Weekender: A right of reply

Some weeks ago, having read an article/opinion piece by Dr Xolela Mangcu, I wrote in response and made my response available to the Weekender in order to provide Dr Mangcu a right of reply as one would in a free exchange of ideas - or not. Having not received a response from the Weekender or even an acknowledgement of receipt and not having Dr Mangcu's contact details, I post the response here, for you the loyal reader of Afro-I-Can:

Some day, when the truth shall out, Judge Nicholson may be vindicated; so concludes an article by Dr Xolela Mangcu, which article was published in the Weekender of the weekend of 17 January.

What form, I wonder, will this vindication take? If by vindication and by the truth finally coming out Dr Mangcu means proof that Thabo Mbeki specifically or the Executive generally, interfered in the prosecution of Jacob Zuma, then with respect Dr Mangcu misunderstood the criticism directed at the learned judge.

As much as there are certain rules of engagement that journalists, commentators and writers must observe, there are rules of engagement that those who ply their trade in the courts have to observe. The current legal battles have been conducted by way of motion proceedings or application proceedings as opposed to trial or action proceedings. The primary difference between trial and application proceedings is that while in trial proceedings evidence is given by individuals in open court who are then cross-examined by the opposing side; evidence in application or motion proceedings is given by way of affidavits.

There are well established rules that regulate how evidence presented on affidavit should be evaluated by the court (read Judge or Magistrate). An applicant commences motion proceedings by filing with the relevant court a notice of application together with a founding affidavit which sets out the facts on which she relies for the order that she asks the court to make. In response to this founding affidavit a respondent will then file an answering affidavit in which he will admit or deny the contents of the founding affidavit. An applicant will then be allowed to file a replying affidavit in which she is restricted only to respond to new matters raised in the replying affidavit and not to raise new matters herself.

Other than the evidence presented to the court on affidavit as set out above, a judge or any presiding officer may not consider any other facts in making a determination. This among others is the bone that the SCA picks with the judgement of Nicholson. The truth or not of the issues relating to political interference is simply of no consequence. Nicholson should not have concerned himself with such matters in the context of the judgment he delivered. JZ stated in the papers before Nicholson that he did not seek to challenge the decisions and that his application did not concern the merits or motives for the decisions. Nicholson himself states in his judgement that political meddling is not a matter that he is required to determine.

There can be no vindication for the manner in which Nicholson conducted himself and the matter before him.

Dr Mangcu accuses Harms, the judge who delivered the SCA judgement of being a positivist (in SA legal history this comes perilously close to “counter-revolutionary”). If only it were a fair accusation. Positivists are those judges who refused to evaluate a law passed by parliament. Who held a view that once a law has been passed, theirs was to interpret and apply such a law. In my reading of the judgement of the SCA, I do not find any evidence of the positivism that Dr Mangcu cautions against. I am open to learn otherwise. Harms, positivist or otherwise, correctly in my view cautions against a judge infusing his political views, opinions or beliefs into the body of evidence upon which he is meant to make a determination. The arms deal may be the most abominable executive decision yet. It was not relevant to the matter Nicholson was required to determine.

The opposing jurisprudence school to the positivist are the naturalists. It does not get more naturalist than the requirement that a person be heard prior to a judgment being passed on her. This rule, known as the audi alteram partem is the most well known of the rules of natural justice. A rule Nicholson completely ignores in his quest to protect us from the excesses of the executive.

To Nicholson’s discredit, he put the fair adjudication of motion proceedings in jeopardy, and for that there can be neither vindication nor redemption.

Where Protest ends and Disruption begins . . .

The president of the Azanian People's Organization (Azapo) failed to see the line between protest and disruption or maybe he did see it but was too ashamed (as he should be) to accept it. This happened during an interview on SAFM following the deplorable behaviour of individuals identified by the media (with no objection) as members or supporters of Azapo. The story is well-known by now and does not bear repeating.

