Adv Menzi Simelane, who was recently “appointed” as National Director of Public Prosecutions (NDPP), has a rather eccentric view of democracy which can be summed up in one short phrase: “Just trust us.” This is not a view I share or, I would contend, that anyone who loves or supports democracy should share.
Last night I took part in a panel discussion with Simelane, former Chief Justice Arthur Chaskalson, and ID leader Patricia de Lille on whether the judiciary is capable of holding high ranking public officials to account. The discussion formed part of the UCT Constitution Week. Sadly it confirmed the grave doubts I have about Adv Simelane’s fitness to serve in the position of NDPP.
Simelane seemed to be quite an affable guy. When I told the story of how an apartheid Minister had complained about judges who, once appointed, thought they were there on merit and started thinking for themselves and expressed the hope that Adv Simelane would similarly now start thinking for himself, he even laughed. But he is nevertheless dangerously misguided.
Adv Simlene said that because we live in a highly politicized society (by which, I think, he meant a society divided along racial lines) the notion of justice itself was contested. Although he did not expressly use racial terms, it was clear that he was arguing that what was fair and just for a black person would not be fair and just for a white person and visa versa. For the system to work better we needed to be less distrustful, he said. We thus needed to be more trusting of the system and, by implication, more trusting of public officials and politicians (like Simelane himself).
I agree with Simelane that we live in a highly divided society with high levels of distrust. I can also concede that high levels of distrust are at least partly caused by racial divisions and by racially influenced assumptions about insincerity, dishonesty and partisanship of politicians and public officials. There is a need for everyone to reflect critically on their own (often unexamined or unidentified) assumptions about others who do not share their race, class and gender.
Yet, when a politician like Simelane (for he is a politician) says that the problems in our criminal justice system is based on a lack of trust and calls on us to be more trusting of politicians and other public officials, it make my hair stand on end. Clearly on a personal level South Africans should try and build bridges across race, glass and gender lines and should not always assume the worst about someone else merely because that person happens to be of a different race.
However, it would be foolhardy and dangerous for citizens blindly to trust our politicians and public officials (no matter what their race), as Simelane wants us to. When they ask us to trust them, they are really saying that we should not ask questions, we should not think for ourselves, we should not scrutinize their actions. Rather we should believe everything they say and support everything they do because, like mommy and daddy, they know best. We should also trust that, like mommy and daddy, they have only our best interests at heart.
This view is profoundly paternalistic, anti-democraticand dangerous. It aims to deprive ordinary citizens of any agency, and hence aims to rob them of their dignity and their ability meaningfully to take part in our democracy. A claim that the powerful politicians, public officials and business leaders know what is best for all of us and should thus be left alone to get on with the job, is a claim against participatory democracy. “Just trust us,” they say, “and we will look after you. Do not worry about the rest.”
Fat chance.
It is exactly because we have learnt the hard way that it would be extremely foolish to place our blind trust in those who exercise power over us, that we have devised various forms of constitutional democracy and have created elaborate regulatory states in order to try and check the potential abuse of power of those who claim to have only our best interest at heart. If we blindly trust the powerful we give them absolute power over us and as Lord Acton said: “Power corrupts, and absolute power corrupts absolutely.”
In a modern open and democratic society – like the one established by our Constitution – we build in mechanisms to hold the powerful (the politicians, the public officials, the business leaders) to account exactly because we know we would be rather stupid to blindly trust that they would always do the right thing.
I for one, would not trust Adv Simelane. This is not because he is black, nor because he is an ANC politician. (If he was a white DA member I would have felt exactly the same.) It is because he has demonstrated that he has only the interests of a small band of politicians at heart. As the Ginwala report shows, he lied under oath to try and mislead the Inquiry and also drafted a letter containing an illegal instruction to the then NDPP – all because he was trying to protect his boss and/or because he was instructed to do so by his boss.
Trust is earned in a democracy. If Simelane grows into the role of NDPP, if he starts believing he is there on merit and begins to think for himself, if he refuses to be bullied by the Minister of Justice or the President, if he demonstrates that he is willing always to act without fear, favor or prejudice in prosecuting even the most well connected politician, then and only then will I begin to trust him.
