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Umsebenzi Online

Volume 7, No. 12, 16 July 2008

In this Issue:


Red Alert

We have a right to different opinions and to differentiate what is right or wrong in defense of our revolution

By Solly Mapaila

Secretary for Organising, Campaigns and Cadership Development

 A lot of skeptics have recently been alarmed by the utterances of the leading figures in the liberation movement about the role of judges, the concept of independent judiciary and democratic institutions and many have since written their last will of testament on the ANC.  Amongst these were leading figures in the weekly Newspapers, the leading editorials of our prestigious media namely the Sunday Times, Mail and Guardian, in last week’s City Press in particular against the Secretary General of the ANC and on the Judge Hlophe matter.

As to why would the media go on such a frenzy of veiled attack on the ANC SG is something we need to inquire more? Of same concern is why would the editorials concern themselves with the periphery of a matter, turn the victim in to a villain, and praise the abusers of human rights and our constitution into acclaimed heroes. Is this a deliberate tendency to hide the core painful truth that would hurt the powers that be and also show weaknesses in the many institutions we have created? Is it not wrong for institutions to commit errors which they are willing to rectify, it is wrong to keep hero worship failing institutions for their own sake whilst they inflict a harrowing damage on our democratic revolution. It is disingenuous to expect any revolutionary to keep quite when things go wrong in this way.

Suffice to mention that some of the well-known comrades have been canvassed to join the chorus against their own organisation in the name of independent views, amongst these comrades are Raymond Suttner and Kader Asmal. The less said about others like Professor Themba Sono the better, for we know who he is and the un-inspiring ideas he stands for, what worries some of us is that he is given the lee-way to splash hearsay assumptions and a lot of hogwash.

It is this that I want to share some views on in order to address some of the lies spewed through these pages and even given some credibility, with the abuse of those who stand against their own organisation.

Mr. Mathata Tsedu takes an issue with the position of the ANC SG on the role of the judiciary and deliberately distorts the known facts and truth and throws a lot of innuendo and irrelevant speculation that seeks to cast aspersions on the genuineness of the liberation movement’s commitment to its ideals and mandate.

So the attempt here is to respond to these utterances and views and locate them around what is essentially the crux of the matter we are being distracted from, the South African judiciary, its independence and the role of the media and whether in such matters the ANC has or should have a say or not.

What is a movement without a vision and programme? Why would Mathata question the bona fides of the leading liberation movement in South African society with such unquestionable credentials of commitment to the aspirations of the poor majority in our country? What is the agenda he is serving because we know he does have one? Or is he just a good inquisitive journalist? The latter would be great since we have long missed them. If he is the latter may he please accept my profound apology in advance. Whatever it is I think many of our people will carry forward these engagements to strengthen our democracy and our revolution for total liberation of the majority from the economic and social bondage of capitalist exploitation and the commodification of social wealth and generation of selfish private property against communal wealth.

It is a common truth that the owners of the media are big powerful institutions with vested interests in the direction the country takes and in protecting their private wealth as against public wealth, promote the exploitative and immoral capitalist system of social production based on profit maximization and not social needs. So they seek to win society through ideas and the media is the most effective means to transmit these ideas. “The dominant views in society are those of the ruling class”, Karl Marx.

Let me start by clarifying that any initiative to increase civic education on the constitution and people’s rights is welcomed, this is long overdue. The Human Rights Commission has dismally failed us in this respect. It has to do more on real issues affecting society and not grandstand for publicity sake, it knows very well it can do more and we expect nothing less from it.

The maturation of democracy is also signaled by the overwhelming engagement of democratic institutions from all corners of society, not least the ANC which is the leading force in South African society. It should raise its fears and concerns when the letter and spirit of the foundation of democratic institutions is abused. Obviously, one will be worried if our democratic institutions are equated to the ANC such that it can’t even speak. Equally, one would be very worried if the ANC acts by inaction and speaks by silence when democracy and its institutions that it so much fought for are blatantly abused and reduced to mere worshiping of social status of personalities leading them and occupying high positions in society.

Anyone, including the mis-guided Professor Sono and our own Professor Asmal questioning the commitment of the ANC to constitutionalism is less than candid with the truth and devoid of factual accuracy and historical record of truth and precedent. It is a mere play in the political gallery to skew and perverse public opinion against the ANC based on the fears of the ruling class and not of the majority of people who still support the good work of the ANC.

