Julius Malema

Malema verdict might not be something to celebrate

Feb 6th, 2012

It is understandable that members of the chattering classes as well as other members of the public (including many rank and file members of the ANC yearning for a, perhaps mythical, simpler time when ANC Youth League members behaved properly and listened to their elders) on Saturday applauded the verdict of the ANC National Disciplinary Committee of Appeal (NDCA) which confirmed the guilty verdict against Julius Malema.

It could not have hurt that the verdict was delivered by a confident and in charge Cyril Ramaphosa, who reminded us again why so many of us have regretted the fact that he lost out to Thabo Mbeki when Mandela’s ANC had to appoint a Deputy President and why some of us still wistfully wonder what might have been if he had become our President instead of either Thabo Mbeki or Jacob Zuma.

Although some newspaper editors might miss Malema (given the fact that he has the ability to make news and sell newspapers), most of us might feel slightly relieved that this hypocritical demagogue has been dealt with so effectively and seemingly so decisively by the ANC senior leadership.

Yet, there is something about the way in which Jacob Zuma and Gwede Mantashe managed to clip Malema’s wings that sits uneasy with me. If they could do it to him, I wonder, could they do it to anyone else – including every single one of us who are members of the chattering classes and sometimes mock or criticise our dancing and singing President and every single ANC member who fails to toe the party line or who speaks out against the abuse of power or incompetence by some members of the leadership?

Is there not just a whiff of Stalinism about the way in which Zuma and Matashe got rid of a political enemy? Can we expect the pictures to be airbrushed next so that Malema will disappear completely from official ANC history?

Recall that Malema was convicted on three charges, two of them having been confirmed by the NDCA. First, he was convicted of contravening Rule 25.5 (1) of the ANC Constitution “by behaving in such a way as to provoke serious divisions or a breakdown of unity in the organisation”. His sin was that he addressed a press conference on 31 July 2011 at the conclusion of an ANC Youth League NEC meeting where he said amongst other things “in the past we know President Mbeki used that agenda very well …. The African agenda is no longer a priority and we think that there is a temptation by the coloniser and the imperialist to want to recolonise Africa in a different but sophisticated way and President Mbeki stood directly opposed to that type of conduct.”

The NDC found that through his utterances Malema sought to portray the ANC government and its leadership under President Zuma in a negative light which therefore had the potential to sow division and disunity in the ANC. The NDCA confirmed the reasoning of the NDC. The implications of this verdict are rather stark. Any ANC member who now suggests that an out of favour former President may have done some good and that he might have been better than an incumbent leader can now be kicked out of the Party for contravening Rule 25.5(1). If this principle had been applied consistently in the past, Mbeki would have been able to get rid of Zuma and most of his opponents long before the votes were counted at Polokwane. To his credit, he never used such tactics against them.

The verdict comes perilously close to suggesting that no ANC member will henceforth be allowed ever to criticise the incumbent ANC leadership in public. This is a rather handy precedent to set if one intends to stand for a second (or third) term in office or if one wishes to “manage” future leadership elections. To my mind the ruling on this point seems profoundly undemocratic and deeply dangerous and both ANC members and other members of the public should feel more than a bit worried about this move. One should not confuse approval for the outcome of this case (silencing Malema) with what is good for the ANC and South Africa and if one does, one underestimates the possible ruthlessness of the current bunch of ANC leaders aiming to secure a second term for themselves at Mangaung.

Malema was also convicted of contravening Rule 25.5 (c) of the Constitution of the ANC by behaving in such a way as to bring the organisation into disrepute. This was done for ostensibly slightly more plausible reasons, namely because he addressed a press conference on 31 July 2011 by making announcements amongst others:

That the Botswana leadership of government poses a serious threat to Africa so we need a progressive government in Botswana;
We are not going to sit with neighbours that conduct themselves like that. Botswana is in full co-operation with imperialists and the government is undermining the African agenda;
The ANC Youth League would establish a Botswana Command Team which would work towards uniting all opposition forces in Botswana to oppose the puppet regime of Botswana led by the Botswana Democratic Party.

Now, imagine, for a moment that the statement did not relate to Botswana but to Zimbabwe and that Zwelenzima Vavi had made it and not Malema. Imagine Vavi had said that Robert Mugabe and his Zanu-PF had ruined Zimbabwe and that Cosatu would mobilise ANC members to oppose the murderous regime in Zimbabwe and to unite opposition forces in that country to try and oust Mugabe. If the Zuma and Mantashe had then proceeded to discipline Vavi and if he was then suspended from the ANC, would we all be cheering this on as we are doing with the Malema case?

Surely ordinary ANC members (yes, also those who helped to get rid of Thabo Mbeki at Polokwane, ostensibly because of his dictatorial tendencies) should feel more than a bit uncomfortable by the manner in which Malema had been dealt with? I ask again: will there be other casualties and will the same principles be used to get rid of other opponents who do not shut up? Will they go after Matthews Phosa? Will they go after Kgalema Motlanthe if he ever grew a backbone and actually indicated that he was interested in presidency of the ANC? Will they go after our charming, but arch-opportunist, Tokyo Sexwale, for showing rather too much ambition?

And should this not all be read against the background of the pending suspension of a senior NPA prosecutor, reportedly because she refused to drop charges against crime intelligence boss Richard Mdluli who is said to enjoy protection from “right at the top”? Remember that last year a secret report prepared by Mduli was leaked to the newspaper and that this report claimed that various ANC leaders met in January 2010 in Estcourt, KwaZulu-Natal to plot the ouster of Jacob Zuma. (Why crime intelligence was involved in such a story is unclear as it is perfectly legal in a democracy for political contenders within a party to plot against each other – as long as they use only legal means.)

Key members of the group that is said to have met are KwaZulu-Natal provincial premier Zweli Mkhize and Human Settlements Minister Tokyo Sexwale.

Remember also that the Secrecy Bill has just as much if not more to do with attempts by the intelligence agencies (firmly under the control of Zuma and Mantashe) to protect their agents and to prevent any exposure of their – legal or illegal – activities which we now know (thanks to Mduli) also focus on the succession race inside the ANC.

It might be that Malema is a special case and that the extraordinary precedent set by this disciplinary case against Malema will not be used against other critics of the current ANC leadership or against anyone who dares to show any ambition to take over the job of President or Secretary General of the ANC. But do not count on it.

Can the government intervene in Limpopo?

Dec 6th, 2011

by Pierre De Vos.

41 comments

The statement of the national cabinet issued yesterday announcing that the national executive is intervening in three Provinces because of concerns “about the state of financial management and governance” in those provinces, once again highlights the nature of the quasi-federal system established by our Constitution. It raises questions about the nature of the relationship between provincial governments and the national government.

More cynical observers — including the ANC Youth League - have also asked questions about the timing and the motivation of this announcement and might wonder whether it has anything to do with President Jacob Zuma’s fight back campaign to neutralise his political opponents inside the ANC. Can it be a co-incidence that the most drastic kind of intervention allowed by the Constitution was only launched in the home province of Julius Malema?

Who knows?

Cabinet announced that it had “received reports on trends in provincial under spending, overspending and challenges with supply chain management” in Gauteng, Limpopo Province and the Free State. It has therefore decided, amongst other things, that “Limpopo Provincial Government be placed under a section 100 (1)(b) intervention of the Constitution” and that members of the National Executive will assume responsibility for the Provincial Treasury, Education, Transport & Roads, Health and Public Works of Limpopo Province.

