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“It is often said by the members and supporters of the executive that policymaking is its domain and has nothing to do with the courts. Indeed, it is said that court decisions that impact on policy made by the executive violate the separation of powers. This effort at defending the cabinet overlooks the fact that as soon as executive policy translates into law or conduct, that law or conduct must be consistent with the constitution. Otherwise, courts have no choice but to do their duty and declare that law or conduct invalid.”
-retired Constitutional Court Judge Zak Yacoob, Sunday Independent 21 May 2017
Last week there was a march against “judicial overreach” in KwaZulu-Natal. This refers to the claim that courts are interfering in areas that according to the doctrine of the separation of powers are the prerogative of the executive or legislature. Attacks on the judiciary have been a periodic feature of rule under Jacob Zuma, sometimes muted, sometimes more strident. A commitment to mutual respect emerged from a meeting between the judiciary and government leaders in late 2015, but it is now under strain.
In the history of South Africa the judiciary has had a mixed record in the eyes of those who opposed apartheid. Some of the sentiments of that period may linger on in the consciousness of many people. On the one hand, the lower courts were widely perceived as implementing the harshest laws of apartheid without mercy and often mirroring the racist sentiments of the apartheid rulers. This was sometimes seen in utterances of Magistrates or Bantu Affairs Commissioners and disparity in who was convicted of offences and the sentences meted out to black and white. This was especially true with regard to black convictions for murder and rape of whites compared with very limited white convictions.
At the level of the Supreme Court, there was a sense of professionalism in the self-image of the bar and bench, modelled on that of the United Kingdom, from where the legal profession derived. Even in the case of party partisan appointments, many of these convinced themselves that they were in fact appointed on merit and acted that out. Once on the bench some judges made decisions against the National Party government and manifested a significant degree of independence.
This independence should, however, not be exaggerated insofar as judges pledged in their oath of office to apply the laws of the Republic of South Africa of the time. In other words, whatever their personal inclinations or any repugnance they may have felt towards the laws of the day, those were the laws they were obliged to apply in court cases.
Nevertheless there was room in the application of laws, no matter how harsh the intention may have been, for more than one interpretation on certain matters and some judges took decisions that construed the impact of repressive laws in a manner that was as limited in its invasion of personal freedom as possible. When faced with ambiguity they saw their professional obligation, as members of the legal profession to align themselves with a particular set of traditions and ethics that limited state repression. This led to some people being freed from detention or restraining orders being issues against the police.
It compelled the government to continually amend or introduce new laws to limit the scope of judicial intervention by inscribing in the legislation that subjective intent in making a decision would suffice for many repressive actions by the authorities to be valid. Thus where someone was restricted in one or other way, this left very little room for examining whether or not it was justified, even if it harshly invaded the freedom of individuals or groups of individuals. That the Minister or applicable official had applied his or her mind was sufficient and could not be set aside by any court.
It became necessary and very difficult to show that some or other subjective factors had come into play rendering the decision such that it was clear that the official had not applied his or her mind. This was much narrower in scope than that of the “irrationality” recently under scrutiny over President Zuma’s dismissal of the Finance Minister and others. The basis of the claim of irrationality today is an attribution of subjective irrationality by relating the decision to objective facts that were know to exist. The judicial scrutiny and decisions related to earlier findings of dishonesty against Menzi Simelane, before he was appointed head of the National Prosecuting Authority and similar findings before the appointment of Mthandazo Berning Ntlemeza as head of the Hawks. This stood as evidence independently of whatever may have been in the mind of the official who made the decision that was challenged.
Under apartheid, many courts heard political cases where those accused had been tortured and provided testimony of such torture. Individuals who had been tortured generally had no witnesses while the police could back up one another’s evidence. My impression is that if the question of torture related to a confession, the judges would read the confession. If they felt the person was guilty as charged, they would work backwards and find a way of dismissing the allegations of torture and often commended police for their work.
