Defend Truth


The judiciary is still holding South Africa’s constitutional line


In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

Has South Africa established a firm commitment to democratic constitutionalism? The past couple of weeks leave the answer to this question rather disturbingly open.

Take the government’s response to the Ukraine crisis. From television footage and social media, the country has borne witness to a number of government and ANC representatives oleaginously going to the Russian embassy, showering praise on the relationship between the two countries, condemning those supporting Ukraine and in even more nauseating fashion speaking of wishing for peace. 

One can only assume that by “peace” they mean that Russia’s President Vladimir Putin should take as large a “piece” of Ukraine as he wishes!

Once upon a time, this country proclaimed proudly that its foreign policy would be guided by its constitutional commitment to human rights. That the argument that Nato should have eschewed any attempt to admit Ukraine has merit is hardly a justification not to condemn this brutal assault on a sovereign country which, in any event, was not going to be admitted to Nato. 

This is combined with the other canard that when Palestine is bombed by Israel there is far less protest. 

In the first place, many of the 141 countries, which unlike South Africa voted against an invasion that each day kills innocent civilians including children, have raised their voices against Israeli conduct. 

Second, although the silence of Palestinian suffering represents an exercise by some, including the US, of double standards and must be outed, how can this argument in any way justify the war crimes now being committed by Russia?

The answer is not far to find – the Stalinist worldview was fulsomely embraced by members of the ruling party during the struggle against apartheid and remains embedded in current thinking. The Putin option for ruling remains of considerable attraction to many; hence, between Russian largesse (doubtless less so going forward, given the state of the Russian economy) and ideology, the Putin vision remains more attractive to some than constitutional democracy. Viva “democratic centralism”, the dominance of the party above the interests of the country and a constructed narrative of a nationalism never truly historically in existence, but which nevertheless must be recaptured.

If this episode is not enough, we now have learned how seriously the recommendations of the State Capture Commission will be taken by the same Putinesque group. The ink on the third volume of the Zondo Commission report was hardly dry and Gwede Mantashe, the minister of coal, was out of the legal starting blocks. He announced that he would seek to review the recommendations of the Zondo Commission as they pertain to him. Recall that acting Chief Justice Raymond Zondo found that Mantashe had benefited from the Bosasa largesse in that Bosasa paid for upgrades to his home when he was secretary-general of the ANC.

Judge Zondo was unconvinced that Mantashe’s characterisation of the security installations was a manifestation of traditional intrafamily support of a traditional project, akin to contributions for a traditional wedding ceremony. Viewed in the context of Mantashe’s influential position as secretary-general of the ANC at the time, and the events placing Bosasa in close proximity to the party – including an election “war room” at the company’s head office, it was reasonable to infer that Bosasa needed the ANC to favour it as it was invested in doing lucrative business with the state.

Furthermore, Mantashe’s denial that the upgrades were a form of gratuity was contradicted by other facts, including the scale of generosity and his failure to offer to make any contribution whatsoever of his own toward the costs. If it was a project based on a traditional sharing of costs, one would have expected him at least to make a contribution commensurate with his financial resources. Based on these findings, Judge Zondo recommended that Mantashe be investigated to determine whether he should be charged. 

This is not a determination of rights – that will depend on the relevant authorities firstly acting on the recommendation and then determining that Mantashe should be charged. Absent these steps and given the evidence of the Bosasa upgrades, there is no basis for a review. Of course, we know from a series of cases that the clear legal position does not deter some, but in this case what is in prospect is that one of the most senior members of the ruling party is acting to undermine a commission that his party had informed the country it would support.

Yet again, the commitment to the rule of law and constitutional guardrails is more in keeping with Putin’s vision of the world than it is to the spirit, purport and objectives of South Africa’s Constitution, which emphasises clean and transparent government.

To ensure that the rule of law is alive in this country, there is of course the requirement for an efficient National Prosecuting Authority (NPA). If there were any need for a reminder of a history of NPA ineptitude, look no further than the outcome of the inquest into the death of Dr Neil Aggett. 

To the great credit of the very judiciary recently assailed by Lindiwe Sisulu (who remains firmly in her Cabinet post), Judge Motsamai Makume found that Aggett had not committed suicide while in detention but had been murdered by Lieutenant Steven Whitehead, assisted by at least one other police officer. Whitehead has died, as has another implicated in this dreadful saga of torture and murder, Major Arthur Cronwright. The point is that it took until this year for the family, supported by the Foundation for Human Rights, to approach the court to reopen the inquest so disgracefully conducted in 1982 by magistrate Pieter Kotze.

Where was the NPA until this year? Why has it been so disturbingly somnambulant for so so long that those responsible for this murder were never held to account? This omission represents a large stain on our society’s attempt to come to terms with the past, as are the countless other cases of Security Police murder such as the Cradock Four, for whose family justice has been denied to date by the ineptitude of the NPA.

These three separate events – the obsequious support for the Russian invasion of a sovereign country, the clear intent of a very senior member of the ruling party to subvert the Zondo Commission reports before any action can be taken by the criminal justice system, and the tragic inability of the NPA to deal with the crimes of the past in order that justice may be restored – all point in a direction. That direction is firmly away from the journey towards a democracy that is committed to accountability, to rooting out corruption in the public and private sectors, and a national policy that treasures freedom, dignity and equality in all policy, both domestic and foreign.

As the Aggett inquest reveals, the judiciary is, in the main, holding the constitutional line. It remains for civil society to do the same if it wants to develop our democracy and curb the power of those who look to Putin rather than to accountable, transparent and principled governance. An active citizenry is our only option if the dreams of 1994 do not become the nightmare of the next decade. DM


Comments - Please in order to comment.

  • Dennis Bailey says:

    Yeah, well judge, the electorate so far don’t agree. There may be nothing left to vote about by 2014!

  • Gerrie Pretorius Pretorius says:

    I believe the 1994 dream was exactly that – a dream. Which has been turned into a nightmare by the inability of the anc to transform from a ‘liberation movement’ intent on corruption and theft while feeding at the trough, to a democratic government.

  • Barbara Mommen says:

    The ANC’s foreign policy has been hamstrung by narrow, partisan, national interests and the failed assumption that South Africa is still “the gateway to Africa” to quote many government discussions. In virtually every element of cross border trade, this opacity and lack of vision have mutated into tensions between neighbours, lack of regular bilateral engagement, and consequently, a lack of insight into the important issues. This is damaging South Africa’s ability to trade within Africa and internationally with any degree of competitiveness, and the technical and tariff barriers to trade continue to stack up at an alarming rate. Vision, humility and a genuine understanding of the impact of trade on the economy have been lost. This needs to be fixed. And soon!

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