Constitutional Hill

April, 2010:

What should come next?

Apr 12th, 2010
by Pierre De Vos.
255 comments

It has been, to say the least, a bizarre and upsetting week in South Africa. What started with the killing of the politically irrelevant old supremacists, Eugene Terreblanche (who might or might not secretly have been attracted to young black men and boys), ended with the tepid “dressing down” of Julius Malema by ANC President Jacob Zuma  (who sometimes also moonlights as the President of South Africa).

Most analysts, journalists and fearful members of the white minority have interpreted these events against the backdrop of the singing of an old struggle song by Julius Malema.

But surely all this would never have been blown out of all proportion like it was, if all members of the ruling party were impeccable democrats with an abiding respect for the Constitution and the judiciary, if the Road to Ventersdorp were not littered with potholes and empty election promises, if service delivery protests were not gaining ground because of the complete collapse of local government service delivery in some areas of the country, and if some ruling party members were not deeply implicated in cronyism, corruption and abuse of power.

The hysterical reaction to the killing of Terreblanche and the antics of a little corrupt demagogue like Julius Malema would not have occurred if – 16 years after the advent of democracy and the supposed end of apartheid – all farmers had learnt to treat their workers with dignity and respect, if all white South Africans had learnt to face the unpalatable truth that they had unjustly benefited (and in some ways are continuing to benefit) in  myriads of ways from apartheid, if most members of the white minority had made serious attempts to come to terms with their own lingering (but often unspoken and undetected) racial prejudices and attitudes of racial superiority.

It is in this atmosphere of discontent about lingering racism, rampant corruption and a lack of respect for the democratic rights of ordinary citizens in which extremists could momentarily dominate the national conversation. It is time for us to take back our country from the Malema’s and the Visagies and try to think of ways to fix what is broken.

So what should come next?

The ANC and its President (who seems more worried about spin-doctoring and about spending quality time with his wives, mistresses and many children than actually running the country) should begin to face up to some unpalatable truths. It should accept that it is in power, that it is ruling the country and that it should take responsibility for what is going wrong in the South Africa. The ANC  is the ruling party and should behave like one.

It should stop pretending that it is still in exile and that the Nationalists are still in power. It should stop talking about what it will do, and actually do something for the voters who elected the ANC into office. Instead of buying fancy cars, throwing obscenely lavish parties and generally wasting our money, the ANC government could learn to be a bit more frugal with our taxes so that it could be spent to build houses and school libraries or to pay for a Basic Income Grant to assist the poorest of the poor.

Stop blaming others. Stop blaming the past. When racists exploit and abuse their workers, do something about it. When big business, school governing bodies, and other social actors resist principled and fair forms of racial and economic transformation, stop complaining – as if, as the governing party, you have no power - and do something about it. But, of course, act in a manner that is in the best interest of the country as a whole and not in the interest of a few well-connected ANC politicians, tenderpreneurs or Kebbilists, who are out to exploit BEE and transformation in a manner that will reward incompetence, laziness and greed.

Fire corrupt, lazy and unqualified officials who sit around at home when they should really be fixing the potholes, when they should be making sure our water is clean and our electricity is working, when they should be attending to the everyday needs of poor people who live in informal settlements, when they should be making sure that our school teachers arrive at work sober and on time and actually teach our children to read and write.

Strictly enforce the existing rules regarding conflicts of interests and clean up the tender processes to prevent the Kenyafication of our public finances. Expel ANC members who steal from the poor, who corruptly obtain tenders which they cannot competently, efficiently and cost-effectively honour. Try and respect the voters who have elected you into office. Stop acting as if voters are stupid and ungrateful, as if they have to be told by heartless technocrats what their real needs are and how these needs should be met. 

At the same time, white South Africans need to take a long hard look in the mirror. Very few of us supported Eugene Terreblanche and most white people would claim that they are appalled at the kind of racism displayed by the average AWB supporter. But what do we do at dinner parties, in office meetings and at rugby matches, when our fellow white South Africans say blatantly racist things, when they patronise black South Africans, when it becomes apparent that they hold black South Africans to a higher standard than they do their fellow white compatriots?

