Picture: Motshwari Mofokeng/African News Agency (ANA) - Scores of people looted a warehouse in Briardene, Durban, South Africa during the protests in July 2021.
By Professor Sipho Seepe
Poet WH Auden’s phrase “those to whom evil is done, do evil in return”, taken from a poem he wrote on September 1, 1939 to commemorate the invasion of Nazi Germany, arguably states the obvious.
Tit for tat is universal, leaving an unbroken cycle of vengeance. Others perpetuate evil because they know no better. They have no other models to learn from apart from their own experience. Instances of this happen when the formerly oppressed employ the very same methods as their former oppressors.
The ANC has somehow taken copious notes and lessons from the apartheid government. The party has, after all, inherited all of apartheid’s repressive apparatus. Every evil trick reminiscent of apartheid is on full display. This includes instilling fear, use of force and abuse of the courts to force disgruntled citizens into silence.
The characterisation of the social unrest in July last year as a form of insurrection is a case in point. The unrest is a result of the ANC’s failure to resolve the grotesque structural inequalities of the past. The Washington Post (July 19, 2021) is spot on in stating that “what happened in South Africa is what happens when the gross inequality that shapes a whole society boils over…the rainbow nation is the global poster child of economic inequality, where deep poverty sits in the shadow of astronomical wealth”.
The New York Times (July 28, 2021) links the unrest to the “deep rot of South Africa’s social and political order – rife with racial tension, communal mistrust, injustice and corruption – (which) is now on full display. The rainbow nation, a supposed beacon of reconciliation, is falling apart” (July 28, 2021).
Instead of addressing these structural challenges, the ANC has resorted to finding scapegoats. There is nothing new about this. This is history repeating itself. Apartheid masters blamed communists. People took to the street, not because of some instigators.
The social unrest was triggered by people’s experiences, and a sense of outrage at what they considered to be an injustice meted out to the former president Jacob Zuma. In jailing the former president, the Constitutional Court introduced apartheid’s detention without trial into the new dispensation.
It does not matter how much the Zuma-hating brigade wants to spin it, the former president was jailed without a trial. In addition, Zuma was given a longer sentence than that prescribed by law. Second, the Constitutional Court pretended to be oblivious of the fact that Zuma had taken Justice Raymond Zondo’s refusal to recuse himself for review.
The minority judgment is scathing. It argued that “the main judgment develops the law to meet the peculiarly frustrating circumstances of this case. It leaves in its wake a law that is not only bad but also unconstitutional. It, undoubtedly, is an unprecedented case, but the law we apply must always be compliant with the Constitution”.
Evidently, the Constitutional Court failed the most basic test of judicial restraint. The Court missed the wise counsel of Lord Atkin in Andre Paul v. Attorney-General of Trinidad, AIR 1936 PC 141. Atkin opined; “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny…We ought never to forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection.
Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the Court but may sometimes affect it adversely.” Professor Ziyad Motala of Howard Law School in Washington DC, is equally brutal. In his article “What has gone wrong with our Constitutional Court?” (Sunday Times, August 19, 2021), Motala argues that recent judgments of the Constitutional Court “smack of personal predilections and politicking…Of late, some important court decisions represent a prattle of nonsense leading to whispers that our apex court at times projects as a junior moot court bench”. Amen to that!
The consequences are ghastly. As Motala notes that “making up stuff from thin air based on the personal predilections of the judges, like the Constitutional Court, is haemorrhaging into lower court decisions”. Arguably, ordinary people seem to have a far greater sense of justice than those we have entrusted to dispense justice.
In his memoir My Own Liberator, the former Deputy Chief Justice Dikgang Moseneke could have been making the same point about justice when he writes that “lack of formal tuition does not deprive a person of common sense and native intelligence. A sense of self-worth is not diminished by illiteracy alone.
Many in my and other literacy classes (on Robben Island) were leaders of the movement in their own right and understood well the repulsive exclusion of the political arrangement of colonialism and apartheid”. Indeed, South Africans can see and smell injustice from afar. The social unrest last year started as nothing more than an expression of righteous anger against injustice.
The nationwide arrests of so-called insurrectionists come directly from apartheid’s playbook. Ramaphosa’s administration finds it inconceivable that the oppressed could take to the streets without being instigated by some provocateurs.
A protest of an adverse ruling by a court or a sitting president does not amount to an insurrection. Only a desperate and paranoid regime would invoke such terms. Insurrection refers to acts or instances of “revolt against an established government”. No single government building or official was targeted during the unrest.
Protesters focused on looting shops for food items and household materials. Targeting individuals for expressing their outrage against a ruling elite on social media should send a chill down our spine. Disappointingly so, certain media outlets have joined the witch-hunt, scouring through WhatsApp groups to out possible culprits. Be warned.
Dictatorship does not announce itself. South Africa is on a slippery path to a totalitarian state.
Seepe is Deputy Vice-Chancellor of Institutional Support at the University of Zululand.