Section 100(1)(b) of the Constitution seemingly allows for this move as it states that “[w]hen a province cannot or does not fulfil an executive obligation in terms of legislation or the Constitution, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation,… [by] assuming responsibility for the relevant obligation in that province to the extent necessary to maintain essential national standards or meet established minimum standards for the rendering of a service; maintain economic unity; maintain national security; or prevent that province from taking unreasonable action that is prejudicial to the interests of another province or to the country as a whole”.

The Provincial executive of Limpopo has a constitutional duty in terms of section 125(2) of the Constitution to implement all national legislation within the functional areas listed in Schedule 4 or 5 and to co-ordinate the functions of the provincial administration and its departments. These functions include those now taken over by the national executive. One assumes the cabinet believes that the Limpopo Province is “unable to fulfil its obligations” to run the various functions now taken over by the national executive as it is allegedly experiencing a cash crisis. According to the cabinet statement:

They used up their R757,3 million overdraft facility with the Corporation for Public Deposits (CPD). The CPD is the subsidiary of the South African Reserve Bank which facilitates banking arrangements that national, provincial governments and state owned entities have with the Reserve Bank within which they inter-lend to each other with the approval of the National Treasury. Limpopo had requested that their facility should be increased by R1 billion (to R1,7 billion)from the National Treasury for the province to pay salaries and wages on the 23 November 2011. This request was declined but alternative arrangements were made for an early transfer (2 days before the actual date of transfer) of their equitable share in order to be able to pay salaries.

If this is correct, the provisions of section 100(1)(b) quoted above (in terms of which this action was taken) is probably suitably broad to ensure that this intervention is constitutionally allowed. After all, if a Province runs out of cash and cannot pay the salary of its employees, the intervention might be said to be necessary to ensure that the province provides a minimum standard for rendering a service.

This section represents a potentially radical incursion on the autonomy of a Province and should be read narrowly so as not to empower the national government to interfere in the workings of a province merely for political reasons. This is so because an expansive reading would be in conflict with the larger scheme of the Constitution which creates provincial governments with both exclusive powers and powers it has to exercise in concurrence with the national government. Nevertheless, even on a constricted reading, the requirements of section 100(2) are probably met.

The Constitution does contain a safeguard to protect the abuse of this section for political purposes. However, this safeguard will work best where the balance of powers in the various provinces are more evenly spread. The section states that when the national executive intervenes in a province in terms of subsection (1)(b) a “notice of the intervention must be tabled in the National Council of Provinces (NCOP) within 14 days of its first sitting after the intervention began; the intervention must end unless it is approved by the Council within 30 days of its first sitting after the intervention began; and the Council must review the intervention regularly and make any appropriate recommendations to the national executive”.

The NCOP consists of ten person delegations from each province and densely populated provinces have exactly the same say in the NCOP as thinly populated provinces. In a scenario where a majority of the smaller provinces are governed by opposition parties, this section would ensure that the national government would not abuse the section for political purposes. As the ANC controls 8 of the 9 provinces and hence 8 of the 9 NCOP delegations, one assumes a vote to ratify this decision of the cabinet is a mere formality.

Interestingly, the cabinet also announced less invasive measures which will apply to the Free State Province, where (with the agreement of the Premier), directives will be issued in line with section 100 (1)(a) by the relevant members of the National Executive for the following departments: Provincial treasury; and Police/Roads & Transport. This section states that [w]hen a province cannot or does not fulfil an executive obligation in terms of legislation or the Constitution, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including issuing a directive to the provincial executive, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations”.

This step would ordinarily precede the steps taken in terms of section 100(1)(b) and the fact that no such preliminary action was taken in the Limpopo case will add fuel to the fire of the speculations that while some kind of intervention in Limpopo was practically required, the extent of the intervention reeks of political meddling. I have absolutely no idea if this is the case or not. It might well be that the situation in Limpopo is so dire that the cabinet had no choice but to intervene in the drastic manner that it did.

But given the political ramifications of this interventions, the more suspicious among us will invariably ask questions about the motivation behind this radical interference in the autonomy of a province.

It is necessary to highlight one last issue raised by this intervention. It reminds us that where corruption thrives, efficient governance can be dramatically derailed and can lead to disaster for the government and for the people it is supposed to serve. It might be trite to say, but it is important to remind ourselves that corruption and maladministration may have serious consequences for service delivery and will eventually directly affect the lives of the poor. Where a provincial government dishes out tenders to well-connected politicians like Julius Malema (or the friends of Julius Malema) and where such tenders are inflated, the cash eventually runs out — with disastrous consequences for the poor.

If it is true that the Limpopo Provincial government has been milked dry by Mr Malema and his cronies – as alleged by various newspapers – then the intervention comes as a sort of acknowledgment of the deleterious effects of corruption. Somebody eventually has to pay for the cars, the houses and the expensive watches. The people who pay are seldom the well-connected and the rich. More often than not they are the very poor whose interests are supposedly being advanced by those who have abused the system.

You strike a pig, you strike a Broederbonder

Nov 14th, 2011

by Pierre De Vos.

132 comments

Die Afrikanerbond is an organisation who (much like Communist Parties in Eastern Europe after the fall of Communism) opportuinistically changed its name – it used to be called the Broederbond - perhaps because during the apartheid years the Broederbond was a reviled secret organisation to which one had to belong in order to get ahead in politics (the National Party sort of politics, that is), the civil service or the education system. It also helped for a company to have a member of the Broederbond on its Board of Directors because that made it far easier to score tenders from the apartheid government.

It worked a bit like Black Economic Empowerment does these days, except it was all done in secret and people who belonged to the Broederbond were not allowed to tell anyone – even their wives (only men could join) – about their membership. They had to invent “Rapportreiers vergaderings” or Bible study classes or come up with other lies to keep their dirty little secret from their Vroue Landbou Unie and the Jong Dames Dinamiek wives. It was an organisation based on lies and deceit. I do not know whether they had a secret handshake or whether they were required to tickle each other in unspeakable places to demonstrate their allegiance to the cause, but I do know that the Broederbond was not a friend of open, transparent and accountable government.

The Broederbond was often seen as the group that provided the intellectual support for the apartheid policies of the National Party. This might sound like a misnomer – a bit like saying an organisation provided the Nazi’s with democratic credentials – but apparently the leaders of the Broederbond were slightly less dim-witted than the ordinary National Party faithful and the leaders who could make rousing speeches about the Rooi Gevaar and the Swart Gevaar but were seldom the sharpest tool in the shed.

Becoming a leader of the Broederbond bestowed on one untold political influence and prestige. If one were then also a leader in the Dutch Reform Church – which was widely known as the National Party at prayer – one had truly made it in the world of apartheid hit squads, a world of torture and murder and corruption. Come to think of it, it operated a bit like the Limpopo Government does under Premier Cassel Mathale: a secret organisation with political connections and influence that bestows prestige, untold wealth and influence over tenders and government policy on those who had been admitted to that august organisation.

The Afrikanerbond has fallen on hard times, what with their former patron the National Party long dead and a former leader, Marthinus van Schalwyk, now warming the ANC benches. But they emerged from their slumber to issue a statement about the Julius Malema disciplinary hearing in order to try and help revive Mr Malema’s political fortunes – by criticising him. (After all, being criticised by these guys is a bit like being savaged by a dead sheep. It’s like being criticised by former members of the Gestapo: can’t do one’s credibility too much harm amongst any reasonable, justice loving South Africans.)

