bill of Rights and a Transformed Within the Liberation Movement, in DEFIANT DESIRE 269, 273 (Mark Gevisser & Edwin Judiciary, 13 LOY . L.A. INT ’L & COMP . L.J. 467, 468 (1991). Cameron eds., 1995). The National Party and Labour Party committed only to general protections of individual rights, the Conservative Party stated a Bill of Rights was unnec- 41. Christiansen, Ending the Apartheid of the Closet, supra note 25, at 1014. essary because “the Ten Commandments serve as the best Bill of Rights and all rights 42. Edwin Cameron, Sexual Orientation and the Constitution: A Test Case for Human are sufficiently enshrined therein,” and six other parties neglected to respond. Id. Rights, 110 S. AFR . L.J. 450, 450– 51 (1993) [hereinafter Cameron, Sexual Orientation 48. This language was proposed by the National Party on February 2, 1993. See and the Constitution] (noting these shared characteristics). Edwin Cameron, ‘Unapprehended Felons’: Gays and Lesbians and the Law in South Africa, 43. See generally DU PLESSIS & CORDER , supra note 17. This book’s authors were the in DEFIANT DESIRE , supra note 47, at 89, 94– 95 [hereinafter Cameron, Unapprehended primary drafters of the interim Bill of Rights. See also Letter from Albie Sachs, Justice, Felons]. Constitutional Court of South Africa, to Author (Jan. 7, 2000) (on file with author) 49. “It shall be unlawful to discriminate on the grounds of gender, single [hereinafter Letter from Albie Sachs]. parenthood, legitimacy of birth or sexual orientation.” 1992 ANC DRAFT BILL OF RIGHTS , 53 2016 Substantive Equality and Sexual Orientation 575 576 Cornell International Law Journal Vol. 49

Democratic Party submission, following the policy it had previously discrimination.”).54 In the end, party negotiators chose to include the full reported, expressly outlawed direct and indirect discrimination based on enumeration of prohibited bases of discrimination as submitted by the sexual orientation.50 Even the Inkatha Freedom Party, the dominant Technical Committee.55 Persons familiar with that decision state that it regional party from KwaZulu-Natal, expressly prohibited such discrimina- was motivated in part by the vulnerability of gays and lesbians under less tion in its proposal: “All citizens . . . have equal social dignity, shall be explicit or unenumerated Equality Clause formulations.56 This decision, equal before the law[,] and shall share an equal right of access to political, combined with the fact that the Technical Committee was producing an social, and economic opportunities irrespective of . . . sexual orienta- extensive Bill of Rights draft (rather than a minimalist one), heightened the tion . . . .”51 Although other, less significant parties did not include sexual importance of the earlier proposals of the parties; the already established orientation protections in their Bill of Rights proposals, either explicit or areas of agreement became presumptive elements of the constitutional implicit protections were favored by parties that would go on to win 95.2% draft. The result was expansive and express equality protections in the of the vote in the 1994 elections set up under the Interim Constitution.52 Interim Constitution. The inclusion of some form of sexual orientation protections in the A historic, albeit potentially temporary, victory had been secured. dominant parties’ draft Bills of Rights marked a tremendous accomplish- However, threats to the newfound protections awaited in the more public, ment,53 but it did not ensure inclusion of reference to sexual orientation in more strongly majoritarian final constitution drafting process. the Interim Constitution. By the time of the MPNP, it remained unclear within the Technical Committee for Fundamental Rights whether the b. Final Constitution Drafting Period Equality Clause would take the form of a provision prohibiting discrimina- The path from inclusion in the Interim Constitution to retention in the tion against specific, enumerated classes (“No discrimination on the basis final 1996 Constitution was fairly straightforward for most portions of the of race, religion, sex, etc.”) or a generic non-discrimination provision (“No Equality Clause.57 There is insufficient evidence in the historical record to state definitively how vulnerable sexual orientation protections were. It is supra note 39, art. 7(2); see also Ready to Govern, supra note 45, §§ B.5, J.1 (listing evident from Constitutional Assembly documents that although only a sin- among protected rights in the introduction to the Bill of Rights, “the right not to be gle party expressly opposed inclusion, the Assembly considered removing discriminated against or subjected to harassment because of sexual orientation,” and, in explicit references to sexual orientation.58 As late as October 1995, inclu- the education, training, and scientific developments section, affirming “all individuals sion of sexual orientation as a protected class was still identified as a “con- should have access to lifelong education and training, irrespective of . . . sexual orientation”). tentious and outstanding issue” in the working draft of the final 50. The Democratic Party proposal stated: constitution.59 Indeed, a memorandum accompanying the November 22, [Art.] 2.1 Every person shall have the right to equal treatment, and there shall 1995 working draft implied that sexual orientation protections were the consequently be no discrimination, whether direct or indirect. sole controversial and undecided element of the Equality Clause.60 [Art.] 2.2 Discrimination means unjustified differentiation. Differentiation on the grounds of race, ethnic origin, colour, gender, sexual orientation, age, disa- 54. See Letter from Albie Sachs, supra note 43. bility, religion, creed[,] or conscience shall be presumed unjustified unless it is 55. Christiansen, Ending the Apartheid of the Closet, supra note 25, at 1032. part of a rational programme intended to remedy substantial inequality. 56. See Letter from Albie Sachs, supra note 43. The Committee was also influenced DEMOCRATIC PARTY , FREEDOM UNDER THE RULE OF LAW : ADVANCING LIBERTY IN THE NEW by a written submission from the Equality Foundation, a pro-gay lobbying group. See SOUTH AFRICA : DEMOCRATIC PARTY DRAFT BILL OF RIGHTS , MAY 1993, at 1 (1993). DU PLESSIS & CORDER , supra note 17, at 142. 51. Other protected classifications included sex, race, colour, language, traditions, 57. No categories were dropped between the Interim Constitution and the final Con- creed, religion, political affiliation and belief, and social and personal status. See stitution; pregnancy, marital status, and birth were added. Compare S. AFR . (INTERIM ) KwaZulu Legislative Assembly, Resolution: Constitution of the State of KwaZulu/Natal CONST ., 1993, ch. 3, § 8(2), with S. AFR . CONST ., 1996 § 9(3). § 10(a) Equality (Dec. 1, 1992), quoted in Cameron, Unapprehended Felons, supra note 58. The most likely option would have been usage of language similar to the South 48, at 96. African Law Commission phrase “natural characteristics” or the International Conven- 52. In the 1994 elections, the ANC received 62.6% of the popular vote, the NP tion on Civil and Political Rights “or other status” language. See International Covenant received 20.4%, the IFP received 10.5%, and the DP received 1.7%. Combined, they on Civil and Political Rights art. 2, 26, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter contributed 95.9% of the members of the Constitutional Assembly (384 of 400 mem- ICCPR]; WORKING PAPER NO. 25, supra note 40. bers). See Reynolds, supra note 18, at 183. 59. See S. LIEBENBERG ET AL ., TECHNICAL COMMITTEE OF THEME COMMITTEE FOUR , CON- 53. In an appeal to a 1993 sodomy conviction, S v. H, then judge (now Constitution STITUTIONAL ASSEMBLY , EXPLANATORY MEMORANDA ON THE DRAFT BILL OF RIGHTS OF 9 Court Justice) Ackermann, while upholding a conviction for private, consensual sex OCTOBER 1995: OVERVIEW OF METHOD OF WORK 10– 12 [hereinafter EXPLANATORY between men, lessened the imposed sentence. Citing the various drafts of the then- MEMORANDA ]. pending Interim Constitution, the judge identified a “broad consensus on eliminating 60. “However, some people say that it is wrong to include sexual orientation as one discrimination against homosexuality and the likelihood that this will be entrenched in of the grounds for unfair discrimination. They argue that homosexuals should not be a new constitutional dispensation.” Voris Johnson, Making Words on a Page Become Eve- given this kind of protection in the new Constitution.” Equality and Discrimination, Edi- ryday Life: A Strategy to Help Gay Men and Lesbians Achieve Full Equality under South torial Accompanying the Working Draft of the New Constitution, CONSTITUTION .ORG (Nov. Africa’s Constitution, 11 EMORY INT ’L L. REV . 583, 620 (1997) (citing State v. H. 1995 (1) 22, 1995), https://web.archive.org/web/19991108220224/http://www.constitution.org SA 120 (CPD) at 124 (S. Afr.)). .za/edit/equal.html. 54 2016 Substantive Equality and Sexual Orientation 577 578 Cornell International Law Journal Vol. 49 i. Technical Committee Support tion of the rights to privacy protected in article 17 of the Covenant read with the right to non-discrimination in the enjoyment of the rights protected in The Constitutional Assembly’s Technical Committee of Theme Com- the Covenant.[67 ] This is consistent with the case law of the European mittee Four supported a broadly and expressly inclusive Equality Clause.61 Court of Human Rights.68 Indeed, the committee discussed sexual orientation protections as a “uni- Even today, twenty years later, it is overly optimistic to read interna- versally accepted fundamental right” in its Explanatory Memoranda pre- tional legal precedent as encompassing a blanket affirmation of gay and pared for the Constitutional Committee.62 This implied that South Africa lesbian equal rights. While significant progress has been made, no for- would be following the model of international law treaties or regional mally adopted international human rights documents explicitly include human rights courts. Inclusion of sexual orientation protections would be protections of gays and lesbians or prohibit discrimination based on sexual more publically acceptable and politically achievable if it were a codifica- orientation.69 Indeed, the first formal intergovernmental discussion of tion of international human rights law rather than a South African innova- sexual orientation discrimination was not held until 2012.70 tion.63 Hence, the Technical Committee demonstrated the similarity between sexual orientation discrimination and other forms of proscribed As further support for the inclusion of sexual orientation, the Techni- discrimination in human rights documents: “The enumerated grounds of cal Committee asserted: discrimination in international law relate to characteristics and choices [M]any countries and states have adopted anti-discrimination legislation which are an integral part of human personality and identity. They also which either expressly, or through interpretation, have included sexual ori- 71 include attributes of groups which are particularly vulnerable to discrimi- entation. Thus, for example, in the Canadian case of Haig v Canada,[ ] it nation, exclusion[,] and subordination.”64 was held that sexual orientation should be treated as an analogous ground of discrimination and thus included within the scope of [section three] of The Technical Committee also very favorably interpreted the four the Canadian Human Rights Act.72 cases decided prior to 1995 in which international human rights bodies had identified “sexual orientation” as a category for protection:65 It must be acknowledged, that the use of the phrase “for example” was a bit disingenuous here. While it is true that anti-discrimination legislation that The UN Human Rights Committee has interpreted sex as a prohibited includes sexual orientation was reasonably common in developed Western ground of discrimination in articles 2(1) and article 26 of the [International Covenant on Civil and Political Rights (ICCPR)] to include sexual orienta- countries by the mid-1990s, no country other than Canada had found that tion.[66 ] Thus the Committee has ruled that legislation criminalising all gays and lesbians were an implicitly protected category under a national forms of sexual contact between consenting homosexual men to be in viola- constitution.73

61. Theme Committee Four focused on fundamental rights in the final constitution. Id. See Jeremy Sarkin, The Drafting of South Africa’s Final Constitution from a Human-Rights 67. U.N. Human Rights Comm., Toonen v. Australia, Communication No. 488/ Perspective, 47 AM. J. COMP . L. 67, 70 n.23 (1999). Committee members are listed here: 1992, U.N. Doc. CCPR/C/50/D/488/1992 (1994) [hereinafter Toonen]. Toonen asserted List of People that Made up the Constitutional Assembly, S. AFR . HIST . ONLINE (Apr. 24, that the protection from discrimination based on “sex” in article 26 of the ICCPR was to 2014), http://www.sahistory.org.za/list-people-made-constitutional-assembly. be interpreted as including sexual orientation. Id. at 3. Advocates for gay rights had 62. See EXPLANATORY MEMORANDA , supra note 59, at 7, § 4.2.3. This traces back to also argued that sexual orientation was covered under “other status” in article 26, and the Thirty-Four Principles of the Interim Constitution. Principle II stated that: “Every- under the privacy provisions in article 17(1). ICCPR, supra note 58, art. 26. one shall enjoy all universally accepted fundamental rights, freedoms and civil liber- 68. EXPLANATORY MEMORANDA , supra note 59, at 7, § 4.2.3. The referenced European ties . . . provided for and protected by entrenched and justiciable provisions in the Court of Human Rights (ECHR) cases are Dudgeon, 45 Eur. Ct. H.R. at 63 (ruling that Constitution, which shall be drafted after having given due consideration to inter alia the the Northern Ireland law criminalizing homosexual acts violated article 8 of the Euro- fundamental rights contained in Chapter 3 of this [Interim] Constitution.” S. AFR . pean Convention for Human Rights and Fundamental Freedoms, which guarantees “eve- (INTERIM ) CONST ., 1993, art. 2, sched. 4. ryone the right to respect for private and family life, his home[,] and his 63. S. AFR . (INTERIM ) CONST ., 1993, art. 2, sched. 4. correspondence”), Norris, 13 Eur. Ct. H.R. at 196 (ruling that Ireland’s sodomy law 64. EXPLANATORY MEMORANDA , supra note 59, at 10. violated article 8 of the European Convention), and Modinos v. Cyprus, App. No. 65. At the start of the constitutional drafting process, there had been only two such 15070/89, 16 Eur. H.R. Rep. 485, 494 (1993) (applying Dudgeon and Norris holdings cases. See Norris v. Ireland, App. No. 10581/83, 13 Eur. Ct. H.R. 186 (1991); Dudgeon to Republic of Cyprus). See generally AMNESTY INT ’L, supra note 65. v. United Kingdom, App. No. 7525/76, 45 Eur. Ct. H.R. 20 (1981); AMNESTY INT ’L, BREAK- 69. See generally Michael O’Flaherty & John Fisher, Sexual Orientation, Gender Iden- ING THE SILENCE : HUMAN RIGHTS VIOLATIONS BASED ON SEXUAL ORIENTATION 21– 27, 29, tity and International Human Rights Law: Contextualising the Yogyakarta Principles, 8 32– 41, 48– 49 (1997). HUM . RTS . L. REV . 207, 217– 48 (2008). 66. ICCPR, supra note 58, art. 26. Article 26 states: 70. U.N. OFFICE OF THE HIGH COMM ’RON HUMAN RIGHTS , FACT SHEET : INTERNATIONAL All persons are equal before the law and are entitled without any discrimination HUMAN RIGHTS LAW AND SEXUAL ORIENTATION & GENDER IDENTITY (2012), http://www to the equal protection of the law. In this respect, the law shall prohibit any .ohchr.org/Documents/Issues/Discrimination/LGBT/FactSheets/unfe-11-UN_Fact_ discrimination and guarantee to all persons equal and effective protection Sheets_GenderIdentity_English.pdf. against discrimination on any ground such as race, colour, sex, language, relig- 71. Haig v. Canada, [1993] S.C.R. 995, 997– 99 (Can.). ion, political or other opinion, national or social origin, property, birth[,] or 72. EXPLANATORY MEMORANDA , supra note 59, at 7. other status. 73. Christiansen, Ending the Apartheid of the Closet, supra note 25, at 1036. 55 2016 Substantive Equality and Sexual Orientation 579 580 Cornell International Law Journal Vol. 49

In fact, by the time the Technical Committee drafted its memorandum, lobbying to senior Constitutional Assembly decision-makers.80 Seconda- only four favorable legal precedents related to the rights of gays and lesbi- rily it sought to influence the Public Participation Programme, hoping to ans existed under international law. In Dudgeon v. United Kingdom, Norris demonstrate popular support to maintain explicit sexual orientation pro- v. Ireland, and Modinos v. Cyprus,74 the European Court of Human Rights tections in the final constitution.81 During the drafting period, NCGLE’s (“ECHR”) found that national sodomy laws were inconsistent with member work included coordinating Coalition member actions, organizing lobby- states’ obligations under Article Eight of the European Convention for ing efforts that reflected the racial and linguistic diversity of gay and les- Human Rights and Fundamental Freedoms.75 And, in Toonen v. Australia, bian South Africans, preparing submissions to the Constitutional the United Nations Human Rights Commission provided a similar ruling Assembly, and orchestrating pro-gay letter-writing, petitions, and postcard based on its classification of sexual orientation discrimination as a subset campaigns.82 Following the coming into force of the 1996 Constitution, of sex discrimination.76 When the South African Constitution was being NCGLE also inaugurated its very successful litigation strategy, which will drafted those cases were very recent, atypical, and represented little with be discussed later in this Article.83 regard to precedent.77 Nevertheless, the Technical Committee was unambiguous in its final iii. Organized Opposition to Sexual Orientation Protections endorsement to the Constitutional Assembly: “[I]t is our strong recommen- It should be acknowledged at the outset of this discussion of formal dation that sexual orientation be included as a prohibited ground of dis- opposition that the Public Participation Programme and outside studies of crimination in the [E]quality [C]lause.”78 general population attitudes toward homosexuality in South Africa in the 1990s reflect significant antipathy toward gays and lesbians.84 However, ii. Gay and Lesbian Advocacy in the Final Drafting Period only one political party, the African Christian Democratic Party (ACDP),85 formally fought inclusion of sexual orientation protections in the final con- A newly formed coalition of activists and organizations under the stitution.86 The party based its opposition on a call for all political deci- name National Coalition for Gay and Lesbian Equality (“NCGLE”) spon- 87 sored the gay and lesbian community’s most evident efforts to influence sions to reflect the party’s interpretation of biblical values. According to the final text of the 1996 Constitution.79 NCGLE’s primary focus was on (citing Bob Drogin, South Africa Gays Chalk Up New Rights to Nation’s Cruel History; During Blacks’ Struggle, Homosexual Activists Got Support from Anti-Apartheid Leaders. 74. Norris v. Ireland, App. No. 10581/83, 13 Eur. Ct. H.R. 186 (1991); Dudgeon v. Constitution Now Protects Them from Bias, L.A. TIMES , Dec. 13, 1996, at A5). United Kingdom, App. No. 7525/76, 45 Eur. Ct. H.R. 20 (1981). 80. Jacklyn Cock, Engendering Gay and Lesbian Rights: The Equality Clause in the 75. Laurence Helfer, Finding a Consensus on Equality: The Homosexual Age of Consent South African Constitution, 26 WOMEN ’S STUD . INT ’L F. 35, 37 (2003). and the European Convention on Human Rights, 65 N.Y.U. L. REV . 1044, 1045– 1100 81. See STYCHIN , supra note 79. (1990). 82. Press Release, Int’l Gay & Lesbian Human Rights Comm’n, Historic South Afri- 76. Toonen, supra note 67, at 226, 235. can Bill of Rights Includes Sexual Orientation (May 1, 1996), http://www.qrd.org/qrd/ 77. Additionally, the ECHR cases are applicable only to the forty-seven Council of world/africa/south_africa/constitution.includes.sexual.orienatation-05.01.96. Europe member states. And, enforcement has been notoriously problematic: after Modi- 83. See infra Sections III.A and III.B for discussion of the primary cases supported by nos, Cyprus refused to change its discriminatory laws for several years. Moreover, NCGLE. Toonen was a very limited holding that is open to a variety of interpretations. Its reli- 84. David Bilchitz, Constitutional Change and Participation of LGBTI Groups: A case ance upon continued judicial assignment of sexual orientation rights to clauses prohib- study in South Africa, INT ’L INST . FOR DEMOCRACY & ELECTORAL ASSISTANCE 1, 13 (2015), iting discrimination based on “sex” has been questioned. Additionally, enforcement of http://www.constitutionnet.org/files/constitutional-change-and-participation-of-lgbti- the Commission ruling was very challenging, requiring Australia to invoke its “foreign groups-a-case-study-of-south-africa-pdf.pdf. relations power” and sue the province of Tasmania before the provincial legislature 85. The ACDP, the smallest party in the Constitutional Assembly, was founded in changed their law. See Douglas Sanders et al., Finding a Place in International Law, INT ’L 1994 by Kenneth Meshoe, a Christ for All Nations evangelical minister claiming an GAY & LESBIAN ASS ’N (July 20, 1997), http://dossieractivista.no.sapo.pt/place_interna instruction from his god to found a political party based on “biblical values.” Reverend tional_law.htm. Kenneth Meshoe’s Testimony, AFR . CHRISTIAN DEMOCRATIC PARTY , http://www.acdp.org.za/ Very few international human rights bodies have evidenced the kind of unequivocal faq_testimony.asp (last visited June 28, 2000); see also PAUL STOBER & BARBARA LUDMAN , prohibition of discrimination on the basis of sexual orientation as the Technical Com- A-Z OF SOUTH AFRICAN POLITICS 224 (Paul Stobler & Barbara Ludman eds., 2005) [here- mittee read into contemporary precedent. International law, at its best, has been incon- inafter STOBER ]. sistent. See O’Flaherty & Fisher, supra note 69, at 228; see also AMNESTY INT ’L, supra note 86. One of the twelve reasons the ACDP opposed the final Constitutions states: “The 65, at 38– 39. ACDP rejects the horizontal application of the equality clause [sic] in Chapter 2 of the 78. EXPLANATORY MEMORANDA , supra note 59, at 10, § 6.1. Bill of Rights. We do not want Gays and Lesbians who are protected by the ‘sexual 79. See CARL F. STYCHIN , A NATION BY RIGHTS : NATIONAL CULTURES , SEXUAL IDENTITY orientation’ clause in subsection 9(3) to be imposed on us. We want the right not to POLITICS , AND THE DISCOURSE OF RIGHTS 74– 75 (1988). Based in Johannesburg, NCGLE employ them, if we so wish, and not to have them teach our children their immoral, was formed in December 1994 in anticipation of the struggle to keep sexual orientation unnatural[,] and sinful lifestyles.” 12 Reasons Why the ACDP Voted Against the Adoption in the final Constitution’s non-discrimination clause. It coordinated national efforts on on the South African Constitution, IAFRICA , http://users.iafrica.com/a/ac/acdp/constit behalf of a loose association of seventy-three member organizations. NCGLE’s activities .html (last visited Sept. 6, 2016). were meant to supplement the continued activities of the other South African gay and 87. See Gustavo Gomes da Costa Santos, Decriminalising homosexuality in Africa: lesbian groups. Christiansen, Ending the Apartheid of the Closet, supra note 25, at 1037 lessons from the South African experience, in HUMAN RIGHTS , SEXUAL ORIENTATION AND 56 2016 Substantive Equality and Sexual Orientation 581 582 Cornell International Law Journal Vol. 49 the ACDP, inclusion of anti-discrimination protection for gays and lesbians lar input was also being sought.97 And, debate over inclusion of sexual was “against the will of God and African culture.”88 orientation protections in the final constitution figured prominently in the Furthermore, in its attempts to persuade the Constitutional Assembly Public Participation Programme.98 Sexual orientation protections were to remove sexual orientation protections, the ACDP asserted that inclusion identified as a “hot topic” early in the process. In fact, retention of sexual of sexual orientation in the Equality Clause amounted to special rights.89 orientation in the Equality Clause was mentioned in over 800 of the indi- The party also raised the specters of mandated same-sex marriage90 and vidual public comments and in petitions bearing over 24,000 signatures.99 exposure of children to “immoral, unnatural[,] and sinful lifestyles.”91 A significant majority of individual submissions in the Programme sup- Although the ACDP was the smallest political party in the Constitutional ported inclusion— perhaps as a result of the efforts of NCGLE— but petition Assembly— having won only two out of four hundred seats in the National signatures gathered by conservative churches advocated removal of protec- Assembly in the 1994 elections92 — support for its conservative positions tions by more than a two-to-one margin over signatories supporting was far greater than its electoral results indicated.93 Indeed, significant retention.100 numbers of religious conservatives opposed the inclusion of sexual orien- Very few of the Programme’s public submissions are lengthy or tation protections even though they were politically aligned with parties, thoughtful. Most are in the form of petitions or follow a common script. 94 such as the ANC, who supported it. Submissions in support of inclusion followed certain trends. Most sup- Nevertheless, other than the ACDP and some conservative religious porters wanted to “keep sexual orientation in the Constitution,” expressing groups, there was very limited formal or institutional opposition to the approval for the protective status quo created by the Interim Constitu- inclusion of sexual orientation during the drafting of the final constitu- tion.101 To the extent that the writers expressed a reason for inclusion, tion.95 But there was significant evidence of unfavorable public sentiment, they most often cited general anti-discrimination arguments:102 “Discrimi- in the form of petitions received through the Constitutional Assembly’s nation for one means discrimination for all, we cannot have a truly demo- Public Participation Programme.96 cratic society when any section of the population is discriminated against”;103 and, “I don’t work any different, I don’t sleep any different, I iv. Sexual Orientation in the Public Participation Programme

The various elements of the final constitution’s drafting process were 97. Thabo Mbeki, Representative ANC of South Africa, Statement at the General all occurring simultaneously. While the Theme Committees were drafting Assembly of the U.N. (Dec. 13, 1993), https://www.nelsonmandela.org/omalley/index proposed text, elected representatives were expressing their public posi- .php/site/q/03lv02039/04lv02103/05lv02117/06lv02118.htm; see also Chapter 10 – A Framework for Negotiating the Final Constitution, S. AFR . HIST . ONLINE , http://www.sahis tions and party elites were negotiating the most sensitive outcomes, popu- tory.org.za/archive/chapter-10-framework-negotiating-final-constitution (last visited Sept. 11, 2016). GENDER IDENTITY IN THE COMMONWEALTH 313, 313– 34 (Corinne Lennox & Matthew 98. The Programme can be divided into two separate public comment periods, one Waites eds., 2013). from formation of the Constitutional Assembly in May 1994 until mid-1995 and another 88. Constitutional Talk, vol. 1, supra note 26. from publication of the working draft in November 1995 until February 20, 1996. In the 89. According to the ACDP, inclusion of sexual orientation as a protected category period of response to the working draft alone, 56% of the total comments addressed yields “preferential protection” that is open to all sorts of abuses including “the right to articles of the Bill of Rights. See CONSTITUTIONAL TALK , vol. 2, supra note 26. homosexuality, bestiality, pedophilia[,] and other ‘perverse sexual activity.’” CONSTITU- 99. This total is based on figures reported by the Constitutional Assembly: petition- TIONAL TALK , vol. 8, supra note 26. ers opposed during first phase, 16,663; petitioners supporting inclusion in first phase, 90. For example: “What people do not realise is that this clause puts us priests in a none reported; petitioners opposed during second phase, 546; and petitioners support- lot of trouble . . . . What it means is that if two people of the same sex come to my ing inclusion during second phase, 7,032. See generally MARION SPARD , THE CONSTITU- church and ask me to marry them, if I refuse on grounds that they are of the same sex, TIONAL ASSEMBLY : ANNUAL REPORT (1996). they have recourse to the law . . . . We have to test the will of the people on this 100. All submissions are identified by their unique identifier number assigned by the issue . . . . And I am sure the majority of our people would not allow such marriages to Public Participation Programme staff at the time the submission was received. All of the be legalised. This is against the will of God and African culture.” Id. submissions were available on a searchable database at www.constitution.org.za/form 91. Id. .html. The nature of the database and the fact that many of the submissions address 92. See Reynolds, supra note 18, at 183. multiple issues make it impossible to offer exact numbers, but an examination within 93. See STYCHIN , supra note 79, at 80. those constraints reveals that there are three or four supportive submissions (from indi- 94. At the May 1995 National Sector Public Hearing for Religious Groups, several viduals) for every letter of opposition. Frustratingly, the internet source for these docu- religious leaders declared that the sexual orientation clause was not necessary as there ments has been offline for a considerable amount of time and remains unavailable was sufficient protection in other rights. Mr. Mokabane of Concerned Evangelicals and electronically. Julien Hofman, The Constitutional Assembly Database Project - Resur- Rev. Steele, of the International Fellowship of Christian Churches, spoke against inclu- recting a Database Ten Years On, 35 INT ’L J. LEGAL INFO . 79, 79 (2007). sion of protections for gays and lesbians, reciting arguments similar to the ACDP party position. The general focus of the meeting was on church-state issues and rights of free 101. Id. exercise. Christiansen, Ending the Apartheid of the Closet, supra note 25, at 1039– 40. 102. See, e.g., N. Webster, Submission #8319, CONSTITUTIONAL TALK , vol. 2, supra note 95. See STOBER , supra note 85. 26; K. McConnell, Submission #6152, CONSTITUTIONAL TALK , vol. 2, supra note 26. 96. Christiansen, Ending the Apartheid of the Closet, supra note 25, at 1039– 40. 103. See V. Smith, Submission #7289, CONSTITUTIONAL TALK , vol. 2, supra note 26. 57 2016 Substantive Equality and Sexual Orientation 583 584 Cornell International Law Journal Vol. 49 don’t love any different, I don’t want to be treated any different.”104 Many v. Sexual Orientation is Included in the Final Constitution of the writers identified themselves as lesbians or gay men,105 although far more contributors expressly identified as heterosexual.106 At least a few The Public Participation Programme culminated a few months prior to submissions made reference to the broader implications of South Africa’s the completion of the Constitutional Assembly’s drafting responsibili- ties.112 In the last, somewhat feverish few months of the drafting period, equality protections: “The clause in the interim constitution— including 113 sexual orientation should remain as is . . . serving as an example and a many final decisions were made outside of public scrutiny. Several fac- forerunner for equality to other countries.”107 tors contributed to this. The Theme Committees had finished much of their work, the working draft was published and was being distributed, and The submissions from those who opposed retention of sexual orienta- a significant number of political compromises needed to be made prior to tion in the constitution were significantly different in form as well as sub- consideration of the text by the whole Constitutional Assembly.114 The stance. For example, most were petitions rather than individually authored negotiations in the party-based Constitutional Committee— where ultimate comments. A typical signed petition from an early stage states: authority rested— and other informal negotiations were neither recorded 115 I hereby strongly object to the legalisation of immoral and unnatural sexual nor reported. Thus, it is difficult to know anything significant about lifestyles under Chapter 3 Paragraph 8.2 of our interim constitution. The these discussions other than the results of the process. phrase “SEXUAL ORIENTATION” must be deleted from our present consti- On October 10, 1995, the Constitutional Committee agreed to follow tution and must NOT be included in the final constitution that is being the Technical Committee’s recommendations on several important issues— drafted. Homosexuality, lesbianism, sodomy[,] and bestiality are unnatural, including retention of the Interim Constitution’s explicit reference to sex- abnormal[,] and immoral and do not deserve any constitutional protection 116 under clauses like “sexual orientation.”108 ual orientation in the final constitution. Due to this decision, Section Nine of South Africa’s new constitution, “Equality,” would prominently The overwhelming majority of opposition submissions based their include protections for gays and lesbians: argument on fundamentalist Christian notions of sexual morality.109 In 9. (1) Everyone is equal before the law and has the right to equal protection addition to opposing equality based on sexual orientation, those submis- and benefit of the law . . . . sions also often disfavored other progressive aspects of the constitution, (3) The state may not unfairly discriminate directly or indirectly against such as abortion rights and the abolition of the death penalty.110 anyone on one or more grounds, including race, gender, sex, pregnancy, mari- Another common characteristic of the opposing submissions was their tal status, ethnic or social origin, colour, sexual orientation, age, disability, vehemence: “How can any disgusting, deviant sexual behaviour have the religion, conscience, belief, culture, language, and birth. 111 phrase ‘fundamental rights’ protecting it?” For progressive South Afri- (4) No person may unfairly discriminate directly or indirectly against any- cans who hoped that the inclusion of sexual orientation protection in the one on one or more grounds in terms of subsection (3). National legislation Interim Constitution two years earlier provided evidence of a new era of must be enacted to prevent or prohibit unfair discrimination . . . .117 acceptance, these vituperative submissions must have been disheartening. Just as the Bill of Rights is “a cornerstone of democracy in South Africa,”118 the Equality provisions form a cornerstone of the Bill of Rights 104. See C. Minnar, Submission #7149, CONSTITUTIONAL TALK , vol. 2, supra note 26 itself. Despite significant public opposition, limited legal precedent, rela- (capitalization altered). tively inexperienced civil society groups, and a conservative cultural back- 105. See, e.g., D. Renge, Submission #6036, CONSTITUTIONAL TALK , vol. 2, supra note 26. 112. Public Participation, PARLIAMENT REP . S. AFRICA , http://www.parliament.gov.za/ 106. See, e.g., R. Hitzenroth, Submission #6008, CONSTITUTIONAL TALK , vol. 2, supra live/content.php?Category_ID=21 (“Since the advent of democracy in 1994, it has note 26. become possible for all citizens to get involved in what is happening in Parliament.”). 107. See Buitendag, Submission #6024,CONSTITUTIONAL TALK , vol. 2, supra note 26. 113. Sarkin, supra note 20, at 71– 75. 108. See “Petition,” Submission #5601, CONSTITUTIONAL TALK , vol. 2, supra note 26 114. Id. at 68. (The commentary preceding this submission states: “The [C]onstitutional [A]ssembly 115. HEINZ KLUZ , CONSTITUTING DEMOCRACY LAW , GLOBALISM AND SOUTH AFRICA ’S has received 16,363 copies of the following and similar petitions concerning the sexual POLITICAL RECONSTRUCTION 100 (Cambridge Univ. Press 2000). orientation clause in the [I]nterim [C]onstitution”). 116. Eric C. Christiansen, Substantive Equality and Sexual Orientation: Lessons from 109. See, e.g., Browne, Submission #5577, CONSTITUTIONAL TALK , vol. 2, supra note 26; Twenty Years of Gay and Lesbian Rights under the South African Constitution 3 (Nov. 10, Abraham, Submission #6591, CONSTITUTIONAL TALK , vol. 9, supra note 26. 2014) [hereinafter Christiansen, Substantive Equality and Sexual Orientation] (unpub- 110. Many petitions also opposed the proposed legality of abortion and the abolition lished manuscript) (on file with the New York Law School Law Review). of the death penalty. Others disliked the absence of explicit reference to God. See, e.g., 117. S. AFR . CONST ., 1996 (emphasis added). The only other explicit reference is Sec- MacGregor, et al., Submission #3372, CONSTITUTIONAL TALK , vol. 2, supra note 26; Sub- tion 35 of the Bill of Rights which secures the right of a “spouse or partner” to visit a mission #5062,CONSTITUTIONAL TALK , vol. 2, supra note 26. detained or imprisoned person. Id. § 35(2)(i). 111. See Taylor, Submission #6794,CONSTITUTIONAL TALK , vol. 2, supra note 26. 118. Id. 58 2016 Substantive Equality and Sexual Orientation 585 586 Cornell International Law Journal Vol. 49 ground, gays and lesbians held on to their groundbreaking protections in ognition of the importance of multi-racial organizing represented an impor- the final South African Constitution. tant new development. Furthermore, a host of unrelated occurrences brought activists and the ANC into direct contact with each other in the B. Explaining Gay Equality in the Constitutional Drafting Process final years of apartheid. These included, for example, the forced outing of an anti-apartheid leader and the reporting of some anti-gay remarks by a At the end of the apartheid era in the late 1980s, South African gays prominent ANC figure. Both developments highlighted the involvement of and lesbians were poorly organized politically, racially divided, and gener- gays, lesbians, and their supporters in the broader anti-apartheid move- ally despised.119 Before the ratification of the post-apartheid constitution, ment.126 These and other events ultimately motivated the ANC’s initial no domestic legal precedent existed for treating gays and lesbians other statements affirming the importance of equality based on sexual than as criminals.120 Anti-gay sentiment was high.121 And yet, within a orientation.127 few years, gay South Africans possessed a level of constitutional protection Outside of South Africa, international human rights bodies were rec- greater than that of any other nation— a level of legal protection that ognizing changes in the legal status of gays and lesbians for the first time remains pre-eminent twenty years later. in history. The previously singular— and surprising pro-gay— international How did South Africa— a deeply religious and conservative southern law precedent relating to sexual orientation announced by the European African nation— become the first country to include constitutional protec- Court of Human Rights in its Dudgeon decision in 1981128 was affirmed in tions for gays and lesbians? The answer involves a unique convergence of Norris in 1991129 and in Modinos in 1994.130 One year later, the United elements at the time apartheid was ending in South Africa.122 These ele- Nations Human Rights Commission relied on the International Covenant ments include historical, ideological, and procedural influences unique to on Civil and Political Rights to denounce the criminalization of sex South Africa in the 1990s.123 between men in the Australian province of Tasmania.131 The timing was fortuitous; these last two pro-gay decisions were announced during the 1. The Role of History and Timing constitutional drafting period.132 The confluence of three factors set the stage for an evolution in the legal status of gays and lesbians in a new, multi-racial South Africa. The 2. Ideology and Non-Racialism three factors were the simultaneous maturation of the ANC and the bur- geoning South African gay community; newly formed linkages between The ANC and other groups within the liberation movement first stated those two previously distinct liberation movements; and new favorable the goal of a non-discriminatory South Africa in the 1955 Freedom Char- 133 international legal protections related to sexual orientation.124 ter. “Non-racialism,” expressed negatively as non-discrimination and In South Africa, gay and lesbian organizing began to achieve some positively as substantive equality, animated ANC discourse throughout its 134 legitimacy in the late 1980s and early 1990s.125 After years of intention- history. This dream of a renewed South Africa, a state founded on the ally apolitical organizing, new and politically active gay groups that saw principles of equality, multi-racial democracy, and human dignity, contin- 135 themselves as a part of the larger anti-apartheid movement were being ued throughout the years of exile. Such philosophical underpinnings of established. Explicit identification with the liberation movements and rec- the constitution were meant to repudiate apartheid’s legal norms. They also allowed NCGLE to argue for gay and lesbian equality in a rights-rich ideological environment. 119. See EBRAHIM , supra note 14, at 239– 50 (detailing the successes of the Public Par- ticipation Program in engaging the public); see also CONSTITUTIONAL TALK , vol. 9, supra note 26 (noting the citizen’s involvement in the Public Participation Program). 126. See Fine & Nicol, supra note 47, at 270; see also Mark Gevisser, A Different Fight 120. Christiansen, Ending the Apartheid of the Closet, supra note 25, at 1000. for Freedom: A History of South African Lesbian and Gay Organization from the 1950s to 121. Even as the apartheid government was lifting criminal sanctions against interra- 1990s, in DEFIANT DESIRES , supra note 47, 14, 70 (reporting additional comments: “The cial sexual activity in 1988, the Parliament was considering an expansion of laws against gays have no problems . . . I don’t see them suffering. No one is persecuting them”). same-sex sexual activity. Cameron, Unapprehended Felons, supra note 48, at 96. A 1987 127. See Fine & Nicol, supra note 47, at 270. survey of Cape Town residents (conventionally considered the most liberal town in all 128. See generally Dudgeon v. United Kingdom, App. No. 7525/76, 45 Eur. Ct. H.R. Africa) revealed that 71% believed homosexuality to be morally wrong. GORDON ISAACS 20 (1981) (reserving the question of whether Irish law discriminated against homosex- & BRIAN MCKENDRICK , MALE HOMOSEXUALITY IN SOUTH AFRICA : IDENTITY , INFORMATION , ual acts). CULTURE , AND CRISIS 141 (1992). 122. I have struggled to bring historical analysis to the novel and somewhat surpris- 129. Norris v. Ireland, App. No. 10581/83, 13 Eur. Ct. H.R. 186 (1991). ing results of the constitutional process for gays and lesbians in South Africa in a prior 130. Modinos v. Cyprus, App. No. 15070/89, 16 Eur. H.R. Rep. 485, 494 (1993). publication, so the description below is a summary of that analysis. Christiansen, End- 131. See Toonen, supra note 67, para. 9. ing the Apartheid of the Closet, supra note 25. 132. See Sarkin, supra note 20, at 68. 123. See id. at 1042– 56. 133. The Freedom Charter of 1955 (S. Afr.). 124. Id. 134. Christiansen, Ending The Apartheid of the Closet, supra note 25, at 1046. 125. Id. at 1044. 135. Id. 59 2016 Substantive Equality and Sexual Orientation 587 588 Cornell International Law Journal Vol. 49

As a philosophy, non-racialism espoused an end to all forms of dis- II. Gay and Lesbian Rights at the South African Constitutional Court crimination and the inviolability of human rights by the state. It also acted as a tool for ending apartheid, creating a democratic government, and heal- Having secured ratification of the first constitution to include express ing the nation. This same tool was wielded in the pre-drafting era and protections based on sexual orientation, many gay and lesbian activists throughout the drafting periods to promote inclusion of sexual orientation had high hopes. In the years that followed, the South African Constitu- as an additional protected category.136 The presumptive inclusion of sex- tional Court repeatedly rose to the challenge presented by the fact of this ual orientation as a basis for protection, combined with the centrality of unprecedented legal protection for an unpopular segment of South African non-racialism in ANC discourse about a post-apartheid nation, strongly society. In its first two decades, the Court decided six cases related to the supported the development of anti-discrimination policies that included sexual orientation provision of the Equality Clause.138 In each of its judg- express protections for gays and lesbians. ments, which included constitutional review of the criminalization of same-sex sexual activity, the application of laws related to family forma- tion, and the recognition of same-sex relationships, the Court unanimously 3. Constrained Drafting Process affirmed the full legal equality of the gay and lesbian parties before it. The third factor contributing to the inclusion of protections for gays The primary focus of the discussion below is the dramatic cases that and lesbians was the particular method of drafting the South African Con- start and conclude the arc of gay rights victories in the last two decades: stitution. The final draft of the constitution was the result of a sequential the decriminalization of sodomy in 1998 and the requirement of full mar- process that moved from draft to draft under tight time constraints and riage equality in 2005. strong political pressure.137 Party-based negotiating committees made the earliest decisions— and most of the weightiest decisions throughout the A. Decriminalization in the NCGLE Sodomy Case process— behind closed doors. Additionally, small groups— including theme committees of experts for the interim text and technical committees In the 1998 decision of NCGLE v. Minister of Justice (“NCGLE Sodomy in the final drafting process— directed most of the textual revisions. Fur- case”), the South African Constitutional Court decriminalized consensual thermore, the party-based Constitutional Committee approved most final same-sex sexual activity between adult males.139 The unanimous decision elements before the last draft was put to a vote— a vote uniformly decided confirmed a lower court ruling140 that declared unconstitutional the com- along party lines. mon law offense of sodomy and struck down provisions of the Sexual The consequence of this controlled, sequential process with a limited Offences Act that criminalized certain vaguely-defined acts between number of only indirectly accountable drafters was a final text determined mostly by experts and party elites. Gay and lesbian advocates were benefi- 138. Minister of Home Affairs v. Fourie 2005 (1) SA 524 (CC) at 2, 5 paras. 2, 6 (S. ciaries of this process because their concerns were congruent with the Afr.) (citing Fourie v. Minister of Home Affairs (Oct. 2002) No. 17280/02 (unpublished)); dominant ideology of the process and several important constitutional J and B v. Dir. Gen., Dep’t of Home Affairs & Others 2003 (5) SA 621 (CC) (S. Afr.); Du Toit & Another v. Minister of Welfare and Population Dev. & Others 2003 (2) SA 198 (CC) actors were outspoken in their support. (S. Afr.); Satchwell v. President of Rep. of S. Afr. 2002 (6) SA 1 (CC) (S. Afr) (granting Hence, the stage for this unprecedented protection was set by the remuneration and pension benefits to same-sex partners); Nat’l Coal. for Gay and Les- unique history of South Africa and its gay and lesbian citizens. The call for bian Equal. & Others v. Minister of Home Affairs & Others 1999 (2) SA 1 (CC) (S. Afr.) [hereinafter NCGLE Immigration]; Nat’l Coal. for Gay and Lesbian Equal. v. Minister of gay and lesbian equality emerged contemporaneously with the fundamen- Justice and Others 1999 (1) SA 6 (CC) (S. Afr.) [hereinafter NCGLE Sodomy]. References tal constitutional re-creation of a state that had existed for forty-seven years to Fourie in the remainder of this Article refer to the 2005 Constitutional Court case. with discrimination as its primary political and social reality. The domi- 139. See, e.g., Du Toit 2003 (2) SA 198 (CC) at 16 para. 21 (S. Afr.); Satchwell 2002 (6) nant ideology of liberation movement elites provided the justification for SA 1 (CC) at 17 para. 21 (S. Afr); NCGLE Immigration 1999 (2) SA 1 (CC) at 48– 49 para such an innovative legal protection, allowing sexual orientation protections 58 (S. Afr.); NCGLE Sodomy 1999 (2) SA 1 (CC) at para. 21 (S. Afr.). 140. Nat’l Coal. for Gay & Lesbian Equal. & Others v. Minister of Justice & Others 1998 to be included as a presumptive corollary of the ANC policy of non-racial- (6) BCLR 726 (W) at para. 2 (S. Afr.) [hereinafter NCGLE]. The Witwatersrand High ism. Additionally, a highly structured and political party-controlled consti- Court also struck down the common law offenses of sodomy and commission of an tutional drafting process allowed codification of a progressive human unnatural sexual act to the extent it criminalized acts “committed by a man or between rights standard, including explicit protections for gays and lesbians, men which, if committed by a woman or between women or between a man and a woman, would not constitute an offence.” These rulings were not referred to the Consti- despite uncertain claims of support from the public and international law tutional Court because a High Court (a South African trial court) is not required to refer precedent. declarations of constitutional invalidity of common law offences to the Court. NCGLE Sodomy 1999 (2) SA 1 (CC) at para. 2 (S. Afr.) (following the § 172(2)(a) requirement that declaration of constitutional invalidity of “an Act of parliament, a provincial Act or 136. Id. at 1048. any conduct of the President” must be confirmed by the Constitutional Court to have 137. Id. at 1052. force, but having no such requirement for common law rules). 60 2016 Substantive Equality and Sexual Orientation 589 590 Cornell International Law Journal Vol. 49 men.141 Writing for the unanimous Court, Justice Ackermann held that (c) The discrimination . . . gravely affected the rights and interests of gay 150 the common law and statutory offenses of sodomy violated the equality, men and deeply impaired their fundamental dignity. dignity, and privacy rights provided in the South African Constitution.142 The challenged sodomy laws, which targeted only same-sex sexual activity On the central issue of equality, Ackermann applied what is now the between men, were a presumptively unfair form of discrimination based on standard analysis for all discrimination questions. Indeed, the NCGLE sexual orientation. Sodomy case marked the first application of the Equality Clause from the In the final stage of the inquiry, justification may exist if the differenti- 1996 Constitution and it continues to be cited as one of the seminal ation, although unfair, satisfies the requirements of the Constitution’s Lim- descriptions of the multi-stage inquiry South African courts use to evaluate itations Clause.151 The South African Limitations Clause, like those in the discrimination claims.143 The core questions are: (1) Does the act discrim- German and Canadian Constitutions after which it was modeled, identifies inate? (2) Is the discrimination unfair? and (3) Can the unfair discrimina- a narrow set of justifications for an otherwise unconstitutional restriction tion be justified?144 on a person’s rights.152 In South Africa, the limitation must be “reasona- The first inquiry merely asks the parties to identify the differential ble and justifiable in an open and democratic society based on human treatment under law; in other words, are similarly situated persons or clas- dignity, equality[,] and freedom . . . .”153 ses of people treated differently?145 Notably, non-biased types of differen- Unfair discrimination that fails to be justified under the Limitations tial treatment are common and permissible.146 The second inquiry, Clause is a violation of the Constitution and thus must be declared uncon- therefore, is whether the discrimination is “unfair.” Discrimination is pre- stitutional and remedied. “When deciding a constitutional matter within sumed to be unfair if it is based on a classification enumerated in the its power, a court— (a) must declare that any law or conduct that is incon- Equality Clause: race, gender, sex, pregnancy, marital status, ethnic or sistent with the Constitution is invalid to the extent of its inconsistency; social origin, color, sexual orientation, age, disability, religion, conscience, and (b) may make any order that is just and equitable . . . .”154 While the belief, culture, language, and birth.147 Otherwise, determination of unfair- Court has no flexibility with the declaration of invalidity, it has significant ness is based on “the position of the complainants in society.”148 Particu- discretion in relation to the remedy it grants to plaintiffs. lar attention is paid to “whether they have suffered in the past from In the NCGLE Sodomy case, the Court held that the laws in question patterns of disadvantage,” the character and purpose of the provision, and were not saved by Limitations Clause analysis:155 “[T]here is nothing 149 the impact on the “rights or interests of the complainants . . . .” In the which can be placed in the other balance of the scale. The inevitable con- NCGLE Sodomy case, the Court concluded: clusion is that the discrimination in question is unfair and therefore in 156 (a) Gay men are a permanent minority in society and have suffered in the breach of [the Equality Clause].” Moreover, the Court conducted a sig- past from patterns of disadvantage. The impact is severe, affecting the dig- nificant survey of sodomy laws in Western democracies to demonstrate the nity, personhood[,] and identity of gay men at a deep level . . . . trend of growing judicial disfavor, although it noted the then-precedential 157 (b) [The sodomy prohibition] has no other purpose than to criminalise con- U.S. exception of Bowers v. Hardwick. duct which fails to conform with the moral or religious views of a section of society. 150. Id. at para. 26. 151. Section 36(1) of the 1996 Constitution states: The rights of the Bill of Rights may be limited only in terms of law of general 141. Sexual Offences Act of 1957 § 20A(1) (S. Afr.) (“A male person who commits application to the extent that the limitation is reasonable and justifiable in an with another male person at a party any act which is calculated to stimulate sexual open and democratic society based on human dignity, equality[,] and freedom, passion or to give sexual gratification, shall be guilty of an offence.”). Other statutory taking into account all relevant factors, including— (a) the nature of the right; (b) provisions detailing various state employment repercussions were also struck down. the importance of the purpose of the limitation; (c) the nature and extent of the NCGLE Sodomy 1999 (2) SA 1 (CC) at para. 106 (S. Afr.). limitation; (d) the relation between the limitation and its purpose; and (e) less 142. NCGLE Sodomy 1999 (2) SA 1 (CC) at para. 30 (S. Afr.). restrictive means to achieve the purpose. 143. Christiansen, Substantive Equality and Sexual Orientation, supra note 116, at 15. S. AFR . CONST ., 1996 § 36(1). 144. See NCGLE Sodomy 1999 (2) SA 1 (CC) at paras. 16– 17 (S. Afr.) (laying out 152. Stephen Gardbaum, Limiting Constitutional Rights, 54 UCLA L. REV . 789, these questions and citing to several cases including Harksen v. Lane NO and Others 798– 800, 840 (2007). 1997 (11) BCLR 1489 (CC) at para. 53 (S. Afr.)). While Harksen was decided under the 153. S. AFR . CONST ., 1996 § 36(1). Interim Constitution, the use by the Court in NCGLE Sodomy adopted the earlier frame- 154. S. AFR . CONST ., 1996 § 172(1). work for analysis into the equality jurisprudence under the 1996 Constitution. 155. Nat’l Coal. for Gay and Lesbian Equal. v. Minister of Justice and Others 1999 (1) 145. See id. SA 6 (CC) at para. 27 (S. Afr.) [hereinafter NCGLE Sodomy]. 146. Id. 156. Id. 147. NCGLE Sodomy 1999 (2) SA 1 (CC) at paras. 11, 13 (S. Afr.). 157. Id. at paras. 53– 54. See generally Bowers v. Hardwick, 478 U.S. 186 (1986), 148. Id. at para. 19. overruled by Lawrence v. Texas, 539 U.S. 558 (2003). The Court’s opinion stressed the 149. Id. (citing Harksen v. Lane NO and Others 1997 (11) BCLR 1489 (CC) paras. five-to-four nature of Bowers and the “sustained criticism” of its holding. In disregarding 50– 51 (S. Afr.)). the American ruling, the Court highlighted the express nature of the sexual orientation 61 2016 Substantive Equality and Sexual Orientation 591 592 Cornell International Law Journal Vol. 49

