The Daily Maverick recently published an opinion piece by Professor Pierre de Vos of the University of Cape Town in which he laments what he calls the “Mpofu-fication of politics and ethics” and even of universities.
As examples of this “Mpofu-fication”, he points to two recent review applications against decisions taken by the councils of the University of Stellenbosch and the University of Cape Town. He describes these applications as examples of lawfare, which he appears to define as litigation by “litigants with deep pockets” aimed at reviewing and setting aside “decisions with a strong political, social or ethical dimension” taken by state and public institutions. One purpose of lawfare, he says, is “to embroil an opponent in long and costly litigation and to delay the implementation of a decision”. The implication is that persons or organisations that engage in “lawfare” are abusing legal process – he claims, for example, that such litigants have “access to enormous resources”, and labels these particular two applications as “mischief”.
This is surprising in light of the fact that he co-authored a chapter in a recent book entitled Queer Lawfare in Africa: Legal Strategies in Contexts of LGBTIQ+ Criminalisation and Politicisation (edited by Adrian Jjuuko, Siri Gloppen, Alan Msosa and Frans Viljoen). In that book, lawfare is defined very differently, as “long-term battles over heated social and political issues, where actors on different sides employ strategies using rights, law and courts as tools and arenas”. This definition explicitly avoids viewing lawfare as an abuse of law and litigation for political ends, and avoids judging the moral correctness of the goal of the litigation. Against this background, the book explores the ways in which both “pro- and anti-queer” activists and states have used legislation and litigation to advance their goals. This is of course particularly important in societies where majority governments have introduced legislation that criminalises same-sex relationships.
In contrast, Professor de Vos here creates the impression that, like the tactics of Dali Mpofu SC and some of his clients, these two applications are sinister or otherwise objectionable and therefore ‘bad’, and are unusual or at least somehow different from ‘good’ review applications. This is a startling proposition. As Professor de Vos surely knows, an application to review the decision or action of any state or public institution is always available to anyone able to demonstrate that their rights are infringed by the decision or action, and it is for a court to decide whether the grounds of review raised are valid.
The right to administrative justice, including the right to fair procedure and reasonable action on the basis of a consideration of all relevant factors, is enshrined in the Constitution for good reasons. These include the danger, in a complex and diverse society, of majority decisions infringing the rights of any individuals or groups, including vulnerable minorities. Similarly, the Constitutional Court has created what is called a legality review, grounded in the Constitution, which enables our courts to test the rationality of such majority decisions. This is a fundamental aspect of a constitutional state. The sociologist Bruno Latour has described this power of courts, developed over centuries, as a defence against “tyrannical power”.
The question is not whether a particular application is morally right or wrong, and therefore ‘good’ or ‘bad’. A review application does not have to accord with the moral position of the majority or a decision-maker. In any event, how could we possibly provide a principled version of such a moral test for review applications? Good and reasonable people may well disagree in good faith about moral questions, and they are not for courts to decide.
A good example of this is the application against UCT, in which the applicant is Professor Adam Mendelsohn of the university’s Department of Historical Studies. Professor de Vos omits to explain that Professor Mendelsohn’s founding affidavit, which is a matter of public record, shows that the application concerns the right to academic freedom, and the public good of the financial sustainability of UCT. It is not about the question of whether the Council’s decisions are morally right or wrong. The application does, however, demonstrate that people may in good faith disagree about the content of the right to academic freedom and the importance of the financial sustainability of a public university, and how these can best be achieved. It is simply wrong – mischievous, in fact – to describe such an application as mischievous.
Professor de Vos appears to object to these two applications particularly because, in his view, the litigants have “lost the argument”, presumably in university councils where a majority voted to take a certain decision. This is not what one would expect from a professor of constitutional law in South Africa. After all, the very purpose of constitutionalism is to provide a check on the exercise of power by majorities. Minorities cannot always rely on majorities to respect and protect their rights, or even to refrain from infringing their rights. The criminalisation of same-sex relationships by majority governments (the subject of the book Queer Lawfare in Africa to which Professor de Vos is a contributor) is a good example. Such relationships are punishable by death in a number of countries, including Iran, Saudi Arabia, Yemen and some states in northern Nigeria. In the absence of constitutional checks on majority power, there is no redress for vulnerable minorities, for whom their sexual orientation becomes a matter of life and death.
A poignant example closer to home is the extraordinarily courageous and successful litigation by the Treatment Action Campaign. The TAC had “lost the argument” against the majority government, which had refused to extend its limited provision of anti retroviral medication to vulnerable minorities to prevent mother-to-child transmission of HIV during birth, again a matter of life and death. With its celebrated victory, the TAC achieved an extension of this policy by means of litigation, or lawfare. Professor de Vos complains about the supposed “deep pockets” of the applicants, and their “access to enormous resources”, but this applies equally to the TAC. Dr Mandisa Mbali of UCT (in South African AIDS Activism and Global Health Politics) has written the definitive account of the TAC’s rights-based strategies and litigation, and she indicates the extensive international support network of the TAC during that time, which presumably included funding. One trusts that Professor de Vos’s reflexive, and unreflective, reference to “deep pockets” is not an invocation of the disgraceful antisemitic trope of “Jewish money”.
It is certainly unfortunate that Dali Mpofu SC and some of his clients exploit the space available in the South African legal system to engage in often desperate legal manoeuvres to pursue far-fetched claims or to delay legal proceedings. It is however important to remember that this space was created by the extensive constitutional rights to access to court and free and fair trials. These rights were considered profoundly important by the majority of the parties to the South African constitutional negotiations. This was to be expected, given the shameful denial of those rights to the majority of South Africans by the apartheid regime, often with tragic consequences. It is inevitable that these rights create opportunities for abuse, but that is something to be addressed by our courts, using the powers over their own process, also granted by the Constitution. It is unacceptable to apply the smear of “Mpofu-fication” to perfectly ordinary and legitimate review applications, which in no way resemble the approach of Dali Mpofu SC and his clients.
The position of Professor de Vos resonates with the increasingly insistent view that the Constitution and the Constitutional Court are anti-poor and thwarting the efforts of the majority government to bring about radical economic transformation. On this version, human rights and constitutionalism are mechanisms to protect powerful and wealthy minorities and their property, and to deny the rights of the majority, especially the most impoverished communities. This is wrong-headed, as Professor de Vos would surely agree.
In his recent book Capture in the Court, Dan Mafora argues that the contradictions of this position could be expected to result in the spontaneous combustion of lawyers who hold that view, and warns against cultivating negative public sentiment towards the judiciary and undermining its legitimacy, with predictably dire consequences. In The Land is Ours, Tembeka Ngcukaitobi SC has written about his research that demonstrates that notions of human rights and constitutionalism were developed by black South African lawyers decades before the constitutional negotiations, and he has shown how these ideas are grounded in anti-colonial struggles.
Against this background, it is difficult to understand the labelling of review applications enabled by constitutional provisions, and statutes enacted pursuant to those provisions, as “mischief”, as Professor de Vos does. It is a dangerous notion that review applications are only permissible when they accord with the views and moral positions of a majority, however constituted. It is a view that should be discouraged, especially by commentators with constitutional law expertise.
Elsa van Huyssteen holds a PhD in Sociology from the University of the Witwatersrand, and an LLB from the University of Cape Town. She is currently studying history in the Department of Historical Studies at UCT.