They were very upset about the fact that the ANC disciplinary committee had not found Mr Malema guilty of the “very serious charge” of racism. Channelling PW Botha and Adriaan Vlok of the 1980ties the Broederbond… er … I mean Afrikanerbond fumed as follows:

With reference to the white population of South Africa, Mr Malema said: “We must take the land without paying. They took our land without paying. Once we agree they stole our land, we can agree they are criminals and must be treated as such,” he said to cheers from a crowd of about 3 000 people at the Galeshewe stadium, just outside Kimberley. IOL News – 9 May 2011…. Mr Malema’s inflammatory statements about minorities, calls for the nationalisation of land, banks and mines, and even subversive revolutionary talk are indicative of the momentum of the National Democratic Revolution, within certain factions in the ANC. Our concern is that Mr Malema propagates an anarchistic form of revolution. The ANC’s flirtation with revolution can have unintended consequences for a country such as South Africa.

Now, I do not believe that all land should be taken from white South Africans without paying for it. After all, the Constitution allows for an orderly land-redistribution plan (which does NOT require the implementation of the ridiculous willing-buyer willing-seller policy). Taking land that essentially belongs to the banks who had provided the mortgage to the buyer without paying for it will probably not be very good for the economy.

Most white South Africans who now own land bought the land (mostly with the assistance from a bank mortgage) from other white people who might or might not have stolen the land themselves. That is why our Constitution – in a delicate balancing act – requires orderly land redistribution but does not allow for expropriation without any compensation.

Although most white people did not steal anybody’s land and bought any land they might own on credit, this does not mean they did not benefit from the colonial and apartheid policies on land theft. Most white people – unlike most black South Africans – could obtain loans from banks, who would often not give credit to black South Africans in the past. They could buy land cheaply because fewer people (essentially only white South Africans) were chasing more land (essentially 80% of the land in the country), driving down prices in a system of supply and demand.

In any case, most black South Africans were not allowed to buy property in more than 80% of the country “owned” (or, putting it differently, “stolen”) by whites. And when a sweet deal came up which allowed Broederbond types to acquire land cheaply, black South Africans could not benefit from this. So thirty years ago when all those lovely cottages at Clifton (now selling for a cool R20 million) was sold for R25000 each, no black person benefited from that cosy arrangement.

Ok, the Oppenheimers and those who own De Beers might have stolen some land and some people might still own land which was originally stolen by their forefathers and mothers, but most of us living in cities never stole any land. This does not mean that many of us might not have acquired the land cheaply because we were members of the Broederbond and were tipped off about economic development plans or because we could exploit the apartheid policies of the state to our benefit (as many Broederbonders so handsomely did).

But if we interpret Mr Malema’s statement as meaning that much of the land now mostly in the hands of whites were originally stolen by (admittedly other) whites from the indigenous population of South Africa, Malema is not that far off the mark. Saying this does not make one a racist. Although Mr Malema has made other remarks demonstrating racial prejudices that are not reconcilable with the values and rights enshrined in the Constitution, this statement – although provocative and over the top – is by far not the worst.

But one would understand why the Beroederbond types would become uncomfortable about such a statement: it contains a kernel of truth that exposes the lie that whites – even those who murdered and tortured and oppressed black South Africans - have always hogged the moral high ground and that the ANC is the real villain of past, present and future South Africa. Mr Malema, for all his terrible bombast and populism, has hit a nerve with this statement. He has thrown a rock into a bush and the pig hiding in that bush (our dear Afrikanerbond) is now squealing in pain. Let them squeal.

Why Julius Malema’s only hope is a “political solution”

Nov 10th, 2011

by Pierre De Vos.

99 comments

Julius Malema has been found guilty on several charges and suspended from the ANC for a period of five years. He has a right to lodge an appeal within 14 days to the National Disciplinary Committee of Appeal (NDCA). A suspension will only take effect if that process has been finalised. Mr Malema and his allies and backers will now have to work fast before he loses the power and influence that accompanies his position as ANC Youth League President.

The party’s appeal committee is headed by businessman and ANC heavyweight Cyril Ramaphosa, while its other members are Minister in the Presidency Trevor Manuel, Justice Minister Jeff Radebe, his predecessor Brigitte Mabandla and ANC national executive committee member Jessie Duarte.

Given the composition of the NDCA and given the politics surrounding the bringing of these charges, it seems unlikely that the NDCA will change the decision of the Disciplinary Committee. There cannot be too many people in South Africa who would think that this finding has nothing to do with the campaign of the Youth League to unseat President Jacob Zuma as ANC President. Getting rid of Malema will almost certainly deal a fatal blow to the possible campaign by any other leader to successfully challenge Jacob Zuma for the presidency.

The ANC Constitution states that decisions of the NDCA shall be final, “except that the NEC may, in its discretion, review a decision. Such a review shall be regulated by standing orders adopted by the NEC”. This means if the NDCA confirms the verdict and the sentence a “political solution” is the only way forward for Mr Malema.

Mr Malema has two ways of fighting this suspension in the political arena. He can approach the National Executive Committee (NEC) and those forces in the NEC who would like to get rid of Zuma can try and have the suspension overturned there. If they manage to have the charges overturned, it will damage President Jacob Zuma politically by indicating that he does not have majority support inside the NEC, emboldening President Zuma’s opponents.

Those ANC leaders eyeing President Zuma’s job or the job of Gwede Mantashe will therefore have to move fast to rustle up support inside the NEC for Mr Malema (and by implication for themselves).

Alternatively, Malema can work behind the scenes to try and rustle up support from branch members (something that would be difficult if his suspension is confirmed) to have his suspension overturned at the elective conference next year.

President Zuma, the ultimate survivor, strikes again.

PS: On SAFM Steven Friedman has argued that the suspension will not kick in before the elective conference next year because section 25(9)(a) (a) which states that: “A decision of a disciplinary committee only takes effect once the internal appeal procedures and remedies provided for in terms of Rule 25 have been exhausted”. This would include having the suspension overturned at the elective conference. This reading is wrong as it ignores the next section which states that: “Any person found guilty during a disciplinary proceeding, or the complainant, has the right, within 14 days from the date of sentencing, to appeal against the conviction or sentence, to the disciplinary committee of the next highest body of the ANC. A member is only entitled to one appeal to such next highest disciplinary body, whose decision shall be final and binding”. This means that if the NDCA confirms the suspension, Malema will indeed be suspended. It does not preclude Malema from seeking a political solution at NEC or at elective conference but he won’t be a member of the ANC.

Malema judgment: A re-think on hate speech needed

Sep 12th, 2011

by Pierre De Vos.

218 comments

There are many interesting as well as perplexing aspects to the judgment handed down today by Justice Colin Lamont in the South Gauteng High Court in which he found that Julius Malema had engaged in hate speech when he sang the song “Awudubula (i) bhulu… Dubula amabhunu baya raypha” (translated as “shoot the Boer/farmer”, “shoot the Boers/farmers they are rapists/robbers”).

The first aspect of the judgment that struck me is the fact that this judgment gestures towards some aspects of the philosophy purportedly espoused by our new Chief Justice, Mogoeng Mogoeng. Judge Lamont invoked the notion of ubuntu (just like justice Mogoeng did in the McBride case earlier this year) to help justify the drastic limitation on the freedom of expression of all South Africans. For judge Lamont (as for justice Mogoeng), the protection of dignity and adherence to the values of ubuntu requires a radical limitation on the right to freedom of expression.

