An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
9TH VICTORIA AND GRIFFITHS MXENGE MEMORIAL LECTURE
THE ROLE OF THE PRIVATE CITIZEN AND NON-GOVERNMENTAL ORGANISATIONS IN THE FURTHERING OF THE CONSTITUTIONAL PROJECT
Presented by Z.M Yacoob, Justice of the Constitutional Court of South Africa and hosted by the Faculty of Law at the Howard College Campus, University of KwaZulu-Natal Durban on Wednesday 13 April 2011
Program Director, members of the Mxenge family, my colleagues in the legal fraternity, members of the academic core, honoured guests, students, ladies and gentlemen:
This is a vitally important lecture series that is integral and essential to the process of the democratisation of our country, and I am therefore very grateful to the organisers for this invaluable opportunity to give one of the lectures within this prestigious series. We honour Victoria and Griffiths Mxenge today. Victoria was a loving mother and a grieving widow at the time when she was ruthlessly assassinated. Griffiths, a dedicated husband and father had been barbarically murdered a little earlier – this was no ordinary killing: his body had been so savagely mutilated that it is not appropriate to go into detail here. Both these wonderful people were without doubt formidable lawyers, fierce brave warriors in the war against apartheid, good friends and, perhaps most importantly, caring human beings.
In this tribute to the venerable couple, I first briefly touch on the importance and nature of their contribution to the constitutional project which I describe almost immediately. I then say something about amnesty and the achievement of the constitutional project, and finally, reflect just a little on what we can do now to take the project forward.
I have chosen to speak on the role of the private citizen and non-governmental organisations in the furthering of the constitutional project. You may wonder what the relevance of this topic is to Victoria and Griffiths Mxenge and how they could have made a contribution to the achievement of the constitutional project even before the Constitution came into existence. Whether Griffiths and Victoria were involved in the constitutional project depends on how we define it. As far as I am concerned, the constitutional project aims at achieving the society contemplated in our Constitution: a society that aims at the improvement of the quality of life of all, a society in which true equality, human dignity and freedom are paramount and a society in which all fundamental human rights are respected and protected. Many people think that this project began with the adoption of our Constitution. But that is to be extremely narrow and technical in approach. The quest for and struggle to establish a true democracy here began hundreds of years ago. Griffiths and Victoria have made an invaluable contribution to achieving our constitutional project, a process in which literally hundreds of thousands of people have been involved over many, many years. Mr and Mrs Mxenge contributed to this project, not as representatives of government but as private citizens. We also know that Griffiths was responsible for important work within the Release Mandela Committee, a non-governmental organisation. Similarly, Mrs Mxenge was involved in the liberation of women having formed the Natal Organisation of Women. I may add finally that the African National Congress was at that time not in government and was therefore a classic non-governmental organisation appropriately representative of the majority of civil society.
Griffiths Mxenge was severely butchered, tortured and murdered in the middle of November 1981. Victoria was shot dead outside her home some four years later. Both murders were carefully planned and timed. They were committed some 20 years after the many organisations of the people, including the African National Congress, were banned and forced into exile. I think the regime genuinely believed then, (if it could ever be said to have been genuine about anything) that this silencing tactic would inevitably lead to the end of the struggle against apartheid, and that the oppressor would certainly continue its painful and evil domination of the majority, unhindered and forever. And there were undoubtedly many cheers within their ranks when liberation organisations were forced into exile. Our enemy thought that, once the leadership had been separated from the people, we who were left behind would be rudderless, ineffective cannon-fodder, to be crushed easily and at will. For it was the apartheid evil itself that virtually imprisoned the mind of the oppressor into thinking that black people were capable of nothing but the crassest and most uncivilised behaviour. But the regime was ultimately proved to be wrong. It failed in its design. We, the forces of democracy, succeeded. And it was Victoria and Griffiths Mxenge who played a key role in that success, because it was their creativity and courage (together with so many others who worked within the underground of the African National Congress) that paved the way to victory, a victory which they sadly never tasted. They, at the time, forged and articulated the foundations of an effective relationship between the people and the leadership inside South Africa and the people and leadership in exile. This proved to be essential to the effective mobilisation of students, workers and communities, a level of mobilisation that was looking dangerous for them and slightly optimistic for us. It was this relentless tide that the regime sought to arrest by these unthinkable killings.
