Letter from Professor Anton Fagan to his colleagues in the UCT Law Faculty:

Dear Hugh, Halton, Pierre and Richard

Your letter in Friday's Mail and Guardian prompted me to read Ms Zille's original comments. Having done so, I must confess to finding your letter to be both mistaken and ill-judged. For what it's worth, here are my reasons for so concluding.

Your letter is mistaken, primarily, because it confuses the institutional with the personal. When it is alleged that a person's membership of an institution, or affiliation with an organisation, creates a conflict of interests, it is no response to point out that he is a person of virtue or that his record shows him to be impartial and fair-handed. So to respond is, in fact, to make what philosophers call a ‘category error'.

It is the same with judicial independence. If it is so that the judiciary's independence (from the executive) is undermined by the appointment of senior prosecutors to the bench, then one cannot hope to justify such an appointment by extolling the appointee's integrity, or by pointing to his record of prosecuting government corruption. That is why the principle against such appointments would be violated no less by the appointment of Billy Downer as judge, than it was by that of Braam Lategan (or, by analogy, L C Steyn).The same reasoning applies to the Human Rights Commission and Ms Love's appointment thereto. Your letter does not dispute the following of Ms Zille's allegations of fact:

(1) that Ms Love recently resigned from the ANC's National Executive Committee and

(2) that ANC Secretary-General Gwede Mantashe announced that Ms Love had been strategically deployed to the HRC by the ANC.

Given this institutional background, how could anyone - with a straight face - argue that Ms Love's appointment to the HRC does not violate the principle against conflicts of interest and threaten the independence of the HRC? And again, remember that Ms Love's many virtues are irrelevant here - just as Mr Downer's would be to his appointment as a judge.

A second error is really just the flip-side of the first. Your letter assumes that, if one criticises an appointment on the kinds of institutional grounds described above, one by implication also criticises the person of the appointee: thus that Ms Zille is said to have done ‘a grave injustice' to Ms Love. This, with respect, is a non sequitur. I can without self-contradiction argue that Mr Downer should not be elevated to the bench, because it would compromise the judiciary's independence, while maintaining that he is a man of great integrity who, but for his decision to pursue a career as a prosecutor, would have made a perfect judge.

A possible third error in your letter is its apparent assumption that, if one criticises an appointment on institutional grounds, one also criticises whatever institutions the appointee may have worked for in the past: thus that Ms Zille is said to have ‘undermined the LRC'. This, it seems to me, is to draw a non sequitur from a non sequitur. If I oppose Mr Downer's appointment to the bench, must I also be taken to be attacking the NPA?

Why do I also believe your letter to be ill-judged? Because, given the standing of the signatories, it is bound to weaken a simple yet important principle, namely that persons with close ties to the governing party (and it does not get much closer than recently having been a member of the party's national executive committee) should not be appointed to statutory or constitutional bodies obliged, in part, to adjudicate conflicts between the governing party and others. If it were acceptable to appoint Ms Love to the HRC, in violation of this principle, why not also other members of the ANC's NEC to the Supreme Court of Appeal, or the Constitutional Court, or the much-discussed Media Tribunal?

In sum: on the facts stated by Ms Zille, and not controverted by your letter, Ms Love's appointment to the HRC was an instance of cadre deployment. If cadre deployment is a bad thing, then so was Ms Love's appointment, regardless of her personal strengths. It follows that Ms Love's appointment could not be defended, as your letter attempts to do, by singing her praises - but only by showing that cadre deployment is not a bad thing after all. Your letter, thankfully, does not go so far as to argue that cadre deployment is an acceptable practice. But it is likely to encourage those who believe that it is.

Ms Love, I am sure, is both good and worthy. But so is the principle against cadre deployment. It is a pity that your letter did not manage to explain the former without detracting from the latter.

Kind regards

Anton

Reply by Professor Pierre de Vos to Anton Fagan:

Dear Anton

Thank you for your email. Obviously I do not agree with its contents and the reasoning employed. First, it purports to present a logical argument in the abstract, completely without reference to the context - as if logic can be applied in a free floating space above and beyond politics.

But logic is only of use within a specific context (at least from my philosophical perspective). The context is that Premier Helen Zille was upset because the SAHRC had made a finding against the DA City on the Makhaza toilets issue and called the finding a smear campaign and part of a political hit squad against her and the DA. She did not explain why the SAHRC decision or motivation was wrong but latched onto the fact that some of the SAHRC used to be ANC members to try and rubbish the report saying:

"One just has to read the extraordinarily biased and factually inaccurate report of the HRC on the Makhaza toilet saga to understand the agenda. The report's analysis and conclusions are impossible to explain rationally."