It is a drastic limitation because Judge Lamont did not only find that the singing of the song by Julius Malema in specific contexts constitutes hate speech. Instead he ordered that both Julius Malema and the ANC be interdicted and restrained from singing the song known as Dubula Ibhunu ”at any public or private meeting held by or conducted by them”. It is not clear how an organisation as such could be interdicted from singing a song as one would have imagined that the ANC (not being a person) cannot sing a song and that only members of the ANC could be interdicted in this way. I would therefore assume that the order interdicts any ANC member from singing the song — even at a private meeting or gathering of its members.

This means that if ANC members congregate at a party at which they reminisce about the struggle days and one of its members then sing this song, that person will be in contempt of this ruling and might be found guilty of contempt of court. This, in my opinion, constitutes a rather absurd and drastic infringement on the right to freedom of expression not warranted by the Equality Act — even given the broad provisions of that Act.

Judge Lamont also found that the “morality of society dictates that persons should refrain from using the words” and ”singing the song” and seemed to suggest that anyone singing the song could well be found to have contravened the hate speech provision in the Equality Act, arguing that:

Persons who are not parties to the proceedings must be dealt with by way of structuring the order so that society knows what conduct is acceptable. Persons who are aware of the line which has been drawn by the Court are as a matter of both law and ubuntu obliged to obey it. There may be no immediate criminal sanction. Their breach of the standard set by this Court will however surely result in the appropriate proceedings under the Equality Act being taken against them. Non participants are bound by orders setting such standards. The Equality Act contemplates that they will be so bound. The orders of the Court which set the law are no different from any order of any Court which determines what the law is. The course open to a non participant who is aggrieved is to try to persuade the Court hearing his particular matter that the order of the other Court is clearly wrong.

In doing so, Judge Lamont relied on the majority judgment in the controversial Dey judgment (a judgment which Chief Justice Mogoeng – as well as Deputy Chief Justice Moseneke, it must be said — signed on to), to argue that in order to determine whether hate speech occurred one must take into account how the words would have been interpreted by various audiences. In the Dey judgment, the Court stated that:

It may be accepted that the reasonable person must be contextualised and that one is not concerned with a purely abstract exercise. One must have regard to the nature of the audience. In this case the main target was the school children at the particular school, but it also included at least teachers.

This means, according to judge Lamont, that where some South Africans (who would largely, but not exclusively, be black) would not reasonably construe the song to have had the intention to be hurtful to whites, but others (who would largely, but not exclusively, be white) would indeed do so, “each meaning must be considered and be accepted as a meaning…. If the words mean different things to different portions of society then each meaning, for the reasonable listener in each portion of society, must be considered as being the appropriate meaning”. In this way the judgment avoided dealing with a difficult legal problem, namely that the song would be viewed differently, depending on the audience. He could thus dispense with the requirement to establish how a reasonable South African (as opposed to a reasonable white or black South African) might view the impugned words.

Flowing from this is a second aspect of the judgment that might elicit adverse comment. Judge Lamont divided South Africa into the majority and a minority and suggested that minorities (defined as white South Africans or as white Afrikaners) are therefore in particular need of protection from words that could be construed as having the intention to be hurtful to that minority. Hinting that white people might well in the future be in danger of facing a genocide, Judge Lamont stated that:

It must not however be forgotten that minority groups are particularly vulnerable. It is precisely the individuals who are members of such minorities who are vulnerable to discriminatory treatment and who in a very special sense must look to the Bill of Rights for protection. The Court has a clear duty to come to the assistance of such affected people. Minorities have no legislative or executive powers and are compelled to approach the Court to protect their rights. They are particularly at risk due to the expense involved in such approaches. The fact that they are minorities and experience such difficulties frequently results in them being driven to protect their identity by invoking and enforcing within their group, customs practices and conventions which are believed to be appropriate. In addition, they are fragile in that they are readily assumed by the mass and lose their identity. A Court which hears a matter must, while balancing the rights in question take into account in the construction of what hate speech is the fact that it is directed at a minority.

This means that religious and sexual minorities, say, might be entitled to special protection in terms of this Act and that a court should take note of the sensibilities of such groups when they judge whether a reasonable homosexual or a reasonable Muslim would have viewed a specific communication as having the intention to be hurtful to them as Muslims or as homosexuals. Almost any cartoon that depicts the prophet Mohammed, say, might therefore constitute hate speech. Statements by a pastor that homosexuals are perverts that will burn in hell would also, most probably, constitute hate speech if this line of reasoning is followed. I am also fearful that if I were to call devout Christians “bigots” because of their views on homosexuality, I might be found to have had the intention (judged by these religious fundamentalists) to be hurtful to them and hence that I am guilty of hate speech.

This rather essentialistic and simplistic division of South Africans into different race groups could be viewed as problematic. Instead of dealing with South Africans as South Africans and instead of demonstrating a blindness to race (as required by opponents of affirmative action), the court relied on racial assumptions and stereotypes to justify its finding. One would assume that all the critics of race-based affirmative action would be quick to condemn this judgment on the basis that it invokes apartheid era race categories and assumes that one would have a different reaction to words depending on one’s race and/or the language that one speaks. Surely the principled DA supporters who complain about affirmative action will have to reject this judgment because of its purported unholy valorisation of race?

A third aspect of the judgment that might require a rethink by the legislature is that in terms of the extremely broad definition of hate speech contained in the Equality Act and given the facts of this case, a finding that Julius Malema had engaged in hate speech might well have been warranted on the facts before the court. It seems to me as if Judge Lamont had little option but to find that Malema had contravened the Act. Although the sweeping order made in this case was, in my opinion, not warranted by the wording of the Act, the finding against Malema might well have been warranted — given the way in which hate speech has been defined by our legislature. As Judge Lamont explained:

The message which the song conveys namely destroy the regime and “shoot the Boer” may have been acceptable while the enemy, the regime, remained the enemy of the singer. Pursuant to the agreements which established the modern, democratic South African nation and the laws which were promulgated pursuant to those agreements, the enemy has become the friend, the brother. Members of society are enjoined to embrace all citizens as their brothers. This has been dealt with more fully above in the context of the written laws and agreements. It must never be forgotten that in the spirit of ubuntu this new approach to each other must be fostered. Hence the Equality Act allows no justification on the basis of fairness for historic practices which are hurtful to the target group but loved by the other group. Such practices may not continue to be practised when it comes to hate speech. I accordingly find that Malema published and communicated words which could reasonably be construed to demonstrate an intention to be hurtful to incite harm and promote hatred against the white Afrikaans speaking community including the farmers who belongs to that group. The words accordingly constitute hate speech

As the Equality Act – passed by the democratic Parliament – does not allow a court to take into account historical practices, the defence put up by Mr Malema’s excellent legal team held no water in this case. Because the hate speech provision in the Act was drafted in such sweeping terms and because the Act only allows for exceptions in cases of “bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution”, the defence of the ANC that this song had to be judged in its historic context was dismissed.

The judgment therefore once again places on the table the question of whether the hate speech provision in the Equality Act is constitutionally valid or not. As I have argued before, I suspect that the hate speech provision in the Act is unconstitutional as it defines hate speech in much broader and open ended terms than section 16 of the Constitution, which merely states that “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm” is not protected by the Constitution.

For some reason (perhaps relating to the politics of the case) Mr Malema’s lawyers did not challenge the constitutionality of the hate speech provision in the Equality Act. Whether they will try to raise this issue on appeal remains to be seen. This does not mean that the ANC dominated legislature cannot amend the legislation to bring it in line with the freedom of expression guarantees in our Constitution. In my view Parliament made a mistake when it passed these sections of the Equality Act and there is no reason why they cannot rectify the mistake without waiting for the Constitutional Court to order them to do so.

