READERS may be aware of false claims made by Naspers media group, News24 stating incorrectly that philanthropist Bill Gates would be testing a vaccine against Covid-19 on Africans. The story turned out to be fake news gleaned from twitter and has resulted in a series of embarrassing retractions and apologies by the media group.
A column by ‘public editor’ George Claasen stands alongside news editor Adriaan Basson’s open acknowledgement: “There is a massive difference between testing kits to help the government determine how many citizens are Covid-19 positive, and testing new vaccines on Africans. This should have been picked up and corrected in the editing process.”
“We messed up and for that we apologised to you, our readers, and to the Gates Foundation” says Basson.
Claasen’s narrative on the other hand, is exceedingly bizarre considering his own admission: “When I was a young cub reporter, ethical accountability by the media was a rare phenomenon. Press codes mostly did not exist and a watchdog such as the Organisation of Newsombudsmen and Standards Editors (ONO), the international body today guarding over journalism standards, did not exist and was only established in the 1980s”.
One should note here that any comparison with the activities of other media houses during the struggle period referred to by Claasen would quickly assess that neither Grassroots nor South Press for that matter, had similar lapses of judgement. Whether the same can be said of the Weekly Mail and its treatment of Winnie Mandela is another story.
Although other media players acted recklessly under various media restrictions and were perhaps, victims of embedded journalism, the old Argus Group showed more backbone than Naspers did in allowing open criticism of the regime. Criticism notably missing from papers such as Die Burger during the same period.
Both Basson and Claasen should therefore be reminded that they speak on behalf of a discredited news organisation that continues to lie about its role during apartheid, was found guilty of gross violations of human rights by the commission of inquiry into apartheid, and today stands accused of waging a campaign against the TRC and also of going so far as to corruptly influence a 2010 decision by our labour legal system, in order to avoid culpability.
The retraction this week follows the passing of Conrad Sidego, ‘the only person to have experienced discrimination’ at Naspers during apartheid, according to the company, a company which itself is a marvel of reinvention.
This follows several well-publicised scandals involving former senior Media24 journalists accused of sexually abusing boys while they held senior positions at the company,
The public retractions by News24 editors, welcome are they may be in some quarters, are thus one of the rare moments when the Naspers corporation has found pause to consider the deleterious effects of its lack of journalistic integrity.
Surely time to demand why no retraction of the many previous ‘errors of fact’ introduced by the apartheid lie factory?
Why no public acknowledgements of complicity in the dirty tricks operation waged against anti-apartheid newsrooms and following similar revelations made by Paul Erasmus during the Timol and Aggett inquests?
Could it be that in all these cases, none of the victims turned out to be billionaires?
NEWS that former apartheid financier and bankster, Johann Rupert was ‘donating’ R1 billion to small business relief via the President’s so-called Solidarity fund, raised the ire of many critics who argued that the donation was in fact a loan.
The controversy recalls similar prevarication issued by the Ruperts, especially in regard to the family’s collaboration with the apartheid regime.
Moneyweb soon followed suit, by questioning the publicity stunt, but then decided to fudge the matter somewhat. The devil as they say was in the detail, — what at first appeared to be a massive credit might yet turn out to be a very large debit:
As investment analyst David Morobe explained, the money was in fact a donation to the fund but the “assistance will be in the form of a loan, which is repayable over a period of five years.”
“For the first year, applicants will not have to pay interest or instalments, but thereafter they will be expected to do so.”
The Citizen similarly varied its piece on the subject, but carried word of opposition party the EFF and its open disgust for the manner in which the crisis was being used “entrap” small and medium enterprises in debt. The party even went as far as to accuse the billionaire of trying to be a “loan shark”.
Meanwhile the only person to have ever experienced discrimination at Naspers/Media24 headquarters during apartheid, according to the company, has died. Former Stellenbosch Mayor Conrad Sidego passed away this week bringing a close to a chapter in which he was the sole person to have been affected by apartheid. The Rupert’s iron grip over our legal system, itself designed to give the first round of state capture a massive advantage, has all but stifled legal action in the aftermath of apartheid.
