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.
So far I have not been particularly impressed by the performance of the Cope leadership. I am happy Cope broke away and might ensure that the ANC does not get a two-thirds majority as this will ensure that the ANC won’t be able to tinker with our Constitution. And a bit of competition will do those arrogant fat cats of the ANC the world of good in the next few years. (There is nothing like another group of potential fat cats breathing down your neck to make one remember to do something nice for the masses of our people once in a while.)
But let’s face it, Cope got themselves into a terrible mess with their strange attitude towards affirmative action, for example, by seeming to oppose affirmative action on the basis of race despite the fact that it might well be mandated by the Constitution. Like the ANC they also do not seem to have a constitutional lawyer to advise them on the very basics of our Constitution according to which our country must be governed. Ag hemel tog, red nou ‘n volk.
In Minister of Finance v Van Heerden, decided in 2004 by the Constitutional Court, that arch counter-revolutionary Deputy Chief Justice, Dikgang Moseneke, (Gwede, are you paying attention to see what this counter-revolutionary has been up to?) made it clear that section 9 of the Constitution does not only allow for corrective measures on the basis of race, but sometimes requires it. This is because positive action on the part of the state is mandated by section 9 to break the patterns of disadvantage and harm created by past unfair discrimination.
And given the fact that people have been discriminated against on the basis (inter alia) of race and that racism is still rife in our society, some forms of race-based corrective measures might well be constitutionally required. It is not for Cope to just stop this because it decided its leaders have been sufficiently “affirmed”.
(Moseneke quite correctly, I think, said he preferred the Afrikaans term “regstellende aksie” to the unhelpful American term affirmative action. This is because such measures are required to address past injustice and not only to “affirm” some people or to make them feel good about themselves. This is about justice – something the Constitution speaks about quite a lot.)
It does not help that people like Mbhazima Shilowa and his wife have become extremely rich at least partly because of race-based corrective measures. When Cope then talks about the end of raced-based affirmative action, it seems to say: It was good for us to get on the gravy train through affirmative action but now that we are rich it must stop!
This attitude can, to be kind, sound like rank hypocrisy. What about the poor, black, uneducated rural people of South Africa who did not have any ANC connections and did not know Brett Kebble and are still struggling – often in the face of deeply entrenched racism? Are they to be thrown at the wolves?
In any case, having said that, I was rather amused at the blistering attack launched against Cope by the Afrikaans poet and Treasurer General of the ANC, Matthews Phosa. According to Business Day:
In notes prepared for his speech to the manifesto rally in Katlehong, Phosa said that COPE was nothing but the Democratic Alliance in disguise and that voters would be able to recognise that COPE statements were character assassination masked as matters of principle.
Phosa said COPE’s policies that had been put on the table in no way differed from the policies of the ANC, leaving one “with no other conclusion than to say that COPE is a house of people who are bitter about their democratic exclusion from the ANC”.
“If you leave a party because members think you have not provided leadership and then say the party you have left (the ANC) does not believe in democracy, you are distorting the truth in the worst possible way. The simple truth is that this new party has not offered anything by way of policy or proposals regarding the strengthening of democracy whatsoever.”
Can this possibly have been reported correctly? Can any politician be so stupid as to contradict himself insuch a blindingly obvious way? So, Cope is the DA in disguise, yet its policies are exactly the same as the policies of the ANC. This means Phosa has just admitted the ANC and the DA have the same policies! Either that, or he is saying policies do not matter: either you criticise us and then you are like the DA or you are one of us and then policies do not matter.
So why is the ANC always attacking the DA? If the DA policies are just like that of Cope and the ANC, then they are attacking their own policies – unless they do not believe a word they are saying when they attack the DA and are merely cross because the DA people have the temerity to criticise the ANC? It does not make sense. It reeks of opportunism. So it is just plain stupid to make such a statement.
Either that or the ANC is admitting that it, too, is a racist institution with racist policies out to perpetuate the interest of the white middle class! Come to think of it, ANC economic policy over the past ten years has really benefited the white middle class more than any other group in our society, so maybe Phosa does have a point.
Wonder what the SACP and Cosatu might say about this insight? Why are they still memebers of this racist, bourgeois, organisation called the ANC then? Just because the ANC gets the most votes? And where does comrade Umshini wam stand on all of this? Surely Phosa just “misspoke”? (Just like Hillary Clinton “misspoke” when she claimed to have landed in Bosnia under sniper fire when, in fact, she was greeted with flowers by little children.)
Some days a politician says such a breathtakingly stupid thing that one can only laugh. Today is such a day. Mr Phosa, maybe you should write some more Afrikaans poetry and should leave the politics to Julius Malema. Even he, surely, would not have made such a bizarre statement.BACK TO TOP