Do we speak out about such injustices and do we make common ground with our fellow citizens whose human dignity is being attacked and whose honesty and competence is being questioned explicitly or implicitly because of their race? Do we mutter under our breath or smile benignly instead of challenging the racists? Do we turn away from the social and economic injustice that lives and breathes all around us? Do we shrug our shoulders when we are confronted by the poverty and deprivation caused by apartheid and blame it all on the ANC or on black people in general? 

For example, why do so few white lawyers speak up about the need for transformation in the legal profession? Why do so many such lawyers perversely still brief less competent white  advocates merely because the advocate is white or was an old school buddy or plays golf with the partners of the firm?

Until white South Africans take a long hard look at themselves, until they stop hiding behind a smug facade of racial superiority to insulate themselves from any responsibility for the past political oppression and economic exploitation of black South Africans, how can we move forward as a country? How can we claim to be any better than Eugene Terreblanche and his followers if we ourselves – through our silence or through our often unspoken assumptions about white superiority – help to fan the flames of racial animosity?

All white South Africans need to take responsibility for the past before we as a nation can move on. This does not mean we should become cringing apologists for incompetence, laziness, corruption or abuse of power by members of the governing party or anyone else. Taking responsibility is not the same thing as accepting second class status in one’s own country. It does mean that we should accept that we have either contributed and/or are still benefiting from apartheid. It means we should show through, words and deeds, that we are prepared to do more than merely sit on the sidelines and whine and complain about the ANC-led government while trying to make as much money as we can – all the time scanning the papers for immigration opportunities.

It is probably naive to think that the killing of Terreblanche and the embarrassing antics of Malema will lead to a sudden transformation which will allow both the ANC and the government it leads and the vast majority of white South Africans to suddenly take responsibility for the part they have played and are continuing to play in the creation or perpetuation of South Africa’s problems. But one has to start somewhere, with one ANC leader or member at a time, with one white South African at a time.

It could be you. It could be me. We have to start somewhere.

PW Botha = Julius Malema?

Apr 8th, 2010
by Pierre De Vos.
144 comments

Regular readers of this Blog will know that I have not responded to the antics of ANC Youth League President, Julius Malema, in the same hysterical fashion as some of my fellow South Africans. I have joked about my fantasy of sharing a night of passion with the Youth League leader (maybe after he loses a few kilograms first). Malema has returned the compliment by quoting me approvingly in the Mail & Guardian two weeks ago.

However, after watching the video of Julius Malema ranting at a journalist from the BBC for having the audacity to point out that Malema stays in Sandton, I was left with an uneasy feeling. At first, I was not sure why this outburst was so unsettling. Surely we have seen all this before from the youngster? Then it hit me: Julius Malema reminds me of PW Botha!

Like Botha, Malema is a man of limited intellect who never had much success with his formal education. Like Botha, Malema joined his political party of choice at a young age and despite limited abilities raised quickly through its ranks to serve in a leadership position. Like Botha, Malema is a bully who insults and intimidates opponents and some members of his own party in such a way that it gives great pleasure to his core supporters while scaring the hell out of everyone else.

Like Botha, Malema has become a figure that is both feared within his party and laughed at behind his back. PIeter Dirk Uys published a satirical book called “PW Botha in his own words”, made up entirely of quotes by PW Botha. Recently Max du Preez and Mandy Rossouw did pretty much the same thing with Malema when they published “The World According to Julius Malema”. Like Botha, Malema is often economical with the truth, making claims that cannot be sustained.

Of course, Malema does not have the finger wagging abilities of Die Groot Krokodil and he belongs to a party which fought against apartheid – unlike Botha who had people killed because they fought against apartheid. Nevertheless, both men seem to be cut from the same fascist cloth.