It should strike readers as incredibly odd (or just a tad convenient), that nobody in the media world has found pause to consider that the Rupert’s various investments in the media and capture of the justice system, came about as a result of apartheid — the late Anton Rupert’s close business relationship to Nico Diederichs and Owen Horward, both stanch Nationalists and close confidants of the late PW Botha.
IN 2009 the ANC under Jacob Zuma, exercised its influence to place then director of the Resolve Group, Michael Halton Cheadle on the bench, at the behest of a cartel active in South Africa’s media.
Cheadle, who was at the time, in partnership with Max Sisulu and media group, Kagiso, proceeded to preside over a matter involving the media, a complaint of unfair discrimination effecting his own client and business partners. The former professor of law at UCT, admits as much in a 2011 report to Cape Law Society but denies any culpability. The admission that the respondent in the labour matter, Media24 was Cheadle’s client drew absolutely no censure from the law society governing the legal profession, after a complaint was referred to the body by the Judicial Service Commission (JSC).
The JSC paradoxically claims it lacks jurisdiction to hear complaints effecting acting judges.
In the report, Cheadle denies having any business relationship involving the media and justified his directorship and shareholding in Resolve on the basis of a decision handed down in Bernert v Absa Bank. In that matter a judge’s over-the-counter shareholding came under scrutiny and was found to be de minimus and not sufficient to effect the outcome.
Cheadle’s directorship and shareholding in a labour brokerage and financial services firm was clearly not de minimus and amounts to corruption in terms of the Prevention and Combating of Corrupt Activities Act. To put this another way, why pay an attorney when you can buy the judge? Several partners at Resolve had ties to Media24 and/or Cheadle Thompson Haysom (CTH) and/or the ANC, including Peter Harris, Nicola Galombik, and Murphy Morobe.
Galombik at the time was the executive director of Yellowoods, then majority owned by TBWA Hunt Lascaris who listed Media24 as a client. (“TBWA Media24 showcase”)
Far from being insignificant, Cheadle’s shareholding flouted the ‘nemo rule’ (nemo judex in causa sua), one of the bedrocks of our justice system. For those who cannot read Latin, the phrase translates: ‘no one should be judge in his or her own case’, it is a widely known principle of natural justice.
How did we get here?
Kagiso Trust Holdings (KTH) was founded in 1985 during a ‘period of intense struggle in South Africa’. The company’s website states: “During this tumultuous time, we strongly opposed apartheid by providing support to development institutions and initiatives across a range of sectors.”
Whilst South Africans were being entertained by what many referred to as the ‘Roelf Meyer and Cyril Ramaphosa show‘, another relationship had blossomed at CODESA, that between the Sisulus and the Ruperts. The result was the creation of an entity known as New Africa Investments Limited (NAIL) and holding company Phaphama Holdings, setting the scene for the Sisulus to get into bed with Remgro, the former Rembrandt Group, and thus the company which had financed apartheid.
It appears NAIL was one of the first empowerment vehicles, ‘which had emerged from Nasrec’. (1) An ’empawamenti’ sweetheart deal calved from Sanlam’s stake in Metropolitan. (2) It was thus the first black-owned business to be listed on the Johannesburg Stock Exchange. NAIL chairman, the late Zwelakhe Sisulu would find himself actively involved in New African Media as his Urban Brew later became an asset owned by Kagiso, and Nail and Kagiso merged despite objections being raised before the Competition Commission. (3)
It is not the purpose of this piece to examine the multifarious ANC deployments to the ‘commanding heights of the economy’, during this period, and the rapid recapitalisation of the economy during an initial boom period, other than to emphasise the party’s central relationships which emerged to form the Resolve Group, and thus the relationship between Resolve and a group of Afrikaners who are invested in South Africa’s media.
In 2003 Kagiso expanded its media holdings and took up a 30% stake in Resolve, a substantial holding in a company which would later turn out to be extremely useful in keeping labour and dissident voices in check. The Resolve Group aimed to provide a ‘total solution in workforce management‘ and included inter alia Resolve Workplace Solutions, Resolve Encounter Consulting, Tokiso Dispute Management, Converse Consulting, Mediaworks, Resolve Career Transition, CCI Growthcon and Resolution Logic, all involved in the employment, placement and management of workers and professionals.
