The comments by the EFF to the effect that judges remain apartheid judges because a judge imposed the death penalty on Solomon Mahlangu in 1979, needs an adequate response. Julius Malema said, according to news reports:

“On 6 April [1979], the whites killed Solomon Mahlangu. They must be reminded that they killed Mahlangu. Who sanctioned the killing of Solomon Mahlangu? It was a judge, a white judge presiding over what is called law. Law is not always just. And if the law is always just, then it doesn’t deserve the respect of the people,” Malema said in his address to supporters.

Malema again accused judges of being in the pocket of (Johann) Rupert, a claim he made without providing evidence. 

He shouted: 

“These people (Rupert) own everything – toothpaste, the banks, and the air we breathe. They even own the judges. Rupert has a golf estate in Mpumalanga. When you go for a golf day there, you will count less than 20 judges who are playing golf. Judges, white Afrikaner or black or any judge. They own the law firms. They decide who becomes an advocate.”

Gwen Ramokgopa for ANC Secretary-General?

Why respond to the EFF?

Ill-considered as this may be, some may ask whether it is necessary to respond to remarks by the EFF – an irresponsible political party that often displays considerable ignorance of South African political history and is willing to make statements without any factual basis about the present.

Since the organisation has little to contribute to our political conversation, offering empty rhetoric instead of analysis or ideas that can help the country out of the present crises, is it necessary to write about them?

It’s important to understand that the collapse of the ANC as an emancipatory force has left a vacuum. It was the organisation in which very many people vested their hopes for a better life, for a transformed society, where all could live with dignity and with their basic needs met, with access to sufficient clean water, healthcare, shelter, employment, transport facilities, schooling and other human rights.

Families grew up with the ANC as a cultural presence, not simply a political organisation. People believed the ANC belonged to them. It earned their trust over decades of consistent struggle and sacrifice. Nelson Mandela was regarded as a heroic figure not just by Africans but probably most black people and also many whites.

Many regarded themselves as “being ANC” even without a membership card. That is why when some who were gathering demands for the Freedom Charter in the 1950s asked people to join the ANC, some who had not joined said, “but we are ANC”. Likewise in the 1970s and 1980s, people who could not make direct contact with the ANC in the bantustans carried out illegal acts, doing as they understood it to be what the ANC had encouraged the masses to do in support of Umkhonto weSizwe.

With the ANC no longer offering a model to be emulated, no longer playing an exemplary role in South African politics, there is a need for an alternative political movement or alliance of forces that does not simply replicate what the ANC was, but learns from where it went wrong and why the hopes that people had for the ANC were squandered. Such a new organisation needs to reset the state on a course that defends the Constitution and advances its transformatory core, even beyond its existing text, where required for emancipatory goals to be realised.

In this situation, where there is no such visible alternative, many are attracted to the “fiery” rhetoric of the EFF, apparently addressing their aspirations. That they do not live out their proclaimed beliefs is no different from the ANC. But EFF discourse speaks to real problems, albeit with populist “solutions”.

Although less so today than they it was in the beginning, the EFF still has considerable skills as a communicator of revolutionary phrases and some ideas which may resonate with the hopes of the poor.  

That it raised real problems would be good if the EFF were an organisation with integrity, an organisation that planned to deliver on the promises that it makes to the people of South Africa. But we have come to see in recent years that the EFF that appeared to stand up to the corruption of Zuma has itself been fingered for a number of practices that may well lead to prosecutions for corruption. The VBS Bank scandal is only one of these. In its political practice it has come to be allied de facto with the Zumite remnants, who have allegedly (or actually, as evidence mounts) a common tendency to pillage state coffers.

More important in the present, returning to the question “why write about the EFF?”, is to note that the EFF does not contribute to opening a debate that is so badly needed in a situation where political life is devoid of ideas and contestation over present and future directions. In reality, the EFF offers no plans or realisable programmes and relies mainly on threats and incitement.

That the EFF attacks the judiciary, the Constitution and the law, is in fact an attack on the democratic order whose defence has to a significant extent been neglected by elected political leaders, especially in the ruling ANC. That is not to suggest that judges, the Constitution and the law are beyond debate and criticism. Certainly there must be criticism of ill-founded judgments and actions and aspects of the Constitution and legal system that need to be remedied. That is happening all the time – not as demagoguery but generally as constructive attempts to ensure that the Constitution and the legal system, through the officers of the courts, contribute to the transformatory constitutionalism embedded in the current legal and constitutional order.

