Paul Hoffman | 26 October 2021 Paul Hoffman says a secure, impartial and independent judiciary answerable only to the law and the Constitution is fundamental
What is wrong with SA and how can a better future be secured?
26 October 2021
In South Africa, unemployment is at a record high, the worst since WWII. Crime, especially violent or “contact” crime is up by double digits on last year. Gender based violence, fatherless families and poverty stalk the land. The economy has become a basket case, junk status is its lot; new investment has been scared off by cockeyed ideology and state capture. Corruption is rampant and hope of turning things around in a promised magical new dawn is waning.
Our education system does not turn out young women and men who are properly prepared for the world of work, such as it is. Millions live in shacks around metropolitan areas in which the chance of a job is slightly better than on the platteland. Access to state housing is dogged by irregularities and get rich quick scheme in its procurement.
The health system is faltering, vaccine hesitancy due to lack of trust in government and other reasons slows the fight back against the pandemic and many older people go to state hospitals to die rather than to be healed. The social security system, like the public administration, the criminal justice administration and the municipal services are all not fit for purpose.
Political office is seen as an opportunity to escape poverty and deprivation, not to serve the people. Political parties, politicians and police personnel are viewed with suspicion by the public due to the ravages of corruption. Despite anti-corruption talk, government is yet to walk the anti-corruption walk so the much vaunted “new dawn” is evaporating like Scotch mist. The ANC is strapped for cash, riven with factionalism and so dysfunctional that it has failed to register candidates in many a municipal ward for election now due, in terms of a court order, by 1 November 2021.
The Independent Electoral commission, which is meant to ensure free and fair elections is falling around and won’t even field complaints that the unorthodox fundraising methods of the ANC, which sees nothing wrong in purloining public funds for its partisan purposes, render every election held since 1994 unfair. No other party accesses public money in the way the ANC openly does so. The unfairness of this in what is meant to be a free and fair contestation for votes is obvious.
The economy is in a bad way because business confidence is now lower than it has ever been since the democratization of the country in 1994. New investment has been scared off for two reasons, the high levels of corruption and the attachment of the ANC to an outmoded and unsuccessful ideology invented by Lenin and called the National Democratic Revolution (NDR).
This ideology is embraced by the tripartite alliance which the ANC leads. The SA Communist Party has never tested its popularity with the voters of SA, preferring to hide behind the ample skirts of the ANC. COSATU has become a shadow of its former self and now consists mainly of public sector unions. 2 million of the 15 million employed in SA (a country of 60 million souls) work for the state.
There is a fundamental problem with the pursuit of the NDR. Politicians who swear an oath of office which obliges them to be loyal to the country and its Constitution, spend their careers in the tripartite alliance fomenting the revolution that is aimed at overturning the current Constitution and replacing it with the NDR.
This step entails the hegemonic control of all levers of power in society (Society mark you, not just the state) that will see an end to the rule of law, to the separation of powers, to press freedom, an independent and impartial judiciary and to the checks and balances on the exercise of power that independent institutions such as the NPA, the Chapter Nine Institutions and the multi-party parliament for which free and fair elections are meant to be held. Comprehensive control with the hands of loyal cadres of the revolution deployed to each and every lever of power in society is what the ANC and its allies have in mind. It is no way to run a successful state in the 21st century.
The incompatibilities between the principles and precepts of the Constitution and those of the NDR are many. Some specifics are helpful to illustrate the scope of problem.
In the discussion that follows, the way of the ANC NDR is presented in italics to contrast it from the pathway laid out in the 1996 post-apartheid democratic Constitution and Bill of Rights which came into effect in February 1997.
The new South African Constitution affirms its status as the supreme law of the country in its very first Section. Upholding the rule of law is at the core of the oath of office of all politicians in SA. Like the Constitution, the rule of law, which was so grievously subverted and trampled during apartheid, is declared to be supreme.
