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.
TIMES LIVE reports that justice minister Ronald Lamola apparently wants the deaths of anti-apartheid activists Neil Aggett and Hoosen Haffejee to be re-investigated. Only time can tell if he is serious this time.
Lamola announced on Friday, according to the online daily, that he had requested the judges president of the Gauteng and KwaZulu-Natal divisions of the high court to each designate a judge to reopen the inquests in relation to the deaths in detention of the activists.
The justice department is reported to have said Lamola’s decision was in terms of Section 17(A) of the Inquest Act of 1959 and follows an application by the National Prosecuting Authority (NPA) for the reopening of the inquests.
Readers may remember that Aggett was a doctor who died in detention in Johannesburg in 1982, aged 28. The inquest into his death held that no one was to blame. Yet another reason not to trust the apartheid-era justice system.
THERE is no evidence that the Ruperts were during the 1980s, for all intents and purposes, in favour of anything more than apartheid euphemism and cant — the shallow transformation which characterised PW Botha’s much-vaunted tricameral Parliament and which for a short time, allowed for separate houses of parliament for citizens classified as Indian and Coloured. This while maintaining a bantustan system which disenfranchised, de-emancipated and dispossessed black South Africans.
The families’s own submission to the Truth & Reconciliation Commission demonstrates a willful obfuscation of the truth, and despite elegant pleading, contains a number of half-truths and a strange anomaly. On the one hand, it is claimed that they were opposed to apartheid which they considered ‘an immoral, oppressive attempt at social engineering’ and consequently had chosen the path of ‘loyal resistance’ to ‘fight the system from within’, writing letters to NP officials stating that apartheid in its then form, was unsustainable since the Afrikaner was being crucified: “it is destroying our language, it is degrading a once heroic nation to be the lepers of the world.”
On the other, the submission, fails to explain what they were doing inside the system, in the first place, and thus why Rupert maintained a loyal membership of the National Party to the very end, refusing to break ranks by siding for instance, with the then all-white opposition Progressive Federal Party? A party which as its name suggested promoted a federal solution and held seats until 1989 when it became the DA?
Johann Rupert (JR) went so far as to claim at the TRC, that he was unaware of any financial contributions to the National Party, despite there being extensive evidence of his corporate involvement with the system. His assertions have not been tested in a court of law. This despite Remgro (former Rembrandt Group) being fingered in an apartheid bail-out scandal.
The letters between Anton Rupert and various National Party leaders such as PW Botha, all point to the fact that the Ruperts business partners included apartheid finance minister Owen Horward and titular head of the country, Nico Diedrichs. Far from advocating a ‘one-person, one vote’ democracy and majority rule, as Johann Rupert would like us to believe — which would have made him a champion of the cause and policies of the ANC and PAC — the truth is rather different.
The Rupert’s though critical of the policy of separate development, 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.
In essence they had argued for a more refined version of the plans laid out by the infamous Rubicon speech of PW Botha, a proposal which would have maintained the boer republics of old, had it not been for the guarantees on property rights issued by the ANC.
This telling fact can be seen at pages 288 and 289 of Anton Rupert, a Biography by Ebbe Dommisse.
Johann has gone so far as to claim at the TRC and without any evidence, that he had the confidence of the BC leader Steve Biko, whilst he was head of student organisation SASO, but has shied away from quoting his own father on the subject of what was to be done about the situation. Significantly, JR dropped out of university to pursue a career in business and did not figure in university politics.
The Pan Africanist Congress (PAC) on Monday said “Biko never even met Rupert and they have records of the Struggle icon, which will back this up.” Medialternatives has covered previous Rupert gaffes, such as his specious claims about being on the receiving end of Magnus Malan’s death squads.
To say the Ruperts were “openly critical of the apartheid system, both at home and abroad” as a current article on Wikipedia does, and that they have been lauded by President Thabo Mbeki for calling upon the Apartheid leadership to “do something brave” by creating a partnership with the black majority in the ’80s,” ignores the fact they were the financiers behind apartheid, and consequently demonstrated an absence of any tangible and practical support for democratic forces within and outside the country. Witness the sad fact of their proposed ‘canton model’, the self-same politics which produced the white enclave of Oranje.