Just have a look at these quotes from Malema and Botha and spot the similarities! First, here is Julius Malema yesterday:

You can go out…rubbish is what you have covered in that trouser – that is rubbish. That which you have covered in [your] clothes is rubbish, ok? You are a small boy you can’t do anything. Go out…bastard! Go out! You bloody agent! >We cannot be allowed to be undermined in our own terrain, you can do that in your own offices, but here, once you come in here – this is not a playground, this is Luthuli House. It’s the head quarters of a revolutionary party which has liberated the people of South Africa. Here you come, you restrain yourself and behave in a manner that is befitting of being in the head quarters of the ANC. It’s not a beer-hall here, it’s not a drunk beer-hall – cheap beer-hall, this. And you ask anybody including political parties which tried to undermine this house what happened to them. You can undermine all of us but not the house. Never undermine the house. When you are here, you are in a different terrain. You are in our space and you are going to behave in a manner that is befitting of being in the ANC office. You don’t howl here especially when we speak and you behave like you are in an American press conference? This is not America, it’s Africa. You must behave in an African way. If you are in Rome you do as the Romans do.

Now check out some of the things Die Groot Krokodil said:

Most blacks are happy, except those who have had other ideas pushed into their ears.

The people who are opposing the policy of apartheid have not the courage of their convictions. They do not marry non-Europeans.

The free world wants to feed South Africa to the Red Crocodile [communism], to appease its hunger.

I am sick and tired of the hollow parrot-cry of “Apartheid!” I’ve said many times that the word “Apartheid” means good neighborliness.

We have such a vast task ahead of us and such great challenges to create a better future, that we can ill afford the irresponsibilities and destructive actions of barbaric Communist agitators and even murderers who perpetrate the most cruel deeds against fellow South Africans, because they are on the payroll of their masters far from this lovely land of ours. I have the knowledge because I have the facts. As head of this Government I am in the position to tell you tonight what the facts are.

No, my friend, I am not a communist. [After being heckled at a political meeting by a man who shouted: "Give black people all the vote."]

The ANC eventually got the better of PW Botha (with a little bit of help from FW de Klerk, Pik Botha and a stroke of luck). The question is whether its leadership will get the better of Malema? Or maybe the real question is whether ANC leaders want to get the better of him? I often wonder why the good people in the ANC do not take on Malema and if this silence means that they are not good people after all.

But I suppose that is a question to be left to the conscience of the good people inside the ANC. Wonder if they sleep well at night. [Botha said in 1987: "I switch off the lights and sleep within a few minutes. I never take a guilty conscience with me to bed."]

The end of democracy?

Apr 8th, 2010
by Pierre De Vos.
32 comments

“Hard-core pornography.” wrote Justice Potter Stewart in a celebrated US Supreme Court case of Jacobellis v. Ohio, was hard to define, “but I know it when I see it”. Corruption is much the same. Regardless of our race, political affiliations or cultural background, we can identify corruption when we see it.

When we hear about a friend who paid a traffic cop R200 to avoid getting a speeding ticket, we know he was party to a corrupt activity. When a colleague uses funds from the company to buy household appliances for her sister, we know that she is corrupt. When we see evidence that successful arms deal bidders have paid millions of Rands in “commissions” to well connected and powerful people, we know that corruption was involved. Decent people know what corruption is. They avoid getting involved in it and they expose it when they are made aware of it.

Sadly, many South Africans – of all races and political persuasions – are not as decent as one would have hoped. They either engage in corruption or condone it when it happens. This permissive attitude towards corruption eats away at the fabric of our society and subverts our system of government and our democracy.

We therefore do not need the Public Protector to tell us that the ANC has become infested with corruption. Through its investment company, Chancellor House, it will profit handsomely from the building of power stations by Eskom. News reports suggest that the ANC stands to make between R1 billion and R5 billion from the deal because the ANC owns a 25% share in Hitachi through its investment arm, Chancellor House, and Hitachi had been awarded the tender to build boilers for the Medupi power station.

The Public Protector found that former Eskom chairperson Valli Moosa acted improperly when the utility awarded a contract for the Medupi power station to the Hitachi consortium. Former Public Protector Lawrence Mushwana found that Moosa failed to manage a conflict of interest arising from the 25% stake of African National Congress (ANC) investment company Chancellor House in Hitachi Power Africa. And now the World Bank is poised to grant Eskom a loan that will help it to build the power station from which the ANC will profit.