These experiences may still colour the way the courts are seen today. In the course of the liberation struggle, the ANC and SACP were in the forefront of an insurrectionary approach to struggle. That way of thinking led to certain expectations of a future government: establishing a state of people’s power and in this understanding, those of us who were involved did not place great value on notions of independent institutions of state and the judiciary. That is not to say that we opposed them but they were not our main preoccupation at the time.
These ideas were less widely diffused than notions of popular power being wielded in order to remedy the injustices of apartheid and transform the character of the state, from one serving only whites to one that was responsive primarily but not exclusively to the most oppressed and exploited. This would be, amongst other things, through state control, seen as then embodying the will of the people, over key industries and institutions.
Even when the ANC constitutional committee started to advance notions of constitutional democracy with a bill of rights and constitutional supremacy in the 1980s, most ANC cadres were still preoccupied with insurrectionary activities and may not have absorbed all the implications of these shifts. Although I was trained in law I was one of those who were sceptical of what could be expected of the legal system and the constitution, even in a democratic South Africa.
Contextually, it should be borne in mind that a range of proposals aimed at protecting minority privileges and through constitutional stratagems trying to limit the power of the majority had fuelled this cynicism. One thinks of the “Buthelezi Commission” and various schemes for “consociationalism”, basing government on ethnic representation.
Also, we had seen how the judiciary had played a role in hampering progressive transformation in societies like Chile under socialist president Salvador Allende, before the infamous Pinochet coup d’état, in 1973.
We had never experienced a rights-bearing legal system and notions of constitutionalism were widely associated with attempts to limit the character and scope of post-apartheid freedom.
In the 1996 democratic constitution the shift in status of the judiciary and constitution went far beyond that which was found in the UK, which had previously been one of the main alternative sources for influencing legal approaches under apartheid. While South Africa had laws that were racially discriminatory unlike the UK, both countries shared a belief in parliamentary supremacy. As AV Dicey succinctly put it, parliament could “make or unmake any law”, and that was true in the UK and in South Africa, although unlike Britain South Africa did have a written constitution. But what parliamentary supremacy meant is that whatever parliament decided was supreme. There was no higher law. The constitution in apartheid South Africa was not a higher law. It was a piece of legislation like any other law, though there were distinct procedures required to change some provisions.
Whatever existed in previous laws in the UK could be overridden by subsequent parliaments and whatever was in the South African constitution could be overridden by parliament –as long as it observed the legal requirements for making a law.
When the famous Coloured voters cases, deriving from the attempt by the apartheid government to remove Coloured voters from the common voters roll, were decided by the then Appellate Division of the Supreme Court, they at first prevented the apartheid regime from removing Coloured voters. This was because parliament failed to observe provisions requiring a two-thirds majority in a joint sitting of parliament –laid down in the constitution –before franchise and language rights could be altered.
What is very different about the current constitution, is not only that there are no longer provisions entrenching apartheid discrimination, but also that the constitution is supreme. Any law of parliament or any action of a minister may be subject to legal scrutiny insofar as these may have violated provisions of the constitution.
But it also applies to the substance of the law, insofar as the Bill of Rights lays down obligations on the part of the state to meet basic needs. This has led to judicial decisions compelling the authorities to provide these, including housing and elements of health care or to desist from evicting people without alternative accommodation.
Under the present constitution not only is apartheid supposed to be no more but also neither parliament nor the executive is supreme. The constitution stands above these and it is the courts whose authority is invoked to decide where there are breaches of constitutional obligations.
This does not mean that courts can hear a case where there is simply a breach of trust or an obligation between a political party and its constituents, as when it fails to meet a campaign promise or undertaking, when a party is indifferent to its supporters to whom it promised this or that. These may or may not also entail legal obligations, depending on the character of the undertaking.
Where the executive or the legislature fails to meet a constitutional obligation, as in the case of the Nkandla spending which entailed diversion of funds towards private benefit and failure to hold the president to account, then the courts can adjudicate. Likewise, in the case of social grants. There was an obligation that was not discharged and the courts were called on to ensure that legal obligations were fulfilled. It should be emphasised that in all of these cases, the courts do not seek out litigants to appear before them. The courts only enter or engage with these questions when litigants approach them.
