As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
A few years ago at the opening of the Gay and Lesbian Film Festival in Cape Town, a motley crew of fundamentalist Christians picketed the event, holding up insulting and provocative placards like “Turn or Burn”; “Homosexuals will burn in hell”; and “Homosexuality=perversion”. My then partner and I, encountering these protesters as we left the cinema, turned to each other and kissed each other passionately. I then waved at the protesters, smiled, and wished them well.
After all, they had a right to express their views, no matter how repugnant, bigoted, bizarre and superstitious I might have found these views — just as I had the right to demonstrate my love and affection to the person dearest to me. That is one of the advantages of living in a constitutional democracy. As long as one does not break the constitutionally valid laws of the country, one is free to do and say what one wants.
Section 17 of the South African Constitution states that: “Everyone has the right peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” This right forms part of the bouquet of rights aimed at securing a democratic space in which individuals can express their views, can demonstrate in support of those views, can listen to others and consider changing their minds. If these rights are not vigilantly protected, democracy itself is diminished.
If one is intolerant of the views of others to the extent that one would take action to prevent others from expressing these views or trying to spread their views by holding marches or handing over petitions, one is intolerant of democracy itself. If one disagrees with a view expressed by others and promoted via a peaceful march, then one should counter that view with better arguments and holding another, larger, peaceful march. Not by trying to deny others their democratic rights.
That is why the actions by the Cosatu leadership as well as Cosatu members today must be condemned in the strongest terms. First Patrick Craven of Cosatu (and the ANC) called on the DA not to exercise their democratic right to demonstrate. Then the National Union of Metalworkers of SA (Numsa) and its affiliates vowed to “swamp the streets outside Cosatu House”.
Numsa spokesman Castro Ngobese complained that: “This mass gathering is informed by the provocative, deceitful and cheap political blackmail from the chief representatives of white monopoly capital and apartheid apologists the DA.” Ngobese said the DA was trying to coerce the ANC-led government, particularly its ally Cosatu, to agree to the neo-liberal proposal of a youth wage subsidy.
(Ironically the march was aimed at promoting a youth wage subsidy, a policy supported by the ANC government.)
Then this morning Cosatu members intimidated DA marchers and threw stones at them (with some reports of the DA marchers retaliating) and at journalists, injuring several people. Patrick Craven incredibly justified this action by stating: “We showed [the DA] we would not be intimidated.” Mouthing platitudes about supporting the right to peaceful protest (as Vavi did in a tweet) after you have called on your supporters to stop a DA march from getting close to your headquarters, merely illustrates than one is a hypocrite, not that one is a man of principle.
There is no place in our democracy for such anti-democratic intolerance. The argument that the marchers “provoked” Cosatu members who were by implication justified in using violence to stop the march, does not hold water. No one has a right to bring a violent end to a march because they believe the message of the marchers is wrong or that the marchers have no right to demonstrate close to where they work. If they had, the rights protected in section 17 of the Constitution would be illusory. Leaders have a special duty to ensure that their followers do not deny the rights of fellow citizens and they must not instigate unlawful and undemocratic action by their followers.
It is deeply disappointing that Cosatu leaders like Zwelenzima Vavi, somebody I have always held in high regard, would stoop to such a low.
Some commentators have argued that the DA was irresponsible to march on the Cosatu headquarters and that it was strategically wrongheaded. But this is a red-herring. One might well believe that it was unwise for the DA to march on Cosatu headquarters (or that they will not win any votes in this way), but there is no law in South Africa prohibiting one from being unwise. In fact, the Constitution requires the Police to protect even those who we believe are acting unwisely from the intolerant and undemocratic attacks by fellow citizens.
The Police also has a duty to protect marchers from intimidation and attack. There might be cases where intolerant citizens spontaneously begin to threaten marchers and the Police must then step in to protect the marchers. If they cannot do so, they may try to defuse the situation by diverting the march. But where leaders in effect call on supporters to deny other citizens their democratic rights, the Police has a positive duty to deploy the necessary resources to protect such marchers. The Police did not (or could not) stop Cosatu members from massing and attacking the DA marchers, suggesting that the Police is partly to blame for the ensuing bloodshed.
Lastly, I am not an economist so I do not have a strong view about whether the youth wage subsidy is a good thing or a bad thing. But if Cosatu wants to convince people like myself that it is a bad idea, they will have to present arguments to that effect. They sure as hell will not convince me of their view by stopping others from expressing the contrary view.
In fact, responding to a peaceful protest march with violence would suggest that Cosatu does not have a sound and convincing argument that it thinks will convince the millions of unemployed youth that a policy aimed at creating youth employment is a bad thing. Maybe there are such arguments, but in the absence of a cogent and sound response from Cosatu, many people will be left with the perception that Cosatu is protecting the interests of its members and do not care much about the unemployed who, after all, are not constituents of Cosatu because they are unemployed and cannot join a union.BACK TO TOP