In Ackerman’s rather technical opinion, sexual orientation discrimina- capable as heterosexual spouses of expressing and sharing love in its tion is just another kind of discrimination rejected in the Constitution. For manifold forms . . . [and] are likewise as capable of forming intimate, per- loftier rights language, a reader need look no further than Justice Sachs’s manent, committed, monogamous, loyal[,] and enduring relation- concurring opinion. Perhaps predictably, given his long-term concern for ships . . . .”165 the equality of LGBT persons, Sachs’s opinion affirms the broader impor- Moreover, the Court affirmed the familial nature of gay relationships tance of striking down sodomy laws and its symbolic significance for a and their fundamental equality with heterosexual families: “they are capa- new constitutional democracy: ble of constituting a family, whether nuclear or extended, and of establish- Only in the most technical sense is this a case about who may penetrate ing, enjoying[,] and benefiting from family life which is not distinguishable whom where. At a practical and symbolical level it is about the status, moral in any significant respect from that of heterosexual spouses.”166 Such lan- citizenship[,] and sense of self-worth of a significant section of the commu- guage, and its underlying legal presumptions, were important to the subse- nity. At a more general and conceptual level, it concerns the nature of the quent cases at the Court, most of which touched on the equality of gay open, democratic[,] and pluralistic society contemplated by the families. After review of comparative remedies law and an affirmation of Constitution.158 Parliament’s capacity to refine the Court’s action, the Court “cured” the Sachs clearly identified the limited but vital capacity of the Constitu- challenged law by “reading in [to the effective text of the immigration law] tional Court when evaluating gay rights issues. The remainder of his con- after the word ‘spouse,’ the following words: ‘or partner, in a permanent currence focuses on “complementary observations of the broader matters,” same-sex life partnership.’”167 giving him an opportunity to present some considered thoughts on the In the 2002 Satchwell case, the Court held that the government must constitutional issues of privacy, dignity, and equality as highlighted by the afford the same-sex partners of South African judges the same employment case.159 This is not an uncommon practice in early Constitutional Court benefits provided to opposite-sex spouses.168 In a short, but (again) unani- opinions, especially among justices deeply invested in an expansive and mous opinion, the Court ruled that: progressive understanding of the constitutional project, like Sachs.160 Inasmuch as the [Act’s provisions] afford benefits to spouses but not to B. Getting to the Altar: Family and Relationship Recognition same-sex partners who have established a permanent life relationship simi- lar in other respects to marriage, including accepting the duty to support Over the five years following NCGLE Sodomy, the Court handed down one another, such provisions constitute unfair discrimination.169 five additional rulings promoting equality based on sexual orientation.161 In just over a dozen substantive paragraphs that rely heavily on the Each judgment was a unanimous decision; each was a victory for the gay plaintiffs; and each reaffirmed the Constitutional Court’s fundamental discussion of family and respect for alternative forms of familial relation- commitment to a generous interpretation of South Africa’s Equality Clause ship in the NCGLE Immigration case, the Court affirmed the underlying as it applied to lesbians and gay men.162 lesbian relationship and decried the discrimination in the Remuneration Act.170 The Court had no difficulty saying that the petitioners lived “in In the 1999 NCGLE Immigration case, the Court ruled that the equal- every respect as a married couple and [were] acknowledged as such by ity protections required that “gays and lesbians who are permanent their respective families and friends” and that their relationship was “inti- residents in the Republic and who are in permanent same-sex life partner- mate, committed, exclusive[,] and permanent.”171 Notably, counsel for the ships with foreign nationals” receive treatment equal to that given married heterosexual persons in the immigration law context.163 To reach its pro- equality conclusion, the Court first discussed the nature of same-sex rela- 165. Id. tionships— whether they resemble heterosexual relationships in quality and 166. Id. 164 167. Id. at 59, 61– 62, 67, 69– 70 paras 73, 77, 86, 89. The Court concluded it had kind. The Court stated several conclusions about the nature of same- two options for remedies: to strike down the provision allowing (any) spouses to immi- sex relationships: “Gays and lesbians in same-sex life partnerships are as grate or to “read in” comparable benefits for same-sex life partners. The former option had the significant failing of being “equality with a vengeance,” it created legal equality protections and the fundamentally more protective nature of the South African by stripping rights away from those legitimately benefiting from an otherwise constitu- Constitution. tional provision with strong popular and legislative support. The latter option had the 158. NCGLE Sodomy 1999 (1) SA 6 (CC) at para. 107 (S. Afr.) (Sachs, J., concurring). difficulty of being a novel verdict not previously applied by the Court. Here, the Court 159. Id. elected to “read in” a constitutional remedy that alters the effective text of the statute by 160. Letter from Albie Sachs, supra note 43. inserting language to fix an unconstitutional fault in the original law. The order, unlike 161. See infra notes 163, 167, 172, 176, 187 and accompanying text. the order in NCGLE Sodomy, had no retrospective effect. Id. at para. 89. 162. Id. 168. Satchwell v. President of Rep. of S. Afr. 2002 (6) SA 1 (CC) at 18 para. 23 (S. Afr). 163. Nat’l Coal. for Gay and Lesbian Equal. & Others v. Minister of Home Affairs & 169. Id. Others 1999 (2) SA 1 (CC) at 48 para. 57 (S. Afr.) [hereinafter NCGLE Immigration]. 170. See id. at 10– 12 paras. 12– 13. 164. See id. at 44– 46 para. 53. 171. Id. at 4 para. 4. 62 2016 Substantive Equality and Sexual Orientation 593 594 Cornell International Law Journal Vol. 49

Minister of Justice and Constitutional Development, representing the views crimination in family law generally and civil marriage laws specifically at of the government: least since the ruling in the NCLGE Immigration case. Indeed, it was diffi- [C]onceded without qualification, correctly in [the Court’s] view, that per- cult to imagine any other result once the text of the final constitution was manent same-sex life partners are entitled to found their relationships in a certified in 1996. Nevertheless, Parliament had refused to address the manner which accords with their sexual orientation and further that such extant discrimination in statutes (and the common law) or to take defini- relationships ought not to be the subject of unfair discrimination.172 tive action on the issue of marriage equality, refusing to act absent une- quivocal pressure from the Court.182 In the 2003 DuToit case, the Court ruled that denial of second-parent adoption rights to gay couples violated their constitutional rights to equal- Parliament failed to pass legislation that would bring South African ity and dignity, in addition to violating the “best interests of the child” family law into compliance with the equality mandate of the Constitution standard required by the child welfare protections of the Constitution.173 and the ANC neglected to apply sufficient pressure to advance such a rem- 183 The Act’s limitation “perpetuate[d] the fiction or myth of family homogene- edy. The Court expressly declared its growing frustration in J and B: ity based on the one mother/one father model. It ignore[d] developments “Comprehensive legislation regularizing relationships between gay and les- that have taken place in the country, including the adoption of the bian persons is necessary. It is unsatisfactory for the Courts to grant piece- [C]onstitution.”174 The Court concluded that the categorical exclusion of meal relief to members of the gay and lesbian community as and when permanent same-sex couples from the possibility of joint adoption “surely aspects of their relationships are found to be prejudiced by unconstitu- 184 defeat[ed] the very essence and social purpose of adoption which is to pro- tional legislation . . . .” The Court chided Parliament for its inaction, vide the stability, commitment, affection[,] and support important to a reminding its members that they were formally bound by the Constitu- child’s development . . . .”175 Among the Act’s many faults, its prohibitions tion185 and that they had a constitutional duty to “respect, protect, pro- “deprive[d] children of the possibility of a loving and stable family life.”176 mote[,] and fulfil the rights in the Bill of Rights.”186 The Executive and Later that year, in the confidentially named case J and B, the Court Legislature were therefore “obliged to deal comprehensively and timeously 187 applied the same reasoning to a case regarding adoption following artificial with existing unfair discrimination against gays and lesbians.” Parlia- insemination.177 In a very brief judgment, another unanimous Court ment did not— at least not until there was unequivocal judicial pressure. ruled on behalf of the lesbian appellants. Consistent with the previous cases, the Court held that Section 5 of the Status Act unfairly distinguished C. Marriage Equality at the Constitutional Court married persons from permanent same-sex life partners.178 Section 5 dis- criminated by denying to same-sex partners a right granted to heterosexual Mari´e Fourie and her girlfriend Cecelia Bonthuys had been together married couples: for both partners to become the legal parents of children for nearly ten years when they brought suit for legal recognition of their 188 born from artificial insemination.179 The Court remedied the unconstitu- relationship in the Pretoria High Court in 2002. The Court’s legal con- tional fault in the law by “reading in” the words “or permanent same-sex clusion, that the rights and privileges of marriage may not be denied on 189 life partner” whenever wife or husband was mentioned.180 the basis of sexual orientation, was mostly unsurprising. Nearly every element of the Fourie v. Minister of Home Affairs decision was dictated by These three rulings from 2002 and 2003 also evidenced the Court’s increasing frustration with parliamentary inaction.181 Strong evidence had existed that the Court would rule against sexual orientation-based dis- of Welfare and Population Dev. & Others 2003 (2) SA 198 (CC) (S. Afr.); Satchwell v. President of Rep. of S. Afr. 2002 (6) SA 1 (CC) (S. Afr.). 182. See generally J and B 2003 (5) SA 621 (CC) (S. Afr.); Du Toit 2003 (2) SA 198 172. Writing for the Court, Justice Madala described this concession as “correct[ ] in (CC) (S. Afr.); Satchwell 2002 (6) SA 1 (CC) (S. Afr.). my view.” Id. at 13 para. 15. 183. See generally J and B 2003 (5) SA 621 (CC) (S. Afr.); Du Toit 2003 (2) SA 198 173. Du Toit & Another v. Minister of Welfare and Population Dev. & Others 2003 (2) (CC) (S. Afr.); Satchwell 2002 (6) SA 1 (CC) (S. Afr.). SA 198 (CC) at 29– 30 paras. 41– 43 (S. Afr.). 184. J and B 2003 (5) SA 621 (CC) at para. 23 (S. Afr.). 174. Id. at 21 para. 28. 185. Id. at para. 25. 175. Id. at 16 para. 21. 176. Id. at 16– 17 para. 22. 186. S. AFR . CONST ., 1996 § 8(1) (“The Bill of Rights . . . binds the legislature, the 177. J and B v. Dir. Gen., Dep’t of Home Affairs & Others 2003 (5) SA 621 (CC) at executive, the judiciary[,] and all organs of state.”). para. 13 (S. Afr.). 187. J and B 2003 (5) SA 621 (CC) at para. 25 (S. Afr.). 178. Id. 188. Minister of Home Affairs v. Fourie 2005 (1) SA 524 (CC) at paras. 2, 6 (S. Afr.). 179. Id. at para. 15. 189. Du Toit & Another v. Minister of Welfare and Population Dev. & Others 2003 (2) 180. Id. at para. 28. SA 198 (CC) (S. Afr.); Satchwell v. President of Rep. of S. Afr. 2002 (6) SA 1 (CC) (S. Afr.); 181. The fact that the government ministers did not actively oppose the gay and les- Nat’l Coal. for Gay and Lesbian Equal. & Others v. Minister of Home Affairs & Others bian applicants in Satchwell, Du Toit, and J and B further suggests that the government 1999 (2) SA 1 (CC) (S. Afr.) [hereinafter NCGLE Immigration]; Nat’l Coal. for Gay and did not believe there was a viable constitutional argument in opposition to the gay rights Lesbian Equal. v. Minister of Justice and Others 1999 (1) SA 6 (CC) (S. Afr.) [hereinafter claim. See generally J and B 2003 (5) SA 621 (CC) (S. Afr.); Du Toit & Another v. Minister NCGLE Sodomy]. 63 2016 Substantive Equality and Sexual Orientation 595 596 Cornell International Law Journal Vol. 49 precedent.190 The Court’s unanimous substantive ruling was a relatively defect” in the Marriage Act.199 straightforward, incremental extension of existing precedent related to gay Parliament was ordered to address the discrimination in South African and lesbian equality in the realms of family formation and relationship family law. Same-sex couples may not be “subjected to marginalization or recognition. exclusion by law either directly or indirectly.”200 At last, Parliament had to The Court held that: perform the task the Court had reminded them was theirs. As Justice [T]aking account of the decisions of this court, and bearing in mind the Sachs said in Fourie, “It’s not only the Court’s duty to protect constitutional 201 symbolic and practical impact that exclusion from marriage has on same-sex rights. In fact, [the duty is] mainly legislative.” Parliament considered couples, there can only be one answer to the question as to whether or not how precisely to end the “present exclusion of same-sex couples from such couples are denied equal protection and subjected to unfair discrimina- enjoying the status and entitlements” of marriage.”202 The legislature’s 191 tion. Clearly, they are, and in no small degree. task was carefully circumscribed by both the general ruling in Fourie and The exclusion of same-sex couples from access to civil marriage was unfair the judgment’s declaration of two mandatory “guiding principles” relevant 203 discrimination because it was differential legal treatment on a prohibited to Parliament’s assigned task. basis, sexual orientation.192 The same-sex couple plaintiffs wanted South The first principle prohibited Parliament from achieving equality in African law to “accept the reality of their presence, and the integrity in its marriage law by ending the state’s role in marriage altogether. As the own terms, of their intimate life . . . .”193 This had not occurred. Instead, Court said it, “[l]evelling down so as to deny access to civil marriage to all “the law in the past failed to secure for same-sex couples the dignity, status, would not promote the achievement of the enjoyment of equality . . . .”204 benefits[,] and responsibilities that it accords to heterosexual couples.”194 The second principle prohibited a separate but equal formulation for mar- The Court asserted that the gay and lesbian parties sought “the right to be riage. The parliamentary response could not create or employ produce acknowledged as equal and to be embraced with dignity by the “new forms of marginalization.”205 Formal legal equality was not called law . . . .”195 for, substantive legal equality was required. Parliament must consider the Although the substantive holding was not significantly in doubt, the real life implications of its decisions. The Court would not be blind to the Court’s remedy was surprising: a one-year delay in enforcing the order of context in which that happens; equality and dignity require concern for invalidity.196 The Court could have directly and immediately fixed the “the intangibles as well as the tangibles involved.”206 “Ignoring the con- problem Parliament refused to address: the absence of a comprehensive text, once convenient, is no longer permissible . . . .”207 This second prin- legal scheme addressing same-sex family relationships. In prior cases, the ciple seemed intended to reject the proposed legislative solution of civil Court had used its expansive remedial powers to invalidate discriminatory unions, as a lower tier of relationship recognition for gay couples. The laws or to “read in” necessary language to cure a constitutional defect.197 prior identification of those two guiding principles saved the Court from The Court took neither route in Fourie. Rather, it identified the constitu- further review of the marriage legislation passed by Parliament in 2006.208 tional fault but suspended its ruling of invalidity.198 The Court sent the deficient law back to Parliament and gave it twelve months to “cure the 199. In justifying its delay, the Court highlighted that much legislative work had already been done preparing Parliament to make a decision in this area. The Court 190. See J and B 2003 (5) SA 621 (CC) (S. Afr.); Du Toit 2003 (2) SA 198 (CC) (S. noted that the South African Law Reform Commission was finalizing a legislative report Afr.); Satchwell 2002 (6) SA 1 (CC) (S. Afr.); NCGLE Immigration 1999 (2) SA 1 (CC) (S. and proposals. The Commission process had involved extensive public input, would be Afr.); NCGLE Sodomy 1999 (1) SA 6 (CC) (S. Afr.). imminently available to the Minister of Justice and Constitutional Development (and 191. Fourie 2005 (1) SA 524 (CC) at 49– 50 para. 78 (S. Afr.). through her to Parliament), and would be a comprehensive review of the necessary legal changes for formal recognition of same-sex family law arrangements. Id. at 81– 82 192. Id. (“The common law and section 30(1) of the Marriage Act continue to deny to paras. 130– 31. The SALRC in fact noted that the Court ruling would aid it in its recom- same-sex couples equal protection and benefit of the law . . . and taken together result in mendations to Parliament. Id. at 81 para. 129 n.124. same-sex couples being subjected to unfair discrimination by the state . . . .”). 193. Id. 200. Id. at 81, 91 paras. 129 n.124, 147. 194. Id. 201. Joe Katz, South African Judge Addresses Gay Marriage at Swift Hall, CHI . MAROON 195. Id. (Jan. 13, 2006), http://chicagomaroon.com/2006/01/13/south-african-judge-addresses- 196. Id. at 84– 86 paras. 135– 37. gay-marriage-at-swift-hall/ (emphasis added). 197. See, e.g., Nat’l Coal. for Gay and Lesbian Equal. & Others v. Minister of Home 202. Fourie 2005 (1) SA 524 (CC) at 91 para. 147 (S. Afr.). Affairs & Others 1999 (2) SA 1 (CC) at 73– 74 para. 98 (S. Afr.) [hereinafter NCGLE 203. Id. at 91– 94, paras. 148– 50. Immigration] (“[S]ection 25(5) of the Aliens Control Act 96 of 1991, is to be read as 204. Id. at 92 para. 149. though the following words appear . . . .”); Nat’l Coal. for Gay and Lesbian Equal. v. 205. Id. at 93– 94 para. 150. Minister of Justice and Others 1999 (1) SA 6 (CC) at para. 2 (S. Afr.) [hereinafter NCGLE Sodomy] (invalidating: “It is declared that section 20A of the Sexual Offenses Act, 1957 is 206. Id. at 96 para. 153. inconsistent with the Constitution and invalid”). 207. Id. at 94– 95 para. 151. 198. Fourie 2005 (1) SA 524 (CC) at 100– 01 para. 161 (S. Afr.). 208. See Civil Union Act 17 of 2006 (S. Afr.). 64 2016 Substantive Equality and Sexual Orientation 597 598 Cornell International Law Journal Vol. 49

III. A South African Gay Rights Jurisprudence Moreover, the Court’s judgments have been uniformly unanimous in result and have demonstrated little prevarication in their description of gay A. Summarizing Twenty Years of Constitutional Adjudication and lesbian individuals’ rights or the value of same-sex relationships.214 The South African Constitutional Court’s extant gay rights jurispru- Furthermore, support for gay and lesbian equality under the Constitution dence is the most affirmative constitutional gay rights jurisprudence of any has not been the vanity project of a few justices; rather, a variety of justices national court in the world. In the twenty years since the Constitution have authored the lead opinions with significant, meaningful concurrences 215 came into force, the Court has repeatedly and forcefully held that the trans- reinforcing the core holdings. There have been a total of five different formative constitutional values of equality and dignity forbid the state from lead authors (and two concurrences) for the Court’s six sexual orientation denigrating or excluding gays and lesbians from full and equal citizenship cases. The justices have seemingly embraced their responsibility to based merely on their position as a traditionally disfavored minority. The advance equality and prohibit “marginalization or exclusion by law, either Court’s jurisprudence has been typified by three traits: robust engagement directly or indirectly.”216 and impactful application of the prohibition of discrimination based on Notably, the term “impactful engagement” is not intended as a euphe- sexual orientation; sincere consideration and fair-minded assessment of mism for judicial activism.217 The Court’s role is properly described as the historical and social context of anti-gay discrimination; and unwaver- engagement rather than activism because the Court has stayed within the ing commitment to advancing the transformative values of equality and scope of the specific, live controversies brought properly before the Court. dignity in the Constitution. For example, although few scholars doubted the eventual result, the Court determined the unconstitutionality of the civil marriage limits related to 1. Impactful Engagement sexual orientation only when the case was properly before the Court.218 The Court did not hesitate to assert the underlying equality of same-sex Robust and impactful judicial engagement is the first characteristic couples and their relationships in earlier cases, but it called upon Parlia- that typifies the Constitutional Court in the area of gay and lesbian equal- ment to act rather than inserting itself into an insufficiently ripe dispute, ity. In its first twenty years, the Court issued substantive holdings in a as its holding in Fourie demonstrates. Moreover, there is a special role for 209 surprising number of high-profile gay rights cases. Indeed, all of the judicial engagement in the enforcement and interpretation of a transforma- gay rights cases were heard in the first decade following the inauguration 210 tive-by-design constitution; judicial inaction (and perhaps even judicial of the 1996 Constitution. The justices have not shied away from the moderation) might represent inappropriate ideological support for the sta- controversy associated with their socially unpopular views affirming gay tus quo. and lesbian equality. In its first case, the Court unflinchingly addressed the right to same-sex sexual activity, affirming the deeper dimensions and fundamental dignity concerns associated with the physical manifestations of human sexuality.211 In its most recent case, the Court embraced the most sharply contested modern gay rights claim: full equality in civil mar- 214. See Fourie 2005 (1) SA 524 (CC) (S. Afr.); J and B 2003 (5) SA 621 (CC) (S. Afr.); riage.212 The justices have not been reticent to strike down discriminatory Du Toit 2003 (2) SA 198 (CC) (S. Afr.); Satchwell 2002 (6) SA 1 (CC) (S. Afr.); NCGLE Immigration 1999 (2) SA 1 (CC) (S. Afr.); NCGLE Sodomy 1999 (1) SA 6 (CC) (S. Afr.). government policies and laws: “Although the Constitution itself cannot 215. See Fourie 2005 (1) SA 524 (CC) (S. Afr.); J and B 2003 (5) SA 621 (CC) (S. Afr.); destroy homophobic prejudice it can require the elimination of the public Du Toit 2003 (2) SA 198 (CC) (S. Afr.); Satchwell 2002 (6) SA 1 (CC) (S. Afr.); NCGLE institutions which are based on and perpetuate such prejudice.”213 Immigration 1999 (2) SA 1 (CC) (S. Afr.); NCGLE Sodomy 1999 (1) SA 6 (CC) (S. Afr.). 216. Fourie 2005 (1) SA 524 (CC) at 91 para. 147 (S. Afr.). 209. See, e.g., Fourie 2005 (1) SA 524 (CC) (S. Afr.); J and B v. Dir. Gen., Dep’t of 217. Like many American constitutional law scholars, I doubt the ultimate efficacy of Home Affairs & Others 2003 (5) SA 621 (CC) (S. Afr.); Du Toit & Another v. Minister of the term “judicial activism,” which is intended to refer to improper ideologically-based, Welfare and Population Dev. & Others 2003 (2) SA 198 (CC) (S. Afr.); Satchwell v. Presi- result-oriented adjudication but in contemporary (American) discourse most often dent of Rep. of S. Afr. 2002 (6) SA 1 (CC) (S. Afr.); Nat’l Coal. for Gay and Lesbian Equal. means only that the speaker disagrees with judge’s or justice’s reasoning or result. & Others v. Minister of Home Affairs & Others 1999 (2) SA 1 (CC) (S. Afr.) [hereinafter 218. Fourie v. Minister of Home Affairs 2003 (5) SA 301 (CC) at 7, 9– 10 (S. Afr.) NCGLE Immigration]; Nat’l Coal. for Gay and Lesbian Equal. v. Minister of Justice and (denying a direct appeal to the Constitutional Court and requiring the parties to appeal Others 1999 (1) SA 6 (CC) (S. Afr.) [hereinafter NCGLE Sodomy]. to the Supreme Court of Appeal). The Supreme Court of Appeal, a lower South African 210. See, e.g., Fourie 2005 (1) SA 524 (CC) (S. Afr.); J and B 2003 (5) SA 621 (CC) (S. court for purposes of constitutional claims, struck the statutory and common law mar- Afr.); Du Toit 2003 (2) SA 198 (CC) (S. Afr.); Satchwell 2002 (6) SA 1 (CC) (S. Afr.); riage law even though the [common law definition] was not properly challenged by the NCGLE Immigration 1999 (2) SA 1 (CC) (S. Afr.); NCGLE Sodomy 1999 (1) SA 6 (CC) (S. parties before it. Fourie v. Minister of Home Affairs 2005 (3) SA 429 (SCA) (S. Afr.). In Afr.). fact, the Fourie case was joined with a separate case when it was considered by the 211. See generally NCGLE Sodomy 1999 (1) SA 6 (CC) (S. Afr.). Constitutional Court in 2005. Lesbian and Gay Equality Project v Minister of Home 212. See generally Fourie 2005 (1) SA 524 (CC) (S. Afr.). Affairs 2006 (1) SA 524 (CC) (S. Afr.) (including a statutory challenge to the Marriage 213. NCGLE Sodomy 1999 (1) SA 6 (CC) at para. 130 (S. Afr.). Act, Act 25 of 1961). 65 2016 Substantive Equality and Sexual Orientation 599 600 Cornell International Law Journal Vol. 49

2. Contextual Assessment acknowledging the social context. It more incisively distinguished the legal conclusion from the extant social reality. The Constitutional Court’s commitment to understanding discrimina- Moreover, the Court’s assignment of the task of realizing full marriage tion and protecting rights requires the Court to consider the existing dis- equality to Parliament while effectively prescribing the result229 demon- criminatory environment, as well as the framework of substantive equality strated a sensitivity to social context— and political savvy— that demonstra- built into the post-apartheid constitutions. For example, context was vital bly benefitted an unpopular sexual minority. The Court even set a for the Court in its assessment of the impact of sodomy laws (even unen- timeline for the legislative action. The expected (and actual) result was that forced sodomy laws) on gay men.219 The Court identified the deeper Parliament passed marriage equality legislation in compliance with the dimensions of the law: “At a practical and symbolical level [these criminal Fourie ruling.230 The ANC, the standard-bearers of the most notable liber- laws were] about the status, moral citizenship[,] and sense of self-worth of ation movement of the last century, as well as the overwhelmingly domi- a significant section of the community.”220 nant domestic political party, became the immediate focus for marriage Context showed that sodomy laws had been used as a tool of oppres- equality in South African law.231 sion and as an expression of social disapproval— unacceptable under the 232 221 The democratic legitimacy of a legislative resolution, the require- new constitution. The Court declared it would not be blind to the envi- ment of affirmative legislative support for gay and lesbian South Africans ronment in which discrimination happens; equality and dignity require a 222 from the ANC, and the inevitable discussion of the meaning of gay rights in concern for the “intangible as well as the tangibles involved.” the context of South Africa’s constitutional values, advanced the realization The Court discussed existing animus toward gays and lesbians as an of equality both domestically and internationally. Moreover, the result element of the background reality to be reflected in its decisions, not as a diminishes the impression of marriage equality as first world, Western, legally irrelevant fact to be ignored. The Court acknowledged the hurt of and Northern hemisphere affectation. The example of enforceable prohibi- discrimination, as when it acknowledged that denial of recognition of tions on discrimination based on sexual orientation and even marriage same-sex relationships “has been wounding and the scars are evident in equality expanded the potential for LGBT equality globally. our society to this day.”223 Indeed, the Court expressly acknowledged the negativity with which gays and lesbians were commonly viewed in South 3. Transformative Values Africa, but strongly affirmed that “[t]he ubiquity of a prejudice cannot sup- port its legitimacy.”224 The third evident characteristic of the Constitutional Court’s gay The importance of context was particularly evident in the discussion rights jurisprudence is its commitment to the transformative nature of the of religious arguments against marriage equality. Justice Sachs acknowl- post-apartheid constitutions. The Constitution’s commitment to expansive edged the role of procreation in religious understandings of marriage, but notions of equality is reflected in the Court’s rulings and in its approach. denied its significance to a legal understanding of the institution.225 For In assessing rights under a transformative constitution, “[t]he crucial deter- the Court, the constitutional duty was both to take seriously the religious minant will always be whether human dignity is enhanced or diminished views of the majority of South Africans as well as to protect the rights of and the achievement of equality is promoted or undermined by the mea- non-believers and minority faiths.226 “Certainly the Court cannot assess sure concerned.”233 The Court’s commitment to expansive, substantive the correctness of particular biblical interpretations of sources of law but it equality rather than merely formal, legal equality has typified its approach can assess that marriage equality has no direct impact on marriages of to the cases discussed above. This is reflected in the Court’s broad itera- traditional believers.”227 As a consequence, the judgment stated unequivo- tion of the plaintiffs’ claims: cally that “[i]t would be out of order to employ the religious sentiments of 228 [T]he [gay and lesbian parties] in this matter seek . . . not the right to be left some as a guide to the constitutional rights of others.” Directly address- alone, but the right to be acknowledged as equals and to be embraced with ing these dominant religious opinions enriched the Court’s rulings by dignity by the law . . . . [T]he law in the past failed to secure for same-sex couples the dignity, status, benefits[,] and responsibilities that it accords to 219. See NCGLE Sodomy 1999 (1) SA 6 (CC) at para. 107 (S. Afr.). 220. Id. 229. Id. at 100– 01 para. 161 (providing the read-in remedy if Parliament does not act 221. Id. at para. 30. within twelve months). 222. Fourie 2005 (1) SA 524 (CC) at 96 para. 153 (S. Afr.). 230. See generally Civil Union Act 17 of 2006 (S. Afr.). 223. Id. at 49– 50 para. 78. 231. Barry Bearak, Final Results Show Resounding Victory for A.N.C. in South Africa, 224. Id. at 71– 72 para. 113. N.Y. TIMES (Apr. 26, 2009), http://www.nytimes.com/2009/04/26/world/africa/26SAF 225. Id. at 54– 55 paras. 85– 87. RICA.html (describing the ANC’s election victory with 66% of the April 2009 vote). 226. Id. at 55– 56 para. 89. 232. Fourie 2005 (1) SA 524 (CC) at 108– 09 para. 171 (S. Afr.) (O’Regan, J., 227. Id. at 58 para. 92. concurring). 228. Id. 233. Id. at 95– 96 para. 152. 66 2016 Substantive Equality and Sexual Orientation 601 602 Cornell International Law Journal Vol. 49

heterosexual couples.234 1. Danger and Disfavor Moreover, the cases were not just about the plaintiffs and their dis- In a 2008 study of attitudes toward same-sex sexual activity, 83.6% of crimination claims, they were about the values of the nation. Of course, South Africans said it was always wrong.239 Indeed, only 7.7% of South the Court’s jurisprudence removed criminal proscription, granted access to Africans reported believing that same-sex sexual activity was not wrong at state-sponsored benefits, and ensured government recognition of relation- all.240 These results are even more striking because they track attitudes ships, but “[a]t a more general and conceptual level, it concern[ed] the toward activity unanimously declared constitutional by the Constitutional nature of the open, democratic[,] and pluralistic society contemplated by Court more than a decade earlier. Studies regularly show these kinds of the Constitution.”235 Each case served not only the particular gay or les- disparities between popular attitudes and legal protections in South bian plaintiffs, but the new-born constitutional democracy “in which gov- Africa.241 Moreover, attitudes in South Africa seem to be improving ernment is based on the will of the people and every citizen is equally slowly. A more recent 2013 study found that 61% of South Africans felt protected by law.”236 The Court understood its institutional role of provid- that society should not accept homosexuality.242 And while South Africa ing support for the rights-focused transformation started with the Interim had dramatically higher favorable responses (32%) than any other nation Constitution. And, it clearly believed its gay rights decisions have success- in Africa (the next highest was Kenya at 8%), South Africa’s rate of disfavor fully done so: “From today a section of the community can feel the equal was significantly higher than any other nation with comparable legal concern and regard of the Constitution and enjoy lives less threatened, less protections.243 lonely and more dignified. The law catches up with an evolving social The disfavor with which gay and lesbian people (as well as bisexual reality.”237 and transgender people) are viewed results in frequent acts of overt dis- Alas, legal decisions are limited in their impact. The Court’s success crimination and physical harm. As Justice Minister Radebe recently said, in invoking constitutional principles to invalidate biased legal rules almost “Notwithstanding the comprehensive constitutional and legal framework exclusively impacts laws and actions of government institutions. As we and protection for LGBTI persons, we have sadly witnessed acts of discrim- shall see below, achieving positive effects on the day-to-day experience of ination and violent attacks being perpetrated against LGBTI persons.”244 bias and discrimination faced by gays and lesbians has proven to be much Homophobic violence in South Africa has taken many forms but it has more difficult. its most gruesome expression in the epidemic of so-called “corrective rape.” Corrective rape is the practice of sexual assault primarily against B. The Inadequacy of Constitutional Law Protections lesbians or other gender non-conforming women and transgender persons, for the claimed purpose (or pretense) of “curing” them of their homosexu- Sadly, the legal protections are only one side of the story of sexual ality.245 These crimes most frequently, though not exclusively, are perpe- orientation discrimination in South Africa. Indeed, for many gay South trated in townships against black lesbians.246 As a recent report baldly Africans, the Constitution plays only a small part of the overall story— a asserted, “rape is fast becoming the most widespread hate crime against part that does not include their lived reality. The broad legal protections lesbian women in townships across South Africa.”247 While this category must be contrasted with widespread social disapproval of homosexuality, of hate crime is connected to the appalling prevalence of rape in South recurrent and routine discrimination, and the dramatic prevalence of hate crimes, especially crimes of homophobic violence.238 239. Tom W. Smith, Cross-National Differences in Attitudes Towards Homosexuality, 31 GSS CROSS -NATIONAL REP . 1, 17 (2011). 234. Id. at 49– 50 para. 78. 240. Id. 235. Nat’l Coal. for Gay and Lesbian Equal. v. Minister of Justice and Others 1999 (1) 241. Id. SA 6 (CC) at para. 107 (S. Afr.) [hereinafter NCGLE Sodomy] (Sachs, J., concurring). 242. The Global Divide on Homosexuality: Greater Acceptance in More Secular and 236. S. AFR . CONST ., 1996, pmbl. Affluent Countries, PEW RES . CTR . (June 4, 2013), www.pewglobal.org/2013/06/04/the- 237. NCGLE Sodomy 1999 (1) SA 6 (CC) at para. 130 (S. Afr.). global-divide-on-homosexuality. 238. Much has been written by scholars and activists that examine these complex 243. Id. issues in greater depth and sophistication than is appropriate for this Article. Accord- 244. SAPA, Radebe Launches LGBTI Violence Programme, IOL NEWS (Apr. 29, 2014), ingly, the discussion in this Article is meant primarily for instrumentalist purposes. See www.iol.co.za/news/crime-courts/radebe-launches-lgbti-violence-programme-1.168156 Helen Wells & Louise Polders, Anti-Gay Hate Crimes in South Africa: Prevalence, Report- 3#.VF_n6Mn4LC6. ing Practices, and Experiences of the Police, 67 AGENDA : EMPOWERING WOMEN FOR GENDER 245. We’ll Show You You’re a Woman: Violence and Discrimination Against Black Lesbi- EQUITY 20, 20 (2006). See generally Combating Violence Against LGBTI People in South ans and Transgender Men in South Africa,HUM . RTS . WATCH (Dec. 5, 2011), https://www Africa, HUM . RTS . FIRST (Aug. 2, 2013), http://www.humanrightsfirst.org/2013/08/02/ .hrw.org/report/2011/12/05/well-show-you-youre-woman/violence-and-discrimination- combating-violence-against-lgbti-people-in-south-africa; Robyn Dixon, In South Africa’s against-black-lesbians-and. Black Townships, Being Gay Can Be Fatal, L.A. TIMES (May 27, 2011), http://arti- 246. See generally id. cles.latimes.com/2011/may/27/world/la-fg-south-africa-gay-killings-20110528; Glynnis 247. Hate Crimes: The Rise of ‘Corrective’ Rape in South Africa, ACTION AID (2009), Underhill, People Are Dying as We Speak, MAIL & GUARDIAN ONLINE (May 6, 2011), http:/ www.rapeoutcry.co.za/home/wp-content/uploads/2012/09/ActionAid-Corrective-Rape /mg.co.za/article/2011-05-06-people-are-dying-as-we-speak. .pdf. 67 2016 Substantive Equality and Sexual Orientation 603 604 Cornell International Law Journal Vol. 49

Africa, the roots of this specific form of violence lie in both sexism and These laws attempt to translate the constitutional discrimination prohibi- hatred of LGBT persons.248 Moreover, while the rape statistics are unlikely tions into statutory law. Parliament has also established specialized Equal- to reflect the full scope of the problem (as with both sexual assault and ity Courts to address discrimination by private parties. But the anti-gay hate crimes generally), there are estimates of up to ten reported discrimination and the violence continue: 249 corrective rapes a week. In spite of this enabling legal environment, the lived reality for many LGBTI There are critical concerns about corrective rape that extend beyond persons is quite a different story. On the most extreme end of a wide spec- the acts of violence to doubts about the state’s response: Do police suffi- trum of discriminatory experiences, there are frequent reports of extreme ciently investigate the crimes? Do state prosecutors diligently pursue the violence inflicted on young, black, lesbian women in the form of so-called perpetrators? Do local authorities show adequate concern? Does public “corrective” rape, often ending in murder. Gay men and transgender per- opinion sufficiently condemn these acts? Fundamentally, are the state and sons are also often targets of physical violence, and labour discrimination and exposure to derogatory and threatening speech is also common. the public complicit in this on-going epidemic of violence? At the intersec- Finally, deprioritisation, marginalisation, exclusion[,] and targeted victimis- tion of “homophobia, sexism[,] and gender-motivated violence” there will ation by those public institutions intended to provide services and protec- be no easy solutions, but the on-going nature of the crisis demands a force- tion are everyday realities for LGBTI persons in many communities, leading ful and impactful response.250 to a lack of resources when crimes are committed and resulting in victims’ The government has acknowledged the many problems with discrimi- fear to even report crimes.254 nation, but has, thus far, been unable to solve them. The state has initiated Consequentially, many gays and lesbians continue to have a particular and a variety of legislative responses, including specialized legislation to realistic fear of discriminatory treatment and homophobic violence, regard- address discrimination. Relevant laws include the Employment Equity less of the constitutional and statutory protections. Act,251 the Promotion of Equality and Prevention of Unfair Discrimination 252 253 Act (the Equality Act), and other laws that touch on equality issues. 2. Social Change and the Courts

248. See Lydia Smith, Corrective Rape: The Homophobic Fallout of Post-Apartheid South It is no great revelation that even the much-praised South African Africa, TELEGRAPH (May 21, 2015), http://www.telegraph.co.uk/women/womens-life/ courts have proven insufficient to eradicate discrimination based on sexual 11608361/Corrective-rape-The-homophobic-fallout-of-post-apartheid-South-Africa.html orientation. Courts cannot achieve a socially just society on their own, (“In a country strongly influenced by traditional cultures and religious groups, correc- tive rape is a reaction to protect the status quo . . . .”). neither generally nor in the limited context of gay and lesbian equality. 249. SCOTT LONG , A. WIDNEY BROWN & GAIL COOPER , HUM . RTS . WATCH , MORE THAN A Progressive constitutional rights, a sympathetic court, and willing plaintiffs NAME : STATE -SPONSORED HOMOPHOBIA AND ITS CONSEQUENCES IN SOUTHERN AFRICA 193 are not enough. This is true despite the fact that the gay rights litigation (2003) (“In the absence of adequate statistical investigation, the evidence is anecdotal; strategy of the last two decades has been, from an objective and relative the fear, though, is palpable”); see Lee Middleton, ‘Corrective Rape’: Fighting a South Afri- can Scourge, TIME (Mar. 8, 2011), http://content.time.com/time/world/article/0,8599 perspective, exceedingly successful at securing pro-gay rulings and transi- ,2057744,00.html (“South Africa should be a beacon of tolerance. Its constitution was tioning lofty constitutional promises into concrete legal rules. the first in the world to outlaw discrimination based on sexual orientation . . . . But in Expectations of judicial impacts on social transformation should be the townships on the city’s outskirts, another reality reigns. The rate of violence against women in South Africa is among the highest in the world.”). modest in scope and appropriately tailored. Regrettably, it is reasonable to 250. Roderick Brown, Corrective Rape in South Africa: A Continuing Plight Despite an expect only limited outcomes from courts, not full-scale change.255 This is International Human Rights Response, 18 ANN . SURV . INT ’L & COMP . L. 45, 47 (2012) particularly true in nations like South Africa, where both the Court’s and (addressing what steps have already been taken and “what steps need to be taken to the Constitution’s views are so divergent from popular opinion. Substan- more effectively address the problem not only in South Africa, but also across the globe”); see Sekoetlane Jacob Phamodi, Hate Crimes: “Homophobic Rape,” RAPE OUTCRY , tive change in social attitudes must come from extra-judicial efforts— par- www.rapeoutcry.co.za[domain DNE]/home/?page_id=177 (last visited Mar. 31, 2015). ticularly from civil society and cause-based organizing.256 Ideally, this is See generally Lorenzo Di Silvio, Correcting Corrective Rape: Carmichele and Developing accompanied by appropriate support from governmental entities. South Africa’s Affirmative Obligations To Prevent Violence Against Women, 99 GEO . L.J. 1470, 1474– 75 (2011) (suggesting what South Africa’s affirmative obligations to pre- vent corrective rape might look like). 253. See, e.g., Alteration of Sex Description and Sex Status Bill of 2003, Bill 37B (S. 251. See generally Employment Equity Act 55 of 1998 (S. Afr.) (“[To] eliminate unfair Afr.) (allowing legal change of sex identification under limited circumstances). discrimination in employment [and] redress the effects of [past employment] 254. See generally DEP ’TOF JUSTICE AND CONSTITUTIONAL DEV ., NATIONAL INTERVENTION discrimination.”). STRATEGY FOR LESBIAN , GAY , BISEXUAL , TRANSGENDER AND INTERSEX (LGBTI) SECTOR 252. See generally Promotion of Equality and Prevention of Unfair Discrimination Act (2014), www.justice.gov.za/vg/lgbti/2014-LGBTI-Strategy.pdf. 4 of 2000 (S. Afr.) (prohibiting unfair discrimination by government, private organiza- 255. See GERALD N. ROSENBERG , THE HOLLOW HOPE : CAN COURTS BRING ABOUT SOCIAL tions, and individuals through legislation, measures, and remedies); DEP ’TOF JUSTICE CHANGE ? 3 (1991) (arguing that judicial capacity for social change is limited). See gener- AND CONSTITUTIONAL DEV ., STAND AND DEFEND YOUR RIGHT TO EQUALITY (2011) (explain- ally LEVERAGING THE LAW : USING THE COURTS TO ACHIEVE SOCIAL CHANGE (David A. Sch- ing terms and provisions of the Promotion of Equality and Prevention of Unfair Discrim- ultz ed., 1998) (discussing a variety of critical responses to the Hollow Hope thesis). ination Act). 256. See ROSENBERG , supra note 255, at 7– 8. 68 2016 Substantive Equality and Sexual Orientation 605 606 Cornell International Law Journal Vol. 49