It is our duty and our right as citizens to distrust politicians like Simelane until they prove us wrong. And even then we should always keep a beady eye on them to make sure they continue to serve us.
He: “calls on us to be more trusting of politicians and other public officials, it makes my hair stand on end.” Not just your hair Prof, and not just the hair on one’s head.
The root of their ignorance is the total lack of understanding for the value and responsibility of Democratic behaviour and action, now smothered by the self serving greedy power mongering interests to the cost of everyone. Do they care? I think not!
Do they understand the future, the ramifications? No!
At its worst, it is the behaviour of money grubbing priests (our new politicians); at its best it is the behaviour of those who have little real quality education or awareness of global history and the dangers inherent in any society; which Democracy, as we know it in its purest sense, is the only system capable of protecting and advancing the people. Short sighted idiots. What happens when those who only care about themselves and their own… rule and benefit? Answer: Anger!
As a parent of many children, I view much of today’s political behaviour in SA as I viewed my children growing up. This is not racist or holier than thou. I know there are whites in the ANC as well, right, and there are plenty of white men and women in SA who are crooks and skelms. I just don’t like thieves, con men, or grubby individuals who couldn’t care less about others.
Prof: it comes down to this. The vote, and what it takes to get it right for the sake of South Africa, regardless of the time required. Otherwise, how can any of this improve?
You might not like the following comment, but personally, thank Gawd for Helen.
http://www.businessday.co.za/articles/Content.aspx?id=94590
On 20 Nov 2006 President Thabo Mbeki told religious leaders to trust that what he had done regarding the controversy around police National Commissioner Jackie Selebi, and they did. Trikamjee told reporters that Mbeki had assured them he had done what he could as president. The president said, ‘Trust me, be assured I will take action if anything has been done wrong.” You know the rest of the story. Now Adv Menzi Simelane: “Just trust us.” At least Mbeki was committed since he said ‘me’. Adv Simlane uses ‘us’, an indication that it’s perhaps a shared vision/attitude, that or he may not be entirely convinced. Time will tell.
I’m not sure where I read this and it may even have been somewhere on this blog. It goes something like :
Those that cast the votes have no power.
Those that count the votes have all the power.
Here’s a story about an independant thinker ! :
been rejected because the community which laid claim to the land does not have the skills to maintain the current production.
On Friday the Land Claims Court in Johannesburg refused the Bahiring community’s claim to the farms of eight landowners outside Koster in the North West.
It was found that, among other reasons, relocating the community is not feasible because the land has high agricultural potential and the farms are intensively cultivated.
Furthermore, E I Moosa, acting on behalf of the Department of Land Affairs, conceded in his closing argument that it is not within the government’s financial means to successfully relocate the community.
Huge relocation costs
It would have cost the State more than R70m to buy the farms from the landowners.
It would have cost a further estimated R210m to relocate the Bahiring community’s 400 families and provide equipment and other resources for them to continue cultivating the land.
The court was told that it is pointless handing cash over to communities to develop the land on which they are relocated, since the communities don’t have the skills to ensure that the money is used for that purpose.
An official of the local land claims commissioner testified that none of the 330 relocation projects he currently manages in the North-West is successful.
Some of the greatest obstacles these communities face are a lack of funding and skills to maintain the agricultural operations.
Transfer of the land would have a negative impact on the “food production and economic activities” of the highly productive farms.
Current annual production
Furthermore, there is no national budget available specifically for the relocation of the community in the North-West. Each of the 400 families would only receive R6 595 from the government for relocation.
The current annual production on these farms is 1 800 calves, 5 900 tons of mielies, 400 tons of beans, 470 tons of sunflower seed and 1 080 000 litres of milk.
It was also taken into consideration that the community was compensated when they were relocated 80km away from the farms in the 1960s. At the time the farms were not commercially developed.
Peet Grobbelaar, the farm owners’ legal representative, said on Tuesday that the verdict would have a major impact on other pending land claims, because this is the first time that a court has found that the relocation involved in the claim is not feasible due to the land’s current use and production.