As a result of the intertwined business relationships developed at NAIL, in 2005 Remgro took up a 37% stake in Kagiso, with the result that Rupert Bellegings Pty Ltd, the holding company of Remgro, now had an effective stake in the former struggle press. The project which began at CODESA had come full circle. Readers may remember that CODESA 2 was instrumental in the restructuring of the SABC which would result in the late Zwelakhe Sisulu also taking the helm of the public corporation (1994 to 1997) and setting the scene for a controversy before the Zondo Commission involving Naspers’ Multichoice.
Max Sisulu was thus a director at Resolve, a labour and financial services firm during 2010, whilst his brother was at NAIL/Kagiso. Max is a prominent member of the ANC. At the time of the corrupt activities involving Resolve, he was then speaker of the House of Assembly, where he divided his time between chairing the 6th House, and his duties at Resolve.
In 2004 ANC members Max Sisulu and Murphy Morobe had been approached by Peter Harris to take up shares in the Resolve Group, Harris had practised law for 15 years at Cheadle, Thompson & Haysom and in the early 1990s was ‘seconded to the National Peace Accord, after which he headed the Monitoring Directorate of the Independent Electoral Commission for the 1994 election.’ Morobe significantly had been the ‘administration head’ at CODESA, and his relationship with the Sisulus stretched back to the days of Khotso House and the UDF.
Harris was thus instrumental in turning Resolve into a party political clearinghouse, that provided entry to the justice system and those seeking to influence the outcome of events.
Just about nobody batted an eyelid when Remgro (the former Rembrandt Group) and one of the financiers of apartheid, acquired a stake in Kagiso. And no journalist bothered raising an eyebrow when warning lights would signal that the result would turn into a highly interconnected, networked media empire, in which both Remgro and Kagiso provided content to Multichoice, at the same time they were effectively invested in Naspers, and with the Ruperts holding the purse strings over an empire which comprised, banking, insurance, media and fibre optic cable.
The strategy which had played itself out at Nasrec and CODESA was clear — draw the ANC top brass into the Afrikaner Laager, gain strength and economic position in the ensuing rivalry between various arms of the new emerging black empowerment class, and use this advantage to stall any attempt to gain traction on apartheid litigation. Litigation which might have involved the Tobacco industry, an industry which at the behest of the Ruperts, had bailed out apartheid-era banks when sanctions had brought the country to its knees.
As I write this, there is a call by Khulumani an organisation representing apartheid survivors, to establish a tribunal in the aftermath of the TRC, to make good on the transitional justice framework which granted amnesty to those who came clean, but demanded that justice be served against those who did not.
Oscar van Heerden writes: “if the commissioners were not convinced of the truth or if the evidence did not tally with your version of the truth, then amnesty could be withheld. However, if you elected not to come forward and hide the truth because you might be under the mistaken impression that secrets would remain secret, if the truth was found, and you were implicated, you would be prosecuted and perhaps even imprisoned. Those were the rules.”
Then there are those individuals such as Johann Rupert whose testimony before the commission is a marvel of invention, a narrative in which he fails to explain what his family was doing at the very heart of the racist system.
Rupert continues to claim today that he was unaware of any financial contributions to the National Party, despite there being extensive evidence of collaboration with the system. His assertions have not been tested in a court of law. Open secret’s Hennie van Vuuren for instance, has already demonstrated extensive links between the Naspers corporation and the National Party.
The letters between Anton Rupert and various National Party leaders such as PW Botha, all point to the fact that the Rupert’s business partners included apartheid finance minister Owen Horwood and titular head of the country, Nico Diederichs.
The Rupert’s though critical of the apartheid policy of separate development, had instead advocated a form of “Volkstaat” in the form of a Swiss Canton System, which would have kept large swathes of the country under white rule. The logical extension some might say to the policy of apartheid bantustans, and which would, in the Rupert’s view, have been maintained in comparison to the federalist position, a position which resulted in the system we have today.
Since the winding up of the TRC, there have been several inquests, notably the Timol Inquest and Aggett Inquest in which apartheid agent Paul Erasmus has given damming testimony of the dirty tricks campaign waged against activists and the anti-apartheid press under the aegis of a state funded by the Ruperts.