The ANC, deploying the kind of twisted logic used by crooks all over the world, said it would drop its stake in Hitachi Power Africa only if funding rules were changed for all political parties in the country. This statement suggests that someone else is responsible for the funding rules applicable to political parties. But this is utter nonsense. The ANC dominated Legislature can change the funding rules for political parties at any time. All the ANC has to do is to pass legislation imposing strict rules about the funding of political parties and about transparency of political party funding. This it promised to do a few years ago when it was taken to court by Idasa to reveal its sources of funding. Sadly that promise turned out to have been false and nothing has been done.

There are good reasons for the reluctance of the ANC to change the funding rules. As big business and the ANC has learnt to dance the dance of corruption, and as it has become apparent that this legalised corruption will entrench the power of the ANC, the party has realised that it would be mad to act in a manner that would be in the best interest of the voters. Who cares about saving democracy or serving the interest of the poor if one can entrench one’s power and make money?

What no one with two brain cells can ever dispute is that the ANC – like any other political party – has absolutely NO business in doing business in South Africa. Although it is presently not illegal for political parties to engage in business – at least not when that business was not based on the awarding of contracts by the state in a seemingly corrupt manner – it should be illegal.

Unless the involvement of political parties in business is made illegal the political process will be completely corrupted by big business and money. In the long term the fat cat capitalists and tenderpreneurs will benefit while the ordinary working poor and the jobless will suffer. As the interests of big business and the big business interests of the governing party takes precedence, those who vote for the ANC will suffer while the average DA voter (who will benefit from the cosy relationship between big business and the ANC) will not really be affected.

There are at least four reasons why political parties should never be in business. First, if a political party – especially a governing party – is involved in business it WILL use its power and influence at some point to try and profit from government contracts. The end result is corruption, the inevitable increase in the cost of delivery of services and a decline in the quality of those services. The Hitachi deal demonstrates this very clearly.

Second, a governing party will be tempted to make policy decisions based not on what is good for the people whom they have to serve, but rather on the basis of what is good for their business. For example, they might actively or tacitly support huge hikes in electricity prices to help pay for the building of power stations from which they will make billions of Rands. Ordinary South Africans will then suffer from sky-high electricity prices in order to subsidise the party in power. Ordinary people will be helping to pay for the elections campaign of the governing party and will help to keep the very corrupt party in power who has failed to arrest the price hikes that made us poorer. 

Thirdly, the power of incumbency will provide a political party involved in business with ample opportunities to become corrupted by private business who will try to cosy up to it and might offer the party’s investment company lucrative business opportunities in order to prevent the governing party from adopting any policies that would not be in the interest of big business. Thus, our democracy will become corrupted as the needs of ordinary voters are superseded by the needs of big business. 

Pharmaceutical companies or other companies involved in health care may entice the governing party with business opportunities, say, to ensure that the governing party never introduces a National Health Insurance scheme which might hit at the profits of those companies. The result is that more poor and destitute people will needlessly die because of a lack of proper health care. This corruption that will follow from political party involvment in business could therefore literally be deadly.

Lastly, a governing party who makes billions from business will be able to buy elections. Once one party has billions of Rands at its disposal to buy votes, we might as well scrap elections altogether. As we know from the US example, money plays a decisive part in who wins and who loses elections. If the system is rigged to benefit the incumbent party, we would have reached the end of any semblance of competitive elections and thus we would have witnessed the death of democracy.

In his State of the Nation address President Obama directly condemned the U.S. Supreme Court over a decision allowing corporations to contribute to political advertisements. Where the political party in power has itself became a big corporation that rakes in millions from government contracts and other deals with big business (whose interests it will be bound to protect), democracy dies. No other political party will be able to compete at election time and the election would become no more than a vote buying exercise.