One does not therefore, hear Johann Rupert taking any credit for this small and somewhat discredited achievement, and his submissions to the TRC as a cherry-picker of facts, surely need to be revisited, if only to set the matter straight. If anything JR, like his father, favoured a gradualist approach to the problem of loss of white minority power, preferring a plan which would have maintained the status quo indefinitely had it not been for the momentum of history which resulted in the CODESA negotiations.
Bear in mind that it was Verwoerd, the architect of grand apartheid who explained apartheid as simply ‘good neighbourliness’, and who like Rupert snr, was more than prepared to accept that all human beings are equal, so long as race segregation and partition of power could remain in place. The ‘separate but equal’ madness of the multiracialist school of thought, which epitomized the regime’s many racist adherents.
Neither completely ‘verlig’ nor totally ‘verkrampt’, as the Afrikaans terms of the day for liberal and conservative suggest, Rupert is better cast as himself, in an obscene privileged position, pulling the National Party purse strings as it were, whilst maintaining his own ill-gotten advantage — all-important brokers behind the apartheid system. An unmatched aegis without which nothing would have happened at the negotiating table.
Far from being allies of opposition politics as some would have it, nor positioned like myself and many of my fellow South Africans, within the internal and external freedom struggle, the Ruperts, were in reality part and parcel of the apartheid state apparatus to the very end, negotiating a deal, which resulted in an interim constitution and various ‘sunset clauses’.
In this respect they benefited immensely as kingpins, financiers and powerbrokers from the super-exploitation of labour which continued past 1994, so too the sanctions busting era, which occurred alongside the dirty tricks campaigns against opposition leaders and the likes of Winnie Mandela. After their successes in global financial circles, to their own benefit and the benefit of the NP, the Ruperts bailed out apartheid’s banks to form Amalgamated Banks of SA, giving the lie to claims made about the lack of money available for such an endeavor.
The Rupert hagiography, refers to humble beginnings in the Tobacco industry. JR, is current chair of several JSE listed companies, including Richemont, Reinert, Remgro and Mediclinic. The truth behind the apparent success — the family succeeded in extracting capital garnered from the Rupert’s cosy relationship with the state, (State Capture 1.0) and with the help of Horward and Diederichs, achieving the truly remarkable — sequestering apartheid slush money in Switzerland, while granting an unfair advantage when it came to the post-democratic period.
This is quite the opposite of the strange claim that there were ‘no sweetheart deals’ with the regime.The Ruperts are named in the CIEX report commissioned in 1997 to investigate the theft of R26 billion of state money during apartheid.
In 2017 Medialternatives exposed a cartel active within South Africa’s media, the result of a cross-networked entity with Rupert at the helm, and with assets comprising investments in Remgro, Kagiso, Caxton and Naspers. The resulting corruption and influence peddling, included the rigging of a 2010 labour case involving Media24 — a company which had previously attempted to gag me from speaking out about racism, race profiling and de facto newsroom segregation at its community newspapers division.
The case remains unresolved.
FOR DECADES Naspers was during the apartheid years, an incubator for racist government, producing no less than three Prime Ministers. PW Botha, HF Verwoerd and DF Malan. All had the backing of the corporation formed by the Broederbond. With the appointment of a new local CEO, following a listing in Amsterdam, the company has once again attempted to rebrand itself.
Unfortunately, the focus on assets avoids questions as to why Naspers was a ‘traditional sinecure for the national party’, providing funding, propaganda and support. This is a lot more involvement than today’s media spin-doctors would have us believe.
Naspers collaboration with apartheid is given short thrift by the likes of Joseph Cotterill of BDlive, who believes the group was simply “a publisher once condemned as a mouthpiece of the apartheid regime in SA .” These reports all fail to mention ongoing litigation against the company, and continued opposition to the Truth & Reconciliation Commission.