Surely time for the Zondo Commission to expand its terms of reference to include the many sweetheart deals involving ANC party officials and the media, the least of which is the role played by PW Botha in his award of South Africa’s only pay-television licence to Multichoice, and the corruption which has kept apartheid litigation out of court, despite the TRC process. It should be remembered that those who received amnesty did not receive amnesty against future crimes.
(1) Objections lodged before the Competition Commission by Johannic to a merger between Kagiso and NAIL were overruled in 2003, since ‘Tiso consortium had effectively bought up to 81.9 % of the “N” shares in Nail and 31.8 % of the ordinary shares’.
‘New Africa Investments Ltd was founded in the early Nineties by Dr Nthato Motlana, with 16 per cent of Metropolitan Life, unloaded by an altruistic Sankorp in the cause of ’empawamenti’. The hammer behind Nail was token mlungu Jonty Sandler, who had earlier cost his bankers a bundle at Nasrec’
(3) Some 11+ subsequent mergers by Kagiso were given the green light by CompCom.
‘Criticism has focused on the four directors – three black, one white – of New African Investments Limited (Nail). They planned to ask shareholders to grant them share options worth £13m, which would have put about £2m in the pockets of each.’
‘The first empowerment deal done in South Africa was Sanlam’s sale of a stake in Metropolitan to a little-known entity called New Africa Investments (Nail). In 1993, more than 10 years before the first BEE legislation was introduced, Sanlam rushed the sale through when it heard that Anglo American was about to do a similar transaction with its insurance operation, African Life.’
FALLOUT from the past weeks De Klerk statements need to be seen within the context of equivocation by those responsible for apartheid. The Preamble to our Constitution makes it abundantly clear that the alpha and omega, the sine qua non for South African citizenship, adherence to our law, is ‘recognition of the injustice of the past’. Denying both the criminality and instrumentality of the apartheid regime is certainly deserving of the same punishment meted out to those who attempt to undermine the integrity and status of the Republic.
President Ramaphosa said as much in his response in the National Assembly. “Apartheid was immoral from its conception” and “so devastating in its execution that there no South African today that it is not touched by its legacy … I would even go as far as to say to deny this is treasonous”.
It remains to be seen whether or not De Klerk’s past apologia before the Truth Commission, at the face of it, an unequivocal recognition that apartheid was wrong and thus a submission which elicited forgiveness by all those affected, including amnesty from prosecution, will extend to his recent comments prevaricating and equivocating on the matter. This was followed by a rather sinuous and insincere retraction, as his foundation moved to withdraw statements essentially calling various UN resolutions,’ the work of Soviet Era agit prop’.
The ease with which the De Klerk Foundation was able to launch such an attack against fellow South Africans, whilst supporting the last white President under apartheid and his prevarication on the matter, begs the question as to what damages may be awarded any activists who seek to sue the Foundation on the behalf of the country?
Ayanda Mdluli of the Independent Group was moved to write: “Just like the Nazi at the Nuremberg trials after the Second World War, he must be brought to book, along with the many apartheid co-conspirators and perpetrators who were let off the hook by the Truth and Reconciliation Commission (TRC) in the early 90s”
De Klerk’s raising the subject of whether or not apartheid was a crime against humanity, is a stance which has elicited widespread condemnation. The least of which is that Desmond Tutu was moved to address the ‘appropriatness of the former President, debating the terribleness of apartheid’.
It is unclear whether or not De Klerk is able to claim parliamentary privilege as a former President, since his remarks are clearly defamatory and aimed at the anti-apartheid movement. Their wrongfulness may be demonstrated by the fact that not all opponents of apartheid were communists, nor are they necessarily doctrinaire socialists, for that matter.
Indeed the lessons of both the TRC and Nuremberg need to be learnt and studied. It was South Africa which first proposed an alternative to the Nuremberg process. Instead of bringing the perpetrators to immediate trial, they would initially be given an opportunity to come clean before a commission of inquiry, which rewarded those who appeared with amnesty while leaving it up to the justice system to punish those who did not.
In theory, the system worked if sufficient funds were made available to those wishing to pursue post-TRC prosecutions. Unfortunately, our government failed to create the necessary support services for those activists like myself, who were faced with an unenviable predicament — as it turned out, there were still agents of apartheid who clung to apartheid denial, who refused to appear before the commission, and who now proceeded to act with impunity.
