SOUTH AFRICANS may be suffering under a collective delusion, the rule of law. If one reads the latest round of media commentary, we are either stricken with a hopelessly corrupt judicial system, or driven by ulterior motives to question an infallible judiciary. In this binary view judges are either devils in black robes, or angels and saints in silk who can do no wrong.
The reality is that for the most part, we have an imperfect system inherited from a period of apartheid and colonialism. A time when citizens were not accorded equal rights and status before the law.
Attend judges chambers at the High Court of South Africa in Cape Town, and you will be greeted by the portraiture of past judge presidents on floor one, going all the way back to the Cape Colony and Apartheid. Obscene pictures of Centlivres et al, still hang from the walls in an eerie twilight reminiscent of that macabre republic. Our institutions however, are rather proud of their racist lineage, and the tainted display is headed up by a current photograph of a grinning judge president Hlophe, still under investigation by the JSC for misconduct.
Under the present system, the process of impeachment of sitting judges who possess tenure, requires a supermajority in Parliament. The process for the removal of acting judges on the other hand, those drawn from the profession on an ad hoc basis is less clear. The manner in which such persons gain authority, often in conflict with their standing as directors of various law firms and businesses, is an awkward one.
For Raymond Edward Chalom, who has been in the legal profession for almost 50 years, the judiciary is a hotbed of corruption. He says “judges are appointed on the basis of friendship, trade-offs between lobby groups in the sector and affiliation to legal bodies rather than history, legal minds and experience.” I can only concur with this observation and possess an as yet unserved affidavit alongside supporting documents, demonstrating the resulting corruption of influence and manifest bias by a well-known member of the profession.
The process of judicial reform has not been easy. The South African system is really just an elegant compromise, for the most part, a sorry colonial edifice to which several innovations such as Family Court, Equality Court and the apex Constitutional Court have been bolted.
And therein lies the rub, since our constitution, a visionary, civil rights document if ever there was one, requires that all citizens gain untrammeled access to rights yet is seemingly oblivious to the reality of a legal process that is overly circuitous and expensive at best. The justice system in our country has unfortunately turned into a mere business system, one designed for millionaires and their cohorts in management and the professions, but where access to justice for ordinary citizens is a practical and tragic impossibility.
Witness Steven Friedman’s recent column in Business Day. According to the newspaper’s resident lefty in the debate among middle-class people which shapes politics, hardly anyone undermines courts and judges. In stating the obvious, (qui bono, who benefits?) Friedman avoids the uncomfortable fact that the majority of the country’s citizens are neither middle-class, nor possessed of sufficient financial clout required to be considered readers of his own column. The working class is drawn from the ranks of the dispossessed, the downtrodden and unemployed, for want of a better phrase.
The reality for most of us, living in the aftermath of a crime against humanity, and several decades of misrule by the ANC, is that nearly every legal issue these days, ends up turning into an expensive constitutional drama, one which only the apex court is able to rectify, resulting in the juniorisation of the High Court and Supreme Court of Appeal.
For instance it took nearly three decades to end cannabis prohibition via the courts while effecting a delay on the promise of rights gained in 1994.
Sadly the lower courts with one or two exceptions, (cannabis is an exception) have shown themselves either powerless or reticent to enforce new freedoms, preferring to solicit business for the entangled profession. Our Bill of Rights for such individuals is little more than a ‘carrot on a stick’, bread and butter for an academy that has seen fit to create exclusion after exclusion to our rights.
Witness my own troubles with gaining access to legal aid in a matter affecting the life of the TRC and its final report (Lewis v Legal Aid SA). Application dismissed by AJ Martin without so much as leave, in the process creating a racist and unacceptable exclusion to the Preamble to our Constitution. Racism on the bench here has simply grown in leaps and bounds.
The Constitution, for all intents and purposes, adopted in a piecemeal fashion in 1996, has meant that the status quo for the most of us, still resembles the old order, while the new order which was meant to be, including our rights and freedoms, has vanished like a chimera.
Take a problem inherent to any system overly reliant upon the settling of disputes by intermediaries known as attorneys. In this jury-less world, professional jurists, comprising entirely of members of the self-same profession of law, adjudicate and interpret law, and then deem themselves fit to determine the facts.
The result is a system that is not evidence-based as such but rather scholastic, obscurantist, medieval. The Earth circles the Sun, well that’s just an opinion so far as these hucksters are concerned.
When it comes to facts about apartheid, the profession has not been exactly the cradle of rocket scientists. Witness PW Botha’s successful defense of his racist position in the face of a subpoena by the TRC. Or Wouter Basson, a darling of the courts.
South Africa is certainly stricken by an over-reliance on interpretation and opinion. Not evidence-based terrain so much as thick, fat, obscenely bureaucratic, opinion-based largess writ large. Access to a jury option in capital crimes and defamation cases would put such quibbles to rest.
Spare a thought for the victims of rape, in case after case, often dropped by the justice system, or reduced in value by the lack of mandatory sentencing for offenders, making rape no longer a capital crime in South Africa so far as the law is concerned.
On the whole South Africa’s legal system is too caught up with kowtowing to prevailing authority from the old days, to notice when it gets science spectacularly wrong. Instead of deriving truth from facts, as a nation, we tend to derive truth from ideology, in this respect our legal system is no different. Ditto the debate on legal positivism, and a position that is increasingly absent in our supposed secular world.
Attorney’s writing up judgements, well, that’s just par for the course.
Acting judges advertising their services and experience on the bench to clients when they’re not moonlighting as articled clerks — just another modern innovation in letters.
Apartheid happened, separate development, the Land Act — all facts not speculative conjecture, as our courts have deemed fit under the Cheadle Doctrine, while slipping into a void of fantasy and fable. Apartheid denial is the very essence of a decision handed down by the labour court in 2010, in which I myself am the complainant.
Where jokes have abounded that ‘the rule of law so frequently turns into the law of rules’, I merely have to cite my own sad experience with a rotten system to observe that the law has failed us all miserably.
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.