Why may not that be the skull of a lawyer? Where be his quiddities now, his quillities, his cases, his tenures, and his tricks? Why does he suffer this rude knave now to knock him about the sconce with a dirty shovel and will not tell him of his action of battery? – Hamlet, graveyard scene, Act 5 Scene 1

The other day Facebook gave me a facelift by reminding me that it was the fifth anniversary of my friendship with Andrew Feinstein. Since Facebook had marked 6 March 2013 as a day to remember, I thought it appropriate to pay tribute to the brave and principled man by scripting this covering thought before releasing the jazzy video for public applause.

“I believe it was Andrew Feinstein‘s book After the Party that was the Farewell to Innocence moment for the ANC. For me his book marked the point when I realised that the Long Walk to Freedom had taken the party to an ominous fork in the road. The ANC chose the wrong fork: a mutually beneficial accommodation between Money and Power. Which is not to say we had to follow or to stop walking?—?the Constitution guarantees the right to do so. The pace for the high road had been set by people of conscience and consciousness. People like Andrew.”

So with “Happy John GI and Andrew Day” duly marked by my (Oompah band accompanied) tribute, off I went to the Constitutional Court to observe another round in the torturous divorce proceedings of another pairing of similar duration. A coupling that only a lawyer could find reason to boast about: the leaden bond between Cash Paymaster Services (CPS) and the South African Social Services Agency (Sassa).

I was late because Radio 702 had two of their talk show hosts, Eusebius McKaiser and Karima Brown, performing an anticipatory post-mortem on the ANC electoral prospects, come 2019. In reference to the choice now facing the ANC if they are to regain their once proud reputation, Brown said, “The ANC is very aware that the 2019 elections is a fork in the road for them. It is the defining election that could see the ANC losing more power.”

Karima’s serendipitous use of the same metaphor, “fork in the road”, in reference to the same party compelled me to pull over and call in to tell them about my happy anniversary with Andrew. My well received argument was that until the ANC reckons with their historical failure to have chosen correctly when presented with a more defining fork in the road 18 years ago, they could not hope to redeem themselves in the eyes of the electorate. I argued that the roots of their present problem stemmed from the corrupt accommodation when Money (arms dealers) struck a deal with Power (the African National Congress) circa 1999.

Feinstein writes that the decision by the ANC to get rid of him was that the party was deeply indebted to the arms dealers for having funded the ANC’s 1999 election campaign. They won a landslide victory, but have been in decline ever since.

The podcast is worth a listen.

Brown responded by framing my concern as a matter of political parties becoming more transparent about their sources of money. Perhaps. I think the question begs a more fundamental question, which is whether political parties really care about their source of power, the electorate, and how transparent they are in accounting to them. To the extent that they do so their legitimacy and authority is preserved. But, as I have argued before, because the ANC has not understood the conceptual distinction between amassing power, and earning and retaining authority, their propensity to stick with the devils they know rather than seek out the angels they don’t know has generated a serious pathology of power.

With my consciousness sharpened by the talk radio engagement, I walked into the pinnacle space of the Judicial Arm of Government and took my place in the media gallery to observe how the judiciary was going to deal with another abject failure of the executive. Seventeen years after Andrew Feinstein had been forced out of the legislature by his party, I had come to test this assumption: that the SassaGate scandal was another “belated announcement of an earlier death of the spirit”, to quote Dr Martin Luther King Jr.

The other announcement of a “death of the spirit” occurred when I witnessed the Minister of Health, Dr Aaron Motsoeledi, and Gauteng Premier Mr David Makhura break down in tears one month earlier, unable to explain why 1,700 vulnerable psychiatric patients had been “de-institutionalised” from the Life Esidimeni private healthcare facility in great haste with no policy or fiscal justification, which led to the horrible deaths of 144 of them (with several other still unaccounted for). See this link for my reflection, which uses another line from Dr Martin Luther King Jr’s sermon Of Tough Minds and Tender Hearts.

A month later, peering down from the media gallery, the rows of Black Sash supporters below?—?wearing -Tshirts with the slogan “Social Services with Dignity.. is my constitutional right”, made a pleasing statement. That is exactly what did not happen under the duty of care of the Gauteng Health Department. Memory of that tragedy was vivid in my mind, and doubtless in the minds of all the judges too, as I observed proceedings.

Listening to the interventions and interruptions by the Chief Justice and other judges, I felt the same empathy for them that I had felt for Judge Dikgang Moseneke in his role as arbitrator in the Life Esidimeni saga. I sensed they were all trying to find Solomonic wisdom to intervene appropriately in equivalent situations where the proper custodians of care had failed abysmally. The judiciary had to again slice a delicate problem with a blunt knife, while trying not to leave the most vulnerable and disadvantaged becoming more vulnerable and further disadvantaged as an unintended consequence.

Having clauses in the Constitution which entrench the right to dignity, freedom of expression, assembly, demonstration, picket and petition, are all well and good, but what happens when someone is too sick to invoke those rights and take to the streets in protest? The Gauteng Health Department under the former MEC Ms Qedani Mahlangu’s tenure answered that. They were abandoned to their fate. Many died.

Looking down from my privileged perch I wondered: how many of the 2.5-million grant beneficiaries still receiving their cash payments from Cash Paymaster Services would be left penniless, desperate or dead, if the Constitutional Court did not yield to the “blackmail”? That is how Judge Sisi Khampepe characterised the situation.

Marianne Thamm’s report sums up the proceedings.