Worse, the justice system itself was captured by apartheid denialists, those like Ton Vosloo, who had waged a campaign against the TRC from day one, and who had chosen to hide behind constitutional guarantees of a free press, whilst denying others the selfsame rights to speak.
Mdluli’s piece alludes to problems presented by the Naspers corporation, which until recently was merely an organ of the old National Party. I have written extensively about the Naspers-sponsored campaign against the TRC . Clearly it is not enough for our President to simply issue condemnation after condemnation, without taking practical steps against persons like De Klerk, who have sought to capture both the organs of state, and our judiciary under the pretence of national reconciliation.
It cannot be that apartheid denial is the order of the day, nor that any court is allowed to defenestrate both our Preamble, and transitional justice system which created the Constitution. Bear in mind, that it was the TRC Act of 1993, and thus the TRC itself which was a necessary pre-condition for the Constitutional Assembly to create our Constitution in 1996.
Again it needs to be stated, that any courtroom wishing to overturn the 1973 UN Convention on the Crime of Apartheid, would be subverting not only the international justice system, but the justice system created by the will of the people.
I therefore have no hesitation in condemning the blatantly irresponsible and perfidious decisions handed down in Lewis v Media24 (2010) and Lewis v Legal Aid South Africa (2019) and issued in favour of apartheid functionaries .
The people of South Africa deserve better than apartheid denial from our justice system.
IF YOU READING this piece, then you one of many South Africans turning to alternative media for a different perspective than the mainstream press. It is small consolation that we are all witnesses to the Aggett Inquest, continuing during the 30th year following the Mandela Release ,while FW de Klerk still refuses to admit any wrongdoing on behalf of the former National Party.
The party responsible if you recall, for deaths in detentions of persons such as Steve Biko, Ahmed Timol and Imam Haroon. Then there’s the assassination of David Webster, one of the defining points of the period prior to the velvet revolution which lead to the release of Mandela.
A man who some believe, would have been better off having not been released, if only to continue the struggle via other means.
Apartheid was (and still is) a crime against humanity — the daily news briefings abound of the tragic circumstances immediately proceeding the death in detention of Neil Aggett, an icon of student protest surrounding the anti-apartheid movement, are to be welcomed.
Yet I can only manage to howl and weep, because too little has been done to rectify the situation in which apartheid apparatchiks are allowed to go Scot free, while the victims more often than not, are given short thrift, with very little recourse when it comes to the law.
Hopefully the current generation, both black and white, will be inspired by the sacrifices which have been made, and speak out at the travesty which is occurring in the name of national reconciliation. Our children deserve better than the vacuous and tired explanations for these murders provided by those in authority.
As I write this, I am still bound by a racist 2019 decision handed down by one Bernard Martin of the High Court of South Africa, effectively removing my right to legal representation as contemplated by the constitution in a matter effecting the status and integrity of the TRC and its report, (and thus a matter filed before the Equality Court in 2015). As yet no legal professional has stepped forward to provide assistance, while Legal Aid South Africa has been allowed to escape its mandate of providing aid in cases where a substantial injustice would result from my not possessing an attorney.
If defending the TRC report from egregious attacks by apartheid criminals is not an odious task, requiring immediate assistance, then I fail to understand what would qualify?
It therefore remains for us to shout out to all and sundry, and from the rafters and pulpits if needs be, — it is not merely the apartheid justice system which is on trial at the Aggett Inquest, but rather, the entire South African justice system.
A justice system which began the year under a cloud of calumny, and in which the credibility of the entire system is still in question.
That the Aggett inquest may be too little, too late, is surely to be remarked upon by commentators, who no doubt may also question the manner in which the previous Timol inquest occurred, not because funds were made available by our government but because of the valiant and heroic activism of the Timol family.
It is not too late to call for a further commission of inquiry into the entire post TRC process, if only to demand that funds be made available in order to access legal aid in such matters.
In terms of the TRC Act, the Minister has the requisite power to call further commissions of inquiry, to hold further inquests and to assist those in need of legal aid. Instead the Minister has chosen to duck and dive, passing the buck under the current administration. An administration which will no doubt be wrong footed, and in contempt of the freedom struggle, which is the hallmark of the preamble to our constitution.