The South African Constitutional Court’s contributions were assur- One of the abiding lessons from the South African experiment in pro- edly groundbreaking and legally transformative, but the Court has been an gressive constitutionalism is that constitutional drafting need not fit within insufficient instrument for the realization of full, substantive equality for traditional or proven patterns. Novelty in constitution making is not a per gays and lesbians in South Africa. Nevertheless, the final part of this Arti- se flaw. The South African Constitution included relatively exceptional cle identifies several significant and affirmative comparative lessons drawn rights (for example, enforceable social welfare and sustainable environ- from how the Court has crafted, interpreted, and enforced its progressive, mental rights) with broad applicability (including prohibitions on private gay-rights inclusive, and rights-oriented Constitution. discrimination and expanded non-discrimination categories like sexual orientation) and permitted generous enforcement through its permissive standing and remedial provisions.259 For many commenters, this was IV. Lessons from the South African Experience promising too much.260 It seemed a recipe for popular disappointment, Careful examination of the drafting history, Constitutional Court court delegitimation, or state failure. But the last twenty years of progres- adjudication, and the practical insufficiencies of the South African Consti- sive constitutional adjudication in South Africa belie that expectation. tution’s inclusion of sexual orientation protections highlights three catego- Of course, rights in a constitutional document are not enough; an ries of lessons drawn from the last two decades of constitutional rights in empowered judiciary aligned with those constitutional values is, similarly, South Africa. These lessons include an encouraging insight about novel a necessary but insufficient element. “Bold Constitutions require bold and progressive elements in the drafting of modern constitutions, some judges.”261 The first generation of South African justices had significant modest claims about the capacity of courts to combat inequality based on prior exposure to human rights issues, having seen their denial first hand sexual orientation, and a hopeful affirmation of the value of even unreal- by the time of their 1994 appointment by President Mandela.262 Having ized constitutional aspirations for the fields of comparative constitutional- participated in the struggle against apartheid, they saw transformative ism and gay and lesbian equality. rights adjudication as a core purpose of the Constitutional Court. As for- mer Chief Justice Chaskalson described it, “Under our Constitution the A. Lessons for Progressive Constitutional Drafting normative value system and the goal of transformation, are intertwined.”263 Rather than being a cautionary tale about progressive constitution- The expansive progressive elements of the Constitution have worked, drafting hubris, two decades of constitutional adjudication in South Africa in large part, because the drafters and the justices shared an affirmative demonstrate the real, if modest, rewards of bold constitutionalism. Follow- constitutional purpose: facilitating South Africa’s transformation from the ing apartheid, the capacious vision of substantive equality in enumerated apartheid state to a multi-racial democracy. The Constitution “demands civil, political, and socio-economic rights was joined with a broadly [of judges] . . . a legal order be established that gives substance to its found- empowered and respected institution, the Constitutional Court. The pair- ing values— democracy, dignity, equality[,] and freedom . . . .”264 This ing of effusive rights protections with a capstone court composed of jus- approach envisions South Africa as a reformed country, a “human rights tices aligned with the values of the new transformative Constitution created state” intent on transforming itself into an example to other nations.265 an opportunity for considerable rights adjudication in just twenty years. The Constitutional Court evidently sees itself as the primary guardian This achievement started with the enumeration of these rights in the Constitution 259. See, e.g., Eric C. Christiansen, Transformative Constitutionalism in South Africa: If end-of-the-century human rights scholars had written a “best prac- Creative Uses of Constitutional Court Authority to Advance Substantive Justice, 13 J. GEN- tices” manual for constitution drafters, the collection of rights and the DER , RACE & JUST . 575, 576 (2010) [hereinafter Christiansen, Transformative Constitutionalism]. mechanisms for enforcement of those rights would look very much like the 260. See, e.g., Dennis Davis, The Case Against Inclusion of Socio-Economic Demands in South African Bill of Rights in the 1996 Constitution. Of course, that is no a Bill of Rights Except as Directive Principles, 8 S. AFR . J. HUM . RTS . 475, 488– 89 (1992). coincidence. The process of drafting the South African Constitution was “a 261. See Letter from Albie Sachs, supra note 43, at 224. deliberate attempt to have a fundamental instrument of government that 262. Many of the justices, especially the ANC members, had joined foreign law facul- 257 ties, human rights organizations, and NGOs, or had participated in meetings or interna- embraced basic human rights.” As its Preamble states, one of the Con- tional conferences related to apartheid and human rights. See Judges, CONST . CT. S. AFR ., stitution’s core purposes was to “establish a society based on democratic http://www.constitutionalcourt.org.za/site/judges/formerjudges.htm (last visited Sept. values, social justice[,] and fundamental human rights.”258 23, 2016) (providing biographies of current and former justices). 263. Arthur Chaskalson, C.J., Const. Ct. of S. Afr., Justice Chaskalson’s Farewell Speech (June 2, 2005), http://www.constitutionalcourt.org.za/site/thecourt/farewell 257. Jonathan Faull, Ruth Bader Ginsburg Knows Her Constitutions, AFRICA ISA COUN- .htm. TRY (Feb. 16, 2012), www.africasacountry.com/ruthbaderginsburg/ (quoting U.S. 264. Id. Supreme Court Justice Ruth Bader Ginsberg). 265. See S. AFR . CONST ., 1996, pmbl. (“We . . . adopt this Constitution . . . to . . . 258. S. AFR . CONST ., 1996, pmbl. establish a society based on . . . fundamental human rights.”). 69 2016 Substantive Equality and Sexual Orientation 607 608 Cornell International Law Journal Vol. 49 and expositor of the Constitution.266 It has been the “the key institution of B. Lessons for Advancement of Constitutional Equality [South African] constitutional democracy.”267 From the time it was The South African Constitutional Court has employed several different founded and given the task of certifying the Constitution to its ongoing strategies for maximizing equality, including gay and lesbian equality. As charge of monitoring the lower judiciary and assessing the constitutional- discussed below, the justices use their reasoning and judgments to guide ity of all government actions, the Court has been at the center of South official action by the other branches of government; they strengthen their Africa’s transition. Even twenty years later, and after the death or retire- own authority by leveraging the legitimacy of the elected branches, the ment of all of its original members, the Court’s review of current controver- ANC, and the anti-apartheid struggle; and they empower future plaintiffs sies still encourages popular and legislative dialogue about the through their expansive assurances of broad-based equality under the Constitution’s commitment to progressive goals and it further advances its Constitution. reformist values. It reminds all South Africans that the Constitution’s his- toric promises remain relevant to present problems. This reinforces the on- 1. Guiding Official State Action going role of the Constitution’s values in present-day society. In fact, rein- forcing the values of the founding generation through their written judg- The Court’s gay and lesbian rights decisions have intentionally and ments remains a particularly important role of Constitutional Court proactively pressured the executive and legislative branches to act consist- Justices, even two decades after the court’s initial decisions. ently with their constitutional duties. In and of itself, this is unremarkable; courts always have the role of executing this guidance function. The role of For example, with regard to progressive rights of equality for gays and legal precedent has always been to inform state actors of the future likeli- lesbians, which many people oppose on religious or other grounds, the hood of particular legal results for relatively similar parties in relatively Court plays a critical role, reaffirming the commitments South Africans similar situations. But the South African Constitutional Court has gone made in the Constitution— even if those commitments are personally disfa- further. vored. Its legitimacy and authority allows the Court to assert expansive The Court has encouraged the political branches to take specific equality as a core constitutional value in a manner that re-connects it to its action that would advance substantive equality, occasionally chiding them origins in non-racialism and the struggle against apartheid. to do so. The most obvious examples are the cases that preceded the mar- In part, the Constitutional Court’s successes have resulted from its riage equality decision in Fourie. The Court rebuked Parliament for its fail- capacity to maintain and reinvigorate South Africa’s “constitutional ure to pass “comprehensive legislation” related to gay and lesbian family moment,” the period of expectancy and generosity at the end of apartheid law and marriage. As multiple cases highlighted this deficiency between and the start of democratic constitutionalism. The Court’s frequent refer- 1999 and 2003, the Court was no longer content with implying that Parlia- ences to post-apartheid transformation and constitutional values support ment should act. In the last gay rights case before Fourie, the Court point- its progressive and expansive rulings, reminding South Africans of a more edly declared that “[i]t is not appropriate for courts to determine [details of optimistic moment in time when the commitments were initially made. laws implementing marriage equality] . . . . Those are matters for the legis- Subject to necessary caveats related to the limited power of the judici- lature . . . .”268 When Parliament failed to act in a timely and concrete ary to effect social change, the South African Constitutional Court has manner, the Court focused the legislative task and required Parliament’s inaugurated an impressive jurisprudence— substantive equality expressed action by ordering it to act on marriage equality or to have a judicial solu- through robust anti-discrimination and the promotion of human dignity, tion imposed on the nation within one year.269 The Court’s calculated use social welfare, and democratic participation— in service of the constitu- of the text, history, and purpose of South Africa’s transformative Constitu- tional purpose of transforming South Africa. One obvious lesson of the tion ensured legislative cooperation in implementing gay and lesbian legal last twenty years is that progressive textual rights can advance social justice equality. and constitutional transformation, to a modest but beneficial extent, when Moreover, the Court’s decision to require a legislative remedy could be entrusted to an empowered and values-aligned judiciary. understood to show that Parliament may not escape its constitutional responsibilities through judicial resolution. Not all forms of guidance are as direct as the Court’s approach in Fourie. Perhaps this is because the other government branches are not typically as obstinate. However, when 266. History of the Court, CONST . CT. S. AFR ., www.constitutionalcourt.org.za/site/ the other branches respond in an early and appropriate manner, by pass- home.htm (last visited Sept. 23, 2016); see also CONST . CT. S. AFR ., www.constitution- alcourt.org.za/site/home.htm (last visited Sept. 23, 2016) (“[T]he 11 judges stand guard ing affirmative legislation or altering government practices, the changes over the Constitution and protect everyone’s human rights.”); Former Judges, CONST . CT. S. AFR ., http://www.constitutionalcourt.org.za/site/judges/formerjudges.htm (last vis- 268. J and B v. Dir. Gen., Dep’t of Home Affairs & Others 2003 (5) SA 621 (CC) at ited Sept. 24, 2016). para. 26 (S. Afr.). 267. History of the Court, supra note 266. 269. Minister of Home Affairs v. Fourie 2005 (1) SA 524 (CC) at 98 para. 158 (S. Afr.). 70 2016 Substantive Equality and Sexual Orientation 609 610 Cornell International Law Journal Vol. 49 never appear in the case reports of the Constitutional Court. Hence, the The marriage equality legislation that eventually passed278 could overall effectiveness of this guidance function may be unknowable, even if claim greater political legitimacy, and the process of its passage prompted its importance is inarguable. This is particularly true in a jurisprudential discussion of gay rights issues popularly. The Court had used its open- area of ample and consistent judicial action, like the field of gay and les- ended remedial power to advance substantive equality through a process bian equality. that bolstered the socio-political elements of equality. In this way, the Court was able to reinforce the constitutional value of equality in a more 2. Leveraging Legitimacy productive and potentially enduring manner than if it had merely invali- dated the law or “read in” language to alter existing marriage laws.279 A second strategy of the Court focuses on maximizing the influence of its decisions by bolstering its status and relative acceptance. Stable consti- 3. Inspiring Future Claims tutionalism requires institutional and popular legitimacy for court judg- ments. This is particularly the case when a constitution seeks to “[h]eal The Court’s gay rights jurisprudence can inform future anti-discrimi- the divisions of the past and establish a society based on democratic val- nation and affirmative protection claims in at least two substantive ways. ues, social justice[,] and fundamental human rights.”270 Transformative First, it can provide a generous model for additional rights claims related to constitutionalism requires the Court to maximize its legitimacy whenever sexual orientation and gender identity, extending the legal protections for possible.271 At the most general level, the Court’s consistent use of plain gays and lesbians to additional segments of the LGBTI community. And language rather than specialist legal terminology promotes legitimacy by secondly, future advocates may seek court orders of a more affirmative making the Court’s reasoning more accessible.272 Similarly, the Court rou- nature, requiring the government to satisfy its affirmative duties to tinely issues very brief summaries of important cases, targeted at the “respect, protect, promote[,] and fulfill”280 the constitutional promise of media. These summaries support clear communication of the reasoning equality. and result of the Court’s judgment, with the aim of enhancing understand- It is unfortunate, however, that the Court has not spoken more sub- ing and support of its decisions.273 stantively about the meaning and constitutional significance of sexual ori- Fourie again provides a helpful example.274 The Court’s carefully cir- entation outside the application to gays and lesbians. Additionally, it is cumscribed marriage equality order to Parliament275 leveraged the demo- regrettable that the Court has not yet had occasion to significantly address cratic authority of the National Assembly generally and the popularity of discrimination related to gender identity— especially because gender is a the ANC specifically to bolster the desired result.276 The intended result distinctly protected category (in addition to sex) in the Equality Clause.281 was electorally legitimized because it was democratically legislated with The Court did adopt a working definition of sexual orientation in the support from the politically and culturally dominant ANC. The Court, Par- NCGLE Sodomy case: “[S]exual orientation is defined by reference to erotic liament, and the ANC seemed aware of this motivation for assigning this attraction: in the case of heterosexuals, to members of the opposite sex; in task to Parliament rather than merely remedying the injustice through judi- the case of gays and lesbians, to members of the same sex.”282 Moreover, cial fiat.277 the Court described the term “sexual orientation” in the Constitution as “linguistically and textually fully capable of bearing” a “generous interpre- 270. S. AFR . CONST ., 1996, pmbl. tation.”283 The Court said that protections apply “equally to the orienta- 271. Christiansen, Transformative Constitutionalism, supra note 259. tion of persons who are bi-sexual, or transsexual and it also applies to the 272. Frans Viljoen, Baring The Nation’s Soul Through Plain Language, 46 CLARITY 15, 15 (2001). 273. See, e.g., Satchwell v. The President and Another: Explanatory Note, S. AFR . LEGAL 278. See generally Civil Union Act 17 of 2006 (S. Afr.). INFO . INST ., www.saflii.org/za/cases/ZACC/2002/18media.pdf (last visited Oct. 6, 279. This was, unsurprisingly, the Court’s back-up plan. Fourie 2005 (1) SA 524 2016); DuToit and Another v. The Minister For Welfare and Population Development and (CC) at 100– 01 para. 161 (S. Afr.) (“Should Parliament not correct the defects within Others: Explanatory Note, S. AFR . LEGAL INFO . INST ., www.saflii.org/za/cases/ZACC/ this period, Section 30(1) of the Marriage Act 25 of 1961 will forthwith be read as 2002/20media.pdf (last visited Oct. 6, 2016). including the words ‘or spouse’ after the words ‘or husband’ as they appear in the mar- 274. Fourie 2005 (1) SA 524 (CC) at 91– 94 paras. 148– 50 (S. Afr.). riage formula.”). 275. Id. at 100– 01 para. 161. 280. S. AFR . CONST ., 1996 § 7. 276. Id. at 100 para. 160. 281. Id. § 9(3). 277. See, e.g., Home Affairs Portfolio Comm., Civil Union Bill, Film & Publications & 282. Nat’l Coal. for Gay and Lesbian Equal. v. Minister of Justice and Others 1999 (1) Immigration Amendment Bills: Briefing (Sept. 13, 2006), PARLIAMENTARY MONITORING SA 6 (CC) at para. 20 (S. Afr.) [hereinafter NCGLE Sodomy] (citing the highly influential GROUP , www.pmg.org.za/minutes/20060912-civil-union-bill-films-publications-immigra- work, Cameron, Sexual Orientation and the Constitution, supra note 42). In a hopeful tion-amendment-bills-briefing-department (discussing “the Fourie judgment [sic] which sign for future jurisprudence, Professor Cameron was appointed to the Constitutional had placed the Executive, Parliament as well as [the Legal Advisor’s] office under consid- Court in 2009. He was the first openly gay and HIV-positive justice. Chip Alfred, Bear- erable pressure to amend the legislation or to alternatively introduce separate legisla- ing Witness, ART & UNDERSTANDING MAG . (Dec. 10, 2011), http://www.aumag.org/2011/ tion . . . . [T]hey also very carefully studied all other Constitutional Court cases and 12/10/bearing-witness/. other relevant jurisprudence on the topic of same sex marriages.”). 283. NCGLE Sodomy 1999 (1) SA 6 (CC) at para. 21 (S. Afr.). 71 2016 Substantive Equality and Sexual Orientation 611 612 Cornell International Law Journal Vol. 49 orientation of persons who might on a single occasion only be erotically ties.”287 Rather, it is a constitutional goal with civil, political, and social attracted to a member of their own sex.”284 However, the Court has had welfare dimensions. As a consequence, judicial tools that advance any area little to say about the larger context of sexual orientation and gender iden- of equality, like “meaningful engagement” to address socio-economic ine- tity since that case. Hopefully, when appropriate cases arrive, the Court’s quality, would appropriately be used to support more traditional dimen- treatment of discrimination on the basis of homosexuality will model an sions of equality. When reviewed comparatively by other nations’ courts, expansive, dignity-focused approach to issues related to other forms of sex- this process will offer a viable example of a creative use of judicial power to ual orientation as well as to gender identity. promote equality. The Court’s announcement of a constitutional requirement for “mean- ingful engagement” in the housing rights case Occupiers of 51 Olivia Road C. Lessons for Comparative Equality and Constitutionalism v. City of Johannesburg also has the potential to support substantive equality The South African Constitution is a well-respected model for other 285 in future cases. In Olivia Road, the Court required the state to present countries and future constitutions. And, to the extent it guides content evidence of good faith consultation with impacted individuals and con- choices for future constitutional drafters and models rights adjudication cerned civil society organizations as a prerequisite to asserting that the for foreign courts, the Court’s interpretation and application of the Consti- 286 state response was constitutionally adequate. Consequently, affected tution, amplifies its influence. Indeed, as a result of the Constitution’s communities are significantly empowered to advocate for their own unique history, the document is viewed with great respect by members of rights— particularly in the face of plausible claims of government inaction the international community, and has been described by one commentator or indifference. In the context of gay and lesbian rights, this meaningful as one of the “newer, sexier[,] and more powerful operating systems in the interaction requirement opens an additional avenue for organizing and constitutional marketplace.”288 Even internationally known jurists have engaging with the state related to the crisis of corrective rape (or other affirmed its particular strengths. United States Supreme Court Justice extant equality issues). If particularly affected communities— in this case Ruth Bader Ginsberg recently encouraged Egypt to look to the model of the township lesbians and others— are consulted, there is a far greater likeli- South African Bill of Rights as an exemplar for its new constitution.289 It hood of improved outcomes, i.e., practicable strategies for greater safety shines a favorable light on South Africa as a whole; “South Africa’s pro- and security, more effective prosecutions, and community educational pro- human rights constitution, stable government, democratic institutions, grams to advance understanding and social acceptance independent judiciary, and strong economy mean it has great potential to Such a result would likely lead to significantly improved outcomes for become a global human rights leader.”290 LGBT community stakeholders and might also increase popular involve- This makes the constitutional provisions (and their interpretation) ment with government and educate the state bureaucracy about ground- even more important in comparative context; the South African Constitu- level discrimination issues. If the meaningful engagement requirement tion is worthy of consideration as an example for burgeoning democracies. spreads from socio-economic rights to the field of equality or other catego- Since 1994, it has been noted by other countries that South Africa chose to ries of constitutional rights, the occurrence of good faith community con- include express protections based on sexual orientation in its Constitu- sultation in one substantive area will raise expectations and facilitate tion.291 This decision by the drafters has had an impact far beyond the improved outcomes in other areas. Such a development is consistent with the transformational value of 287. In one famous iteration of this notion, American Judge Richard Posner stated: substantive equality in the South African Constitution. Equality in the [T]he Constitution is a charter of negative rather than positive liberties . . . . The modern South African constitutional tradition is not merely a prohibition men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them. The Fourteenth on discriminatory government action— American style “negative liber- Amendment, adopted in 1868 at the height of laissez-faire thinking, sought to protect Americans from oppression by state government, not to secure them 284. Id. While the expansive references to issues not before the Court in the Sodomy basic governmental services. case are important for later jurisprudential developments, there seems to be some con- Jackson v. Jolliet, 715 F.2d 1200, 1203 (1983) (citing Harris v. McRae, 448 U.S. 297, flation of gender identity issues (“transsexual”) with sexual orientation issues (“bi-sex- 322 (1980) (“The guarantee of equal protection under the Fifth Amendment is not a ual” and earlier references in the case to heterosexuality and homosexuality). See id. source of substantive rights or liberties, but rather a right to be free from invidious 285. Occupiers of 51 Olivia Road, Berea Twp. and 197 Main St. Johannesburg v City of discrimination in statutory classifications and other governmental activity.”)). Johannesburg & Others 2008 (3) SA 208 (CC) at 7– 13 paras. 9, 18 (S. Afr.). 288. Adam Liptak, ‘We the People’ Loses Appeal with People Around the World, N.Y. 286. The Court not only asserts an expectation that public disclosure and consulta- TIMES , Feb. 7, 2012, at A1, www.nytimes.com/2012/02/07/us/we-the-people-loses- tion will actually occur but also issues orders with real consequences when it does not. appeal-with-people-around-the-world.html. Id. at 10– 13 paras. 14– 18 (“Engagement is a two-way process in which the City and 289. Id. those about to become homeless would talk to each other meaningfully in order to 290. World Report 2011: South Africa Annual Country Report, HUM . RTS . WATCH , www achieve certain objectives. There is no closed list of the objectives of engagement.”). The .hrw.org/world-report-2011/south-africa (last visited Mar. 31, 2015). Court not only asserted an expectation that public disclosure and consultation will 291. See, e.g., Jill Cottrell & Yash Ghai, Constitution Making in Fiji: Context and Pro- actually occur, but also issued orders with real consequences when it does not. Id. cess, in THE ROLE OF CONSTITUTION -BUILDING PROCESS IN DEMOCRATIZATION 1, 16 (2004), 72 2016 Substantive Equality and Sexual Orientation 613 614 Cornell International Law Journal Vol. 49 country’s borders. The effective creation of a new, default list of categories Conclusion for Equality Clause protection, which includes sexual orientation, does not ensure that future nations will adopt the protections but it may fundamen- It is appropriate and valuable to critically examine the significance tally alter the presumptive text of equality provisions as future constitu- and achievements of the constitution that ended South African apartheid tions are drafted. The impact of the Constitution’s expansive rights twenty years ago. Among the successes of the South African Constitution protections is magnified because the Constitutional Court has applied the is its novel, progressive inclusion of equality protections for gays and lesbi- provision extensively. ans. The prohibition of discrimination based on sexual orientation was particularly important because it occurred in this historic human rights The Constitutional Court’s jurisprudence is also a model for other constitution. Moreover, the ensuing gay rights jurisprudence of the South nations. Its international and comparative influence highlights the signifi- African Constitutional Court is the most protective in the world. The Con- cance of the Court’s affirmative gay rights jurisprudence. Because the stitutional Court’s opinions include express affirmations of the dignity South African Constitutional Court has interpreted the first sexual orienta- and equality of gays and lesbians in an unbroken series of unanimous, pro- tion protections to appear in a national constitution, its treatment of inclu- gay decisions that form a substantial core of the overall equality jurispru- sive equality provisions is also inescapably important. Was it to be a full, dence of the Court. In particular, three defining characteristics facilitated substantive right worthy of adjudication and protection or merely window adjudicatory success related to gay and lesbian rights: a protective constitu- dressing with no legal impact?292 The Court’s unanimous, affirmative rul- tional text, a progressive Constitutional Court, and an effective litigation ings advancing each of the adjudicated elements of gay and lesbian equal- strategy. ity have answered that question decisively. The South African Constitutional Court, drawing on a greatly respected constitution and con- Nevertheless, South African gays and lesbians are currently facing the sidering international and comparative law in its decisions, robustly pro- daunting challenge of leveraging legal victories into broader, societal equal- tects the equality of gays and lesbians and affirms their fundamental ity. Twenty years after the prohibition of sexual orientation discrimination equality and human dignity. in the Equality Clause of the South African Constitution, the protections’ practical effects have been woefully inadequate to achieve the safety and Because the judgments come from the South African Constitutional social equality of gays and lesbians in South Africa. In sharp contrast to Court, they are more likely to be noticed by other nations’ courts and they the expansive textual protections and progressive jurisprudence, the lived may more easily join the comparative law conversation about human rights reality of South Africans gays and lesbians, particularly in poorer commu- adjudication. The expansive case law prohibiting discrimination based on nities, is typified by condemnation, discrimination and homophobic vio- sexual orientation is of singular importance in comparative context— par- lence. Hence, the Equality Clause protections are a symbol of both the ticularly at this time when a significant number of courts are adjudicating progressive human rights reach of the post-apartheid Constitution and the and, with legislators, debating issues of gay and lesbian equality. The gulf between textual promises and reality. South African Court has always seen itself as part of a global conversation about constitutional values and constitutionalism. When the Court speaks Moreover, there are risks ahead that highlight the critical need for about equality and gay rights in its cases, it not only speaks to an attentive broader public support. Judicial action is relatively insecure; it is subject to international audience but also from a unique depth of experience. legislative revision, constitutional amendment, and executive inaction. Change through judicial rulings without popular affirmation may be fleet- ing, ineffective, or merely symbolic. And, more than at any other point in the last two decades, there is uncertainty about the road ahead for South Africa. With open questions of party discipline and frequent allegations of abuse of political power, the stakes are much higher for the extra-legal, social equality side of the struggle for gay and lesbian equality in South http://www.constitutionnet.org/files/cbp_fiji.pdf (“[A]pparently, in possession of the South African constitution, they managed to sneak in an idea or two of their own. It Africa. Without changes in public opinion, the steady legal gains of the seems that the inclusion of sexual orientation as a prohibited ground of discrimination last two decades are threatened by the potential for constitutional amend- comes from the drafters; certainly it is not in the [report of the original constitutional ment (relatively easy under the current make-up of Parliament)293 or a negotiating body].”). 292. The lesson of Fijian constitutionalism is relevant here as well. The short-lived Fijian Constitution of 1997 (the second constitution in the world to include express 293. The Constitution can be amended relatively easily by the two houses of Parlia- protections based on sexual orientation) and the most recent iteration, the Fijian Consti- ment. S. AFR . CONST ., 1996 § 74(2) (“[The Bill of Rights] may be amended by a Bill tution of 2013, both included sexual orientation (and gender identity) in their equality passed by (a) the National Assembly, with a supporting vote of at least two thirds of its clauses but made special exceptions related to marriage, adoption, and other areas of members; and (b) the National Council of Provinces, with a supporting vote of at least family law. See CONST . OF THE REPUBLIC OF FIJI § 26. See generally Fiji: Revise Draft Con- six provinces . . . .”). Following the 2014 elections, the ANC held 249 of 400 seats stitution to Protect Rights, HUM . RTS . WATCH (Sept. 4, 2013), www.hrw.org/news/2013/ (62.15%) of the National Assembly. 2014 National and Provincial Election Results, ELEC- 09/04/fiji-revise-draft-constitution-protect-rights. TORAL COMM . S. AFR ., http://www.elections.org.za/resultsnpe2014/ (last visited Mar. 31, 73 2016 Substantive Equality and Sexual Orientation 615 populist, conservative turn by a weakened ANC seeking to maintain politi- cal dominance. In this Article, I have examined the Constitution’s drafting history, the Constitutional Court’s gay rights jurisprudence, and the practical insuffi- ciencies of the Constitution’s inclusion of sexual orientation-based protec- tions. I have done so in order to highlight three insights about the last two decades of constitutional rights in South Africa: an encouraging insight about novel and progressive elements in the drafting of modern constitu- tions, several modest claims about the capacity for courts to combat ine- quality based on sexual orientation despite the limitations of purely legal victories, and a hopeful affirmation of the value of even unrealized consti- tutional aspirations for the fields of comparative constitutionalism and gay and lesbian equality. The inclusion of sexual orientation protections in the constitution that ended apartheid in South Africa stands as a figurative marker at the begin- ning of the modern, constitutional era for equality for gay men and lesbi- ans. Its legal significance is singular and substantial. But it can only support social equality, not achieve it. The legal protections themselves require a powerful Court, a stable political sphere, and durable, wide- spread trust in South Africa’s transformative constitutional values.

2015). The ANC also held sixty of ninety seats on the National Council of Provinces (with a majority of seats in seven of the nine provinces). Members of Parliament, PARLIA- MENTARY MONITORING GROUP , https://pmg.org.za/members/ (last visited Mar. 31, 2015).

74 Mbeki Letters: Thought Leadership series Vol.9: A brief commentary on the question of HIV and AIDS. By Thabo Mbeki March 7‚ 2016

Towards the end of 2015 I sent the communication below to a fellow African to respond to some comments he had made on the matter of ‘Mbeki‚ HIV & AIDS’. We publish this as part of the series we have been carrying on various on the ‘Mbeki Presidency.’ . In 2002 a few of us here in South Africa wrote a booklet entitled "Castro Hlongwane…"‚ and sub-titled it "HIV/AIDS and the Struggle for the Humanisation of the African". An overview Here is an excerpt from that booklet‚ which speaks for itself:

"The first report on the incidence of HIV in South and Southern Africa was published in the "New England Journal of Medicine" and the "South African Medical Journal"‚ both in 1985. Two of the most important findings in this report were that in our country and region: HIV infection was confined to male homosexuals; and‚ HIV was not endemic in this region of the world.

To quote this report‚ it said:"The only positive subjects were in the group compromising male homosexuals. The majority of these positive subjects had either recently been to the United States or had had sexual contact with other homosexuals who had visited the United States... Our preliminary data show that the agent implicated in causing AIDS‚ HTLV-III (later named HIV)‚ is not endemic in this part of Africa."

During the same year‚ October 1985‚ German researchers had an article published in the British medical journal‚ The Lancet. They stated that: "the data suggest that HTLV-III was rare in Africa until recently‚ and still is rare in much of the continent." Some of our friends‚ the friends of the Africans‚ say that five years later‚ this situation had changed completely. They say that now‚ in our region and country‚ the HI Virus was transmitted heterosexually and that it had become endemic.

The point made in the 1985 report about male homosexuals and HIV coincided with what science said about the incidence of HIV in the United States and Western Europe at the time. To all intents and purposes‚ 15 years later‚ this situation has not changed both in the US and in Western Europe. But‚ as we have said‚ and as is generally known‚ our own situation has changed radically‚ resulting also in it being said that we now have the highest incidence of HIV or the spread of HIV in the world.

The question that arises from this is – why! Why does the same virus behave differently in the US and Western Europe from the way it behaves in Southern Africa! It would seem obvious that this question must be asked. If we are interested in the advance of scientific knowledge‚ the better to understand the African human condition‚ it is imperative that an answer be found.

It would seem equally obvious that for us successfully to deal with the HI Virus as it affects us‚ we need to understand what induces it to behave differently in different parts of the world. In answer to these questions‚ some of our friends‚ the friends of the Africans‚ say that we are affected by a particular type or variant of the HI Virus‚ which is unique to ourselves and which also mutates at a high frequency rate.

However‚ this answer throws up new questions. Why is this special type of HI Virus confined only to our region of the world! Why does it not spread to other areas‚ even within Africa! What happened to the 1985 South African HI Virus which behaved in the same way as the US and West European HI Virus! If it mutated into what it is today‚ why did it not mutate in the same way in the US and Western Europe!

Once more‚ scientifically substantiated answers to these questions are necessary to enable us to defeat the HI Virus as it affects us. It would seem only logical‚ once the assertion was made that ours is a unique HI Virus‚ that‚ consequently‚ unique solutions have to be found to respond to this distinct situation.

75 Up to now‚ no answers have been provided to any of the questions that have been posed. Instead‚ in the name of science and friendship with the Africans‚ the omnipotent apparatus of which (Herbert) Marcuse wrote‚ has sought to present honest questions as a manifestation of unacceptable non-conformity.

It has done everything it could‚ and continues to act‚ to punish those who dare to ask questions. It uses its might‚ sustained by the self-repression of the Africans‚ to ensure the permanent repression of those who inquire."

Thirteen (13) years later today I would stand by everything said in this excerpt and still ask that the questions posed should be answered by those who have the scientific capacity to do so! Am I wrong in this regard? Professor Montagnier – HIV & AIDS.

You will recall that (the French) Prof Luc Montagnier shared the 2008 Nobel Prize for Medicine‚ awarded to him as a tribute for having been a co-discoverer of the HI virus (HIV).

Later he appeared in a video documentary done by a Canadian‚ Brent Leung‚ entitled "House of Numbers"‚ which canvassed many views on the issue of HIV and AIDS. Here is a transcript of his comments in the documentary:

Leung [the filmmaker]: You talked about oxidative stress earlier. Is treating oxidative stress one of the best ways to deal with the African AIDS epidemic?

Montagnier [the scientist]: I think this is one way to approach‚ to decrease the rate of transmission‚ because I believe HIV we can be exposed to HIV many times without bring chronically infected‚ our immune system will get rid of the virus within a few weeks‚ if you have a good immune system; and this is the problem also of the African people. Their nutrition is not very equilibrated‚ they are in oxidative stress‚ even if they are not infected with HIV; so their immune system doesn't work well already. So it's prone‚ it can‚ you know‚ allow HIV to get in and persist. So there are many ways which are not the vaccine‚ the magic name‚ the vaccine‚ many ways to decrease the transmission just by simple measures of nutrition‚ giving antioxidants -- proper antioxidants -- hygiene measures‚ fighting the other infections. So they are not spectacular‚ but they could‚ you know‚ decrease very well the epidemic‚ to the level they are in occidental countries‚ western countries.

Leung: So if you have a good immune system‚ then your body can naturally get rid of HIV?

Montagnier: Yes.

Leung: Oh‚ interesting. Do you think we should have more of a push for antioxidants‚ and things of that nature‚ in Africa than antiretrovirals (AIDS drugs)?

Montagnier: We should push for more‚ you know‚ a combination of measures; antioxidants‚ nutrition advice‚ nutritions‚ fighting other infections -- malaria‚ tuberculosis‚ parasitosis‚ worms -- education of course‚ genital hygiene for women and men also‚ very simple measures which [are] not very expensive‚ but which could do a lot. And this is my‚ actually my worry about the many spectacular action for the global funds to buy drugs and so on‚ and Bill Gates and so on‚ for the vaccine. But you know those kind of measures (I am suggesting) are not very well funded‚ they're not funded at all‚ or they are‚ you know‚ it really depends on the local government to take choice of this‚ but local governments they take advice of the scientific advisors from the intelligent institutions‚ and they don't get this kind of advice very often.

Leung: Well there's no money in nutrition‚ right? There's no profit.

Montagnier: There's no profit‚ yes. Water is important. Water is key. Leung: Now one thing you said‚ you were talking about the fact that if you have a built immune system‚ it is possible to get rid of HIV naturally. If you take a poor African who's been infected and you build up their immune system‚ is it possible for them to also naturally get rid of it? Montagnier: [Nodding yes] I would think so.

76

Leung: That's an important point.

Montagnier: It's important knowledge which is completely neglected. People always think of drugs and vaccine. So this is a message which may be different from what you heard before‚ no?

Leung: The closing?

Montagnier: No‚ no‚ yes‚ my message‚ it's different from what you heard from (Anthony) Fauci or...

Leung: Yes‚ it's a little different.

Montagnier: Little different.

Please note: As you know‚ the Anthony Fauci to whom Montagnier refers is the leading US Government expert on HIV and AIDS and Director of the US Government National Institute of Allergy and Infectious Diseases (NIAID).

We said very much the same things about HIV and AIDS as did Prof Montagnier‚ including on (i) the critical importance of nutrition‚ (ii) the need for a multi-faceted intervention to treat sick people who were also suffering from immune deficiency‚ and (iii) the need to use antiretroviral (ARV) drugs with great care and caution‚ mindful of the vital importance of a healthy immune system. [I must also mention that I never said "HIV does not cause AIDS". This false accusation was made by people who benefitted from trumpeting the slogan "HIV causes AIDS" as though this was a religious edict. What I said is that "a virus cannot cause a syndrome". As you know‚ AIDS is an acronym for "Acquired Immune Deficiency Syndrome" – therefore AIDS is a syndrome‚ i.e. a collection of well-known diseases‚ with well-known causes. They are not‚ together‚ caused and cannot be caused by one virus! I said that HIV might be a contributory cause of immune deficiency – the ID in AIDS!]

However the question I wanted to pose arising from the Montagnier interview above is: Why were we wrong when we said the things Prof Montagnier said‚ while these were correct when he said them? Mortality & causes of death in South Africa.

The institution called Statistics South Africa (Statssa) is the official statistical authority in our country. It handles all statistics including such matters as the Population Census‚ the Socio-Economic Survey‚ Mortality statistics etc. [You can access Statssa on the Internet.]

Every year it publishes a Report on Mortality and Causes of Death. This is not an estimate‚ as is the case in many of our countries‚ but is based on the record of deaths and their causes which have to be reported to the Department of Home Affairs‚ with each Death Notice and its details certified by a Medical Doctor. Below is an extract from the Statssa Report on: Mortality and causes of death in South Africa‚ 2006: Findings from death notification Table 4.4: The ten leading underlying natural causes of death‚ 2006 Causes of death (Based on the Tenth Revision‚ International Classification of Disease‚ 1992) Rank- Number - % Tuberculosis (A15-A19)* -1 - 77 OO9 - 12‚7 Influenza and pneumonia (J10-J18) - 2 - 52 791 - 8‚7 Intestinal infectious diseases (A00-A09) - 3 - 39 239 - 6‚5 Other forms of heart disease (I30- I52)- 4 - 26 628 - 4‚4 Cerebrovascular diseases (I60-I69) - 5 - 25 246 - 4‚2 Diabetes mellitus (E10-E14) - 6 - 19 549 - 3‚2 Chronic lower respiratory diseases (J40-J47) - 7 - 15 823 - 2‚6 Certain disorders involving the immune mechanism (D80-D89) - 8 - 15 736 - 2‚6 Human immunodeficiency virus [HIV] disease (B20- B24) - 9 - 14 783 - 2‚4 Ischaemic heart diseases (I20-I25) - 10 - 13 025 - 2‚1 Other natural causes - 254 741 - 42‚0 Non-natural causes - 52 614 - 8‚7 All causes - 607 184 - 100‚0 As you will have seen from the above‚ what Statssa recorded as deaths from "HIV disease" came 9th in terms of the leading causes of death in South Africa in 2006‚ as indeed it did also in the preceding years.

I am convinced that it would be perfectly understandable that the normal‚ thinking African would ask the questions:

77 Why did it come about that so much noise was made internationally about the 9th leading cause of death in our country‚ with not even so much as a whimper about the 1st leading cause of death‚ tuberculosis?

Why would the South African Government‚ knowing the health condition of its own population very well‚ have been expected so to focus on the 9th leading cause of death as virtually to treat as less urgent and important the first eight (8) leading causes of death‚ even taken together?

Did this have to do with the fact that South Africa could be a lucrative market for the sale of ARVs‚ as it now is? [You might know that our first democratic administration‚ from 1994 to 1999‚ had a major confrontation with the pharmaceutical companies about the pricing of their products in South Africa. In the end they admitted that we were right. However they insisted that (i) they would sell their products in our country at prices which the well-off white South African population could afford‚ that (ii) if they accepted our decision to buy their products wherever they were cheapest (a practice called using parallel imports)‚ this would set a bad example for the rest of the developing world‚ (iii) they would price their products in South Africa bearing in mind that South Africa serves as a role model for other developing countries‚ and (iv) as commercial companies they have no choice but to pursue the profit motive! From all this you can see why it was absolutely necessary for "the AIDS industry" that South Africa was whipped into line so that it sets an example by being an enthusiastic purchaser of ARVs!]

Conclusion

The "Prelude" in the "Castro Hlongwane…" booklet includes this quotation: "In money terms‚ first there is the pharmaceutical industry. If AIDS in Africa is now a national security threat‚ as President Clinton has declared‚ American money will be appropriated for the very expensive drugs to spend in Africa – billions of dollars of potential profits. If Washington doesn't appropriate funds‚ there's the fear that African nations might buy generic‚ foreign-made copies of U.S. drugs. Then there is the public health establishment. More billions can go for salaries‚ offices‚ staffing‚ travel and long reports. The World Health Organisation budget has skyrocketed along with African AIDS statistics. Many public health officials are well meaning‚ seeing AIDS fears as the only way to get money to help the misery afflicting so much of Africa. In America‚ government AIDS money is spreading far and wide. Federal spending now tops 10 billion and is increasing yearly even as caseloads fall." (AIDS Hype in Africa? No HIV Test Required‚ Disease Defined Differently Than in U.S.‚ by Jon Basil Utley‚ Robert A. Taft Fellow at the Ludwig von Mises Institute‚ USA‚ April 30‚ 2000.)

In 2000 I addressed the 13th International AIDS Conference which was held in our country in Durban. Here is part of what I said: "Let me tell you a story that the World Health Organisation told the world in 1995. I will tell this story in the words used by the World Health Organisation." "This is the story: The world's biggest killer and the greatest cause of ill-health and suffering across the globe is listed almost at the end of the International Classification of Diseases. It is given the code Z59.5 - extreme poverty. "Poverty is the main reason why babies are not vaccinated‚ why clean water and sanitation are not provided‚ why curative drugs and other treatments are unavailable and why mothers die in childbirth. It is the underlying cause of reduced life expectancy‚ handicap‚ disability and starvation. Poverty is a major contributor to mental illness‚ stress‚ suicide‚ family disintegration and substance abuse. Every year in the developing world 12.2 million children under 5 years die‚ most of them from causes which could be prevented for just a few US cents per child. They die largely because of world indifference‚ but most of all they die because they are poor. "Beneath the heartening facts about decreased mortality and increasing life expectancy‚ and many other undoubted health advances‚ lie unacceptable disparities in wealth. The gaps between rich and poor‚ between one population group and another‚ between ages and between sexes‚ are widening. For most people in the world today every step of life‚ from infancy to old age‚ is taken under the twin shadows of poverty and inequity‚ and under the double burden of suffering and disease." "Castro Hlongwane…" says: "Given that our minds on this matter (of HIV and AIDS) have become thoroughly clogged by the information communicated by the omnipotent apparatus‚ a miracle will have to be achieved to get all our people to use their brains‚ rather than perish on emotional responses based on greatly heightened levels of fear."

78 In this regard‚ was "Castro Hlongwane…" wrong? Was the WHO wrong? Was Jon Basil Utley wrong?

79 CONSTITUTIONAL COURT OF SOUTH AFRICA COTLANDS BABY SANCTUARY Third Amicus Curiae

Case CCT 8/02 Heard on : 2, 3 and 6 May 2002

Decided on : 5 July 2002 MINISTER OF HEALTH First Appellant

MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH, EASTERN CAPE Second Appellant JUDGMENT

MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH, FREE STATE Third Appellant

MEMBER OF THE EXECUTIVE COUNCIL THE COURT: FOR HEALTH, GAUTENG Fourth Appellant

MEMBER OF THE EXECUTIVE COUNCIL Introduction FOR HEALTH, KWAZULU-NATAL Fifth Appellant [1] The HIV/AIDS1 pandemic in South Africa has been described as Aan incomprehensible MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH, MPUMALANGA Sixth Appellant calamity@ and Athe most important challenge facing South Africa since the birth of our new

MEMBER OF THE EXECUTIVE COUNCIL democracy@ and government=s fight against Athis scourge@ as Aa top priority@. It Ahas claimed FOR HEALTH, NORTHERN CAPE Seventh Appellant millions of lives, inflicting pain and grief, causing fear and uncertainty, and threatening the MEMBER OF THE EXECUTIVE COUNCIL economy@. These are not the words of alarmists but are taken from a Department of Health FOR HEALTH, NORTHERN PROVINCE Eighth Appellant publication in 2000 and a ministerial foreword to an earlier departmental publication.2 MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH, NORTH WEST Ninth Appellant versus 1 This is the term commonly used for the human immunodeficiency virus (HIV) leading to the acquired TREATMENT ACTION CAMPAIGN First Respondent immune (or immuno-) deficiency syndrome (AIDS). Transmission of this disease, its progression and dire consequences are set out in lay language from para 11 onwards in the judgment of Ngcobo J in Hoffmann v South African Airways 2001 (1) SA 1 (CC); 2000 (11) BCLR 1211 (CC). DR HAROON SALOOJEE Second Respondent 2 HIV/AIDS & STD strategic plan for South Africa 2000B2005 and an earlier report to which it refers. CHILDREN=S RIGHTS CENTRE Third Respondent

Together with

INSTITUTE FOR DEMOCRACY IN SOUTH AFRICA First Amicus Curiae

COMMUNITY LAW CENTRE Second Amicus Curiae 2

80 THE COURT THE COURT

[2] This appeal is directed at reversing orders made in a high court against government [3] The case started as an application in the High Court in Pretoria on 21 August 2001. The because of perceived shortcomings in its response to an aspect of the HIV/AIDS challenge. The applicants were a number of associations and members of civil society concerned with the court found that government had not reasonably addressed the need to reduce the risk of HIV- treatment of people with HIV/AIDS and with the prevention of new infections. In this judgment positive mothers transmitting the disease to their babies at birth. More specifically the finding they are referred to collectively as Athe applicants@. The principal actor among them was the was that government had acted unreasonably in (a) refusing to make an antiretroviral drug called Treatment Action Campaign (TAC). The respondents were the national Minister of Health and nevirapine3 available in the public health sector where the attending doctor considered it the respective members of the executive councils (MECs) responsible for health in all provinces medically indicated and (b) not setting out a timeframe for a national programme to prevent save the Western Cape.4 They are referred to collectively as Athe government@ or Agovernment@. mother-to-child transmission of HIV.

[4] Government, as part of a formidable array of responses to the pandemic, devised a

programme to deal with mother-to-child transmission of HIV at birth and identified nevirapine as

its drug of choice for this purpose.5 The programme imposes restrictions on the availability of

nevirapine in the public health sector. This is where the first of two main issues in the case

arose. The applicants contended that these restrictions are unreasonable when measured against

the Constitution, which commands the state and all its organs to give effect to the rights

3 Nevirapine is a fast-acting and potent antiretroviral drug long since used worldwide in the treatment of guaranteed by the Bill of Rights. This duty is put thus by sections 7(2) and 8(1) of the HIV/AIDS and registered in South Africa since 1998. In January 2001 it was approved by the World Health Organization for use against intrapartum mother-to-child transmission of HIV, i.e. transmission of the virus from mother to child at birth. It was also approved for such use in South Africa. The nature and Constitution respectively: precise date of such approval were contested and this led to some vigorously debated subsidiary issues, dealt with more fully below.

4 The Western Cape MEC was originally a party to the proceedings in the High Court. The applicants later withdrew the application against him. A dispute between the Premier and the MEC of KwaZulu-Natal arose at a later stage, when leave to appeal to this Court was being debated.

5 The drug is currently available free to government and its administration is simple: a single tablet taken by the mother at the onset of labour and a few drops fed to the baby within 72 hours after birth.

3 4

81 THE COURT THE COURT

A7(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.

[6] The affidavits lodged by the applicants addressed these two central issues from a variety . . . . of specialised perspectives, ranging from paediatrics, pharmacology and epidemiology to public 8(1) The Bill of Rights applies to all law, and binds the legislature, the executive, the health administration, economics and statistics. The applicants= papers also include the judiciary and all organs of state.@ testimony of doctors, nurses and counsellors confronted daily with the human tragedies of HIV-

At issue here is the right given to everyone to have access to public health care services infected mothers and their babies. In addition there are poignant accounts of HIV-positive and the right of children to be afforded special protection. These rights are expressed in pregnant women=s pleas for access to nevirapine for themselves and their babies at public health the following terms in the Bill of Rights: institutions where its supply is prohibited.

A27(1) Everyone has the right to have access to B [7] The principal deponents to the government=s answer are the Director-General of the (a) health care services, including reproductive health care; . . . . national Department of Health, Dr Ayanda Ntsaluba, and Dr Nono Simelela, the Chief Director (2) The state must take reasonable legislative and other measures, within its of the Department=s HIV/AIDS programme, whose affidavits were signed on 20 October 2001. available resources, to achieve the progressive realisation of each of these rights. . . . . They are supported by a number of experts and by the administrative heads of the respective

provincial health departments. Although the two main issues relate to government policy, as 28(1) Every child has the right B . . . . distinct from mere administration, neither the Minister nor any of the MECs was a deponent.

(c) to basic nutrition, shelter, basic health care services and social services@.

[8] On 14 December 2001 the High Court made an order substantially in accord with the [5] The second main issue also arises out of the provisions of sections 27 and 28 of the notice of motion as then worded. Its main provisions were the following: Constitution. It is whether government is constitutionally obliged and had to be ordered forthwith to plan and implement an effective, comprehensive and progressive programme for the A1. It is declared that the first to ninth respondents are obliged to make Nevirapine available to pregnant women with HIV who give birth in the public health prevention of mother-to-child transmission of HIV throughout the country. The applicants also sector, and to their babies, in public health facilities to which the respondents= relied on other provisions of the Constitution which, in view of our conclusions, need not be present programme for the prevention of mother-to-child transmission of HIV considered. has not yet been extended, where in the judgment of the attending medical officer, acting in consultation with the medical superintendent of the facility

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concerned, this is medically indicated, which shall at least include that the unsuccessful interim application to this Court by government aimed at staying the High Court=s woman concerned has been appropriately tested and counselled. order pending the determination of this appeal. At the commencement of the appeal hearing we

2. The first to ninth respondents are ordered to make Nevirapine available to dismissed a belated application for admission as an additional amicus curiae and an application pregnant women with HIV who give birth in the public sector, and to their by an amicus to adduce evidence. The High Court had also granted an application by the babies, in public health facilities to which the respondents= present programme for the prevention of mother-to-child transmission of HIV has not yet been Premier of KwaZulu-Natal to be substituted for his MEC for Health and that substitution gave extended, where in the opinion of the attending medical practitioner, acting in rise to both an appeal to this Court and an application to present further evidence. These were consultation with the medical superintendent of the facility concerned, this is medically indicated, which shall at least include that the woman concerned has heard immediately after argument in the main proceedings had ended and both were refused at

been appropriately tested and counselled. the time, the reasons to follow. Then, some days after the hearing, the Court addressed an

3. It is declared that the respondents are under a duty forthwith to plan an effective enquiry to the parties which, instead of enlightenment, unfortunately elicited a great deal of comprehensive national programme to prevent or reduce the mother-to-child contention and yet another application to adduce further evidence, dealt with below. This transmission of HIV, including the provision of voluntary counselling and testing, and where appropriate, Nevirapine or other appropriate medicine, and judgment focuses on the principal issues and these minor matters will be dealt with either in formula milk for feeding, which programme must provide for its progressive passing or in separate judgments. implementation to the whole of the Republic, and to implement it in a reasonable

manner. Factual background 4. The respondents are ordered forthwith to plan an effective comprehensive [10] The two principal issues had been in contention between the applicants and government national programme to prevent or reduce the mother-to-child transmission of HIV, including the provision of voluntary counselling and testing, and where for some considerable time prior to the launching of the application in the High Court. Thus, appropriate, Nevirapine or other appropriate medicine, and formula milk for when the TAC in September 1999 pressed for acceleration of the government programme for the feeding, which programme must provide for its progressive implementation to the whole of the Republic, and to implement it in a reasonable manner.@ prevention of intrapartum mother-to-child transmission of HIV, it was told by the Minister that

this could not be done because there were concerns about, among other things, the safety and A number of supporting provisions and a costs order against the government were added. efficacy of nevirapine. Nearly a year later (in August 2000), following the 13th International

AIDS Conference in Durban and a follow-up meeting attended by the Minister and the MECs, [9] Because of the importance and urgency of the matter, an early date was allocated for the the Minister announced that nevirapine would still not be made generally available. Instead each hearing of government=s appeal against the order of the High Court. This was followed by an province was going to select two sites for further research and the use of the drug would be

7 8

83 THE COURT THE COURT confined to such sites. continuation of government=s research programme.

[11] Close to a year later, in a letter dated 17 July 2001 written by their attorney, the [12] Nevirapine had been registered in 1998 by the Medicines Control Council, a specialist applicants placed on record that body created by the Medicines and Related Substances Control Act 101 of 1965 to determine the

safety of drugs before their being made available in South Africa. In terms of this Act A[t]he Government has decided to make NVP [nevirapine] available only at a limited number of pilot sites, which number two per province. registration of a drug by definition entails a positive finding as to its quality, safety and efficacy. In January 2001 the World Health Organization recommended the administration of the drug to The result is that doctors in the public sector, who do not work at one of those pilot sites, mother and infant at the time of birth in order to combat HIV and between November 2000 and are unable to prescribe this drug for their patients, even though it has been offered to the government for free.@ April 2001 the Medicines Control Council settled the wording of the package insert dealing with

such use. The insert was formally approved by the Council in April 2001 and the parties treated At the same time they pointedly asked the Minister to: that as the date of approval of the drug for the prevention of mother-to-child transmission of

A(a) provide us with legally valid reasons why you will not make NVP available to HIV. patients in the public health sector, except at the designated pilot sites, or

alternatively to undertake forthwith to make NVP available in the public health sector. [13] It was this date of approval that led to the Court=s enquiry after the hearing and to the (b) undertake to put in place a programme which will enable all medical application to adduce further evidence relating to the date of the Aregistration@ of nevirapine for practitioners in the public sector to decide whether to prescribe NVP for their pregnant patients, and to prescribe it where in their professional opinion this is the prevention of mother-to-child transmission of HIV. At the time it appeared that this date

medically indicated.@ might be relevant and that nevirapine may have been approved for the prevention of mother-to-

The Minister=s reply dated 6 August 2001 did not deny the restriction imposed by child transmission earlier than April 2001. In the result, however, nothing turns on this. That being the case, further evidence directed to this issue is irrelevant. It follows that the application government on the availability of nevirapine; nor was any plan or programme to extend to adduce further evidence must be refused and no order be made in relation to the costs thereof. its availability mentioned. The undertakings requested were neither given nor refused outright. The meaning of the Minister=s letter is, however, quite unmistakable. It details a [14] The letter from the Minister also lists a number of social, economic and public health series of governmental concerns regarding the safety and efficacy of nevirapine requiring implications of breastfeeding by HIV-positive mothers, emphasises the cultural and financial

9 10

84 THE COURT THE COURT impact of formula-feeding as a substitute and outlines the overall complexity of providing a AThere is however, a need to assess the operational challenges inherent in the introduction of anti-retroviral regimen for the reduction of vertical transmission in rural comprehensive package of care throughout the country. The Minister, although not responding settings as well as in urban settings in South Africa. This is due in part because the directly to the undertakings sought on behalf of the applicants, quite clearly intimated that introduction of ARV [antiretroviral] interventions needs to be accompanied by a series of other interventions such as the delivery of voluntary and confidential counseling and neither undertaking was or would be given. The decision was to confine the provision of HIV testing, and revised obstetric practices and infant feeding practices. These require nevirapine in the public sector to the research sites and their outlets. extensive capacity building, infrastructure development, improved management and community mobilization efforts. In order to gain better understanding of the operational

challenges of introducing the intervention on a wider scale, MINMEC [a body consisting [15] It can be accepted that an important reason for this decision was that government wanted of the Minister of Health and the provincial MECs for Health] endorsed the to develop and monitor its human and material resources nationwide for the delivery of a establishment of two research sites in all nine Provinces for a period of two years.@ comprehensive package of testing and counselling, dispensing of nevirapine and follow-up [17] The crux of the problem, however, lies elsewhere: what is to happen to those mothers and services to pregnant women attending at public health institutions. Where bottle-feeding was to their babies who cannot afford access to private health care and do not have access to the be substituted for breastfeeding, appropriate methods and procedures had to be evolved for research and training sites? It is not clear on the papers how long it is planned to take before effective implementation, bearing in mind cultural problems, the absence of clean water in nevirapine will be made available outside these sites. Some of the provinces had not yet certain parts of the country and the increased risks to infants growing up with inadequate established any test sites by the time the application was launched in late August 2001. The first nutrition and sanitation. At the same time, data relating to administrative hitches and their sites were established only in May 2001 following a meeting the previous month at which solutions, staffing, costs and the like could be gathered and correlated. All of this obviously government had endorsed the establishment of the sites for a period of two years. These sites makes good sense from the public health point of view. These research and training sites could were to be selected according to stated criteria, one in an urban and one in a rural community in provide vital information on which in time the very best possible prevention programme for each province. Whether the programme was to be maintained strictly until the last of the mother-to-child transmission could be developed. provincial test sites had been functioning for two years or could possibly be extended beyond

that period does not appear from the papers. What is plain, though, is that for a protracted period [16] This point is also made in the Protocol for providing a comprehensive package of care nevirapine would not be supplied at any public health institution other than one designated as for the prevention of mother to child transmission of HIV in South Africa (draft version 4) issued part of a research site. by government in April 2001:

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The issues 22.5 The result is that doctors in the private profession can and do prescribe Nevirapine for their patients when, in their professional judgment, it is [18] The founding affidavit, signed by the TAC deputy-chairperson, Ms Siphokazi Mthathi, appropriate to do so. commences with a useful summary of the case presented by the applicants. In paragraphs 20 and 22.6 In July 2000 the manufacturers of Nevirapine offered to make it available to the South African government free of charge for a period of 21 of her affidavit the two principal issues are stated thus: five years, for the purposes of reducing the risk of mother-to-child transmission of HIV. A20. The first issue is whether the Respondents are entitled to refuse to make 22.7 The government has formally decided to make Nevirapine available Nevirapine (a registered drug) available to pregnant women who have HIV and only at a limited number of pilot sites, which number two per province. who give birth in the public health sector, in order to prevent or reduce the risk 22.8 The result is that doctors in the public sector, who do not work at one of of transmission of HIV to their infants, where in the judgment of the attending those pilot sites, are unable to prescribe this drug for their patients, even medical practitioner this is medically indicated. though it has been offered to the government for free. 22.9 The Applicants are aware of the desirability of a multiple-strategy 21. The second issue is whether the Respondents are obliged, as a matter of law, to approach to the prevention of mother-to-child transmission. However, implement and set out clear timeframes for a national programme to prevent they cannot and do not accept that this provides a rational or lawful mother-to-child transmission of HIV, including voluntary counselling and basis for depriving patients at other sites of the undoubted benefits of testing, antiretroviral therapy, and the option of using formula milk for feeding.@ Nevirapine, even if at this stage the provision can not be done as part of a broader integrated strategy B a point that is not conceded. 22.10 To the extent that there may be situations in which the use of [19] Then, in paragraph 22, she summarises the applicants= case in the following terms: Nevirapine is not indicated, this is the situation in both the private and the public sector. Whether or not to prescribe Nevirapine is a matter of A22. In summary, the Applicants= case is as follows: professional medical judgment, which can only be exercised on a case- 22.1 The HIV/AIDS epidemic is a major public health problem in our by-case basis. It is not a matter which is capable of rational or country, and has reached catastrophic proportions. appropriate decision on a blanket basis. 22.2 One of the most common methods of transmission of HIV in children is 22.11 There is no rational or lawful basis for allowing doctors in the private from mother to child at and around birth. Government estimates are sector to exercise their professional judgment in deciding when to that since 1998, 70 000 children are infected in this manner every year. prescribe Nevirapine, but effectively prohibiting doctors in the public 22.3 The Medicines Control Council has the statutory duty to investigate sector from doing so. whether medicines are suitable for the purpose for which they are 22.12 In addition to refusing to make Nevirapine generally available in the intended, and the safety, quality and therapeutic efficacy of medicines. public health sector, the government has failed over an extended period 22.4 The Medicines Control Council has registered Nevirapine for use to to implement a comprehensive programme for the prevention of reduce the risk of mother-to-child transmission of HIV. This means that mother-to-child transmission of HIV. Nevirapine has been found to be suitable for this purpose, and that it is 22.13 The result of this refusal and this failure is the mother-to-child safe, of acceptable quality, and therapeutically efficacious. transmission of HIV in situations where this was both predictable and

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avoidable. [22] In their argument counsel for the government raised issues pertaining to the separation of 22.14 This conduct of the government is irrational, in breach of the Bill of powers. This may be relevant in two respects B (i) in the deference that courts should show to Rights, and contrary to the values and principles prescribed for public administration in section 195 of the Constitution. Furthermore, decisions taken by the executive concerning the formulation of its policies; and (ii) in the order government conduct is in breach of its international obligations as to be made where a court finds that the executive has failed to comply with its constitutional contained in a number of conventions that it has both signed and ratified.@ obligations. These considerations are relevant to the manner in which a court should exercise the

powers vested in it under the Constitution. It was not contended, nor could it have been, that

[20] The main response on behalf of government by Dr Ntsaluba and Dr Simelela is detailed they are relevant to the question of justiciability. and lengthy and raises numerous disputes, mostly as to emphasis, opinion or inference but occasionally also of fact. The reply on behalf of the applicants likewise raises many issues of Enforcement of socio-economic rights one kind or another. Many of these disputes gave rise to a regrettable degree of animosity and [23] This Court has had to consider claims for enforcement of socio-economic rights on two disparagement, culminating in unsubstantiated and gratuitous allegations of untruthfulness being occasions.6 On both occasions it was recognised that the state is under a constitutional duty to levelled at one of the attorneys on an insignificant side-issue. In our country the issue of comply with the positive obligations imposed on it by sections 26 and 27 of the Constitution.7 It

HIV/AIDS has for some time been fraught with an unusual degree of political, ideological and was stressed, however, that the obligations are subject to the qualifications expressed in sections emotional contention. This is perhaps unavoidable, having regard to the magnitude of the 26(2) and 27(2). On the first occasion, in Soobramoney, the claim was dismissed because the catastrophe we confront. Nevertheless it is regrettable that some of this contention and emotion applicant failed to establish that the state was in breach of its obligations under section 26 in so has spilt over into this case. Not only does it bedevil future relations between government and far as the provision of renal dialysis to chronically ill patients was concerned. In Grootboom the non-governmental agencies that will perforce have to join in combating the common enemy, but claim was upheld because the state=s housing policy in the area of the Cape Metropolitan Council it could also have rendered the resolution of this case more difficult.

6 Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC); Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC); [21] Ultimately, however, we have found it possible to cut through the overlay of contention 2000 (11) BCLR 1169 (CC).

7 and arrive at a straightforward and unanimous conclusion. Most if not all of the disputation is Soobramoney above n 6 para 36; Grootboom above n 6 para 24 and 38. beside the point. The essential facts, as we see them, are not seriously in dispute.

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87 THE COURT THE COURT failed to make reasonable provision within available resources for people in that area who had no obligation that Courts can, and in appropriate circumstances, must enforce.@9 access to land and no roof over their heads and were living in intolerable conditions.

[24] In both cases the socio-economic rights, and the corresponding obligations of the state, were interpreted in their social and historical context.8 The difficulty confronting the state in the light of our history in addressing issues concerned with the basic needs of people was stressed.