A more balanced view of the campaign against the commission can be found in a review of Ton Vosloo’s biography “Across Boundaries” by veteran journalist and former Mail & Guardian editor Anton Harber.
Lizette Rabie also finds time to present her case in support of the so-called ‘TRC rebels”, a group of former apartheid collaborators who succeeded in turning themselves into ‘conscientious journalists” while ignoring the plight of those in the struggle press, recipients of Naspers dirty tricks.
But according to Hennie van Vuuren, the company was also a ‘tap root of the National Party’.
So what exactly is going on?
After 1994, the corporation found itself on the back foot politically-speaking. Sanctioned by the TRC for its failure to come clean over its role during apartheid, but with PW Botha avoiding a subpoena to appear, the company grudgingly introduced a BEE scheme, appointing Jakes Gerwel of the President’s office to the board, alongside Francois Groepe.
And so the game of political chicanery continued.
With Groupe moving on to the Reserve Bank, Chairperson Gerwel passing on in office, and the company still attempting to gag me for speaking out about racism, race profiling and de facto newsroom segregation at its then community newspapers division.
The resulting anti-Semitic and anti-Secular counter-case, was more than simply a corrupt and unfair proceeding before the labour court of South Africa. Nothing short of a racist miscarriage of justice involving a Naspers business associate and labour broker presiding over a matter involving his own client, while I was restrained from calling witnesses. The corruption is currently the subject of an as yet unresolved complaint to the Judicial Services Commission.
Two days after filing a further Equality Court complaint regarding the Group’s ongoing campaign against the Truth & Reconciliation Commission and thus the trashing of the report by Naspers council, then Group CEO Esmerie Weideman issued an apology to the heavens. The 2015 statement references one case-limited example of a single employee of colour, Conrad Sidego, who had experienced problems with separate facilities.
The EC case is currently in abeyance pending an appeal of a decision by Legal Aid SA not to grant legal aid where a substantial injustice would result from my not possessing an attorney in the matter.
If you wish to fund my action against LASA, you can do so on BackaBuddy.
Needless to say the latest racist decision by the High Court, once again trivialising the TRC report, (‘too long to read’, according to AJ Martin) in the process, creating an exclusion of the Preamble to our Constitution, cannot hope to gain any approval under our nation’s Constitutional dispensation.
With pressure mounting for change, and with a sophisticated new share structure that preserves white privilege, in the process moving the now multinational operation out of the country, Naspers mandarins have once again dealt out a hand that seeks to gain influence within South Africa’s political sphere.
The appointment of no less than Ramaphosa Foundation board member Phuti Mahanyele-Dabengwa to manage Naspers South African operations, echoes the groups earlier effort to inveigle Mandela. This while Ramaphosa is on the ropes following a report by the Public Protector.
Time can only tell whether the strategy of co-opting the incumbent President, while maintaining apartheid profits within the company, (now outside the country), will succeed in burying the TRC Final Report once and for all.
THE past week has seen movement by the NPA on several TRC cases. Some might say better late than never, but its still an uphill task getting the NPA to make good on the recommendations of the commission, not to mention our own difficulties in gaining access to justice in a civil case brought to defend the final report from a dirty tricks campaign which includes public denials that the perpetrators were ever inculpated.
Can the NPA save face on unresolved apartheid deaths? writes Tyrone Smith
Reconciliation as we knew it then (mid-nineties) is overworked. The challenge now remains – how do opposing groups dialogue and overcome the structural divides, writes Leon Wessels.
DEFEND STATUS OF TRUTH & RECONCILIATION COMMISSION BEFORE THE COURTS
DEFEND THE PREAMBLE TO THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA
I have less than one month in which to file an SCA appeal in terms of s17 (2) (b) against AJ Martin’s racist decision (CA18417/17) to not provide relief with regard to representation in a matter affecting the TRC and its Final Report.