IF THE probe of 5 Kwazulu-Natal judges fingered in a UK investigation of a $2 trillion-a-year (R28 trillion) money-laundering ring isn’t enough to grab your attention, or the revelations of judicial impropriety, influence-peddling and nepotism levelled against Western Cape High Court Judge President, John Hlophe by Deputy President Patricia Goliath, doesn’t get your goat. Then surely, the revelations before the Aggett Inquest by Advocate Howard Varney of state capture of the justice system is certain to raise your ire?
The problem is a lot more widespread than reported, (see my comments below). In his opening remarks before the court, counsel for the Aggett family, Howard Varney, said the Aggett inquest has “been plagued with ongoing delays”.
“We now know that post the winding up of the TRC [Truth and Reconciliation Commission], decisions were taken at the highest political level to close down the investigations into the cases referred by the TRC to the NPA … including the Aggett case.”
“Such interference” he says “amounted to state capture of the criminal justice system in relation to this class of cases. It allowed powerful forces in society to impose their will on institutions meant to uphold the rule of law. In doing so they guaranteed total impunity for some of the most serious crimes ever committed in South Africa.”
As a post-TRC litigant I can confirm the extant of the capture of the judiciary by nefarious forces associated with the past regime.
Not only has pressure been brought to bear, to influence the appointment of judges, as in the allegations against John Hlophe, while criminal syndicates are allowed to operate out of courts as alleged by civil rights group Constitution Accountability, Sedition, Independent, State, Access (CASISA), but both the NPA and judiciary have actively suppressed the TRC transitional justice mechanism, acting as if the judicial instruments of the apartheid state are somehow concurrent with the constitutional dispensation.
What appear to be a series of boardroom deals brokered by apartheid financier Johann Rupert and members of the Sisulu family during the CODESA negotiations have directly lead to the situation — one in which Rupert Bellegings Pty Ltd, the ultimate controller of a vast media cartel involving businessmen Koos Bekker, Ton Vosloo and Terry Moolman and invested inter alia, in Remgro, Kagiso, Caxton and Naspers, was able to suppress a TRC-complaint before the Labour Court and by implication, the Equality Court.
The direct capture of the Labour Court was most certainly effected via a company known as the Resolve Group, whose director at the time Michael Halton Cheadle also held a directorship at Cheadle Thompson, Haysom (CTH). The respondent, Media24, a company which had previously attempted a gagging order, for my blowing the whistle on newsroom racism at WP Koerante, the owners of the People’s Post. Media24 were at the time clients of CTH at the same time that both Kagiso and Remgro were providing media content to MIH, a subsidiary of Media24.
In papers before the Cape Law Society, Cheadle acknowledged Media24 was a client of his law firm, but failed to explain why he had not revealed this fact on record before the court. He further attempted to justify his relationship on the basis of a decision in Bernert vs Absa Bank in which a judicial officer’s holding of over-the-counter (OTC) shares of the bank, during the proceeding, had been found to be de minimus, in other words not significant enough to effect the outcome.
Far from being insignificant, Cheadle’s shareholding flouted the ‘nemo rule’ (nemo judex in causa sua), one of the pillars of our justice system.
Kagiso then owned a 25.9% stake in Resolve, alongside former speaker for the House of Assembly Max Sisulu (5.7%). In 2005 Remgro (formerly Rembrandt Group) bought a 37% stake in Kagiso (reduced to 36.3% when Kagiso-Tiso was formed). Significantly this meant that a company with strong ties to apartheid, bought into a group associated with the former democratic struggle, in the process making good on a business relationship which had bloomed during the CODESA process.
Several partners at Resolve had ties to Media24 and/or CTH and/or the ANC, including Peter Harris, Nicola Galombik, and Murphy Morobe.
Galombik at the time was the executive director of Yellowoods, then majority owned by TBWA Hunt Lascaris who listed Media24 as a client. (“TBWA Media24 showcase”)
The NPA have declined to prosecute a complaint, after a docket was handed to the authority. The JSC appears to be toothless according to William Saunderson-Meyer.
Further allegations against Hlophe have surfaced in a piece by the Daily Maverick.