“The verdict has created a precedent because the current use and production of the land will have to be taken into account in future when it is decided whether relocation is feasible.”
According to Grobbelaar, the finding also points to the total failure of government to effectively support relocation programmes.
“In short, the entire land claims plan is a failure, especially in the North-West,” said Grobbelaar.
I don’t know about Simelane having the “interests of a small band of politicians at heart.” As I recall, he started out as a Mbeki yes-man and smoothly made the transition to a Zuma yes-man. I see him as a man for sale to the highest bidder rather than a loyal political apparatchik. Although both are equally inimical to democracy.
John: I actually think that the answers to many of SA’s challenges are basic, especially agriculture and land reform.
1) SA needs to set up agricultural colleges (with residences, and students employed to study), 3 to 5 yr courses, overseen by a successful farmer or agricultural experts on available land.
2) Members under training need to be evaluated, who is capable of being trained to do what with respect to the many areas of demand in agriculture production.
3) a sincere and dedicated departmental marketing board established to effectively find markets and arrange for produce sale and transport
4) Guaranteed government financial support for a minimum of 10 years.
The key is that all those working receive a weekly salary with promise of bonus to be realized based on sale of produce, rather than the Christmas basket.
Each farm also has to have security in place.
Agriculture is so detailed; without effective education and training, it simply isn’t possible to succeed commercially. Remember, we are not talking about subsistence farming, but rather commercial farming.
If SA doesn’t have the present capacity, well, all they need to do is consult with, for example, the University of Guelph, Canada, Agricultural College, one of the best in the world. Of note, the entire Canadian, Ontario provincial agricultural division with all their agricultural offices is based there and they simultaneously have one of the best vetenarian colleges in the world for animal husbandry.
However, as with everything else in our highly politicized, immature and corrupt government culture, it’s not likely to happen. But it could if the political will and humility to accept help from western overseas institutions was in place. Pity SA only aligns with dictatorships and despots and thinks the west are imperialists colonizers. Canada for example has never colonized anywhere. Without change of the present political culture, lets be realistic, there is no hope.
“he was arguing that what was fair and just for a black person would not be fair and just for a white person and visa versa”
pierre, today i caught the tail-end of a radio discussion on last night’s talkshop which included a simelane soundclip. i’m fairly certain that i heard him refer to “…the perception of just….and…fair…”, as opposed to your “…what was fair and just…”; so his reference is not (ostensibly, at least) to his own opinion, but rather to his understanding of others’ interpretation
on the face of it, it might seem merely a difference in syntax, but seen in the context of your analysis, your conclusion (if my hearing of the soundclip is indeed correct) might need a thematic shift
nevertheless, i certainly agree with the idea of not ever trusting ANY politician, least of all mr simelane, who seems to be nothing else than a very agile opportunist (and a terrible liar)
“This is not because he is black, nor because he is an ANC politician. (If he was a white DA member I would have felt exactly the same.)”
Right!
This is a very common argument from people of authority in South Africa. “Just do as I say because I am the one in charge and I know better”. From business leaders to Vice-Chancellors, and politicans, they pull the same argument when things threaten not to go their way. Is it a black or African thing? It seems not. Though often some argue, with much self-interest, that it is the African way. Some would say it is the problem of leadership. Rather than lead through example and convince people to follow them, and their vision, they lack the strenght to convince and try to shovel their way down people’s throat. These kind of things will be with us for some time to come.
When PW was still president, there was a brave official in the Union Buildings with a cartoon of PW on his office wall, where PW sits, with the entire cabinet, and he says: “Ek hou nie van ja-broers nie. As ek sê nee, sê almal nee!”. (I don’t like yes-men. When I say no, everyone says no!).
Not much have changed.
I see there is a report in Business Day this morning, about the newly appointed Department of Justice Director-General Nonkululeko Msomi who has been grilled about a damning audit report from the reign of her predecessor Menzi Simelane, by Parliament’s Standing Committee on Public Accounts.