In a situation where the ANC-led government has failed to carry out its constitutional duties and has in many cases embezzled funds dedicated to this cause, it is the courts which have in many cases stepped in to defend the rights of the poor.

It is important not to assert that there are no judges who hold racist views. It may well be that there are some who remain on the Bench. But what is important to stress is that there is a very big difference between the laws under which Solomon Mahlangu was hanged in 1979 and the laws of South Africa since 1996 when a new Constitution was enacted which protects the rights of all.

It is important to note that in the period since 1994, a number of undemocratic or anti-democratic actions have been embarked on by the ANC and its allies. And there has not been a powerful political force that has protected the people from the diversion of funds meant for the alleviation of the conditions of the poor.

That protection has been provided, to some extent, by (unelected) Chapter 9 institutions like the Auditor-General (through successive incumbents of the office) and the former Public Protector, who generally acted in defence of the Constitution. But one of the most important bulwarks against the fraudulent activities of the ANC-led government and public service has been the – also unelected – judiciary, both in holding people to account and through the Zondo Commission of Inquiry into State Capture, led by the new Chief Justice of South Africa, Raymond Zondo.

When Mahlangu was hanged, he was executed under a law and constitution that all democrats had a duty to either disrespect and undermine, or, where they were lawyers or had access to lawyers or other legal means, to protect people from its harshest effects and try to acquit them from conviction under those laws, or to reduce sentences as far as possible.

There were limits to what could be done under that law. Some judges did their best to limit that as far as possible, as well as many members of the legal profession from the 1960s, as the spaces of freedom contracted. And again, especially in the late 1970s and 1980s, a group of activist lawyers emerged, some of whom are now on the Bench.

These lawyers were very active in helping freedom fighters, some of whom refused to recognise the laws of apartheid South Africa and were sentenced to death. (See Peter Harris, In a Different Time, 2011). In some cases it was carried out, in some cases it happened just before 1994 and their execution was not implemented.

It’s extremely irresponsible of the EFF to paint the current judiciary in the same colours as that which sentenced Solomon Mahlangu to death. It is a completely different constitutional order. Despite the irresponsible actions of EFF members on the Judicial Service Commission, most of the judges who have been appointed these days appear to be imbued with the values of the Constitution, which favour liberty and transformation.

Revolution and freedom fighting in our times

I referred to a political vacuum that needs to be filled with the collapse of the ANC as a viable political force that is trusted to act with integrity. It is not necessary to shrink from the words “revolutionary” and “freedom fighters”. We do need revolutionaries/freedom fighters today.

That the words “revolutionary” and “freedom fighter” are used as self-definitions by the EFF and the ANC does not mean they have no value, though the terms may evoke scepticism in many.

By those words I do not suggest the use of violence, though there are conditions in a country’s history where the use of force is legitimate. That is not the case now and a revolutionary/freedom fighter in a legitimate constitutional order ought to be in the forefront advancing peace and non-violence and contributing to banishing the omnipresent militarism in our society.

But being a revolutionary or a freedom fighter, which we need today, involves in the first place values that can be observed through studying the heroic figures from all population groups who are part of our history – obviously Mandela and his cohort but also Ruth First, Bram Fischer, Basil February (who died in the Wankie Campaign), Robert Mangaliso Sobukwe, Steve Bantu Biko, Yusuf Dadoo, Dorothy Nyembe, Victoria and Griffiths Mxenge and many others.

From the lives of revolutionaries elsewhere, like Ernesto “Che” Guevara, we can also distil certain values that need to be cultivated in building a new ethos for our political life – not simply bravery, but also modesty, empathy and love, concern for what happens to one another and willingness to sacrifice for our shared wellbeing.

This is not simply the property of communists. Interestingly, Fidel Castro is at pains to stress the kinship between his communism and Christianity. We need to identify commonalities where they exist and embody these in building a new unity. There are reservoirs of goodwill that are manifested in big and small ways. These are needed to rebuild democratic life and realising an emancipatory vision and practice. DM

This article first appeared on Creamer Media’s website.

Raymond Suttner is an emeritus professor at the University of South Africa. He served lengthy periods in prison and house arrest for underground and public anti-apartheid activities. His writings cover contemporary politics, history and social questions, especially issues relating to identities, violence, gender and sexualities. His Twitter handle is @raymondsuttner.

[hearken id=”daily-maverick/9317″]