In March of last year, AJ Martin handed down a racist decision trashing the TRC report, “as too long to read”, in the process crushing hopes of legal representation in a collateral matter before the Equality Court brought to defend the TRC from vicious attacks emanating from Naspers and Media24 counsel. (please see my open letter to the TRC Commissioners). The unlawful, irregular and repugnant Labour Court finding most certainly played a part in the outcome of Lewis v Legal Aid SA.
Records from the trial of General Magnus Malan, a Pretoria secureaucrat implicated in apartheid death squads appear to be missing from the South African legal information institute database.
This week, the official opposition party, DA called for John Hlophe to be immediately suspended, as did National Association of Democratic Lawyers (NADEL) and Freedom Under Law (FUL). John Steenhuisen said the allegations faced by Hlophe were a threat to the credibility and independence of the judiciary at large, and said they had to be taken seriously. Constitutional law scholar Pierre de Vos is also talking about a “credibility crisis” as is Legalbrief, an online law professions site.
“The current head of the Western Cape High Court is compromised. Until such time as a proper investigation is completed and all consequential processes – which may include impeachment – are completed, Judge President Hlophe cannot be allowed to exercise the powers of a judge,” said Nicole Fritz, Executive Director FUL, in a statement, supported Nadel’s call for the suspension of Hlophe.
The same principles should apply to allegations emerging from the Aggett inquest, in particular the latest revelations that it was a piece of paper provided by Barbara Hogen, which lead to the arrest of Aggett.
Ethical norms, not political compromises, should also apply to those behind the campaign against the TRC being waged with the full support of a captured judiciary.
As former solicitor-general under Reagan and Harvard Law Professor Charles Fried said of Trump: “You lie down with dogs, you get up with fleas.”
Messers Desmond Tutu, Sisi Virginia Khampepe, Wynand Malan, Yasmin Sooka, et al.
I write this letter having had good cause to reflect upon several events of this past year on Reconciliation Day.
It should be noted that Reconciliation Day, formerly ‘Day of the Vow’, or ‘Day of the Covenant’ or ‘Dingaan’s Day’ became the source of some controversy this year when a well-known pastor made a reference to the Covenant within racist terms that brought back memories of the quasi-religious holiday commemorating the ‘Voortrekker victory over the Zulus at the Battle of Blood River in 1838′.
As a secular humanist of Jewish origin, I have on more than one occasion, rejected theological justifications for race segregation, in particular the apartheid euphemisms used to justify separate development as a mere ‘accident of nature’, or a ‘miracle of sameness’ and the like.
My beliefs and faith (or lack thereof) unfortunately became the subject of a race-based interrogation of my Jewish identity during the course of an unfair proceeding in 2010 in which absolutely nothing was done to protect my rights. The least of which is that the TRC itself was under the machinations of senior council reduced to ‘merely a commission’, and your report ‘merely a report’. And where those selfsame euphemisms were trotted out to justify racism.
It was thus within a bizarre inversion of reality, that I was deemed not to ‘be a credible person’ on the basis of my ‘opposition to apartheid’, by a corrupt adjudicator presiding, it appears, without the necessary authority, over a matter effecting not only his own client, but also his business partners. All explained away in a report to the Cape Law Society in which a corrupt relationship is justified on the basis of a decision in Bernert v Absa Bank Limited.
The labour proceeding against Media24, was anything but a fair hearing, an ‘irregular proceeding’ if you will — not only did I not possess an attorney (following the group’s 2007 gagging attempts which put paid to my legal insurance), but I was further restrained from calling any witnesses. I was therefore not present when the decision was handed down, was not granted leave to appeal, nor did I secure a successful petition to appeal to the Labour Appeal Court. This after the respondent’s ecclesiastical case alleging inter alia, I was more than simply a “Jew in breach of my religion” but also ‘guilty of driving a car on a Friday night, and/or attending a mixed race nightclub apparently in violation of my religion’. Nothing less than a piece of savage quackery, written up by the respondent and cut and pasted, and handed down as the purported decision of the court.
In 2015 I thus filed a distantly related complaint before the Equality Court against then Min. of Justice Micheal Masutha and also Naspers, the holding company of Media24, citing the former’s failure to exercise powers in terms of the TRC Act and thus the astonishing failure of the TRC Unit to defend both the TRC and its recommendations from ongoing acts and omissions in the face of racism and a culture of impunity.