Prof, aren’t we prone to hyperbole herein. I do not believe based on your account that Adv. Simelane meant trust unconditionally. I do think he requested that there has to be greater trust of government and political leaders than tha which currently occurs. In my own estimation the overwhelming majority of ANC members in the early 90s disagreed fundamentally with the concessions the ANC was giving in the World Trade Centre Talks. However, they trusted the explanations given and to a degree even compromised on their views because the believed that they leaders had the peoples’ core interests at heart. This did not mean that they could not disagree, but it meant that they did not treat their leaders as the enemy. I think this is what is being requested. Indeed, our very own Constitution seems to imply that all in government cannot be trusted, and therefore we must have a plethora of independent bodies to ensure that the repo/interest rate can be set, the price of electricity is determined, the content of TV and radio can be acquired, etc. Indeed, independence seems to mean independent of government not independent of the private sector. Yet, people vote for their leaders of government (I know its for parties to send representatives to Parliament who thereafter elect the members of government), they do not vote for the Chair of a private company like a newspaper or radio station. There has to be a level of trust but that is not unconditional and not without the power of recall and renew (read: elections). I do not think you are being fair. I do think your personal disappointments with Simelane seem to cloud your own ‘independence’ on his statements and the interpretation thereof.
Let’s put the human creation fables of the Bible aside for a moment and be realistic about our situation [ Blacks and Europeans ] in South Africa:
Simelane must have a point with what is just and fair for a Black person might not be such for an European descendant.
According to DNA studies [ and I'm referring to the books on human genetic studies by scientists like Luca Cavalli-Sforza, Spencer Wells and David Sykes ] there is a 60 000 years genetic distance between Black Africans [ of whom we're all descendants ] and the typical Europeans. A little less genetic distance between Black Africans and Indians, Chinese, Japannese, etc.
And the legal systems and legal principles culturally created over ages of the different nation states [ like the US, UK, Germany, China, Japan ] are totally different! Because of different legal cultures.
Point is : The legal cultures of humans across the globe differ substantially.
I think that’s one of the reasons why we are daily shouting at each other across the racial divide.
[The racial divide studiously upheld by the CC with its interprtetation of section 9[2]].
“Newly appointed Department of Justice director-general Nonkululeko Msomi had a baptism of fire before Parliament’s standing committee on public accounts (Scopa) yesterday when she and her delegation were grilled about a damning audit report….
“Godi acknowledged that the problems had occurred on Simelane’s watch and not hers and wondered aloud: ‘How did the director-general get an horizontal promotion when there are all these things wrong?’”.
http://www.businessday.co.za/articles/Content.aspx?id=94690
Societies are supposed to put their trust in the institutions of that society, which are then supposed to keep the politicians who hold those offices in check. cadre deployment and other aspects of the SA system (especially voting for a party as opposed to individual politicians) tends to undermine that distinction between institutions of the state (which should be neutral to all citizens) and political parties (which are not supposed to be neutral to all citizens). Thus, the institutions of the state are identified with political parties, and are no longer seen as neutral to all citizens. Trust is not earned in this fashion, but destroyed.
Henri, what a fatuous comment. There’s 60 000 years genetic difference between modern day Africans and the Africans of 60 000 years ago too. Exactly the same as anyone of any other “race” (I think you’ll find that modern geneticists and physical anthropologists consider the traditional racial groupings to be arbitrary and meaningless at a genetic level). And no legal system has been around for even a tenth of that time.
In any event, I think you’d be surprised at how much congruency there is between the legal systems of countries like the US, UK, Germany, China and Japan, especially when it comes to notions of what’s “just and fair”.
It is enough that the people know there was an election. The people who cast the votes decide nothing. The people who count the votes decide everything. – Stalin
Henri is right.
The last common ancestor we humans share with the common mollusc (oysters, barnacles, etc.), is reckoned to be more than four billion years old.
Small wonder these primitive creatures show scant respect for legality, rule of law, and other principles so central to our constitutional order.
Mikhail Dworkin Fassbinder says:
February 25, 2010 at 17:19 pm
“Small wonder these primitive creatures show scant respect for legality, rule of law, and other principles so central to our constitutional order.”