Loyalty to the revolution is the supreme motivation of the cadres — loyal card-carrying members of the governing ANC-Communist Party-COSATU alliance — of the ANC NDR. The answer to the question “Which comes first, the ANC or the Constitution?” is always unhesitatingly given as “The ANC.” Notwithstanding his solemn Oath of Office to uphold the Constitution, South Africa’s third President Jacob Zuma from 2009 to 2018, was brutally frank about his prioritization of the ANC over the Constitution in an answer to a direct question about this in Parliament in 2012.
The rule of ANC Luthuli House party bosses trumps the rule of law in practice. The party proportional representation list system – which determines who will get elected to National and Provincial Parliaments and accordingly govern the country – is controlled solely by ANC party bosses at Luthuli House. Those who “vote their conscience” are unceremoniously relieved of their position on those all-important party lists of candidates for parliamentary, provincial and municipal office. Expulsion from the party summarily ends the tenure of office of any parliamentarian, and the next person on the ANC list is simply substituted for the dismissed representative.
To the South African electorate, the U.S. and U.K. notion of locally-elected national, state or province and municipal representatives that they actually choose, can and do see and meet, and hold fully accountable locally is a fantasy notion: there is only one electoral district for national, state, and municipal levels: Luthuli House. The Movement decides which loyal ANC cadres will hold which governing office (and also which civil service positions) right across the nation, wherever the ANC gets a majority vote.
True constitutionalism entails putting in place checks and balances on the governmental exercise and possible abuse of power, with effective oversight of the executive by the legislature as a cornerstone of the system. An independent judiciary rules on disputes, interpretation of the constitution and laws, and provides independent recourse and remedies to the people. The judiciary has regard only to the Constitution, the rule of law, constitutionally-compliant enacted laws and ruling judicial precedents — and not to revolutionary dogma, slogans, manifestos and programs.
The ANC NDR is predicated on the tyranny of the majority, a dictatorship of ‘the people’ and the (false) notion that the majority has more rights than the minority, as President Jacob Zuma openly explained to Member of Parliament Lindiwe Mazibuko in 2012 when she was Leader of the Opposition.
The doctrine of the separation of powers between the three spheres of government, executive, legislature and judiciary, is central to our constitutional dispensation.
The concentration of political and economic power in the party is the fundamental goal of the ANC NDR. The ANC strives for “hegemonic control of all the levers of power in society”, the antithesis of the separation of powers in the hands of three co-equal branches of government subject to the Constitution, the rule of law and genuine political accountability.
A secure, impartial and independent judiciary that is answerable only to the law and the Constitution is fundamental in any constitutional democracy. This structure is necessary because the judiciary is empowered to rule on the consistency of laws and conduct with the Constitution. It may strike down as invalid any law or governmental act that is inconsistent with the Constitution.
A tame collection of judicial apparatchiks, loyal to the revolutionary agenda, is what revolutionaries require for the judiciary. Luthuli House revolutionaries rail against the “counter-revolutionary judges” who thwart their plans and programs by striking them down as unconstitutional. They prefer that judges embrace the values of the ANC NDR unquestioningly, and look forward to the day when all South African judges regard themselves as loyal deployed ANC cadres of the revolution — as currently do some judges and almost all ANC Members of Parliament, Directors General and officers of state-owned enterprises (SOE’s) such as the Electricity Supply Commission, South African Airways, South African Railways, the South African Broadcasting Corporation (SABC), and perhaps most disturbingly many of the leadership and officers of the South African National Defence Force and the South Africa Police Service.
Six specialized “Chapter Nine Institutions” were established in accordance with the design of that chapter of the Constitution, to implement and maintain constitutional democracy in South Africa. They are required to function without fear, favour or prejudice to support and strengthen constitutionalism in the new South Africa.
Ch9 institutions are the Public Protector, the Commission for Gender Equality, the Commission for the promotion and protection of the rights of cultural, religious and linguistic communities, the Electoral Commission, the South African Human Rights Commission, and the Auditor General. The framers of the South African transition to a non-racial constitutional democracy were determined that in addition to three co-equal branches of government under the rule of law, six additional strong constitutionalized institutions were essential to provide fulsome protection for the post-apartheid public interest.
