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.
When Julius Malema chased BBC journalist Jonathan Fisher out of an ANC Youth League press conference after taking offence at Fisher’s cheeky comments, Democratic Alliance leader, Helen Zille (rightly) stated that such behaviour “can produce no winners” in South Africa. What was needed was not the racially inspired rants of Mr Malema but the building of a society where “everyone protects each other’s rights”. She decried Mr Malema’s “sinister tantrum, and resort to racial insults.”
Ms Zille contrasted the outburst of Mr Malema to the policies of the DA and stated that the DA wanted to bring about a realignment of politics to bring together all South Africans “into one powerful political force that crosses racial boundaries and offers the alternative to racial nationalism”.
Of course, to provide such an alternative the DA has to convince a majority of South Africans that it takes racism seriously and that it would not tolerate behaviour of its own representatives if such behaviour demonstrated a shocking disregard for the dignity and even the lives of black South Africans.
Unfortunately the DA does not always practice what it preaches. Nothing illustrates this more starkly than the manner in which it has dealt with Ms Anna Majavu, a journalist of The Sowetan newspaper who wrote an article in which she reported that a DA member of Parliament and “Shadow Minister of Public Enterprises”, Pieter van Dalen and two metro police officers “without any cause or warning, started firing rubber bullets” at two black boys aged 6 and 7. The report also stated that the boys then fled prompting Mr Van Dalen and the police officers to laugh.
The story was based on findings of Adv. Pierre van Tonder, a commissioner in the South African Local Government Bargaining Council, who adjudicated in the matter of an appeal by a metro police officer against his alleged unfair dismissal by the City of Cape Town.
The DA approached the Press Ombudsman to complain about the report of Ms Majavu. The party claimed that the news report was based on untested allegations of a witness and that one could not possibly tell whether the boys were black or white (presumably because many white 6 year olds hang around in Khayelitsha). It also took exception to an allegation in the report that Adv. Van Tonder had recommended that Van Dalen be disciplined. The party also complained about the headline of the report (not written by Ms Majavu) which stated that Van Dalen was “up for” shooting two kids on the basis that he had not (yet) been charged.
Apart from the last two question, the Press Ombudsman rejected the DA’s arguments. In other words, the Press Ombudsman ruled that it was perfectly fair for The Sowetan to have reported that Van Dalen “without any cause or warning, started firing rubber bullets” at two black boys aged 6 and 7 and that the boys fled and the group then laughed. The headline was found to be misleading. And the statement that Adv. Van Tonder had recommended that disciplinary action be take against Van Dalen was not correct as Van Tonder did not have jurisdiction over Van Dalen. The Sowetan then published the requisite correction pointing out that it was essentially vindicated but that the Press Ombudsman had found that the paper had erred on two minor points.
Obviously, this report in The Sowetan and the finding by the Ombudsman that the paper was justified to report that Van Dalen had been found to have fired at small black children, suggested that a DA MP was a racist bigot who shot at small black children for fun. This outcome was therefore pretty damning for the DA.
As a party who professes to uphold the rule of law, to abhor racism and — unlike the ANC – not to protect its members when shocking findings of inappropriate or even criminal behaviour was made against them, one would have imagined that the DA would immediately have suspended Van Dalen and would have demanded that the police investigate the matter fully and that the NPA prosecute Van Dalen for attempted murder if the findings of Adv. Van Tonder proved plausible.
However, Van Dalen, who had been involved in at least one other shooting incident, was not suspended. As far as I can tell no action was taken against him. This lack of action by the DA and its refusal to act on a credible report of racist criminal activity by a DA MP was, to say the least, surprising and shocking. It is unclear on what basis it decided that a finding by an arbiter that a DA MP has shot at black children warranted no further action.
For an outsider it suggests that the DA is not serious about racism and criminality amongst its members. It also suggests that the DA had one set of rules for Julius Malema and members of the ANC and another set of rules for its own leaders. While the DA was ready to accept that allegations of corruption against ANC leaders were always credible (because most ANC leaders are black?) actual findings by a lawyer against a DA leader was not credible because DA leaders could never-ever be guilty of any wrongdoing (because most DA leaders are white?).
Even more astonishing, the DA moved to punish Anna Majavu for reporting on something in a manner that was found by the Ombudsman to be correct in all essential respects and decided to boycott her in future. It thus decided to punish the reporter whose reporting was in essence found to be correct in all material respects. This is not the behaviour of a party that believes the free flow of ideas and information (even information that suggests that one of one’s MP’s is a racist bigot) is essential for the effective functioning of our democracy.
Gareth van Onselen, the DA’s Executive Director of Communication, responded to The Sowetan report on the “blacklisting” by claiming that the Press “Ombudsman found in the DA’s favour”. Anyone who has read the original report and the Press Ombudsman’s response to the DA complaint would be surprised by this statement. In fact the Ombudsman found in favour of The Sowetan – with the exception of two minor points which did not go to the heart of the matter relating to the alleged racially inspired criminal conduct of a DA MP.
At best this statement by Mr Van Onselen is therefore flagrantly misleading.
But even if the story had been completely wrong, the decision of the DA to punish the reporter for writing it would have been problematic. (The debate about whether the DA had “blacklisted” Majavu or not is a complete red-herring as journalists deal in information and by trying to cut Ms Majavu out of the information loop the DA was clearly intending to send a signal that journalists who report on shocking aspects of the DA will be kept out of the information loop.) Imagine what the DA would have said if the ANC had decided to punish a reporter for publishing damaging stories on the ANC. One set of rules for the DA, another set of rules for the ANC?
And of course, the DA claims to be a great supporter of media freedom. It regularly lambasts the ANC for its attitude towards the media. But like the ANC, the DA now argues that when a particular journalist reports on matters in ways that displeases the DA it will punish that journalist. Just like the ANC the DA now claims that a journalist is biased against it (a rather subjective assessment) and on that basis has decided to withold information from her. Information is the lifeblood of a journalist, so this step cannot be seen as anything but an intended punishment of that journalist.
In other words, the DA’s principles state that: “We are all for freedom of the media, as long as the media does not report something that suggests — with rather good reason — that one of our MP’s is a trigger happy racist bigot.
Unless the DA changes the manner in which it operates, unless it begins to apply to itself the same principles it holds the ANC to, unless it demonstrates that it is serious about rooting out the racism in its midst, the stirring words of Helen Zille about the DA’s goal of building a non-racial South Africa will ring hollow. Unless, of course, the DA means by non-racialism that it wants to build a movement in which white racists must remain welcome but black racists have no place.BACK TO TOP