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.
Julius Malema knows how to grab and keep the attention of the news media. He also knows how to grab the attention of ordinary citizens, who never seem to tire of either being enthralled or appalled by his rousing statements. What would people who phone in to talk radio have to talk about if they could not talk about the latest Julius Malema statement or action? It was therefore inevitable that Julius Malema’s speech in the Lenasia Recreational Centre, to members of the South African National Defence Force (SANDF), would excite much chatter.
The speech raises larger questions about the relationship between politicians and soldiers. Is it ever appropriate in a constitutional democracy like ours for a politician to address troops, and if so, when? More pertinently, is it not illegal for unelected politicians to be seen to speak to members of the Defence Force and criticising the current leadership of the ANC and the government it leads?
In the Apartheid years, the defence force was a highly politicised institution serving the interests of the National Party. It was deployed inside and outside South Africa to defend the Apartheid state and white privilege that flowed from it. National Party politicians, who wanted to demonstrate to white voters how kragdadig (forceful and ready to use force) they were, often held speeches at formal military parades, exhorting the troops to fight for volk en vaderland (for the white nation and the white homeland) and against die magte van die bose (the powers of the evildoers). One could hardly switch on the SABC television news at night without being confronted by some National Party minister or another – wearing one of those noir black fedora hats that went out of fashion in the 1950s – wagging his finger and telling the white troops to fight for wit selfbeskikking (white self-determination) against the godless ANC.
As Willie Esterhuyse noted in Endgame, his new book about the role he played in the transition to democracy, large segments of the military were seen as deeply suspicious of talks between the National Party and the ANC and did everything to derail these talks. In a dramatic turn of events, then-president FW de Klerk revealed in 1992 that an inquiry had uncovered security force plots against political reform. De Klerk then fired scores of senior officers of the Defence Force in what was widely seen as a purge of those in the Defence Force opposed to democracy.
Given this background, it is not surprising that the South African Constitution contains specific provisions to prevent the military from becoming a tool in the hands of the ruling elite or from gaining too much power over elected politicians.
Section 199 of the Constitution therefore contains binding general principles to guide the structuring of the security services as well as the behaviour of its members. To prevent the military from again getting involved in politically motivated atrocities, section 199(5) of the Constitution now requires the security services to act, and to teach and require their members to act, in accordance with the Constitution and the law, including customary international law.
To ensure the non-involvement of the security forces in party politics, section 199(7) of the Constitution prohibits any member of any security service from prejudicing the constitutionally legitimate interests of a political party and from furthering, in a partisan manner, the interest of a political party in the performance of their functions.
Obviously, this does not mean that the security services are completely insulated from politics. After all, the president is also the Commander-in-Chief of the Defence Force and appoints (and can fire, in certain circumstances) the heads of the SANDF as well as of the South African Police Services and the Intelligence Service. The President is unlikely to appoint somebody whose views conflict with everything he and his party stand for.
This political control over the SANDF is further underlined by section 202(2) of the Constitution, which states that the “command of the defence force must be exercised in accordance with the directions” of the minister of defence, “under the authority of the president”. Although the Defence Force leadership or any of its members may not choose sides in party political disputes, they have a constitutional duty to perform their duties in accordance with the directions and guidelines set down by the ministers of defence and the president.
This is an important and salutary principle which must be adhered to in a constitutional democracy, as it protects us against the abuse of power by the military and against the indirect or direct meddling of unelected soldiers in the governing of the country. Such meddling can emasculate elected governments and can ultimately subvert democracy itself. Our Constitution therefore ensures that civilian control is exercised over the Defence Force by politicians, first, in the form of the minister of defence and, second, by the democratically elected members of Parliament.
The members of the SANDF are also not assumed to be apolitical beings without any private beliefs and ideas. This is why neither the Constitution nor the Defence Act prohibits soldiers – in their personal capacities – from joining political parties, from voting and from attending political rallies. Like other citizens, soldiers also have democratic rights, and as long as they obey all legal orders from their commanders, there is nothing wrong with soldiers expressing their political views in private.