My filing sheet thus also listed an apartheid media company named as a ‘gross perpetrator of human rights violations’ in the final report that all TRC commissioners signed off on. It was filed two days before Media24 issued a mea culpa to the heavens referencing one case-limited example of a single ’employee of colour’, Conrad Sidego, who had apparently experienced problems with separate amenities.
It further went on to list several shortcomings of the first TRC, in particular the failure to deal with extra-curial evidence — evidence arising after, and subsequent to the first commissions winding up. It noted other failures, including errors with acronyms, Congress of South African Writers ( COSAW) is not Congress of South African War Resisters (COSAWR). It may be demonstrated that TRC One represents the absence of an in-depth inquiry into the role played by women, war resisters, the struggle press, the environmental movement, the use of technology by the state, coercive psychiatry and so on.
Despite the merits of the case, I once again found myself in court sans attorney and I was eventually granted leave to formerly seek legal aid by Judge Bozalek after the Equality Court had previously acted under Judge Veldhuisen to deny me access to legal aid.
I thus sued Legal Aid SA in a collateral matter before the High Court, Western Cape, which took some three years of my time.
It was more than a little alarming to find that in the interim, ‘apartheid memory’ had been relegated to the dust-heap by our judiciary, alongside our constitution. That portraits of apartheid and colonial judges still hung from chambers, and AJ Martin of the High Court of SA, now agreed with a racist merit report by John van Onselen, of Legal Aid SA, stating in his decision of 2019, that he was now ‘entirely satisfied that the TRC report would take a long time to read, and may thus be ignored’.
Despite my application for leave to appeal the racist decision, and despite oral testimony citing the High Court’s misreading of the Separation of Powers, (Legal Aid SA is not a constitutional entity as such, but rather directly answerable to parliament — a result of the Legal Aid Act, which makes LASA subject to the Public Finance Management Act, as a Schedule 3 entity alongside Boxing SA) both the application for leave and for Martin’s recusal from the proceeding were rejected out of hand. In the process a racist exclusion to the Preamble was created, one which has had the deleterious effect of derogating rights commonly held under our constitution.
As we near the end of 2019 following a troubling period in which several well-known activists of my generation have passed away, including Peter Horn, Sandile Dikeni and Ben Turok, I find myself reaching out to a public case that has been at the back of my mind ever since the TRC Report was released.
Surely, you as commissioners knew that when you signed your name to the report, that it was an incomplete report at best, and would require further redress in the future?
Surely, you as commissioners, knew that when the TRC Act was promulgated under the interim constitution, that it was a necessary pre-condition for the constituent assembly to pass Act 108 of 1996, in other words our Constitution, whose Preamble says, ‘recognising the injustices of the past’?
Surely, TRC commissioners are aware that if you did not broker any guarantees from the state, to make good on the recommendations issued that you would be opening the doors to accusations that you are yourselves complicit in a crime against humanity and the after-effects thereof?
Surely you as commissioners are aware that in doing nothing except write letters to our President, of which there have been quite a few following the winding up of the first inquiry, that you would indeed, stand accused, as you do now, of doing absolutely nothing of any consequence to uphold the legal framework upon which the entire transitional justice arrangement was based, and that anyone wishing to bring civil litigation to defend rights in law is now faced with the odious task of defending the public record left by yourselves?
I therefore have no hesitation in stating here on Reconciliation Day, that the current TRC process is an abject failure.
Not simply because of the conduct of the Minister’s TRC Unit, but because of the collective conduct of the TRC commissioners.
Instead of defending the report to which you have placed your signature, you have instead been regaling all and sundry on the joys of turning the other cheek, travelling the world like religious pilgrims claiming to have discovered a novel process of reconciliation.
Engaging conference after conference and airtravel that merely pumps out CO2 while promoting your own estate as a national treasure and depriving the victims of restitution.
Those persons like myself, who were never called to testify, and yet suffered the consequences of apartheid dirty tricks need to be told the truth.
Future generations and ordinary South Africans need to be told the truth of what has occurred in the name of the TRC and in the the name of justice.
I beg your forgiveness, as fellow citizens, it may no doubt still be in the public interest to motion for yet another TRC process, TRC Two.
D R Lewis