But the regime failed again. Griffith’s murder gave rise to untold increase in resistance, mass action, new leadership, and creative consolidation. The regime’s atrocious crime came to nought: organisation and mobilisation grew irrevocably with the launch of the United Democratic Front less than two years later in August 1983. Mr Mxenge’s ultimate sacrifice had not been in vain.
Victoria’s committed participation in the struggle remained as acute and meaningful as ever after Griffiths had been assassinated. This was the opposite of the result intended by the horrendous Griffiths murder. So predictably crudely she too had to be killed, and was, assassination style. After Mrs Mxenge’s death, the violence escalated, the regime became desperate, we the majority refused to be governed by an illegimate regime, negotiations began, and the rest is really history.
I have been at pains to suggest that the enemy did not succeed in its strategic objective of destroying the struggle by these killings. But it cannot be doubted that these heinous crimes represented serious obstacles that had to be overcome. And the loss of our comrades and friends was as deeply felt then as it is now. Griffiths, had he lived, would have been a very young 59 when we achieved our democracy in 1994; Victoria would have been a ravishing 52 year old friend. What would they have done in the new South Africa? They would both probably have become judges, at least one of them my colleague in the Constitutional Court. Our loss has been great indeed.
Yet, the contribution made by Victoria and Griffiths to the constitutional project can and must never be underestimated. What does the role played by Griffiths and Victoria Mxenge in forging and articulating the relationship between the people inside the country and the African National Congress outside it mean for us today? In my view, their work then emphasises how important it is to ensure the articulation and forging of a relationship between the people of the country and the government now- this is different from consolidating the relationship between a ruling party and its members. I would suggest that Griffiths and Victoria Mxenge would agree with me when I say that a strong, fearless expressive and empowered civil society is indispensable to the achievement of the constitutional project, because it is only if there is a strong civil society, that an appropriate relationship with government can develop. Civil society consists of the private citizen and the non-governmental organisations. The strengthening and empowering of the private citizen and non-governmental organisations inevitably results in civil society being empowered and strengthened. All private citizens and non-governmental organisations have the duty, in the fulfilment of the constitutional project, to contribute to a civil society capable of participating meaningfully in its own governance.
The role of Griffiths and Victoria Mxenge as lawyers is legend. We know that the so-called justice system of old was shamelessly used by the regime in its effort to destroy the democratic instinct, urge and struggle. The Mxenges left no stone unturned in ensuring that every effort to hijack the legal system was thwarted with every fibre in their being. Every trial of a cadre was vigorously defended, however unpopular the cause and regardless of the effort required. We must today not allow the law to be used as an oppressive tool by anyone. We must fight every move to do so. Our duty as lawyers though is not merely defensive. Victoria and Griffiths Mxenge, we all know, were not concerned solely with the right of the majority of our people to vote; the preamble to the Constitution that calls for the improvement of the quality of life of all South Africans would have had a particularly strong resonance for them. So too would those provisions of the Constitution that oblige the state to take reasonable legislative and other measures within its available resources to ensure the progressive realisation of social and economic rights like housing, food, water and health. The heroes we honour today would I think have ensured, as lawyers, that everything possible was done to access these rights. I can easily imagine a rousing speech by Griffiths or Victoria tonight about what we should do to improve the quality of life of all South Africans. I commend this to your imagination too.
And now to amnesty. The murderers of Victoria and Griffiths Mxenge were all granted amnesty. It is therefore fitting to make some remarks about amnesty on this occasion. We are now more than 15 years into our democracy; it is a crucial time when there is some discussion around the consequences of the grant of amnesty. An issue that arose in a case that came before the Constitutional Court recently was whether people granted amnesty for murder could be called murderers without attracting adverse legal consequences. In other words, the question raised was this: would a person or entity be liable to pay defamation damages for calling a person who had been granted amnesty for committing murder, a murderer. That question has now been authoritatively decided by the Court in a majority judgment which concludes that there is no liability for defamation in these circumstances. I cannot help thinking how I would referred to these murderers in this lecture if the decision of our Court, delivered in the nick of time on Friday last had not yet been delivered.
The question that I would like to raise this evening about amnesty is, however, though related to the question that the Constitutional Court had to answer, is certainly not the same. Moreover the matter I discuss is a moral issue not a constitutional or legal one. I am acutely aware though that the relationship between morality on the one hand and the law and the Constitution on the other can never be denied. The concern ventilated here was not implicated in the decision that the Constitutional Court had to make.