Thus, in Grootboom, Yacoob J said:

AThis case shows the desperation of hundreds of thousands of people living in deplorable conditions throughout the country. The Constitution obliges the State to act positively to ameliorate these conditions. The obligation is to provide access to housing, health-care, sufficient food and water, and social security to those unable to support themselves and their dependants. The State must also foster conditions to enable citizens to gain access to land on an equitable basis. Those in need have a corresponding right to demand that this be done.

I am conscious that it is an extremely difficult task for the State to meet these obligations in the conditions that prevail in our country. This is recognised by the Constitution which expressly provides that the State is not obliged to go beyond available resources or to realise these rights immediately. I stress however, that despite all these qualifications, these are rights, and the Constitution obliges the State to give effect to them. This is an

8 Soobramoney above n 6 para 11; Grootboom above n 6 para 25.

9 Above n 6 para 93-4.

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[25] The question in the present case, therefore, is not whether socio-economic rights are attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are justiciable. Clearly they are.10 The question is whether the applicants have shown that the at its disposition in an effort to satisfy, as a matter of priority, those minimum measures adopted by the government to provide access to health care services for HIV-positive obligations.@11 mothers and their newborn babies fall short of its obligations under the Constitution.

Minimum core

[26] Before outlining the applicants= legal submissions, it is necessary to consider a line of argument presented on behalf of the first and second amici. It was contended that section 27(1) of the Constitution establishes an individual right vested in everyone. This right, so the contention went, has a minimum core to which every person in need is entitled. The concept of

Aminimum core@ was developed by the United Nations Committee on Economic, Social and

Cultural Rights which is charged with monitoring the obligations undertaken by state parties to the International Covenant on Economic, Social and Cultural Rights. According to the

Committee

Aa State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d=être. By the same token, it must be noted that any assessment as to whether a State has discharged its minimum core obligations must also take account of resource constraints applying within

the country concerned. Article 2(1) obligates each State party to take the necessary steps 11 >to the maximum of its available resources=. In order for a State party to be able to CESCR General Comment 3 AThe nature of States parties obligations (Art. 2, par.1)@ 14/12/90 para 10.

10 Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) para 78.

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[27] Support for this contention was sought in the language of the Constitution and attention hand, and sections 26 and 27 on the other. was drawn to the differences between sections 9(2),12 24(b),13 25(5)14 and 25(8)15 on the one

[28] It was contended that section 25(5), which obliges the state to Atake reasonable legislative 12 Section 9(2) provides: AEquality includes the full and equal enjoyment of all rights and freedoms. To promote and other measures, within its available resources@ towards Aaccess to land@, imposes an the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may obligation on the state, but is not associated with a self-standing right to have access to land. be taken.@

13 Section 24(b), on the other hand, confers on everyone a right Ato have the environment protected Section 24(b) provides that everyone has the right Ato have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that B . . . through reasonable legislative and other measures@, but is not coupled with a separate duty on (i) prevent pollution and ecological degradation; (ii) promote conservation; and the state to take such measures. Sections 9(2) and 25(8) contain permissive powers to take (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.@ reasonable measures but no obligation to do so. In the case of sections 26 and 27, however,

14 Section 25(5) provides: rights and obligations are stated separately. There is accordingly a distinction between the self- AThe state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an standing rights in sections 26(1) and 27(1), to which everyone is entitled, and which in terms of equitable basis.@

15 section 7(2) of the Constitution A[t]he state must respect, protect, promote and fulfil@, and the Section 25(8) provides: independent obligations imposed on the state by sections 26(2) and 27(2). This minimum core

might not be easy to define, but includes at least the minimum decencies of life consistent with

human dignity. No one should be condemned to a life below the basic level of dignified human

existence. The very notion of individual rights presupposes that anyone in that position should

ANo provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).@

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90 THE COURT THE COURT be able to obtain relief from a court. [31] In Soobramoney it was said:

AWhat is apparent from these provisions is that the obligations imposed on the State by ss [29] In effect what the argument comes down to is that sections 26 and 27 must be construed 26 and 27 in regard to access to housing, health care, food, water and social security are as imposing two positive obligations on the state: one an obligation to give effect to the 26(1) dependent upon the resources available for such purposes, and that the corresponding rights themselves are limited by reason of the lack of resources.@16 and 27(1) rights; the other a limited obligation to do so progressively through Areasonable legislative and other measures, within its available resources@. Implicit in that contention is that The obligations referred to in this passage are clearly the obligations referred to in the content of the right in subsection (1) differs from the content of the obligation in subsection sections 26(2) and 27(2), and the Acorresponding rights@ are the rights referred to in (2). This argument fails to have regard to the way subsections (1) and (2) of both sections 26 and sections 26(1) and 27(1). 27 are linked in the text of the Constitution itself, and to the way they have been interpreted by this Court in Soobramoney and Grootboom.

[30] Section 26(1) refers to the Aright@ to have access to housing. Section 26(2), dealing with the state=s obligation in that regard, requires it to Atake reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right@. The reference to Athis right@ is clearly a reference to the section 26(1) right. Similar language is used in section

27 which deals with health care services, including reproductive health care, sufficient food and water, and social security, including, if persons are unable to support themselves and their dependants, appropriate social assistance. Subsection (1) refers to the right everyone has to have

Aaccess@ to these services; and subsection (2) obliges the state to take Areasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of

16 these rights@. The rights requiring progressive realisation are those referred to in sections Above n 6 para 11 (emphasis added).

27(1)(a), (b) and (c).

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[32] This passage is cited in Grootboom.17 It is made clear in that judgment that sections available resources or to realise these rights [email protected]

18 26(1) and 26(2) Aare related and must be read together@. Yacoob J said:

[33] In Grootboom reliance was also placed on the provisions of the Covenant. Yacoob J held AThe section has been carefully crafted. It contains three subsections. The first confers a general right of access to adequate housing. The second establishes and delimits the that in terms of our Constitution the question is 19 scope of the positive obligation imposed upon the State . . .@

It is also made clear that A[s]ection 26 does not expect more of the State than is achievable within its available resources@20 and does not confer an entitlement to Aclaim shelter or housing immediately upon demand@21 and that as far as the rights of access to housing, health care, sufficient food and water, and social security for those unable to support themselves and their dependants are concerned, Athe State is not obliged to go beyond

17 Above n 6 para 46.

18 Id para 34.

19 Id para 21.

20 Id para 46.

21 Id para 95.

22 Id para 94.

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Awhether the measures taken by the State to realise the right afforded by s 26 are relevant context in which socio-economic rights need to be interpreted was said to be that reasonable.@23

A[m]illions of people are living in deplorable conditions and in great poverty. There is a [34] Although Yacoob J indicated that evidence in a particular case may show that there is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the minimum core of a particular service that should be taken into account in determining whether Constitution was adopted . . .@26 measures adopted by the state are reasonable,24 the socio-economic rights of the Constitution should not be construed as entitling everyone to demand that the minimum core be provided to [36] The state is obliged to take reasonable measures progressively to eliminate or reduce the them. Minimum core was thus treated as possibly being relevant to reasonableness under section large areas of severe deprivation that afflict our society. The courts will guarantee that the

26(2), and not as a self-standing right conferred on everyone under section 26(1).25 democratic processes are protected so as to ensure accountability, responsiveness and openness,

as the Constitution requires in section 1. As the Bill of Rights indicates, their function in respect

[35] A purposive reading of sections 26 and 27 does not lead to any other conclusion. It is of socio-economic rights is directed towards ensuring that legislative and other measures taken impossible to give everyone access even to a Acore@ service immediately. All that is possible, by the state are reasonable. As this Court said in Grootboom, A[i]t is necessary to recognise that and all that can be expected of the state, is that it act reasonably to provide access to the socio- a wide range of possible measures could be adopted by the State to meet its [email protected] economic rights identified in sections 26 and 27 on a progressive basis. In Grootboom the

[37] It should be borne in mind that in dealing with such matters the courts are not

23 Id para 33. institutionally equipped to make the wide-ranging factual and political enquiries necessary for 24 Id. determining what the minimum-core standards called for by the first and second amici should be, 25 Id.

26 Id para 25, quoting from Soobramoney above n 6 para 8.

27 Id para 41.

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93 THE COURT THE COURT nor for deciding how public revenues should most effectively be spent. There are many pressing demands on the public purse. As was said in Soobramoney:

AThe State has to manage its limited resources in order to address all these claims. There will be times when this requires it to adopt a holistic approach to the larger needs of society rather than to focus on the specific needs of particular individuals within society.@28

[38] Courts are ill-suited to adjudicate upon issues where court orders could have multiple social and economic consequences for the community. The Constitution contemplates rather a restrained and focused role for the courts, namely, to require the state to take measures to meet its constitutional obligations and to subject the reasonableness of these measures to evaluation.

Such determinations of reasonableness may in fact have budgetary implications, but are not in themselves directed at rearranging budgets. In this way the judicial, legislative and executive functions achieve appropriate constitutional balance.

[39] We therefore conclude that section 27(1) of the Constitution does not give rise to a self- standing and independent positive right enforceable irrespective of the considerations mentioned in section 27(2). Sections 27(1) and 27(2) must be read together as defining the scope of the positive rights that everyone has and the corresponding obligations on the state to Arespect, protect, promote and fulfil@ such rights. The rights conferred by sections 26(1) and 27(1) are to have Aaccess@ to the services that the state is obliged to provide in terms of sections 26(2) and

27(2).

28 Above n 6 para 31.

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was to be used in developing a national policy for the extension of this programme to other

Government policy on the prevention of mother-to-child transmission of HIV public facilities outside the pilot sites. Nevirapine was not to be made available to public

[40] Government=s policy for the treatment of HIV/AIDS including mother-to-child facilities outside the pilot sites. transmission of HIV is dealt with in various documents. In particular, government adopted an

HIV/AIDS & STD strategic plan for South Africa 2000B2005. This was followed by a number of [42] This programme was to be implemented in accordance with the Protocol for providing a

HIV/AIDS-related policy guidelines that deal with various aspects of the strategic plan. These comprehensive package of care for the prevention of mother to child transmission of HIV in included guidelines on managing HIV in children, prevention of mother-to-child transmission South Africa, draft version 4 of which was adopted in April 2001. This protocol made provision and management of HIV-positive pregnant women, feeding of infants of HIV-positive mothers for a comprehensive package of care for the prevention of mother-to-child transmission of HIV. and testing for HIV. It is not necessary to refer in any detail to these documents and the policies It was based on two propositions: first, the acceptance that there is enough scientific evidence embodied in them. Where particular matters are relevant, they will be referred to in the confirming the efficacy of various antiretroviral drugs for reducing the transmission of HIV from judgment. Government policy was also the subject of discussion at the meetings of the mother to child; and second, that there is a need to assess the operational challenges inherent in

Department of Health=s National Steering Committee on Prevention of Mother-to-Child the introduction of an antiretroviral regimen for the reduction of mother-to-child transmission of

Transmission and at meetings of Minmec. HIV in South Africa in both rural and urban settings. The protocol recognised that appropriately

trained staff is a prerequisite for the successful implementation of any programme. To this end,

[41] Following the 13th International Conference on HIV/AIDS held in Durban in July 2000, provision was made in the protocol for the development of materials for the required training of government took a decision to implement a programme for the prevention of mother-to-child staff, including training in counselling, testing for HIV, the medical and obstetric interventions transmission of HIV/AIDS. This programme entailed the provision of voluntary HIV necessary to reduce mother-to-child transmission at the time of birth and other related matters. counselling and testing to pregnant women, the provision of nevirapine and the offer of formula feed to HIV-positive mothers who chose this option of feeding. The implementation of this [43] The protocol contemplated that the programme would be introduced at two sites, one programme was to be confined to selected sites in each province for a period of two years. As rural and one urban, in each of the provinces. A full package of care would be available at these pointed out earlier, these pilot sites were to be used primarily to evaluate the use of nevirapine, sites and the progress made by the infants receiving the treatment would be carefully monitored monitoring and evaluating its impact on the health status of the children affected as well as the for a period of two years. feasibility of such an intervention on a countrywide basis. Information gathered from these sites

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The applicants= contentions held that

[44] It is the applicants= case that the measures adopted by government to provide access to A[a]lthough [section 26(1)] does not expressly say so, there is, at the very least, a health care services to HIV- positive pregnant women were deficient in two material respects: negative obligation placed upon the State and all other entities and persons to desist from first, because they prohibited the administration of nevirapine at public hospitals and clinics preventing or impairing the right of access to adequate housing.@30 outside the research and training sites; and second, because they failed to implement a That Anegative obligation@ applies equally to the section 27(1) right of access to Ahealth comprehensive programme for the prevention of mother-to-child transmission of HIV. care services, including reproductive health care@. This is relevant to the challenges to the

measures adopted by government for the provision of medical services to combat mother- [45] The two questions are interrelated and a consequence of government=s policy as it was to-child transmission of HIV. when these proceedings were instituted. The use of nevirapine to reduce the risk of mother-to- [47] The applicants= contentions raise two questions, namely, is the policy of confining the child transmission of HIV was confined to mothers and newborn children at hospitals and clinics supply of nevirapine reasonable in the circumstances; and does government have a included in the research and training sites. At all other public hospitals and clinics the use of comprehensive policy for the prevention of mother-to-child transmission of HIV. nevirapine for this purpose was not provided for. Public hospitals and clinics outside the research and training sites were not supplied with nevirapine for doctors to prescribe for the The policy confining nevirapine to the research and training sites prevention of mother-to-child transmission. Only later would a decision be taken as to whether [48] In deciding on the policy to confine nevirapine to the research and training sites, the cost nevirapine and the rest of the package would be made available elsewhere in the health system. of the drug itself was not a factor. This is made clear in the affidavit of Dr Ntsaluba. He says: That decision would depend upon the results at the research and training sites. The applicants contend that this is not reasonable and that government ought to have had a comprehensive AI admit that the medicine has been offered to the first to ninth respondents for free for a national programme to prevent mother-to-child transmission of HIV, including voluntary period of five years by the manufacturer. The driving cost for the provision of Nevirapine however is not the price to be attached to the medicine but the provision of counselling and testing, antiretroviral therapy and the option of substitute feeding. the formula feeding for those persons who are not in a position to afford formula feeds in order to discourage breast feeding and other costs incurred to provide operational

29 30 [46] In Grootboom, relying on what is said in the First Certification Judgment, this Court Above n 6 para 34.

29 Above n 10 para 78: AAt the very minimum, socio-economic rights can be negatively protected from improper invasion.@

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structures which are appropriately and properly geared toward counselling and testing of nevirapine to the research and training sites. First, concern was expressed about the efficacy persons who are candidates for the administration of Nevirapine.@ of nevirapine where the Acomprehensive package@ is not available. The concern was that the

He also says that benefits of nevirapine would be counteracted by the transmission of HIV from mother to infant

through breastfeeding. For this reason government considered it important to provide breastmilk A[t]he public health sector hospitals, as it is, are under tremendous pressure, and while it substitutes to the mother and a Apackage@ of care for mother and infant including vitamin may be ideal for such doctors to go on to provide Nevirapine with the appropriate advice, counselling and follow-up care, is presently not immediately attainable. It is imperative supplements and antibiotics. They considered it necessary to establish a system and to put in

that appropriate support structures for counselling, follow-up etc. be put in place to place the infrastructure necessary for that purpose, to provide advice and counselling to the ensure that Nevirapine is effective and that it delivers the promised benefits.@ mothers to ensure that the substitute and supplements were used properly and to monitor

progress to determine the effectiveness of the treatment. There are significant problems in [49] The costs that are of concern to the government are therefore the costs of providing the making this package available. There are problems of resources in so far as counselling and infrastructure for counselling and testing, of providing formula feed, vitamins and an antibiotic testing are concerned and budgetary constraints affecting the expansion of facilities at public drug and of monitoring, during bottle-feeding, the mothers and children who have received hospitals and clinics outside the research and training sites. There is a cultural objection to nevirapine. These costs are relevant to the comprehensive programme to be established at the bottle-feeding that has to be overcome, and in rural areas there are also hazards in bottle-feeding research and training sites. They are not, however, relevant to the provision of a single dose of by mothers who do not have access to clean water. There are still millions of people living in nevirapine to both mother and child at the time of birth. such circumstances and effective treatment of infants by the provision of nevirapine at birth by

no means resolves all difficulties. [50] The implementation of a comprehensive programme to combat mother-to-child transmission of HIV, such as that provided at the research and training sites, is no doubt the [52] Secondly, there was a concern that the administration of nevirapine to the mother and her ideal. The real dispute between the parties on this aspect of the case is not, however, whether child might lead to the development of resistance to the efficacy of nevirapine and related this optimum was feasible but whether it was reasonable to exclude the use of nevirapine for the antiretrovirals in later years. treatment of mother-to-child transmission at those public hospitals and clinics where testing and counselling are available and where the administration of nevirapine is medically indicated. [53] Thirdly, there was a perceived safety issue. Nevirapine is a potent drug and it is not

known what hazards may attach to its use. [51] In substance four reasons were advanced in the affidavits for confining the administration

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likelihood of transmission at birth, the efficacy of the drug as a means of combating mother-to-

[54] Finally, there was the question whether the public health system has the capacity to child transmission of HIV is nevertheless challenged. How this comes about requires some provide the package. It was contended on behalf of government that nevirapine should be discussion. administered only with the Afull package@ and that it was not reasonably possible to do this on a comprehensive basis because of the lack of trained counsellors and counselling facilities and also [58] The challenge was first expressed in the Minister=s letter of 6 August 2001 which budgetary constraints which precluded such a comprehensive scheme being implemented. precipitated these proceedings.31 The first of a number of what the Minister called A[o]ur most

pressing concerns@ was put in the following terms:

[55] Related to this was a submission raised in argument that from a public health point of AThere is evidence that NVP is effective in the prevention of intra-partum transmission. view, there is a need to determine the costs of providing the breastmilk substitute, the However, there is also evidence that a percentage of the babies who, as a result of the use supplementary package and the necessary counselling and monitoring. Without knowing the full of NVP, are born HIV negative, nevertheless sero-convert and become HIV positive in the months that follow their birth. For this reason, the registered claim for NVP in South extent of these costs and the efficacy of the treatment, it would be unwise for government to Africa is not that it can prevent MTCT but that it can prevent intra-partum transmission. commit itself to a wide-ranging programme for treating mother-to-child transmission that might It appears from the data at hand that the most compelling reason for this sero-conversion prove to be neither efficacious nor sustainable. is the fact that the HIV positive mothers were breast-feeding their babies.@

[56] We deal with each of these issues in turn. The letter adds that

Aalthough we do not have the formal results [of a test reported a year before], we have Efficacy reason to believe that breastfeeding continues to pose a risk which reverses the benefits [57] First, the concern about efficacy. It is clear from the evidence that the provision of of medical intervention.@ nevirapine will save the lives of a significant number of infants even if it is administered without Then, in the answering affidavit of Dr Ntsaluba, this doubt about the efficacy of the full package and support services that are available at the research and training sites.

31 Mother-to-child transmission of HIV can take place during pregnancy, at birth and as a result of See para 11 above. breastfeeding. The programme in issue in this case is concerned with transmission at or before birth. Although there is no dispute about the efficacy of nevirapine in materially reducing the

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98 THE COURT THE COURT intrapartum administration of nevirapine is repeated: Safety

[60] The evidence shows that safety is no more than a hypothetical issue. The only evidence ABreastfeeding is contra-indicated where Nevirapine is used to reduce or prevent MTCT of potential harm concerns risks attaching to the administration of nevirapine as a chronic of the HIV. It must be remembered that MTCT of HIV-1 through breastmilk negates all the gains of the use of Nevirapine in the mother during delivery and in the newborn child medication on an ongoing basis for the treatment of HIV-positive persons. There is, however, no

within 72 hours after birth. Thus, it is not safe to expose a largely breastfeeding evidence to suggest that a dose of nevirapine to both mother and child at the time of birth will populace to Nevirapine, unless certain stringent measures are taken to ensure that breastfeeding would not occur when the medicine is taken to treat MTCT of the HIV.@ result in any harm to either of them. According to the current medical consensus, there is no

reason to fear any harm from this particular administration of nevirapine. That is why its use is These allegations by the Minister in her letter and by Dr Ntsaluba are, however, not recommended without qualification for this purpose by the World Health Organization. supported by the data on which Dr Ntsaluba relies. Indeed, the wealth of scientific material produced by both sides makes plain that sero-conversion of HIV takes place in [61] There is also cogent South African endorsement of the safety of nevirapine in general and some, but not all, cases and that nevirapine thus remains to some extent efficacious in specifically for the prevention of mother-to-child transmission. As indicated earlier, the combating mother-to-child transmission even if the mother breastfeeds her baby. Medicines Control Council registered nevirapine in 1998 (affirming its quality, safety and

efficacy) and later expressly approved its administration to mother and infant at the time of birth

Resistance in order to combat HIV. Although it recommends that if this is done the infant should be bottle-

[59] As far as resistance is concerned, the only relevance is the possible need to treat the fed and not breastfed, that is to enhance the efficacy of nevirapine and not because it is mother and/or the child at some time in the future. Although resistant strains of HIV might exist considered to be dangerous. The risk to be guarded against is the transmission of HIV from after a single dose of nevirapine, this mutation is likely to be transient. At most there is a mother to child through breastfeeding. That is a risk that exists whether nevirapine is possibility of such resistance persisting, and although this possibility cannot be excluded, its administered or not. Far from being harmful, there is evidence that even with breastfeeding the weight is small in comparison with the potential benefit of providing a single tablet of nevirapine risk of infection is materially reduced by administering nevirapine at birth. to the mother and a few drops to her baby at the time of birth. The prospects of the child surviving if infected are so slim and the nature of the suffering so grave that the risk of some [62] The decision by government to provide nevirapine to mothers and infants at the research resistance manifesting at some time in the future is well worth running. and training sites is consistent only with government itself being satisfied as to the efficacy and

safety of the drug. These sites cater for approximately 10% of all births in the public sector and

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99 THE COURT THE COURT it is unthinkable that government would gamble with the lives or health of thousands of mothers that proves to be more effective than breastfeeding, bearing in mind the cultural problems and infants. In any event, the research and training sites are intended primarily to train staff and associated with bottle-feeding, the absence of clean water in certain parts of the country and the to study the operational problems of the comprehensive prevention of mother-to-child fact that breastfeeding provides immunity from other hazards that infants growing up in poor transmission package. As to the research component at these sites, it is intended to focus on the households without access to adequate nutrition and sanitation are likely to encounter. However, efficacy of the treatment rather than its safety. There is no evidence to suggest that a single dose this is not a reason for not allowing the administration of nevirapine elsewhere in the public of nevirapine administered at birth is likely to harm children during the first two years of their health system when there is the capacity to administer it and its use is medically indicated. lives. The risk of nevirapine causing harm to infants in the public health sector outside the research and training sites can be no greater than the risk that exists at such a site or where it is Capacity administered by medical practitioners in the private sector. [65] According to Dr Simelela, there have been significant problems even at the research and

training sites in providing a comprehensive programme using nevirapine for the prevention of

[63] In any event the main thrust of government=s case was that nevirapine should be mother-to-child transmission. A lack of adequately trained personnel, including counsellors, a administered in circumstances in which it would be most effective, not that it should not be shortage of space for conducting counselling and inadequate resources due to budgetary administered because it is dangerous. Dr Ntsaluba seems to acknowledge this in his affidavit constraints made it impossible to provide such a programme. where he says:

[66] Although the concerns raised by Dr Simelela are relevant to the ability of government to AAs I have pointed out earlier, to extend the programme to every hospital in each make a Afull package@ available throughout the public health sector, they are not relevant to the province is practically and financially not feasible. It would have been ideal but while that is a goal that the First to Ninth Respondents are working towards, it is not question whether nevirapine should be used to reduce mother-to-child transmission of HIV at implementable at once.@ those public hospitals and clinics outside the research sites where facilities in fact exist for

testing and counselling. [64] It is this that lies at the heart of government policy. There are obviously good reasons from the public health point of view to monitor the efficacy of the Afull package@ provided at the Considerations relevant to reasonableness research and training sites and determine whether the costs involved are warranted by the [67] The policy of confining nevirapine to research and training sites fails to address the needs efficacy of the treatment. There is a need to determine whether bottle-feeding will be of mothers and their newborn children who do not have access to these sites. It fails to implemented in practice when such advice is given and whether it will be implemented in a way

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100 THE COURT THE COURT distinguish between the evaluation of programmes for reducing mother-to-child transmission and of society cannot be said to be reasonable.@33 the need to provide access to health care services required by those who do not have access to the [69] The applicants do not suggest that nevirapine should be administered indiscriminately to sites. mothers and babies throughout the public sector. They accept that the drug should be

administered only to mothers who are shown to be HIV-positive and that it should not be [68] In Grootboom this Court held that

administered unless it is medically indicated and, where necessary, counselling is available to the A[t]o be reasonable, measures cannot leave out of account the degree and extent of the mother to enable her to take an informed decision as to whether or not to accept the treatment denial of the right they endeavour to realise. Those whose needs are the most urgent and recommended. Those conditions form part of the order made by the High Court. whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right.@32

The fact that the research and training sites will provide crucial data on which a comprehensive programme for mother-to-child transmission can be developed and, if financially feasible, implemented is clearly of importance to government and to the country. So too is ongoing research into safety, efficacy and resistance. This does not mean, however, that until the best programme has been formulated and the necessary funds and infrastructure provided for the implementation of that programme, nevirapine must be withheld from mothers and children who do not have access to the research and training sites. Nor can it reasonably be withheld until medical research has been completed. A programme for the realisation of socio-economic rights must

33 Abe balanced and flexible and make appropriate provision for attention to . . . crises and Id para 43. to short, medium and long term needs. A programme that excludes a significant segment

32 Above n 6 para 44.

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[70] In dealing with these questions it must be kept in mind that this case concerns particularly [73] The administration of nevirapine is a simple procedure. Where counselling and testing those who cannot afford to pay for medical services. To the extent that government limits the facilities exist, the administration of nevirapine is well within the available resources of the state supply of nevirapine to its research sites, it is the poor outside the catchment areas of these sites and, in such circumstances, the provision of a single dose of nevirapine to mother and child who will suffer. There is a difference in the positions of those who can afford to pay for services where medically indicated is a simple, cheap and potentially lifesaving medical intervention. and those who cannot. State policy must take account of these differences.34

Children=s rights

[71] The cost of nevirapine for preventing mother-to-child transmission is not an issue in the [74] There is another consideration that is material. This case is concerned with newborn present proceedings. It is admittedly within the resources of the state. The relief claimed by the children. Sections 28(1)(b) and (c) of the Constitution provide that applicants on this aspect of the policy, and the order made by the High Court in that regard, A[e]very child has the right B contemplate that nevirapine will only be administered for the prevention of mother-to-child (a) . . . . transmission at those hospitals and clinics where testing and counselling facilities are already in (b) to family care or parental care, or to appropriate alternative care when removed from the family environment; place. Therefore this aspect of the claim and the orders made will not attract any significant (c) to basic nutrition, shelter, basic health care services and social services@. additional costs.

The applicants and the amici curiae relied on these provisions to support the order made

[72] In evaluating government=s policy, regard must be had to the fact that this case is by the High Court. concerned with newborn babies whose lives might be saved by the administration of nevirapine to mother and child at the time of birth. The safety and efficacy of nevirapine for this purpose [75] In Grootboom it was held that paragraphs (b) and (c) must be read together. have been established and the drug is being provided by government itself to mothers and babies AThey ensure that children are properly cared for by their parents or families, and that at the pilot sites in every province. they receive appropriate alternative care in the absence of parental or family care. The section encapsulates the conception of the scope of care that children should receive in our society. Subsection 1(b) defines those responsible for giving care while ss 1(c) lists 34 Id para 35-7. various aspects of the care entitlement.

It follows from ss 1(b) that the Constitution contemplates that a child has the right to parental or family care in the first place, and the right to alternative appropriate care only

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where that is lacking.@35

[79] The state is obliged to ensure that children are accorded the protection contemplated by [76] Counsel for the government, relying on these passages in the Grootboom judgment, section 2837 that arises when the implementation of the right to parental or family care is submitted that section 28(1)(c) imposes an obligation on the parents of the newborn child, and lacking.38 Here we are concerned with children born in public hospitals and clinics to mothers not the state, to provide the child with the required basic health care services. who are for the most part indigent and unable to gain access to private medical treatment which

is beyond their means. They and their children are in the main dependent upon the state to make [77] While the primary obligation to provide basic health care services no doubt rests on those health care services available to them. parents who can afford to pay for such services, it was made clear in Grootboom that

Evaluation of the policy to limit nevirapine to research and training sites A[t]his does not mean . . . that the State incurs no obligation in relation to children who are being cared for by their parents or families.@36 [80] Government policy was an inflexible one that denied mothers and their newborn children

at public hospitals and clinics outside the research and training sites the opportunity of receiving

[78] The provision of a single dose of nevirapine to mother and child for the purpose of a single dose of nevirapine at the time of the birth of the child. A potentially lifesaving drug was protecting the child against the transmission of HIV is, as far as the children are concerned, on offer and where testing and counselling facilities were available it could have been essential. Their needs are Amost urgent@ and their inability to have access to nevirapine administered within the available resources of the state without any known harm to mother or profoundly affects their ability to enjoy all rights to which they are entitled. Their rights are child. In the circumstances we agree with the finding of the High Court that the policy of

Amost in peril@ as a result of the policy that has been adopted and are most affected by a rigid and government in so far as it confines the use of nevirapine to hospitals and clinics which are inflexible policy that excludes them from having access to nevirapine. research and training sites constitutes a breach of the state=s obligations under section 27(2) read

35 37 Id para 76-7. Id para 78.

36 38 Id para 78. Id para 77.

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103 THE COURT THE COURT with section 27(1)(a) of the Constitution. sites for testing and counselling. The applicants alleged in the founding affidavit that testing and

counselling were not comprehensively available outside the research and training sites. This

[81] Implicit in this finding is that a policy of waiting for a protracted period before taking a allegation was not substantiated by any direct evidence and most of the evidence was directed to decision on the use of nevirapine beyond the research and training sites is also not reasonable government=s policy concerning nevirapine, the central issue in the case. The allegation that within the meaning of section 27(2) of the Constitution. there was no programme dealing with mother-to-child transmission outside the research and

training sites was denied by Dr Ntsaluba. He referred to a number of policy documents which

Does government have a comprehensive plan to combat mother-to-child transmission of HIV? deal with this topic. These documents include the HIV/AIDS & STD strategic plan for South

[82] The issues relating to the alleged failure to implement a comprehensive national Africa 2000B2005. Various goals and strategies are set out in this plan. Strategies include programme for the prevention of mother-to-child transmission are intertwined with the introducing counselling services in all new testing sites, expanding the use of rapid testing averments concerning the refusal to permit nevirapine to be prescribed at public hospitals and methods, increasing the proportion of workplaces that have counselling services and promoting clinics outside the research and training sites. Foundational to all aspects of the case was the access to such services. challenge to the policy concerning the use of nevirapine.

[85] Reference is also made to a policy document dealing with managing HIV in children.

[83] Because of the policy restricting the use of nevirapine, the counsellors at the hospitals This document is dated March 2000 and includes a section on reducing mother-to-child and clinics outside the research and training sites have had no training in its use for the transmission which deals with a number of interventions. These include voluntary counselling prevention of mother-to-child transmission of HIV. That, however, should not be a major and HIV testing of pregnant women. It is stated that Aall pregnant women should be offered concern. According to the National programme for the prevention of mother to child counselling and an HIV test@ and a detailed rationale is given. transmission of HIV (MTCT): Trainer=s guide, the total training time required to prepare counsellors for the mother-to-child transmission programme is 15 hours spread over 10 sessions [86] Another policy document dated May 2000 states explicitly that A[v]oluntary testing and of 12 hours each. For counsellors who are already trained in the programme and merely need to counselling must be made available to all pregnant women@ (emphasis added). It goes on to say be updated regarding the use of nevirapine, the time must be very much shorter. that the benefits to a woman of knowing her HIV status include the ability to make informed

choices about feeding options, earlier access to care for both mother and child, the opportunity to

[84] It is therefore important to know what facilities exist outside the research and training terminate pregnancy where desired and legal, and the ability to make informed decisions about

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104 THE COURT THE COURT sexual practices and future fertility. some provinces had more extensive facilities for testing and counselling than others; also that at

the time the proceedings commenced the budgets of most of the health departments were

[87] In August of the same year there was a further policy document dealing with the feeding strained, and in many parts of the country there were problems in implementing health policies. of infants of HIV-positive mothers. It proceeds on the assumption that voluntary counselling and testing for HIV are necessary. In the same month policy guidelines for such testing were Testing and counselling prescribed. It is made clear that testing cannot be carried out without informed consent, [90] The evidence shows that at the time of the commencement of these proceedings there was including pre-test counselling. It does not focus on where or to what extent counselling should in place a comprehensive policy for testing and counselling of HIV-positive pregnant women. be available, except to say that where a health facility lacks the appropriate pre- or post-test The policy was not, however, implemented uniformly. Professor Schneider=s research is the only counselling facilities, the patient should be referred to an agency or facility that can provide the evidence on record concerning the extent of the testing and counselling facilities at fixed clinics39 counselling. in the provinces. She refers to a number of studies B particularly two surveys conducted by the

Health Systems Trust in 1998 and 2000. Her conclusions on the basis of these surveys were as

[88] In their replying affidavits the applicants do not seek to contradict these policy follows: documents, but say that if correct they show latent capacity outside the research and training sites to prescribe nevirapine for prevention of mother-to-child transmission where it is medically Province Percentage of fixed clinics Percentage of fixed clinics indicated. They also introduce an affidavit by Professor Schneider to show that testing and offering HIV testing offering HIV counselling counselling facilities, though not available throughout the public health sector, are in fact widely Eastern Cape 44,0 91,2 available at hospitals and clinics outside the research and training sites. Government does not Free State 87,5 96,0 dispute this but says that such counsellors are not trained in counselling for the use of nevirapine Gauteng 100,0 92,9 for the reduction of mother-to-child transmission. KwaZulu-Natal 40,0 80,0

Mpumalanga 79,0 60,7

[89] The affidavits by the heads of the provincial health departments deal with their budgets Northern Cape 100,0 91,7 and the difficulties confronting them in expanding existing facilities for addressing mother-to-

39 child transmission and in training counsellors. What is apparent from these affidavits is that Fixed clinics are contrasted with mobile clinics concerning which there are no statistics on the record.

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Northern Province 14,6 68,8 which indicates that the policy concerning the provision of breastmilk substitutes (such as infant

North West 53,1 71,9 formula feed) by the health care services needs to be taken up by the provincial authorities and

Western Cape 100,0 96,7 by any other relevant authority. The point is made here that the cost of providing breastmilk

substitutes must also be compared with or offset by the savings in preventing newborn babies

It is not clear whether these statistics include facilities at public hospitals, or whether it is being infected with HIV and consequently needing care. assumed that such facilities exist there and that what was being addressed was the extent of the facilities at places other than hospitals. The statistics are relevant in any event Summary of the relevant evidence [92] To sum up, the position when the application was launched was this. Two research and because a significant proportion of pregnant women are counselled at clinics and treated training sites had been selected at hospitals in each province to use nevirapine for the prevention there. Indeed, over 84% of South African women deliver in the health system, that is, of mother-to-child transmission of HIV.40 These research and training sites were linked to access under the supervision of a health professional. points at satellite clinics. There were approximately 160 access points. (During the course of the

proceedings these had increased to over 200.) At the project hospitals and satellite clinics a full Formula-feeding package for the treatment of mother-to-child transmission was to be available. This included [91] Some of the policy documents also refer to the substitution of formula-feeding for testing, counselling, nevirapine if medically indicated, the provision of formula feed as a breastfeeding without setting that as policy. The HIV/AIDS policy guideline on prevention of substitute for breastfeeding, aftercare including the provision of vitamins and antibiotics, and mother-to-child HIV transmission and management of HIV positive pregnant women (May 2000) monitoring of the progress of the children. At all other public hospitals and clinics nevirapine states in its introduction that appropriate alternatives to breastfeeding should be made available would not be available. There was, however, to be a programme for testing and counselling, and affordable for HIV-positive women. Professor Schneider=s research shows that many including counselling on matters related to breastfeeding. Formula feed was available at some hospitals and clinics have stocks of formula feed to be provided as a substitute for breastfeeding hospitals and clinics but it was not a requirement of the programme to combat mother-to-child where appropriate. It is not clear, however, that a policy commitment is made to achieving this. transmission outside the research and training sites that it be made available to HIV-positive In none of the policy documents is it said that government will actually provide the formula feed. mothers of newborn babies who would like to avoid breastfeeding but cannot afford the formula The furthest that the policy on the provision of feeding substitutes seems to go is the statement

40 in the HIV/AIDS policy guideline on feeding of infants of HIV positive mothers (August 2000) The Western Cape adopted a programme for the progressive expansion of the supply of nevirapine for such use at its hospitals and clinics.

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106 THE COURT THE COURT feed. Although the programme envisaged the progressive establishment of testing and counselling facilities at all hospitals and clinics, progress had been slow in certain parts of the [95] The rigidity of government=s approach when these proceedings commenced affected its country, particularly in clinics in the Northern Province, Mpumalanga, the Eastern Cape and policy as a whole. If, as we have held, it was not reasonable to restrict the use of nevirapine to

KwaZulu-Natal. The bulk of the rural population lives in these provinces where millions of the research and training sites, the policy as a whole will have to be reviewed. Hospitals and people are still without access to clean water or adequate sanitation. clinics that have testing and counselling facilities should be able to prescribe nevirapine where

that is medically indicated. The training of counsellors ought now to include training for

Findings concerning government=s programme counselling on the use of nevirapine. As previously indicated, this is not a complex task and it

[93] In the present case this Court has the duty to determine whether the measures taken in should not be difficult to equip existing counsellors with the necessary additional knowledge. In respect of the prevention of mother-to-child transmission of HIV are reasonable. We know that addition, government will need to take reasonable measures to extend the testing and counselling throughout the country health services are overextended. HIV/AIDS is but one of many illnesses facilities to hospitals and clinics throughout the public health sector beyond the test sites to that require attention. It is, however, the greatest threat to public health in our country. As the facilitate and expedite the use of nevirapine for the purpose of reducing the risk of mother-to- government=s HIV/AIDS & STD strategic plan for South Africa 2000B2005 states: child transmission of HIV.

ADuring the last two decades, the HIV pandemic has entered our consciousness as an The powers of the courts incomprehensible calamity. HIV/AIDS has claimed millions of lives, inflicting pain and grief, causing fear and uncertainty, and threatening the economy.@ [96] Counsel for the government contended that even if this Court should find that

government policies fall short of what the Constitution requires, the only competent order that a

[94] We are also conscious of the daunting problems confronting government as a result of the court can make is to issue a declaration of rights to that effect. That leaves government free to pandemic. And besides the pandemic, the state faces huge demands in relation to access to pay heed to the declaration made and to adapt its policies in so far as this may be necessary to education, land, housing, health care, food, water and social security. These are the socio- bring them into conformity with the court=s judgment. This, so the argument went, is what the economic rights entrenched in the Constitution, and the state is obliged to take reasonable doctrine of separation of powers demands. legislative and other measures within its available resources to achieve the progressive realisation of each of them. In the light of our history this is an extraordinarily difficult task. [97] In developing this argument counsel contended that under the separation of powers the

Nonetheless it is an obligation imposed on the state by the Constitution. making of policy is the prerogative of the executive and not the courts, and that courts cannot

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107 THE COURT THE COURT make orders that have the effect of requiring the executive to pursue a particular policy. [99] The primary duty of courts is to the Constitution and the law, Awhich they must apply

impartially and without fear, favour or [email protected] The Constitution requires the state to

[98] This Court has made it clear on more than one occasion that although there are no bright Arespect, protect, promote, and fulfil the rights in the Bill of [email protected] Where state policy is lines that separate the roles of the legislature, the executive and the courts from one another, challenged as inconsistent with the Constitution, courts have to consider whether in formulating there are certain matters that are pre-eminently within the domain of one or other of the arms of and implementing such policy the state has given effect to its constitutional obligations. If it government and not the others.41 All arms of government should be sensitive to and respect this should hold in any given case that the state has failed to do so, it is obliged by the Constitution to separation. This does not mean, however, that courts cannot or should not make orders that have say so. In so far as that constitutes an intrusion into the domain of the executive, that is an an impact on policy. intrusion mandated by the Constitution itself. There is also no merit in the argument advanced

on behalf of government that a distinction should be drawn between declaratory and mandatory

orders against government. Even simple declaratory orders against government or organs of

state can affect their policy and may well have budgetary implications. Government is

constitutionally bound to give effect to such orders whether or not they affect its policy and has 41 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC) para 180 and 183; South African Association of Personal Injury Lawyers v Heath to find the resources to do so. Thus, in the Mpumalanga case,44 this Court set aside a provincial and Others 2001 (1) SA 883 (CC); 2001 (1) BCLR 77 (CC) para 46; Soobramoney above n 6 para 29; Grootboom above n 6 para 41; Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and government=s policy decision to terminate the payment of subsidies to certain schools and Others 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) para 63-4; National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC); 2000 (1) BCLR ordered that payments should continue for several months. Also, in the case of August45 the 39 (CC) para 66. Court, in order to afford prisoners the right to vote, directed the Electoral Commission to alter its

election policy, planning and regulations, with manifest cost implications.

42 Section 165(2) of the Constitution.

43 Section 7(2).

44 Premier, Mpumalanga, and Another v Executive Committee, Association of State-Aided Schools, Eastern Transvaal 1999 (2) SA 91 (CC); 1999 (2) BCLR 151 (CC).

45 August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC); 1999 (4) BCLR 363 (CC).

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[100] The rights that the state is obliged to Arespect, protect, promote and fulfil@ include the [101] A dispute concerning socio-economic rights is thus likely to require a court to evaluate socio-economic rights in the Constitution. In Grootboom this Court stressed that in so far as state policy and to give judgment on whether or not it is consistent with the Constitution. If it socio-economic rights are concerned finds that policy is inconsistent with the Constitution it is obliged in terms of section 172(1)(a) to

make a declaration to that effect. But that is not all. Section 38 of the Constitution contemplates A[t]he State is required to take reasonable legislative and other measures. Legislative that where it is established that a right in the Bill of Rights has been infringed a court will grant measures by themselves are not likely to constitute constitutional compliance. Mere legislation is not enough. The State is obliged to act to achieve the intended result, and Aappropriate relief@. It has wide powers to do so and in addition to the declaration that it is the legislative measures will invariably have to be supported by appropriate, obliged to make in terms of section 172(1)(a) a court may also Amake any order that is just and well-directed policies and programmes implemented by the Executive. These policies 47 and programmes must be reasonable both in their conception and their implementation. equitable@. The formulation of a programme is only the first stage in meeting the State=s obligations.

The programme must also be reasonably implemented. An otherwise reasonable 48 programme that is not implemented reasonably will not constitute compliance with the [102] In Fose v Minister of Safety and Security this Court held that 46 State=s obligations.@ A[a]ppropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all-important rights.@49

The judgment (per Ackermann J) went on to state:

AI have no doubt that this Court has a particular duty to ensure that, within the bounds of the Constitution, effective relief be granted for the infringement of any of the rights entrenched in it. In our context an appropriate remedy must mean an effective remedy,

46 47 Above n 6 para 42. Section 172(1)(b).

48 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC).

49 Id para 19 (footnote omitted).

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for without effective remedies for breach, the values underlying and the right entrenched [103] In Mohamed v President of the RSA,51 this Court dealt with an argument similar to that in the Constitution cannot properly be upheld or enhanced. Particularly in a country addressed to us by counsel for the appellants, in these terms: where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The courts have a particular ANor would it necessarily be out of place for there to be an appropriate order on the responsibility in this regard and are obliged to >forge new tools= and shape innovative relevant organs of State in South Africa to do whatever may be within their power to remedies, if needs be, to achieve this goal.@50 remedy the wrong here done to Mohamed by their actions, or to ameliorate at best the consequential prejudice caused to him. To stigmatise such an order as a breach of the separation of State power as between the Executive and the Judiciary is to negate a foundational value of the Republic of South Africa, namely supremacy of the Constitution and the rule of law. The Bill of Rights, which we find to have been infringed, is binding on all organs of State and it is our constitutional duty to ensure that appropriate relief is afforded to those who have suffered infringement of their constitutional rights.@52

[104] The power to grant mandatory relief includes the power where it is appropriate to

exercise some form of supervisory jurisdiction to ensure that the order is implemented. In

51 Mohamed and Another v President of the Republic of South Africa and Others (Society for the Abolition of the Death Penalty in South Africa and Another Intervening) 2001 (3) SA 893 (CC); 2001 (7) BCLR 685 (CC).

52 Id para 71 (footnotes omitted).

50 Id para 69 (footnote omitted).

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Pretoria City Council v Walker,53 Langa DP said: [105] This Court has said on other occasions that it is also within the power of courts to make a

mandatory order against an organ of state54 and has done so itself. For instance, in the Dawood A[T]he respondent could, for instance, have applied to an appropriate court for a case, a mandamus was issued directing the Director-General of Home Affairs and immigration declaration of rights or a mandamus in order to vindicate the breach of his s 8 right. By means of such an order the council could have been compelled to take appropriate steps officials to exercise the discretion conferred upon them in a manner that took account of the as soon as possible to eliminate the unfair differentiation and to report back to the Court constitutional rights involved.55 In the August case a mandatory order, coupled with an in question. The Court would then have been in a position to give such further ancillary orders or directions as might have been necessary to ensure the proper execution of its injunction to submit a detailed plan for public scrutiny, was issued by this Court against an organ order.@ of state B the Electoral Commission.56

[106] We thus reject the argument that the only power that this Court has in the present case is

to issue a declaratory order. Where a breach of any right has taken place, including a socio-

54 Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC); 1997 (12) BCLR 1675 (CC) para 39; New National Party of South Africa v Government of the Republic of South Africa and Others 1999 (3) SA 191 (CC); 1999 (5) BCLR 489 (CC) para 46.

55 Above n 41 para 67 and 70.

56 Above n 45.

53 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC) para 96.

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111 THE COURT THE COURT economic right, a court is under a duty to ensure that effective relief is granted. The nature of the [107] An examination of the jurisprudence of foreign jurisdictions on the question of remedies right infringed and the nature of the infringement will provide guidance as to the appropriate shows that courts in other countries also accept that it may be appropriate, depending on the relief in a particular case.57 Where necessary this may include both the issuing of a mandamus circumstances of the particular case, to issue injunctive relief against the state. In the United and the exercise of supervisory jurisdiction. States, for example, frequent use has been made of the structural injunction B a form of

supervisory jurisdiction exercised by the courts over a government agency or institution. Most

famously, the structural injunction was used in the case of Brown v Board of Education58 where

the US Supreme Court held that lower courts would need to retain jurisdiction of Brown and

similar cases. These lower courts would have the power to determine how much time was

necessary for the school boards to achieve full compliance with the Court=s decision and would

also be able to consider the adequacy of any plan proposed by the school boards Ato effectuate a

transition to a racially nondiscriminatory school [email protected]

58 Brown et al v Board of Education of Topeka et al 347 US 483 (1954) (Brown I) and Brown et al v Board of Education of Topeka et al 349 US 294 (1955)(Brown II).

59 Brown II id 300-1. See too Swann et al v Charlotte-Mecklenburg Board of Education et al 402 US 1 (1971) where the Supreme Court gave some general guidelines to assist courts and school authorities in the implementation of school desegregation B focusing on various techniques which could be employed to ensure that desegregation took place more expeditiously.

57 Hoffmann above n 1 para 45.

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[108] Even a cursory perusal of the relevant Indian case law demonstrates a willingness on the by a detailed interim law to remain in place until new legislation came into force. part of the Indian courts to grant far-reaching remedial orders. Most striking in this regard is the decision in M.C. Mehta v State of Tamil Nadu and Others60 where the Supreme Court granted a [110] In Canada, it appears that both the supreme and the lower courts have the power to issue wide-ranging order concerning child labour that included highly detailed mandatory and mandatory orders against organs of state.63 Canadian courts have, however, tended to be structural injunctions. relatively cautious in this regard. For example, in Eldridge v British Columbia (Attorney

General),64 the Supreme Court of Canada considered a declaration of unconstitutionality

[109] Although decisions of the German Federal Constitutional Court are mostly in the form of preferable to Asome kind of injunctive relief@ on the basis that Athere are myriad options available declaratory orders, the Court also has the power to prescribe for a temporary period which steps to the government that may rectify the unconstitutionality of the current system@. The Canadian have to be taken in order to create a situation in conformity with the Basic Law.61 The most far- courts have also tended to be wary of using the structural injunction.65 reaching execution order was probably that made by the Court in the Second Abortion Case,62 declaring several provisions of the Criminal Code unconstitutional and void and replacing them [111] In the United Kingdom, although injunctive relief may be granted against officers of the

Crown, the House of Lords has held that this should only be done in the

60 [1996] 6 SCC 756. 61 This power is derived from Article 35 of the Federal Constitutional Court Act which reads: Amost limited circumstances. In the majority of situations so far as final relief is AIn its decision the Federal Constitutional Court may state by whom it is to be executed; concerned, a declaration will continue to be the appropriate remedy on an application for in individual instances it may also specify the method of execution.@ judicial review involving officers of the Crown. As has been the position in the past, the 62 BVerfGE 88, 208. Crown can be relied upon to co-operate fully with such declarations.@66

63 See for example, the Supreme Court=s decision in Reference re: Manitoba Language Rights (1985) 19 DLR (4th) 1 and the decision of the High Court of Ontario in Marchand v Simcoe County Board of Education et al (1986) 29 DLR (4th) 596.

64 (1997) 151 DLR (4th) 577 (SCC) para 96.

65 See Doucet-Boudreau v Nova Scotia (Department of Education) (2001) 203 DLR (4th) 128 para 50 where the Nova Scotia Court of Appeal refused to exercise supervisory jurisdiction on the basis that there is no Ahistory in this country . . . of occasions when the administrative or legislative branches of government have refused to comply with court ordered remedies under the Charter.@

66 In re M. [1994] 1 AC 377 (HL) at 422-3. Where it would be more convenient to leave it to the applicant to return to court with a complaint that government=s duties, as declared by the court, had not been complied with, it was considered preferable to give mere declaratory relief, rather than a mandamus. See for example R. v Secretary of State for the Home Department, Ex parte Anderson [1984] 1 QB 778 at 795.

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now made available at all state hospitals and clinics where there are testing and counselling

[112] What this brief survey makes clear is that in none of the jurisdictions surveyed is there facilities, that will call for a change in policy. The policy will have to be that nevirapine must be any suggestion that the granting of injunctive relief breaches the separation of powers. The provided where it is medically indicated at those hospitals and clinics within the public sector various courts adopt different attitudes to when such remedies should be granted, but all accept where facilities exist for testing and counselling. that within the separation of powers they have the power to make use of such remedies B particularly when the state=s obligations are not performed diligently and without delay. [116] At the time the proceedings were instituted, the provincial health authorities charged with

the responsibility of implementing the programme for testing and counselling attributed their

[113] South African courts have a wide range of powers at their disposal to ensure that the failure to do this to constraints relating to capacity. There were financial constraints owing to

Constitution is upheld. These include mandatory and structural interdicts. How they should limited budgets and there was also a shortage of suitably trained persons to undertake testing and exercise those powers depends on the circumstances of each particular case. Here due regard counselling. The question whether budgetary constraints provided a legitimate reason for not must be paid to the roles of the legislature and the executive in a democracy. What must be implementing a comprehensive policy for the use of nevirapine, including testing and made clear, however, is that when it is appropriate to do so, courts may B and if need be must B counselling, was disputed. It was contended that the use of nevirapine would result in significant use their wide powers to make orders that affect policy as well as legislation. savings in later years because it would reduce the number of HIV-positive children who would

otherwise have to be treated in the public health system for all the complications caused by that

[114] A factor that needs to be kept in mind is that policy is and should be flexible. It may be condition. changed at any time and the executive is always free to change policies where it considers it appropriate to do so. The only constraint is that policies must be consistent with the Constitution [117] In the view that we take of this matter it is not necessary to deal with that issue. and the law. Court orders concerning policy choices made by the executive should therefore not Conditions have changed since these proceedings were initiated. This is relevant to the order be formulated in ways that preclude the executive from making such legitimate choices. that should follow upon the findings now made.