The ANC has deployed its most loyal revolutionary cadres under the ANC NDR in most of the Chapter Nine Institutions to do the bidding of Luthuli House without regard for the Constitution and with an eye on the unfolding and entrenchment of the NDR revolutionary agenda. At this time, the incumbent Public Protector Busisiwe Mkhwebane faces suspension, impeachment, disbarment from the legal profession, criminal charges and an internal investigation into her maladministration of her own office, and has been found to have perjured herself before the apex Constitutional Court and other high courts.
The Constitution peremptorily requires the appointment of public servants who are ethical, unbiased, fair and equitable in their work. They must objectively deliver services to the public and faithfully carry out the lawful policies of the government of the day.
The ANC NDR actively deploys its revolutionary cadres in the public administration, without regard to the merit of non-cadres. This “cadre deployment” is done to secure hegemonic control of the executive, public administration, SOE’s and other institutions. The conflicts of interest that this system sets up undermine good governance and effective service delivery.
Unsuitable cadres at best have consultants appointed to do their work while they sleep at their desks, dreaming of the revolutionary utopia; at worst they have been central players in state capture, grand corruption and the massive plunder of public funds and assets.
The unconstitutionality of cadre deployment in the public administration and the state-owned enterprises does not deter Luthuli House from “recommending” (and effectively thus anointing) its favourites for national Cabinet and office at all other levels of the state.
The Constitution contemplates a multi-party democracy in which the economy is of a mixed nature, with strong emphasis on social democracy in the form of a state which “must respect, protect, promote and fulfil” the fundamental political, social and economic rights guaranteed to all in the Bill of Rights – surely pressing business after decades of institutionalized apartheid oppression and gross inequality based outright on race.
The ANC NDR aims to establish an order in which the dominant political party asserts its hegemony; the party and state collapse into one; and a pure socialist revolutionary nirvana emerges in a manner not beneficially established anywhere in the world in any country in which it has been attempted. Open, accountable and responsive governance are required by constitutionalism, and these values are basic requirements for governance and democracy in the new South Africa.
The ANC NDR is pursued in secret behind the closed doors of Luthuli House, where opacity, duplicity, “dexterity in tact” depending on “the balance of forces”, and a complete lack of accountability to the people and the Constitution are hallmarks of its openly revolutionary modus operandi. If there is any accountability at all it is solely to Luthuli House and not to the Constitution. There is little responsiveness to the needs of the people as can been seen from the disastrous state of service delivery in education, healthcare, housing, and security by both police and defence forces.
The 2012 police massacre of 34 of mine-workers at Marikana; sprawling nation-wide impoverished “informal settlements” consisting of shacks with few basic amenities; the Life Esidimeni deaths of over 140 mental patients in 2016 who were uncared for and essentially died of neglect; massive, rampant and unchecked corruption at the highest levels of government and business; “state capture” in which even appointments of national Cabinet Ministers were determined and dictated by a corrupt cabal of foreign-born businesspeople and unelected cronies; kleptocracy, gangsterism, taxi wars, unsafe trains and, electricity shortages and black-outs; and the open personal sale by ANC-deployed SOE cadres of public assets such as portions of railway lines all characterize the ANC NDR.
Oversight of the activities of the executive by a Parliament willing to hold the elected and appointed accountable, and to hold their feet to the fire of fairness, impartiality, honesty, incorruptibility and accountability is the way of the new Constitution. Performance is to be measured against the stated just precepts of the supreme law.
In effect, Parliament has been reduced to a meek rubber-stamp for the executive and Luthuli House; it is flaccid, ineffective and populated by loyal, compliant and often utterly incompetent ANC cadres, one of whom, for example, testified to the current Justice Zondo Commission of inquiry into state capture that she thought “Gupta” (the family name of the notorious cabal of Indian-born brothers who led and benefited to the tune of stolen billions from “state capture” during the immediately past nine-year Zuma presidency) was an acronym not a surname.