Maybe this judgment will lead to a re-think on the manner in which our law deals with cases of alleged hate speech. If it does, some good might yet come of it.

A vile attack on a successful black woman

Aug 1st, 2011

by Pierre De Vos.

301 comments

As readers of this Blog know, I am not a great fan of the hate speech provisions in the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), as I think these provisions are used far too often by people who wish to shut up others with whom they do not agree. In South Africa, it has become fashionable to shout “hate speech” whenever somebody says anything one does not like.

That is why I have argued that the hate speech provisions in PEPUDA should be interpreted narrowly to try and bring it in line with the Constitution, whose hate speech provisions are far more narrowly tailored than the provisions in PEPUDA.

But when I read the opinion piece by one Eric Miyeni in The Sowetan today I immediately thought that this is the kind of hateful and deeply reactionary and sexist drivel which qualifies as hate speech. Mr Miyeni is of the race-is-destiny school of thought, the school of thought which thrives on racial generalisations and assumes that one has no individual moral agency. One IS one’s race. One has no life, no moral core, no complex emotions and beliefs that are unique to oneself — one is only one’s race.

In this world, if one points out that a person is corrupt or has said something stupid, and that person happens to be black, one is automatically a racist. In this world view black people are not really individuals at all, but merely representatives of their race. This is scary stuff as it mirrors the racism of some white people who see one corrupt black person and then make assumptions about black people as a group. Instead of rejecting racial generalisations, it embraces such generalisations.

I grew up with many such people. They enthusiastically supported apartheid and propagated the most vile and vitriolic racist beliefs about black people. For them all white (Afrikaners) were good and pure and right (except if they joined the UDF or the ANC, in which case they became communists and traitors), while all black South Africans were dirty, stupid and dangerous criminals. (Vile nonsense, I know, but beliefs that are still quite prevalent amongst some white people in South Africa – even today.) If one criticised the National Party these people also invoked the power of the mob to discipline you, just like Miyeni did in his piece. I see very little difference between the hatred and prejudice of Miyeni and the hatred and prejudice of those white racists.

Today Miyeni attacked the editor off City Press, Ferial Haffajee, in an attempt to divert attention from the very awkward questions being asked about Julius Malema and the sources of his money. Fair enough — we are all entitled to our political opinions as we live in a democracy now. But when, in doing so, one descends into the dangerous waters of racial generalisations, one probably does not deserve respect from anyone. Thus Miyeni states:

Who the devil is she anyway if not a black snake in the grass, deployed by white capital to sow discord among blacks? In the 80s she’d probably have had a burning tyre around her neck. We know where she comes from.And today we must believe that Haffajee’s utter hatred of ANC politicians is based on journalistic integrity. Quadruple crap. I am more inclined to think that people like Haffajjee, who edits City Press, are most likely to be the kind that wakes up in the morning, sees their black faces in the mirror only to feel a wave of self-hatred rising up to nauseate them.

Of course, the (male) reporters who wrote the stories that Miyeni is upset about are not attacked. Neither are the black, male editors and columnists who often criticise the ANC and members of the tenderpreneurial black elite. Why not? Because they are not women, one assumes. Maybe Miyeni is still getting used to living in a country where women are “allowed” to succeed and where they do not have to obey the men of this world and make tea for them?

Can it be that Miyeni is a modern patriarch who cannot stand that a strong black woman is successful? So what does he do? He attacks her and hints that she should be necklaced. If ever there was a case of hate speech this is it. Recall that hate speech occurs where it can reasonably be construed that the author had the intention to be harmful or hurtful to somebody based on, amongst others, their race and sex.

Well, the hatred for Haffajee as a black and female editor who has dared to publish in her paper critical comments about another black person, oozes out of this vile piece. No reasonable person would doubt that the author had the intention to hurt Haffajee as a black woman.

The “opinion piece”, which sounds like it was written after the author might have had one or two cups of Motata tea, then proceeds with a justification for corruption — as long as the corruption is perpetrated by black businessmen (no women in sight here) and by black politicians. I quote:

The only real source of business for us is our government. Are we now being told that if we make money through government contracts, our only hope, we cannot use that money to help fellow black people who are in politics, who need private funding to function? Where then should black politicians get financial support?

Miyeni must not have heard of the Prevention and Combatting of Corrupt Activities Act, passed by the democratic Parliament in 2004, which criminalises the kind of activity he defends. If one is a “businessman” (black or otherwise) and if one bankrolls a politician who may be seen to have influence over the granting of tenders, then one is more likely than not committing a crime.

Even if one thinks about this in naked racial terms — like Miyeni does — this piece of legislation makes sense, because if such corrupt activities were not prohibited, only those black businessmen (and the businesswomen who Miyeni treats as invisible) who paid the right politician would ever get a tender. If one did not have the right connections or if one did not have the money to pay into the right trust account, one would not be able to get any tenders from the government — even if one happened to be black AND a man (women, once again, not really featuring in the world of Eric Miyeni).

So, that is why Miyeni’s rant is not only hateful and vile, but also illogical — even on its own terms. It is not a principled criticism of business practices in South Africa. It is not a principled argument for Broad Based Black Economic Empowerment. It is not about opening up the business world (dominated for so long by white interests) to all those who have been denied this opportunity under apartheid.

It is, instead, no more than a defence of a small group of well-connected tenderpreneurs who have the money and the connections to bribe politicians in order to get tenders. What about all the other hard-working men (and women) who wish to obtain tenders from the state but do not have the money and the connections to pay the bribes that Miyeni seems to support?

Well, for Miyeni they and their kind can go to hell, it seems, whether they are black or not.

On the political brilliance of Julius Malema

Jul 26th, 2011

by Pierre De Vos.

157 comments

It has become seemingly impossible to have any kind of logical and level-headed discussion about Julius Malema. Because he is a master politician (although obviously not intellectually gifted, principled or – heaven knows – humble or poor), he has managed to create a political persona that inoculates him against criticism, attack and possible exposure as a charlatan. By launching his populist campaign for the nationalisation of the mines and the expropriation of white people’s property without compensation, Malema has cleverly bought some political insurance against criticism and/or possible exposure as a corrupt, dishonest and hypocritical champagne socialist.

Given our apartheid history, the continued gap between the (mostly, but not exclusively, white) upper middle classes and the (mostly, but not exclusively, black) poor, the seeming inability of the post-1994 government to create a more just and safe society, and the effects of economic and political choices (especially choices regarding education and unemployment) which have made it very difficult if not impossible for most of the poorest 50% of young South Africans ever to climb out of poverty in an honest and legal way, any politician reckless or clever enough to use brutal, racialised and militant language to describe the unjust nature of our society was always going to become popular with a vocal and political active group within the ANC. This group might not represent the majority of South Africans, but it is a vocal, active and influential group that will help to protect Malema against his enemies within and outside the ANC.

The fact that Malema has also proposed “solutions” that he claims will address the continued injustice in our society, further assists him in creating the persona which will – at least for some very vocal and powerful people – continue to trump any other considerations about his private life and the sources of his wealth. At the same time he has made many enemies amongst white people who hate and fear him for singing songs about Boers and for generally “not knowing his place as a black man”.

And having this group as enemies is a political plus for a person like Malema. Even people who would otherwise be level-headed would be hard-pressed to be seen to be on the same side as Afriforum for fear of being branded as coconuts or racists. So, don’t count Mr Malema out yet. He is down but not out because he can rely on those who will support him no matter what because their support would be seen as defending Malema AGAINST the white racists fearful of the creation of a more just society.