I remember the days when Azapo and its students or youth with Azasm relied on debates to make their point. There was a time when Azapo was a home of the so-called intellectuals among the activists. A case in point, the likes of Dr Mangcu belonged to that organisations. The approach was that one should sell ones ideas through debates and resolve differences through logical persuassion.

The current organisation, if they be judged on the members who disrupted the election debates last sunday and by their president's views on the matter, is but a shadow of the organisation it once was.

This of course does not only attach to Azapo only. It seems to be the acceptable course of conduct to hit out, disrupt and threaten all sorts of violence against those that you do not agree with. The point that the incident raises is a valid one and one that needs to be evaluated from time to time. In this time leading up to the elections, the public broadcaster must not only seek to allocate air-time fairly to all political parties but it must be seen to be doing so. The SABC is, contrary to popular belief the public broadcaster and it must be held accountable to that mandate.

The IEC should I believe, be more vigilant and act more decisively against any and all conduct by political parties, through their members and supporters, that may jeopardise free and fair elections. I am not by these statements and views, calling for some undue limitation on free speech and expression.

Each one of us has a right to protest, to assemble and to persuade others to share our views and even join and support political parties or organisations. That right is however limited by what is fair and reasonable in an open and democratic society. It is in safe-guarding differing or dissenting views that we safeguard our own views. This is not complicated stuff.

Azapo I suppose has now achieved its intended outcome - publicity. We now know them for what they are. The question is whether, knowing what we know, they are even worth considering as a credible political party?

Julius Malema the calf, is a bull of tomorrow . . .

This is according to Mr Thula Bophela, a decorated veteran of uMkhonto we Sizwe who was almost hanged by the then Rhodesian government after being captured following the famous Wankie campaign. This is not a person to be ignored where matters of the liberation of this country are concerned. He was right there in the thick of things and literally put his life on the line for his country. He has also co-written a book "Umkhonto we Sizwe - Fighting for a divided people" with his erstwhile comrade Daluxolo Luthuli. I trust that this provides adequate context and background to both the title and issues that I will deal with in this post.

Now, back to the point of this post. Mr Bophela writes in defence of Julius Malema, specifically the manner in which his conduct has been portrayed by the media and understood by the readers, viewers and listeners of the media. I urge you to read Mr Bophela's article which can be found at http://www.friendsofjz.co.za/showarticle.asp?id=749

According to Mr Bophela, thanks to the assiduous (I know, I didn't know the word either, until I came accross it in the article) efforts of the media has come to be regarded as a bumbling, brainless and disrespectful young man . . . I agree with Mr Bophela in all respects and trust me, there are many respects in which one may agree or disagree with him on how Julius Malema has come to be regarded; that however is a subject of another post. The article is quite lengthy and in many respects make valid points with which I agree. For an example, it argues that age, in an by itself is not a reason one should be respected; that being an elder, one must act as an elder and as a result will earn the respect of others (presumably young and old) - nothing wrong with that.

Then the article makes the point that what Julius Malema is doing is nothing but "introducing the culture of plain speaking" in the ANC. He is said to be saying what he thinks. Nothing wrong with that either. Mr Bophela then asserts that when Julius Malema (and for that matter Fikile Mbalula) speaks, their age becomes an issue and not the substance of what their saying. This, with respect has not been my experience of what the "disrespect" complaint against Julius Malema is all about. With the greatest respect to Mr Bophela (the man is old enough to be my father) I believe one can speak one's mind openly, firmly and unreservedly without being disrepectful - and I hope to do just that in this post. I believe this regardless of the age of the speaker or of the person being spoken to or about. I also do not believe that being asked or required to be respectful in the way you address others or talk about them, means that you are being silenced or censored. What one says is just as important as how one says it - it is a communication package made up of context, idiom, tone, etc.