Ag kak man!
When did you come across a primitive, slimy creature that drove in a car without number plates??
Or whose defense for breaking the speed limit is “Do you know who I am?”??
We have to accept that we all came from apes and that we are in various stages of evolution. It is really rough to discriminate against those who are in a different evolutionary stage than we ourselves are.
Ad Gwen,
Your kneejerk reaction is understandable, but a bit hasty/superficial. Work through a few texts on Comparative Law and you will be astonished at the different ways problems between people are “resolved” in different cultures.
Then we can talk again.
Look especially at the Japs.
Africans, stupid? Perhaps > but the legal system or principles “culture” it utilizes has Jack shit to do with ignorance of an African continent!! Politics greed and failed judicial systems due to despotic mismanagement, corruption genocide & discrimination more likely!! Legal systems are laws (legislation), historical sources, int law foreign law & Precedence Henri heard of that? Of course you have you seem to know a bit of Comparative legal studies? Heard of the Audi principle Law 101? Gwen`s comment is hardly shallow in fact it is with merit!! Law is interpretation depending on what part of the legal system you are focusing on & in which country you find yourself. I would sincerely hope that in SA society we do not sanction such outlandish reasoning as above comments tho>>I would presume that most legal systems operate on the basis of right & wrong, just & unjust as primary principles inclusive of moral values from first phase canon laws>> Judges I also presume are there to interpret the law and not make the law by the analysis of their own culture, feelings, socialization & reasoning>> What a bizarre comment from a legal mind? Law is partial to politics and vice versa as much as we wish to veil such rhetoric, most likely A Gov of the day will reign in all aspects of the state it serves or that majority >>
I read something somewhere once in a legal text I think it was evidence, (aversion to reading as I told prof recently) where the relevance of evidence diminishes so does the irrelevance grow? I seem to find this interpretation in most walks of life>> culture has very little to do with law its inception and its early development, but everything to do with the edification & socialization of its citizenry. Japan has a minute cultural spectrum >> SA has a cultural kaleidoscope. If I look at China It’s a communist-capitalist society?. As far as I know, it has a revolutionised, technologically advanced infrastructure & more than half its population has enough to eat. Infrastructure is the key to building a middle class, which is key to being a stable superpower.
I think the only thing standing in China’s way is Inflation and a bad reputation which is cheaper to fix than a major demographic problem. With the millions of university graduates pouring out of Chinese techs and universities by 2020 we’ll all be learning Mandarin? Chinese have a work ethic and great moral integrity, but its is influenced not be their culture but by an Authoritarian regimes that has yielded impressive short-term economic results. As with Germany in the 1930s, the Soviet Union in the 1950s, Brazil in the 1960s, and now China. Unfettered by such things as property rights, legal recourse, and public debate & the cosmopolitan cultural consequences, the authoritarian regime can harness significant economic and political resources to create impressive industrial and economic feats. Culture in some of the above-mentioned countries is insignificant & nothing to do with Law or solving problems>> Fuck they all have slanted eyes straight hair and speak one language with no Human rights? Get it?
After more than 50 years after independence from almost two centuries of British rule, large scale poverty remains the most reprehensible scar of India. India still has the world’s largest number of poor people in a single country. Of its nearly 1 billion inhabitants, an estimated 350-400 million are below the poverty line, 75 per cent of them in the rural areas. More than 40 per cent of the population is illiterate, with women, tribal and scheduled castes particularly affected. On the other hand, democrazy tends to have slipshod affairs with public dialogue, a vocal press, mulish land owners, and limitless civil liberties. Remotely addtitionally from being able to exploit its declining economic resources, the government habitually acts more as a regulator than anything else. The result is that there are few gaudy government-sponsored projects & countless private-sector initiatives driven by the invisible hand of the market. The fact is that in the longer scope of things, the socioeconomic model has naturally led to economic and social misrepresentation. Again the Indian culture has nothing to do with its
notoriously corrupt Rule of law, half the population has no clean water A sick, starving population with an ancient crumbling infrastructure & no access to their basic needs purely due to lack thereof. They have access to their rights & just adm action tho> ?
henri says:
[The racial divide studiously upheld by the CC with its interpretation of section 9[2]].