Who cares, such people might say, whether Malema took bribes to facilitate tenders? Who cares if tenders were inflated, houses were not built, services were not delivered, all because some businessmen “donated” a few million Rand here and there to Malema? If he did take the money, good for him! He is saying what other politicians are all too scared, intimidated or stupid to say. And his solutions – while they may well be economically disastrous – feel emotionally just and correct.

Why think with your head when the daily grind of your existence – the struggle to feed your family, to pay school fees for a third rate education of your children – continues to humiliate you? When your dignity – supposedly guaranteed by the South African Constitution – is infringed on a daily basis because of your economic depravation and the ongoing racism and racial discrimination that confronts you at work, in shops and on the streets? Why not indulge in a bit of a revenge fantasy by cheering on Julius Malema’s every outrageous and supposedly radical statement?

When you see the white madams in their 4x4s – their dyed platinum hair flowing over their shoulders, their manicured nails clutching the latest cellphone models, their Gucci shoes shining – when you see them dropping off their blond children at expensive private schools where they will be educated for high-paying jobs in Sydney and London, you might cheer on Julius Malema because if his proposals were accepted, these madams would suffer at least a little bit (“I mean, only one trip a year to London, doll! What is the world coming to, I tell you!”) and their children would not get the education that would allow them to continue their millionaire lifestyles.

Now anybody who wishes to engage in an honest and sincere manner with Mr Malema’s actions, words or allegations levelled against him, who wishes to weigh the veracity of the allegations regarding the alleged corrupt activities of Julius Malema in an even-handed and sober manner to determine whether these allegations are all part of a smear campaign or whether Malema is indeed deeply corrupt, have a hard time being heard in certain circles because Julius has managed to change the terms of the conversation. While the media and the chattering-class pundits and commentators like myself, scream blue murder about the allegations of corruptions levelled against Malema, others might well ignore our high-minded appeals to facts and principles.

Facts and evidence and criminality, these things are all irrelevant – except for those of us in the chattering classes, people who read or write Blogs and earn a decent living and read books about Kant and Foucault and eat out at nice Restaurants and stay in leafy suburbs whose streets are still being cleaned by the same mothers and fathers who did this work during apartheid. What is relevant is the faux radical utterances of Malema because although you cannot eat these utterances they do make you feel better.

This has been Mr Malema’s brilliance: with his “Kill the Boer” song and his “Bloody agent!” rant and his alleged anti-white utterances Malema has managed to turn every question about his honesty, his possible criminality, his hypocrisy, into a question about the injustices still suffered by a majority of South Africans. Those of us who question Malema’s actions are easily going to be dismissed, by some at least, who are going to say that we are using facts and principles to protect our own interests.

That is why it is so difficult to focus on the principles involved in this case without falling back on emotional platitudes and invective, invective and platitudes which will differ depending on whether one is a great fan of Mr Malema or whether one fears and loathe him. Either he is innocent no matter what the facts might say (if you are emotionally drawn to Malema’s quick-fix solutions for our problems), or (if you cheered on Afriforum when it brought the hate speech complaint against him), Malema will be guilty no matter what facts might or might not have been proven.

As someone who has been lambasted by more conservative elements in our society for consistently argueing that the hate speech accusations levelled at Malema was distracting us from more serious questions and that it was politically disastrous to have brought this hate speech complaint against him because it merely help to inoculate him against criticism, what I see now is the chickens of Afriforum coming home to roost.

It might be that Malema is innocent, and that he is not guilty of corruption. Maybe as we speak he is meeting with lawyers to instruct them to sue City Press for alleging that he was deeply corrupt. But maybe he is corrupt as alleged, in which case those of us in the chattering classes who worry about the corruption that has seeped into our politics and the effect of this on service delivery and the quality of our democracy are going to start despising him even more while his hard-core supporters will stand outside courtrooms and sing that they will kill and die for Malema.

That, I say again, is Malema’s brilliance. No matter what happens, for some it will never be about weighing up the facts and coming to a sober decision on whether Malema is a corrupt hypocrite or a real champion of the poor. Those who will assume that he is guilty, no matter what the facts, are politically irrelevant for Malema. But if he is corrupt, he would need an army of supporters for whom the facts matters not one bit. His campaign of the past year – aided by Afriforum and racist elements in our society – has managed to produce such an army.

Malema, our own Paris Hilton: “Rebel with a trust fund”?

Jul 24th, 2011

by Pierre De Vos.

83 comments

Is Julius Malema guilty of contravening the provisions of the Prevention and Combatting of Corrupt Activities Act (PCCAA) 12 of 2004? If he is and he is convicted in terms of this Act, he would face a minimum 15 years in jail. Unless he becomes “terminally ill” like Schabir Shaik he would then have to spend many years in jail without access to fancy cars and the millionaires’ lifestyle he is living now. Moreover, his assets could then be confiscated by the Asset Forfeiture Unit if the appropriate application is made to court. So, these allegations levelled by City Press are very serious.

City Press reported this morning that Malema has a secret trust fund – that he is “a rebel with a trust fun”, so to speak – which he uses to finance his lavish lifestyle and his political ambitions. As long as he pays the appropriate taxes in terms of money received by this fund, there is nothing illegal with having a trust fund. Hell, Paris Hilton would not be able to survive without one. But City Press also reported that the money from the trust fund comes from deposits made by businessmen who get tenders from the Limpopo Province.

If this is true, well then Malema must be in very serious legal trouble. The newspaper reports about this as follows:

The other source, a seasoned businessman who moves in Malema’s circle of friends and associates, told City Press he deposited R200 000 into the trust’s bank account after Malema facilitated a government tender for his benefit. According to him, there are at least 20 other business people who do the same. He said Malema sent him the number of the bank account via SMS. After depositing the money, Malema allegedly thanked him – also via an SMS.

The PCCAA is an excellent piece of legislation which is sadly not often used because of the lack of the political will on the part of the Police to investigate corruption and bring corrupt individuals in both the public and the private sector to book. It criminalises almost all imaginable forms of corruption in rather broad terms, making it – in theory at least – quite easy to secure a successful prosecution in a corruption case.

Because those who are corrupt are also often very wealthy – allowing them to buy political influence or even direct protection from the police – or because they are politically connected because they happen to be leaders of the governing party, people are often only investigated for corruption if they had fallen foul of one or other factions of the security services or the governing party. That is why Brett Kebble financed the ANC Youth League and the ANC proper and why that Savoi guy allegedly made more than a R1 million donation to the ANC. (In both cases something obviously went wrong and the insurance money did not buy immunity from criminal investigation, which suggests that there is still hope for us to tackle the scourge of corruption in this country.)

Section 13 of the Act would be of particular relevance regarding the allegations levelled against Mr Malema. This section states that:

(a) Any person who, directly indirectly,accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person, as—

(a) an inducement to, personally or by influencing any other person so to act,

(i) award a tender, in relation to a contract for performing any work, providing any service, supplying any article, material or substance or performing any other act, to a particular person; or

(ii) upon an invitation to tender for such contract, make a tender for that contract which has as its aim to cause the tenderee to accept a particular tender; or

(iii) withdraw a tender made by him or her for such contract; or

(b) a reward for acting as contemplated in paragraph (a) (i) (ii) or (iii),

is guilty of the offence of corrupt activities relating to procuring and withdrawal of tenders.

As is clear from this section, a person can be found guilty even if that person is not directly involved in the awarding of tenders but receives money with the understanding that he or she will influence the awarding of the tender. One does not have to show that the tender was indeed awarded to someone who paid the bribe or even that the person who received the money had the power to influence the awarding of the tender.