Troubling in all this is that Cosatu and the SACP has not made more noise about the involvement of the ANC in business. In the end, the involvment of the ANC in business will bring it closer to big business and will force it to abandon Cosatu and the SACP. This WILL lead to the marginalisation of Cosatu and the SACP and will ensure that the tenderpreneurs and nationalists take full control of the ANC. Can the end of the Alliance and of any influence for the left on our politics then be far off?

Will it be too late before we notice that the inevitable corruption that accpompanies political party involvement in business has killed our democracy? I suppose we will only know it when we see it.

A secret trial for Terreblanche accused?

Apr 6th, 2010
by Pierre De Vos.
31 comments

I must confess that I am dreading the weeks and months ahead as the trial of the alleged killers of Eugene Terreblanche gets under way. The past few days have shown that the killing of Terreblanche has become something of a Rorschach test for South Africans. Many of us seem to have interpreted the killing of Terreblanche by projecting our own fears, prejudices, hatreds and ideological and emotional commitments onto the events of the weekend. This has exposed the serious racial fault-lines in our society for all to see.

My first reaction to a report that the entire trial of the 15 year old accused and his 28 year old co-accused would be held in camera was therefore one of relief. Maybe this will spare us from the relentless and sensationalistic coverage by the media and allow us to paper over the racial fissures in our society.

According to George Baloyi, spokesperson for the NPA, the entire trial would be held in camera, due to the age of the one accused. ”The law is very clear the trial must take place in camera,” he said. NPA head Menzi Simelane confirmed that there would only be one trial, saying thus far “from the information, they are the only ones involved in the crime”.

The problem is, despite the practical problems with conducting two separate trials and despite the trauma that a public trial might inflict on the body politic, I am not sure that having the trial of the adult accused in secret would be either wise or lawful and constitutional.

Section 16(1)(a) and (b) of the Constitution provides that everyone has the right to freedom of expression, which includes freedom of the press and other media as well as freedom to receive and impart information or ideas. Section 34 does not only protect the right of access to courts but also commands that courts deliberate in a public hearing. This guarantee of openness in judicial proceedings is again found in section 35(3)(c) which entitles every accused person to a public trial before an ordinary court.

It is clear from section 63(5) of the Child Justice Act that the 15 year old accused could (and probably should) be tried in camera. It is also clear from the jurisprudence of the Constitutional Court that this provision is constitutionally valid as it is aimed at protecting the best interest of the child concerned. However, a cursory look at the Child Justice Act and the relevant jurisprudence of the Constitutional Court reveals that the adult accused might well have to be tried in open court.

First, section 63(2) of the Child Justice Act states that “where a child and an adult are charged together in the same trial in respect of the same set of facts” the Child Justice Act will apply to the child while the Criminal Procedure Act will apply to the adult. This could suggest that both could be prosecuted in the same court where the trial would be conducted in secret, or it could mean that the secrecy provision applicable to the young accused should not apply to the adult. To solve this riddle it will be necessary to seek help in the Criminal Procedure Act.

The Criminal Procedure Act contains two relevant provisions in this regard. Section 152 states that usually criminal proceedings in any court shall take place in open court. This provision is qualified by section 153 of that Act which states that:

If it appears to any court that it would, in any criminal proceedings pending before that court, be in the interests of the security of the State or of good order or of public morals or of the administration of justice that such proceedings be held behind closed doors, it may direct that the public or any class thereof shall not be present at such proceedings or any part thereof.

The Act also states that in a case where a trial is held in camera “the court may direct that no information relating to the proceedings or any part thereof held behind closed doors shall be published in any manner whatever”. This means the whole trial could be held in secret and one would only be able to ascertain details of the case if a judgment is written and published in a bona fide law report. If one assumes that these sections are constitutionally valid – something that is far from certain, given its potentially rather broad ambit – it will have to be interpreted in such a way that it conforms to the spirit, purport and object of the provisions in the Bill of Rights quoted above.

