Opinionista Onkgopotse JJ Tabane 13 June 2013

Dear Minister Radebe, let’s talk frankly…

The list of fiascos, scandals, missteps, incompetence and misconduct is a long one. So long, in fact, that it cannot be comprehensively dealt with here. The list of positives is much, much shorter and there is barely enough evidence overall to suggest that we are not still heading down a slippery slope.

Dear Minister Radebe,

It’s been a royal mess on the legal advisory side of things in your term of office, if we are frank. The whole Menzi Simelane thing has been a disaster pointing to terrible legal advice that you have received from possibly some incompetent officials who must truly be hauled over the coals. They have in turn made you look bad and ultimately the president is not emerging from this one smelling like red roses. There is no getting around the obvious disqualification of our fellow comrade whose biggest sin was to openly lie to Comrade Ginwala. It seems our courts don’t take kindly to lying, especially when it comes to officers of the court. This must never happen again, especially following the fiasco of the appointment of the chief justice, the follow-up disaster of the aborted attempt to extend his term of office and the misstep of tabling legislation that would affect the judges without their express say so. It’s been bad when it comes to our legal matters – what on earth are we paying the entire state legal advisors for if you, as minister of justice, are getting such poor advice? This is not how a serving minister of state ought to be treated.

Since 2009, the agenda for constitutional development is constantly undermined by some of our own actions, whether be it our minister of police being entangled in the murky world of espionage, or the police commissioner calling on police to shoot and kill, or our minister of state security having drugs being dealt under his nose at home. It’s not been looking good for us in this cluster, quite frankly. And then, of course, to rub salt into the slain citizens, there was the issue of releasing prisoners early as part of Freedom Day last year – and then having to explain in no time why they were back to their old ways. In a country riddled with so much crime we should have known that prisoner release should be the last gift that South Africans expect to celebrate their freedom. The justice system is full of loopholes where criminals are already literally getting away with murder. Why on earth would we want to release the ones who were eventually convicted before they serve out their time? And I am not talking about Shaik and Selebi here – that’s a whole letter on its own to Minister Ndebele. I am decrying some of our own conduct that makes people conclude we are fast going on a slippery slope.

Anyway, enough with the negatives. I am sure I have not even gone down halfway through the list. If I went further I would also have to decry the disastrous resurrection of Judge Willem Heath, who broke the record as the fastest hire-and-fire of our democracy, in the comedy of errors that has become of our legal advice. But I am sure you have enough criticism to deal with. Congratulations on naming and shaming people convicted of stealing money from the public purse. This has been long time coming and should send shivers down other syndicates still busy with theft of public resources. Well done.

I am pleased with the noises you have been making about the transformation of the judiciary. I am also pleased with the unapologetic posture you have taken at the JSC. There is no part of our society that must be immune from transformation, regardless of the part it plays in our constitutional democracy. I just think our comrade, Ngoako Ramatlhodi, is not always the best spokesperson for that cause. The whole “we will review the Constitutional Court decisions” tantrum was rather misplaced. That notwithstanding, it is clear to me that if we do not resolve the issue of change in our judiciary, be it race or gender, we will, quite frankly, have ourselves to blame when the decisions that these judges take slowly drift away from reflecting the reality of our ever changing society. With all the good strides you have made in transforming the judiciary, I think  your best masterstroke ever was putting the likes of Judge Hlope in their place through the correct decisions of the JSE about how to deal with his rather bizarre attempt to create a constitutional crisis. The drama of the appointment of Mogoeng Mogoeng was a monotony-breaker in all of the drama the country was experiencing on the judicial front. I must say I am yet to understand what big sin prevented Dikgang Moseneke from being promoted to that job  – other than the widely held belief that he “did not behave himself at his own birthday party after the Polokwane revolution”. But those are unsaid truths we can only mention here as we have vowed to speak frankly. There is no government in the world that is designed to tolerate criticism, especially not from those who are meant to be impartial. So he also was a bit too outspoken – a lack of understanding of how political egos work.

The recent release of crime statistics once more underscores the fact that crime levels require all of our attention. The sentencing of a few high-profile people – including the former commissioner of police, the former wife of our security minister and  the former gospel star Jub Jub Marogane, as well as other similarly behaved white collar criminals – has restored hope in the ability of the courts to mete out the necessary punishment to those who deserve it, regardless of their fake status in society. We simply need to tighten the correctional side of things and ensure that our parole system does not become a laughing stock or stock in trade for satirists and cartoonists. With all the compassion in the world even you wouldn’t shrug your shoulders in a comradely fashion when faced with cases such as that of Selibi and Shaik.

Overall, it has been an interesting term for you, minister. Without telling you what to do, may I suggest a few things that must fill your in-tray as you round up your term ahead of the 2014 elections:

  • Please respond with actions rather than words to the call of the minister of women and children about stiffer sentences for offenders. We have heard the refrain just too many times.
  • Please improve the powers and the independence of the Hawks. Your deadline to resurrect the Scorpions has essentially elapsed. Justice delayed in this case is, indeed, justice denied.
  • Please help President Zuma appoint a permanent head for the NPA – and please let’s do the cadre deployment thing carefully this time; we can ill afford  another DA court challenge based on things we can avoid already. There are plenty of qualified ANC people who can fulfil that role. Let’s be frank, we don’t expect you to appoint an apolitical person who is going to embarrass us with some misplaced sense of independence.

Finally, minister, one of the crucial things that is making this government look good is the space that it has created for Section 9 institutions to do their work in supporting the Constitution. Constant jabbing at the public protector from among your comrades is simply not the way to go. I know she has been a bit over the top with some of her findings but, as they say, there is always one black sheep in the family. Keep supporting these institutions instead of allowing fertile ground for their intimidation – even by our own comrades.

I would have wanted to engage you on some of the more contentious issues such as the Secrecy Bill that is now awaiting presidential signature, as well as the insult law proposals of our fellow reds. The passing of the Secrecy Bill, even minus the chief whip’s vote, is not a good thing for our movement. We are facing utter humiliation ahead again at the courts on something we could have, frankly, avoided. DM

Yours frankly,

Onkgopotse JJ Tabane DM



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