Our people have no doubt about the ANC led alliance’s commitment to constitutional democracy and equally so about the challenges we face to change our society into a truly democratic and prosperous one. Comrade Asmal is quoted in the Weekender and Sunday Times lambasting the current and un-changed positions of the ANC based on one incident for which apparently the ANC did not act according to his liking.

He says in the Weekender “We adopted the constitutional order which was a product of our own struggle – how can it suddenly be changed by people”? Who changed it? Everyone knows the ANC has enough majority to change the Constitution if it so wishes but it has not done that. So stop the lies and the generation of panic and the creation of the concept of things have gone wrong just because of the newly elected leadership and that one is not in the executive leadership. Comrade Asmal still has a leadership role to play in the ANC through its structures and not to rush to the media. For all we know he can raise any matter with the Secretary General or any of the leaders of the ANC if he so wishes.

Accordingly, the constitution is not a moribund and un-reactive tool that cannot be changed. This assertion is theoretically wrong and unsound but more a distortion let alone the fact that it has not been changed. Why should Prof. Asmal fear the ANC all of a sudden when its core policies remain intact? Even if they were to change that could not amount to the veiled attack on the ANC in such a scale. He shares the same fears with Mr. Makhanya of the Sunday Times without really analyzing the core values of what the ANC stands for and what it has done both wrong and right through its programme. This is the same question that can go to Mr. Tsedu who we all know how he used the City Press to fight factional battles in the ANC and now uses the recent utterances to launch another attack. Thanks for trying Mr.Tsedu but it will not succeed. We are on record to have expressed these views in public and even to the owners of the City Press.

Our Constitution remains protected and more so by the ANC and its cadres across the liberation movement.

Any democratic order established by revolutionaries should daily echo their aspirations and find resonance in their daily programmes. If such a democracy fails to prevent excesses it surely would breed conducive conditions for tyrannical tendencies and unrestrained abuses as evidenced recently by the executive role in the matter between the National Commissioner of Police and the NPA, the Arms deal investigations etc.

The Directorate of Special Operations (Scorpions) is a classic example of lack of such restrain within the constitutional democracy and protection of people’s rights that led to abuses overwhelmed by over exaggerated success rate based on picked up cases, for which even a success rate is less than convincing. The two prominent Professors kept quite all along, where was their conscience? Maybe they were in some coma or self-imposed hypnosis. Shame on the lies they spew abusing their titles and social status. The recent article by the former Commissioner of the Police George Fivaz and former Deputy Director General of the NIA Gibson Njenje is a classic piece of truth for which Professor Asmal and them could learn. Comrade Asmal should inversely have used that to resign if the Scorpions was not disbanded based on factual truth of excesses and abuse and not on twisted truth and ideas to fool society.

The mob-lynch mentality of the jurists against the alleged misconduct of Judge Hlophe.

The Judiciary in this country doesn’t learn a bit. It is reeling from one crisis to another. The latest shenanigans concerning the alleged “misconduct” of Judge President of the Western Cape Judge Hlophe is a case in point. Suffice to mention that notwithstanding the current problems the country still boast of great jurists, men and women of honour who have contributed so much to law and the legal fraternity as a whole and have done our country proud both here and abroad.

The role of the judiciary should be no lesser than legal protection of human rights of all citizens, dispense justice without prejudice, unfairness and biasness. This is the cornerstone for which all jurists must not only respect but should practice.

Let me hasten to point out the forgotten obvious, that, Judges are infallible human beings and the notion that they cannot be influenced is both incorrect and misleading. Like any human being, we are prone to be influenced primarily by our surroundings, the conditions we live in or situations we find ourselves in, by the philosophies we follow as individuals and even by ideologies when it comes to certain determination. In fact, Judges are active participants in the making of law itself by setting a series of precedents on many issues. For these they remain in the realm of interpreting the law but should remain cautious not to be the Legislators.

South Africa is proud to have not only established democratic institutions but also capacitated those that existed prior the democratic dispensation. Amongst these were the Constitutional Court, the Human Rights Commission, the Equality Court, and others in different spheres of life. These institutions have become the cornerstone of our democratic dispensation. Noting that democracy is not easily arrived at it is a process, the prolonging or shortening of it depends on the role of many such institutions, economic development and concrete improvement of educations amongst the people and development and improvement of people’s culture, cohesive social norms and values. This would weave the thread of society towards building a nation and national identity not based on the whims of individuals but the collective of the majority in society for which we derive a mandate and a privilege to continue to lead them.