The Constitutional Court has made several statements in this regard, emphasizing the importance for the credibility of the administration of justice of having public trials. In SABC v NDPP, Langa CJ stated the following:

Open justice is observed in the ordinary course in that the public are able to attend all hearings. The press are also entitled to be there, and are able to report as extensively as they wish and they do so. Courts should in principle welcome public exposure of their work in the courtroom, subject of course to their obligation to ensure that proceedings are fair. The foundational constitutional values of accountability, responsiveness and openness apply to the functioning of the judiciary as much as to other branches of government. These values underpin both the right to a fair trial and the right to a public hearing (ie the principle of open courtrooms). The public is entitled to know exactly how the judiciary works and to be reassured that it always functions within the terms of the law and according to time-honoured standards of independence, integrity, impartiality and fairness.

More recently in Shinga v The State Yacoob J explained the constitutional interest in open court rooms in the following terms:

The survivors of crime, those accused of it and the broader community have a right to see that justice is done in criminal matters.Seeing justice done in court enhances public confidence in the criminal-justice process and assists victims, the accused and the broader community to accept the legitimacy of that process. Open courtrooms foster judicial excellence, thus rendering courts accountable and legitimate. Were criminal appeals to be dealt with behind closed doors, faith in the criminal justice system may be lost. No democratic society can risk losing that faith. It is for this reason that the principle of open justice is an important principle in a democracy….

The requirement of fairness must also take into account that all victims and their families have an abiding interest in the outcome of the appeal and have a right to attend the proceedings so that if the appeal should succeed, they have at least been given the opportunity to witness the process that gave rise to this result. It is a fundamental tenet of the administration of justice and the rule of law that appeals, particularly criminal appeals, are not held behind closed doors.

Sadly, the forthcoming trial will take on considerable importance as many South Africans have interpreted the killing of Terreblanche in racial terms. In the absence of a public trial for the 28 year old accused, gossip and conspiracy theories are bound to emerge and distrust of the judiciary among some members of the public will be heightened. This problem will become more acute if  a verdict or a sentence imposed (in the event of the accused being found guilty) fail to garner approval of a certain section of the population.

Although there are some practical problems with the splitting of the trials of the child and the adult accused, and although one does not know whether evidence led at the trial might inflame emotions, it therefore seems imperative that the trial of the adult accused be conducted in public. A failure to do so runs the risk of discrediting the trial (and to some extent the whole judiciary) in the eyes of those who do not agree with a verdict or a possible sentence.

One hopes that all involved in this trial will consider the constitutional requirement for open justice as set out above before proceeding with a secret trial for both accused in this case. They will also have to take note of the fact that it is imperative to conduct the trial in such a way that it enhances, rather than detracts, from the legitimacy of the judiciary. Excessive secrecy may well lead to misunderstandings and distrust and may well allow people to question the legitimacy of the legal process – regardless of the outcome – in a manner that could severely harm the authority and integrity of the judiciary.

Although I am slightly conflicted on this issue, on balance, given the legal framework and the jurisprudence of the Constitutional Court, the decision of the NPA to conduct both trials in camera therefore seems wrong on policy grounds. The decision also seems to be constitutionally problematic. A rethink by the NPA is thus required.

Wake up and worry about the real threats to our democracy

Apr 6th, 2010
by Pierre De Vos.
195 comments

I really do not understand why everyone is making such a fuss about the murder of a completely irrelevant, right wing, racists, megalomaniac like Eugene Terreblanche. Of course, it is always tragic when someone is killed, and Mr Terreblanche’s family and friends must feel much sadness at his passing – something we must try and respect.

But although the killing of yet another South African does remind us of the extremely violent and polarised nature  of the society we live in,  Terreblanche was politically a spent force and his murder – no matter how sad and senseless – was therefore irrelevant from a political perspective and his death should not have been as politically noteworthy as it has become. After all, the AWB consists of no more than a few bearded grey men who seem to have an inability to stay on top of their horses after drinking one brandy and coke too many.

There are far more sinister and politically relevant events to worry about. Our democracy is facing a fundamental threat from the Kebbelists, the tenderpreneurs, the facists and the Stalinists, but we are all so busy getting hysterical about a silly song and about the sad killing of a lonely old man, that we hardly seem to notice.