When opposition parties and civil society went to court over Nkandla and social grants there were clear legal obligations that had been violated. In the case of the cabinet reshuffle and the secret ballot one can hear in some judicial statements that the courts are much less keen to be involved. They fear that if they pronounce on these matters they may usurp decisions that ought to be made in parliament or by the executive itself. I am not saying that there will not be such decisions (and there has been on the cabinet reshuffle), but it is a terrain where the judiciary will be slow to act.
Even if the opposition succeeds in enlisting judicial support for various constitutional matters, it needs to be careful that “lawfare” does not become a substitute for winning political support in conventional ways, building its support base and constituency. The resort to the courts over Nkandla and the social grants issue became vital because parliament, through the ANC’s majority, was not holding the executive to account. In a sense the judicial decision was both a legal victory and a political gain, defending hard won rights of the people of South Africa.
Despite these victories, opposition parties and civil society formations that may hope to play a role in revitalising South African democratic life need to be cautious in resorting to courts. A judicial victory is not the same as what is gained through political organisation and through winning political support as an organisation or for a political cause or vision. It is very important that the courts are not seen as substitutes for doing the work that is necessary to build an alternative vision and also organisational work needed to mobilise and activate South Africans from all walks of life.
I was first arrested in June 1975 and released in May 1983. In 1985 I was forced to go underground in order to avoid arrest. After that “short emergency” I resurfaced partly but I was re-detained when they declared a fresh emergency on 12 June 1986. My second period in prison comprised 27 months of which 18 were in solitary confinement. What follows are excerpts from the text of Inside Apartheid’s Prison and some letters written from prison, after obtaining Jail Bird. (The new edition of Inside Apartheid’s Prison, published by Jacana Media, will be published at the end of May, being in South African bookshops in first week of June. It is advertised on Amazon.co.uk and likely to be available through other overseas outlets later)
As the months went on and on, solitary gradually wore me down. Very many letters people wrote to me never arrived. There was hardly anything getting through the prison walls. Near the end of my period in detention, the prison officials started to worry about my psychological condition. They were not concerned about my health, but worried that they might land in trouble if anything happened to me. I took advantage of the situation to apply to have a pet, confident it would succeed. I had seen how sentenced prisoners were allowed pet birds and I successfully applied to have a pet lovebird/parakeet.
One day, Sergeant Joubert, a warder who was always very kind to me, arrived with this beautiful little red-cheeked parakeet in a shoebox. GF (a gangster who asked to be called ‘The Godfather’, abbreviated to GF, with whom I had unofficial but regular contact, while I was in Diepkloof Prison) explained how to clip the wings so the bird could not fly away. It was then a question of training it. I held the bird and it bit me. I let it carry on biting, even though my hand was very sore, just to get it used to me. After a few days, it relaxed, and spent most of its time under my tracksuit or on my shoulder. It was wonderful having this beautiful little live creature with me. Its head smelt like a baby and it had no one else in the world besides me. I called him Jail Bird or ‘JB.’
We bought a cage. When I put the bird inside, it would pace up and down, much like prisoners did in their cells. When it was time to sleep, I would put a towel over the cage and JB would sleep.
We were inseparable. The bird would eat out of my mouth. I used to buy granola bars and the moment the bird heard me open the packet it would stick its beak into my mouth. When I exercised, the bird would sit on my shoulder. If it was angry with me, it would retreat into my tracksuit, and sit there. If I tried to touch it, JB would bite me.
From letters written after July 1988:
This bird is great. In the first few hours, he resisted my attempts to hold him and bit me very painfully. After a while, he got used to me and liked resting under one of my tracksuits (and excreting very regularly on the other). He is a lot like a baby and even smells like one. He is lying right now, with his beak against my chest. I let him fly around the cell (his wings have been partially plucked) but feel anxious about him hurting himself, upsetting my things or falling into the milk. He is now very relaxed with me and I take him with me when I go down to the bottom yard or to the prison hospital and it is easy to get him back when I let him run around.
Most of the time, he just sits on me. For example, he sits on my back while I ride the exercise bike. He is very naughty – if I try to get a pen from my tracksuit pocket, he’ll take a very quick nip at my finger. I also irritate him if I pull him out to stroke or kiss him. He sometimes marches straight back inside.