This she did because the Water Services Act sets out minimum standards for toilets. The minimum standard for basic sanitation services which a municipality is constitutionally and legally required to provide is defined in the regulations accompanying the Act as:

"the provision of appropriate health and hygiene education; and a toilet which is safe, reliable, environmentally sound, easy to keep clean, provides privacy and protection against the weather, well ventilated, keeps smells to a minimum and prevents the entry and exit of flies and other disease-carrying pests."

She thus played the man and not the ball to get out of a very difficult corner that she has painted herself into.

Second, it seems to me you conflate (or confuse) criticism about the appointment of someone to a position as a judge or a Human Rights Commissioner on the one hand (which is perfectly legitimate) and a personal attack on the individual (instead on his or her decision and the reasons for the decision) after the appointment.

Zille did not launch her attack against Love and other "ANC deployees" when they were appointed (which would have been fine). In fact the DA supported Love's appointment. Instead she launched her attack when the SAHRC made a finding that was going to severely embarrass Helen Zille herself because she shot her mouth off before she had the facts and the best way to do so was to undermine respect for the independence of one of the Chapter 9 institutions.

That is unlawful (probably a criminal offense in terms of section 18 of the HRC Act) and undermines respect for the independence of the SAHRC.

Third, it seems to me you mistakenly equate the constitutional position of the HRC with the judiciary. While the HRC is independent, the nature of its independence differs from that of the judiciary as it is accountable to Parliament in terms of the Constitution (something that would be unthinkable for the judiciary). The SAHRC can only make recommendations which are never binding. It is also required to work with Parliament and must submit reports to it. One can therefore not equate the position of a judge with that of a member of the SAHRC.

Fourth, I think you are mistaken that the integrity and independence of an individual are irrelevant factors when judging whether their appointment of that individual undermines the integrity and independence of the institution to which the individual is appointed. Institutions are, once again, not abstract, free floating space ships run by computers, but rather are institutions run by human beings.

Trust in those institutions depends on whether the individuals who staff them are trusted and can be viewed as independent and able to act without fear, favour or prejudice. I am reminded of the words of apartheid era Justice Minister Oswald Pirow who complained that:

"The problem with these judges is that once appointed, they think they are there on merit and they start thinking for themselves."

Many judges during the apartheid era who might have been thought to be close to the Nats, turned out to be independent minded and did not bring the independence of the judiciary into question. We argue that Love is the same kind of appointment (a bit like Albie Sachs who was an ANC member when appointed to the CC but - say of him what you like - was the judge who most often ruled against the ANC government of the day after his appointment).

Your view seems to be terribly formalistic and conflates form and substance. We focused on substance. You wish to focus on form. These are two kinds of approaches. You claim yours is logical and ours is not - but that position in itself is an ideological choice rather than an issue of logic.

Which one of these two approaches one chooses will obviously depend on one's temperament and one's political and philosophical commitments. I suspect that means we will have to agree to disagree because the disagreement is not about formal logical, but about more profound issues of temperament and ideology.

Kind Regards

Pierre

Reply from Anton Fagan to Pierre de Vos (and others):

Dear Hugh, Pierre and Richard

As I said in my previous e-mail, a frank exchange of views often sharpens one's insights. Your responses to my letter certainly have improved my understanding of the issues raised by Janet Love's appointment to the HRC.

As I see it, the primary issue in contention between us is whether Helen Zille's criticism of Janet Love's appointment to the HRC was justified.

In essence, Ms Zille's criticism was as follows:

(1) It is unacceptable for a person to be appointed to the HRC (or any other chapter 9 institution) as a form of cadre deployment by the ruling party.

(2) Ms Love was appointed to the HRC as a form of cadre deployment by the ruling party.

(3) Therefore it was unacceptable for Ms Love to be appointed to the HRC.

This is a valid syllogism (i.e. if the premises are true, so, necessarily, is the conclusion). To show that Ms Zille's criticism was unfounded, you would thus have to show that premise (1) or premise (2) is false.