News that Mr. Kebby Maphatsoe, national chairperson of the MK-veterans association, launched a vicious attack on the judiciary by saying  that judges who ban struggle songs like “Kill the Boer” “wants to bring back apartheid” poses far more of a danger to our democracy than the killing of Terreblanche or even the singing of the “Kill the Boer” song. The fact that Julius Malema and the MK veterans are on the same page and are both undermining the judiciary because of the “Kill the Boer” ruling is really scary.

Julius reinforced the view that he has utter contempt for our constitutional democracy on Saturday when he said the following to the SABC from Zimbabwe (where he was making friends with his fellow anti-democratic kleptocrats):

That court interdict does not apply here [in Zimbabwe]. The order was granted by an untransformed judiciary system, which is the same one that was operating during the apartheid system. It [judiciary] was defeated by the struggle.

Meanwhile the MK veterans association said yesterday they refused to accept the interim interdict. “There is no way we would stop singing this song. The judge (Bertelsmann) is uninformed. It is people schooled in apartheid laws who have been sitting there for 40 years and do not realise that things have changed” which hand down such judgments, Maphatsoe said. According to the MK veterans, judges who do not understand the history of the ANC and the armed struggle is not entitled to pronounce on issues that touch on the heritage of the ANC.

This kind of talk is far more dangerous and irresponsible than the singing of the actual “Kill the Boer” song. It is also uninformed and idiotic and suggests that Mr Maphatsoe is not the sharpest tool in the shed and does not have a firm grip on reality.

The thing is, Bertelsmann granted the interim  interdict on the basis that a case had been made out that it infringed on section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act. Mr Maphatsoe and Julius Malema seem not to understand that this act was passed by the democratically elected Parliament and contains a sweeping hate speech provision that will almost certainly be found to prohibit the “Kill the Boer” song when it is sung in a political context. Judge Bertelsmann did not apply apartheid law but the law tabled in Parliament by the ANC Minister of Justice and voted for by the ANC dominated legislature.

It is scandalous that these enemies of democracy now want to argue that because they do not like the law which they themselves passed, they will ignore the interpretation of that law by a judge (who happened to have been appointed after 1994 by the democratically elected President) and will ignore the order by the court. Such statements fundamentally undermine respect for the independence and integrity of our courts and are seditious. This is the kind of fascist talk that poses a grave danger to our democracy.

The statement that only judges who understand and agree with the ANC version of history will be respected and that those judges who choose to apply the law rather than obey the whims of the ANC MK veterans and Youth League cannot enforce the law against the ANC, is so fundamentally at odds with any tenet of democracy that one suspects Stalin himself might have come to Mr Maphatsoe in a dream to give him this startling insight. These people are dangerous. They will destroy our democracy if they are not stopped.

President Zuma rightly received some praise for his statesmanlike remarks in the wake of the killing of Terreblanche. But statements are not enough. ANC leaders need to reign in these dangerous anti-democratic forces in their midst. Talk is cheap, but what is really required is action. Julius should be disciplined for his shocking disrespect for our democratic order and for his behaviour which fundamentally undermines one of the three branches of our government. If he is not disciplined it will suggest the ANC tacitly supports this little fascist kleptocrat (or at least, are too scared of him to do anything about his actions).

Speaking of Malema’s kleptocratic tendencies, City Press reported on Sunday that Julius Malema has now officially asked the Companies and Intellectual Properties Registration Office (Cipro) to de-register him as one of the directors of SGL Engineering Projects. This means, first, that Julius has been lying all this time about not being a director of SGL Engineering and about having asked for his membership as a director to be removed from the register months ago. If he is only now asking to have his name as a director removed, he was obviously lying when he stated previously that he was no longer a director.

Being caught out in such a blatant lie should have embarrassed Julius and the ANC. Brazenly telling lies like this and then implicitly admitting that you had lied, brings one’s organisation into disrepute and perpetuates the view that one’s organisation is stuffed chock a block with dishonest thieves. Surely any organisation with any pride and self-respect, with a moral compass of sorts, would have instituted disciplinary action against a member caught out telling such blatant and self-serving lies?