The High Court decision literally agreeing with Legal Aid SA in first instance, that it ‘would take a long time to read the report’ and therefore it can be ignored, and also, in second instance, upholding validity of LASA chief officer‘s view that the matter has somehow ‘prescribed’ since the commission ‘wound up its work some time ago‘, is demonstrably racist.
Attacking the legal basis of the TRC, an inquiry into gross violations of human rights under apartheid, still a crime against humanity, for which there is no statute of limitations, trivialises the report, lowers its status before the courts and denigrates the memory of the victims and survivors. It is certainly contrary to our Constitution and its preamble which states, ‘recognising the injustices of the past …’ not to mention several statutes each one promulgated in order to prevent ‘repetitions of the past’.
The decision impacts and affects my case before the Equality Court of South Africa (EC19/2015) brought to defend the report against the vicious and racist attacks by Naspers/Media24 and thus failure to defend the law by the former Min of Justice, Michael Masutha. My not possessing an attorney at state expense as contemplated in the constitution, is a substantial injustice when it comes to the odious task of defending the TRC.
AJ Martin’s sloppy and incompetent decision is nothing less than racist double standards, since I have already been taken to task on a previous occasion during the proceedings of Lewis v Media24 (2010) for my not having ‘read the report’, in particular chapter 4, and thus according to Adv Kahanovitz SC, ‘knew who I was getting involved with when I joined Media24’, a racist organisation at the time, opposed to the TRC.
Kahanovitz SC further claimed that the report was a ‘public record’ to which I could not claim ignorance, at the same time that he claimed the commission was ‘simply a commission’, and the report, ‘simply a report’. AJ Cheadle, who admitted to presiding over a case involving his own client (and thus a judgement written up by the opposing party), then proceeds to state in his 2010 decision at para 98: ‘His evidence is unreliable because he is engaged in a campaign against the Respondent for its support of apartheid and its refusal to apologise for doing so before the Truth and Reconciliation Commission.’
Now Martin declaims loudly from the bench that it is okay to simply ignore the report, echoing Kahanovitz SC earlier direction that the report should be ignored when doing so favours his client, but be upheld when it affects my own legal standing.
Not only did AJ Martin refuse to recuse himself from the High Court, Western Cape on Monday 20 May 2019, after this contradiction was pointed out to him, but he has had the audacity to claim his decisions and findings in the matter are somehow obiter (merely in passing), and also “Judges can make mistakes that is what superior courts are for, correcting error.” There also appears to be some confusion here as to whether or not the court has the requisite power to review decisions taken by a ‘national public entity’ and thus other schedule 3 entities such as boxing clubs. Martin then proceeded to deny me leave on the basis.
The determination amounts to an exclusion of the Preamble to the Constitution of the Republic of South Africa, not to mention the Bill of Rights. The separation of powers is between the judiciary, the executive and the legislature, not the public sphere versus the judiciary and represents a new low so far as the justice system is concerned.
The calumny against the TRC Act is not surprising since the the High Court of the Western Cape still houses portraits of apartheid and colonial era judges. Albert van der Sandt Centlivres for instance, was the Chief Justice of South Africa from 1950 to 1957, and the result is an embarrassing racist rogues line-up, book-ended by a beaming portrait of current Judge President of the Western Cape, John Hlophe. Portraits of Centlivres et al deserve to be in a museum not the chambers of active judicial officers.
I urgently require assistance in filing my documents on appeal in Bloemfontein, failing which an appeal directly to the ConCourt. If I cannot retain an attorney to accomplish this, I will be required to travel to Bloemfontein and/Jozi. I am also required to furnish the SCA/ConCourt judges and parties with the transcripts and records of the proceedings, all of which costs money. Some four hours of transcription is required.
Please assist me in defending the TRC and its Final Report in the matter Lewis v Legal Aid SA CA18417/17. This matter affects similarly-situated individuals and is a major test of the foundation stones of our democracy.
NO TO HIGH COURT APARTHEID
NO TO RACIST DOUBLE-STANDARDS