Right now, he is under my tracksuit, parked on my chest. When I first got him, he resisted all attempts to hold him and bit like mad. I held him tightly for a while and he began nestling up to me, under the tracksuit. I suppose it is the warmest place around here. If I walk around this place – down to the prison hospital or to the yard downstairs, where there is some grass – he sits on my shoulder.
I went to ‘the gen’ [Johannesburg General Hospital] today to see the therapist and took this guy along and he was quite a hit there. [The black political prisoners held at a different part of the prison also took time out to see the therapist]. He smells just like a baby and I feel a bit like a mother/father towards him, being quite careful to ensure that he does not harm himself in some way. I am also his jailer, in the sense that there is a cage. When he is locked in it, he paces up and down like a prisoner and sometimes climbs the walls. I only put him there when we are both going to sleep. I show him when it is time to sleep by putting a towel round his ‘cell.’
I do not know how tame he actually is, though he seems to relate to me fairly well. He sometimes gets very impatient and bites me. Yesterday, a couple of extra wings were clipped and this made him furious and every time I tried to stroke him, he would bite me and march past my hands and into the tracksuit. This evening, he is also a bit irritable. (I just performed a test – and tried to take him out. But he clung to my shirt with his beak and would accept nothing less than total capitulation from me. Now he is back, resting face downwards. If I so much as look at him under the tracksuit, he tries to bite my fingers.)
The bird remains great. During this cold weather, he just spends most of the day against my chest under the tracksuit. He is fairly tame, but still bites me. I am trying to prevent this but I think he knows that he has me beat if he gets in a very savage bite.
Many writers have remarked on the qualities possessed by Brian Molefe, that he had gained experience in the Treasury and other institutions or organisations that would have fitted him for a range of high ranking jobs, nationally and internationally. He chose instead to put his skills at the service of the Guptas and in fact prostrate himself at their feet and that of Jacob Zuma and do whatever they required, much of this being of doubtful legality.
In saying that Molefe has various qualities this is not to accept all the evaluations of what Molefe achieved for there are questions around whether or not his time at ESKOM was a success, as documented in Carol Paton’s 2016 analysis (https://www.businesslive.co.za/bd/opinion/2016-12-15-eskom-faces-future-laden-with-high-risk/)
What is important to recognise is that the readiness of Brian Molefe to play fast and loose with legality is not at all exceptional in these times, for there are very many people who have traded their integrity in exchange for financial gain or some or other position acquired through serving powerful individuals. In some ways more shocking, there are many who were once very brave who have exchanged their sense of personal pride and dignity in order to hold one or other position. They have been prepared to defend Jacob Zuma over a range of issues where he was clearly misusing his office and taxpayers funds –some deploying great ingenuity to make a case, for what would later be found to be demonstrably false and in conflict with the constitution.
In the political context in which we presently exist speaking of integrity is not simply whether or not someone speaks the truth or can be trusted with funds, whether he or she will steal or falsify the books of a branch or region of an organisation in order to siphon off funds for private use. That is an element of what we identify as a lack of integrity. But what is specific to this period and by no means peculiar to South Africa is that the route to this dishonesty and acts that constitute a breach of trust happen within a context that embodies a patron-client relationship.
For patronage to emerge there must be individuals who hope to acquire the power (and need supporters) or do command the power to allocate positions or resources to others in exchange for their loyalty or support. That means that such potentially or already powerful individuals must be located or plan to be placed in a position to access resources. These may be resources of an organisation or Foundations or Non Governmental Organisations (NGOs), the state, a State owned enterprise (SOE), a private company etc etc.
This is not a new phenomenon. It was also the case in exile when some individuals could secure better training or schooling or university opportunities than others, by virtue of their proximity to certain leaders. There were a range of other situations where some individuals or networks were placed in a way that enabled them to derive benefits that others did not receive or even do so at the expense of such individuals. The scale of these benefits was obviously of a much lower level than today though it was –perhaps- a form of tutelage for what we now see.