Circumstances relevant to the order to be made [118] During the course of these proceedings the state=s policy has evolved and is no longer as

[115] The finding made concerning the restricted use of nevirapine has implications for rigid as it was when the proceedings commenced. By the time this appeal was argued, six government=s policy on the prevention of mother-to-child transmission of HIV. If nevirapine is hospitals and three community health care centres had already been added in Gauteng to the two

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114 THE COURT THE COURT research and training sites initially established and it was contemplated that during the course of has made substantial additional funds available for the treatment of HIV, including the reduction this year nevirapine would be available throughout the province for the treatment of mother-to- of mother-to-child transmission. The total budget to be spent mainly through the departments of child transmission. Likewise, in KwaZulu-Natal there was a change of policy towards the supply Health, Social Development and Education was R350 million in 2001/2. It has been increased to of nevirapine at public health institutions outside the test sites. According to a statement by the R1 billion in the current financial year and will go up to R1,8 billion in 2004/5. This means that provincial MEC for Health referred to by Dr Ntsaluba at the time of the interlocutory the budgetary constraints referred to in the affidavits are no longer an impediment. With the proceedings: additional funds that are now to be available, it should be possible to address any problems of

financial incapacity that might previously have existed. AThe proposal that we will table is that of a phased approach consisting of three phases,

in which the current study is the first phase. . . . [121] We have earlier referred to section 172(1)(a) of the Constitution, which requires a court The second phase will be the provision of this service at all major hospitals in every deciding a constitutional matter to Adeclare that any law or conduct that is inconsistent with the district, in total 27 of them. This we believe will bring access of this service to the majority of the people of our province while at the same time ensuring that the Constitution is invalid to the extent of its inconsistency@. A declaration to that effect must programme is not interrupted and remains sustainable. We are targeting that all these therefore be made in this matter. The declaration must be in a form which identifies the must have commenced by August. . . . The remaining hospitals they will only be given attention by March 2003. . . . These hospitals will be given 6 months to work out constitutional infringement. Whether remedial action must also be specified is a separate

whatever teething problems and settle in the programme before phasing the second question involving a different enquiry. phase, March 2003.

The third phase to complete the roll out of the programme incorporating all institutions [122] In the present case we have identified aspects of government policy that are inconsistent in the province and their feeder clinics, will also be approached in the same manner.@ with the Constitution. The decision not to make nevirapine available at hospitals and clinics

other than the research and training sites is central to the entire policy. Once that restriction is [119] These developments clearly demonstrate that, provided the requisite political will is removed, government will be able to devise and implement a more comprehensive policy that present, the supply of nevirapine at public health institutions can be rapidly expanded to reach will give access to health care services to HIV-positive mothers and their newborn children, and many more than the 10% of the population intended to be catered for in terms of the test site will include the administration of nevirapine where that is appropriate. The policy as policy. reformulated must meet the constitutional requirement of providing reasonable measures within

available resources for the progressive realisation of the rights of such women and newborn [120] But more importantly, we were informed at the hearing of the appeal that the government

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115 THE COURT THE COURT children. This may also require, where that is necessary, that counsellors at places other than at present case to grant further relief. We have come to the conclusion that it is appropriate to do the research and training sites be trained in counselling for the use of nevirapine. We will so, though in terms differing from the orders made by the High Court. formulate a declaration to address these issues.

[125] It is essential that there be a concerted national effort to combat the HIV/AIDS pandemic.

Transparency The government has committed itself to such an effort. We have held that its policy fails to

[123] Three of the nine provinces67 have publicly announced programmes to realise meet constitutional standards because it excludes those who could reasonably be included where progressively the rights of pregnant women and their newborn babies to have access to such treatment is medically indicated to combat mother-to-child transmission of HIV. That does nevirapine treatment. As for the rest, no programme has been disclosed by either the Minister or not mean that everyone can immediately claim access to such treatment, although the ideal, as Dr any of the other six MECs, this notwithstanding the pertinent request from the TAC in July Ntsaluba says, is to achieve that goal. Every effort must, however, be made to do so as soon as

200168 and the subsequent lodging of hundreds of pages of affidavits and written legal argument. reasonably possible. The increases in the budget to which we have referred will facilitate this.

This is regrettable. The magnitude of the HIV/AIDS challenge facing the country calls for a concerted, co-ordinated and co-operative national effort in which government in each of its three [126] We consider it important that all sectors of the community, in particular civil society, spheres and the panoply of resources and skills of civil society are marshalled, inspired and led. should co-operate in the steps taken to achieve this goal. In our view that will be facilitated by

This can be achieved only if there is proper communication, especially by government. In order spelling out the steps necessary to comply with the Constitution. for it to be implemented optimally, a public health programme must be made known effectively to all concerned, down to the district nurse and patients. Indeed, for a public programme such as [127] We will do this on the basis of the policy that government has adopted as the best means this to meet the constitutional requirement of reasonableness, its contents must be made known of combating mother-to-child transmission of HIV, which is to make use of nevirapine for this appropriately. purpose. Government must retain the right to adapt the policy, consistent with its constitutional

obligations, should it consider it appropriate to do so. The order that we make has regard to this.

Relief

[124] What remains to be considered is whether it is appropriate in the circumstances of the [128] We do not consider it appropriate to deal with the use of formula feed in the order.

Whether it is desirable to use this substitute rather than breastfeeding raises complex issues,69 67 Western Cape, Gauteng and KwaZulu-Natal.

68 69 Quoted in para 11 above. See conclusions and recommendations regarding infant feeding in the WHO Technical Consultation

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116 THE COURT THE COURT particularly when the mother concerned may not have easy access to clean water or the ability to [129] The order made by the High Court included a structural interdict requiring the appellants adopt a bottle-feeding regimen because of her personal circumstances. The result of the studies to revise their policy and to submit the revised policy to the court to enable it to satisfy itself that conducted at the research and training sites may enable government to formulate a the policy was consistent with the Constitution. In Pretoria City Council70 this Court recognised comprehensive policy in this regard. In the meantime this must be left to health professionals to that courts have such powers. In appropriate cases they should exercise such a power if it is address during counselling. We do not consider that there is sufficient evidence to justify an necessary to secure compliance with a court order. That may be because of a failure to heed order that formula feed must be made available by the government on request and without charge declaratory orders or other relief granted by a court in a particular case. We do not consider, in every case. however, that orders should be made in those terms unless this is necessary. The government has

always respected and executed orders of this Court. There is no reason to believe that it will not

do so in the present case.

[130] The anxiety of the applicants to have the government move as expeditiously as possible

in taking measures to reduce the transmission of HIV from mother to child is understandable.

One is dealing here with a deadly disease. Once a drug that has the potential to reduce mother-

to-child transmission is available, it is desirable that it be made available without delay to those

who urgently need it.

[131] We do not underestimate the nature and extent of the problem facing government in its

fight to combat HIV/AIDS and, in particular, to reduce the transmission of HIV from mother to

child. We also understand the need to exercise caution when dealing with a potent and a

entitled New data on the prevention of mother-to-child transmission of HIV and their policy implications relatively unknown drug. But the nature of the problem is such that it demands urgent attention. approved 15 January 2001. 70 Above n 53 para 96.

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Nevirapine is a potentially lifesaving drug. Its safety and efficacy have been established. There issues, albeit in different terms, and we do not consider the differences to be sufficient reason for is a need to assess operational challenges for the best possible use of nevirapine on a depriving the applicants of their costs. These are to include the costs occasioned by the Court=s comprehensive scale to reduce the risk of mother-to-child transmission of HIV. There is an enquiry after the conclusion of the argument, save for the costs of the application by government additional need to monitor issues relevant to the safety and efficacy of and resistance to the use to adduce further evidence, which are to be borne by the respective parties. of nevirapine for this purpose. There is, however, also a pressing need to ensure that where possible loss of life is prevented in the meantime. Orders

[135] We accordingly make the following orders:

[132] Government policy is now evolving. Additional sites where nevirapine is provided with a Afull package@ to combat mother-to-child transmission of HIV are being added. In the Western 1. The orders made by the High Court are set aside and the following orders are

Cape, Gauteng and KwaZulu-Natal, programmes have been adopted to extend the supply of substituted. nevirapine for such purpose throughout the province. What now remains is for the other provinces to follow suit. The order that we make will facilitate this. 2. It is declared that:

[133] It is necessary that the government programme, as supplemented to comply with the a) Sections 27(1) and (2) of the Constitution require the government to requirements of this judgment, be communicated to health caregivers in all public facilities and devise and implement within its available resources a comprehensive and to the beneficiaries of the programme. Having regard to the nature of the problem, the steps that co-ordinated programme to realise progressively the rights of pregnant have to be taken to comply with the order that we make should be taken without delay. women and their newborn children to have access to health services to

combat mother-to-child transmission of HIV.

Costs

[134] The applicants had an order of the High Court in their favour and they were entitled to b) The programme to be realised progressively within available resources defend that order in this Court. The issues raised in these proceedings are of considerable must include reasonable measures for counselling and testing pregnant importance. The applicants have also been substantially successful in relation to those issues. women for HIV, counselling HIV-positive pregnant women on the

The order that we make differs from that made by the High Court. Yet it addresses similar options open to them to reduce the risk of mother-to-child transmission of

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HIV, and making appropriate treatment available to them for such and training sites.

purposes.

b) Permit and facilitate the use of nevirapine for the purpose of reducing the

c) The policy for reducing the risk of mother-to-child transmission of HIV risk of mother-to-child transmission of HIV and to make it available for

as formulated and implemented by government fell short of compliance this purpose at hospitals and clinics when in the judgment of the attending

with the requirements in subparagraphs (a) and (b) in that: medical practitioner acting in consultation with the medical

superintendent of the facility concerned this is medically indicated, which

i) Doctors at public hospitals and clinics other than the research and shall if necessary include that the mother concerned has been

training sites were not enabled to prescribe nevirapine to reduce appropriately tested and counselled.

the risk of mother-to-child transmission of HIV even where it was

medically indicated and adequate facilities existed for the testing c) Make provision if necessary for counsellors based at public hospitals and

and counselling of the pregnant women concerned. clinics other than the research and training sites to be trained for the

counselling necessary for the use of nevirapine to reduce the risk of

ii) The policy failed to make provision for counsellors at hospitals mother-to-child transmission of HIV.

and clinics other than at research and training sites to be trained in

counselling for the use of nevirapine as a means of reducing the d) Take reasonable measures to extend the testing and counselling facilities

risk of mother-to-child transmission of HIV. at hospitals and clinics throughout the public health sector to facilitate

and expedite the use of nevirapine for the purpose of reducing the risk of

3. Government is ordered without delay to: mother-to-child transmission of HIV.

a) Remove the restrictions that prevent nevirapine from being made 4. The orders made in paragraph 3 do not preclude government from adapting its

available for the purpose of reducing the risk of mother-to-child policy in a manner consistent with the Constitution if equally appropriate or

transmission of HIV at public hospitals and clinics that are not research better methods become available to it for the prevention of mother-to-child

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transmission of HIV. For the Appellants: MTK Moerane SC, P Coppin, B Vally instructed by the

State Attorney, Pretoria

5. The government must pay the applicants= costs, including the costs of two

counsel. For the Respondents: GJ Marcus SC, B Majola, GM Budlender instructed by the Legal

Resources Centre, Johannesburg

6. The application by government to adduce further evidence is refused.

For the 1st and 2nd Amici Curiae: W Trengove SC, N Bawa, A Dodson, K Pillay instructed

by Owen Incorporated Attorneys, Cape Town and

Mallinicks Attorneys, Cape Town

Chaskalson CJ Langa DCJ

For the 3rd Amicus Curiae: S Cowen instructed by the Wits Law Clinic, Johannesburg

Ackermann J Du Plessis AJ Goldstone J

Kriegler J Madala J Ngcobo J

O=Regan J Sachs J Skweyiya AJ

81 82

120 From Witness to AIDS by Edwin Cameron America and Australia, the figures are almost exact and very reliable. In Chapter 2 Just a virus, just a disease other regions, those that AIDS most heavily burdens, the figures are estimates – for the most part, very rough estimates. These are based on AIDS is a disease. It is an infection, a syndrome, an illness, a disorder, a well-established methods of inference and models of disease projection. condition threatening to human life. It is an epidemic – a social crisis, an But their application and the results derived from them are rightly the economic catastrophe, a political challenge, a human disaster. AIDS is subject of a good deal of controversy. known. It has been analysed assessed assayed tested measured surveyed Other puzzles are concerned with how the virus itself operates and considered reflected documented depicted exhaustively described. Its how the human body responds to it. Some individuals, a tiny fraction, virus is primal particular sub-cellular mutant enveloped nitrogenous. Our remain uninfected despite extensive exposure to HIV. We don’t know knowledge of it is clear and precise. But the disease is also unknown. It is why. Others, also a miniscule number, remain free of illness despite long guessed estimated projected approximated sketched debated disputed infection with HIV. We are not sure why. Some populations have escaped controverted hidden obscured. Still, it is mere fact: an event, a the mass infection patterns that signal an epidemic. Others, in central and circumstance, a happening, a reality as present as the ocean or the moon. southern Africa, have not. The reasons are not clear. Anyone who AIDS is mouth and tongue and scar and nerve and eye and brain pretends to know exactly why is pretending. and skin and tum and gut. AIDS is smell and feel – of sweat and grime AIDS is the worst microbe-borne epidemic since the great plague, and snot and breath and bowel and secretion, discharge, pus, putrescence, probably carried by rats and passed on from their fleas to humans, killed disintegration, excrement, waste. Human waste. AIDS is feeling – painful at least 25 million people – one third of Europe’s population – in the mid- sharp tingling burning heavy dull weakening wasting enervating 1300s. At least the same number of people have already died from AIDS. diminishing destroying bereaving. AIDS is fear. It is breathless and The United Nations special agency dealing with the epidemic, UNAIDS, nameless. estimates that by the end of 2002, after the epidemic’s first two decades, AIDS is stigma disgrace discrimination hatred hardship cumulatively 25 million people had died from AIDS. In 2002 alone, as abandonment isolation exclusion prohibition persecution poverty many as three million people died. The same agency estimates that there privation. are currently more than 42 million people worldwide living with HIV or AIDS is metaphor. It is a threat a tragedy a blight a blot a scar a AIDS. stain a plague a scourge a pestilence, a demon killer rampant rampaging AIDS was first diagnosed in North America. But most of those murderer. It is made moral. It is condemnation deterrence retribution whom AIDS now threatens with death live in Africa. Africa is the punishment, a sin a lesson a curse rebuke judgment. It is a disease. world’s poorest continent. In the last five hundred years it has suffered the ravages of slavery, colonialism and exploitation. It continues to be AIDS is a disease triggered and sustained by a virus. The virus is the crippled by debt and by the exclusionary policies of the world trade most researched and best understood in the history of humankind. system, enforced by wealthy countries, which exclude its products from Scientists know precisely how it is genetically constructed and how it is many profitable markets while undercutting the prices its farmers can chemically made up. We know how HIV replicates, how it is transmitted, obtain for their produce. Currently perhaps as many as thirty million and how it works to destroy the body’s defence mechanisms, causing the Africans have HIV or AIDS. catastrophic breakdown of immunity that is AIDS. We know a great deal The most signally important thing about AIDS is a hopeful fact – about how HIV moves through populations and what social factors hasten that it can now be medically managed. When the virus’s replication its spread. We also know what living conditions and social circumstances within the human body is disabled, its effects become remediable. Drug speed up the onset of AIDS after someone has been infected with HIV. treatment can now stop viral replication. AIDS is therefore a manageable AIDS is the most scrutinised and studied and analysed disease in the condition. The drugs that disable viral replication exist, in ample number history of medicine. and manifold combinations. They are capable of being produced cheaply. Even so, there is much that is unknown. Some continuing puzzles What prevents their inexpensive production and ready distribution is in concern its epidemiology (the study of the spread of disease). We don’t the first instance laws, national and international, that protect the know exactly how many people are infected with HIV, or the precise exclusive rights of the corporations that have intellectual property title number of those who have died of AIDS. For some areas, like North (patent rights) to them.

121 Where the drugs are available and accessible, and are administered HIV infections at home while trying to lay the ground for wise AIDS under proper medical management, AIDS illnesses and deaths have been policies by our soon-to-be-elected democratic government. reduced by as much as 90 per cent. This has happened in affluent areas of As our conversation ranged widely, I began to sense in my the world. The epidemic therefore confronts business and political leaders companion a personal passion about the issues that I not only admired but with a pressing moral question. The means to prevent death from AIDS which seemed to resonate with my own. But this was suddenly exist. Are they willing to take the measures needed to ensure that abbreviated when he paused to say significantly: ‘Of course commitment adequately supervised treatment reaches thirty million Africans and other does not have to mean you are HIV positive yourself. For instance, I’m people in the resource-poor world – or will they let them die because they HIV negative.’ I was instantly puzzled. The avowal seemed illogical, are poor? unconnected. It exuded cold breath over our conversation like a lump of This question is pressing because without access to the new drug dry ice on a stage. Naturally I accepted what he said at face value. But I treatments, most of the 42 million people in the world living with HIV felt dismay spreading from my throat. If he was HIV negative, why did and AIDS will die of AIDS over the next ten years. Death from AIDS is he need to insist on it? Surely such a thoughtful and provocative activist lingering, painful, and (particularly in resource-poor settings) very short should avoid divisive, self-exempting labelling? Our conversation of dignity. And because AIDS is a syndrome of disparate diseases – foundered. He took the check and soon after we parted ways on the steps because unlike cancer or ailments of the circulatory system or heart it of the gallery in the chilly dusk of late winter. does not strike efficiently at a single vital organ, but allows wasting When I returned to South Africa, I wrote to thank him. But I disorders gradually to wrack the body as a whole – and because most of decided not to ignore his pointed self-labelling. So I added a question. those with AIDS are young adults whose bodies are otherwise still Why had he declared himself HIV negative, I asked, when the struggle relatively strong, death from AIDS is almost invariably a ghastly, drawn- for justice surely required indifference within it between those who are out event. positive and those who are negative? I never received a reply. Perhaps worse than many of its other features, more puzzling, less But a few months later I bumped into him at a meeting in Berlin. tractable, and besides complicating everything else, AIDS is also shame. That may have been my answer. He looked shocking. He was haggard Shame – the humiliation or distress that arises from self-knowledge and drawn, severely stressed or very ill – or, I thought, both. Later a of dishonour or offence or impropriety or indecency. mutual friend told me he had fallen ill with AIDS. He was probably feeling the effects of his impending slide downwards when we met at the An apparently insignificant incident kept me thinking for a long time. On National Gallery. He survived for long enough to benefit from an early spring afternoon in March 1993, while I was visiting London on antiretroviral treatment. He continues to write, as sensitively and a government-sponsored information tour, my foreign office hosts set up perceptively as before. That he knew he was HIV positive when we met a meeting with a British writer and AIDS activist whose work I at the National Gallery seems almost certain. particularly admired. I arrived at the National Gallery before our Why could he not tell me? More precisely, why did this nuanced, appointed time to catch a glimpse of some of my best-remembered committed person feel that he needed to make an unsolicited claim that he images – the shadowy elusions of Leonardo’s drawing of the Virgin and was HIV negative? Perhaps he feared that I imputed a personal Child with St Anne and St John the Baptist, the wiry-haired alert little connection to AIDS. Perhaps the adopted reserve of the southern English dog attending the betrothal of van Eyck’s Arnolfini, the altogether more made the conversation’s intensity uncomfortable. Perhaps he envied the languid pooch enjoying the hot afternoon with Seurat’s Bathers, and the lawyerly detachment he imagined that I was bringing to the issues. twisted death’s head soaring sombrely past the feet of Holbein’s Or did he just feel scared and lonely, fearful that I would encase handsome Ambassadors. him in stereotype, one all too familiar in those years – the self-interested, Under the coffee shop’s thickly barred windows overlooking angry, afflicted, imminently perishable AIDS activist? Trafalgar Square, my companion and I seemed to establish a quick Perhaps he was already ill. Perhaps he felt the crackling drag of rapport. Although visiting as an ‘anti-apartheid lawyer’, I was familiar death upon his will, his energy, his courage, his life, as mortality hovered. with his subtle but passionate criticisms of conventional responses to gay Perhaps like us all he thought that denial deferred death. sexuality and to AIDS. He in turn expressed a sympathetic connection If he had been asked, my companion could perhaps have answered with the problems weighing on me – how to stem the disquieting rise in some of these questions. But they should more truly have been directed at

122 myself. For what was equally telling about our meeting that afternoon victim’s claim for expenses, pain and suffering and loss of amenities – is was that I, too, did not speak about my own exposure to HIV. For at the for ‘loss of expectation of life’. It is a bereavement the cold categories of time I, too, knew that I had HIV. For more than six years I had known, the law recognise. since a Friday afternoon in December 1986 when my doctor, a well- For the first time I knew what it meant to experience a loss of meaning family friend on the point of retiring from a much-loved practice expectation of living. I knew with certainty that I would fall ill soon. And in Pretoria, phoned me during a busy moment at the Wits University then I would die. Death would assuredly overtake me within a year or human rights centre to tell me, without precursor, planning, request or two. Even discounting these dramatic presentiments, AIDS put a short, approval, that he had sent my blood for testing, and that it had come back sudden and shocking limit on my life. In December 1986 it was for me positive for HIV. what for tens of millions of Africans it still is today – an imminent term I look now in my legal appointments diary for Friday 19 December of death. 1986. Court was in recess. The day notes the address of a close friend Over the next ten weeks, through a stint at Harvard law school’s who had recently relocated to Cape Town. It fixes a lunch date with a human rights programme, the bruising sense of shock and the enveloping funder at a nearby health food bar at 12h15. And it lists an arrangement to silence travelled everywhere with me. The east coast newspapers and the take two friends to the airport at 16h00 for a family visit abroad. My bleakly pessimistic gay press of early 1987 fed my sense of horror on a doctor’s call came just after three o’clock. It delayed me, so that I was daily basis. They proclaimed the rising death toll, the horrific late for my friends. Not because we spoke for long. We didn’t. manifestations of AIDS, their certain culmination in death, the social My doctor seemed nonplussed – grave and somewhat lost for revulsion the disease almost everywhere evoked. Again, this not unlike words. But after he put the phone down I felt too stunned to move, Africa today for those with AIDS – a sense of horror, mixed with fear not incapable of my own distress. Eventually I dragged myself up. My first only of the disease’s effects but of people’s reactions to it: and above all duty in a new, irreversibly changed, world. My friends and I battled to absence of hope. reach the airport through a crashing Highveld thunderstorm that whipped In my shock I experienced what I later gathered is not uncommon the Friday afternoon traffic. Somehow they made their plane, and I made among those not fairly forewarned of an HIV diagnosis: a sudden onset of it home. AIDS-like symptoms. As I left for Cambridge, Massachusetts, I had a What the diary does not show is that later that night, in the state of severe chest infection, sore throat, swollen lymph nodes. These all acutely heightened awareness that sudden shock or bereavement can presaged, albeit mildly, the illness’s eventual onset more than ten years bring, I visited a busy bar in Hillbrow, Johannesburg’s cosmopolitan later: vivid proof of the conjuncture of mind and body. flatland. Standing in the crowd I felt not dulled but sharpened, uselessly From America, baffled by his conduct, I sent my doctor courteous so, my awareness not stupefied but concentrated, futilely, as though notes, diffidently enclosing patient information pamphlets and medical something intensely violative had befallen me, a limb suddenly torn off, journal articles. These enjoined doctors – for ethical, psychological, legal for which no previous experience had prepared me and about which and practical reasons – to obtain a patient’s fully informed consent before nothing could now be done. Alone in my car on the way home I operated HIV testing. They emphasised that the patient needs help and support – the controls as if for the first time, the steering wheel unfamiliar beneath counselling – to cope with the result, whether positive or negative. In no my palms. The silence around me seemed intense. All the organs through circumstances should the news be communicated by telephone. A support which I was breathing had suddenly been fixed with an unspecified but structure should be in place. Never, ever, should the patient be left to face surely imminent term date. the news alone. The shock was double. Apart from the blow of learning that I was In the more promising days of treatment access, these norms are infected, most immediately I felt as though I had experienced a stunning swiftly changing, and rightly so. Where life-saving treatment is available bereavement – the impending loss of my own life. I was thirty-three, to the patient, it may be the doctor’s duty to push the patient gently to building my career. In many ways – developmentally rather than agree to be tested. In Botswana, South Africa’s land-locked neighbour, chronologically – I was just starting life. AIDS was incurable. Its President Festus Mogae’s government in 2001 announced a far-seeing eventual effects were horrific – and untreatable. In South African law, national plan to provide antiretroviral treatment through the public health when an assault or road accident survivor sues the perpetrator, a separate service to everyone with AIDS. But, as the death toll from AIDS heading under which compensation can be recovered – apart from the continued to climb, poor enlistment baffled government health planners.

123 So from January 2004, the Botswana government announced that unless your life and being. It is part of what defines hope and expectation. It has patients at public health facilities actively declined to be tested for HIV, been said that what distinguishes humans from other animals is our the test would be routinely administered. conscious apprehension of mortality. That sense – its translation into Some of my activist friends felt dubious about the change. I present knowledge – must always be approached, addressed, its differed. Provided that treatment is available, with guarantees of imminence determined and imparted, with utmost veneration. confidentiality and against discrimination, I thought and still think that No person, professionally qualified or not, ill-intentioned or well- testing is more often than not necessary, and beneficial. It is better that meaning, for instrumental or intrinsic purposes, has the right to grasp that health workers trying to be true to their calling of beneficence should knowledge without at least first consulting and preparing the person it nudge patients who may need treatment towards the HIV test than that most concerns. That is more especially the case when the result reveals a they allow patients to return home, trapped by fear and stigma, untested, reviled disease exposing the patient to dread reactions; and when the to add to the epidemic’s already appalling toll of unnecessary deaths. medical diagnosis can offer no present hope and intervention to the By contrast, where no treatment is available – as in the bleak patient diagnosed. 1980s, and as is still the case through most of Africa – testing may do My frozen half-gestures to my doctor sought to communicate some little more than expose those who prove positive to stigma, ostracism and of this. One emotional evening in early 1987, shortly after returning from discrimination. And without proper support (including counselling) an Harvard, I managed to confide in my friend and Wits law associate unpresaged HIV positive test result is almost always damagingly counter- Carole Lewis, now a colleague in the Supreme Court of Appeal. But apart productive. So my doctor erred doubly. But looking back I have scoured from her, I made contact with almost no one. I confided, after a time, in my conscience to ask whether part of me in fact suspected that he might the person with whom I fell in love the next year. To a wise and patient use my annual visit that year to test for HIV. Every year when I visited private counsellor, and to a Wits doctor doing brave early work in the him in early December for a check-up, he sent blood for liver function field, Professor Ruben Sher, I spoke. But not to family or troops of tests and platelet counts and cholesterol – benign, incomprehensible friends. I feared their reaction with a ghastly, sickening, isolating checks that held no meaning for me and less fear. They always came back loneliness. For more than three years I lived with it solitarily, not quite clear. alone in a treeless tundra of my own involuntary creation. But AIDS in the mid-1980s was a burning issue for young gay men. Perhaps with all the current talk, with the previous year’s Sunday Practising law at the human rights centre was gruelling but engrossing. In headlines agog with news of the ‘gay plague’ that had reached South July 1985 and again in June 1986 the apartheid government plunged the Africa, with my doctor’s knowledge of my sexually active post-divorce country into a state of emergency, proclaiming punitive legal measures life … perhaps between thought and suspicion and expectation and hope that banned meetings, publications, protests and political activity. it must have crossed my mind that he might also take it upon himself to Communities long-established on their land were still being ‘resettled’ – test for HIV. But if I did conceive of such a decision at all, without his forced off it in pursuit of the grand design of racial separation and first discussing it with me, without arranging for counselling or for subordination. Ramshackle ‘nations’ were still being fabricated as part of support or follow-up afterwards, it was only because I hoped and believed the grand plan of separating black and white, and were being declared that those results, too, would be benignly insignificant. ‘independent’ of the rest of South Africa. Fighters for the exiled African Perhaps my doctor did too. But the positive result was all too National Congress infiltrated their homeland. They targeted, with comprehensible. It meant death. And I had had no preparation for extremely rare exceptions, non-civilians exclusively. When captured, they anything so instantly and brutally terminal. I had no doubt that he should faced trial for treason and murder. Scores of young white men who have consulted me first, and that he should, on getting the positive result, refused to be conscripted into the army were imprisoned as conscientious have arranged matters very differently. Neither privately nor and religious objectors. professionally have I ever met a person, young or old, employed or But despite increasing depravities, for the most part the apartheid unemployed, numerate or innumerate, literate or illiterate, housed in stone authorities still took the law and legal processes seriously. Court or brick or corrugated iron or plastic sheeting, for whom the significance challenges often alleviated or obstructed the noxious and futile apparatus of such a result is any different. Your state of health – the term of your of racial subjugation. And it created spaces for trade unions to grow and life – is a matter of deepest privacy, most integral to your conception of

124 flex their worker power. No day was dull. While work was sometimes that way about themselves. Looking back on the problem I experienced in dispiriting and often overwhelming, more often it was exhilarating. not being able to talk with my human rights lawyer colleagues, I see all It was also a diversion, a justification, a comfort and a distraction. too clearly that it emanated partly from within me. At some inaccessible, impenetrable level – even while challenging injustice against people with But it was not merely awareness of radically truncated mortality that AIDS in the courts and on committees and on public platforms – I was seemed to be freezing my responses from within. Nor was it only fear of still struggling with an overwhelming inner sense of shame. In some others’ reactions to my condition. More horrifying was the inner sense of indefinable sense that I grappled to surmount, I felt that my infection contamination I experienced. Yes, I felt too fearful to speak with anyone. showed that I had acted shamefully, dishonourably, so as to bring not But I also felt too ashamed. I was tainted, soiled, polluted. My blood and only death but disgrace upon myself. body were fouled with the most conspicuously vile infection known to My colleagues were all committed – of course – to justice and recent human history. fairness and nondiscrimination. But I confided in none of them. I could Widespread and much publicised revulsion to AIDS – and fear of take no risks. Nor could I permit myself the comfort of connection. In those with HIV – didn’t help to combat these feelings: the witch-hunts at dealing with clients and plotting public interest litigation challenges we American primary schools, the rash of criminal legislation targeting those developed close camaraderie and even friendship. But I could no more with HIV, the seclusion camps in Sweden and Cuba. In South Africa, tell them that I had HIV than seek solace by confiding that I had molested proposals were mooted but fortunately abandoned, to force doctors to one of their children or pets. That was how deep, how powerful, how report cases of HIV or AIDS to the public health authorities. In August repulsive my condition seemed to me. 1986, the mine bosses’ organisation, the Chamber of Mines, announced Perhaps you think my reactions excessively subjective, or the the results of a study on blood samples of 300 000 male mineworkers. comparisons overstated. But powerfully irrational responses to AIDS These showed that about 800 mineworkers – 760 of whom were from overshadow the epidemic even today. For stigma – a social brand that central Africa, in particular Malawi – had HIV. The reaction was drastic. marks disgrace, humiliation and rejection – remains the most ineluctable, The workers with HIV were summarily deported. This was achieved indefinable, intractable problem in the epidemic. Stigma is perhaps the through the deadly mechanism of simply not renewing their yearly greatest dread of those who live with AIDS and HIV – greater to many contracts at the beginning of 1988. Regardless of their years of service, even than the fear of a disfiguring, agonising and protracted death. they were sent back to Malawi – with its pitifully inadequate health Stigma manifests itself in hatred, discrimination, rejection, system – to meet their fate. exclusion. Workers are sacked. Spouses are shut out. Friends are It was this issue, brought to me because I was a human rights abandoned. Services, help and support are refused. lawyer doing trade union work, that drew me into AIDS policy and What is perhaps most poignant and most impenetrable about litigation. Not my own condition, but a condition outside, graphically stigma is that some of its impact seems to originate from within. The linked to apartheid injustice. It was easy to throw myself into AIDS external manifestations find an ally within the minds of many people with activism in this guise. A dualism began. Publicly, I was a human rights HIV or AIDS. Stigma’s irrational force springs not only from the lawyer involved with trade unions, community organisations, ANC prejudiced, bigoted, fearful reactions others have to AIDS – it lies in the fighters, military resisters – and HIV issues. Privately, AIDS was fears and self-loathing, the self-undermining and ultimately self- hideously, almost unthinkably, close. destroying inner sense of self-blame that all too many people with AIDS or HIV experience themselves. It is the combination of these two forces Reactions like those that led to the expulsion of the Malawian investing AIDS stigma that renders its effects so powerful and so mineworkers were all fuelled by a sense that those with HIV or AIDS had destructive. only themselves to blame. From this were excluded only the small The external manifestations of stigma are horrific enough. At minority of ‘innocent victims’ – children and blood transfusees, who Christmastime 1998 a 36-year-old South African old woman, Gugu could not be fixed with blame for their condition. Dlamini, was stoned and stabbed to death. The horror of her death has There is no doubt that many people thought and still think of those never been fully investigated, because her murderers were never held to with AIDS or HIV as contaminated with a vile, self-induced affliction. account. The prosecution brought charges, but dropped them for lack of But all too many sufferers are painfully conditioned into also thinking evidence. What is clear is that shortly before her death Gugu told Zulu-

125 language radio listeners that she was living with HIV. Three weeks later, year now by the drugs that failed Simon – the drugs that continued to be members of her own neighbourhood rounded on her. Her attackers denied to millions of South Africans and others who needed them. accused her of shaming her community by announcing her HIV status. Another brave anti-apartheid activist led the way for me. Three She died in hospital – her body broken not by the HIV she faced with months before Simon died my friend Zackie Achmat broke his silence such conspicuous courage, but by the injuries her neighbours inflicted on about living with HIV. In an emotional letter to his friends he spoke about her. She left a thirteen-year-old daughter. his infection with HIV. Zackie is a man of immoderate intelligence, Three months after Gugu died I decided to announce publicly that I personal magnetism and courage. He combines these qualities with was living with HIV. My decision was impelled partly by horror at her unequalled guile (the latter hard-learned on the streets and in prison as a murder. Simon Nkoli, a brave activist, died at almost the same time. His teenage anti-apartheid activist) and a steely sense of strategy. Already he courageous openness about being gay while he shared a prison cell with had energised gays and lesbians in our new democracy to unite in other ANC leaders during the 1980s helped to ensure that gay and lesbian challenging discrimination under the new constitution. Now his openness equality was included as a cornerstone of nondiscrimination under the seemed to inspire him with even deeper energies. democratic constitution. When he later fell ill with AIDS, Simon took the Soon after ‘coming out’ with his HIV, he launched the Treatment logic of confrontation and truthfulness a step further. He spoke out about Action Campaign. Rapidly it became democratic South Africa’s foremost the fact that he had AIDS. activist organisation, shaming the international drug companies and He died, comatose, exhausted and dispirited, on 30 November challenging the government on many of its policies. It called on them to 1998 – four days after his 42nd birthday. The new drugs had failed him. adopt comprehensive AIDS policies that would make the newly available We surrounded Simon’s body where it lay in the comfortless, busy wards drug treatments accessible to the millions of Africans who desperately of the Johannesburg general hospital. He had survived a childhood under needed them. Faced with years of collusive paralysis between apartheid – in the very Vaal townships near Sharpeville where a year international corporations and governments in Africa, the TAC before I had started my own quest for wellness on antiretroviral therapy. confronted both with remorseless inventiveness – finely crafted legal He had survived also a pitted, often fractured quest for love and challenges, superbly researched, principled arguments and friendship, and trial for his life on the capital offences of murder and uncompromising stands that often exposed Zackie and its other leaders to treason. He did not survive AIDS. A media statement from family and personal risk. friends stated his cause of death. More than six years after his death such By the time Simon died at the end of 1998, it was clear that the openness, throughout Africa, still remains a rarity. drugs had saved my life. Twelve months after the onset of fully Simon’s memorial service was held at St Mary’s Anglican symptomatic AIDS, I should have been in a harrowing terminal decline, Cathedral, a capacious structure in downtown Johannesburg. Its with repeated, increasingly severe infections winnowing the flesh from traditional hewn-stone textures and spaces would not be out of place in my bones and the energy from my body. the Cotswolds. It is here that the young Desmond Tutu, later Nobel Peace Instead, I was fit and well and energetic. I was still taking protease laureate, began his rise to prominence as a moral voice against inhibitors – by far the most powerful of the new drugs. Though their apartheid’s injustice. Over the unremitting decades of racial humiliation neural side effects (the excruciating facial pain and dental sensitivity) and and subjugation, the cathedral served as the venue for many protests, the nausea had long passed, the gastric effects they caused remained many moving ceremonies. drastic. After every dose (six chilled capsules twice a day) my bowels Now Simon’s coffin lay there. Somehow his obsequies seemed twisted in spasm. But together with the other two drugs their effect harder, bleaker, crueller. His life’s struggle had helped create the South remained unmistakably dramatic. Africa to which Tutu aspired. Now he had succumbed to AIDS. On a As I was experiencing the first heady upsurge from the drugs at the rain-spattered, chilly Friday evening, despite the good turnout the end of 1997, I was asked to chair the governing council of University of cathedral felt skeletally empty. I joined the speakers who honoured the Witwatersrand. It is a heavy but engrossing and deeply rewarding Simon. I spoke about his dying from AIDS, about how signally important task. It has taught me some of the sorrow and complexity of trying to run openness was in the struggle for acceptance and fairness. But still I could a major educational institution. But it has also brought me the rewards of not speak about my own life with AIDS – a life sustained for more than a working with researchers and administrators and thinkers of extraordinary integrity and ability and dedication – including a close working

126 relationship with Wits’s first black vice-chancellor, a brilliant and Surely if I started speaking as someone myself living with AIDS, I engaging mathematician named Loyiso Nongxa, who like me had gone to would do so with greater moral force, more unchecked energy, better Oxford on a Rhodes Scholarship. clarity about what had to be done? My new energies spurred me daily, when I awoke, as I did my It would only be a matter of time. I knew this. My illness in late court duties, as I went to chair sometimes arduous and exacting meetings 1997 was relatively well disguised from Johannesburg’s close-knit legal at Wits University and for my other ‘causes’, and as I spent evenings with community, because when I fell ill I was out of town on the Vereeniging friends. My energy, my appetite, my wakefulness all crested bountifully circuit. Only my assessors, who sat with me on the bench and shared my upwards. judge’s chambers during adjournments, saw how ill I was. Word Perhaps the drugs failed Simon because of the way in which he had nevertheless did get about. Why should it not? One of my assessors in become exposed to them. Like others living in mortal fear of AIDS at the those first oxygen-depleted, antibiotic-laden weeks at Vereeniging was time, Simon took them as they became available – successively and the father of my lovely godson, Sizwe Mpofu. He expressed concern to singly. After his release on bail in 1988, well-intentioned friends from Sizwe’s mother, Terry, about how ill I looked. When she called to find abroad started sending him parcels of zidovudine (AZT). He took it for a out how I was, my initial response was panic and fear. time. Then he stopped taking it, later perhaps starting again. As other And yet my friends and colleagues were concerned, and wanted to antiretroviral drugs became available, he took them too – first one, then express their concern and support. Why should they not? It was I who another, then a third. By the time he fell seriously ill with AIDS in the was not yet ready to receive it. My internal feelings of fear and disgust mid-1990s, his virus had learned to outwit each drug in turn, becoming and self-blame were still too strong. I disentitled myself from the help I resistant also to similar drugs in the same class. So when he started was entitled to claim and to receive. combination therapy the virus had mutated into complex enough forms to There was wider talk. A journalist from a Sunday paper made an evade confinement. It raged through his body until it finally prevailed appointment to see me in my chambers at the High Court. He had heard it over his strength on 30 November 1998. said at a dinner party, he told me, that I was HIV positive. Would I not By contrast, I had never taken any antiretroviral before. Thanks to give my ‘story’ to him? ‘Speak to me,’ he urged. ‘If you don’t, other less my homoeopath I had for more than six years not even taken a single sympathetic journalists are planning run with it.’ This I doubted. I knew antibiotic. My body was ‘drug-naive’. So when I started the knockout that without a firm factual source, or direct confirmation from me, combination a year before Simon’s death, it worked as Dr David Ho and newspapers were likely to defer to South Africa’s stern privacy laws. his colleagues had dreamed it would. His tone of implicit menace offended me, and I frostily declined. Simon’s death underscored for me the particularity and the Undaunted, he asked me directly if I was HIV positive. I paused for a partiality of my minor physiological miracle. Above everything else, I moment while I looked him in the eye. I hesitated. I would not lie. But was taking the drugs only because I could afford to pay for them – at their what was I to say? Then I told him the fable of the King of Denmark. He, still excessively inflated 1999 prices. it was said, publicly wore the yellow Star of David to signify solidarity Publicly, on platforms, in committees and in the media, I spoke with his Jewish subjects under Nazi rule – and saved them, alone amongst about the imperative need to make the drugs more widely available. Their the occupied European communities, from obliteration. ‘In that sense,’ I prices had to be reduced. The drug companies had to be less graspingly told him, ‘of course the only answer I can or am willing to give you is miserly in sharing the rights to produce them. They had to permit poor that I am HIV positive.’ He published nothing. countries to import them cheaply from other manufacturers. African The King of Denmark’s tale was doubtless apt. But my response governments – particularly South Africa’s – had to commit themselves to gaped incompleteness. And more important, from a personal point of tackling the crisis with concerted energy and determination. But on each view, it was utterly unsatisfactory. Gugu’s death marked a terminus to of these issues I spoke in only a partial capacity – as a lawyer, later as a this. It was a particularly poignant and sobering challenge. Bereft of the judge, always as an AIDS policy buff. Of my own experience as someone privileges of job and medical care, defencelessly exposed to a community who had survived severe illness with AIDS because I could afford the that later turned on her, she nevertheless spoke out about her HIV. drugs that gave me life I still remained silent. By contrast, I was surrounded by protections and privileges. My job was constitutionally secure – unless two-thirds of Parliament voted to remove me, I could not be sacked. Behind my suburban wall I lived in

127 relative comfort. Those of my friends and family and colleagues in whom Africa’s High Court. A dream I thought would never be realised had been I had confided offered me only love and support. And unlike Gugu I had fulfilled. the best medical care. I had life. So once before Justice Chaskalson and I had faced the issue of If Gugu could speak out, how could I not? disclosure. I had also told him about the journalist’s insinuating visit. And This question challenged me. It also unnerved me. But I accepted he had clearly given it thought. Almost casually in the course of our lunch the only possible answer to it. The problem was – how? How to do it, he dropped the suggestion that I make a public statement about my HIV where to do it, with whom. And above all how to minimise the risk of during my upcoming interview. As always, he approached the matter with wrong-headed sensationalism? How could I speak truthfully about my strict rationality. ‘There is nothing to be ashamed about,’ he said. ‘Many own position while trying to place the focus on the millions who, unlike people have HIV. And the time has surely come for someone in public me, did not have the protections that might enable them to speak out? life to begin by speaking out. Why not simply do it at your interview in This question I pondered with my activist friends. Earlier I had two weeks’ time? The commission offers you an appropriate and spoken to writer Mark Gevisser, with whom I had edited a book of essays dignified environment to do so.’ on gay and lesbian lives in South Africa. Should I do it through a media There could be no quibbling with his suggestion. What he’d said statement, a news conference, an exclusive interview with a trusted was logical and reasonable. And it was persuasive. It was clear that the journalist? Wisely, he gave his views on all these possibilities – but time for which I had tried to prepare myself had arrived. But as we suggested that the circumstances would present themselves. finished lunch and I left to drive home, I felt emotions heaving inside. And indeed, this is what happened. A respected judge on the What would friends and colleagues think? How would the press react? I Constitutional Court, John Didcott, died after a long illness. The vacancy would have to tell my 78-year-old mother, Sally. She had a vibrant circle for his position was advertised. By the closing date for applications, I was of friends of her age. How would they respond? How would my sister and the only candidate nominated. But the constitution required the her family be affected? How would I feel on the street, amongst commission dealing with the appointment of judges to place a shortlist of colleagues, walking into court, going into a bar or café? The inevitably at least four names before President Mandela. So the closing date was sensational aspect of the event appalled and frightened me. extended, and more nominations were canvassed. Overcome by apprehension, I stopped my car next to the roadside. The commission would have to hold public hearings. They were For a while I leaned my head on the steering wheel and let grief scheduled for shortly after Easter. I faced a public interview – nothing overcome me. Afterwards I felt better. However awesome public exceptional, since I had appeared previously before the commission. But disclosure seemed, Justice Chaskalson was right. What I proposed to this one would prove to be different. On Easter Saturday the head of the disclose stood the test of truthfulness. It stood the test of usefulness. And Constitutional Court, Justice Arthur Chaskalson, suggested that I come looked at objectively there was no shame in it. Shame, in fact, my shame for lunch at his home. In the 1980s he had spearheaded legal challenges – other people’s shame, our shame as people with HIV, the fear and to apartheid. Formidably intelligent and steely-principled, he was a inhibition that shame produces – was at the root of the problem. mentor to many human rights lawyers. I trusted and admired him. My brother-in law Wim and his family stoutly supported the move. So when I was agonising over my HIV status on being nominated So I set about telling close friends and colleagues who did not know. And as a High Court judge in 1994, I confided in him. I went to see him in his on the Sunday before the commission convened I joined my mother for chambers at the new Constitutional Court’s temporary premises. His face lunch at her retirement centre in the quiet Pretoria suburb of Arcadia. The registered shock and distress as I told him that I had HIV. But he quickly autumn day was blissfully warm and sunny. In the early afternoon she absorbed the implications – and concentrated on helping me with my and I took a slow walk through the lovely terraced gardens of the Union dilemma: should I tell the judicial appointments commission? I was in Buildings – the splendid sandstone crescent Herbert Baker had conceived good health. My immune system checks were at that time still looking in 1910 as the hilltop administrative hub of a white South Africa. Now good. I still believed and hoped that I might never fall ill, or at least that the magnificent edifice proudly housed the offices of President Mandela illness could be postponed for fifteen or twenty years. and Deputy President Mbeki. Amidst the richly coloured cannas and late We talked through the issue. He agreed that it was neither roses we sat down on a bench overlooking Pretoria’s city bowl. I had to necessary nor appropriate to disclose my HIV status. With effect from 8 tell her that not only was I living with HIV – but that very shortly I December 1994, President Mandela appointed me a judge of South planned to go very public.

