TWO rationalist pieces, thoughtfully debunking the legs of Helen Zille’s argument in favour of ‘colonialism not being all that bad’, need to be seen alongside an incredible piece of sensationalist and irrationalist nonsense, authored by self-proclaimed saviour of the ‘black race’ one Andile Mngxitama. The embarrassing piece (compared below) merely demonstrates that when it comes to black opinion, and criticism of colonialism, there are better tools, than a racist free-for-all.
Reported on News24 , without any scientific evidence, Mngxitama claims that the recent Cape storms are all the ‘fault of white monopoly capital’. It is a crackpot thesis devoid of any merit — touting an unproven conspiracy theory whose achilles heel is the fact that China is the world’s second biggest emitter of CO2 — far from being an ‘all-white affair’, climate change is rather the result of a rampant consumer society, one occupied by black and white alike, for which anyone of any colour, utilising its benefits, needs to take responsibility.
One has merely to remark that it is the ‘black majority’ South African government, which commissioned two of the largest mega-coal projects on the continent this decade, and so far as Nature is concerned, the impacts will be felt by all, regardless of skin colour or pigmentation. What was once true of apartheid South Africa, and its skewed electrification policies, no longer holds. My own research published by the Panos Institute in 1991, alongside that of Mamphela Ramphele, reported the racial bias impacting upon a then output of 246 million tonnes of CO2 pa.
South Africa is currently the 13th largest emitting country based on 2008 fossil-fuel CO2 emissions and the largest emitting country in Africa. Saying: “the ecological disaster awaiting planet earth is a direct creation of white people,” is not just shoddy science, it is assuredly evidence of a racist political agenda. There is no data, to my knowledge, showing that skin colour has any impact on the behaviour of litter-bugs nor that of conspicuous consumption.
The only reason Mgnxitama gets published in the mainstream press is because of his vocal position as leader of the ‘Black First’ front. An organisation with much in common with Donald Trump’s America First movement, and thus deserving of similar criticism to that levelled against France’s Marine le Pen. Though he differs from these two politicos in at least recognising the existence of climate change, is no recommendation.
That Mngxitima’s writing is increasingly on the fringes of rationality and scientific argument, can be seen by the emergence of writers whose opinions are eminently more sensible and suited to the important issues of the day. Thus we turn to Tembeka Ngcukaitobi writing in the Conmag, for our guidance on Helen Zille, who correctly observes, that “neither England nor Holland can claim the same robust system of judicial supremacy that we do” and “the notion of an independent, fair and just legal system ‘which is not influenced by politics whatsoever’ first emerged in the writings, not of a lawyer, but a journalist: John Tengo Jabavu, the editor of the Xhosa newspaper, Imvo Zabantsundu, in the late 1890s.”
“Jabavu’s writings in a marginal Xhosa newspaper were unsurprisingly ignored by the colonial government of the day. But they found fertile ground in the organisation which he did not found, but whose foundations he clearly influenced – the South African Native National Congress.” Ngcukaitobi’s writing on legal history thus traces the emergence of the ruling party and our own constitution, before tackling the second of Zille’s claims “which draws a link between colonialism and the development of our transport infrastructure [which] is equally distortive of history.”
“It was an official policy of the colonial government,” he says, “to use prison labour for infrastructure. Large numbers of Xhosas imprisoned after the last frontier war in 1878 were taken to Cape Town and, on arrival, turned into unpaid labourers, in the development of the rail infrastructure.” This transportation and technology theme is given better treatment if not short thrift in a parallel piece published by a blogger known simply as VaPunungwe, who asks: “what model car was Cecil John Rhodes driving?”
The same question may well be asked of Jan van Riebeeck — what cellphone brand was he using? Technology is thus to be seen within its own context, not as some imported novelty, but rather as an historical construct, within a milieu as it were. It would thus behove persons such as Mngxitama to rather stick to writing on what one knows for certain, instead of punting racist theories and speculative rhetoric as easily debunked as that of Helen Zille’s.
IN AN admittedly hard-hitting piece, former anti-apartheid activist Jay Naidoo tackles issues of good governance, which he says is our right, not a privilege.
“Our demands for fundamental liberties, encompassing human, labour, gender, sexual orientation, community and land rights” he says “are met by political elites’ concerted push to strangle citizen action through laws, policies, financial restrictions, intimidation and outright violence.”