It was also the case, inside the country during the 1980s when some individuals accessed funds locally or from overseas and through these funds were able to secure the loyalty of other individuals. These individuals were often encouraged to form organisations with a particular orientation and those who possessed funds were able to determine whether or not organisations rose or fell, whether they had funding for hiring venues or paying transportation or could supply the food needed for delegates at one or other meeting or to print T shirts and influenced various other factors that determined whether or not an organisation survived on a sustainable basis.
The Thabo Mbeki presidency was characterised by patronage, though it generally did not converge with criminality or illegality to anything like the extent that is found today. It played itself out in appointments as well as the way some people were “in the know” of what the president wanted and others were not, those within the circle of influence being better prepared for or being part of decisions that were made.
At the time of the dismissal of Zuma as Deputy State President in 2005, leading to an upsurge of support for Zuma (culminating in his election victory at the ANC’s 2007 Polokwane conference), some individuals who had linked their future with Thabo Mbeki decided either to continue with that relationship and in most cases these people lost or resigned from positions of power. Alternatively, there were many who saw the writing on the wall for Mbeki and decided to throw their lot in with the rising Jacob Zuma. Many of these individuals had appeared to be very close to Mbeki but they recognised that they could no longer benefit from that relationship and chose their own more or less lucrative survival.
Some others, like the leadership of the SACP and COSATU also disagreed with features of the Mbeki period, notably the Growth Economic and Redistribution macroeconomic policy (GEAR), referred to as the “1996 class project” and claimed to support the rise of Zuma on an ideological basis, as a way of remedying this conservative macroeconomic policy.
In contrast to Mbeki, SACP and COSATU leaders depicted Zuma as a person who was sympathetic to the poor and less secretive than they depicted Mbeki as being.
Many of these individuals knew very well that the basis on which they were advancing the candidacy of Zuma was false; that Zuma had withdrawn from the SACP in 1990, when -unlike in the period of exile- being in the leadership of the Communist Party was no longer prestigious or advantageous. There was no consistent pro-working class or people-centred orientation attaching to Zuma. In fact, until shortly before his dismissal by Mbeki their political and socio-economic orientations had been more or less similar. One of Zuma’s biographers Jeremy Gordin refers to Zuma and Mbeki being so close in their thinking that they were more or less “joined at the hip; they operated as a team and had for a long time”. (Zuma: a biography, 2008, p 56).
The SACP knew this better than most. What they did was use their then considerable ideological and moral powers to project Zuma as being what they knew he was not; so eager were they to get rid of Mbeki. This is what is known as fraudulent misrepresentation in the law of contract, that you sell a product on the basis of qualities that you know it does not possess.
It may also have been that some of the SACP and COSATU leaders understood the inauguration of a Zuma period as bringing benefits for themselves and indeed SACP and COSATU leaders have become ministers and deputy ministers in this period.
In visiting Zuma on us, these leaders endorsed or were complicit in Zuma’s hyper patriarchal and aggressive conduct in his rape trial and the militarism associated with his rule – the singing of Umshini Wam, a song of war as his “trademark song”, endorsing his ethnic chauvinism (100% Zulu) and numerous other features that ran counter to the very basis for forming the ANC (that is, eschewing “tribalism”) and in the case of the SACP, gender policies that had become an important part of its identity under Chris Hani.
The SACP leadership now calls for the resignation of Zuma and says it was wrong in supporting him in 2007. But it is not clear that it has articulated all the reasons why it was wrong –not simply that he has turned out to be corrupt. Unless there is full awareness of the violent, hyperpatriarchal and dishonest character of this period we do not learn all the lessons.
Rebuilding the ethical qualities of South African public life will take time. It is both an intellectual question, deciding what is and is not ethical and a psychological one, deciding whether or not one will act out what we understand to be correct. We have to recognise and choose whether or not to act ethically. Let us hope that likeminded people can drive a process whereby ethical conduct is revived as a desirable and necessary basis for conducting our social and political life. It may be that if the proposed “national dialogues” take off and involve people from all sections of our society, in a meaningful way, that they can play a role.