128 But my mother had long followed my career. Always she ‘For millions of South Africans living with HIV or AIDS,’ I went expressed support and admiration for my work in AIDS. In my worst on, ‘these conditions do not exist. They have no jobs, or their jobs would moments I had thought I would not survive her. Now I could truthfully be at risk if they spoke about their HIV. They not only lack community emphasise how well I was feeling on the drugs. Our deaths, parent and support, but face grave personal danger if they do so. And, most child, would be in due order. importantly, they do not have access to proper medical care and I brought the conversation around and spoke gently to her. When I treatment. For them, in a still hostile climate, the choices are strictly had finished there was a quiet pause. She continued looking calmly, limited. Their right to invoke confidentiality remains of critical almost abstractedly, at the flowerbeds. After a moment she glanced at me, importance to them. It is only by creating conditions in which people can and quietly murmured: ‘I thought as much, my boy.’ Later that week, speak out without fear that we can begin to end the silence surrounding when Jeanie discussed the implications with her, she became distressed. South Africans living with AIDS and HIV.’ But she started wearing the red, furled ribbon of AIDS solidarity. And her I concluded by stressing ‘my hope that my decision to speak today friends splendidly followed suit. She died two years later, ten months may contribute to a greater climate of openness and caring, and to the after we had celebrated her eightieth birthday. At her memorial service, I prospect of proper medical treatment, for all South Africans living with read out Zackie’s evocation of her, ‘always in your garden, always HIV or AIDS’. wearing her AIDS ribbon’. For a few palpable moments the commission’s judges, lawyers and politicians sat in stunned silence. I sensed that some of them had family – The commission convened in Cape Town. I was the morning’s first or feared they had family – who were closely affected. Perhaps their fears candidate. Zackie made sure that he was there, sitting just behind me. If were closer still. Then the silence was broken by one, more, many he leaned forward he could touch me. That taught me something I had not questions. They seemed to embrace me, respectfully, supportively, even quite experienced before about the tangibility, the felt proximity, the ardently. I emphasised that I been able to chose to make my statement physiological closeness, that friendship and support can bring. because ‘I am not dying of AIDS. I am living with AIDS.’ The phrase Justice Chaskalson introduced and welcomed me. He referred to caught on. my previous appearances before the commission – when I had been Before, it had felt like the hardest, most self-exposing thing I had appointed to the High Court, to the labour appeal court, and a previous ever done. After, I knew that I had freed myself of a vast burden – that of unsuccessful pitch for the Constitutional Court. The moment came. He unnecessary secrecy. I was able to unite myself with the truth, finally to invited me to read my statement ‘about a personal issue you wish to disburden myself of responsibility for a secret that I had not wanted to entrust to the commission’. I began to read. My friends and I had keep. More deeply, I was relieving myself of responsibility for others’ carefully crafted it to deflect as much attention as possible away from the reactions to my illness. My silence was designed to forestall them from sensational angle some inevitably might take (‘Judge has AIDS’) to the condemning, despising me. Now if they wished to condemn me, it was material circumstances that made it possible for me to speak at all. their decision. I no longer sought to control. After more than twelve I emphasised that I had chosen to speak out even though legally years, it was an inexpressible relief. and ethically I was entitled to remain silent. This choice was available to And finally, the act of speaking addressed – for me at least – that me ‘for very particular reasons – because I have a job position that is unspoken shame at the core of so much AIDS discrimination. My silence secure, because I am surrounded by loved ones, friends and colleagues entailed collusion between my inner sense of shame – however who support me, and because I have access to medical care and treatment unjustified – and others’ anticipated reactions of condemnation. that ensures that I remain strong, healthy and productive’. My act of speaking realised the simple truth in Justice Those three privileged conditions – a secure job in a Chaskalson’s advice. There is nothing shameful about having HIV or nondiscriminatory environment, support of those closest around me, and AIDS. If we can talk about it, we normalise it. And the sooner AIDS life and health – were exactly what Gugu Dlamini deserved no more and becomes a normal disease, the sooner we will be able to deal with it no less than me, but was not privileged to have. We were particularly unemotionally and effectively. Normally. anxious that my statement should not expose others, unprotected as she had been, to unfair and premature pressure to be tested, or to reveal their The commission lauded my statement. It recommended me for HIV status. consideration by the president. In the end I was not appointed. The justice

129 minister, Dullah Omar, a friend and colleague from cases and campaigns HIV status. We believe this notable act will contribute towards greater in the 1980s, telephoned me immediately after the cabinet meeting where awareness of the HIV/AIDS issue. We also believe that it will contribute the decision was made. He had been mandated, he told me, to emphasise towards greater acceptance and protection of the human rights of persons to me how the cabinet had agonised over the choice. The post went to a living with HIV/AIDS.’ Neither writer nor recipient could know that highly respected High Court and labour appeal court colleague, Sandile within weeks she would be promoted to health minister in President Ngcobo. A tough-minded lawyer with wide experience and strong Mbeki’s new cabinet, but that her treatment of AIDS would be dogged by constitutional commitments, Justice Ngcobo had academic credentials in desperate controversy. addition to practical experience. He had also trained in a Washington, DC Many others, in the cabinet and elsewhere, followed suit. From all law firm and in the chambers of United States circuit appeals judge Leon over Africa and the rest of the world I received hundreds of calls, letters, Higginbotham before returning to South Africa to work in public interest messages and emails. law. My judicial colleagues also reacted well. The afternoon after my He quickly established himself as a powerful force within the statement, I flew back to Johannesburg. In the evening, the news of my court. In a deserving twist of fate, he wrote the Constitutional Court’s statement led with other stories on the main evening television and radio commanding opinion in the first AIDS case that came before it, bulletins. As I drove to the court the next morning, posters lining the Hoffmann v South African Airways. For me this suggested, as so often in streets inevitably proclaimed ‘JUDGE HAS AIDS’. my life, that events have their own timeliness, their own rightness, their But when I opened the door of my chambers, flowers had arrived own roundness. before me. An Afrikaans-speaking colleague, Pieter Schabort, whom I had always identified as conservative, was the first to come by. He The commission’s favourable response to my declaration was a small popped his head around my door – ‘Strength to you, my friend,’ he said. foretaste of what was to come. Not only was the public and media ‘We’re proud of you.’ In a sense the flowers still haven’t stopped coming. response massively and generously positive, but journalists and editorial Nor has the release of positive energy. writers quickly developed further the notion that the silence about HIV But stigma remains. It is intense and real and prevalent. When I could be broken only by creating the conditions of nondiscrimination in made my statement, I was confident that within a very short time other which people can feel free to speak out. African leaders would follow – cabinet ministers, entertainers, sports If positive reaction was not wholly universal, adverse reactions stars, Members of Parliament. This has not happened. In South Africa, were extremely isolated. One parliamentarian in the largely white President Mbeki’s open scepticism about whether HIV causes AIDS opposition party condemned me for bringing AIDS upon myself. His froze many reactions. In a speech in Parliament in late October 1999, six party resolved formally that he had to apologise – which he did, months after he succeeded President Mandela, he began a three-year fulsomely, in a letter to me. A single newspaper commentator – apparent association with AIDS denialism – the scientifically unfounded coincidentally, also a white male – wrote sneeringly that it was hardly doctrine that attributes AIDS exclusively to social and behavioural appropriate that I should seek to glory in my condition. factors, and not to the physiological (and medically treatable) effects of a These were isolated voices. In both news columns and editorial virus. comments, coverage otherwise was emphatically and expansively Nowadays he rarely speaks about AIDS, leaving it to his deputy supportive. The welfare services minister, Zola Skweyiya, sent a huge president and to the health minister, Dr Tshabala-Msimang. Her flower arrangement with an affecting greeting signed from ‘Zola and statements unfortunately also appear to reflect scepticism that AIDS is Thutha Skweyiya’. Only weeks before, they had suffered a terrible virally caused and can be medically managed. President Mbeki has never bereavement when their official chauffeur had accidentally killed their publicly stated that he accepts that HIV causes AIDS, nor that AIDS can young son in a driveway collision at their home. Their words were be treated with antiretroviral drugs, though in his state of the nation heartfelt. address to Parliament in May 2004 he gave welcome public endorsement Another minister, Deputy Justice Minister Manto Tshabalala- to antiretroviral treatment options when he committed government to a Msimang, herself a medical doctor, wrote with particular warmth: ‘My target treatment figure by 2005. office wishes to add its voice amongst those,’ she said, ‘who have been But in the years following his October 1999 speech, the president’s deeply touched by your courage and selflessness in the disclosure of your apparent scepticism about the viral aetiology of AIDS, and the resulting

130 public controversy, brought a profound chill to the attempt to bring his letter of apology. It had the ring of personal authorship. Despite reason and calm to the debate about AIDS policy in South Africa. It severe (and audible) flu, the minister herself braved the Kalahari winter certainly seemed to stifle initiatives to openness about HIV that others in cold to attend. ‘That’s how important this issue is to us in the public office may have contemplated. government,’ she told the audience to applause. Certainly within South Africa, stigma has remained stubbornly My Botswana hosts gave me a one-word answer to my question: intransigent. It would be crass to blame political attitudes for this when, stigma. People are too scared – too ashamed – to come forward and claim as became evident to me, the roots of stigma lie so deeply within our own what their government is now affording them as their right: the right to profound thoughts and feelings. treatment, the right to stay well, the right to stay alive. The main medical Partly because of stigma’s continuing intransigence, the United centre in the capital, Gaborone, is the Princess Marina Hospital. The Nations agency for AIDS, UNAIDS, proclaimed stigma its campaign AIDS clinic here dispenses the treatments. Plans to allow doctors and theme for World AIDS Day 2003. It was a rightful focus. Stories from nurses at private clinics to give the drugs to AIDS patients are being Botswana – a prosperous and cohesive southern African democracy discussed. But they have not yet been implemented. So for now, poor squashed shoulder to shoulder between South Africa and Namibia – tell a people who need government-supplied drugs in or near Gaborone must sobering tale about stigma. Until recently many people seemed willing to go to the clinic at Princess Marina. Many of them – most still, it would face suffering and even death rather than receive help. seem – are deeply reluctant to do so. This, my hosts told me, is because About one third of Botswana’s people have AIDS or HIV – they fear they will be identified as having AIDS. So they postpone it for perhaps two-fifths of all young adults between 15 and 49. The as long as possible. They fall sick first. Even then they delay. They government with unstinting forthrightness accepts the extent of the eventually go and stand in the clinic’s queues. But mostly they do so only problem. President Festus Mogae has warned that his nation faces what when they are approaching the point of death. he bluntly calls ‘extinction’ unless the epidemic is properly handled. This led the Botswana government to introduce a radical re-think Government AIDS policies are well directed and clear. Officials are of HIV testing policies: wisely, I thought and still think (though some committed to their implementation. activist friends differ), from 2004 doctors in public clinics would test These policies are not just the usual African mix of public patients for HIV unless they expressly refused. awareness, counselling and prevention. They go dramatically further. In This change of policy, against the background of the offer of real his national address in 2001 President Mogae made a breakthrough treatment options, helps patients too fearful to confront their own HIV to announcement. Together with international drug companies and the Bill be given treatment. Unless prompted, as in my own case, they all too and Melinda Gates Foundation, his government would offer treatment easily postpone, prevaricate, suppress, deny. In dwindling hope and with life-saving drugs to every citizen with AIDS. It was a visionary and growing fear, they rationalise the symptoms they experience, dreading the far-reaching commitment. It set a bold standard that other countries in diagnosis they fear they will eventually get. In some horrifically Africa have now begun to follow (in May 2004, Malawi, one of Africa’s constrained sense, they are ‘choosing’ to die, rather than face the stigma poorest countries, announced its own $196 million programme to of AIDS and find treatment. Illness and the attendant risk of death feel distribute free antiretroviral treatment to all who need it). less horrific to them than the stigma of having AIDS. The Botswana government’s pioneering commitment was widely That sense is internally, and not only externally, fuelled by the known throughout the country. Yet takers were initially perilously few. shame that many people with AIDS or HIV feel about their own One survey suggests that to stay alive and well more than 100 000 people condition. in Botswana need the drugs without delay. Yet by late 2003 only about 15 And not only poor people fear what will happen if others think they 000 people – perhaps fewer – had come forward to accept the free have AIDS. A revealing moment in the minister’s speech in Botswana in medication. July 2003 showed her own fear. She told the audience how sick she had Why? I asked my hosts this question in June 2003, when I joined been all week. She wished us to know what an effort she had made, and Botswana judges and business, civic and government leaders at an AIDS how vital the issue was to her, her cabinet colleagues and to President awareness meeting in Gaborone. President Festus Mogae had originally Mogae. So sick had she been that she had cancelled all her other agreed to come, but was called away to a United Nations meeting in New appointments – except this one. York. He sent a well-liked and senior cabinet minister instead. She read

131 Here she paused. She seemed to reconsider. Perhaps she realised Even though I had myself lost friends, close ones, seen people die, that her story might cause her audience to wonder what exactly had kept I felt moved by the candour and urgency of Chief Justice Sakala’s her in bed all week. But she wouldn't let them jump to the wrong statement. When at the end of the long day I took a wintry evening walk conclusions. So she looked up and pointedly added: ‘I want to assure you through the streets of Lusaka, a gentle, friendly, desperately poor city, all I only had the flu. That was all. It was only flu.’ strangers met my eye, greeting me with the courteous engagement that The audience shifted uneasily. There was some laughter. But the seems endemic to African culture. I knew that according to national chuckles seemed to stem less from amusement than from recognition of prevalence rates perhaps one out of every five of the young adults I saw her anxiety, the laughter designed to allay it and to reassure her: we know on the street had AIDS or HIV. why you are anxious ... we understand and share your anxiety that others By simple average calculation, that made it likely that apart from should not suspect you of having AIDS … me at least one other judge in the workshop also had HIV. After my talk, I winced. Some others I think did too. The incident in the National animated discussion followed. Some of the judges spoke of how essential Gallery in London sprang to mind. Did she have to spell out that it wasn’t it was to create a climate in which their colleagues with HIV could, like AIDS? She certainly thought she had to. But why? She would not lose her me, speak openly. Yet no one did. job . By every principle President Mogae had publicly and repeatedly Why? To say that it is because of the enormous stigma still emphasised, that was unthinkable. attaching to AIDS is to restate the problem. Why is there such stigma? Perhaps she feared something worse – that we would think less of Stigma often accompanies those diseases that are seen as incurable, her – would despise her, hold her in contempt, or ridicule, for having deadly, transmissible and disfiguring. But it seems to mark most severely AIDS or HIV. Her disavowal seemed to play right into the perception that those conditions where the affected person is seen as responsible for having AIDS was something unworthy, disgusting, unclean, improper. getting the disease. But it stemmed from a sense within her. A sense shared by all too many AIDS fits all these categories. As the new drugs become people with AIDS or HIV. increasingly available, the stigma from incurability will surely wane. My Botswanan ministerial hostess’s attitude remains widespread. (That is why I think the Botswana government initiative on testing is so In the whole of Africa not a single elected official from any national wise.) As more and more people are diagnosed and speak out, the stigma parliament has stepped forward to say that he or she is living with HIV or from silence will also wane. AIDS. In a continent in which those with HIV or AIDS number in the But there remains something even harder to grapple with. The most many tens of millions, no cabinet minister or governmental leader has inaccessible, the most intractable element of stigma is the disfiguring come forward to say: ‘Yes, I too am living with this condition.’ sense of shame that emanates from the internal world of some with HIV Shortly before Botswana, I travelled to Zambia for a workshop or AIDS. This sense colludes with external stigma, overcoming efforts to with judges and magistrates and lawyers. In his opening address, Chief deal with the disease rationally, keeping those with AIDS or HIV in Justice Ernest Sakala movingly expressed the extent of Zambia’s national involuntarily self-imposed isolation, casting a pall of contamination and tragedy. His personal backing and stature ensured that almost all his silence over the disease. colleagues on the Supreme Court, together with most of the High Court What causes this shame? I don’t know. Without special expertise in judges, attended. He spoke plainly: ‘The devastating effects of HIV/AIDS behaviourism, psychology or the human soul, I can only cast within have not spared the Bench,’ he said. ‘The saying that if you are not myself for some inkling of the truth. And my conjecture, neither novel infected with HIV/AIDS you have at least been affected is true for all of nor dramatically revealing, is that it is to do with HIV and sex. HIV is a us. None of us seated here can deny the fact that in our families we have sexually transmitted infection. Perhaps other sexually transmitted each lost a loved one because of HIV/AIDS.’ infections leave similar feelings. I do not know, since (perhaps ironically) Seated beside him, I looked up from my notes. ‘In our families we the only one I have ever had is HIV. That has been my fortune, where have each lost’. His own family? His cousin? A niece, nephew perhaps? life’s forces have taken me. Aunt or uncle? Or a mother, brother, father, sister, wife? Perhaps a son or Why does sex leave shame? Perhaps it lies in the embarrassment daughter? This was getting close. Uncompromisingly close. And the that arises from exposure of what one thought was utterly private and same applied to the families of every one of the dozen or more judges intimate. Perhaps to admit to having a sexually transmitted infection is to present? be caught out in an act of sexual intimacy, with all its attendant

132 embarrassment – and shame. Pregnancy, too, is a sexually transmitted At the end of 2000 I saw his health declining. Worried, I asked him condition. Women made to wear the scarlet letter in the darker days of about it. Had he seen a doctor? ‘Yes,’ he said, ‘I have been to the sexual oppression might have experienced a comparable sense of shame. hospital. The doctor has given me pills.’ ‘But did he tell you what’s But pregnancy is a condition, not an infection. A pregnancy, even one wrong with you?’ ‘Yes, he says it’s TB [tuberculosis].’ This was unwanted, even one deemed illicit, holds life and hope and the possibility plausible. For a few months it was. Until it became clear that the ‘pills’ of growth and fullness. Infection with HIV offers none. Gladwell said that he was taking were not working. Gladwell was looking Certainly for me some of the internal shame seemed to come from tired, becoming thinner. I decided to broach HIV with him. It was long the fact that my HIV came from a sexual act. In my case it was male to after my own public statement, and Gladwell knew – he had seen – that male penetrative sex. When my doctor told me that I had HIV that Friday the drugs had saved my life. More than most people in the country, I afternoon in 1986, I was a gay man recently come out. Though always, in enjoyed contacts and access that would ensure drugs for him, if he my practice and social and political life, I expressed myself as resolutely wanted them. This he also knew. open and proudly gay, perhaps my sense of shame derived from the fact I took him aside one day. that my virus was homosexually transmitted. Or so I thought. ‘I want to ask you: have you had an HIV test?’ But this was wrong. As the African epidemic took hold and spread, ‘Yes, I have.’ it became clear that I was not alone. For millions of heterosexual Africans ‘May I ask what the doctor said?’ with AIDS or HIV it is no different. Their shame about HIV is as intense. ‘It was clear.’ Even women who say that they married as virgins and remained celibate ‘Are you sure?’ within their marriages express shame at their condition, and experience ‘Yes.’ the difficulty of speaking out about having HIV. ‘You know that I can help you, Gladwell.’ Perhaps therefore the internal stigma is connected with the merely ‘Yes, I do. It was clear.’ sexual – not homo- or heterosexual. Perhaps in our deepest selves we feel ‘But you don’t seem to be getting better. Are you taking your TB that a sexually transmitted infection shows others that we have been pills?’ ‘caught out’. The infection leaves a mark, a stain, a print, linking us back ‘Yes I am.’ to an act so private, so intimate, so sacrosanct, so emotionally and ‘Why are they not working?’ spiritually unguarded – the moment of sexual coupling – that its external ‘The doctor says I must take them for another few months. Then I manifestation in an illness, its exposure to the world, is deeply will be clear.’ embarrassing and therefore shameful. I was sceptical. But how could I override what he told me? Zackie, Perhaps we still regard ourselves as guilty of some sort of sin of who uses my home as a base when he is in Johannesburg, asked Gladwell sexual contamination, as marked by moral inferiority, by an uncleanness the same questions. He offered to take Gladwell for an HIV test. He or exposure of body, and hence a sense of moral inferiority. Some repeated the offer to get drugs. Gladwell refused. As he grew thinner, I religious moralists inflame all this. They forget that AIDS is a disease. had to relocate to Bloemfontein, where the Supreme Court of Appeal sits We all do. for almost half the year. When I returned at the end of May 2001, Sophie These speculations remain painful. And they remain close to me. told me that Gladwell had returned to his family in Zimbabwe. At the end They must to any South African living in this fearsome, fearful epidemic. of June we received news that Gladwell would not return. He had died, In my own household I experienced the telling force of stigma and five weeks after last tending my garden. shame. My garden was tended twice a week by a gentle, smiling man in Did Gladwell die of AIDS? Probably. We cannot know. Gladwell his mid-thirties. ‘Gladwell’ (as I shall call him) loved its beds and corners did not want us to know. Yet, as I look back, I see things with greater and the two kitties and two ducks who share it with us who live there. My clarity. I see that I failed Gladwell. My notions of autonomy and respect, housekeeper’s young daughters, Diana and Paulina Kekana, who share so vital in principle, were misapplied in the lee of the jet fuel fires of fear the property with me, would follow Gladwell around as he weeded and and stigma and internal disentitlement that were consuming Gladwell’s planted and mowed on Mondays and Thursdays. Over the eight years he life. Although I thought that I was offering him help, and thereby the worked for me I thought I came to know him well. choice of living, in Gladwell’s mind he had no choice. The stigma associated with AIDS left him no choice. Like those at the top of the

133 World Trade Centre towers who ‘chose’ the horror of jumping one 3. Information on bubonic plague from hundred stories to death, rather than the horror of being consumed by jet http://www.cdc.gov/ncidod/dvbid/plague/. fuel flame, Gladwell ‘chose’ to refuse our offers of assistance. He ‘chose’ to return to Zimbabwe to die, rather than let us help him deal with AIDS. 4. Meanings of ‘shame’ and ‘stigma’ adapted from the Shorter Gladwell died of stigma and fear. Surrounded by fear and Oxford English Dictionary. uncertainty, he made himself inaccessible to help. He was scared of stigma. But, more disastrously, I think he was also ashamed. Yet I could 5. Information on Botswana government’s ‘opt-out’ approach to HIV have done more to reach him. I should have done more to reach him. testing, applied since January 2004, available from http://www.health- Looking back, I know now exactly what I should have done. Remorselessly, my conscience enacts it for me. I should have made an e.org.za/news/article_audio.php?uid=20031143 appointment with Dr Johnson – on a Monday or Thursday. I should have 6. On apartheid law and resistance to it through law, a reference to waited for Gladwell, and told him about the appointment. I should have told him that I was leaving for Dr Johnson in ten minutes. I should have Richard L Abel: Politics by Other Means – Law in the Struggle told him he was free not to come. But I was going, and I wanted him to against Apartheid 1980-1994 (Routledge, New York and London, come – I wanted him in the passenger seat of my car. I should have opened the door and invited him to get in. I should have told him that my 1995) is again appropriate. doctor would diagnose and if necessary treat him if it was AIDS. And that 7. The shameful history of the repatriation of nearly 1 000 Malawian I would help him deal with his fears and loneliness if it was. All these things I should have done. I did not. I failed Gladwell as mineworkers in 1987/1988 is fully documented in E Cameron & E much as stigma and the dislocation of his home country and southern Swanson ‘Restrictions on Migrant Workers, Immigrants and Africa failed him. Gladwell is with me, in my thoughts, on my mind, in my reflections. He is with me more than comfort allows. Travellers with HIV or AIDS: South Africa’s Step Forward’ (1992)

13, South African Industrial Law Journal 496-500. Looking back to the National Gallery, I can see a little more clearly why my companion and I parted in silence when we could have communed 8. A helpful discussion of stigma is by Jeanine Cogan and Gregory with each other about the fact that each of us had HIV. It was not the Herek in the Encyclopedia of AIDS, stigma of others that silenced us. It was our own. We had not yet accepted that AIDS is a disease. Perhaps we all still don’t. http://www.thebody/encyclo/stigma.html, accessed 15 October 2003.

Prof Herek has written widely on the subject:

http://psychology.ucdavis.edu/herek. NOTES 1. Websites with facts on AIDS include http://www.aidsmap.com/, 9. The book of essays on gay and lesbian lives in South Africa is by http://www.aegis.org/, http://www.cdc.gov/hiv/dhap.htm, Mark Gevisser and Edwin Cameron: Defiant Desire – Gay and http://www.avert.org/, http://www.thebody.com/index.shtml. Lesbian Lives in South Africa (published in South Africa by Ravan 2. Recent research on improvements in morbidity and mortality as a Press, 1994 and in the United States by Routledge, 29 West 35th St, result of antiretroviral drug regimens from The Lancet vol. 362 Issue New York, NY 10001).

9377 p.22. 10.Hoffmann v South African Airways is reported in 2001 (1) SA 1 (CC); 2000 (11) BCLR 1235 (CC) and can be accessed at http://www.concourt.gov.za/judgment.php?case_id=12079.

134 11. Mr Graham McIntosh, MP, of the opposition Democratic Party, Sued for wrongful arrest, the police gave Gladwell a favourable wrote to the Natal Mercury on 30 April 1999, stating that ‘Judge settlement of several thousands. Edwin Cameron’s HIV/AIDS infection is a logical consequence of his self-proclaimed, public and enthusiastic support for and practice of a homosexual orientation’. A media statement dated 10 May 1999 by Mr Douglas Gibson MP, Democratic Party Federal Council Chairperson, recorded Mr McIntosh’s public apology. 12. Information on Botswana from UNAIDS, Irin News http://www.irinnews.org/AIDSreport.asp?ReportID=2089&SelectRegi on=Southern Africa&SelectCountry=BOTSWANA, accessed on 15 October 2003, and Geoff Dyer ‘2 in 5’ Financial Times Magazine October 11, 2003, issue no 25. 13. According to the IFPMA (International Federation of Pharmaceutical Manufacturers Associations) as of March 2004 more than 15 000 Botswanans (Batswana) were receiving medication and 25 000 were actually enrolled in the MASA program. At that time they expected 1 000 new patients to be enrolled each month in the program. See www.ifpma.org/Health/hiv/health_achap_hiv.aspx, accessed on 5 August 2004. 14. Information on Zambia from UNAIDS and the Zambian AIDS Law Research and Advocacy Network - http://www.zaran.org. 15. The address by Chief Justice Sakala on Saturday 21 June 2003 is available at http://www.zaran.org/judgesreport.html. 16. Gladwell told me that he came from a Zulu-speaking part of northeast South Africa. My scepticism was aroused when the police repeatedly arrested him as an illegal immigrant. But arrest on trumped-up charges of immigrancy befalls many black South Africans. So when Gladwell produced what seemed to be an authentic identity document, I referred him to a colleague at the Wits law clinic.

135 CENTRE FOR Geffen is the Treasurer for the Treatment Action Campaign. SOCIAL SCIENCE RESEARCH Cameron is a justice of the South African Constitutional Court. Acknowledgments: We are grateful to Chesa Boudin for his extensive edits. We are also grateful to David Aids and Society Research Unit Biles and Nithya Krishnan who found many of the references.

The deadly hand of denial: Governance and politically-instigated AIDS denialism in South Africa

Nathan Geffen Edwin Cameron

CSSR Working Paper No. 257

July 2009

136 The deadly hand of denial: Governance questions.’2 and politically-instigated AIDS denialism As the Treatment Action Campaign (TAC) pointed out, Bhengu's death was ‘a tragedy that goes beyond her family’. She was one of the very few middle-class in South Africa people of African descent who promoted openness by choosing to identify herself as living with HIV. The poignancy of her death lay in the fact that she had the means to afford not only care and nutrition, but the best medicine. Had she chosen to take ARV treatment when she developed AIDS, it is highly likely Introduction; death from denialism that she would be alive today

The 26 May 2005 issue of Drum magazine, a widely-read South African ‘Her death’, the TAC observed, ‘reminds us how important it is for friends and monthly, featured a comparison of two deeply contrasting approaches to treating families of people with HIV to help them get the best available medicine and HIV. The strap-line was ‘They both look the picture of health. And they're both medical advice, based on the best available science’.3 living with HIV/AIDS. Yet Judge Edwin Cameron and Nozipho Bhengu each do it their way’. Bhengu, daughter of African National Congress (ANC) Bhengu's premature death was a graphic product of former President Mbeki's grandee, Ruth Bhengu (a close associate in exile of former President Thabo response to the AIDS epidemic. Her case is well-known because Bhengu's Mbeki), was, so the article claimed, controlling her infection and CD4 count mother was a public figure from a well-connected ANC family and Bhengu was with a nutritional concoction. ‘Like [the former] health minister Manto open about her HIV status. But many more people in South Africa have died of Tshabala-Msimang’, the article recorded, ‘Nozipho believes there is a direct link AIDS as avoidably as Bhengu did, silently, horribly and without the palliative between nutrition and AIDS’. An interview with one of the writers, Edwin care and comforts that Bhengu’s affluent circumstances made possible for her. Cameron, was posted alongside. Cameron explained how he was treating his HIV infection using scientifically proven antiretroviral (ARV) treatment. The Former President Thabo Mbeki's support for AIDS denialist tenets has rightly article epitomised the fraught debate on HIV in South Africa at the time. dominated analysis of South Africa's HIV epidemic. By AIDS denialism, we mean the systematic rejection, deriving from pseudo-scientific premises, and Just a year later, on 19 May 2006, Nozipho Bhengu died of AIDS. At her well- supported by quasi-rational arguments, of evidence establishing that HIV causes publicised funeral, Chriselda Kananda, a health programme host on one of South AIDS, that ARVs significantly reduce mortality and morbidity associated with Africa's largest radio stations, denounced ARV treatment and the Treatment HIV infection, and that there are tens of millions of people in Africa living with Action Campaign, the organisation that has played a leading role in fighting for HIV or dying from AIDS.4 From October 1999, President Mbeki repeatedly cast access to treatment in South Africa. Peggy Nkonyeni, until recently the political doubt on the viral aetiology of AIDS, on the efficacy and safety of ARVs, and on executive responsible for health in Kwazulu-Natal and now facing corruption the reliability and significance of statistics relating to AIDS illnesses and deaths 1 charges as speaker of the Kwazulu-Natal legislature , South Africa’s province in South Africa.5 The effects have been calamitous. with the highest prevalence of HIV infection, raised conspiratorialist spectres about the aetiology of AIDS: So far, over 2 million people have died of AIDS in South Africa, mostly in the ‘I came to realize that there is this thing called bioterrorism or biological warfare. This is whereby people can manufacture a certain 2 Translated by Treatment Action Campaign (TAC) researcher Nokhwezi Hoboyi from virus and target a particular community that will be spread amongst a Zulu from a video recording of the event. certain group of the population. The question is this: What is this 3 Treatment Action Campaign. 2006. TAC statement on the death of Nozipho Bhengu. HIV/AIDS and where does it come from? We need to answer those http://www.tac.org.za/community/node/2210. Accessed 18 April 2008. 4 The 2008 Report on the Global AIDS Epidemic, UNAIDS, 214 (2008). Available at http://data.unaids.org/pub/GlobalReport/2008/jc1510_2008_global_report_pp211_234_e 1 Mhlaba Memela, “Trial date set for Nkonyeni’s graft case”, Sowetan 15 June 2009. n.pdf (accessed 6/7/2009). Available at http://www.sowetan.co.za/News/Article.aspx?id=1018124 (accessed 5 Kiran van Rijn, “The Politics of Uncertainty: The AIDS Debate, Thabo Mbeki and the 6/7/2009). South African Government Response”, 19 Social History of Medicine 521 (2006). 2 137 last decade.6 Nicoli Nattrass has estimated that, had ARV treatment been offered ARV treatment could be successfully provided in resource-poor settings.10 timeously, government leadership and action could have prevented over 340,000 deaths between 1999 and 2007.7 Many more children's lives could have been Much remains to be done. It is estimated that half-a-million people need saved if prophylaxis to prevent mother-to-child transmission had been treatment now but are not receiving it, while the Actuarial Society of SA implemented earlier and more effectively. estimates that in 2007 about 370 000 people died of AIDS.11 Over the next ten to fifteen years nearly all the 5 million South Africans living with HIV will fall ill But the damage done by AIDS denialism is quantified only partly by the deaths and need treatment.12 In addition, partly in consequence of rampant HIV, an caused through delayed and sub-optimal programme implementation. Denialism epidemic of drug-resistant TB has escalated in the last few years. The public is also partly responsible for more opaquely measured consequences: health system is under tremendous strain with a dire personnel shortage. Both unnecessary infections because of the myth that HIV is not sexually transmitted, symptomatic of and further exacerbating the problems in the healthcare industry, a generally muted and insipid state-run prevention programme, delayed doctors across the country participated in a strike lasting more than two weeks in appropriate health-seeking behaviour by people with AIDS because of the June and July 2009.13 There is not enough decisive leadership from the state to proliferation of charlatans permitted or encouraged by the health minister to address these issues and at least part of this dragging lack of political will peddle their wares, and heightened public mistrust of medical science and the comprises the lag-end of government-supported denialism. breakdown of the scientific governance of medicine. Our contribution briefly describes some of the events behind the AIDS denialist In the face of these egregious facts, there is a sizeable paradox. It is this: debacle in South Africa. It then poses some questions that have been despite the ruinous effects of denialism, much progress has been made in South insufficiently explored in the copious literature on this saga. We offer only Africa in dealing with the epidemic. As of mid-2008 over 550,000 people were preliminary answers to these questions. on ARV treatment in South Africa, the vast majority in the public health system, making it the largest public-sector programme in the world.8 Thousands of people now live openly with the disease and awareness of the epidemic has long The struggle for treatment access in South been widely disseminated through the population.9 Africa This is primarily a consequence of the strong civil society reaction against Mbeki’s posture on AIDS, led by TAC and its allies, the enormous efforts of In December 1998, when the TAC was founded, the salient obstacle to treatment HIV health workers (many of whom work under exacting conditions) and a few access was the inordinately high cost of ARV treatments. The standard current principled civil servants (including Fareed Abdullah, the former head of the first-line regimen of stavudine, lamivudine and nevirapine was available in the Western Cape province's AIDS programme and now Global Fund Director for private sector at that time but it cost a patient R3,419 (or, at current exchange 14 the Africa Unit). It is also a consequence of the successful ARV pilot values, some USD$430) per month. Meanwhile, 77 percent of South African programmes run in Cape Town and in the rural town of Lusikisiki by Medecins Sans Frontieres (MSF), for these supplied the unequivocal proof-of-concept that 10 Cullinan, K., “Rural Lusikisiki is winning AIDS battle”, Health e-news Service, 31/10/2005. http://www.csa.za.org/article/articleview/387/1/1/. Accessed 8/7/2009. 6 Actuarial Society of South Africa. ASSA2003 Interventions Model. 11 See the statistics comprehensively collated from various authorities at http://www.actuarialsociety.co.za/aids/content.asp?id=1000000449. Accessed 18 April http://www.tac.org.za/community/keystatistics. 2008. 12 There are three reputable sources that estimate the size of the South African HIV 7 Nattrass, N. Aids and the Scientific Governance of Medicine in Post-Apartheid South epidemic and all estimate close to or more than 5 million infections. These are the Human Africa. Nicoli Nattrass. African Affairs Advance Access published online on February 7, Sciences Research Council, the Actuarial Society of South Africa and the Department of 2008. African Affairs, 0/0, 1–20; doi:10.1093/afraf/adm087. Health. See Geffen. 2006. What do South Africa's AIDS statistics mean? A TAC briefing http://afraf.oxfordjournals.org/cgi/content/abstract/adm087v1. Accessed 17-03-2008. paper. http://www.tac.org.za/community/aidsstats. Accessed 7/7/2009. 8 Johnson L. “How big is the need for antiretroviral treatment?”, Fourth South African 13 “ANC urges doctors to return to work”, The Times, 3/7/2009. AIDS Conference, Durban, 31 March - 3 April 2009. http://www.thetimes.co.za/News/Article.aspx?id=1028137 Accessed 7/7/2009. 9 Shisana, O. et al. 2005. South African national HIV prevalence, HIV incidence, behaviour 14 This price was calculated using then-current data from the Blue Book, a regularly and communication survey, 2005. Cape Town: HSRC Press. updated pharmaceutical price list published at the time. It includes 14% VAT. 3 4 138 households earned less than R4,000 per month – rendering ARV treatment successful campaigns to compel several pharmaceutical companies to reduce unaffordable for all but the country's highest income earners.15 Patents on these their prices and to allow generic competitors to manufacture patented drugs and other ARV medicines meant they were sold under monopolistic conditions.16 under license. Only the well-off could afford them. In the rest of Africa, outside the relative prosperity of South Africa, the position was even more dire. In 2001 Bristol Myers Squibb, following intense pressure, agreed not to enforce patent protection on its medicines didanosine and stavudine, and instead to sell ‘My presence here embodies the injustices of AIDS in Africa. Amidst the them for a combined daily price of one US dollar.22 In December 2003, poverty of Africa, I stand before you because I am able to purchase health and GlaxoSmithKline and Boehringer Ingelheim concluded settlement agreements vigour. I am here because I can afford to pay for life itself,’ one of the writers with the TAC and others, following a complaint against them which the told the International AIDS Conference in Durban in July 2000.17 Competition Commission upheld. The pharmaceutical companies undertook to enter licensing agreements with generic companies to produce the ARVs AZT, Furthermore, the country's pharmaceutical industry lobbying body, the lamivudine and nevirapine. These licenses extended to other African countries Pharmaceutical Manufacturer's Association (PMA), together with nearly 40 and provided for substantially reduced royalty fees.23 Merck has also made pharmaceutical companies, instituted legal action to block legislation the South progress in providing access to its AIDS medications, but there remains room African government sought to pass to give it greater powers to reduce prices.18 for improvement. The United States threatened to put South Africa on a trade watch list even though similar legislation existed in other developed countries. Somewhat successful outcomes were achieved in pressing Pfizer and Bristol Myers Squibb to reduce the prices of fluconazole and Amphotericin B24,25 (used The PMA case came to a head in early 2001, when the TAC, represented by the for treating opportunistic infections). Pressure has also been exerted on Roche, AIDS Law Project (ALP), joined the case as an amicus curiae (friend of the Gilead and other pharmaceutical companies to reduce the prices of their ARV court) and coordinated worldwide protests against the pharmaceutical industry.19 medications, thus far with less success.26 The PMA and pharmaceutical companies withdrew their court action. Some attributed this to the protest actions.20,21 The result of these campaigns is that the entire current first-line ARV regimen is available in the private sector for R211 (about USD$26) per patient per month.27 In the following months and years, TAC and the ALP - with the support of the The state purchases an equivalent regimen for the public health system at almost government-aligned Congress of South African Trade Unions (COSATU), its half the price (R116 per month).28 In other words the price of first-line ARV affiliates and activist groups in Europe and the United States - mounted 22 TAC Electronic Newsletter 8 May 2001. 15 “South Africa Survey 1999/2000”, South African Institute of Race Relations, 296 (2000). http://www.tac.org.za/newsletter/2001/ns010508b.txt. Accessed 7/7/2009. 16 Joseph, S., “Pharmaceutical Corporations and Access to Drugs: The ‘Fourth Wave’ of 23 TAC Electronic Newsletter 10 December 2003. Corporate Human Rights Scrutiny”, Human Rights Quarterly, Vol 25 No. 2 (2003) 425- http://www.tac.org.za/newsletter/2003/ns10_12_2003.htm. Accessed 7/7/2009. 452. 24 TAC Electronic Newsletter 19 July 2001. 17 Cameron, E. First Jonathan Mann Memorial Lecture: The Deafening Silence of AIDS, http://www.tac.org.za/newsletter/2001/ns19_07_2001.txt. Accessed 7/7/2009. Harvard Health and Human Rights Journal Vol 5 No. 1 (2000) 7–24. 25 TAC Electronic Newsletter 19 May 2005. 18 The legislation proposed was the Medicines and Related Substances Control Amendment http://www.tac.org.za/newsletter/2005/ns19_05_2005.htm. Accessed 7/7/2009. Act, 90 of 1997. See Cameron E & Jonathan Berger ‘Patents and Public Health: 26 See for example TAC. 2007. TAC complains to the Competition Commission about the Principle, Politics and Paradox’ (2005) 131 Proceedings of the British Academy 331-369; anti-competitive conduct of the world's largest pharmaceutical company. also published in David Vaver (ed), Intellectual Property Rights (Routledge, London: http://www.tac.org.za/community/node/2127. Accessed 7/7/2009. TAC and the ALP have 2005) been negotiating with Merck (and its South African subsidiary MSD) for years to reduce 19 TAC Electronic Newsletter 27 February 2001. the price of efavirenz and grant multiple licenses. The campaign has not been without http://www.tac.org.za/newsletter/2001/ns010227.txt. Accessed 7/7/2009. success: the price of efavirenz has come down dramatically, and there are now some 20 TAC Electronic Newsletter 19 April 2001. generic versions of the drug on the market. http://www.tac.org.za/newsletter/2001/ns010419.txt. Accessed 7/7/2009. 27 ARV price list supplied by Medprax updated regularly on the TAC website. 21 TAC Electronic Newsletter 24 April 2001. http://www.tac.org.za/community/node/2021. Accessed 7/7/2009. http://www.tac.org.za/newsletter/2001/ns010424.txt. Accessed 7/7/2009. 28 Kwazulu-Natal Provincial Depot. 2008. ARV Catalogue & Price List 8.1.2008 (RT71- 5 6 139 treatment is less than a tenth of the 1998 price even before correcting for direction, the Cabinet began courting the makers of a fake AIDS ‘cure’ called inflation. This is a very considerable achievement. It removed what had seemed Virodene in 1997. This has been documented in meticulous detail using public to be the greatest obstacle, i.e. cost, to a country-wide public health system ARV sources.32 The Medicines Control Council (MCC), South Africa's medicines treatment programme. regulatory authority, blocked human trials of Virodene, because its active ingredient is a toxic industrial solvent.33 But the bizarre supervening circumstance of government-instigated denialism threatened to intrude an even bigger barrier to treatment access treatment than Yet in January 1997 the then health minister, Nkosazana Dlamini-Zuma, drug prices. arranged for Mbeki (then deputy-President) to present the Virodene researchers to Cabinet. One of the researchers ‘claimed that her solution “destroyed” the virus. “This had never been done before with a chemical which could also be Onset of Denialism safely administered to people. Medicines developed previously only succeeded in temporarily reducing the virus count.”‘ 34 President Mbeki's support for AIDS denialist positions has been well documented.29,30 His conversion to at least some AIDS denialist tenets was not The Cabinet was reported to have stood and applauded the presentation. Mbeki instant, at least not so far as the public record shows. Speaking on behalf of commented afterwards ‘The AIDS victims [sic] described what had happened to President Nelson Mandela on 9 October 1998 he declared a Partnership Against them as a result of the treatment. They were in the cabinet room, walking about, HIV/AIDS in terms that seemed presciently to disavow all the subsequent perfectly all right. It was a worthy thing to see because the general assumption is scepticism he would lavish on accepted wisdom about the epidemic: that if you get to a particular point with AIDS it really is a matter of time before you die.’ 35 ‘HIV/AIDS is among us. It is real. It is spreading. We can only win against HIV/AIDS if we join hands to save our nation. For too long The Virodene researchers had undertaken a ‘trial’, enrolling eleven patients, we have closed our eyes as a nation, hoping the truth was not so real. even though they had not received MCC authorisation - claiming they had For many years, we have allowed the H-I-Virus to spread, and at a rate received permission from the health minister (there is no such provision in South in our country which is one of the fastest in the world. Every single African law). The MCC intervened to stop this unlawful and unethical process. This elicited Mbeki’s wrath, who asserted derisively that ‘The cruel games of day a further 1 500 people in South Africa get infected. To date, more 36 than 3 million people have been infected. ... Many more face the those who do not care should not be allowed to set the national agenda’. danger of being affected by HIV/AIDS. Because it is carried and transmitted by human beings, it is with us in our workplaces, in our The head of the MCC at the time, Professor Peter Folb, a distinguished classrooms and our lecture halls.’31 pharmacologist, was dismissed as chair and pressed into resigning from the council.37 But Mbeki's dalliance with pseudo-science had already begun. Under Mbeki's Links between the Virodene researchers and some members of the ruling ANC continued. In 2007, the Saturday Star newspaper reported that before 2001, tens 2004). of millions of rands from the presidency had been invested in Virodene. http://www.tac.org.za/community/files/PublicSectorARVCATALOGUEAndPriceList200 8.pdf. Accessed 7/7/2009. 32 Myburgh, J. “The Virodene Affair”, politcsweb, 17/9/2007. 29 Heywood, M., 2004 Price of Denial. Development Update 5(3). Interfund. http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=83156&sn http://www.tac.org.za/Documents/PriceOfDenial.doc. Accessed 7/7/2009. =Detail. Accessed 7/7/2009. 30 See these books that collectively give a comprehensive account of Mbeki's denialism: 33 Myburgh, J., “In the beginning there was Virodene”, in The Virus Vitamins, & Cameron, E., Witness to AIDS (2005); Nattrass, N., Mortal Combat (2007); Gevisser, M., Vegetables, 4-7 (Cullinan, K., & Thom, A. eds. 2009). Thabo Mbeki: The Dream Deferred (2007); Feinstein A., After the Party (2007). 34 Ibid. 31 Address by Deputy President Thabo Mbeki: Declaration of Partnership Against AIDS - 9 35 Ibid. October 1998. http://www.info.gov.za/speeches/1998/98a30_5229811299.htm. Accessed 36 Id. at 6. 7/7/2009. 37 Id. at 7. 7 8 140 According to the article, the President's spokesperson admitted that the President a ludicrous inquiry in view of scientifically established knowledge that it was.42 had been in contact with the drug's researchers but that ‘As far I have been able Mbeki responded vehemently to the panel’s critics, writing that they were to establish, it is not true that substantial amounts of cash were collected from engaged in an orchestrated ‘campaign of intellectual intimidation and terrorism’ the presidency during the years in question.’38 against him. Defending his increasingly strong association with the denialists, he lionised them as martyrs to true inquiry, exclaiming that ‘At an earlier period No evidence meeting basic scientific standards ever indicated that Virodene in human history, these would be heretics that would be burnt at the stake!’43 could be an effective treatment even after extensive testing. By 2002, there was conclusive evidence that it was unfit for human consumption, let alone for Mbeki's flirtations with pseudoscientists dismayed AIDS activists, but it was administration to AIDS-vulnerable subjects.39 then health minister Manto Tshabalala-Msimang's hostile positioning after the withdrawal of the PMA case that permanently damaged treatment activists’ Mbeki's involvement with Virodene provided an ominous portent. For the next relations with the Mbeki government. There was an expectation that the seeming decade the scientific governance of medicine would be systematically victory of government over the pharmaceutical industry – facilitated by the undermined; the legislation that regulates registration, distribution and efforts of TAC, ALP and activist groups around the world – and the campaign advertising of medicines, as well as clinical trials,40 would be poorly enforced since 1998 to induce government to introduce ARVs for the prevention of and even flouted. mother-to-child transmission, would be rewarded with some commitment toward ARV provision. In the meanwhile, the TAC’s drug-pricing campaign took flower. On 10 December 1998, a small group of activists held a day-long fast and Instead Tshabalala-Msimang ‘made it clear’ at a media conference the next day demonstration at St Georges Cathedral, one of Cape Town's landmarks, pregnant ‘that buying quantities of anti-retrovirals was not likely soon’. Instead, she with symbolism and history in the struggle against apartheid. Their statement mouthed questions about affordability (despite offers of price cuts) and the called on the ministers of health and finance to meet immediately with infrastructure required for ARV therapy.44 HIV/AIDS organisations ‘to plan for resources to introduce free AZT for pregnant mothers with HIV/AIDS'. The TAC also called on government ‘to At this point it started becoming clear that President Mbeki and his health develop a comprehensive and affordable treatment plan for all people living with minister would supplant the pharmaceutical industry as the biggest barrier to HIV/AIDS'. The statement condemned the ‘unaffordability of HIV/AIDS treatment and prevention access. treatment’ and promised to pressurise ‘government and the pharmaceutical sector to ... address the need for equitable and affordable access to treatment and In a television interview in April 2001, Mbeki deflected a question about care for all people with HIV/AIDS’.41 Almost all this energy had to be diverted, whether he would have an HIV test on the basis that it would merely be however, to deal with Mbeki’s denialist nightmare. ‘confirming a particular paradigm’. He also endorsed a key denialist tenet, that the drugs are not life-saving, but toxic, by saying that ‘it would be criminal if Politically-supported AIDS denialism reached its public apogee in 2000 when our government did not deal with the toxicity of these drugs’.45 Mbeki established a ‘Presidential AIDS Advisory Panel’, which included to In a letter to Tshabalala-Msimang in September 2001, Mbeki wrote: almost half its number discredited but vocal AIDS denialists. One of the key aims of the panel was stated to be ‘to determine if HIV was the cause of AIDS’ – ‘These are the people whose prejudices led them to discover the false

42 Sildey, P., “Mbeki appoints team to look at cause of AIDS”, British Medical Journal, Vol 320, ,1291 (2000). http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1127296. 38 Forde, F. 2007. Mbeki link to toxic 'cure'. Saturday Star 15/9/2007. Accessed 7/7/2009. http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20070915081047136C 43 See Cameron, E. 2005. Witness to AIDS. Tafelberg. p. 106, and President Mbeki’s letter 406709. Accessed 7/7/2009. of 3/4/2000 to President Clinton, Prime Minister Blair, President Schroeder and others, 39 Myburgh, J., “In the beginning there was Virodene”, in The Virus Vitamins, & http://www.pbs.org/wgbh/pages/frontline/aids/docs/mbeki.html. Accessed on 7/7/2009. Vegetables, 14 (Cullinan, K., & Thom, A. eds. 2009). 44 “Cosatu and TAC signal intention to continue activism for greater access to medicines”, 40 Medicine and Related Substances Act, 101 of 1965. Business Day, 20/4/2001.. 41 TAC. http://www.tac.org.za/community/share/2454. Accessed 7/7/2009. 45 Cohen, Mike. ‘Mbeki Questions HIV Testing.’ The Associated Press, 24/4/2001. 9 10 141 reality, among other things, that we are running out of space in our But initially the state proceeded to implement the mother-to-child transmission cemeteries as a result of unprecedented deaths caused by HIV/AIDS. programme only sub-optimally and seemingly reluctantly. And it made no effort In this context, I must also make a point that we have to act without to make wider ARV treatment available. It was only after the intervention of delay on the proposal made by the Presidential AIDS Panel that, Nelson Mandela, who paid a public visit to Zackie Achmat, Chairman of the among other things, an investigation be made of the HIV and AIDS TAC and a pilot treatment programme run by Medecins Sans Frontieres, a statistics that are regularly peddled as a true representation of what is forceful TAC-led march of at least 10,000 people to Parliament on 14 February happening in our country.’46 2003 demanding a treatment plan and an acrimonious TAC-led civil disobedience campaign initiated in March 2003 (in which dozens were arrested) This intransigence elicited perhaps the most celebrated litigation on AIDS that the Cabinet eventually disavowed denialism and instructed the health anywhere. Represented by a renowned anti-apartheid public-interest law group, minister to develop a treatment plan.50 the Legal Resources Centre (LRC), the TAC applied to compel the state to make ARVs available for the purpose of mother-to-child transmission. In December The plan was published on 19 November 2003. But the minister’s department 2001, the Pretoria High Court ruled in the TAC's favour. The government claimed that the rollout could not begin until the tender for ARV medicines had appealed. It also appealed an interim order compelling it to make the drugs been finalised. Inexplicable delays then ensued. The TAC threatened legal available pending the appeal. Not only was this unusual, it seemed to point to action. Faced with possible embarrassment preceding the 2004 general elections, the dogmatism behind the government stand, and the extreme lengths it was the government relented by allowing interim procurement of ARVs until the prepared to go to block ARVs.47 tender was finalised. Treatment provision began in earnest in March 2004.51

On 5 July 2002, the country's highest court, the Constitutional Court, ordered Throughout much of this period Mbeki and Tshabalala-Msimang continued to government to ‘permit and facilitate the use of nevirapine for the purpose of make sceptical and adverse claims regarding ARV treatment. Their discourse reducing the risk of mother-to-child transmission of HIV and to make it invoked African nationalist sentiments and traditional African values in which available for this purpose at hospitals and clinics when in the judgment of the the pharmaceutical industry was demonised as an agent of Western imperialism. attending medical practitioner acting in consultation with the medical In April 2002, Mbeki wrote: superintendent of the facility concerned this is medically indicated, which shall if necessary include that the mother concerned has been appropriately tested and ‘Because of the pursuit of particular agendas, regardless of the health counselled.’48 challenges facing the majority of our people, who happen to be black, in our country there is a studied and sustained attempt to hide the truth This was a ringing victory for treatment activism. Although strictly it dealt only about diseases of poverty. with prophylaxis for mother-to-child transmission, it constituted a heavy legal portent for a future wider order, and prepared the ground that would impel If we allow these agendas and falsehoods to form the basis of our government, nearly two years later, to introduce a comprehensive commitment health policies and programmes, we will condemn ourselves to the to treatment for people with HIV.49 further and criminal deterioration of the health condition of the majority of our people. We cannot and will not follow this disastrous 46 “Mbeki questions spending on AIDS.” Business Day. 10/9/2001. route. We are both the victims and fully understand the legacy of 47 For numerous documents about this court case including much of the court record, see http://www.tac.org.za/Documents/MTCTCourtCase/MTCTCourtCase.htm. Accessed 7/7/2009. Bulletin of the World health Organization, Vol. 82 No. 1 (2004). 48 Minister of Health v Treatment Action Campaign 2002 (5) SA 703 (CC). The health http://www.scielosp.org/scielo.php?pid=S0042-96862004000100019&script=sci_arttext. minister misrepresented this order as casting the allusion to Nevirapine in stone. This is Accessed 7/7/2009. false. The court’s order says expressly (para 4) that ‘The orders made in paragraph 3 do 50 The TAC website has many documents describing this period. See, in particular, Mark not preclude government from adapting its policy in a manner consistent with the Heywood's Price of Denial (Ibid). Constitution if equally appropriate or better methods become available to it for the 51 TAC. 2004. MinMEC Agrees to Interim Procurement of ARV Medicines. Court Action prevention of mother-to-child transmission of HIV’. Averted at Last Moment. http://www.tac.org.za/newsletter/2004/ns25_03_2004.htm. 49 Marshall, S.J., “South Africa unveils national HIV / AIDS treatment programme”, Accessed 7/7/2009. 11 12 142 centuries-old and current racism on our society and ourselves. Msimang also consistently supported a German vitamin salesman, Matthias Rath, who claims multivitamins treat AIDS, heart disease, cancer, numerous We will not be intimidated, terrorised, bludgeoned, manipulated, other ailments and even bird flu.58,59 stampeded, or in any other way forced to adopt policies and programmes inimical to the health of our people. That we are poor and In November 2004, the Traditional Healers Organisation marched on the offices black does not mean that we cannot think for ourselves and determine of the TAC in Cape Town and Johannesburg. They distributed a pamphlet what is good for us. Neither does it mean that we are available to be accusing the TAC of being in the pocket of the pharmaceutical industry, an bought, whatever the price.’52 absurd claim considering the overtly confrontational relationship between the TAC and that industry. Their rhetoric and slogans indicated that they supported When, despite this conspiratorialist suspicion-mongering, government was and had the support of Tshabalala-Msimang.60 Despite this, many traditional forced to commit to treatment provision, the health minister shifted to sowing healers continued to support and receive training from the TAC. But the event suspicion about ARVs and supporting instead the proliferation of alternative showed the lengths the denialist opponents of ARVs were prepared to go to ‘remedies’ for AIDS. undermine scientifically-based health responses to the AIDS epidemic.

