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 the scandal first broke Western Cape Premier Helen Zille was obviously in a fix: The DA-led Cape Town city council had built toilets without walls for black citizens living in the Makhaza area and the South African Human Rights Commission (HRC) had found that the city was in breach of the rights of those citizens. For the ANC – in complete organisational disarray in the Western Cape – this came as a godsend and the party and its Youth League made full use of this political gift by the DA to paint the DA as a callous party with absolutely no understanding of poverty and no respect for the dignity of black citizens.
After all, the DA city council had not expected white residents to use toilets that are open for all to see, so this move looked at best like the DA had no understanding of the problems faced by many poor and black residents of the city and at worse like sheer racism. Can anyone imagine the DA providing white residents from Sea Point with toilets which would require them to relieve themselves in the open air in full view of their neighbours? Can anyone imagine that the DA would be callous enough to call such toilets “loos with a view”?
Obviously, no one who is honest would be able to say that they could imagine such a thing. For one thing, my scary Aryan-looking DA Councillor, JP Smith, would never have allowed such “immoral”, “barbaric” and “lewd” behaviour in Sea Point and would have ordered the police to arrest any resident who had demanded to shit on the Sea Point promenade long before that resident would have been able to finish his business in peace (while enjoying the lovely view of Robben Island in his “loo with a view”).
So, Helen Zille was in a fix: the toilet scandal was threatening to become a metaphor for everything that seemed wrong with the DA. It was reinforcing the view amongst most progressive white South Africans and the vast majority of the African population that the DA had one standard for whites and another for black South Africans.
But what could Premier Zille do?
Well, she used the oldest political ploy in the book by shooting the messenger. By doing that she obviously hoped to change the topic. After all, it used to work for Thabo Mbeki (another arrogant, principled and intelligent person who did not like to be told that he had been wrong) who shouted racism to deflect attention from his bizarre views and the terrible failings of some of his cabinet ministers. That is when Premier Zille penned one of her diatribes against the HRC, stating that:
The HRC is quickly becoming as discredited as the Public Protector was when Mushwana held that office. One just has to read the extraordinarily biased and factually inaccurate report of the HRC on the Makhaza toilet saga to understand the agenda. The report’s analysis and conclusions are impossible to explain rationally. The inevitable inference is that the report’s purpose is to embarrass the DA and benefit the ANC. There is no other credible explanation in the light of the facts.
The only problem was that the above statement was demonstrably false. Zille was either very ill informed or she was lying. The secret report by the DA controlled city council forensic department confirms that the Premier had attacked the HRC unfairly and wrongly. The report makes for quite surprising reading and completely refutes the statement by Zille quoted above.
Residents were forced to sign “happy letters” that officials could use to “prove” that the open toilets were accepted by the residents. I know what I would have told the city what to do with such a letter had they built me a toilet without walls and then asked me to sign a “happy letter” to prove that this was what I wanted (but I am upper middle class and white, so I am probably not going to be intimidated by Dan Plato and his merry men). As the report also found, the letters actually “do not indicate whether the beneficiaries are satisfied or dissatisfied with the toilets”.
Moreover, the Report found that the city had failed to keep formal minutes of meetings where the scheme was discussed as required by the National Housing Code (which places a question mark over claims by the DA that sufficient consultation with the community ever took place.) It also confirmed – as I have argued elsewhere – that provisions of the Water Services Act were not complied with.
So it turns out that – contrary to what the Premier had claimed – the analysis in the HRC Report and its conclusion was easy to explain rationally. After all, the city council’s own report came to much the same conclusion as the HRC Report. As the Report came to the same conclusion as the city’s secret report, the claim that the HRC report was aimed at embarrassing the DA was therefore not sustainable. This is when Premier Zille changed direction slightly and tried to make the argument about cadre deployment and not about her rather embarrassing, hysterical and untrue claim about the HRC and the malicious intent of its Report.
This was both short-sighted and, so it seems to me, dishonest. Premier Zille at this point could have owned up to the original mistake and could have said: “I was wrong. The HRC Report findings were credible. I apologise to the HRC and those I had attacked about this issue.” Instead – like an over excited poker player – she raised the stakes and attacked Janet Love because Love had been on the ANC NEC before she took up her post as a HRC Commissioner.
This was clever but devious. If we all argued about whether Janet Love was a saint or an evil cadre of the ANC, we would forget the original statement by Zille which now turned out to be false and probably defamatory. We would also forget that the statement probably constituted a criminal offence in breach of section 18 of the Human Rights Commission Act. But some of us remember that first outburst, hence this post. Will the Premier apologise to the HRC and admit that the HRC Report was fundamentally correct? I doubt it, but it is worth asking I guess.
Meanwhile Zille has managed to do immense damage to the DA’s reputation. It was just beginning to gain some credibility outside its usual support base before this saga (and how it was handled) reinforced the suspicions of the majority of South Africans that the DA was a “white” and “racist” party. By abusing the issue of cadre deployment in this way, Zille has also made it more difficult to be taken seriously on the important issue of the dangers of cadre deployment. Who is going to listen to her the next time she natters on about cadre deployment? Most sane people will just assume that she is trying to change the topic and is shooting the messenger again.
The fact is that cadre deployment by the ANC is a huge problem – just not in the way that Helen Zille claimed it to be in her diatribe against Janet Love and the HRC. The biggest problem with cadre deployment is that completely unqualified and subservient ANC cadres are sometimes appointed as city managers, in other positions of immense importance for service delivery, and in positions in independent institutions.
Poor people (and sometimes middle clas people too) suffer when a city manager without any skills is appointed because he knows the ANC secretary in the region. When that manager cannot actually manage a town or city, the roads deteriorate, the lights go out the sewerage spill out into the streets and not even open toilets are built for the people who need them.
The problem is not necessarily that the person is an ANC member or even that he or she is someone who used to be in a leadership position in the ANC. After all, Albie Sachs, Pius Langa, and – yes – Janet Love all used to be in leadership positions in the ANC and I DARE anyone to suggest that any of them had not served or do not continue to serve the people of South Afric in an exemplarily fashion.
If we are going to say that ANC members or former ANC leaders can never be appointed to any important positions, we will have very few people of any integrity and principle left to appoint – given the fact that two thirds of voters support the ANC and given the ANC’s dominant role in the anti-apartheid struggle. That will only leave us with DA members or people without any leadership skills to appoint to important posts in our society. And let’s face it, I would far rather have a Pius Langa as Chief Justice than a Tertius Delport. And I would far rather have a Janet Love on the HRC than a Dan Plato or a Rhoda Kadalie. In terms of intellect, skills and integrity, the former “ANC cadres” are vastly superior to the possible DA hacks.
The problem is NOT – as Helen Zille claims – that ANC members or former ANC leaders are appointed to important positions. The problem is that some ANC-aligned individuals are appointed to positions for which they are manifestly not qualified and that some ethically challenged and unprincipled individuals who have joined the ANC to make money are appointed to important positions. But perhaps because Helen Zille used cadre deployment to try and escape responsibility for her own duplicity, she cannot make such a distinction. This kind of naked politicking does immense damage to the power of a more nuanced and important argument about the dangers of the kind of cadre deployment that I highlighted above.
And by not making such a distinction and by abusing the cadre deployment card (the DA version of the race card), Zille makes it far more difficult for the rest of us to argue against the wrong and destructive kind of ANC cadre deployment that negatively affects the lives of both rich and poor South Africans.BACK TO TOP