Non-racialism and gender equality are foundational values of the new Constitution in force since February 1997.
Identity politics, traditionalism and tribalism, male patriarchy and divisive nationalism are all used and abused by the ANC and its NDR to promote its “hegemony over all levers of power” agendas; the LGBTQI+ community (and other still-marginalized and stigmatized groups) are involved in an ongoing struggle for recognition of their fundamental rights.
The Constitution promises respect for human dignity, the promotion of the achievement of equality and the enjoyment of the rights and freedoms set out in the Bill of Rights.
Under the ANC NDR the country has actually seen an increase in human misery since 1994 due to structurally high unemployment, attributable in part to the un-employability of the uneducated unskilled youth, persistent grinding poverty and inefficiency in government. Incredibly, South Africa’s sky-high Gini co-efficient has risen, not fallen, due to the exacerbation of economic inequality after the end of apartheid during ANC NDR-inspired governance. The rural and urban poor have become more oppressed and impoverished than ever they were under apartheid.
Section 25 of the Constitution entrenches respect for property rights.
The ANC NDR is bent on confiscation of privately-owned land, the nationalisation of what it calls “the commanding heights of the economy” and the expropriation of property. The official ANC battle-cry, along with support from the improbably-named Economic Freedom Fighters led by the red-bereted Chavez-admiring “Commander in Chief” Julius Malema, is “Expropriation Without Compensation” (EWC) with an eye on illegitimately held (that is, foreign- and white-owned) assets being nationalised. Under the same thinking, calls have been emanating from the ANC for the nationalization of the South African Reserve Bank, the nation’s central bank.
The inculcation of a culture of respect for fundamental human rights including political and socio-economic rights is a central aim of the new South African Constitution.
The march of the revolutionaries does not have regard to the niceties of a human rights culture. The ANC NDR must be advanced by all available means to secure the hegemonic control of all levers of power in society. Many ANC revolutionaries are at the heart of state capture. They see it as a way to advance the NDR — and themselves.
Numerous books written by investigative journalists and others, high court judgments and reports have been written about their nationally corrosive and debilitating exploits. But the limping criminal justice administration does nothing, mainly because it is significantly captured itself and is thus also a kleptocracy- and state capture-protecting lever of power in the hands of loyal ANC cadres.
Freedom of expression and free and independent media are guaranteed by the Bill of Rights. South Africa’s press is playing a key role in exposing state capture and grand corruption.
Some state capture and kleptocacy exposé journalists have been threatened. The SABC has been all but completely captured by ANC NDR cadres. The mooted establishment of a censorship body called the Media Appeals Tribunal, the formation of a propaganda arm for the ANC NDR via the launching of the New Age newspaper and the ANN7 television channel, both creatively funded with rigged tenders and the publicly-funded takeover of Independent Newspapers (now neither independent nor newspapers) mark the progress of the ANC NDR and the unlawful abuse of public funds to achieve its revolutionary ends.
Access to information is a right guaranteed to all according to the Bill of Rights and the Promotion of Access to Information Act.
Instead, a far-reaching secrecy bill, surely inconsistent with the Constitution, awaits signature on the desk of the President.
The notions of equality before the law and non-sexism, read with the provision in the Constitution that it trumps customary tribal laws that are inconsistent with it, ought to have been accompanied by an improvement in the lot of the rural poor living in the former apartheid “homelands”.
An unholy alliance between traditional leaders and tribal kings and the more opportunistic elements in the ANC NDR has spawned the Traditional Courts Bill and now the so-called “Bantustan Bills”. Woefully necessary genuine and equitable land reform has been hijacked and perverted by the ANC NDR.
The rule of law requires that there be independent legal professions which self-regulate.
The ANC NDR has secured the unconstitutional passage of the Legal Practice Act into law, depriving the legal professions of their independence, an essential bulwark of respect for and defense of the rule of law.