Second the fact that Little Julie is now giving up his directorship means nothing, because whether he is a director of SGL Engineering is really neither here nor there. The question is whether he owns shares in the company and is entitled to share in its profits. One can give up one’s directorship but still hold a 70% share in the company and take 70% of the profits made by that company. One need not be a director of a company to profit from the illegally obtained tenders given to that company.

So, even if Malema gave up his directorship, chances are that he is still raking in the money as the majority shareholder in the company. No wonder Julius went to Zimbabwe this weekend. He obviously wanted to get some tips from ZanuPF about how they had managed to stay in power for so long while mercilessly looting state coffers and stealing from the poor.

These issues are the issues that will destroy our democracy and will ruin the lives of ordinary South Africans who vote en masse for the ANC - not the singing of a “Kill the Boer” song or the murder of a has been racist. Wake up people and make a noise about the things that matter!

Malema in contempt of court?

Apr 5th, 2010
by Pierre De Vos.
95 comments

It has all been so predictable. Last week Judge Eberhart Bertelsmann handed down judgment in the North Gauteng High Court barring African National Congress Youth League president Julius Malema from using the words “shoot the boer (farmer)”. In his judgment, Judge Bertelsmann said: “The first respondent [Malema] is also barred from uttering any song of a similar nature which incites violence.”

The order would be effective until the matter is heard in the Equality Court, where it has been referred by Bertelsmann. This seems like a far more considered and astute judgment than the previous court order which purported to ban the use of the words “Kill the Boer” in the abstract. It correctly finds that only the Equality Court can give a definitive judgment on whether the chanting of these words by Malema in a certain context constitutes hate speech in contravention of section 10 of the Equality Act.

But Malema is trying to rustle up support from his constituency and to distract all of us from the credible news reports that he is a liar and a crooked tenderpreneur, so it was inevitable that Malema would do something to up the ante and to defy the court order. This he did when he chanted the “Kill the Boer” phrase in Zimbabwe.

The question that now arises is whether Malema could be convicted of contempt of court for singing the words in another country. Surely, the argument goes, our courts will usually not have jurisdiction to regulate actions taken by an individual in another country like Zimbabwe?

It seems to me the answer might be far less clear than that.

The Supreme Court of Appeal found in the case of Metlika Trading and Others v The Commsioner for the South African Revenue Service in 2004 that where a respondent is a resident of South Africa, a South African court may assume jurisdiction to grant an interdict (whether mandatory or prohibitory) against that person “no matter if the act in question is to be performed or restrained outside the courts jurisdiction”. The court also found that such an order could be enforced by contempt of court proceedings.

In that case the question was whether the court could restrain someone from taking certain actions in Mauritius and if it could do so, and that person failed to adhere to the court order, whether the person could be found guilty of contempt of court. The court found that a South African Court could order a person not to do something – even in Mauritius – and if that person then failed to obey the court order the person could then be found guilty of contempt of court.

Thus, unless I am missing something and (of course) depending of the exact wording of the order handed down by Bertelsmann, Julius Malema could have made himself guilty of contempt of court – even though he had sung the words in Zimbabwe and not in South Africa.

Whether it is worth pursuing this option and whether it would be politically astute to give Little Julie a platform from which he could paint himself as a martyr, is another question. Given the murder of Eugene Terreblanche and the unfortunate hotheaded statements made by some in the wake of that murder, I am not sure such a course of action is the correct one.

What is needed really, is for the ANC leadership to act wisely and decisively, to reign in Malema and to allow everyone to calm down. Sadly, I am not sure whether the present ANC leadership has either the wisdom or the courage to act decisively. Given the fact that everyone (inside and outside the ANC) seems scared of the kind of populism that Malema threatens to unleash, what we might get is not decisive and wise leadership but mealymouthed platitudes about “debate” and “discussion”.

This would not be surprising, given the fact that the ANC leadership has lost its moral authority over the past year or two and seems too scared or too intent on making a fast buck to act in a principled manner.

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