I, like Mr Bophela, do appreciate people who do not mince their words. I appreciate more those who do so with respect. The point that Julius Malema made regarding Dr Skweyiya may well have been valid in the circumstances - I don't know, I do believe however that (as a comrade) to Dr Skweyiya, respect should have been the hallmark of the point he was making. The recent utterances Julius Malema made in respect of the minister of education were similarly disrespectful. Julius Malema himself accepted that not only were they disrespectful, they were uncalled for. That is notwithstanding the fact that the minister should indeed do what is possible to ensure peaceful learning and teaching.

As for the "kill for Zuma" speech by Julius Malema and "counter-revolutionary" statement by Mr Gwede Mantashe, I have to disagree with Mr Bophela's views. I must state upfront though that I am not a fan of the press for the manner in which they dealt with both these incidents. That however is besides the point. The point as I see it is that when both Mr Malema and Mr Mantashe made the statements concerned, they did so in their representative capacities of the party in government and one that is almost certainly to return to government - in the majority. In that capacity, the two gentlemen owe the ordinary South Africans some due consideration.

The very point of the Codesa settlement and the installation of the democracy that we now all cherish, is that we chose not to settle our differences through violence. Especially our political differences. Mr Malema's statement flies in the face of what I believe to be our national democratic choice. I believe Mr Bophela is far better placed to speak to the ravages and terror of killing than I am. As an ex soldier he would know that a threat to kill is never to be made lightly nor taken lightly. In fact, Mr Bophela will recall the terrible time in our history when the streets of kwa-Zulu Natal were covered in blood of those killing and being killed in pursuit of one political outcome or another. In as much as the press performed below par in respect of this incident, the ANC did not cover itself in glory either.

A judiciary without legitimacy will face untold challenges in the execution of its job. In line with the national choice made by South African, represented by a variety of political formations, that we will resolve our differences peacefully, the need for a well functioning judiciary cannot be overstated. The judiciary should be a place any South African can turn to for protection and enforcement of rights enshrined in our constitution. It is only when the judiciary is accepted as legitimate by all South Africans that this model of conflict resolution, protection and enforcement of rights can work. Statements such as the one made by Mr Mantashe, erode the legitimacy of our judiciary.

Knowing the short-comings of our media, it is required of all political and other leaders to pay a little more attention to what they say and do lest they be sujected to assiduous vilification. This I write with respect to Messrs Bophela, Mantashe and Malema - my disagreement with Mr Bophela and criticism of the conduct of Messrs Mantashe and Malema notwithstanding.

A call for honest and open debate

I am reminded of the words of Billy Bragg, remember him? The socialist musician who called Margaret Thatcher things I cannot repeat. Yes, the very one who had the following words printed on the cover of his albums: capitalim kills music, do not pay more than (x pounds) for this album. Well, I don't think I can help you further than that. Billy Bragg says in one of his songs: what will you do when the war is over, tender comrade . . .

I am reminded of these words thanks to an email I received from an old friend. The e-mail is one of those that you know you should not touch with a barge pole, but you do anyway. It is sent unsolicited to a whole lot of recipients who are called on to debate whether it is true that Cope is a party of educated people - or words to that effect. Now, you know that as soon as you put one line of response and click reply to all, you would have unleashed a flood of further responses, all addressed to all. You know that at some point you will regret you good intentions which will confirm the cynic view you always haboured, that no good deed will go unpunished. You also know that other addressees will see nothing wrong with clicking reply to all and flooding both your time and mailbox.

Having banished common sense out of my head, I responded to the email but only to the sender and copied a friend. The point I was hoping to make was that not everyone is particularly interested in what I have to say on this or any other topic. I argued that the question posed is a non-question. I stated that it begs all manner of other and more fundamental questions such as what is being educated, is it a function of a qualification or is it something else. I also made a plea that debate must be encouraged among all citizens. I argued that what would foster good debate is the environment in which such debate takes place.