Let us start with the second premise: namely that Ms Love was appointed to the HRC as a form of cadre deployment by the ruling party. Let us call this Ms Zille's ‘factual premise'. What evidence did Ms Zille provide for it? First, the fact that Ms Love was until recently a member of the ANC's NEC. Secondly, Gwede Mantashe's statement (in September) that Ms Love had resigned from the ANC's NEC so as to be ‘deployed' to a 'stragetic' state institution. These two facts are surely sufficient to establish that Ms Love's appointment was an instance of cadre deployment (why should we not take the Secretary General of the ANC at his word?).

Your letter in Friday's M&G made no attempt to contradict either of the two facts upon which Ms Zille's factual premise was based. Instead, it provided evidence of Ms Love's ‘commitment to human rights' and her willingness to ‘promote human rights by litigating against and criticising government . . . whichever party is in power'. But even if true, this is irrelevant to the question whether Ms Love's appointment was an instance of cadre deployment.

That depends on the intentions with which Ms Love was appointed (and Mr Mantashe's statement provides clear evidence as to those), and not on her suitability for the position. An analogy makes this clear: if I appoint my nephew to a position in an organisation I run, because he is my nephew and because I wish to extend my family's influence, I am guilty of nepotism - and I remain guilty of it even if my nephew in fact is suitable for the job, and even if he is unlikely to do the family any favours.

Your subsequent correspondence takes matters regarding Ms Zille's factual premise no further. As in the original letter, no attempt is made to contradict the facts upon which Ms Zille bases that premise. Instead, reference is once again made to Ms Love's qualities and character - but, as explained, those are irrelevant to the question whether Ms Love was cadre-deployed by the ANC, as this depends on the reasons for her appointment rather than her suitability for the post.

That leaves the first premise. It states a moral or political principle: that it is unacceptable for a person to be appointed to the HRC (or any chapter 9 institution) as a form of cadre deployment by the ruling party. Ms Zille assumes this to be a sound principle. On the face of it, she is right. So the onus is on those who would reject this principle to show why it is mistaken.

Your letter in the M&G and some of your subsequent correspondence suggest a possible qualification to this principle: namely, it is unacceptable for a person to be appointed to the HRC as a form of cadre deployment by the ruling party - unless the person is in fact suitable for the job (because the person's past record demonstrates her commitment to human rights, her impartiality, and so on).

But that cannot be right. If it were, one would also have to reject the following principle against nepotism: ‘It is unacceptable to appoint someone to public office because he is your relation and you intend to extend your family's influence', in favour of a principle subject to the following qualification: ‘unless he is properly qualified for the job'.

And one would have to qualify the following principle (which most of us accept): ‘it is wrong to fire a shot at someone with the intention of killing him out of pure malice', with the following rider (which most of us would reject): ‘unless you are such a poor shot that (even though you believe otherwise) you inevitably will miss him'.

In other words, the fact that a person, appointed as a form of cadre deployment, happens to be suitably qualified for the job does not mean that the principle against cadre deployment is not violated by the appointment. It just means that we do not have to add to the unacceptable state of affairs of a cadre deployment the further unacceptable state of affairs of having an unsuitably-qualified person in the job. It means, in other words, that we have one wrong rather than two, but does not mean that we have no wrong at all.

In relation to the primary issue in contention between us, the challenge therefore remains for you to show why, in the argument which I understand Ms Zille to have been making, either the first premise (the principle against cadre deployment) or the second premise (Ms Zille's factual premise) is false.

It has been suggested to me that Ms Zille's criticism can be faulted on the basis of an improper motive: it is said that she only made the argument because she wished to discredit the HRC's findings in relation to the ‘toilet saga' and Hangberg. But this suggestion commits an error related to the so-called ‘genetic fallacy'. The validity of an argument is independent of the reasons for which it is made. Thus that it is no counter to an argument against slavery that it is made by someone who stands to profit from slavery's abolition.

So much for the primary issue in dispute. There is also, however, a secondary issue in contention between us, namely whether Helen Zille's criticism of Janet Love's appointment to the HRC implies a criticism of Janet Love herself. Nothing in the premises and conclusion of Ms Zille's argument, as it is set out above, does that. For they are wholly compatible with the following propositions: Ms Love is a wonderful person; Ms Love is a person of great integrity; Ms Love will be wholly impartial and unbiased in her work for the HRC.

That is not to say that there may not be other reasons - other than the alleged incompatibility with Ms Zille's argument - for doubting the truth of one or more of these propositions. In fact - and here I am going beyond the issues raised in my original e-mail - I believe that there may well be reasons to doubt the truth of the third proposition, namely that Ms Love will be wholly impartial and unbiased in her work for the HRC.