All one has to show is that money changed hands and that the person who received the money – in this case, if the allegations are true, this would be Malema – received it with the understanding that he would influence the tender in your favour. Even if there was no intention actually to influence the tender but one had given the impression to the businessman that one would influence it, one would be guilty of corruption.

That is why being perceived to be powerful and influential is so important for the person who receives corrupt bribes with the understanding that he would swing the tender. He would not even have to wing the tender to get the money – as long as those businessmen who pay believed that he had the power to swing the tender, the money would continue to flow into the trust fund,

Section 24 of the Act also makes clear that even if the state cannot prove that there was a direct causal link between the money given and the tender in question, the crime of corruption may yet be proven by showing that there was any abuse of a position of authority.

City Press might not have known this, but its story alleges that Julius Malema is guilty of corruption and that facts exist which, if proven in court, would require a judge to convict him and to sentence him to a minimum of 15 years in prison. To make such allegations would usually constitute defamation. Unless the allegations are true and it is in the public interest to publish them, the newspaper making such allegations could therefore be successfully sued for defamation.

Now, these allegations completely destroy Julius Malema’s credibility. He can restore the credibility by suing City Press for defamation. If he does not, we will know that he is corrupt. If he threatens to sue (which I suspect he would) but never follows through with the threat (which I suspect will happen), we will also know that he is corrupt.

If he sues and it transpires that the facts alleged by City Press are more or less true, well, his reputation would also be destroyed for ever. Many politicians threaten to sue newspapers but never do because they know that if they lose – which will often happen if the allegations are actually substantially true – they would have made things even worse for themselves. That is why watching Malema’s next move will be interesting: if he threatens to sue without suing it would be like an admission of guilt.

The upshot of this is that unless Julius Malema immediately sues City Press, he would – at least in the yes of any reasonable person – have not one single bit of credibility left. All the bluster in the world will not change this fact. All the hot air about a conspiracy against him and about racism will not change this fact. Either he sues City Press or the rest of us can start referring to him as “the corrupt Julius Malema”.

Julius Malema: the bourgeois, capitalist, libertarian?

Jul 21st, 2011

by Pierre De Vos.

97 comments

Who would have suspected that Julius Malema subscribed to a bourgeois, libertarian and capitalist notion of accountability and privacy? Yesterday, in response to questions about how he could afford his lavish lifestyle on an ANC salary, he told journalist: “Where I get money to build such a mansion, within a short space of time, is none of your business.” This suggests that Malema endorses a view – much loved by traditional old-style economic libertarians – that a bright-line boundary should be drawn between the public and the private spheres of a person’s life – unless that person is an elected representative of the people.

According to this view, much in vogue among Tea Party activists and other fringe right-wing groups in the USA, the default position is that the state and other powerful players should keep their noses out of one’s private life. How one made and spent one’s money, how one treated one’s wife or partner, how one did business and how one’s public utterances squared up with one’s private actions - had little to do with the state or with the public at large. In fact, some even argue that it was authoritarian to allow any intrusion into this sanctified private sphere.

The state should keep its dirty nose out of one’s private affairs unless it is clear that one has broken the law. Moreoever, the law itself should interfere with one’s private life choices as little as possible because – so the argument goes – by leaving one alone the state will allow one to unleash one’s full potential to exploit one’s talents (and to exploit others who are less talented than oneself). This hands-off approach is also necessary to prevent the state from infringing on one’s rights. States are dangerous and must be feared and for that reason the law should provide radical protection for one’s privacy and personal choices.

In such a world, the public and the media have little right to ask questions about how one lived one’s life and how one made one’s money because capitalism requires capitalists to get on with the business of generating wealth by giving them a free hand to deal with their businesses as they saw fit. As long as one of the limited number of laws necessary to ensure a free hand for capitalism to thrive, has not been broken it is, indeed, nobody’s business how one made one’s money. Get lost.

This is the kind of attitude that produced a character like Brett Kebble and, before him, a long line of cowboy capitalists, starting perhaps with Cecil John Rhodes. Who cares whether Kebble bankrolled the ANC Youth League? Who cares that he spent large amounts of money to befriend the Police Commissioner? Who cares that he had been rather creative about the manner in which he shifted funds and shares from one place to another – it’s all in a days business and the state and the media should not destroy the wealth-creators by asking difficult questions.

The argument put forward by Julius Malema, namely that a politician like him – who is not currently serving in any executive, legislative or other government position – is perfectly entitled to live a life that seems to be far more lavish than the salary earned by him and that we have no right to ask how this came to pass, therefore does not sit well with his claims of being a radical anti-capitalist.

A politician like Malema can, of course, try to claim that he is a private citizen who is not accountable to the electorate in the same manner as our elected representatives in the legislature and the executive because his salary is not paid for by taxpayers. If one endorses the radical capitalist view that draws a bright-line boundary between public service and private citizenship and denies the fact that money, political power and influence impacts in any way on politics and governance issues, one could argue that there is no reason why such a politician should be obliged to inform the public where his or her money comes from.

What next, such a person would protest: Will we demand that every university Professor with a Blog explain why he or she lives in a two-bedroomed flat in Sea Point or Bantry Bay? Surely, so this argument goes, Malema is in a similar position as the head of a large corporation, whose sources of wealth should be of little concern to the electorate. Who cares whether Harry Oppenheimer stole his money or not? Just as we should not be concerned about how Brett Kebble had suddenly become seemingly filthy rich, we similarly should not worry our pretty little heads about the unexplained wealth of a politician like Julius Malema unless that politician has been elected to a position in the legislature or executive and is paid a salary by taxpayers.

Personally I do not endorse this view.

One cannot draw a bright-line boundary between the public and the private aspects of one’s life – especially not if one is a public figure with money, power and political influence. The claim that this is possible is no more than nonsense upon stilts. While we are all entitled to some form of privacy and while we all have a right to be protected from undue invasion of the most private aspects of our lives, public figures should not be able to hide behind this right to avoid scrutiny of their affairs when this impact on the public discourse and on the way we are governed.

A contextual approach must be applied to determine where the boundary between the right to privacy and the duty to account should be drawn. We have to consider several factors and weigh these up against each other. One should take account of the position that a person serves in (is he a leader of the ANC Youth League; a newspaper editor; an academic; a business mogul who bankrolls the governing party), his or her relative power and influence (both on the public discourse and potentially on decision makers who dish out tenders or other positions or benefits), the sphere in which he or she has influence, and the potential impact of that person’s views and actions on the governance of the country or on the running of the economy. We must then ask how closely these aspects are connected to the matters that the person wishes to keep private.

The closer the connection between these two spheres, the more difficult it should be to argue that one has a right to have this aspect of one’s privacy protected. The more private the action for which protection is claimed, the stronger the argument for privacy should be.

For example, if an ANC Youth League leader like Malema claims that it is none of our business whether he had had sex with a male friend, he would probably have a very strong case. There would be a very distant relationship between his sexual orientation and his private sexual activities on the one hand, and his public persona and the power he wields on the other. If we assume that he does not wield this power and has not become wealthy and influential because of his sexual relationships and given the fact that he does not espouse flagrantly homophobic attitudes in public to gain support, this should remain a private matter if the person wishes it to remain private.

But if an allegation was made that the person under discussion had a sexual relationship with Brett Kebble, who had bankrolled that person’s political campaign to become a leader of the ANC Youth League in order to buy influence from the Youth League leader to try and prevent his own arrest, the situation would of course change radically. The intimately private sphere would have become so closely connected with the political – public – sphere, that it would be in the public interest to expose this link.