Unless each one of us feels safe to state her view without fear of being labeled this or the other, there is no point in entering the debate and in fact it would be a misnomer to call such an interaction a debate in the first place. The debate in my view is not whether I am a member of this or the other party or which party I intend to vote for in the coming elections. The interesting debate to me is how one reaches the conclusion to join a particular party or to vote for another. Some decisions are driven more by emotion and others are more dispassionate. This is independent of which is right or wrong; if there can be such a determination in the first place. The point is that each one of us should be free to state either.

My observation of the debates that are carrying on, especially in the less formal space of the internet and letters to the editors are about the political affiliation of the writer or speaker first, then about the facts of the matter later. To illustrate, if I argue that Mr Jacob Zuma is not an appropriate presidential candidate for the ANC, then I am deemed to be pro Thabo Mbeki. I concede that this is not new in South African politics. It is a tactic that has been applied to varying degrees of success by all politicians. We all remember the fight back campaign of the Democratic Alliance under the leadership of Tony Leon. In fact the core drive of the DA in this round of elections is that you the voter must stop a Jacob Zuma two-thirds majority in parliament. To do so, you must vote for the DA. This is the age-old approach that says I am good because the other is so bad. There is good and bad in all of us, the trick is for us to talk about what is bad without insulting and to talk about what is good without sanctifying. It is an admirable quality, at least in my book, to accept and learn from one's mistakes.

There is not one party that in my view is deserving of my vote at this stage. Parties are made up of people and some of the people concerned do not deserve my endorsement of their quest for leadership. This is a personal choice to which I am entitled. You will recall that during the leadership of Nelson Mandela, the ANC could do no wrong. You will also recall that a lot went wrong during that period but thanks to the halo effect of Madiba, it was tolerated - with good reason I might add. That is the value of inspirational leadership - one that creates room for all to participate meaningfully in their society. There is however another side to that kind of leadership - one that does not fully tackle the painful stuff.

There are a lot of individuals who inspire nothing but confidence in me. The minister of finance comes to mind. There are a lot more other people like him, who quietly go on about their business. The politics of this country are complex, as they should be. They require of us not to be educated but to think and speak openly and honestly. To suggest that membership of this or the other organisation gives you clarity of thought and a monopoly on political commentary, is just rubbish. To suggest so will in my mind give credence to all the suggestions that being a member of this or the other race, gives or denies you of this or the other character.

We owe it to ourselves and our children not to impoverish our social discourse with sloganeering instead of growing it with open and honest interchange of thoughts and ideas - educated or otherwise. Even as we disagree, let us protect each other's right and space to express the very ideas on which we so vehemently disagree. Anything less, is meaningless.

This is my wish and hope for an open and democratic society. A society in which we, the people choose whichever leaders we want. A society in which our leaders know in no uncertain terms that they serve us, the people of South Africa, regardless of our political affiliation. This is the basis on which each one of the members of the cabinet ought to be judged - on his or her service to the people and not his or her service to the party.

These are my honest views which are no more or less valid than yours even though they may be wrong, which I am sure you will tell me. My call for honest and open debate means nothing if I am not prepared to listen, especially to those that I do not agree with.

As I am closing this off, I am reminded of other words: when you know what you are saying, you will hardly ever find a reason to shout. These are not my words. So, what are we to do now that the war is over comrades?

The role of the media . . .

The importance of news media is one that can hardly be debated, less so doubted. So, when conduct less than professional and less than unbiased is attributed to the media, my heart just sinks. Allow me to say up front: hang your collective heads in shame honourable members of the 4th estate. It is with this disappointment that I invite you dear readers to have a look at the following post (which in all fairness is lengthy but not without cause), that seeks to show the bias of the media in the way it has dealt with Jacob Zuma and that only as an illustration. For that I can only say shame on the journalists and the editors concerned. As for the rest, I would like to try my hand at dealing with the implications raised by this post which we are told is the first in a series. Anyway, I implore you to read this post:

http://www.ozoneblue.co.za/politics/in-defense-of-jacob-zuma-part-1/

As if that was not enough, we now have a further retraction of a story relating to President Motlanthe. Apprently a woman who previously claimed to be the President's girlfriend has subsequently retracted the story claiming that she had lied on the prior occassion. This I must caution, is as reported in the very media so it may well be retracted before you finish reading this post. This is what it has come down to; one cannot trust the veracity of the news printed in our newspapers or reported on television and radio.