Wrong again it’s the industrious Government of the day>>
As the relevance of the reasoning diminishes so does its irrelevance grow??
& as henri says:
Let’s put the human creation fables of the Bible aside for a moment and be realistic about our situation [ Blacks and Europeans ] in South Africa:
Simelane must have a point with what is just and fair for a Black person might not be such for an European descendant.
Legal basis?
As the relevance of the reasoning diminishes so does its irrelevance grow??
Ehud:
sorry to disappoint you, but china has a number of major demographic problems, mainly thanks to its “one child” policy. There is first a significant imbalance between males and females, so that it is likely that, in the relatively near future, many male chinese will find it difficult to find mates (females, not drinking buddies). This particular type of imbalance often leads to social unrest, as those mateless males often choose crime (they tend to be significantly less ‘socialized” than those with a steady squeeze).
the second demographic problem is that their society is aging very fast–even faster than japan, due, again, to the ‘one child” problem.
Gwen,
Just and fair? China? I don’t know about that. The law in China developed through the teachings of Confucius which dealt with social contract and social order. Until recent times the Chinese felt the law was secondary to self-discipline; this is backward. In identifying the Chinese legal system today, 1979 can be seen as the when progress began. Since then more than 300 new laws have been introduced. As recently as 2001, gays and lesbians where considered mentally ill when before 2001 this orientation was a crime. Today mediation committees are used to address legal issues, not unlike some political parties in this country. Many judges there have NO legal training and the most extreme legal sanction in China is death. We are not much better when you consider a few bad apples in our recent crop of Advocates, one apple recently could not even use spell-check in Word!
Thankfully, when Hong Kong and Macau transferred sovereignty to China, same kept their legal systems, the English Common Law and the Portuguese legal system, respectively. Perhaps in 80 years the law in China will catch up.
Ehud : Ahem, Miss something?
Chinese have a work ethic and great moral integrity, but its is influenced not be their culture but by an Authoritarian regimes that has yielded impressive short-term economic results. As with Germany in the 1930s, the Soviet Union in the 1950s, Brazil in the 1960s, and now China. Unfettered by such things as property rights, legal recourse, and public debate & the cosmopolitan cultural consequences, the authoritarian regime can harness significant economic and political resources to create impressive industrial and economic feats. Culture in some of the above-mentioned countries is insignificant & nothing to do with Law or solving problems>> Fuck they all have slanted eyes straight hair and speak one language with no Human rights? Get it?
History of China insignificunt ,
point of discussion the legal cultural aspect of an “African”, (Black Person) idea of what is just & fair who according to some may not be for a “european” descendant? Pls in Legal Context , I presume with Legal Basis?
Eish!
“Six police officers attached to the Joburg organised crime unit used a fraudulent warrant of arrest to place Teazers strip club owner Lolly Jackson behind bars.
“The warrant of arrest submitted to the Johannesburg Magistrate’s Court yesterday indicated that it was issued in the same court on February 8, for an offence committed on “October 16, 2010″. …
“The police used the same warrant to keep Jackson for two days in the Johannesburg Central Police Station High Centre as an awaiting trialist along with suspects charged with serious violent crimes.
“The warrant of arrest, the Johannesburg Magistrate’s Court found, was not authorised or signed officially by a presiding magistrate.”
http://www.iol.co.za/index.php?set_id=1&click_id=15&art_id=vn20100302041746106C100512
pierre,
the M&G reports:
“Prosecutions boss Menzi Simelane has a week left to submit reasons to the Johannesburg Bar why he should remain an advocate in good standing in light of adverse findings made against him by the Ginwala Inquiry”
(http://www.mg.co.za/article/2010-07-09-simelane-caught-up-in-selebi-fallout)
what are the constitutional implications should mr simelane be found not to be “an advocate in good standing”; the way i understand it the NDPP must be “fit and proper”, but does that necessarily mean that he/she MUST be an advocate ?