All indications are that the Constitutional Court will permit the parties to enjoy “conjugal rights” for another six months, even though the unholy “marriage” remained officially “annulled”.

“So long as the poor don’t get screwed”, if I may vulgarly paraphrase the general sentiment I observed from the Bench.

When CPS’s counsel Advocate Les Morrison took the podium, in arguing why his client needed more money, he unwittingly confirmed the extraordinary genius behind Shakespeare’s quote above.

Shakespeare’s use of clever words brings to life the repertoire of tactics used by lawyers to sway a court. Deconstructing two of them?— – “quiddities” and “quillities” – ?sheds some useful insight into what I think was really going on.

First, what is a quillity?

Google the word and you will find it doesn’t exist. Shakespeare made it up, which exactly illustrates the point. It sounds meaningful but is actually devoid of meaningful content. Lawyers are good at using the form of language without any meaning to the content.

With no visible sense of irony, Advocate Morison acknowledged that CPS could not profit from the extension of an unlawful contract, but argued that during the process of forming the contract, a mutual respect for the dignity of the contracting partners was implied. And since the original contract never disputed that CPS was a profit-making enterprise, it would be a violation of their dignity to deny their right to be a profit-making enterprise.

Can anyone imagine CPS handing out T-shirts saying “Profiting from the poor fulfils my constitutional right to dignity”?

The second word, Quiddities, actually does have a dictionary definition? – ?“the inherent nature or essence of someone or something”.

Advocate Morison told the court that his client had achieved something that was “in essence” quite remarkable: the successful and efficient transfer of “three quarters of a trillion rand” to 11 million grant beneficiaries over the past six years.

The “inherent nature” of CPS was its superb efficiency. Indeed the logic of Public-Private Partnerships, such as that between Sassa and CPS (and for that matter the partnership between Life Healthcare Group and the Gauteng Department of Health), is to “harness the efficiencies of the private sector”. But if “efficiency” becomes the sole metric, the “spirit” has long departed the union.

The underlying assumption about human nature that is implied in the “singular efficiency” mindset that Advocate Morison seemed to be possessed of is that human beings are essentially selfish, and must be as efficient as possible to get what they want as quickly as they can, before some other greedy bastards beats them to it. It has a devilish self-fulfilling tendency. Taken to the extreme one ends up arriving at Ayn Rand’s philosophy that the selfish pursuit of profit is a virtue and any sense of altruism or concern for the common good is an evil. According to Berkeley Professor Robert Reich, contemporary disciples of her philosophy are US President Donald J Trump, his Foreign Secretary Rex Tillerson, Republican House Speaker Paul Ryan and the now disgraced former CEO of Uber, Travis Kalanick.

Whatever “efficiency” benefits it may yield, there are many more things in heaven and earth than have been dreamt of in Ayn Rand’s philosophy, Advocate Morison. Taxpayers will not be recommending CPS for any prizes for the efficiency with which they paid out three quarters of a trillion rand of their money over the past six years.

Down-to-earth efficiency is meaningless unless it is in service of effectiveness. And the parameters for determining effectiveness are set one level closer to heaven? – ?which economists term the normative domain of values and principles.

Had Retired Deputy Chief Justice Dikgang Moseneke been there, I imagine he would have intervened to challenge Morison, as I had seen him do in the Life Esidimeni arbitration, to make the point that the three legs of the potjie pot that define the fundamental duty of the state toward its citizens are found in just three sections of the Constitution: Section 1, which establishes the primacy of the Rule of Law and equality before it; Chapter 2, which details the Bill of Rights; and Section 195, which itemises the Basic Values and Principles Governing Public Administration.

Reading and internalising these three articles together is pretty much all that is required for public representatives and civil servants to comprehensively understand the normative imperative of all state functionaries, even if (perhaps especially when) these are outsourced to private sector partners.

A far more durable social safety net could have been better woven had former minister Bathabile Dlamini submitted herself to this normative consciousness.

That is why directors of all organs of state are obliged to commit to constitutionalism, and all Cabinet ministers are under solemn oath to ensure that nobody wavers from that, starting with themselves. Which didn’t happen much under the Zupta administration, and when it did those Cabinet ministers who took their oaths of office seriously were fired. It is no wonder that the Chief Justice felt it necessary to give a pep talk to new Cabinet ministers about the existential importance of their oaths/affirmations during their recent swearing-in.

Therefore if one tries to square CPS’s espoused “efficient service to society” claims with the fact that the former Director General of DSD Zane Dangor did not trust them, and eventually resigned for want of a clear normative, principled commitment by his minister and president to putting the interests of grant recipients above the interests of CPS, it becomes pretty obvious that there was something very rotten in the state of the relationship between the State and CPS/Net 1/Cell C. Noseweek speculated that Bathabile Dlamini deliberately engineered the crisis to keep CPS and their data available as “a secret machination to get Dr Nkososana Dlamini Zuma elected president”.

If that “Plan Z” ever existed, mercifully it failed. But that does not mean that the spirit that departed the ANC two decades ago has now suddenly returned with the election of Cyril Ramaphosa as their president. Perhaps it is waiting and wanting to. By God, it is needed. Pardon my agnosticism, but I do not believe that healing the chronic systemic pathology of power that started with the Arms Deal nearly two decades ago is within the ordinary powers of the ANC to achieve.

So, while I am normally sceptical when complex matters are simplistically framed in binary terms, the fork in the road between constitutional fidelity and corrupt patronage are exactly that, a binary option. One cannot walk both roads at the same time. When Power sells out to Money the road will lead to an abyss of a failed state.

Is that where we are headed? DM