Where then can one access the information on which one may base the decision to vote for this or the other party. As you will see, if you decide to read the post I referred to above, not even the cartoonists are above this saga. I have argued that poems and cartoons are interpreted in and through the context in which they are published. I have argued further that there is a continuum of views ranging between two extremes (whatever those may be). The famous "rape of lady justice by Zuma and his fellow Pirates of Polokwane" is one that still sits uncomfortably with me and it probably was meant to do just that by its author. The author sets out a context in which the cartoon should be interpreted. He relies on certain individuals' views (with whom he apparently shared the cartoon prior to publication) on whether the cartoon carries the meaning he intended it to carry; and most importantly that it is not, reasonably considered, offensive. This seems to be one of those "how would a reasonable reader of the newspaper interpret the cartoon". Those individuals are probably reasonable newspaper readers - so, voila the cartoon passes the test of reasonable political commentary.

There is of course other contexts and other interpretations in the continuum of views. One context is one in which Mr Zuma was charged with a crime of rape of a certain woman. Much was made of the fact that this particular woman is HIV positive - I do not know whether this makes the rape any worse, if rape can indeed be better or worse. In my book, rape is the worse form of aggravated assault, it can't be made better or worse. Granted, I am biased, I am a father of 2 daughters. Be that as it may, a court found Mr Zuma NOT GUILTY of the crime of rape he was charged with. Mr Zuma entered that court innocent (as is the case with all accused persons) and in the absence of being proven guilty, he remained INNOCENT. That notwithstanding, he continued to be portrayed with a rapid firing machine in his pants. In this instance too, the cartoonist set out the context that justified this series of cartooons as reasonable and acceptable political commentary. But there is of course another context; one that would suggest that once the court had confirmed Mr Zuma's innocence insofar as coital rapid fire is concerned, there should be a sensitivity around all matters pelvic, where Mr Zuma is concerned. This, I must add, is separate from the question of whether there should or should not have been knowledge of the carnal kind between Mr Zuma and the complainant.

The basis on which "lady justice rape" cartoon is premised fails to justify the crass attack on the individuals concerned. Without the preceding rape charges against Mr Zuma, I fail to see how the satire would have had any poignancy. The ill-considered statements and charges made at and about the judiciary notwithstanding, Mr Zuma (as is the case with each citizen of this country - with the means) is quite within his rights to take whatever legal points he deems appropriate in his defence or delay of his trial. A quick look through the list of cases that have made their way through our courts will reveal that very fact. Defendants employ all manner of tactics to avoid judgement against them, whether in civil or criminal proceedings. Would someone then please explain to me why it is expected of Mr Zuma to behave any different to, let's say the Kebbles or the guy who apparently owes the receiver lots of tax money. Even the slippery Mr Mathe took his time getting to trial. The prosecution has a job to do and it is not for any accused person to assist them in doing that job. The right not to incriminate oneself is unequivocal. The conduct of Mr Zuma, regardless of what his supporters may shout does not in my view amount to the violation of lady justice's chastity. This too is separate from whether politicians should behave as recklessly as some of the ANC leadership has where the judges are concerned. That is a matter for the voting public to decide as they choose the leadership they deserve. I don't believe it is too much for the South African public to ask that journalists as opposed to social commentators, keep these issues distinct as they write their stories, draw their cartoons or write their op-eds. This of course is not new. Leading journos such as Prof. Anton Harber, among others, have written more poignantly and knowledgeably about these very matters. At the time Prof. Harber penned his views, there were retractions relating to the alleged sale of land by Transnet.

