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.
I have been wondering whether Blade Nzimande and Gwede Mantashe might be fans of Nirvana, the rock band headed by Kurt Cobain (until Cobain tragically killed himself in 1994). On their Nevermind album — perhaps channelling the cult writer William Burroughs who famously remarked that “sometimes paranoia is just having all the facts” — they sing that: “Just because you’r paranoid, don’t mean they’re not after you”.
Even when people sound paranoid and express paranoid thoughts this does not mean that they have nothing to be paranoid about. So maybe we should take the recent mutterings of these two gentlemen seriously and explore the possibility that there has been a plot to discredit the President and the nominee for the highest judicial post in the land.
Consider the charges.
First, ANC secretary-general Gwede Mantashe told the Food and Allied Workers Union conference on Tuesday that criticism over justice Mogoeng Mogoeng’s “nomination” as Chief Justice “is a proxy war on the President… It doesn’t matter who would have been appointed, the decision would have been opposed by an alliance of forces seeking to defeat the ANC”.
Then SACP General Secretary Blade Nzimande said in a statement on Wednesday that there was a “liberal agenda” to unfairly criticise the liberation movement and the government.
The most concerted expression of this offensive has been around the president’s [Jacob Zuma] nomination of Justice Mogoeng Mogoeng to be the Chief Justice…. No sooner had the president made this nomination that a well co-ordinated and orchestrated campaign was launched to try and discredit Justice Mogoeng… to spite the authority of a president whose party was voted for by the overwhelming majority of our people.
I have been wondering how this “campaign” against the President’s choice for Chief Justice might have been “co-ordinated” and “orchestrated” in order to “spite the authority” of the President and the ANC he leads and how it might have turned progressive organisations such as Cosatu (which is in an alliance with the ANC) and the National Association of Democratic Lawyers (Nadel) into liberal plotters and handmaidens of the “counter-revolutionary forces” represented by the unpatriotic DA. And how did they manage to co-ordinate their “campaign” with other progressive civil society organisations such as Section 27 and Sonke Gender Justice?
As a fan of Nirvana (and, I have to admit, of William Burroughs), I have been wondering whether Mantashe’s and Nzimande’s paranoia might not have been justified. After all, just because the possibility of a plot seems improbable does not mean it is not true. I have been told — can you believe it — that there might even have been a plot long ago (involving Nzimande and Mantashe themselves) to unseat then President Thabo Mbeki as President of the ANC and the country, but I am sure the people who told me this were lying. In this spirit of constructive inquisitiveness, I have been trying to reconstruct events which might have led to this alleged co-ordinated and orchestrated “campaign” against the “nomination” of Justice Mogoeng as Chief Justice.
Of course, all these organisations would have had to have shown extraordinary foresight, cunning and meticulousness to pull off their devious plan. Foreseeing that Jacob Zuma would one day become President of South Africa (I wonder how they knew this?!) and further foreseeing that he would then have wanted to appoint justice Mogoeng Mogoeng as Chief Justice, these organisations would have been required to put into place the building blocks of their campaign more than 10 years ago.
First, in order to fabricate supposed “evidence” of Justice Mogoeng’s unsuitability for high office, they would have had to fabricate several judgments supposedly authored by Justice Mogoeng and would then have had to sneak these supposed “judgments” into various legal databases. Knowing how damaging it might be to a nominee if it was ever revealed that he was ignorant of the post-constitutional law on sentencing regarding rape matters and if it was shown that he was a homophobic patriarch soft on child rapists, they would have included in these “judgments” arguments often used by patriarchs and sexists to minimise the seriousness of the effects of rape on women and children.
(Personally, I believe the plotters might have gone too far when they authored that judgement in which the nominee supposedly argued that a child rapist deserved a lesser sentence because he showed “tenderness” to the victim. I mean, who is going to believe such nonsense?)
But they would have had to be careful: if these cases were reported in the law reports, a cursory search — perhaps by members of that august body, the Judicial Service Commission – might have revealed these judgments before Justice Mogoeng had been elevated to the Constitutional Court. Cunningly they would then have had to ensure that the judgements were never reported, probably relying on the discretion of the editors of the law reports who (being counter-revolutionaries themselves) might have had to be roped in to ensure that the supposed “judgments” of the nominee did not become widely known.