Ms Love is a long-standing and loyal member of the ANC - her record (including her recent membership of the party's NEC) attests to that, as does Mr Mantashe's description of her appointment as a 'strategic' ‘deployment'. Your letter in the M&G provided evidence that Ms Love's loyalty to the ANC would not cause her to prioritise its interests over those of the victims of human-rights abuses. I.e., when having to choose between the ANC and the poor, the downtrodden and the weak, Ms Love will choose the latter. Your letter did not, however, provide evidence that Ms Love's loyalty to the ANC would not cause her to prioritise its interests over those of other political parties.

Why does this matter? Because, for example, it is possible that the HRC may have to choose between two investigations, each of which will serve the victims of human-rights abuse equally well, but each of which will have a different impact on the interests of the ANC and its political competitors.

Given Ms Love's association with and commitment to the ANC, can we really assume that, in such a situation, she might not be swayed (perhaps even without admitting it to herself) to favour the investigation least risky to the ANC? And let me emphasise, I am talking about a situation where the choice of alternative makes no difference to the victims of human-rights abuse - but may make a difference to the ANC and its political adversaries.

It seems to me that Ms Love's long-standing membership of the ANC, her recent position on its NEC, and Mr Mantashe's statement, create at least a reasonable doubt as to her impartiality in such a situation. Your letter, since it deals only with Ms Love's response to conflicts of interest between the ANC and the victims of human-rights abuse, and not with her response in the kind of situation which I have described, does nothing to diminish this doubt.

Perhaps, therefore, Ms Love is not quite as suitable as you have assumed.

Kind regards

Anton

Reply from Pierre de Vos to Anton Fagan:

Dear Anton

Thanks for your reply. I am beginning to enjoy this exchange. If I may, let me see if I can take the matter further by engaging with the first part of your three pronged "syllogism" to explain why I think you are mistaken.

Your first proposition is based on unexamined or unspoken assumptions that are problematic for at least two reasons.

First, it is based on a specific understanding of the term "cadre deployment" that is at best contested. You use the term as if we all know exactly what it means and as if it has the same meaning for all participants in the debate (and for all deployees) at all times in all contexts. This is clearly not correct.

Cadre deployment can and does mean many different things for different people in different contexts - depending on their ideological and emotional commitments and depending on the personal attributes and characteristics of the person involved and that person's view about their relationship to the party or organisation which deployed them.

It can mean that a loyal and disciplined member of a political party is "deployed" to a position, is expected to follow the instructions of that political party in the exercise of his or her duties, and is willing and determined to follow that instructions or to act first and foremost in the interest of that party or organisation.

It seems as if you and the Premier base your argument on this definition of the term and that you assume that is the only meaning of the term. But it could also mean something completely different. It could mean that a member of a political party or organisation is preferred for a position by that organisation or party because that person broadly shares the vision and ideological commitments of the political party or organisation doing the deployment, but that the person is expected by the party or organisation to fulfil his or her job as best he or she could within the parameters of the Constitution and the relevant legislation.

Or it could mean that a person is deployed by a party or organisation with the expectation that the person will follow the instructions of the party or organisation, but this expectation is not shared by the deployee who nevertheless believes that he or she has a duty first and foremost to the Constitution and the law.

I suspect we agree that the first kind of cadre deployment is undesirable. Our letter was, however, based on a different assumption, namely that the deployment of Love was the second or third kind of cadre deployment. Hence the focus on the personal attributes and characteristics of Love, which we argued would make her a deployee who would NOT follow the dictates of the organisation she belongs to.

As we have a different understanding of cadre deployment which assumes that the personal qualities and attributes of a deployee fundamentally changes the nature of an appointment, the logic of your syllogism therefore does not hold for us (or at least not for me personally). Who gets deployed and what kind of person he or she is, changes the nature of the deployment and transforms what could have been a problematic appointment into one that is benign or even laudable.

The DA also endorsed this view (before Zille had to cast doubt on the HRC because of its adverse finding against the DA) as it supported the appointment of Love. You may disagree with this view and the assumptions underlying it, but that does not make our position illogical - it merely demonstrate that we are not making the same assumptions. The letter set out in quite substantial detail why the "deployee" in our opinion would not subject herself to the first kind of deployment and was therefore perfectly logical - if one endorsed the assumptions about what we mean by deployment underlying it.