Tshabalala-Msimang's support for garlic and other vegetables in the context of And so the battle for a scientific approach to HIV prevention and treatment has treatments for HIV was widely and justly parodied.53 Her public proceeded. By mid-2006, progress was still mixed. At the International AIDS pronouncements created a false dichotomy between nutrition and medicine. Yet Conference in Toronto in 2006, the South African stand prominently displayed Tshabalala-Msimang indubitably promoted what Nicoli Nattrass had dubbed a lemons and garlic. ARVs were displayed as an afterthought. Tshabalala- ‘discourse of choice’, confusingly suggesting that ARVs were but one legitimate Msimang made further comments undermining ARVs, eliciting widespread option for AIDS-sick persons. Thus at a media conference in June 2005 she disbelief, dismay and condemnation.61 stated: ‘I know I get attacked if I say it's nutrition OR micro-nutrients OR ARVs and people want me to say, and, and, and. I think we need to give South Africans The TAC initiated another civil disobedience campaign. What followed was a options.’54 brief golden period in South Africa's response to the epidemic. When Tshabalala-Msimang became ill and unable to work, her deputy, Nozizwe The ‘options’ she offered proved tragically fatal. These have ranged from Madlala-Routledge, together with then Deputy-President Phumzile Mlambo- overstating the value of traditional medicines to outright support for unproven Ngcuka, used the opportunity to work with the TAC to develop a much-lauded remedies. She appeared supportively in a propaganda video called Power to the national strategic HIV/AIDS plan.62 People produced by Tine van der Maas, a Dutch nurse who claims that a garlic concoction treats AIDS (as well as a whole range of other diseases).55 She and her department issued two statements supportive of an untested, mysterious product called Ubhejane, whose purveyor claims it cures AIDS.56,57 Tshabalala- http://www.tac.org.za/community/files/DOHOnTraditionalMedicineAndUbhejane- 20060218.txt. Accessed 7/7/2009. 58 Geffen, N. 2005. Founding Affidavit in TAC and SAMA versus Rath and Others. 52 Mbeki, T. 2002. ANC Today, Volume 2, No. 14. 5 - 11 April 2002. http://www.tac.org.za/Documents/Court_Cases/Rath/Interdict/Geffen-1.pdf. Accessed http://www.anc.org.za/ancdocs/anctoday/2002/at14.htm. Accessed 7/7/2009. 7/7/2009. 53 See for example, “AIDS experts condemn SA minister”, BBC, 6/9/2006. 59 Geffen, N. 2006. Echoes of Lysenko: State-Sponsored Pseudo-Science in South Africa. http://news.bbc.co.uk/2/hi/africa/5319680.stm. Accessed 7/7/2009. CSSR Working Paper No. 149. http://www.tac.org.za/community/files/wp149.pdf. 54 News24. 2005. Manto rolls out 'Aids mantra'. Accessed 7/7/2009. http://www.news24.com/News24/South_Africa/Aids_Focus/0,,2-7- 60 TAC. 2004. TAC Supports Traditional Healers. 659_1717650,00.html. Accessed 7/7/2009. http://www.tac.org.za/newsletter/2004/ns23_11_2004.htm. Accessed 7/7/2009. 55 Video available at http://www.tinevandermaas.com/video-clips/. Accessed 7/7/2009. 61 “AIDS experts condemn SA minister”, BBC, 6/9/2006. 56 Department of Health. 2006. DA undermines indigenous knowledge. http://news.bbc.co.uk/2/hi/africa/5319680.stm. Accessed 7/7/2009. http://www.tac.org.za/community/files/DOHOnTraditionalMedicineAndUbhejane- 62 Allen, J., “South Africa: Government Takes Lead in Tackling HIV-AIDS Crisis”, 20060213.txt. Accessed 7/7/2009. allAfrica.com, 1/12/2006. http://allafrica.com/stories/200612010306.html. Accessed 57 Tshabalala-Msimang, M. 2006. Traditional medicine is here to stay. 7/7/2009. 13 14 143 Madlala-Routledge, widely praised as brave, competent and outspoken, Second, despite his contention that the ANC accommodated both paradigms, condemned government's record of denialism and declared the TAC to be her Butler’s article offers no evidence that Mbeki accommodated proponents of the ally. Then Tshabalala-Msimang returned to work in the second quarter of 2007. “mobilisation/biomedical” paradigm.67 In fact, it ignores evidence to the In August 2007, Mbeki dismissed Madlala-Routledge.63 contrary.68 Third, Butler argues that the ANC made an instrumental calculation that implementing Highly Active Anti-Retroviral Treatment (HAART) would have been inequitable and unsustainable.69 This is not just wrong, but palpably Trying to understand President Mbeki’s far-fetched. It implies an unlikely conspiracy (that the ANC supported a wrongheaded policy that was highly costly in the long-term to save in the short- espousal of AIDS denialist doctrines term) without any evidence that such a cost calculation was ever even attempted.70 Moreover, if the difficulties of equitably implementing government One of the questions asked most frequently is, what is behind President Mbeki's treatment for diseases including TB, diabetes, and cancer did not lead the response to AIDS? Much has been written on the subject. government to promote pseudoscience so why would it have done so in the case of AIDS? Every available indication suggests that Mbeki was specifically and 64 For example, Anthony Butler has a published widely-cited analysis the central irrationally preoccupied with HIV because of (i) its sexual transmission, and (ii) argument of which is that the AIDS struggle in South Africa was between two its peculiar African demography. Fourth, Butler asserts that “Attributions of competing paradigms which he labels (1) the “mobilisation/biomedical” ‘irrationality’ and ‘denial’, no matter how many people hold them to be true, do paradigm and (2) the “nationalist/ameliorative” paradigm. He contends that as a not constitute adequate explanations of human behaviour”.71 This does not stand rational process of contested policy formulation the ANC accommodated up to scrutiny. If one were to apply Butler’s logic here to World War II, for proponents’ of both. His central assertion is that far from Mbeki’s AIDS views example, it would suggest that Hitler’s determination to exterminate Jews, being bizarre or irrational, an “instrumental calculation of the dangers of an gypsies and homosexuals must have been rational. Finally, a major conceptual inequitable and unsustainable anti-retroviral programme best explains the failing is that Butler neglects to distinguish adequately between ordinary government's continued adherence to a cautious prevention and treatment psychological denial, and Mbeki's racially-obsessive and conspiratorialist policy”.65 This argument would relieve Mbeki and his supporters of responsibility for their grievously misguided AIDS policy. especially more so than COSATU and the SACP which never embraced denialism. Moreover there was no organised traditional healer movement that embraced denialism But Butler’s argument is fatally flawed on at least five counts. before Mbeki. The alternative health industry, for its part, was indeed strengthening in the 1990s. Nevertheless, its influence was confined to influencing government in a very narrow way: to allow changes to the Medicines Act that would enable it to sell its First, contrasting a response to AIDS based on science and reason - what he calls products. The organised part of the industry made no significant attempt in the 1990s to “biomedical” - with one based on superstition and irrationality - what he calls promote an anti-ARV position or “HIV does not cause AIDS” position and certainly not “ameliorative” - as two paradigms of similar truth fundamentally errs as a at a high political level. presentation of the options available to the Mbeki government. The impression 67 Indeed prominent members of the ANC, including Pregs Govender and Saadiq Kariem, of moral, rational and discursive equivalence created by Butler’s presentation is who expressed criticism of the Mbeki policy were subsequently marginalized. Butler’s 66 contention that “ANC activists have been at the forefront of campaigns against simply false. Mbeki’s policy pick was always out on a very extended limb. government policy and in support of ARV provision”, does not hold up in light of these same activists subsequent marginalization by the party (595). 63 Nozizwe Mbeki didn’t have ‘all the facts’”, Mail & Guardian, 10/8/2007. 68 See for example, Cameron, E., Witness to AIDS (2005); Powers, S., “The AIDS Rebel”, http://www.mg.co.za/article/2007-08-10-nozizwe-mbeki-didnt-have-all-the-facts. The New Yorker, 19/5/2003. Accessed 8/7/2009. http://www.newyorker.com/archive/2003/05/19/030519fa_fact_power. Accessed 64 Butler, A., “South Africa’s HIV / AIDS Policy, 1994-2004: How Can It Be Explained?”, 8/7/2009; and Sparks, A., Beyond the Miracle: Inside the New South Africa (2003). African Affairs Vol. 104, 591-614 (2005). 69 The widespread accessibility of ARV programmes suggests that this concern was 65 Id. at 591. misguided at best. Moreover, the challenge of equitably and sustainably providing ARV 66 The AIDS denialist forces were weak at the time that Mbeki began publicly supporting treatment to all in need was greatly exacerbated by the denialist policies. AIDS denialist positions. 70 Economics cannot explain the Mbeki AIDS policy position. Nattrass, N., Mortal Combat Traditional healers, for example, while a significant force in South African society were (2007). never so powerful as to have to influence or expect to influence AIDS health policy, 71 Butler (2005) at 598. 15 16 144 ideology of denial.7273 today does not go so far as to suggest that it was the underlying cause of or motivation for Mbeki’s position. For example, Mbeki continued to oppose James Myburgh has put forward a more likely theory. He largely attributes proven medications even after it became clear that Virodene was a failure, Mbeki’s denialist doctrine to his investment (political and perhaps financial) in indicating a deeper cause of his denialism. Virodene as an endogenously African solution to AIDS.74 Myburgh’s research in this area has made valuable contributions to understanding Mbeki’s AIDS Rather, the most plausible explanation must find its roots in racially-linked policy, and the full extent of the ANC’s involvement with Virodene is still paranoia stemming from the fact that so far the only mass heterosexual epidemic unknown. Indeed the ANC’s commitment to Virodene may well have been one of AIDS anywhere in the world has been in Central and Southern Africa.75 reason for its unscientific response to AIDS. However, the evidence available President Mbeki’s speeches and writings appear to attribute conventional 72 Id. at 603-04. scientific analysis of the epidemic to prurient, demeaning and racially-driven 73 At least nine other failings in Butler’s analysis warrant mentioning here. First, Butler preoccupation with African sexuality.76 It is this racially-driven conspiratorialist suggests that the “ameliorative” approach focused on poverty and implies that those thinking that makes the comparison between Holocaust denial and AIDS advocating ARV treatment ignored it. He fails, however, to identify any meaningful social 77 welfare policy proposed by the “ameliorative” forces. He also ignores the fact that groups denialism in Africa so illuminating. In both cases, dark, powerful, racially advocating ARV treatment, like TAC, incorporated an analysis of poverty and inequality hostile forces are identified as propagating self-serving myths and falsehoods. into their organizing work (TAC organised the first large demonstration for a Basic An angry, irrational pastiche whose composition and distribution have been Income Grant). Second and similarly, Butler’s suggestion that the “ameliorative” linked to President Mbeki78 was distributed to members of the ANC in 2002. It approach emphasized appropriate nutrition is misleading: the state did not produce a is a conspiratorialist tirade against scientific rationalism. It describes its own single accurate widely distributed pamphlet on HIV and nutrition during the Tshabalala- premises thus: Msimang era. Conversely, TAC, Soul City, and groups advocating ARV treatment did. Third, Butler correctly points out examples of how Mbeki promoted the “ameliorative” paradigm at the expense of the “biomedical” paradigm, thus providing evidence against ‘It recognises the reality that there are many people and institutions his own argument (594). Fourth, Butler may be right that Mbeki would have been unable across the world that have a vested interest in the propagation of the to influence public perception on the issue (596-97). But to the extent that Mbeki tried to HIV/AIDS thesis, because they have too much to lose if any important have influence in this area it was ill-informed and harmful – for example discouraging element of this thesis is proved to be false. testing because it would confirm a particular “paradigm” as he once told ETV. Fifth, Butler’s suggestion that the medium-term budget framework would have been beyond the control of the executive is misguided (597). Nearly every budget decision under Mbeki It accepts that these include the pharmaceutical companies, which are was taken with the approval of the relevant government bureaucracy and when the marketing anti-retroviral drugs that can only be sold, and therefore decision to implement HAART was taken, the money to treat hundreds of thousands of generate profits, on the basis of the universal acceptance of the people has been made available. Sixth, Butler rightly points out that there are real human assertion that ‘HIV causes AIDS’. resources shortages in the health system but fails to acknowledge the extra burden caused by the systematic decision to leave AIDS untreated (598). Seventh, Butler states that It also accepts that among those that share the vested interests of these “COSATU has periodically indicated that it is very much behind TAC’s campaign for ARVs, however it has been obliged to maintain a troubled silence on AIDS in the public companies are governments and official health institutions, inter- sphere” (601). This is false. Actually, COSATU spoke out publicly on AIDS and supported the TAC position at the risk of exacerbating tensions between it and the ruling 75 Laurance, J., “Threat of world Aids pandemic among heterosexuals is over, report party. Eighth, Butler’s description of shortcoming of the medical field, scientists and admits”, The Independent, 8/6/2008. http://www.independent.co.uk/life-style/health-and- foreign governments in terms of the AIDS epidemic, even if totally accurate, in no way families/health-news/threat-of-world-aids-pandemic-among-heterosexuals-is-over-report- explains or justifies a denialist position (605-06). Ninth, Butler attempts to paint dubious admits-842478.html. Accessed 8/7/2009. government statements as rational, including favorably quoting from Castro Hlongwane 76 See for example, Mbeki, T. Fort Hare University Speech, 12/10/2001. See also, Forrest, (611-12). In considering only the Mbeki's and his supporters' words he ignores their D., and Streek, B., “Mbeki in Bizarre Aids Outburst”, Mail & Guardian, 26/10/2001. actions such as their systematic obstructing of PMTCT and HAART programmes. http://www.aegis.com/news/dmg/2001/MG011021.html. Accessed 8/7/2009. 74 Myburgh, J. “The Virodene Affair”, politcsweb, 17/9/2007. 77 See Cameron E “AIDS denial and Holocaust denial: AIDS, justice and the courts in http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=83156&sn South Africa” [Edward A Smith Annual Lecture, Harvard Law School, April 2003] =Detail. Accessed 7/7/2009; Myburgh, J., “In the beginning there was Virodene”, in The (2003) South African Law Journal Vol. 120, 525-539. Virus Vitamins, & Vegetables, 1-15 (Cullinan, K., & Thom, A. eds. 2009). 78 Gevisser, M., Thabo Mbeki: The Dream Deferred, 736 (2007).. 17 18 145 governmental organisations, official medical licensing and registration And indeed, some voices critical of Mbeki have been oblivious to racism, institutions, scientists and academics, media organisations, non- Africa's oppression and poverty as determinants of the extent of the epidemic in governmental organisations and individuals.’79 Africa. But many scientists and activists have included the link very cogently in their response to the epidemic. Indeed, in its launching statement of 10 Here the racial paranoia lurking powerfully beneath African AIDS denialism December 1998 the TAC denounced ‘unnecessary suffering and AIDS-related comes to the fore. Mark Gevisser's authoritative biography of Mbeki damningly deaths of thousands of people in Africa' and elsewhere as ‘the result of poverty describes the document as veering dangerously close to the ‘kind of essentialist and the unaffordability of HIV/AIDS treatment’.83 race theory that powered Afrikaner nationalism.’80 These insights preceded Mbeki's attraction to tenets of AIDS denialism. Any Mbeki's denialism was not politically inevitable, but his popularisation of a analysis that tries to excuse or condone Mbeki’s stand because his critics did not racially-driven pseudo-scientific approach to AIDS has released a deadly genie understand the social conditions of AIDS is consequently misplaced. that has not yet run its course. Perhaps unwittingly, Mbeki has made it more acceptable in South Africa to argue that science necessarily undermines African Mbeki's denialist stance is perplexing because there was no compelling rational development, that African science should be carried out under different political reason for it. There was no pressure on him from any substantive standards, that tested pharmaceutical medicines should be treated with greater political force to assume denialist positions. Astounding AIDS activists, medical scepticism than those marketed as traditional or alternative and that there is a scientists and many of his ANC colleagues alike, his stance was entirely reasonable choice to be had between ARVs and other remedies for the treatment autonomously adopted. The ANC in exile had an ambivalent relationship with or cure of HIV. All these positions are false. Yet they have been informed in part traditional leaders and healers and was, despite some ambiguities, a by distorted African nationalist sentiment. The twentieth century is rife with preponderant force for enlightenment, modernisation and science. The examples of this kind of racial science by no means confined to the apartheid leadership of the treatment activists and their unionist allies likewise emanated example Gevisser gives. The disaster precipitated by Mbeki's racialised from the anti-apartheid struggle, and constituted a natural ally for a scientific approach to science has, like its predecessors, caused acute misery. response to the epidemic and against the pharmaceutical industry’s medicines pricing. Gevisser explains Mbeki, compellingly. But there are some writers who have attempted to excuse or condone his stance. Didier Fassin seeks to account for Furthermore, during the Virodene and ‘Presidential AIDS Advisory Panel’ Mbeki's denialism as a consequence of scientists and activists ignoring the debacles, traditional healers were not organised in opposition to a scientific history of the oppression of Africa, racism and poverty.81 Jonny Steinberg aptly response to the epidemic; certainly no historical account paints them as an titled this ’the anthropology of low expectations’: influential force: a subset of traditional healers only began organising against the TAC long after the conflict between Mbeki and HIV science began. ‘Fassin is quick to talk Mbeki up as the voice of a resonant African experience and a powerful African nationalism. And yet in doing so, Mbeki's stance on AIDS is thus aggravated, not alleviated, by an analysis of the he comes close to saying that African nationalism was destined to get political environment in which he operated. That he chose to oppose medical the aetiology of AIDS horribly wrong. Berating the orthodox for their science in the absence of political pressure to do so increases his culpability. blindness to the anguish of the vanquished, he is on the brink of saying that we must expect nothing more from African nationalism However, if we are to understand why more than 300,00084 people have died than resentment and suspicion.’82

http://community.livejournal.com/ms_anthropology/2117.html. Accessed 7/7/2009. 79 Anonymous, “Castro Hlongwane, Caravans, Cats, Geese, Foot & Mouth and Statistics. 83 TAC. HIV/AIDS Treatment Action Campaign. 10 December 1998 -- Day of Action HIV/AIDS and the Struggle for the Humanisation of the African” (2002). International Human Rights Day.http://www.tac.org.za/community/node/2454. Accessed http://www.virusmyth.com/aids/hiv/ancdoc.htm. Accessed 7/7/2009. 7/7/2009. 80 Gevisser, M., 752. 84 Chigwedere P., Seage G., Gruskin S., Lee T., & Essex M.., “Estimating the Lost Benefits 81 See for example, Fassin, D., When Bodies Remember, (2007). of Antiretroviral Drug Use in South Africa”, Pubmed, 16/102008. 82 Steinberg, J., 2007. “The anthropology of low expectations”, Business Day, 5/6/2007. http://www.ncbi.nlm.nih.gov/pubmed/18931626. Accessed 9/7/2009. 19 20 146 because they could not or did not access medicines in South Africa, there are The collapse of Eastern Europe left the ANC's traditional ideological roots much questions that are surely more important than trying to account subjectively for weakened. By the mid- to late-1990s, the ANC – led by Mbeki – had radically President Mbeki's beliefs. Seldom asked and insufficiently researched are: altered its economic positions so as to depart markedly from its ideological past x How did Mbeki's views manage to prevail in the ANC and influence as well as from the view of many of its grassroots supporters. This ideological policy, at least from 1999 until March 2004 when the ARV rollout flux, and the consequent conceptual deracination in which the organisation began in earnest? What were, indeed perhaps still are, the weaknesses found itself, may have made it easier for the party's leader to sustain irrational in governance structures that allowed a pseudo-scientific response to and eccentric views within the organisation. aggravate the country's catastrophic health problem? x And conversely, what were the strengths in South Africa's democratic What is more, Mbeki's African nationalist sympathies and Tshabalala-Msimang's structures that enabled a public sector ARV rollout ultimately to appeal to traditionalism did find an audience among segments of South African occur? society, including some in the ANC. In the light of the country’s long and x What are the long-term consequences for South Africa of the agonising history of racial exploitation and oppression this was hardly disastrous flirtation with AIDS denialism, both from a health policy surprising. perspective and for the scientific governance of medicine? And there is this. Despite all these considerations, Mbeki's stance on AIDS We do not claim to know the answers. But they should be explored, for they go prevailed for only a time. The overwhelming evidence that emerged that AIDS to heart of the functioning of South Africa's fledgling democracy. Our was devastating communities, coupled with increasingly incontrovertible preliminary and speculative suggestions in the rest of this chapter are designed evidence that ARVs were restoring health and saving lives, the relentless to stir other researchers to consider these questions in more detail. courage of Mbeki’s media critics on AIDS, the TAC and its allies in COSATU, coupled – crucially – with former President Nelson Mandela's influential intervention all precipitated inner-circle conditions that made it possible to Why did Mbeki's views prevail for a time and prevail upon Mbeki to permit publicly-funded ARV treatment to be made available. Unfavourable international focus on President Mbeki’s stance also why were they overcome? assisted in breaking the denialist grip on AIDS policy.

There are several features of South Africa's democratic development that made it That Mbeki could be challenged at all was undoubtedly due to the extensive possible for President Mbeki’s idiosyncratic views on AIDS to have such a rights and freedoms guaranteed in South Africa's Bill of Rights.85 Never did devastating effect. These included the fact that the ANC was the only political Mbeki’s critics have to be concerned that they would be outlawed or repressed. party with mass support. Historically, it led the only movement opposing Allied with this, the South African Constitution guarantees gradual access to apartheid that gained mass support. Its history of exile, where it was supported socio-economic rights, including healthcare, and makes the courts the arbiter of by communist governments, while Western governments colluded with the whether government is making reasonable progress in their attainment.86 It was apartheid regime, nurtured a political culture in which leaders could not be government’s obligation progressively to realise the right of access to healthcare openly criticised. The sole ANC Members of Parliament to speak out about that formed the basis of the Constitutional Court decision requiring Mbeki’s AIDS before Madlala-Routledge was appointed deputy Health Minister, in government to make prophylaxis available to pregnant mothers with HIV: many differing measure, were Pregs Govender and Barbara Hogan: both were saw the decision as portending a future challenge requiring more general penalised. The ‘party list system’ where parliamentary representatives are provision of ARVs. allocated by party leaders on a proportional representation basis is considered by many to constitute a disincentive to questioning leaders or opposing the party The strategic thinking that South African civil society leaders learned from line. organizing against apartheid also benefited their campaign against Mbeki’s denialist positions. Nattrass N., “AIDS and the Scientific Governance of Medicine in Post-Apartheid South Africa”, African Affairs Vol. 107., 157-176 (2008). 85 The Constitution, 1996, ch. 2. http://afraf.oxfordjournals.org/cgi/content/abstract/107/427/157. Accessed 8/7/2009. 86 The Constitution, 1996, art 27 21 22 147 Many developing countries, including in Africa, lack these advantages.

The treatment rollout in South Africa is now irreversible. The new leadership the ANC elected in 2007, and again in 2009 appear to be opposed to AIDS denialism, whose power is thus likely to diminish. While denialism appears to be behind us, the damage it caused will take many years to rectify. In the case of the hundreds of thousands of lives lost unnecessarily, the damage is truly irreparable.

Ultimately, historians will face a grim calculus in determining the cost of denialism in South Africa. Despite the tragedy of avoidable deaths, suffering and misery caused by AIDS denialism, the victory of reason that is taking place has given cause for hope for South Africa's future, and for the resilience of its people’s voices and the constitutional structures of democracy.

23 148

Coram: Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J

Judgment: Mogoeng CJ (unanimous)

CONSTITUTIONAL COURT OF SOUTH AFRICA Heard on: 9 February 2016

Decided on: 31 March 2016 Cases CCT 143/15 and CCT 171/15 Summary: Legal Effect of Powers of Public Protector — Appropriate In the matter of: Remedial Action — Conduct of President — National Assembly Obligations — Separation of Powers

ECONOMIC FREEDOM FIGHTERS Applicant Specific Constitutional Obligations — Exclusive Jurisdiction — Compliance with Remedial Action — Oversight and and Accountability

SPEAKER OF THE NATIONAL ASSEMBLY First Respondent

PRESIDENT JACOB GEDLEYIHLEKISA ZUMA Second Respondent ORDER

PUBLIC PROTECTOR Third Respondent

And in the matter of: Applications for the exercise of exclusive jurisdiction and direct access: DEMOCRATIC ALLIANCE Applicant and In the result the following order is made: 1. This Court has exclusive jurisdiction to hear the application by the SPEAKER OF THE NATIONAL ASSEMBLY First Respondent Economic Freedom Fighters. PRESIDENT JACOB GEDLEYIHLEKISA ZUMA Second Respondent 2. The Democratic Alliance’s application for direct access is granted.

MINISTER OF POLICE Third Respondent 3. The remedial action taken by the Public Protector against President Jacob Gedleyihlekisa Zuma in terms of section 182(1)(c) of the PUBLIC PROTECTOR Fourth Respondent Constitution is binding. CORRUPTION WATCH (RF) NPC Amicus Curiae 4. The failure by the President to comply with the remedial action taken

against him, by the Public Protector in her report of 19 March 2014, is inconsistent with section 83(b) of the Constitution read with Neutral citation: Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National sections 181(3) and 182(1)(c) of the Constitution and is invalid. Assembly and Others [2016] ZACC 11 5. The National Treasury must determine the reasonable costs of those

measures implemented by the Department of Public Works at the

2 149 MOGOENG CJ

President’s Nkandla homestead that do not relate to security, namely the Introduction

visitors’ centre, the amphitheatre, the cattle kraal, the chicken run and [1] One of the crucial elements of our constitutional vision is to make a decisive the swimming pool only. break from the unchecked abuse of State power and resources that was virtually 6. The National Treasury must determine a reasonable percentage of the institutionalised during the apartheid era. To achieve this goal, we adopted costs of those measures which ought to be paid personally by the accountability, the rule of law and the supremacy of the Constitution as values of our President. constitutional democracy.1 For this reason, public office-bearers ignore their 7. The National Treasury must report back to this Court on the outcome of constitutional obligations at their peril. This is so because constitutionalism, its determination within 60 days of the date of this order. accountability and the rule of law constitute the sharp and mighty sword that stands 8. The President must personally pay the amount determined by the ready to chop the ugly head of impunity off its stiffened neck. It is against this National Treasury in terms of paragraphs 5 and 6 above within 45 days backdrop that the following remarks must be understood: of this Court’s signification of its approval of the report. 9. The President must reprimand the Ministers involved pursuant to “Certain values in the Constitution have been designated as foundational to our paragraph 11.1.3 of the Public Protector’s remedial action. democracy. This in turn means that as pillar-stones of this democracy, they must be 10. The resolution passed by the National Assembly absolving the President observed scrupulously. If these values are not observed and their precepts not carried from compliance with the remedial action taken by the Public Protector out conscientiously, we have a recipe for a constitutional crisis of great magnitude. In a State predicated on a desire to maintain the rule of law, it is imperative that one in terms of section 182(1)(c) of the Constitution is inconsistent with and all should be driven by a moral obligation to ensure the continued survival of our sections 42(3), 55(2)(a) and (b) and 181(3) of the Constitution, is invalid democracy.” 2 and is set aside. 11. The President, the Minister of Police and the National Assembly must And the role of these foundational values in helping to strengthen and sustain our pay costs of the applications including the costs of two counsel. constitutional democracy sits at the heart of this application.

[2] In terms of her constitutional powers,3 the Public Protector investigated

JUDGMENT allegations of improper conduct or irregular expenditure relating to the security upgrades at the Nkandla private residence of the President of the Republic. She

concluded that the President failed to act in line with certain of his constitutional and ethical obligations by knowingly deriving undue benefit from the irregular MOGOENG CJ (Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring): deployment of State resources. Exercising her constitutional powers to take

1 Section 1(c) and (d) of the Constitution. 2 Nyathi v Member of the Executive Council for the Department of Health Gauteng and Another [2008] ZACC 8; 2008 (5) SA 94 (CC); 2008 (9) BCLR 865 (CC) at para 80, per Madala J. 3 As conferred by section 182 of the Constitution.

3 4 150 MOGOENG CJ MOGOENG CJ appropriate remedial action she directed that the President, duly assisted by certain National Assembly to fulfil its constitutional obligations, in terms of State functionaries, should work out and pay a portion fairly proportionate to the sections 55 and 181, to hold the President accountable to ensure the undue benefit that had accrued to him and his family. Added to this was that he effectiveness, rather than subversion, of the Public Protector’s findings should reprimand the Ministers involved in that project, for specified improprieties. and remedial action; (e) the Public Protector’s constitutional powers to take appropriate remedial [3] The Public Protector’s report was submitted not only to the President, but also action must be clarified or affirmed; and to the National Assembly presumably to facilitate compliance with the remedial action (f) the State parties, except the Public Protector, are to pay costs to the in line with its constitutional obligations to hold the President accountable.4 For well Applicants. over one year, neither the President nor the National Assembly did what they were required to do in terms of the remedial action. Hence these applications by the Background 5 Economic Freedom Fighters (EFF) and the Democratic Alliance (DA), against the [5] Several South Africans, including a Member of Parliament, lodged complaints National Assembly and the President. with the Public Protector concerning aspects of the security upgrades that were being effected at the President’s Nkandla private residence. This triggered a fairly extensive [4] What these applications are really about is that— investigation by the Public Protector into the Nkandla project. (a) based on the supremacy of our Constitution, the rule of law and considerations of accountability, the President should be ordered to [6] The Public Protector concluded that several improvements were non-security comply with the remedial action taken by the Public Protector by paying features.6 Since the State was in this instance under an obligation only to provide a reasonable percentage of the reasonable costs expended on security for the President at his private residence, any installation that has nothing to non˗security features at his private residence; do with the President’s security amounts to undue benefit or unlawful enrichment to (b) the President must reprimand the Ministers under whose watch State him and his family and must therefore be paid for by him. resources were expended wastefully and unethically on the President’s private residence; [7] In reasoning her way to the findings, the Public Protector said that the President (c) this Court must declare that the President failed to fulfil his acted in breach of his constitutional obligations in terms of section 96(1), (2)(b) and constitutional obligations, in terms of sections 83, 96, 181 and 182; (c) of the Constitution which provides: (d) the report of the Minister of Police and the resolution of the National Assembly that sought to absolve the President of liability, must “Conduct of Cabinet members and Deputy Ministers be declared inconsistent with the Constitution and invalid and that the (1) Members of the Cabinet and Deputy Ministers must act in accordance adoption of those outcomes amount to a failure by the with a code of ethics prescribed by national legislation.

6 Secure in Comfort: Report on an investigation into allegations of impropriety and unethical conduct relating 4 Section 42(3) of the Constitution and section 55(2) of the Constitution read with section 8(2)(b)(iii) of the to the installation and implementation of security measures by the Department of Public Works at and in respect Public Protector Act 23 of 1994. of the private residence of President Jacob Zuma at Nkandla in the KwaZulu-Natal province Report No 25 of 5 These are political parties represented in our Parliament. 2013/14 (Public Protector’s Report) at para 11.

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(2) Members of the Cabinet and Deputy Ministers may not— about whose construction he was reportedly aware,11 to be built at his private . . . residence at government expense, exposed him to a “situation involving the risk of a (b) act in any way that is inconsistent with their office, or expose conflict between [his] official responsibilities and private interests”.12 The potential themselves to any situation involving the risk of a conflict conflict lies here. On the one hand, the President has the duty to ensure that State between their official responsibilities and private interests; or (c) use their position or any information entrusted to them, to resources are used only for the advancement of State interests. On the other hand, enrich themselves or improperly benefit any other person.” there is the real risk of him closing an eye to possible wastage, if he is likely to derive personal benefit from indifference. To find oneself on the wrong side of section 96, In the same breath she concluded that the President violated the provisions of the all that needs to be proven is a risk. It does not even have to materialise. 7 8 Executive Members’ Ethics Act and the Executive Ethics Code. These are the national legislation and the code of ethics contemplated in section 96(1). [10] Having arrived at the conclusion that the President and his family were unduly enriched as a result of the non-security features, the Public Protector took remedial [8] The Public Protector’s finding on the violation of section 96 was based on the action against him in terms of section 182(1)(c) of the Constitution. The remedial self-evident reality that the features identified as unrelated to the security of the action taken reads: President, checked against the list of what the South African Police Service (SAPS) security experts had themselves determined to be security features,9 were installed “11.1 The President is to: 11.1.1 Take steps, with the assistance of the National Treasury and the because the people involved knew they were dealing with the President. When some SAPS, to determine the reasonable cost of the measures government functionaries find themselves in that position, the inclination to want to implemented by the DPW [Department of Public Works] at his please higher authority by doing more than is reasonably required or legally private residence that do not relate to security, and which include permissible or to accede to a gentle nudge by overzealous and ambitious senior [the] visitors’ centre, the amphitheatre, the cattle kraal and chicken officials to do a “little wrong” here and there, may be irresistible. A person in the run and the swimming pool. position of the President should be alive to this reality and must guard against its 11.1.2 Pay a reasonable percentage of the cost of the measures as determined with the assistance of the National Treasury, also eventuation. Failure to do this may constitute an infringement of this provision. considering the DPW apportionment document.

11.1.3 Reprimand the Ministers involved for the appalling manner in [9] There is thus a direct connection between the position of President and the which the Nkandla Project was handled and state funds were reasonably foreseeable ease with which the specified non-security features, asked for abused. or not, were installed at the private residence. This naturally extends to the undue 11.1.4 Report to the National Assembly on his comments and actions on this report within 14 days.”13 enrichment.10 Also, the mere fact of the President allowing non˗security features,

7 82 of 1998. 8 Chapter 1 of the Ministerial Handbook: A Handbook for Members of the Executive and Presiding officers 11 (7 February 2007) at pages 7-15. These are the findings of the Public Protector. 12 9 Public Protector’s Report above n 6 at paras 7.14.2 and 7.14.4. Section 96(2)(b) of the Constitution. 13 10 Section 96(2)(c) of the Constitution. Public Protector’s Report above n 6 at para 11.

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[11] Consistent with this directive, the President submitted his response to the costs of the non-security upgrades after a determination by National Treasury. Also, National Assembly within 14 days of receiving the report.14 It was followed by yet the Auditor-General has been left out as one of the institutions that were to assist in another response about five months later. the determination of the amount payable by the President. Otherwise, the essence of both draft orders is that those aspects of the Public Protector’s remedial measures, still [12] For its part, the National Assembly set up two Ad Hoc Committees,15 capable of enforcement, would be fully complied with. As for costs, the President comprising its members, to examine the Public Protector’s report as well as other proposed that they be reserved for future determination. reports including the one compiled, also at its instance, by the Minister of Police. After endorsing the report by the Minister exonerating the President from liability and Exclusive jurisdiction a report to the same effect by its last Ad Hoc Committee, the National Assembly [15] The exclusive jurisdiction of this Court is governed by section 167(4)(e) of the resolved to absolve the President of all liability. Consequently, the President did not Constitution which says: comply with the remedial action taken by the Public Protector. “(4) Only the Constitutional Court may— [13] Dissatisfied with this outcome, the EFF launched this application, claiming that … it falls within this Court’s exclusive jurisdiction. It, in effect, asked for an order (e) decide that Parliament or the President has failed to fulfil a constitutional obligation.” affirming the legally binding effect of the Public Protector’s remedial action; directing the President to comply with the Public Protector’s remedial action; and declaring that [16] Whether this Court has exclusive jurisdiction in a matter involving the both the President and the National Assembly acted in breach of their constitutional President or Parliament is not a superficial function of pleadings merely alleging a obligations. The DA launched a similar application in the Western Cape Division of failure to fulfil a constitutional obligation. The starting point is the pleadings. But the High Court, Cape Town and subsequently to this Court conditional upon the EFF’s much more is required.16 First, it must be established that a constitutional obligation application being heard by this Court. that rests on the President or Parliament is the one that allegedly has not been fulfilled.

Second, that obligation must be closely examined to determine whether it is of the [14] It is fitting to mention at this early stage that eight days before this matter was kind envisaged by section 167(4)(e).17 heard, the President circulated a draft order to this Court and the parties. After some parties had expressed views on aspects of that draft, a revised version was circulated on the day of the hearing. The substantial differences between the two drafts are that, unlike the first, the second introduces the undertaking by the President to reprimand certain Ministers in terms of the remedial action and also stipulates the period within 16 My Vote Counts NPC v Speaker of the National Assembly and Others [2015] ZACC 31; 2016 (1) SA 132 (CC); 2015 (12) BCLR 1407 (CC) (My Vote Counts) at para 24; Women’s Legal Trust v President of the which the President would personally pay a reasonable percentage of the reasonable Republic of South Africa and Others [2009] ZACC 20; 2009 (6) SA 94 (CC) (Women’s Legal Centre) at para 16; Von Abo v President of the Republic of South Africa [2009] ZACC 15; 2009 (5) SA 345 (CC); 2009 (10) BCLR 1052 (CC) (Von Abo) at para 35; Doctors for Life International v Speaker of the National Assembly 14 See [76] and [77] below. and Others [2006] ZACC 11; 2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC) (Doctors for Life) at para 19; and President of the Republic of South Africa and Others v South African Rugby Football Union and Others 15 The first Ad Hoc Committee was formed to consider the President’s report along with all other reports [1998] ZACC 9; 1999 (2) SA 14 (CC); 1999 (2) BCLR 175 (CC) (SARFU I) at para 25. (produced by Special Investigation Unit, Public Protector, Joint Standing Committee on Intelligence and the Task Team); the last Ad Hoc Committee was formed to consider the Minister of Police’s report. 17 Doctors for Life id at para 13.

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[17] Additional and allied considerations are that section 167(4)(e) must be given a its mandate, then crucial political questions are likely to arise which would entail an narrow meaning.18 This is so because whenever a constitutional provision is intrusion into sensitive areas of separation of powers. When this is the case, then the construed, that must be done with due regard to other constitutional provisions that are demands for this Court to exercise its exclusive jurisdiction would have been met.23 materially relevant to the one being interpreted. In this instance, section 172(2)(a) confers jurisdiction on the Supreme Court of Appeal, the High Court and courts of [19] To determine whether a dispute falls within the exclusive jurisdiction of this similar status to pronounce on the constitutional validity of laws or conduct of the Court, section 167(4)(e) must be given a contextual and purposive interpretation with President. This is the responsibility they share with this Court – a terrain that must due regard to the special role this apex Court was established to fulfil. As the highest undoubtedly be adequately insulated against the inadvertent and inappropriate court in constitutional matters and “the ultimate guardian of the Constitution and its monopoly of this Court. An interpretation of section 167(4)(e) that is cognisant of the values”,24 it has “to adjudicate finally in respect of issues which would inevitably have imperative not to unduly deprive these other courts of their constitutional jurisdiction, important political consequences”.25 Also to be factored into this process is the would be loath to assume that this Court has exclusive jurisdiction even if pleadings utmost importance of the highest court in the land being the one to deal with disputes state strongly or clearly that the President or Parliament has failed to fulfil that have crucial and sensitive political implications. This is necessary to preserve the constitutional obligations. comity between the judicial branch and the executive and legislative branches of government.26 [18] An alleged breach of a constitutional obligation must relate to an obligation that is specifically imposed on the President or Parliament. An obligation shared with [20] That this Court enjoys the exclusive jurisdiction to decide a failure by the other organs of State will always fail the section 167(4)(e) test.19 Even if it is an President to fulfil his constitutional obligations ought not to be surprising, considering office-bearer- or institution-specific constitutional obligation, that would not the magnitude and vital importance of his responsibilities. The President is the necessarily be enough. Doctors for Life provides useful guidance in this connection. Head of State and Head of the national Executive. His is indeed the highest calling to There, Ngcobo J said “obligations that are readily ascertainable and are unlikely to give rise to disputes”,20 do not require a court to deal with “a sensitive aspect of the 23 Doctors for Life above n 16 at paras 24-6. 24 21 22 President of the Republic of South Africa and Others v South African Rugby Football Union and Others separation of powers” and may thus be heard by the High Court. This relates, as [1999] ZACC 9; 1999 (4) SA 147 (CC); 1999 (7) BCLR 725 (CC) (SARFU II) at para 72. Section 167 reads in relevant part: he said by way of example, to obligations expressly imposed on Parliament where the “(3) The Constitutional Court— Constitution provides that a particular legislation would require a two-thirds majority (a) is the highest court of the Republic; and to be passed. But where the Constitution imposes the primary obligation on (b) may decide— Parliament and leaves it at large to determine what would be required of it to execute (i) constitutional matters; and (ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court, and 18 Id at para 19. (c) makes the final decision whether a matter is within its jurisdiction.” 19 Women’s Legal Centre above n 16 at para 20. These subsections confirm the status of the Constitutional Court as the highest court in the land and also extend 20 Doctors for Life above n 16 at para 25. its jurisdiction to arguable points of law of general public importance. 25 21 Id. SARFU II id at para 73. 26 22 Id. See also section 172(2)(a) of the Constitution. SARFU I above n 16 at paras 29.

11 12 154 MOGOENG CJ MOGOENG CJ the highest office in the land. He is the first citizen of this country and occupies a [22] Similarly, the National Assembly, and by extension Parliament, is the position indispensable for the effective governance of our democratic country. Only embodiment of the centuries-old dreams and legitimate aspirations of all our people. upon him has the constitutional obligation to uphold, defend and respect the It is the voice of all South Africans, especially the poor, the voiceless and the Constitution as the supreme law of the Republic been expressly imposed.27 The least˗remembered. It is the watchdog of State resources, the enforcer of fiscal promotion of national unity and reconciliation falls squarely on his shoulders. As discipline and cost-effectiveness for the common good of all our people.31 It also does the maintenance of orderliness, peace, stability and devotion to the well-being of bears the responsibility to play an oversight role over the Executive and State organs the Republic and all of its people. Whoever and whatever poses a threat to our and ensure that constitutional and statutory obligations are properly executed.32 For sovereignty, peace and prosperity he must fight.28 To him is the executive authority of this reason, it fulfils a pre-eminently unique role of holding the Executive accountable the entire Republic primarily entrusted. He initiates and gives the final stamp of for the fulfilment of the promises made33 to the populace through the State of the approval to all national legislation.29 And almost all the key role players in the Nation Address, budget speeches, policies, legislation and the Constitution, duly realisation of our constitutional vision and the aspirations of all our people are undergirded by the affirmation or oath of office constitutionally administered to the appointed and may ultimately be removed by him.30 Unsurprisingly, the nation pins Executive before assumption of office. Parliament also passes legislation with due its hopes on him to steer the country in the right direction and accelerate our journey regard to the needs and concerns of the broader South African public. The willingness towards a peaceful, just and prosperous destination, that all other progress-driven and obligation to do so is reinforced by each member’s equally irreversible public nations strive towards on a daily basis. He is a constitutional being by design, a declaration of allegiance to the Republic, obedience, respect and vindication of the national pathfinder, the quintessential commander-in-chief of State affairs and the Constitution and all law of the Republic, to the best of her abilities. In sum, personification of this nation’s constitutional project. Parliament is the mouthpiece, the eyes and the service-delivery-ensuring machinery of the people. No doubt, it is an irreplaceable feature of good governance in [21] He is required to promise solemnly and sincerely to always connect with the South Africa. true dictates of his conscience in the execution of his duties. This he is required to do with all his strength, all his talents and to the best of his knowledge and abilities. And, [23] For the EFF to meet the requirements for this Court to exercise its exclusive but for the Deputy President, only his affirmation or oath of office requires a gathering jurisdiction over the President and the National Assembly, it will have to first rely on of people, presumably that they may hear and bear witness to his irrevocable what it considers to be a breach of a constitutional obligation that rests squarely on the commitment to serve them well and with integrity. He is after all, the image of President as an individual and on the National Assembly as an institution. That South Africa and the first to remember at its mention on any global platform. obligation must have a demonstrable and inextricable link to the need to ensure compliance with the remedial action taken by the Public Protector. Put differently, it must be apparent from a reading of the constitutional provision the EFF relies on, that

27 See section 83(b) of the Constitution. 31 Section 77 read with section 55 of the Constitution. See also section 188 of the Constitution read with 28 Section 83(c) read with the affirmation or oath of office in Schedule 2 of the Constitution, in context. section 10 of the Public Audit Act 25 of 2004. 29 See sections 84-5 of the Constitution. 32 Section 55(2)(b)(i) of the Constitution. 30 Ministers, Judges, Heads of Chapter Nine institutions and Directors General. 33 Section 55(2)(a) of the Constitution.

13 14 155 MOGOENG CJ MOGOENG CJ it specifically imposes an obligation on the President or the National Assembly, but in strength of these alleged breaches that this Court is asked to exercise exclusive a way that keeps focus sharply on or is intimately connected to the need for jurisdiction. compliance with the remedial action. If both or one of them bears the obligation merely as one of the many organs of State, then other courts like the High Court and [26] Section 83 does impose certain obligations on the President in particular. It later the Supreme Court of Appeal would in terms of section 172(2)(a) also have provides: jurisdiction in the matter. In the latter case direct access34 to this Court would have to be applied for and obviously granted only if there are exceptional circumstances and it “The President— (a) is the Head of State and head of the national executive; is in the interests of justice to do so. (b) must uphold, defend and respect the Constitution as the supreme law

of the Republic; and [24] Where, as in this case, both the President and the National Assembly are said to (c) promotes the unity of the nation and that which will advance the have breached their respective constitutional obligations, which could then clothe this Republic.”36 Court with jurisdiction, and exclusive jurisdiction is only proven in respect of the one but not the other, there might still be room to entertain the application against both An obligation is expressly imposed on the President to uphold, defend and respect the provided it is in the interests of justice to do so. This would be the case, for example, Constitution as the law that is above all other laws in the Republic. As the Head of where: (i) the issue(s) involved are of high political importance with potentially far- State and the Head of the national Executive, the President is uniquely positioned, reaching implications for the governance and stability of our country; (ii) the issue(s) empowered and resourced to do much more than what other public office-bearers can 37 at the heart of the alleged breach of constitutional obligations by both the President do. It is, no doubt, for this reason that section 83(b) of the Constitution singles him and the National Assembly are inseparable; and (iii) the gravity and nature of the out to uphold, defend and respect the Constitution. Also, to unite the nation, issue(s) at stake are such that they demand an expeditious disposition of the matter in obviously with particular regard to the painful divisions of the past. This requires the the interests of the nation. This list is not exhaustive. President to do all he can to ensure that our constitutional democracy thrives. He must provide support to all institutions or measures designed to strengthen our Exclusive jurisdiction in the application against the President

on the implementation of the remedial action taken by the Public Protector. And section 96 can in no way assist [25] Beginning with the President, the EFF argued that he breached his obligations the process meant to secure the President’s compliance. It cannot therefore be a justifiable basis for conferring exclusive jurisdiction on this Court. in terms of sections 83, 96,35 181 and 182 of the Constitution. And it is on the 36 To suggest that the failure to comply with the remedial action taken by the Public Protector undermines the promotion of national unity and the advancement of the Republic, is a proposition that I find difficult to 34 understand. The promotion of national unity and the advancement of what is in the best interests of the Section 167(6) of the Constitution. Republic have in essence to do with conduct or statements that could bring together or unite all our people, to 35 Section 96 bears no relevance to the core issues before this Court. Admittedly, it is pivotal to the heal the racial divisions of the past. And the advancement of the Republic or its well-being has a bearing on Public Protector’s finding that although the President was aware of the erection of non-security upgrades at his conduct or a statement that has wide-ranging implications for the Republic. The notion that the unlawful use of private residence, he is not known to have done anything to discourage their construction or put an end to them, State resources to build a cattle kraal, chicken run, swimming pool, amphitheatre and a visitors’ centre constitute considering his fiduciary duty to the State. This he arguably allowed to happen in a manner that undermines his a failure to promote national unity or advance the Republic, is difficult to sustain. In sum, section 83(c) bears no constitutional obligations to ensure that nobody profits unduly from State resources. Needless to say that this is relationship, not even remotely, to the matter before us. particularly so for those who, like him, are charged with the duty to ensure that State resources are used only, to 37 President of the Republic of South Africa and Another v Hugo [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 (6) advance the common good of all (see Glenister v President of the Republic of South Africa and Others [2011] BCLR 708 (CC) at para 65 states: “Ultimately the President, as the supreme upholder and protector of the ZACC 6; 2011 (3) SA 347 (CC); 2011 (7) BCLR 651 (CC) at para 176). But this application is not about Constitution, is its servant. Like all other organs of state, the President is obliged to obey each and every one of determining whether the President and his family benefitted unlawfully from non-security installations or its commands.” upgrades. That was for the Public Protector to do and that she has done already. The focus of this application is

15 16 156 MOGOENG CJ MOGOENG CJ constitutional democracy. More directly, he is to ensure that the Constitution is the list of matters that would fall under this Court’s exclusive jurisdiction would be known, treated and related to, as the supreme law of the Republic. It thus ill-behoves endless. What this could then mean is that whenever the President is said to have him to act in any manner inconsistent with what the Constitution requires him to do failed to fulfil a shared obligation in any provision of the Constitution,39 or the Bill of under all circumstances. The President is expected to endure graciously and Rights, this Court would readily exercise its exclusive jurisdiction. This would be so admirably and fulfil all obligations imposed on him, however unpleasant. This because on this logic, all a litigant would have to do to trigger this Court’s exclusive imposition of an obligation specifically on the President still raises the question: jurisdiction, would be to rely on the shared constitutional obligations as in the Bill of which obligation specifically imposed by the Constitution on the President has he Rights, and section 83 which would then confer exclusive jurisdiction on this Court in violated? Put differently, how did he fail to uphold, defend and respect the supreme all applications involving the President. law of the Republic? [30] I reiterate that, this would mean that, any failure to fulfil shared constitutional [27] Sections 181(3) and 182(1)(c) in a way impose obligations on the President. obligations by any member of the Executive, would thus be attributable to the But, as one of the many. None of these provisions singles out the President for the President as his own failure. After all he appoints them and they are answerable to imposition of an obligation. This notwithstanding the jurisprudential requirement that him. Their infringement, coupled with reliance on section 83, would thus justify the an obligation expressly imposed on the President, not Cabinet as a whole or organs of exercise of exclusive jurisdiction by this Court. Such an unbridled elastication of the State in general, is required to establish exclusive jurisdiction.38 scope of application of section 83 or 167(4)(e) would potentially marginalise the High Court and the Supreme Court of Appeal in all constitutional matters involving [28] For the purpose of deciding whether this Court has exclusive jurisdiction, it the President. must still be determined whether on its own, section 83(b) imposes on the President an obligation of the kind required by section 167(4)(e). He is said to have failed to [31] Section 83 is in truth very broad and potentially extends to just about all the “uphold, defend and respect the Constitution as the supreme law of the Republic”. obligations that rest, directly or indirectly, on the shoulders of the President. The This he allegedly did by not complying with the remedial action taken by the President is a constitutional being. In the Constitution the President exists, moves and Public Protector in terms of section 182(1)(c) thus violating his section 181(3) has his being. Virtually all his obligations are constitutional in nature because they obligation to assist and protect the Public Protector in order to guarantee her dignity have their origin, in some way, in the Constitution. An overly permissive reliance on and effectiveness. section 83 would thus be an ever-present guarantee of direct access to this Court under its exclusive jurisdiction. This does not accord with the overall scheme of the [29] If the failure by the President to comply with or enforce the remedial action Constitution. And certainly not with the purpose behind the provisions of taken by the Public Protector against a member of the Executive and fulfil his shared section 167(4)(e) read with section 172(2)(a) of the Constitution, properly construed. obligation to assist and protect the Public Protector so as to ensure her independence, dignity and effectiveness, amounts to a failure envisaged by section 167(4)(e), then

38 Women’s Legal Centre above n 16 at para 16; Von Abo above n 16 at para 33; and Doctors for Life above n 16 at para 17. 39 Like sections 41, 85, 92, 101, 165(4) and (5), 195, 198(d) and 206.

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[32] Section 167(4)(e) must be given a restrictive meaning.40 This will help arrest [34] I must emphasise that agent-specificity is primarily established by section 83. litigants’ understandable eagerness to have every matter involving the President heard The somewhat indirectly imposed obligation merely provides reinforcement for it. An by this Court, as a court of first and last instance. Our High Court, specialist courts of indirectly imposed obligation is one that is not derived from section 83(b), but arises equivalent status and Supreme Court of Appeal also deserve the opportunity to from the exercise of a constitutional power, like that conferred on the Public Protector grapple with constitutional matters involving the President so that they too may by the Constitution. It nails the obligation down on the President. When an contribute to the further development and enrichment of our constitutional obligation is imposed on the President specifically as a result of the exercise of a jurisprudence.41 constitutional power, for the purpose of meeting the section 167(4)(e) test, the indirectly imposed obligations cannot be dealt with as if the section 83(b) obligations [33] It bears repetition, that section 83(b) does impose an obligation on the do not exist. For, they impose all-encompassing obligations on the President in President in particular to “uphold, defend and respect the Constitution”. But to meet relation to the observance of the Constitution. In sum, section 83(b) lays the the section 167(4)(e) requirements, conduct by the President himself that tends to foundation which is most appropriately complemented by the imposition of an show that he personally failed to fulfil a constitutional obligation expressly imposed obligation through the exercise of a constitutional power. on him, must still be invoked, to establish the essential link between the more general section 83 obligations and a particular right or definite obligation. It needs to be [35] In this case, the requirement that the President failed to fulfil a constitutional emphasised though that the stringency of this requirement is significantly attenuated obligation that is expressly imposed on him is best satisfied by reliance on both by the applicability of section 83(b) which already imposes a President-specific sections 83(b) and 182(1)(c) of the Constitution. Very much in line with the narrow obligation. The additional constitutional obligation is required only for the purpose of or restrictive meaning to be given to section 167(4)(e) and mindful of the role that the narrowing down or sharpening the focus of the otherwise broad section 83(b) other courts must also play in the development of our constitutional law, section obligation, to a specific and easily identifiable obligation. The demand for 182(1)(c) does in this case, impose an actor˗specific obligation. Although section 182 President-specificity from the additional constitutional obligation is not as strong as it leaves it open to the Public Protector to investigate State functionaries in general, in is required to be where there is not already a more pointed President-specific this case, the essential link is established between this section and section 83 by the obligation as in section 83. A constitutionally-sourced and somewhat indirectly remedial action actually taken in terms of section 182(1)(c). In the exercise of that imposed obligation complements section 83 for the purpose of meeting the constitutional power, the Public Protector acted, not against the Executive or State requirement of section 167(4)(e). Although the additional constitutional obligation it organs in general, but against the President himself. Compliance was required only imposes on the President would, on its own, be incapable of establishing the required from the President. He was the subject of the investigation and is the primary specificity in relation to section 167(4)(e), it is not so in this case because of beneficiary of the non-security upgrades and thus the only one required to meet the section 83(b). demands of the constitutionally-sourced remedial action.