But what is the Constitutional Court

The constitutional Court is an important democratic and human rights institution in our country. It has recently made very important ruling on behalf of the poor and the majority like on the matter of HIV drugs/medication, the right to water matter in favour of the struggling masses of Kliptown and thus sending a very good precedence across the country.

The state of the South African judiciary is decaying with its lack of respect for basic human rights and in fact being collusive to a perpetual assassination of human rights and justice in this country. As the saying goes, “If you keep quite at any injustice committed against other people, you are equally guilty of injustice”. The judiciary is doing a great disservice to this country. It is living in its own elitist lagoon away from the reality of the South African society. In fact, it has almost become a judicial cabal subtly colluding with one another and sending particular signals on its course of action and forgot to deal with issues of judicial transformation and fostering a culture of human rights.

What is at stake is not the conduct or misconduct of Judge Hlophe, rather is the constitutionality of the crisis at the Constitutional court. The mob lynch mentality of the jurists against “one of their own”. What is it that they are protecting? Surely, time will tell.

Hiding behind a decoy of legal framework and abusing judicial institutions to propagate an accepted concerted attack on a Judge is both unwise and preposterous as it only further tarnishes the image of the judiciary that is already tainted with a widespread perception of biasness and unfairness, the Jacob Zuma case being a case in point. To illustrate the example:

  • The Judges of the Court of Appeal in Bloemfontein sat and quoted a non-existing ruling by Judge Squires on the matter involving Mr. Shabir Schaik. This of course does not rule out the same bench coming to a similar conclusion on its own, in which case it did not.  Was there an outcry from the same jurists? They kept quiet when a whole body of jurists made such a fundamental error.  Why are they not coming out the same way on this matter proportionate to the impact each matter has on law and precedent? For God’s sake even the Judge’s clarity to the newspaper was deliberately ignored. So truth is traded for innuendo and aspersions. Did we see Mr. Tsedu coming through his pages telling the people the truth, let alone balanced reporting? I will not even try to go into the foundation of the abuse of the editorials the notorious “Off the record briefing”. Was Mr. Tsedu there, did he check his facts properly?
  • Concurrent to the above was the trial by proxy of Mr. Jacob Zuma through the trial court of Mr. Schaik. What was the role of this judicial body to stop the total persecution of Jacob Zuma by proxy without his own defence? Suffice to indicate the assurance by presiding Judge Squires that Mr. Jacob Zuma was not on trial, as we all know his assurance was in vain muted by the deafening sounds of the judicial lynch mob supported daily by a media chorus.
  • The in-appropriate utterances by an active Judge of the Constitutional Court Judge Moseneke on the Jacob Zuma case. Was Moseneke not trying to influence his counterparts or the public preparing them to accept what he was saying or could be said in similar fashion by another Judge making a ruling in a court of law? What was the response of this judicial mob? They conveniently kept quiet and those who came out shamely defended their own.
  • The “inappropriate” behaviour of Judge Mokola, sorry the matter is still pending in a court of law. It will be interesting to see how we go on this one.

There is no doubt in one‘s mind that there exist a judicial cartel in this country hell bent on preserving law their own way, protecting law from development and abusing law for their own petty interests against societal ones. The key judicial institutions have been found wanting in recent times – the NPA is a case in point even commissioning illegal investigation reported by the parliamentary Joint Standing Committee on Intelligence.  What did our Jurists say? They suddenly became mute with no conscience of justice. Was it deliberate or mere out of sight and warranting no comment?

The flagrant abuse of Mr. Jacob Zuma’s rights by the then Minister of Justice Mr. Penuel Maduna and the National Director of Public Prosecution, Mr. Bulelane Ngcuka when they publicly announced prima facie case and that it is not winnable. What did the great jurists of our beloved country do? They conveniently retreated in their laarger and suddenly become blind to the abuse of law. Even a first year law student will tell you – once there is prima facie evidence- you press charges. There is no doubt whatsoever that the judicial cartel exist across the various judicial institutions. It is not for me to point out here but the judiciary can establish a process to verify this matter. Many African lawyers have been victims of these cartels that suppress their development. It is a well-known matter in the judiciary. So what did Mr. Tsedu and his friends do about this attack on the cornerstone of justice?