Typically, Naidoo, like so many activists drawn into the fold of the African National Congress — a party formation which has failed miserably to transform South Africa into an exemplar of good governance — resorts to homilies on the simplistic return to the “rule of law”. The self-same mantra deployed by the security establishment and party insiders targeting students, unleashing violence which he notably criticises, as does commentator Eusebius McKaiser, who warns of the abuse of state security against overzealous students.
Coming twenty years in the aftermath and the anniversary year of the signing into law of the foundation document of the nation — our Bill of Rights — the ‘rule of law’ is anything but. Rather law, and by that I don’t mean all law, has turned into the ‘law of rules’, and thus constitutionalism, has produced nothing more valuable than legal contortionism — a byzantine, professional and well-heeled legal bureaucracy dependent on a superabundance of legal fees, has acted to deny us ordinary citizens our rights — impinging on access to the law, whilst also curbing fundamental freedoms, such as the right to assembly.
As I write this, and speaking as an active participant in the 1987 student revolt against apartheid, I have yet to receive any recognition from Minister Michael Masutha of my right to an attorney at state expense in a TRC-related case (EC19/2015). I therefore have no hesitation in endorsing the campus unrest, reminiscent as it is of the spirit of 1987.
Martin Luther King’s “Letter from a Birmingham Jail” explains why civil disobedience is sometimes necessary to bring light to an unjust law. Similarly, our founder, Nelson Mandela advocated civil disobedience against the unjust laws of the apartheid state. He would probably look on in horror at the growing militarisation of our nation’s campuses, and unlike Naidoo, exhort students to continue their protest action.
So no Mr Naidoo, your easy prescriptions and reliance on NGO statistics are better left to former apartheid functionaries. After twenty years of abuse, we really don’t want your ‘rule of law’, any more than an alcoholic desires a hangover, and surely not each and every law out there.
What we do want, rather and better formulated here, is a citizen’s law. A common legal dispensation which distances itself from the apartheid codex and racist decrees of the past. A common law which recognises that the Bill of Rights is not some ‘carrot on a stick’, nor a two decade long entitlement programme for legal professionals.
And certainly not a mere document serving the sole purpose of cappuccino drinking, robed solicitors earning inflated fees at the Cape bar, nor a get rich quick scheme for portly barristers paying off their third mortgages on holiday homes at Plettenberg Bay, while dining fatuously on sushi and kobe beef, reading De Rebus in the Mall. No Mr Naidoo, the Bill of Rights should rather be considered the very beginning of our law.
Until students return to classes, until citizens themselves are returned to the legal system, as equal partners, fully emancipated and possessed of equal rights, and until the role of lay assessors is expanded, there will be calls to either reform the judiciary, or remove its stifling and overbearing colonial influence from society altogether. One has merely to examine South Africa’s corrupt proxy judge system in which any sizeable law firm is able to dish up an attorney to act on the bench in favour of his or her client, to realise that something is rotten in the state of Denmark, to use a bardic phrase.
In its special hearings into the role of the legal community the TRC found: “part of the reason for the longevity of apartheid was the superficial adherence to ‘rule by law’ by the National Party (NP), whose leaders craved the aura of legitimacy that ‘the law’ bestowed on their harsh injustice.”
The crisis of legitimacy in which South Africa’s legal institutions find themselves today, where ordinary citizens are for the most part excluded, disempowered, often ignored, is both a tragedy and a farce, with the result that law libraries burn on a regular basis, while persons such as Naidoo resort to the self-same platitudes and pseudo-scientific aphorisms associated with the apartheid regime.
Now is the time to revisit our nation’s foundation stone, the Bill of Rights and its democratic values. To reboot the TRC process, to put an end to impunity and to examine the struggle record, and to free students from the scourge of fees once and for all. It is not the time for ideological dissertations that lead nowhere except back to PW Botha, BJ Vorster and HF Verwoerd.
THE AGE of Enlightenment eroded the power of kings, birthed modern democracy and produced a political model known as the social contract. Typically the theory in moral and political philosophy addresses ‘questions of the origin of society and the legitimacy of the authority of the state over the individual’.