Second, underlying your argument seem to be a second assumption, namely that there are (at least) two types of candidates who present themselves for appointment. The one kind is a member of the ruling party who - no matter her personal characteristics or attributes - can never be independent because at the very least she shares the ideology and emotional commitments of the ruling party and will - in some cases - make decisions that reflect this commitment to the ruling party (to the detriment of other interests).

This makes the appointment problematic no matter what the personal characteristics of the deployee. The second kind of candidate is independent as she is not a member of the governing party and cannot be deployed by anyone. (In this view, there are obviously also other candidates who are associated closely with a particular institution or organisation -Mpshe, Simelane etc - which would make their appointments always be undesirable.)

But I believe this view is too simplistic and far too formalistic - focusing on terms of art like deployment, instead of on substance. Every candidate has ideological and emotional commitments - even if he or she is not formally a member of a political party or other organisation - and can therefore not be said to be absolutely independent - ever.

If the DA supports Jeremy Gauntlet, say, for appointment to the bench, it is surely at least partly because the DA believes that Gauntlet shares the values of the DA (or at least that his values are closer to that of the DA than other competing candidates). The assumption that a candidate will be more independent (whatever that may mean) because he or she is not formally a member of a political party is therefore highly problematic and in my view cannot be sustained.

It makes assumptions about ANC members which it does not make about other individuals. It assumes ANC members - as a matter of principle - will not be independent, while it assumes (until the contrary is proven) that other candidates will be independent because they do not carry the label of ANC deployee.

This seems illogical and wrong to me. In that sense candidates who share the values of big business, opponents of a transformative constitution or candidates who believe that s 39(2) of the Constitution should be interpreted narrowly to insulate the common law from interference by meddling judges are all - not in form but in SUBSTANCE - potential deployees in the sense that they broadly support the ideological views of certain constituencies and will be supported by those constituencies on the basis that if appointed they will fulfil the (often unspoken) mandate of the constituency.

The power group or constituency might not always be formally as coherent as the ANC, but this does not change the principle at stake. Cadre deployment is therefore an empty and formalistic idea and to focus on cadre deployment by the ANC as the particular problem that must always be opposed as a matter of abstract principle - regardless of the personal ideological commitments, integrity and track record of the candidate is to confuse form and substance.

Every appointment is either good or bad based on who the person is, what they believe and how they act. For example, Pius Langa was an ANC member and was intimately involved in the ANC before his appointment to the CC. At least on some definitions of "cadre deployment" he could be viewed as an ANC deployee to the CC. Jeremy Gauntlet is not officially associated with any party, so in your view is not a deployee.

But to argue that Gauntlett should have been appointed to the CC above Langa because the latter is an ANC cadre deployed to the CC while the former is not, seems to me (given my own view of what makes a good judge in post apartheid South Africa) quite absurd.

Hence, from the perspective I set out above, the personal attributes and characteristics and the track record of a person is far, far, more important in deciding whether one thinks an appointment is good or bad than whether the person was formally deployed by the ANC. We may well differ on whether an appointment is good or bad as we may have different ideological commitments, but this has little to do with cadre deployment and everything to do with the political views and personal attributes of the candidate and of ourselves.

In this sense, I wonder whether you and Zille do not oppose ANC cadre deployment at least in part because you do not share - broadly speaking - the ideological commitments and vision of the ANC.  But this position might be awkward to sustain, so it is then better to formulate an abstract rule (infested with many hidden assumptions that reveal ideological commitments) to provide a "logical" and supposedly "neutral and objective" justification for what is in essence a political choice. (I might of course be wrong about your political views and ideological commitments, so feel free to correct me.)

My broader point is that the abstract principle as represented by the syllogism provided by you is itself based on ideological considerations. It cannot be any other way because logic is a tool that operates not in a vacuum but in a political space. It is not an end in itself, but a means to an end. You might say that this is wrong. I would shoot back that your argument that it is wrong is itself an ideologic one. My competing argument is likewise an ideological one. That at least is my view.

In this view, Ms Love's personal attributes and characteristics are therefore of fundamental importance and whether she belonged to the ANC or was deployed by it, was rather irrelevant. Of course the position would be different if Love had not resigned from the ANC NEC (just as Langa's position would have been untenable had he been in an ANC leadership position while on the CC).

Pierre

PS: For a rather radical critique of your kind of deployment of logic and reason see Pierre Schlag's "The Enchantment of Reason"

Source: www.constitutionallyspeaking.co.za

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