In this context, how Malema made his money and how he can afford his lifestyle is clearly in the public interest. Given the fact that he is perceived – rightly or wrongly – to have enormous political influence, given further that credible allegations have been made about his involvement in companies who received tenders from the government, and given allegations made by Stephen Friedman and others that he is being bankrolled by others to fight their political battles, his claim that it is none of our business where he gets his money from is utterly ludicrous.

Even the most rabid free-market capitalist would have difficulty to convince us that there is no link between the origins of the private wealth of an influential politician (whether that politician is inside or outside government) on the one hand and his political position and the influence, power and access it provides over government officials who decides on tenders on the other. Claiming that there is indeed no such link just makes one sound like a right-wing American nutcase.

The past is very much part of the present

Jun 28th, 2011

by Pierre De Vos.

77 comments

In the movie A Reasonable Man director Gavin Hood (whose movie Tsotsi won the best foreign picture Oscar) tells the story of a young Zulu herd boy, Sipho (Loyiso Gxwala) who is on trial for killing a baby. Based on an actual court case, the movie depicts Sipho’s interaction with Sean Raine (played by Woods himself) and the way in which the case affects Raine’s view of the law and forces him to rethink his long held views about the law and about himself.

Sipho insists throughout that he thought he was killing an evil spirit otherwise known as the tokoloshe in popular folklore. The prosecutor, Linde (played by Vusi Kunene) is ready to send him straight to jail and the defense wants him to plead insanity. Gavin Hood’s character, Sean Raine doesn’t believe that he is insane, he sincerely believes that he was killing an evil spirit.

In a pivotal scene Linde (the prosecutor) asks Sean: “Why are you so keen to keep this country in the grip of the past?” to which Sean replies, “the past is very much a part of the present”.

The movie asks profound questions about the way in which judges apply the law in a multicultural society like South Africa. Did Sipho genuinely believe that he was killing an evil spirit and if so, was this belief reasonable in terms of our law? And on what basis must a judge decide whether an accused acted reasonably or not? In the movie, Hood, who himself studied law, explores these questions in a provocative and complex manner.

I was reminded of Hood’s movie this morning as I took part in a discussion on hate speech and struggle songs on Radio Sonder Grense (RSG). Of course, the discussion took place in the context of the singing of a very specific struggle song by Julius Malema. That song, which in the mainstream media has become known as the “Kill the Boer” song, came to renewed prominence when Malema sung it shortly after City Press reported that companies which he had been associated with had allegedly been involved in “dodgy tenders” in Limpopo.

The lyrics of the song sang by Malema included the following passages:

Ayasab’ amagwala (the cowards are scared)
dubula dubula (shoot shoot)
ayeah
dubula dubula (shoot shoot )
ayasab ‘a magwala (the cowards are scared)
dubula dubula (shoot shoot)
awu yoh
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)

awe mama ndiyekele (mother leave me be)
awe mama iyeah (oh mother)
awe mama ndiyekele (mother leave me be)
awe mama iyo (oh mother)

aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
…..
awe mama ndiyekele (mother leave me be)
awe mama iyo (oh mother)
awe mama ndiyekele (mother leave me be)
awe mama iyo (oh mother)

aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)

Ziyarapa lezinja (these dogs are raping)
dubula dubula (shoot shoot)
ay iyeah
dubula dubula (shoot shoot)
Ziyarapa lezinja (these dogs are raping)
dubula dubula (shoot shoot)
ay iiiyo
dubula dubula (shoot shoot)

On RSG this morning, after I gave my usual spiel that section 10 of the Equality Act requires us to ask whether the person who sang the song could reasonably be construed as having had the intention to be hurtful or harmful to white South Africans, one after the other, listeners called in to express their opposition to the song and to demand that the song be banned. One could hear the genuine fear, anger and frustration in many of the voices of those who called in. The barely concealed contempt, disgust and hatred of Mr Malema also bubbled to the surface.

I have no doubt that the singing of the song by Mr Malema is experienced as hurtful and very scary by the vast majority of white South Africans. This view is often sincerely held – also by people who are not overtly racist. For the reasonable white farmer or the reasonable white person who never took part in the struggle and do not speak Zulu, it must be as clear as day that this song constitutes hate speech.

But for the reasonable ANC member, the reasonable black (or white) person who took part in the struggle against apartheid, or for the reasonable person whose first language is Zulu, the song might arguably convey a completely different message.

Which highlights the difficulties faced by the judge who is currently contemplating whether he should find Julius Malema in breach of section 10 of the Equality Act because he sang this song. (As Afriforum had – correctly – not asked the court to ban the song outright, the demand by callers that the song should be banned, will therefore never come to pass.)

Who is this “reasonable person” that the law requires the judge to invoke and to rely on when he makes his decision? Is it the reasonable farmer? The reasonable white, middle class South African who only speaks English and Afrikaans? The reasonable ANC member? The reasonable person who took part in the struggle? Is the reasonable person a man or a woman, gay or straight, rich or poor? Does this reasonable person speak Zulu or only English and Afrikaans?

When I was a student at Stellenbosch University many years ago, our Professors did not speak of the “reasonable person” when they invoked this supposedly objective test that forms an integral part of our legal system. They referred to the “reasonable man”, by which most of them probably meant a reasonable white man who happens to have been a lawyer in apartheid South Africa for many years and had then been appointed – along with other white men – as a judge to one of our high courts. (In 1990 there were no black judges serving on any court in South Africa, while only 1 female High Court judge – Leonora van den Heever – served on the bench.)

When some of us – congratulating ourselves on our virtuous adoption of feminism – muttered in a self-satisfied manner that this “reasonable man” was a sexist concept, at least one professor scoffed and said: “What would be next – the reasonable dog or the reasonable criminal?”

The truth is that the reasonable person relied on by section 10 of the Equality Act (and in our common law rules and other legislation) is a fictitious person that is imbued with the values, assumptions, beliefs and ideologies of the judges who have to apply and develop this concept. This is one of the reasons why Julius Malema’s hate speech trial has evoked such different responses from different people in South Africa. We experience the singing of this song by Julius Malema differently depending on our own experiences, fears, beliefs, values and ideological commitments. (A more extreme manifestation of this phenomenon is perhaps the vastly different ways in which different people responded to the allegations of gross misconduct leveled against Judge President John Hlophe.)

Perhaps, as the composition of the bench changes and more women, gays and black South Africans are appointed to it, the concept of the reasonable person might change radically. Then again, one should not underestimate the disciplining power of legal education and of peer pressure in the legal community, which might instill in these judges the same beliefs about what constitutes a “reasonable person” as those currently in fashion.

Like Linde, the prosecutor in A Reasonable Man, judges who happen not to be white, male and heterosexual might reject the idea that we should rethink what we mean when we invoke the reasonable person. When confronted with difficult questions about how we should interpret the meaning of struggle songs, they might also ask: “Why are you so keen to keep this country in the grip of the past?”

Like Sean, the lawyer in A Reasonable Man, I might very well reply: “The past is very much a part of the present”.

Julius Malema

Malema verdict might not be something to celebrate

Can the government intervene in Limpopo?

You strike a pig, you strike a Broederbonder

Why Julius Malema’s only hope is a “political solution”

Malema judgment: A re-think on hate speech needed

A vile attack on a successful black woman

On the political brilliance of Julius Malema

Malema, our own Paris Hilton: “Rebel with a trust fund”?

Julius Malema: the bourgeois, capitalist, libertarian?

The past is very much part of the present

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