Social contract arguments ‘posit that individuals have consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the authority of the ruler or magistrate (or to the decision of a majority), in exchange for protection of their remaining rights.’
It is during times of unrest and social turmoil that the issue of the social contract is most visible, and especially on the question of the relationship between natural and legal rights.
The burning of two law libraries, at Howard College and UKZN coming after similar incidents on campuses at Wits and elsewhere, has shone the light on the legitimacy of such institutions. It is no coincidence that while students are demanding #FeesMustFall, there are several post-Marikana challenges, each one stemming from the narrative of state capture and closure of the democratic ideals of freedom and civil liberties.
As I write this, I find myself in the invidious position of being embroiled for the past 18 months, and a decade long respectively, in post-TRC litigation against the Minister of Justice and a well-known apartheid media company. Despite statutes guaranteeing access to legal representation at state expense in appropriate cases, I am still battling to gain the right to an attorney. The reason for this is because our Minister Michael Masutha in his sageness, has failed to promulgate the regulations referred to in several acts.
It is not for lack of rights that we have ended up with a breakdown of the democratic narrative. It is because of the stark failure of authority to uphold the very ideals which gave birth to our democracy.
Openness, transparency, fairness and accountability. It was only a short while ago, at least in geological time, that the ruling party was hailing emancipation and the birth of the nation’s democratic institutions. Now in the very same year of the twentieth anniversary of the signing into law of our constitution and Bill of Rights, (founder Nelson Mandela put his pen to the final paper on 18 December 1996) there is very little to be said about this formation document, except to plead that it is ring-fenced by legal professionals, in an arrangement which is clearly out of the reach of ordinary citizens, a noble document pended as if merely an elegant afterthought, bolted haphazardly onto the colonial legacy and legal canon, inherited from the past regime.
Thus whilst commentators such as Franny Rabkin of Business Day were bemoaning the loss of our sacred law libraries and battling to understand the motivations behind the several acts of campus arson, I found myself unable to condemn these essentially cowardly acts.
If the legal profession could not find the wherewithal to defend the TRC Final Report, nor to protect Constitutional values such as secularism, then it was surely asking a lot for the public to defend the law libraries of the self-same legal profession — one that was painfully ignoring all the evidence and trashing the findings presented by the commission into gross violations under apartheid — presumably in order to maintain race and class privilege?
“Since the incident,” Rabkin says, “I have read both justifications and condemnations. I accept that the burning of the library was, in a way, a rational step. In the weeks of struggle leading up to the incident, the demands of the students were all but ignored by the public.”
“And this was not just about fees. What seemed to have triggered the burning was a report that a student had been raped by a policeman — the very people the Constitution entrusts to protect us. It certainly warranted our immediate and urgent attention. But, we mostly did not pay attention, until the library was burned.”
Scholasticism is “the system of theology and philosophy taught in medieval European universities, based on Aristotelian logic and the writings of the early Christian Fathers and emphasizing tradition and dogma”. It resulted in a ‘narrow-minded insistence on traditional doctrine’.
The very same logical fault is at the heart of our legal system. Take the cab rule, in which junior attorneys are expected to defer to their more esteemed senior colleagues in the advocates profession, (a modern version of droit du seigneur, right of the lord), and ask yourself, is it fair to expect a layperson to defend the TRC Final Report without formal legal assistance?
Until South Africa truly has a legal system that admits the human rights enshrined in the Bill of Rights, and upholds this foundation document as the alpha and omega, there will be those who reject the “Western values” of the imported Roman Dutch system and who wish to burn law libraries. Until a greater role is given to lay assessors — giving affect to citizen’s rights as jurors, and especially findings on questions of fact — for instance the problem of apartheid denial, did apartheid really happen? — one cannot help but sympathise with the arsonists and insurrectionists.
Such persons assuredly follow in the footsteps of the student revolt of the 1980s, and 1970s — the tumultuous struggle of which activists such as myself and many others, were very much a part.
Providing South Africans with an option of a jury trial in TRC-related cases, or where appropriate in capital crimes and defamation cases, is one way of assuaging the central charge leveled against the current legal system, that it is out of touch and elitist. Now is the time for urgent reform and progress on the democratic project, and this means greater inclusion of citizens in the law.
It is not the time for defending the traditions inherited from apartheid.