Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
21 October 2009

Jansen’s Reitz decision: an attack on the Rule of Law?

Back in 1995 I reluctantly supported the creation of the Truth and Reconciliation Commission (TRC), even though the legislation provided for the granting of full amnesty to those who committed abuses during the apartheid era. It was the time of Archbishop Desmond Tutu’s “Rainbow Nation” (remember that phrase?), the Rugby World cup victory and “Madiba magic” and it seemed appropriate to support the TRC because it was going to deal, once and for all, with all the human rights abuses of the apartheid era. This would allow us to start afresh and to build a more just and fair society.

Those who committed heinous crimes in defense of (or in opposition to) apartheid could apply for and be granted amnesty – as long as the crimes were politically motivated, proportionate, and there was full disclosure by the person seeking amnesty. Those who did not apply for amnesty would be prosecuted and the process of re-establishing the Rule of Law would begin.

Disastrously, almost none of the apartheid era perpetrators who failed to apply for amnesty were ever prosecuted. There was, of course, the foot-washing Adriaan Vlok who cut a deal with the National Prosecuting Authority (NPA), and the catastrophic prosecution of Wouter Basson, but the Generals, the State Security bosses and the politicians who gave the orders to “permanently eliminate” opponents of apartheid never saw the inside of a courtroom.

Now, almost 15 years later, I am starting to think that the TRC was a disaster for South Africa. Although it did provide the opportunity for ordinary South Africans to tell their stories and to ventilate the horrors that preceded the so called “miracle” of 1994 and although this made it very difficult for ordinary white South Africans to dispute the evils of apartheid, the TRC seemed to have established a precedent. Why stick to the law when it is inconvenient to do so or when a political deal that undermines the law will cause fewer problems for a particular constituency?

That is why, on reflection, I do not support the decision of Professor Jonathan Jansen to interfere with the University of the Free State’s disciplinary procedures. Prof Jansen’s action mean that further disciplinary proceedings against the Reitz students involved in the making of the video will be dropped and those students expelled from campus will be allowed to return to finish their degrees. In his inaugural address Prof Jansen justified the decision as follows:

You see, the biggest mistake made in the analysis of Reitz is to explain the incident in terms of individual pathology. Yet to dismiss the video as a product of four bad apples is too easy an explanation. This video recording was preceded by a long series of racial incidents protesting racial integration especially in the residences of the university. Not all of these racially charged incidents made the press; in fact, had it not been for the public release of the video recording, no-one outside the university would have known about it. And few outside the campus realise that what is now regarded as an offensive video production in fact won an award from the residence for its content.

The question facing us, therefore, is a disturbing one, and it is this: What was it within the institution that made it possible for such an atrocity to be committed in the first place? And there are other questions. Why is it that one after another parent and colleague have come to tell me that the incident was, and I quote, “blown out of proportion?” Why is it that so many adults came to tell me that it was Oros, and not urine, as if it mattered in the simulated act of boys urinating into food? What must I make of the many representations to my office to inform me that the boys, I quote again, “loved the squeezas and brought them food from their parents’ farms?”

When the focus of analysis shifts from that of individual pathology to one of institutional culture, then it becomes clear that the problem of Reitz is not simply a problem of four racially troubled students. It is, without question, a problem of institutional complicity.

Jansen has a point, of course. Those four Reitz students are not the only racists in the Free State (or South Africa). They are the product of the white supremacists society in which they grew up and the University culture which allowed their prejudices to flourish. But we are all the products of our society and the institutions we belong to. The person holding up a grocery store or raping an 80 year old grandmother is also the product of our culture (as is Schabir Shaik).

(Given the vast material discrepancies between rich and poor, the dehumanising effect that some forms of poverty can have on communities, the social disintegration and fragmentation of some poor communities, and the racialised nature of the wealth gap, we should probably have more reason to “understand” and forgive the behaviour of a young black man robbing a grocery store and to blame society for his actions than we have to “understand” the racism of the Reitz students.)

But Jansen seems to suggest – in the spirit of the TRC – that we should not always hold individuals personally responsible for their actions and that we should therefore not insist that the ordinary legal processes of a University dealing with the disciplining of students should run its course. This seems like a dangerous move. Why stop with the four white guys from Reitz?

Why not excuse the police officer who took a bribe because he wanted to pay for his daughter’s school fees? Why not drop disciplinary charges against a mid-level civil servant who rigged a tender because that civil servant had to keep up with his bond repayments? Why not drop corruption charges against the leader of a political party because it would be inconvenient to have a sitting President charged with corruption?

(And why do so many white South Africans – including DA leaders – always support forgiveness or leniency for the middle class white guys, but not for their black counterparts? Why do so many black South Africans – including many ANC leaders – always seem to support forgiveness and leniency for fellow black men and women, but not for their white counterparts? Do I smell some rank hypocrisy?)

I do not think I am particularly vengeful or that I formalistically and prissily stick to rules when they will have unjust consequences. Where someone made a mistake, owns up to it and pays the price, I would not want that person hounded for life. But I do believe in the Rule of Law. I also believe individuals should (at least to some degree) be held accountable for their actions – no matter to what degree those actions were the result of the upbringing and circumstances of the individual. If we do not hold individuals accountable and if we pick and choose when we want to follow the rules, we fundamentally undermine the Rule of Law and, hence, respect for the rules.

How can we begin to build a society in which individuals will respect each other and the rules put in place to regulate that society to the benefit of all, if we arbitrarily pick and choose which rules we wish to apply on the basis that those who broke the rules cannot help themselves?   

Respect for the human dignity of all can only flourish when we try to understand why individuals behave the way they do, when we try to change the circumstances which led to that behaviour, but when we do not try to excuse that behaviour. If we condone too easily and do not hold individuals accountable for their actions, we disrespect the dignity of those who are the victims of the condoned behaviour and we create the circumstances for the recurrence of the very behaviour which has so grievously harmed our fellow countrymen and -women.

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