In essence what is stake is the crisis at the constitutional court, the crisis of the whole body of judiciary that if not attended to sooner this country will be in the mercy of judicial cartel and cabals and we will kiss justice ever goodbye. This will be the memory we give to the martyrs of our liberation struggle for freedom, democracy, justice and peace.  Can all revolutionaries stand up for truth and defend our revolution.

Essentially, what we are experiencing is a serious threat to national peace and security instigated by the people meant to instill it. The fair dispense of justice and fairer acceptance of the rule of law is severely damaged and compromised.

The judicial dictatorship

The ascendancy of the judicial coup de tat and incessant backroom law making process that seeks to deliberately undermine and blatantly ignores legislative authority of the republic, parliament. This is derived by a series of reliance on the interpretation of the law and making law by precedents. The recent fight in the judiciary have rendered not least a major doubt on the independence of the judiciary and the squabbles have left one without any reasonable doubt of the role these jurists play in destroying the judiciary and in their concerted efforts to divide the liberation movement.

In fact a real danger is also the real possibility of the emergence of a proxy judiciary controlled from somewhere by different powers including the other powerful countries. The proxy judiciary is a real danger to our constitutional democracy as it is now obvious that national interests are super ceded by narrowly defined judicial interests for which national interests is never a consideration coupled with an incessant abuse of the concept of the rule of law. 

The danger arises of a proxy judiciary that ignores the realities confronting the country. Essentially, this subjects the nation to a judicial autocracy when they start showing traces of being amenable to political and other influences. In this instance the judiciary comes out not only undermining but is seen as seeking to subtly suppress other spheres making up the core of separation of powers, we all know it should not interfere with other spheres and they should not too. For constitutional interpretation the Judiciary should of course take the lead but it has been absent and the media gurus so called have never raised an issue as concerted as they do now.

Similarly, one sees a strong emergence of the judicial gangsterism where the judiciary is continuously ganging up of jurists against one another which poses not only the rot in the judiciary but the inability going forward of the judiciary to dispense of justice in a fair and just manner. For instance the recent appellate ruling on the Shabir Shaik versus the state matter is a case in point:

  • The joint statement of Advocate Bizos and Justice Arthur Charskalson, was it necessary to be a joint statement to make such a point? The legal standing of such jurists was mobilized to sway the general legal fraternity and the public to support their biased ideas. They shut up when a common error against the basic principles of law was committed by the state with a joint statement of the then Minister of Justice Penuel Maduna and the NDPP Bulelane Ngcuka went to the public to pronounce prima facie evidence against Jacob Zuma.
  • The rest is history since that day marking the demise of our independent and objective judiciary able to dispense fair justice. They kept quiet and never defended the constitutional right of Mr. Zuma. Was it deliberate or they were somehow busy and could not see the flagrant abuse of our constitutional rights though the attack on citizen Zuma’s constitutional rights?
  • Was it deliberate silence when the core basis of justice, the presumption of innocence until proven guilty by a court of law, was ruthlessly attacked? Why they kept quiet when the cornerstone of our constitutional democracy, the separation of powers was compromised with Bulelane (Judiciary) and Maduna (Executive) pronounced on the guilty of a person without taking him to a court of law.
  • The appellate ruling’s referrals to Judge Squires and Judge Squires’ subsequent public pronouncement that such was not in his judgment. 
  • This did not only damage the credibility and independent image of the judiciary but located the judiciary as part of faction in the affairs of the ruling Party.
  • However, notwithstanding the judgment by Judge Squires, the Appellate division Judges could still have made a similar independent ruling of its own, however it did not make such a ruling. Instead it deliberately erred by referring to a non-existing judgment. 
  • This reflects badly on the judgment both previous and past and it showed a serious lack of respect for the law and to another Judge that a wrong precedent is set by such misjudgment, worst still with a referral to a non-existing judgment. Now we should accept his nonsense just because it is said by the judges?
  • So clearly, they did not read a judgment properly, so can their ruling be regarded as properly considered in the process of the application of justice given this blatant flaw for example? But the question is, what this an innocent blunder? Can the country afford such blunders?
  • It doesn’t need a rocket scientist therefore to know the high potential for the travesty of justice present in the judiciary.
  • The recent case against Judge Hlophe.

The courts of law should be a theatre of justice and fairness and not of retribution and injustice. People should feel comfortable to seek solace and justice from the courts and not be meted with atrocious intimidation. Thanks to Zuma that he fought to defend his rights and has brought this matter of legal rights and constitutional rights to bear to the whole of society.

