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.
Sometimes the law and our Constitution appear to be rather similar to a very sharp knife. That knife can be used by a surgeon to perform life-saving open heart surgery. But the same knife can also be used to stab somebody in the heart and kill him or her. (In this regard, the law is not unlike religion which can sooth and comfort, but can also help to spread hatred and violence.)
In a constitutional state the law can help to protect the marginalised and oppressed and can ensure a semblance of ordered fairness and — sometimes — even a semblance of justice. Although the law and the Constitution is not perfect in this regard, it does help to create a framework that prevents some of the worst abuses of power and protects some people who would otherwise not have been protected at all. But in South Africa, the law and our Constitution have also become rather dangerous tools that are used to stifle debate and prevent serious engagement with important issues of the day.
When a Minister buys two official cars for more than R1.2 million each, this is defended because “the Ministerial Handbook allows it”. When A Minister stays in a top class Hotel for several months because there was a crack in the wall at his official residence or because he did not like the bed he was required to sleep on, this is similarly justified with reference to that scary and immoral Ministerial Handbook.
When the President’s former financial advisor is convicted of bribing the President, his defenders argue that one may not ask questions about the President’s commitment to eradicate corruption “because he is innocent until proven guilty”. And when an Afrikaans author and newspaper columnist makes blatantly racist statements in an interview and is then fired by the newspaper and criticised by some, her defenders argue that her freedom of expression is being infringed and that those who criticise her are not showing sufficient tolerance of her racism.
Instead of dealing with the substance of an issue, defenders of the above people hide behind the law and the Constitution to try and stop any kind of meaningful engagement about what is right and wrong, what is acceptable and worthy of our support and what unethical, deeply offensive, or just plane callous. Implicit in this view is the assumption that as long as something is not illegal or unconstitutional, it is perfectly acceptable and hence may never be criticised.
Take the case of the Afrikaans author, for example. She stated that she does not like black people and suggested that this was because many (or perhaps most) black people are rapists and murderers. This is probably not illegal. There is no general law in South Africa prohibiting anyone from exposing themselves as a blatant racist. Unless a statement amounts to hate speech, it is legally permissible to say racist things.
This does not make her statements acceptable or right. Pointing this out is not intransigent or illiberal — it is being principled and displays a willingness to engage in substantive debate about important issues of the day, something that is required from all citizens to allow a democracy to thrive. If we cannot express opinions about what we believe is right and wrong, we might as well go and live in Saudi-Arabia.
It is usually not illegal to cheat on your wife or to lie to a friend about it. It will usually not be illegal to make irresponsible political statements that will ruin the country’s economy. It is not illegal to express admiration for HF Verwoerd or Sarah Palin or to listen to the records of Britney Spears. But how can one possibly be an intelligent, engaged and reflective citizen in a functioning democracy if one is not allowed to form opinions about at least some of these issues and if one does not express these opinions in public?
By equating what is legal with what is right and what we believe is acceptable, public representatives and private citizens who deploy this strategy help to limit the scope for any serious public debate and rob us all of the agency to help form the world we live in. It is a deeply anti-democratic as democracy can only flourish where the space for debate and contestation is not closed down by this narrow, legalistic, approach to the world.
It is time that South African citizens learn that there is often a huge gap between what is legally permissible (or what has not been proven — yet — to have been illegal) on the one hand, and the opinions we are allowed to form as citizens of a democratic country about what we believe is right and wrong, acceptable or despicable on the other.
Given the facts which emerged at the trial of Schabir Shaik, we are completely within our rights to ask whether our President — not unlike former US President Richard Nixon, who had to resign in disgrace — might not be a crook (despite the fact that he has not yet been tried or convicted by any court). Given our ethical commitments about racism and discrimination, we are perfectly within our rights to criticise the Afrikaans author who made racist comments, despite the fact that what she said was probably not illegal and that she has not been convicted of any crime.
Now, defenders of the President are of course entitled to argue that taking a million Rand from a convicted fraudster and then doing favours for that crook is perfectly acceptable and that this is the kind of public morality that we expect and admire in our leaders. We can then have a debate on whether it is a good thing to have a President that takes money from a crook.
Defenders of the racist author may argue that it is perfectly acceptable to make racist statements and that such racism should be endorsed and admired. We can then have a real debate about these issues and, hopefully, in time move in the direction of a shared vision of what is right and wrong in a constitutional democracy based on open and transparent government and human dignity, equality and freedom.
Given the vast differences in the world views of South Africans, we will probably not reach that utopian point in the near future (or perhaps ever). But as long as we embrace this legalisation of public debate and hide behind formalistic platitudes about what is legal and illegal, we are not going to have a serious debate on the important issues.
And without such debate our democracy cannot flourish.BACK TO TOP