The Constitution promotes unity in diversity and contemplates affirmative action on the basis of disadvantage.
The ANC NDR prefers the introduction of race-based affirmative action measures, but these measures have left the truly disadvantaged no better off than they have always been. According to the late Inkatha Freedom Party opposition Member of Parliament Mario Ambrosini, the President likens the lot of the “white” population to that of frogs being boiled in slowly-heated water.
Then-ANC Youth League President Julius Malema and now Commander of the Economic Freedom Front party was heard in 2010 to scream at BBC journalist Jonah Fisher: “Get out, bastard! This is a building of a revolutionary party and you know nothing about revolution so here you behave or else you jump,” he said at Luthuli House. So much for unity in diversity.
One could go on and on with such constitution-and-rule-of-law versus ANC NDR/state capture comparisons, unfortunately.
The fervour for the NDR is unabated. In the ANC’s aborted August 2021 application to court to correct the failure of the ANC to register its candidates in many of the municipal elections due by 1 November, it is stressed on oath that the unfolding of the NDR will be adversely affected if relief is not granted!
Actually public representatives of the ANC ought to be tried for violating their oath of office by remaining loyal to the NDR and by putting the interests of the ANC ahead of the people of SA whom all politicians, regardless of their affiliation are meant to serve. Don’t expect the NPA to take up the challenge, it is too career threatening to an institution infested with saboteurs planted in its ranks to ensure that the kleptocrats of the state capture era continue to enjoy the impunity that was put in place after the Scorpions anti-corruption unit was put on the chopping block the minute Jacob Zuma was elected to lead the ANC at its Polokwane conference in December 2007.
Without fully functional anti-corruption machinery of state there is no hope of ending the kleptocracy evident in state capture, tenderpreneurism and its new cousin covidpreneurism. These “isms” are put in place to enrich deployed cadres of the NDR to the detriment of rolling out services and rights to the people of SA. The state is meant to respect, protect, promote and fulfil all of the rights guaranteed to all in the Bill of Rights. Instead, it postpones delivery of these obligations while the cadres feast on the public purse until there is virtually nothing left to steal. Now private property rights are in the cross-hairs of the NDR so that land and other property can be used up to feed the beast that is the NDR.
The sadness is that there are people in the ANC who recognise that the NDR is not the way to go. Professor Kader Asmal, a cabinet member in the Mandela and Mbeki eras publicly called for its scrapping. He resigned from parliament rather than vote for the demise of the Scorpions. There are many ANC sympathisers who speak of the NDR as the “theatre of the ANC” a sort of device to stir up the imagination and support of voters with no real intention of bringing about the intended revolution.
Others see it differently. The new speaker of parliament, former defence minister Nosiviwe Mapisa-Nqakula, described the riots and looting in July 2021 as “counter revolutionary”. She was made to retract and retreat from that position. The COGTA minister who, during the pandemic is virtually the prime minister of the country, Nkosasana Dlamini-Zuma, has a different take on the NDR, one coloured by the opportunities which the pandemic have brought her way. In April 2020 she told a media briefing that government welcomes the pandemic because it:
“…also offers us an opportunity to accelerate the implementation of some long agreed upon structural changes to enable reconstruction, development and growth. These opportunities call for more sacrifices and – if needs be – what Amilcar Cabral called ‘class suicide’ wherein we must rally behind the common cause.”
The common cause to which she so obliquely refers is presumably the NDR. She still serves in cabinet and is not facing disciplinary or other charges for her express and widely reported violation of the oath of office that binds her to uphold the Constitution, not the NDR and certainly not wild ideas about class suicide.
Where then can one start to address the malaise brought about by the dissonance between the party in government’s programme of action and the values of the Constitution, which is our supreme law?
The ANC is not looking like giving up on the revolution any time soon. It is however concerned about the impact of corruption on its electability. The NEC of the ANC is sensitive to the precarious nature of the popularity of the ANC. Its own research, conducted before the CR17 campaign won Cyril Ramaphosa leadership of the ANC in December 2017, polled approximately 40% popular approval. His personal popularity was such that he swelled the support at the 2019 polls to 57% on the back of his new dawn promises.