[36] There is a primary obligation, that flows directly from section 182(1)(c),

40 Women’s Legal Centre above n 16 at para 20; Von Abo above n 16 at para 34; and SARFU I above n 16 at imposed upon only the President to take specific steps in fulfilment of the remedial para 25. 41 SARFU I above n 16 at paras 26-31.

19 20 158 MOGOENG CJ MOGOENG CJ action. The President’s alleged disregard for the remedial action taken against him,42 which might justify the activation of this Court’s exclusive jurisdiction when does seem to amount to a breach of a constitutional obligation. And this provides the combined with section 83(b). vital connection section 83(b) needs to meet the section 167(4)(e) requirements. [40] I conclude that the EFF has made out a case that the President’s alleged failure [37] Although section 181(3) is relevant, it does not impose a President-specific to comply with the remedial action coupled with the failure to uphold the Constitution, obligation. It is relevant but applies to a wide range of potential actors. It was not and relate to constitutional obligations imposed specifically on him that are intimately could not have been primarily relied on by the Public Protector to impose any connected to the issue central to this application, which is the obligation for the constitutionally-sanctioned obligation on the President which could then create the President to comply with the remedial action. Conditions for the exercise of this crucial link with section 83(b). A combination of only these two sections would be a Court’s exclusive jurisdiction have been met. That does not, however, dispose of the far cry from what section 167(4)(e) requires to be applicable. The section 181(3) entire application for this Court to exercise its exclusive jurisdiction. obligation is a relatively distant and less effective add-on to the potent connection between sections 83(b) and 182(1)(c), necessary to unleash the exclusive jurisdiction. Exclusive jurisdiction in the application against the National Assembly

These remarks on section 181(3) apply with equal force to the National Assembly. [41] The National Assembly is also said to have breached its constitutional obligations imposed by sections 55(2) and 181(3) of the Constitution. Section 55(2) [38] This means that it is not open to any litigant who seeks redress for what provides: government has done or failed to do, merely to lump up section 83 with any other constitutional obligation that applies also to the President, as one of the many, so as to “The National Assembly must provide for mechanisms— bypass all other superior courts and come directly to this Court. Reliance on (a) to ensure that all executive organs of state in the national sphere of section 83 coupled with a section that provides a shared constitutional obligation will government are accountable to it; and (b) to maintain oversight of— not, without more, guarantee access to this Court in terms of section 167(4)(e) in a (i) the exercise of national executive authority, including the matter against the President. Section 83 does not have an overly liberal application implementation of legislation; and that would have this Court act readily in terms of its exclusive jurisdiction whenever it (ii) any organ of state.” is relied on. [42] Skinned to the bone, the contention here is that the National Assembly failed to [39] President-specific obligations like some of those set out in section 84 of the fulfil its constitutional obligation to hold the President accountable. Just to recap, Constitution or obligations imposed on the President through the exercise of powers what triggered the duty to hold the President accountable? The Public Protector expressly conferred by the Constitution on those who then exercise them against the furnished the National Assembly with her report which contained unfavourable President, on their own or coupled with those in section 83 respectively, are master findings and the remedial action taken against the President. The National Assembly keys to this Court’s exclusive jurisdiction in terms of section 167(4)(e). Remedial resolved to absolve the President of compliance with the remedial action instead of action taken against the President is one of those constitutional powers, the exercise of facilitating its enforcement as was expected by the Public Protector. It is on this basis

42 In terms of section 182(1)(c) of the Constitution. argued that it failed to fulfil its constitutional obligations to hold him accountable.

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Whether this is correct need not be established to conclude that this Court has indubitably presented to it for its “urgent attention. . .or. . .intervention”. That exclusive jurisdiction.43 constitutionally-sourced obligation is not shared, not even with the National Council of Provinces. It is exclusive to the National Assembly. When that report was [43] It is still necessary though, to determine whether the obligation allegedly received by the National Assembly, it effectively operationalised the House’s breached is of the kind contemplated in section 167(4)(e). Holding members of the obligations in terms of sections 42(3) and 55(2) of the Constitution. The presentation Executive accountable is indeed a constitutional obligation specifically imposed on of that report delivered a constitutionally-derived obligation to the National Assembly the National Assembly. This, however, is not all it takes to meet the requirements of for action. And it is alleged that it failed to fulfil these obligations in relation to the section 167(4)(e).44 We still need to drill deeper into this jurisdictional question. Is remedial action. holding the Executive accountable a primary and undefined obligation imposed on the National Assembly? Yes! For the Constitution neither gives details on how the [45] This Court, as the highest court in the land and the ultimate guardian of the National Assembly is to discharge the duty to hold the Executive accountable nor are Constitution and its values, has exclusive jurisdiction also in so far as it relates to the the mechanisms for doing so outlined or a hint given as to their nature and operation. National Assembly.45 The EFF has thus met the requirements for this Court to To determine whether the National Assembly has fulfilled or breached its obligations exercise its exclusive jurisdiction in the application against both the President and the will therefore entail a resolution of very crucial political issues. And it is an exercise National Assembly. that trenches sensitive areas of separation of powers. It could at times border on second-guessing the National Assembly’s constitutional power or discretion. This is a [46] Since the DA’s application is conditional upon the EFF’s application being powerful indication that this Court is entitled to exercise its exclusive jurisdiction in heard, the striking similarity between these applications, the extreme sensitivity and this matter. But that is not all. high political importance of the issues involved and the fact that these applications traverse essentially the same issues impels us, on interests of justice considerations, to [44] As in the case of the President, the National Assembly also has an hear the DA application as well. actor˗specific constitutional obligation imposed on it by section 182(1)(b) and (c) read with section 8(2)(b)(iii) of the Public Protector Act. Crucially, the Public Protector’s [47] Why do we have the office of the Public Protector? obligation “to report on that conduct” means to report primarily to the National Assembly, in terms of section 182(1)(b) of the Constitution read with section The purpose of the office of the Public Protector 8 of the Public Protector Act. She reported to the National Assembly for it to do [48] The history of the office of the Public Protector, and the evolution of its powers something about that report. Together, these sections bring home into the Chamber of over the years were dealt with in two judgments of the Supreme Court of Appeal.46 I the National Assembly the constitutional obligation to take appropriate remedial do not think that much benefit stands to be derived from rehashing that history here. action. Although remedial action was not taken against the National Assembly, the report in terms of section 182(1)(b) read with section 8(2)(b)(iii) of the Act was 45 Id.

46 South African Broadcasting Corporation Soc Ltd and Others v Democratic Alliance and Others [2015] 43 My Vote Counts above n 16 at paras 132-5. ZASCA 156; [2015] 4 All SA 719 (SCA) (SABC v DA) at para 31 and The Public Protector v Mail & Guardian 44 See Doctors for Life above n 16 at paras 25-6. Ltd and Others [2011] ZASCA 108; 2011 (4) SA 420 (SCA) at para 5.

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It suffices to say that a collation of some useful historical data on that office may be constitutional dispensation.51 In appreciation of the high sensitivity and importance of gleaned from those judgments. its role, regard being had to the kind of complaints, institutions and personalities likely to be investigated, as with other Chapter Nine institutions, the Constitution guarantees [49] Like other Chapter Nine institutions, the office of the Public Protector was the independence, impartiality, dignity and effectiveness of this institution as created to “strengthen constitutional democracy in the Republic”.47 To achieve this indispensable requirements for the proper execution of its mandate. The obligation to crucial objective, it is required to be independent and subject only to the Constitution keep alive these essential requirements for functionality and the necessary impact is and the law. It is demanded of it, as is the case with other sister institutions, to be placed on organs of State. And the Public Protector is one of those deserving of this impartial and to exercise the powers and functions vested in it without fear, favour or constitutionally-imposed assistance and protection. It is with this understanding that prejudice.48 I hasten to say that this would not ordinarily be required of an institution even the fact that the Public Protector was created, not by national legislation but by whose powers or decisions are by constitutional design always supposed to be the supreme law, to strengthen our constitutional democracy, that its role and powers ineffectual. Whether it is impartial or not would be irrelevant if the implementation of must be understood. the decisions it takes is at the mercy of those against whom they are made. It is also doubtful whether the fairly handsome budget, offices and staff all over the country and [51] The office of the Public Protector is a new institution – different from its the time and energy expended on investigations, findings and remedial actions taken, predecessors like the “Advocate General”, or the “Ombudsman” and only when we would ever make any sense if the Public Protector’s powers or decisions were meant became a constitutional democracy did it become the “Public Protector”. That to be inconsequential. The constitutional safeguards in section 181 would also be carefully selected nomenclature alone, speaks volumes of the role meant to be fulfilled meaningless if institutions purportedly established to strengthen our constitutional by the Public Protector. It is supposed to protect the public from any conduct in State democracy lacked even the remotest possibility to do so. affairs or in any sphere of government that could result in any impropriety or

49 50 (2) These institutions are independent, and subject only to the Constitution and the law, [50] We learn from the sum-total of sections 181 and 182 that the institution of and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice. the Public Protector is pivotal to the facilitation of good governance in our (3) Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions. (4) No person or organ of state may interfere with the functioning of these institutions. 47 Section 181(1) of the Constitution. (5) These institutions are accountable to the National Assembly, and must report on their 48 Section 181(2) of the Constitution. activities and the performance of their functions to the Assembly at least once a year.” 49 Section 181 of the Constitution provides: 50 Section 182 in relevant part provides: “(1) The following state institutions strengthen constitutional democracy in the Republic: “(1) The Public Protector has the power, as regulated by national legislation— (a) The Public Protector. (a) to investigate any conduct in state affairs, or in the public administration in (b) The South African Human Rights Commission. any sphere of government, that is alleged or suspected to be improper or to (c) The Commission for the Promotion and Protection of the Rights of Cultural, result in any impropriety or prejudice; Religious and Linguistic Communities. (b) to report on that conduct; and (d) The Commission for Gender Equality. (c) to take appropriate remedial action.” (e) The Auditor-General. 51 See also Certification of the Constitution of the Republic of South Africa, 1996 [1996] ZACC 26; 1996 (4) SA (f) The Electoral Commission. 744 (CC); 1996 (10) BCLR 1253 (CC) at para 161 (Certification case).

25 26 161 MOGOENG CJ MOGOENG CJ prejudice. And of course, the amendments52 to the Public Protector Act have since “[M]embers of the public aggrieved by the conduct of government officials should be added unlawful enrichment and corruption53 to the list. Among those to be able to lodge complaints with the Public Protector, who will investigate them and take appropriate remedial action.” 56 investigated by the Public Protector for alleged ethical breaches, are the President and

Members of the Executive at national and provincial levels.54 [54] In the execution of her investigative, reporting or remedial powers, she is not to

be inhibited, undermined or sabotaged. When all other essential requirements for the [52] The Public Protector is thus one of the most invaluable constitutional gifts to proper exercise of her power are met, she is to take appropriate remedial action. Our our nation in the fight against corruption, unlawful enrichment, prejudice and constitutional democracy can only be truly strengthened when: there is zero-tolerance impropriety in State affairs and for the betterment of good governance. The tentacles for the culture of impunity; the prospects of good governance are duly enhanced by of poverty run far, wide and deep in our nation. Litigation is prohibitively expensive enforced accountability; the observance of the rule of law; and respect for every and therefore not an easily exercisable constitutional option for an average citizen.55 aspect of our Constitution as the supreme law of the Republic are real. Within the For this reason, the fathers and mothers of our Constitution conceived of a way to give context of breathing life into the remedial powers of the Public Protector, she must even to the poor and marginalised a voice, and teeth that would bite corruption and have the resources and capacities necessary to effectively execute her mandate so that abuse excruciatingly. And that is the Public Protector. She is the embodiment of a she can indeed strengthen our constitutional democracy. biblical David, that the public is, who fights the most powerful and very well-resourced Goliath, that impropriety and corruption by government officials are. [55] Her investigative powers are not supposed to bow down to anybody, not even The Public Protector is one of the true crusaders and champions of anti˗corruption and at the door of the highest chambers of raw State power. The predicament though is clean governance. that mere allegations and investigation of improper or corrupt conduct against all,

especially powerful public office-bearers, are generally bound to attract a very [53] Hers are indeed very wide powers that leave no lever of government power unfriendly response. An unfavourable finding of unethical or corrupt conduct coupled above scrutiny, coincidental “embarrassment” and censure. This is a necessary with remedial action, will probably be strongly resisted in an attempt to repair or service because State resources belong to the public, as does State power. The soften the inescapable reputational damage. It is unlikely that unpleasant findings and repositories of these resources and power are to use them, on behalf and for the benefit a biting remedial action would be readily welcomed by those investigated. of the public. When this is suspected or known not to be so, then the public deserves protection and that protection has been constitutionally entrusted to the [56] If compliance with remedial action taken were optional, then very few culprits, Public Protector. This finds support in what this Court said in the Certification case: if any at all, would allow it to have any effect. And if it were, by design, never to

have a binding effect, then it is incomprehensible just how the Public Protector could ever be effective in what she does and be able to contribute to the strengthening of our constitutional democracy. The purpose of the office of the Public Protector is 52 See Public Protector Amendment Act 113 of 1998. 53 See section 6(4)(a)(iii) and (iv) of the Public Protector Act. therefore to help uproot prejudice, impropriety, abuse of power and corruption in State 54 See sections 1, 3 and 4 of the Executive Members’ Ethics Act read with section 96(1) of the Constitution. 55 See section 34 of the Constitution. 56 Certification case above n 51 at para 161.

27 28 162 MOGOENG CJ MOGOENG CJ affairs, all spheres of government and State-controlled institutions. The Public Protector is a critical and indeed indispensable factor in the facilitation of good [59] That most of the powers provided for by the Public Protector Act were already governance and keeping our constitutional democracy strong and vibrant. in place when the Constitution came into operation does not affect the constitutionally prescribed regulatory and supplementary role of the Act. The drafters of the The nature and meaning of “as regulated by” and “additional powers and functions” Constitution must have been aware of the provisions of the Act. This is apparent from

[57] Our Constitution is the supreme law of the Republic. It is not subject to any the words “as regulated” in section 182(1). If the legislation that was to regulate were law including national legislation unless otherwise provided by the Constitution not yet in place, words like “to be regulated” or similar expressions that point to the itself.57 The proposition that the force or significance of the investigative, reporting or future, would in all likelihood have been employed. Notably, the Public Protector Act 59 remedial powers of the Public Protector has somehow been watered down by the was amended no fewer than five times since the coming into operation of the provisions of the Public Protector Act, is irreconcilable with the supremacy of the Constitution. Furthermore, its long title, substituted in 1998, reads: “To provide for Constitution, which is the primary source of those powers. To put this argument58 to matters incidental to the office of the Public Protector as contemplated in the rest, once and for all, its very bases must be dealt with. The first basis is grounded on Constitution of the Republic of South Africa, 1996; and to provide for matters section 182(1) in so far as it provides that “the Public Protector has the power, as connected therewith”. This buries the proposition that Parliament has not yet enacted regulated by national legislation”. The second is section 182(2) which says that “the legislation that would regulate the constitutional powers of the Public Protector and Public Protector has the additional powers and functions prescribed by national provide for additional powers and functions. If it were to be amended again that legislation”. would, as with all other legislation, simply be for the purpose of improving on what the Public Protector Act has already done. [58] The constitutional powers of the Public Protector are to investigate irregularities and corrupt conduct or practices in all spheres of government, to report [60] “Regulate power” in this context and in terms of its ordinary grammatical on its investigations and take appropriate remedial action. Section 182(1) and (2) meaning connotes an enablement of the correct exercise of the constitutional power. recognises the pre-existing national legislation which does regulate these powers and The Constitution points to a functional aid that would simplify and provide details confer additional powers and functions on the Public Protector. This obviously means with respect to how the power in its different facets is to be exercised. For example, that since our Constitution is the supreme law, national legislation cannot have the the Public Protector Act provides somewhat elaborate guidelines on how the power to 60 effect of watering down or effectively nullifying the powers already conferred by the investigate, report and take remedial action is to be exercised. Constitution on the Public Protector. That national legislation is the Public Protector 59 Amended through Act 47 of 1997, Act 113 of 1998, Act 2 of 2000, Act 22 of 2003 and Act 12 of 2004. Act and would, like all other laws, be invalid if inconsistent with the Constitution. In 60 Some of the incidences of regulation are located in section 6(4). It regulates the powers of the any event section 182(1) alludes to national legislation that “regulates” the Public Protector, including how: she is to initiate an investigation; remedial action is to be taken or what form it may take; and information is to be shared with other law enforcement authorities to the extent that it may be Public Protector’s three-dimensional powers. necessary to do so. Section 6(9) regulates the time-frame within which a complaint may be validly referred to the Public Protector. Other elements of regulation are to be found in section 7. They relate to: the initiation of investigations; the procedure to be followed; the exclusion of some people from the Public Protector’s investigative proceedings; the right to be heard and to challenge evidence; the form in which evidence may be lodged; and the oath or affirmation and subpoenas. Section 7A regulates the entering of premises by the 57 See for example section 179(3) and (4) of the Constitution. Public Protector for the purpose of investigations. And section 8 regulates the power to submit the reports and 58 This is what the National Assembly argued. when to keep them confidential.

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Legal effect of remedial action

[61] Section 182(2) envisages “additional” but certainly not “substitutionary” [63] Section 182(1)(c) of the Constitution provides that the “Public Protector has the powers. It contemplates “additional powers and functions”. Giving the word power, as regulated by national legislation. . .to take appropriate remedial action”. “additional” its ordinary grammatical meaning, it means “extra” or “more” or “over This remedial action is also provided for in somewhat elaborate terms in section 6 of and above”. Nothing about “additional” in this context could ever be reasonably the Public Protector Act.62 What then is the legal status or effect of the totality of the understood to suggest the removal or limitation of the constitutional powers. A remedial powers vested in the Public Protector? reading of section 6 of the Public Protector Act bears this out. The Public Protector Act did not purport to nor could it validly denude the Public Protector of her [64] The power to take remedial action is primarily sourced from the supreme law constitutional powers. On the contrary and by way of example, section 6(4)(a)(iii) itself. And the powers and functions conferred on the Public Protector by the Act owe and (iv) adds expressly, unlawful enrichment or corruption to the powers and their very existence or significance to the Constitution. Just as roots do not owe their functions she already had. The power to investigate institutions in which the State is life to branches, so are the powers provided by national legislation incapable of the majority or controlling shareholder, undue delay, unfair and discourteous conduct eviscerating their constitutional forebears into operational obscurity. The contention 61 have also been added to the investigative powers of the Public Protector. that regard must only be had to the remedial powers of the Public Protector in the Act and that her powers in the Constitution have somehow been mortified or are subsumed [62] A useful regulatory framework for the fruitful exercise of the Public Protector’s under the Public Protector Act, lacks merit. To uphold it would have the same effect powers does, as promised, exist. And by reference in the Constitution and subsequent as “the tail wagging the dog”.63 statutory amendments, more powers and functions were indeed added to those already listed in section 182(1) of the Constitution. The remedial action that could be resorted [65] Complaints are lodged with the Public Protector to cure incidents of to under different circumstances, is also detailed in the Public Protector Act, for impropriety, prejudice, unlawful enrichment or corruption in government circles. This greater clarity and effectiveness. Likewise, the circumstances and manner in which is done not only to observe the constitutional values and principles necessary to ensure reports on the investigations are to be presented, and to whom, all reinforce the that the “efficient, economic and effective use of resources [is] promoted”,64 that harmonious correlation between the relevant provisions of the supreme law and the accountability finds expression, but also that high standards of professional ethics are Public Protector Act. promoted and maintained.65 To achieve this requires a difference-making and responsive remedial action. Besides, one cannot really talk about remedial action unless a remedy in the true sense is provided to address a complaint in a meaningful way.

61 All the powers set out in section 6 accord and are harmoniously coexistent with section 182. Powers or functions have thus either been added or regulated. Mediation, conciliation, negotiation and giving advice to a complainant regarding how best to secure an appropriate remedy; bringing what appears to be an offence to the 62 See the summarised version of section 6 in n 60 and 61 of this judgment. attention of the prosecuting authority; referring a matter to an appropriate body or authority or making suitable recommendations to remedy the complaint; and resolving any complaint by “any other means that may be 63 SABC v DA above n 46 at para 43. expedient in the circumstances”, are all regulatory and additional powers. And they are consistent with and flow 64 Section 195(1)(b) of the Constitution. from the constitutional power “to take appropriate remedial action” and provision for “additional powers and functions”. 65 Section 195(1)(a) of the Constitution.

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[66] The language, context and purpose of sections 181 and 182 of the Constitution so few have the means to enforce their rights through the courts, it is essential that on give reliable pointers to the legal status or effect of the Public Protector’s power to those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated.” 69 take remedial action. That the Public Protector is required to be independent and subject only to the Constitution and the law, to be impartial and exercise her powers [68] Taking appropriate remedial action is much more significant than making a and perform her functions without fear, favour or prejudice,66 is quite telling. And the mere endeavour to address complaints as the most the Public Protector could do in fact that her investigative and remedial powers target even those in the throne-room of terms of the Interim Constitution.70 It connotes providing a proper, fitting, suitable executive raw power, is just as revealing. That the Constitution requires the and effective remedy for whatever complaint and against whomsoever the Public Protector to be effective and identifies the need for her to be assisted and Public Protector is called upon to investigate.71 However sensitive, embarrassing and protected, to create a climate conducive to independence, impartiality, dignity and far˗reaching the implications of her report and findings, she is constitutionally effectiveness,67 shows just how potentially intrusive her investigative powers are and empowered to take action that has that effect, if it is the best attempt at curing the root how deep the remedial powers are expected to cut. cause of the complaint. Remedial action must therefore be suitable and effective.72

For it to be effective in addressing the investigated complaint, it often has to be [67] The obligation to assist and protect the Public Protector so as to ensure her binding. In SABC v DA the Supreme Court of Appeal correctly observed: dignity and effectiveness is relevant to the enforcement of her remedial action.68 The

Public Protector would arguably have no dignity and be ineffective if her directives “The Public Protector cannot realise the constitutional purpose of her office if other could be ignored willy-nilly. The power to take remedial action that is so organs of State may second-guess her findings and ignore her recommendations. inconsequential that anybody, against whom it is taken, is free to ignore or Section 182(1)(c) must accordingly be taken to mean what it says. The second-guess, is irreconcilable with the need for an independent, impartial and Public Protector may take remedial action herself. She may determine the remedy dignified Public Protector and the possibility to effectively strengthen our and direct the implementation. It follows that the language, history and purpose of section 182(1)(c) make it clear that the Constitution intends for the Public Protector to constitutional democracy. The words “take appropriate remedial action” do point to a have the power to provide an effective remedy for State misconduct, which includes realistic expectation that binding and enforceable remedial steps might frequently be the power to determine the remedy and direct its implementation.”73 the route open to the Public Protector to take. “Take appropriate remedial action” and “effectiveness”, are operative words essential for the fulfilment of the

Public Protector’s constitutional mandate. Admittedly in a different context, this 69 Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC) at para 69. Court said in Fose: 70 Section 112(1)(b) of the interim Constitution Act 200 of 1993 (interim Constitution) provided that it was competent for the Public Protector after investigation: “An appropriate remedy must mean an effective remedy, for without effective “To endeavour, in his or her sole discretion, to resolve any dispute or rectify any act or omission by— (i) mediation, conciliation or negotiation; remedies for breach, the values underlying and the rights entrenched in the (ii) advising, where necessary, any complainant regarding appropriate remedies; or Constitution cannot properly be upheld or enhanced. Particularly in a country where (iii) any other means that may be expedient in the circumstances.” 66 Section 181(2) of the Constitution. 71 Fose above n 69 at para 69. 67 Section 181(3) of the Constitution. 72 Id. 68 Id. 73 See SABC v DA note 46 above at para 52.

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[69] But, what legal effect the appropriate remedial action has in a particular case, (a) The primary source of the power to take appropriate remedial action depends on the nature of the issues under investigation and the findings made. As is the supreme law itself, whereas the Public Protector Act is but a common sense and section 6 of the Public Protector Act suggest, mediation, secondary source; conciliation or negotiation may at times be the way to go. Advice considered (b) It is exercisable only against those that she is constitutionally and appropriate to secure a suitable remedy might, occasionally, be the only real option. statutorily empowered to investigate; And so might recommending litigation or a referral of the matter to the relevant public (c) Implicit in the words “take action” is that the Public Protector is authority or any other suitable recommendation, as the case might be. The legal effect herself empowered to decide on and determine the appropriate of these remedial measures may simply be that those to whom they are directed are to remedial measure. And “action” presupposes, obviously where consider them properly, with due regard to their nature, context and language, to appropriate, concrete or meaningful steps. Nothing in these words determine what course to follow. suggests that she necessarily has to leave the exercise of the power to take remedial action to other institutions or that it is power that is by [70] It is however inconsistent with the language, context and purpose of its nature of no consequence; sections 181 and 182 of the Constitution to conclude that the Public Protector enjoys (d) She has the power to determine the appropriate remedy and prescribe the power to make only recommendations that may be disregarded provided there is a the manner of its implementation;76 rational basis for doing so.74 Every complaint requires a practical or effective remedy (e) “Appropriate” means nothing less than effective, suitable, proper or that is in sync with its own peculiarities and merits. It needs to be restated that, it is fitting to redress or undo the prejudice, impropriety, unlawful the nature of the issue under investigation, the findings made and the particular kind enrichment or corruption, in a particular case; of remedial action taken, based on the demands of the time, that would determine the (f) Only when it is appropriate and practicable to effectively remedy or legal effect it has on the person, body or institution it is addressed to.75 undo the complaint would a legally binding remedial action be taken; (g) Also informed by the appropriateness of the remedial measure to deal [71] In sum, the Public Protector’s power to take appropriate remedial action is properly with the subject-matter of investigation, and in line with the wide but certainly not unfettered. Moreover, the remedial action is always open to findings made would a non-binding recommendation be made or judicial scrutiny. It is also not inflexible in its application, but situational. What measure be taken; and remedial action to take in a particular case, will be informed by the subject-matter of (h) Whether a particular action taken or measure employed by the investigation and the type of findings made. Of cardinal significance about the nature, Public Protector in terms of her constitutionally allocated remedial exercise and legal effect of the remedial power is the following: power is binding or not or what its legal effect is, would be a matter of interpretation aided by context, nature and language.

74 Democratic Alliance v South African Broadcasting Corporation Limited and Others [2014] ZAWCHC 161; 2015 (1) SA 551 (WCC) (DA v SABC) at paras 72-4. 75 A referral of the possible offence to the National Prosecuting Authority for possible investigation in terms of section 6(4)(c)(i) of the Public Protector Act might for example not be acted upon because it was investigated already. 76 SABC v DA above n 46 at para 52.

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May remedial action be ignored? [74] This is so, because our constitutional order hinges also on the rule of law. No

[72] It has been suggested, initially by both the President and the decision grounded on the Constitution or law may be disregarded without recourse to 80 National Assembly, that since the Public Protector does not enjoy the same status as a a court of law. To do otherwise would “amount to a licence to self-help”. Whether Judicial Officer, the remedial action she takes cannot have a binding effect. The the Public Protector’s decisions amount to administrative action or not, the disregard President has since changed his position but it appears, only in relation to this case, for remedial action by those adversely affected by it, amounts to taking the law into not necessarily as a general proposition. By implication, whomsoever she takes their own hands and is illegal. No binding and constitutionally or statutorily sourced remedial action against, may justifiably and in law, disregard that remedy, either out decision may be disregarded willy-nilly. It has legal consequences and must be of hand or after own investigation. This very much accords with the High Court complied with or acted upon. To achieve the opposite outcome lawfully, an order of decision in DA v SABC to the effect that: court would have to be obtained. This was aptly summed up by Cameron J in Kirland as follows: “For these reasons I have come to the conclusion that the findings of the Public Protector are not binding and enforceable. However, when an organ of state rejects “The fundamental notion – that official conduct that is vulnerable to challenge may those findings or the remedial action, that decision itself must not be irrational.”77 have legal consequences and may not be ignored until properly set aside – springs deeply from the rule of law. The courts alone, and not public officials, are the arbiters of legality. As Khampepe J stated in Welkom. . .‘(t)he rule of law obliges an It is, of course, not clear from this conclusion who is supposed to make a judgement organ of state to use the correct legal process.’ For a public official to ignore call whether the decision to reject the findings or remedial action is itself irrational. A irregular administrative action on the basis that it is a nullity amounts to self-help. closer reading of this statement seems to suggest that it is the person against whom the And it invites a vortex of uncertainty, unpredictability and irrationality.”81 remedial action was made who may reject it by reason of its perceived irrationality. (Footnotes omitted.) And that conclusion is not only worrisome but also at odds with the rule of law.78 [75] The rule of law requires that no power be exercised unless it is sanctioned by [73] The judgment of the Supreme Court of Appeal is correct in recognising that the law and no decision or step sanctioned by law may be ignored based purely on a Public Protector’s remedial action might at times have a binding effect.79 When contrary view we hold. It is not open to any of us to pick and choose which of the remedial action is binding, compliance is not optional, whatever reservations the otherwise effectual consequences of the exercise of constitutional or statutory power affected party might have about its fairness, appropriateness or lawfulness. For this will be disregarded and which given heed to. Our foundational value of the rule of reason, the remedial action taken against those under investigation cannot be ignored law demands of us, as a law-abiding people, to obey decisions made by those clothed without any legal consequences. with the legal authority to make them or else approach courts of law to set them aside, so we may validly escape their binding force.

77 DA v SABC above n 74 at para 74. 78 Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) at para 20 and Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and 80 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd [2014] ZACC 6; 2014 (3) SA Others [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) at para 58. 481 (CC); 2014 (5) BCLR 547 (CC) (Kirland) at para 89. 79 SABC v DA above n 46 at para 53. 81 Id at para 103.

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Remedial action taken against the President detail earlier,82 entitled to inquire into the correctness of those aspects of the report he

[76] The remedial action that was taken against the President has a binding effect. disagreed with. That inquiry could well lead to a conclusion different from that of the This flows from the fact that the cattle kraal, chicken run, swimming pool, visitors’ Public Protector. And such a contrary outcome is legally permissible. The question centre and the amphitheatre were identified by the Public Protector as non-security would then be how the President responds to the Public Protector’s report and the features for which the President had to reimburse the State. He was directed to first remedial action taken, in the light of other reports sanctioned or commissioned by determine, with the assistance of the SAPS and National Treasury, the reasonable him. costs expended on those installations and then determine a reasonable percentage of the costs so determined, that he is to pay. The President was required to provide the [79] Incidentally, the President mandated the Minister of Police to investigate and National Assembly with his comments and the actions he was to take on the report on—

Public Protector’s report within 14 days of receipt of that report and to reprimand the “whether the President is liable for any contribution in respect of the security Ministers involved, for the misappropriation of State resources under their watch. upgrades having regard to the legislation, past practices, culture and findings contained in the respective reports.” [77] Concrete and specific steps were therefore to be taken by the President. Barring the need to ascertain and challenge the correctness of the report, it was not [80] The National Assembly also commissioned the Minister’s report. The upshot really necessary to investigate whether the specified non-security features were in fact was a finding that elements of the upgrades identified by the Public Protector as non-security features. Features bearing no relationship to the President’s security had non-security features, were in fact security features for which the President was not to already been identified. The President was enjoined to take definite steps to determine pay. Consequently the Minister of Police “exonerated” the President from the already how much he was supposed to pay for the listed non-security features. If any determined liability. Although the remedial action authorised the President’s investigation were to be embarked upon, to determine whether some installations were involvement of the SAPS and arguably the Minister, it was not for the purpose of non-security in nature, it was to be in relation to those additional to the list of five for verifying the correctness of the remedial action taken against him by the which some payment was certainly required. The reporting to the National Assembly Public Protector. It was primarily to help him determine what other non-security and the reprimand of the affected Ministers also required no further investigation. features could be added to the list of five, and then to assist in the determination of the reasonable monetary value of those upgrades in collaboration with [78] This does not mean that there is an absolute bar to what some see as a National Treasury.83 But again, the President was at large to commission any suitably “parallel” investigative process regardless of its intended end-use. For it cannot be qualified Minister to conduct that investigation into the correctness of the correct that upon receipt of the Public Protector’s report with its unfavourable findings Public Protector’s findings. and remedial measures, all the President was in law entitled to do was comply even if he had reason to doubt its correctness. That mechanical response is irreconcilable 82 See [74] to [77] above. with logic and the rights exercisable by anybody adversely affected by any unpleasant 83 Again, this must be understood within the context of the President’s entitlement to challenge the Public Protector’s report in a court of law, obviously even after some investigation into the correctness of the determination. The President was, like all of us and for the reasons set out in some outcome, which could be foundational to the challenge. But we know that a court challenge was never launched and this is the basis on which the purported reliance on the outcome of the Minister’s investigation is approached.

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Public Protector so as to ensure her independence, impartiality, dignity and [81] The end-results of the two streams of investigative processes were mutually effectiveness by complying with her remedial action. He might have been following destructive. The President should then have decided whether to comply with the wrong legal advice and therefore acting in good faith.86 But that does not detract from Public Protector’s remedial action or not. If not, then much more than his mere the illegality of his conduct regard being had to its inconsistency with his contentment with the correctness of his own report was called for. A branch of constitutional obligations in terms of sections 182(1)(c) and 181(3) read with 83(b). government vested with the authority to resolve disputes by the application of the law84 should have been approached. And that is the Judiciary.85 Only after a court of National Assembly’s obligation to hold the Executive accountable law had set aside the findings and remedial action taken by the Public Protector would [84] The Public Protector submitted her report, including findings and the remedial it have been open to the President to disregard the Public Protector’s report. His action taken against the President, to the National Assembly. For the purpose of this difficulty here is that, on the papers before us, he did not challenge the report through case it matters not whether it was submitted directly or indirectly through the a judicial process. He appears to have been content with the apparent vindication of President. The reality is that it was at her behest that it reached the his position by the Minister’s favourable recommendations and considered himself to National Assembly for a purpose. That purpose was to ensure that the President is have been lawfully absolved of liability. held accountable and his compliance with the remedial action taken, is enabled.

[82] Emboldened by the Minister’s conclusion, and a subsequent resolution by the [85] The National Assembly’s attitude is that it was not required to act on or National Assembly to the same effect, the President neither paid for the non-security facilitate compliance with the report since the Public Protector cannot prescribe to it installations nor reprimanded the Ministers involved in the Nkandla project. This what to do or what not to do. For this reason, so it says, it took steps in terms of non-compliance persisted until these applications were launched and the matter was section 42(3)87 of the Constitution after receipt of the report. Those steps were set down for hearing. And this is where and how the Public Protector’s remedial intended to ascertain the correctness of the conclusion reached and the remedial action action was second˗guessed in a manner that is not sanctioned by the rule of law. taken by the Public Protector, since more was required of the National Assembly than Absent a court challenge to the Public Protector’s report, all the President was merely rubber˗stamp her report. Broadly speaking, this is correct because “scrutinise” required to do was to comply. Arguably, he did, but only with the directive to report means subject to scrutiny. And “scrutiny” implies a careful and thorough examination to the National Assembly. or a penetrating or searching reflection. The Public Protector’s report relates to executive action or conduct that had to be subjected to scrutiny, so understood. [83] The President thus failed to uphold, defend and respect the Constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the Public Protector in terms of her 86 See for example the High Court decision in DA v SABC above n 74 at paras 73-4 that held that remedial constitutional powers. The second respect in which he failed relates to his shared action is not binding and may be disregarded on rational grounds. section 181(3) obligations. He was duty-bound to, but did not, assist and protect the 87 Section 42(3) of the Constitution reads: “The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national 84 See section 34 of the Constitution. forum for public consideration of issues, by passing legislation and by scrutinizing and 85 See section 165 of the Constitution. overseeing executive action.”

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[86] Besides, even findings by and an order of a court of law may themselves be the term of office of the Chief Justice,89 the constitutional validity of the proceedings subjected to further interrogation or research, at the instance of the affected party, that of the Judicial Service Commission90 and of rules and processes of Parliament.91 The may culminate in the conclusion that the court was wrong. But when the conclusion is National Assembly and the President were in like manner entitled to challenge the reached, the question is: how then is it acted upon? This would explain the reviews of findings and remedial action of the Public Protector. It would be incorrect to suggest tribunal or Magistrates’ Court decisions and appeals from all our courts all the way up that a mere investigation by the National Assembly into the findings of the to the apex Court. In principle there is nothing wrong with wondering whether any Public Protector is impermissible on the basis that it trumps the findings of the unpleasant finding or outcome is correct and deploying all the resources at one’s Public Protector. Rhetorically, on what would they then base their decision to command to test its correctness. challenge the report? Certainly not an ill-considered viewpoint or a knee-jerk reaction. [87] The National Assembly was indeed entitled to seek to satisfy itself about the correctness of the Public Protector’s findings and remedial action before it could hold [89] There is a need to touch on separation of powers. the President accountable in terms of its sections 42(3) and 55(2) obligations. These sections impose responsibilities so important that the National Assembly would be [90] The Executive led by the President and Parliament bear very important failing in its duty if it were to blindly or unquestioningly implement every important responsibilities and each play a crucial role in the affairs of our country. They deserve report that comes its way from any institution. Both sections 42(3) and 55(2) do not the space to discharge their constitutional obligations unimpeded by the Judiciary, define the strictures within which the National Assembly is to operate in its endeavour save where the Constitution otherwise permits. This accords with the dictates of to fulfil its obligations. It has been given the leeway to determine how best to carry Constitutional Principle VI, which is one of the principles that guided our Constitution out its constitutional mandate. Additionally, section 182(1)(b) read with section drafting process in these terms: 8(2)(b)(iii) does not state how exactly the National Assembly is to “attend urgently” to or “intervene” in relation to the Public Protector’s report. How to go about this is all “There shall be a separation of powers between the legislature, the executive and judiciary, with appropriate checks and balances to ensure accountability, left to the discretion of the National Assembly but obviously in a way that does not responsiveness and openness.”92 undermine or trump the mandate of the Public Protector.

[91] And this was elaborated on in the Certification case as follows: [88] People and bodies with a material interest in a matter have been routinely allowed by our courts to challenge the constitutional validity of a law or conduct of the President, constitutional institutions or Parliament. The appointment of the 89 Justice Alliance of South Africa v President of Republic of South Africa and Others, Freedom Under Law v National Director of Public Prosecutions88 is one such example, as is the extension of President of Republic of South Africa and Others, Centre for Applied Legal Studies and Another v President of Republic of South Africa and Others [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR 1017 (CC). 90 Helen Suzman Foundation v Judicial Service Commission and Others [2014] ZAWCHC 136; 2015 (2) SA 498 (WCC); [2014] 4 All SA 395 (WCC). 91 Mazibuko v Sisulu and Another [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) and Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National Assembly [2012] ZACC 27; 2012 (6) SA 588 (CC); 2013 (1) BCLR 14 (CC). 88 Democratic Alliance v President of South Africa and Others [2012] ZACC 24; 2013 (1) SA 248 (CC); 2012 (12) BCLR 1297 (CC). 92 See Schedule 4 to the interim Constitution above n 70 and the Certification case above n 51 in Annexure 2.

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“The principle of separation of powers, on the one hand, recognises the functional and which mandate to give them, for the purpose of holding the Executive accountable independence of branches of government. On the other hand, the principle of checks and fulfilling its oversight role of the Executive or organs of State in general. The and balances focuses on the desirability of ensuring that the constitutional order, as a mechanics of how to go about fulfilling these constitutional obligations is a totality, prevents the branches of government from usurping power from one another. discretionary matter best left to the National Assembly. Ours is a much broader and In this sense it anticipates the necessary or unavoidable intrusion of one branch on the terrain of another. No constitutional scheme can reflect a complete separation of less intrusive role. And that is to determine whether what the National Assembly did powers: the scheme is always one of partial separation.”93 does in substance and in reality amount to fulfilment of its constitutional obligations. That is the sum-total of the constitutionally permissible judicial enquiry to be [92] The Judiciary is but one of the three branches of government. It does not have embarked upon. And these are some of the “vital limits on judicial authority and the unlimited powers and must always be sensitive to the need to refrain from undue Constitution’s design to leave certain matters to other branches of government”.95 interference with the functional independence of other branches of government. It Courts should not interfere in the processes of other branches of government unless was with this in mind that this Court noted: otherwise authorised by the Constitution.96 It is therefore not for this Court to prescribe to Parliament what structures or measures to establish or employ “Courts must be conscious of the vital limits on judicial authority and the respectively in order to fulfil responsibilities primarily entrusted to it. Courts ought Constitution’s design to leave certain matters to other branches of government. They not to blink at the thought of asserting their authority, whenever it is constitutionally too must observe the constitutional limits of their authority. This means that the judiciary should not interfere in the processes of other branches of government unless permissible to do so, irrespective of the issues or who is involved. At the same time, to do so is mandated by the Constitution. and mindful of the vital strictures of their powers, they must be on high alert against But under our constitutional democracy, the Constitution is the supreme law. It is impermissible encroachment on the powers of the other arms of government. binding on all branches of government and no less on Parliament.. . .Parliament ‘must

act in accordance with, and within the limits of, the Constitution’, and the supremacy [94] That said, the National Assembly chose not to challenge the Public Protector’s of the Constitution requires that ‘the obligations imposed by it must be fulfilled’. report on the basis of the findings made by the Minister of Police and its last Courts are required by the Constitution ‘to ensure that all branches of government act

within the law’ and fulfil their constitutional obligations. This Court ‘has been given Ad Hoc Committee. Instead it purported to effectively set aside her findings and

the responsibility of being the ultimate guardian of the Constitution and its values’. remedial action, thus usurping the authority vested only in the Judiciary. Having Section 167(4)(e), in particular, entrusts this Court with the power to ensure that chosen the President to ensure government by the people under the Constitution, and Parliament fulfils its constitutional obligations.. . .It would therefore require clear the Public Protector Act which, read with the Constitution, provides for the language of the Constitution to deprive this Court of its jurisdiction to enforce the submission of the Public Protector’s report to the National Assembly,97 it had another Constitution.”94 (Footnotes omitted.) equally profound obligation to fulfil. And that was to scrutinise the President’s

conduct as demanded by section 42(3) and reported to it by the Public Protector in [93] It falls outside the parameters of judicial authority to prescribe to the National Assembly how to scrutinise executive action, what mechanisms to establish

95 Id at para 37. 96 Id. 93 Certification case above n 51 at para 109. 97 See sections 42(3) and 55(2) of the Constitution and section 182(1)(b) of the Constitution read with section 8 94 Doctors for Life above n 16 at paras 37 and 38 in relevant part. of the Public Protector Act.

45 46 171 MOGOENG CJ MOGOENG CJ terms of section 182(1)(b) of the Constitution read with section 8(2)(b)(i), (ii) and (iii) [96] Mechanisms that were established by the National Assembly,102 flowing from of the Public Protector Act. Section 8(2) provides in relevant part: the Minister’s report, may have accorded with its power to scrutinise before it could hold accountable. As will appear later, what will always be important is what the “(b) The Public Protector shall, at any time, submit a report to the National Assembly does in consequence of those interventions. The Public Protector, National Assembly on the findings of a particular investigation if— acting in terms of section 182 of the Constitution read with sections 1, 3 and 4 of the (i) he or she deems it necessary; Executive Members’ Ethics Act, had already investigated the alleged impropriety or (ii) he or she deems it in the public interest; (iii) it requires the urgent attention of, or an intervention by, the National relevant executive action and concluded, as she was empowered to do, that the Assembly; President be held liable for specific elements of the security upgrades. (iv) he or she is requested to do so by the Speaker of the National Assembly; or [97] On a proper construction of its constitutional obligations, the (v) he or she is requested to do so by the Chairperson of the National National Assembly was duty-bound to hold the President accountable by facilitating Council of Provinces.” and ensuring compliance with the decision of the Public Protector. The exception

would be where the findings and remedial action are challenged and set aside by a [95] The Public Protector could not have submitted her report to the court, which was of course not done in this case. Like the President, the National Assembly merely because she deemed it necessary or in the public interest to National Assembly may, relying for example on the High Court decision in do so. In all likelihood she also did not submit it just because either the Speaker of the DA v SABC,103 have been genuinely led to believe that it was entitled to second-guess National Assembly or Chairperson of the National Council of Provinces asked her to the remedial action through its resolution absolving the President of liability. But, that do so. The high importance, sensitivity and potentially far-reaching implications of still does not affect the unlawfulness of its preferred course of action. the report, considering that the Head of State and the Head of the Executive is himself implicated, point but only to one conclusion. That report was a high priority matter 98 [98] Second-guessing the findings and remedial action does not lie in the mere fact that required the urgent attention of or an intervention by the National Assembly. It of the exculpatory reports of the Minister of Police and the last Ad Hoc Committee.104 ought therefore to have triggered into operation the National Assembly’s obligation to 99 In principle, there may have been nothing wrong with those “parallel” processes. But, scrutinise and oversee executive action and to hold the President accountable, as a 100 there was everything wrong with the National Assembly stepping into the shoes of the member of the Executive. Also implicated was its obligation to give urgent Public Protector, by passing a resolution that purported effectively to nullify the attention to the report, its findings and remedial action taken and intervene 101 findings made and remedial action taken by the Public Protector and replacing them appropriately in that matter. with its own findings and “remedial action”. This, the rule of law is dead against. It

is another way of taking the law into one’s hands and thus constitutes self-help.

98 Section 8(2)(b)(iii) of the Public Protector Act. 102 In terms of section 55(2) read with section 42(3) of the Constitution. 99 Section 42(3) of the Constitution. 103 DA v SABC above n 74. 100 Section 55(2) of the Constitution. 104 This is the last Ad Hoc Committee that was set up to examine the report of the Minister of Police and make 101 See section 182(1)(b) and (c) of the Constitution read with section 8(2)(b)(iii) of the Public Protector Act. recommendations on it.

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declaratory order should be granted to the effect that the President failed to fulfil his [99] By passing that resolution the National Assembly effectively flouted its constitutional obligations in terms of sections 83, 96 and 181(3) of the Constitution obligations.105 Neither the President nor the National Assembly was entitled to and violated his oath of office.107 Also that the National Assembly breached its respond to the binding remedial action taken by the Public Protector as if it is of no constitutional obligations in terms of sections 55(2) and 182(1)(c) of the Constitution. force or effect or has been set aside through a proper judicial process. The ineluctable These are the orders cumulatively prayed for by both the EFF and the DA. conclusion is therefore, that the National Assembly’s resolution based on the Minister’s findings exonerating the President from liability is inconsistent with the [102] This Court’s power to decide and make orders in constitutional matters is set Constitution and unlawful. out in section 172 of the Constitution. Section 172(1):

Remedy “When deciding a constitutional matter within its power, a court— (a) must declare that any law or conduct that is inconsistent with the [100] All parties, barring the National Assembly and the Minister of Police, appear to Constitution is invalid to the extent of its inconsistency; and be essentially in agreement on the order that would ensure compliance with the (b) may make any order that is just and equitable, including— Public Protector’s remedial action. The President’s ultimate draft order, following on (i) an order limiting the retrospective effect of the declaration of the one circulated eight days before the hearing,106 is virtually on all fours with the invalidity; and (ii) an order suspending the declaration of invalidity for any period remedial action taken by the Public Protector. The effect of this draft and the oral and on any conditions, to allow the competent authority to submissions by his counsel is that he accepts that the remedial action taken against correct the defect.” him is binding and that National Treasury is to determine the reasonable costs, of the non-security upgrades, on the basis of which to determine a reasonable percentage of [103] Declaring law or conduct inconsistent with the Constitution and invalid is those costs that he must pay. The President is also willing to reprimand the Ministers plainly an obligatory power vested in this Court as borne out by the word “must”. in line with the remedial action. In response to that draft’s predecessor, the Unlike the discretionary power to make a declaratory order in terms of section 38 of Public Protector only expressed the desire to have the nature and ambit of her powers the Constitution, this Court has no choice but to make a declaratory order where and the legal effect of her remedial action addressed if, as it turned out, no agreement section 172(1)(a) applies.108 Section 172(1)(a) impels this Court, to pronounce on the was secured on the basis of the President’s draft order and oral submissions were inconsistency and invalidity of, in this case, the President’s conduct and that of the made. National Assembly. This we do routinely whenever any law or conduct is held to be inconsistent with the Constitution. It is not reserved for special cases of constitutional [101] The only real disagreement amongst the parties about the draft order relates to invalidity. Consistent with this constitutional injunction, an order will thus be made the unqualified binding effect of the Public Protector’s remedial action and whether a that the President’s failure to comply with the remedial action taken against him by the Public Protector is inconsistent with his obligations to uphold, defend and respect

105 In terms of sections 42(3), 181(3), 182(1)(c) and 55(2) of the Constitution read with section 3(5) of the Executive Members’ Ethics Act and section 182(1)(b) of the Constitution and section (8)(2)(b)(iii) of the 107 This was mentioned for the first time by the EFF in its response to the President’s draft order. Public Protector Act. 108 Rail Commuters Action Group v Transnet Ltd t/a Metrorail [2004] ZACC 20; 2005 (2) SA 359 (CC); 2005 106 The President filed a draft order with the Constitutional Court on 02 February 2016. (4) BCLR 301 (CC) at paras 106-8.

49 50 173 MOGOENG CJ MOGOENG CJ the Constitution as the supreme law of the Republic;109 to comply with the remedial 5. The National Treasury must determine the reasonable costs of those action taken by the Public Protector;110 and the duty to assist and protect the office of measures implemented by the Department of Public Works at the the Public Protector to ensure its independence, impartiality, dignity and President’s Nkandla homestead that do not relate to security, namely the effectiveness.111 visitors’ centre, the amphitheatre, the cattle kraal, the chicken run and the swimming pool only. [104] Similarly, the failure by the National Assembly to hold the President 6. The National Treasury must determine a reasonable percentage of the accountable by ensuring that he complies with the remedial action taken against him, costs of those measures which ought to be paid personally by the is inconsistent with its obligations to scrutinise and oversee executive action112 and to President. maintain oversight of the exercise of executive powers by the President.113 And in 7. The National Treasury must report back to this Court on the outcome of particular, to give urgent attention to or intervene by facilitating his compliance with its determination within 60 days of the date of this order. the remedial action.114 8. The President must personally pay the amount determined by the National Treasury in terms of paragraphs 5 and 6 above within 45 days Order of this Court’s signification of its approval of the report.

[105] In the result the following order is made: 9. The President must reprimand the Ministers involved pursuant to 1. This Court has exclusive jurisdiction to hear the application by the paragraph 11.1.3 of the Public Protector’s remedial action. Economic Freedom Fighters. 10. The resolution passed by the National Assembly absolving the President 2. The Democratic Alliance’s application for direct access is granted. from compliance with the remedial action taken by the Public Protector 3. The remedial action taken by the Public Protector against President in terms of section 182(1)(c) of the Constitution is inconsistent with Jacob Gedleyihlekisa Zuma in terms of section 182(1)(c) of the sections 42(3), 55(2)(a) and (b) and 181(3) of the Constitution, is invalid Constitution is binding. and is set aside. 4. The failure by the President to comply with the remedial action taken 11. The President, the Minister of Police and the National Assembly must against him, by the Public Protector in her report of 19 March 2014, is pay costs of the applications including the costs of two counsel. inconsistent with section 83(b) of the Constitution read with sections 181(3) and 182(1)(c) of the Constitution and is invalid.

109 Section 83(b) of the Constitution. 110 Section 182(1)(c) of the Constitution. 111 Section 181(3) of the Constitution. 112 Section 42(3) of the Constitution. 113 Section 55(2)(a) and (b) of the Constitution. 114 Section 8(2) of the Public Protector Act.

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For the Economic Freedom Fighters: W Trengove SC D Mpofu SC T Ngcukaitobi J Mitchell N Muvangua Instructed by Godla and Partners Attorneys

For the Democratic Alliance: A Katz SC J De Waal J Bleazard T Mayosi Instructed by Minde Schapiro & Smith Inc

For the Speaker of the National L G Nkosi-Thomas SC Assembly: G D Ngcangisa M Musandiwa Instructed by the State Attorney

For the President: J J Gauntlett SC K J Kemp SC M du Plessis S Mahabeer S Pudifin-Jones Instructed by the State Attorney

For the Minister of Police: W R Mokhari SC H Slingers M Kgatla Instructed by the State Attorney

For the Public Protector: G Marcus SC M Stubbs Instructed by Adams & Adams

For Corruption Watch: C Steinberg L Kelly Instructed by Webber Wentzel

175