As they say “you would rather set ten criminals free than convict one innocent soul” this emphasizes on the search for justice which is truly difficult to find in this country.

The tragedy of this is that we will diminish quite quickly the standing of our judiciary build on the legacy of men of justice like Nelson Mandela, Oliver Tambo, Duma Nokwe, Bram Fischer, Joe Slovo, Mahatma Ghandi and others.

The South African jurists must comprehend that the condition of peace in a country is equally premised on a fair and just judiciary and vice versa. Lack of the above and the inability to attend to pertaining social problems are a breeding ground for violence. If the judiciary continues to conduct itself either in real or perceived, with judicial impunity we are headed for a real crisis beyond what they can fathom. They should be held accountable to the masses who are the ultimate arbiter of societal problem. Put the matter up for referendum or listen to the will of society. As for the movement its commitment to the will of the people remains unquestionable despite what the skeptics are saying and together with the masses we are prepared to defend the 1994 democratic breakthrough and further consolidate our revolution, Mathata and them if they are honest members of this society should come forth and be counted on the side of truth and stop abusing their positions to spew hated in the name of defending the constitution. They should know that the honeymoon is over time for delivery is now or never and “the revolution and its defence are inseparable”.

The judiciary must urge the inspiration of society to justice and truth and the media should equally without taking sides also tell stories of hope of the future of the country because they are many, and not only paint the it gloom to justify the in-accuracies and boardroom perceptions of the ANC and where the country is going.  This further shows how the media consumed by gossip, lies and innuendo had degenerated to be the sole voice of factional dissent against the movement. It will be correct for the fourth estate to find its bearings, its rightful duty to society – to be the ear and voice of the voiceless and the centerpiece of truth and not a weapon of deceit and dishonesty devoid of truth and analysis of social development and realities open to such flagrant editorial abuse as demonstrated by recent editorials led by Mr. Mathata Tsedu and Mr. Mondli Makhanya.

Could it be that the media in attacking people’s integrity and rights expect no reply even if it is to set the record straight? Actually the media has demonstrated intolerable attitudes to criticism and loathe a basic response and yet want us to believe the many lies, half truths and conspiracies they spew out for public consumption everyday.

Furthermore it should be borne in mind that the basis of society is not the constitution, important as it is in a republican society, rather the totality of the relations of productions, i.e. the relations of property, exchange and distribution which constitute the economic structure for which its ownership in real terms determines the character of society (ideological relations) from which we can deduce society’s equality and in-equality and how it shares the produce. Many of these recent utterances are meant to protect the selfish interests of the few against the majority in the name of protecting the independence of the bench which is also staffed by well known businessmen.

The lack of systematic change in the structure of the economy is an indictment on our democratic dispensation and that is part of the major challenge the media should be raising for the benefit of the majority of the people. Many of our intellectuals have failed to properly grabble with this matter and conserved energy for on fighting what the ANC may be and not addressing the current realities. What is more worrying is their commentary laced with hate and disdain to the movement let alone any ideas for an alternative system to the vagaries and failures of the capitalist system world over that only produces extreme in-equalities of opulence on the one hand and extreme poverty on the other hand and thus sentencing billions of people to daily living conditions of squalor and deprivation.

Where are this intellectuals to salvage the demise of the human race from the inaction of capitalism. Anyone who stands against the system is condemned to oblivion, the only solace is that no social system can ever defeat the collective power of a united people and so will this fail in South Africa to fool the people. Truth and justice will prevail only the judiciary would be so damaged it will take the legal profession many years to rebuilt its almost untouchable stature and confidence it so requires

It is also correct for the movement and the SG in particular not to be cowed down by these attacks but to affirm the right of the ANC to express itself without fear of the media mob and a very alive the counter revolutionary tendency.

Similarly, we should learn that guarding the revolutionary processes is a fundamental task of all revolutionaries as no liberal will do that for us and our people except to sing the feel good charitable choruses. So we soon learn that the revolution can be easily thwarted from its course if based just on liberal values without revolutionary morality and culture. A liberation movement that does not effectively contest the ideological sphere is doomed to be overwhelmed by the owners of the media the primary instrument of sharing ideas in society.

“To be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of the others” Nelson Mandela

Happy 90 years of great life and sacrifice to our people to uMdala, Nelson Mandela, the legendary revolutionary!

Long live the National Democratic Revolution!