Then, after President Zuma’s announcement of the nomination, the plotters would have all had to meet in secret at an undisclosed venue (maybe a bunker built by the CIA under COSATU headquarters – I, for one, would put nothing past those torturers wrapped in the American flag) to co-ordinate and orchestrate their vicious onslaught on the President’s nominee. Wearing dark glasses and false moustaches (despite the protestations of the women in the group who felt that wearing false moustaches did nothing for their gender credentials), they would all then have had to sneak into the secret venue to decide how the planted and completely fabricated judgments of the nominee could be made known to the wider public to cause the greatest embarrassment to the President and the nominee.
They would also have had to had luck on their side. They would have had to find some schoolboys who were prepared to fabricate a sexually suggestive picture of their headmaster and deputy headmaster and would have had to persuade the deputy headmaster to sue the schoolboys for defamation, prodding him to take his case all the way to the Constitutional Court. I am still not sure how they might have gotten to judges Froneman and Cameron to persuade them to write a separate concurring judgment “at the last minute” in the case in which they found that it was never per se defamatory to imply that somebody was gay.
I am also still at a loss about how they might have been able to influence justice Mogoeng – somebody in which the President has placed his trust and therefore not a man that would be easily persuaded by plotters to refuse to sign on to this judgments and then (on top of that) to refuse to give reasons for his dissent. Maybe they cunningly organised a three day prayer meeting which the nominee was persuaded to attend just when he was expected to write a dissenting judgment in this case.
We do know that people like Zackie Achmat and Zwelenzima Vavi are quite astute political strategists (and it might surely have helped that Zackie is reported to know justice Edwin Cameron), but how they might have managed to convince a man of the intellectual calibre and possessing the high morals and principles of the nominee to dissent from a judgment that seemed entirely uncontroversial is still beyond my comprehension. I must say, if this is what happened, I have new respect for the ability of the plotters to orchestrate a completely baseless and vicious campaign against the unblemished record of an innocent man.
The rest must have been easy. After all, the media will do anything to discredit our President as they all hate the President, probably because he is a more successful lover than any of the editors of the big newspapers and a far better singer and dancer. Thus, once the fabricated judgments of the past came to light and once cheeky academics started asking questions about the failure of the nominee to give reasons for his seemingly homophobic views, the job was as good as done.
(By the way, I can neither confirm or deny that I have been involved in this alleged plot. Neither can I confirm or deny that I sit up late at night while listening to recordings of passages of the Constitution – played backward — while fondling my false moustache in the manner of Dr Evil in Austin Powers movies and sticking pins into a voodoo doll of our President, all while giggling hysterically.)
Another thing that I am not yet at liberty to explain is why justice Mogoeng would not have exposed this plot by denying that he ever authored the incriminating judgments fabricated by his tormentors. Surely it is unthinkable that he is in on the plot as well? Maybe he just lost track of all the judgments he had authored or signed on to as a judge, having authored so many judgments in his day as Judge President of the North West that it would have been impossible to keep track of all of them.
But luckily it all worked out well for him — or so it seems.
If one were to take the paranoia of Mr Mantashe and Dr Nzimande seriously, one will have to admit that this was a cunning and devious plan executed with military precision. Well co-ordinated and orchestrated indeed. But the plotters obviously had failed to take account of the fact that Dr Nzimande and Mr Mantashe (old plotters both), were going to be on to them and that soon enough they would be exposed by these gentlemen as the evil plotters they have always been. Now the plot has completely backfired and both the President and the nominee in all likelihood will come out of the events smelling like roses.
Which just goes to show: in politics it always pays to be paranoid. One can never be too careful because enemies lurk around every corner and will go to the most absurd lengths to discredit you if you happen to be the President (or one of his henchmen) of a mid-sized developing country and you happen to be tormented by dreams in which speeches from Shakespeare’s Macbeth recur:
Whence is that knocking?—
How is’t with me, when every noise appals me?
What hands are here! Ha, they pluck out mine eyes.
Will all great Neptune’s ocean wash this blood
Clean from my hand? No, this my hand will rather
The multitudinous seas incarnadine,
Making the green one red.