The failure of the new dawn to materialise has dented the political credibility of the president, but he remains more popular than his party, a factor which earns him internal party support from careerists who see a second term of Ramaphosa presidency as their meal ticket for a further five years after the 2024 general elections. In 2019 many non ANC supporters voted for Ramaphosa on the “he is the best option” basis rather than out of loyalty to the NDR or to him. Those voters are unlikely to vote Ramaphosa again.
Absent a rethink by the ANC and a new value system for its members that is compatible with the Constitution, the effect of corruption on its popularity is a factor that could bring about reforms that will undermine the NDR and all the evil that is done in its name.
In August 2020 the NEC of the ANC, its highest decision making body between conferences, issued an urgent instruction to the national cabinet, all but one of whose members are deployed cadres of the ANC. A press report in the Citizen newspaper accurately stated:
The NEC called upon the ANC-led government to urgently establish a permanent multi-disciplinary agency to deal with all cases of white-collar crime, organised crime and corruption. Furthermore, the NEC called upon all law enforcement agencies to carry out their duties without fear, favour or prejudice…
The president’s state of the nation address in February 2021 spoke of a new statutory anti-corruption body that reports to parliament. No progress of an official nature has been reported on the establishment of the body. Its legal adequacy has been challenged. As a mere statutory body, like the Scorpions unit, its permanence or security of tenure of office is questionable. Constitutional compliance is doubtful due to the binding nature of the decisions of the courts in the Glenister litigation one of which is that the unit should enjoy secure tenure of office.
Step one onto the road to recovery in SA ought to be the establishment of a new Chapter Nine Integrity Commission to investigate and prosecute serious corruption. This body has been introduced to those in authority in the following words:
(a) Serious forms of corruption like grand corruption, state capture and kleptocracy in South Africa are criminal violations of fundamental constitutional and human rights. They are literally killing many South Africans, mostly the poorest.
(b) The anti-corruption machinery of state in SA is currently not fit for purpose especially regarding serious corruption in all its forms. The NEC of the ANC has called for the urgent creation of a new entity that is permanent, specialised, independent and stands alone to deal with corruption.
(c) Our prosecutors and police, due to the ravages of attempted state capture, lack the required capacity to counter the corrupt efficiently and effectively
(d) The Constitutional Court, in the Glenister cases, has provided binding criteria for the establishment of functional corruption-busters who are fully able to carry out the international treaty obligations of SA
(e) That court has called upon parliament to make “the reasonable decision of a reasonable decision-maker in the circumstances” regarding the countering of corruption.
(e) The current circumstances in SA dictate that a best practice reform is urgently required in order to bolster the country’s vulnerable culture of respect for human rights and boost confidence in its governance and economic prospects.
(f) The ANC, DA and IFP all favour the notion that a new body needs to be established to deal with corruption
(g) Accountability Now has already prepared draft enabling legislation and a constitutional amendment so that the necessary constitutionally-compliant next steps can be taken to save the country from the scourge of serious corruption — and the imminent potential of failed state status.
The NPA has “noted the contents” of the two draft bills without demur. Parliament and the presidency have yet to respond to them.
It is imperative that the political will to effect the reform of the criminal justice administration so sorely needed be built up sufficiently to sway the course of history. Each individual has a role in this task.
The generation of healthy political will is also the business of every engaged, responsible and participative citizen of SA. If you are not one already, now is the time to consider the advantages of supporting the initiative taken by Accountability Now. An email to a member of Parliament, a note to the secretary of the Constitutional Review Committee, a word in the ear of the NEC or a well-connected friend is enough to get this South African national anti-failed-state ball rolling.
By Paul Hoffman SC, Director, Institute for Accountability in Southern Africa, Campaigning as Accountability Now, 26 October 2021