However, the Defence Act does place limits on the rights of soldiers to exercise their democratic rights. For example, section 50(4) of the Act states that the right of members of the Defence Force to assemble peacefully and unarmed, to join demonstration, to picket and sign petitions, may be subjected to restrictions “[t]o the extent necessary for military discipline”. Reports indicate that the Defence Force had prohibited its members from attending the Malema event (one assumes because it was thought necessary to maintain military discipline).
If this were a blanket ban on the attendance of soldiers (whether on duty and in uniform or not), the instruction almost certainly imposed an unjustifiable limitation on the rights of soldiers to take part in political activity. However, on-duty soldiers or soldiers in uniform who did attend may well face disciplinary charges and plausibly even dismissal. However, there is no law prohibiting an off-duty soldier from attending any political gathering – as long as that gathering is not unlawful. As far as I know, there is also no law that specifically prohibits a private citizen from addressing troops – even if that private citizen is Julius Malema and even if he criticises the government of the day.
But this does not mean that anyone can incite insurrection in the Defence Force without facing appropriate legal consequences. Rather hysterically – as if in a panic – Malema’s planned address has been slammed by the defence ministry spokesman Siphiwe Dlamini, who called it “incitement… which is a criminal offence… it will be treated as such”.
Military analyst Helmoed Heitman added that: “If you are intending to plot sedition, the military is a good place to start. If you want to destabilise the state, you demoralise the military.”
It turns out that these statements might have been animated more by the fear and hatred of Malema than by knowledge of the law. In his speech, Malema did not call for insurrection. Neither did he call for members of the SANDF to strike, or for them to take part in paramilitary action. From news reports it appears that he did not call for (and hence could not have incited) soldiers to commit criminal acts. As far as I can tell from news reports, the thrust of his speech was to criticise the Zuma government and to commiserate with suspended soldiers, urging them to continue their struggle.
One can only be convicted of the crime of incitement if one incited others to commit a crime (regardless of whether those so incited actually then go out and commit the crime). Unless the journalists missed something obvious and quite shocking (or unless the North West Director of Public Prosecutions, Johan Smit, is involved in the decision), it seems implausible that Malema’s words would open him up for a charge of incitement. As long as he did not incite the soldiers to act outside the law in dealing with their grievances, he will not be convicted of incitement by our courts.
But by giving a speech that was critical of the current leadership of the ANC before an audience which included many soldiers, is Malema not exposing himself to charges of sedition – as Heitman suggested? Sedition is, indeed, still a crime in our law – and a rather worrying one at that. It is committed when a group of people come together at an unlawful gathering with the intention of impairing the authority of the state by defying or subverting the authority of its government. This differs from treason, which requires the intention to overthrow the state. It also differs from mere criticism of the government of the day or the leadership of the political party in government – although the line between levelling criticism at the government and impairing the authority of that government seems to me to be almost non-existent.
In any case, sedition is a funny and not uncontroversial crime. It originates in England, where it was used in the seventeenth century to criminalise all criticism – true or false – of the state, its laws or the conduct of the members of its government. Under influence of Roman Dutch law, the scope of this crime was narrowed by the requirement that it could only be committed at an unlawful gathering. Even so, as Prof Jonathan Burchell wrote in his book on criminal law, the crime is often seen chiefly as a means of suppressing revolutionary calls for political and social reform. To the extent that it criminalises all unlawful protest marches or forms of mass action, it may well inhibit legitimate political action and the right to freedom of assembly.
But this discussion is rather academic. As Malema’s speech was delivered inside a hall and not at an unlawful gathering or protest, it will not meet the first requirement for the test of sedition, namely that the crime can only be committed at an unlawful gathering.
Having said all this, and having concluded that in all likelihood no crime was committed, one should still ask whether Malema acted appropriately by going to speak to soldiers. But I guess expecting Malema to act appropriately is like expecting King Goodwill Zwelithini to demand an immediate reduction in his perks and his royal budget.BACK TO TOP