The sub-text of modern amnesty discourse seems to suggest that the effect of the reconciliation provision in the Constitution and of the Truth and Reconciliation Act is that there has been a certain equalisation between the forces of oppression and the forces of resistance. The thesis that emerges is apparently that both sides in the struggle, the oppressor and the valiant participants in the struggle were both guilty of unlawful conduct during that struggle. It was therefore appropriate, so the thinking goes to ensure that the perpetrators of unlawful conduct on both sides should be granted amnesty as a matter of fairness. I disagree and fundamentally.
It is true that the question that arose during the negotiating process was the proper approach to be taken in relation to mainly people who participated in the liberation struggle who had been convicted of crime for their participation. It was the oppressor who raised a concern about what was to happen to people in their ranks who had been guilty of impropriety for unlawful conduct. It was essential to the negotiation process that some resolution be found to this impasse and the resolution was that the people on both sides should be granted amnesty. I emphasise that, even though the Constitution and the Truth and Reconciliation Act contemplated reconciliation as the end result of the amnesty process, seekers for amnesty were significantly not required to commit themselves to reconciliation, the elimination of discrimination at every level, our Constitution, or, most importantly the achievement of the constitutional project. This means that a person was entitled to amnesty provided that a full disclosure was made and provided the other requirements of the Act had been satisfied without any commitment of the kind referred to earlier. It follows that, in theory at least, a person would have been entitled to amnesty even if he or she made it perfectly clear that they rejected the new constitutional order, that they continued to believe in apartheid and that they continued to believe that apartheid was undoubtedly right and that all people other than Whites were inferior and sub-human. Of course this would never arise in practise because nobody would ordinarily say so and any question before the Amnesty Committee of the Truth and Reconciliation Commission would probably have been ruled irrelevant.
Be that as it may the Truth and Reconciliation Act cannot properly imply any equation and it is dangerous for any of us to begin to think so. The essential difference between the forces of the enemy and the forces of resistance is that we had a just moral cause and that the course of the struggle that resistance took was dictated by the circumstance that their banning left them with no choice. The moral position of the forces of opposition was hugely different and I would venture to suggest that no one today can deny any of this. It can never be denied that apartheid was an evil, that it had to be destroyed, that it had no moral basis or legitimacy, that it represented a sophisticated means of exploiting Black people, and that the policy could never be justified in any way.
There must therefore equally be a fundamental distinction between the unlawful conduct of those who were heroes in a just moral cause and the villains who dared to commit illegality in support of the unacceptable apartheid sin. No one would dream of publicly calling people in this latter category heroes in the current circumstances.
I make this distinction not to vilify the perpetrators of these affronts to humanity although their vilification is an obvious consequence of what I say. I mean to emphasise that it is dangerous to forget this difference between the two forces and we must never ever equate them. For if we do, we deny the full consequences of the evil of apartheid, we compromise the need for reconstruction and we hold back the constitutional project. The private citizen and the non-governmental organisations in forging ahead to create the society envisaged by our Constitution must remember that the majority of our people were for centuries the victims of the most shameful, painful and destructive evil imaginable. There is another reason why we must always be aware of the conduct of the apartheid perpetrators and its consequences. It is this: we do not ever want to repeat what they did because if we do the constitutional project will be denied and the selfless conduct of Griffiths and Victoria would count for very little.
One final point on amnesty. While it may be understandable that amnesty was granted in the past without any reference to their commitment to the achievement of the society contemplated in our Constitution, I would suggest that this should not be so in the future even if the relevant legislation needs to be amended to achieve this result. In my view, the work of the private citizen and non-governmental organisations in achieving the constitutional project can only be enhanced if future amnesty is granted only to those people committed to the values of this Constitution. This I think is a requirement of our democracy today.
We must all put our shoulders to the wheel. I know that many of us come from poor families and circumstances and believe that we are entitled to use the fruits of our hard work and achievements for our benefit. Griffiths and Victoria Mxenge too came from very poor circumstances and they qualified as lawyers under great hardship. Yet they felt no sense of entitlement. None of us have any reason to do so unless the constitutional project has been achieved. We have come some way along the road but there is a long hard climb ahead. Let us continue the process of achieving the constitutional project in memory of Victoria and Griffiths Mxenge and the many thousands of other comrades who perished in the struggle with dedication, foresight, courage, strength, creativity, flexibility and purpose.
 The Citizen 1978 (Pty) Ltd and Others v Robert John McBride  ZACC 11, CCT Case number 23/10 judgment delivered on 8 April 2011 as yet unreported.
 Promotion of National Unity and Reconciliation Act 34 of 1995.BACK TO TOP