It has just struck me how in engaging in such less than admirable conduct, the media has become a campaigner for the very ANC they seek to vilify. I conclude that the media seeks to vilify the ANC because I do not see how I can reach any other conclusion. If there is cause to doubt the reports of the media about the ANC, why should the South African voting public or the majority of them, change their voting patterns?

The inaccuracies peddled by the media, both print and electronic are quickly becoming par for the course. One only has to watch television news broadcasts to see how low the standard of journalism has become. I believe that the journalist should report the events for the benefit of the citizens and leave "point-making" to the editorial. More than just reporting on the events of the day, as has been said by another more authoritative on these issues than I am, journalists are also curators of our history and for that reason alone they should approach their job with some respect.

I am however encouraged by the work of the likes of Prof. Anton Harber who still remembers what the role of the media is and should be . . .

Just one thing . . .

Just because you are caught in the rain, does not make it ok to piss on yourself.

Custodians of Peace

That, I believe (probably erroneously) is where the Cop thing comes from. If that be the case, where does it leave the Johannesburg ratepayers? For one thing, it definitely leaves them without peace. What with over 90% of the custodians of peace out on strike?

Wayne Minaar, the superitendent and spokesperson for the Johannesburg Metropolitan Department (JMPD) will have the general public believe that it is the court's fault that the custodians of peace have downed tools and left the Jo'burgers to their own means and devices. The man was asked a pretty routine and straightforward question: would you really have us believe that ninety-odd percent of the custodians of peace went out on strike over allegations that do not exist? In response to this question the super says: the court made an order and we are complying with the order. Redi Direko explained (naively, sorry Redi) that all that the court did was to grant the cops permission to march/exercise their right to strike, which by all accounts is ok. The question though is . . .

Sup. Minaar was never going to answer that question. He was not going to have the integrity or decency to answer a question for the benefit of the unsuspecting Jo'burgers, the very Jo'burgers that pay his salary, that he is supposed to serve and on odd occassion tell them the truth about the peace and its custody in their city. No, he sat there, pretending not to hear or understand the question posed. Sort of like, this is my story and I'm sticking by it, approach. The very approach he frowns upon when motorists . . . anyway.

On a different but related topic - should custodians of peace have a right to leave us in the lurch? Yes, I have become all counter-revolutionary in my old age. Is it too much to ask for the residents of Johannesburg to expect that there will be a custodian of peace around should they need one? I say this as one of those wimps who does not want to carry his own gun and have to wake up to do the cops and robbers thing should the necessity arise. Ok, I know they don't throw down like that but you do get the point, I trust.

Wait, I get it! With a little leadership and less taking the public for brainless duds - the custodians of peace would probably, not have to leave the jo'burgers in a lurch, or would they? How can we ever know when no one bothers to tell us the simple truth. Like, we had no basis to stop the strike but we went to court to try and interdict it - using your money. Oh, the other thing, the custodians of the peace don't count for nothing, neither do you actually.

You gotta love the sup.

Politics is too serious a matter to be left to politicians alone

Let me just say upfront that I do not claim originality on the heading, I heard or read it somewhere. I just watched Election Debates on SABC 2 and was enthralled. The points made were good, mostly. And then I saw Mr Ngcebetsha - speaking on behalf of Cope. I was just about to get all sanctimonious and judgemental when I remembered what Dr Mangcu once wrote, or is it once said: people are complex and are able to hold conflicting values and positions in one head. Ok I defer to my grandmother on that one. She says nothing defines you more than the company you keep. Confused? Allow me . . .

Mr Ngcebetsha once was in bed with one Fagan, an attorney plying his trade in the US of A, a specialist in all matters class action like. This time, the idea was to make all multi-national companies which conducted business in SA during the dark apartheid days, pay some trillion US dollars for their role in the subjugation of South African citizens. Well, that litigation is doing its rounds around the US courts, the last I heard it was thrown back to the trial court by the US Supreme Court which incidentally, could not get a quorum of judges (6) to hear the matter because a whole lot of them excused themselves on the basis that they held shares in the companies concerned. What does this have to do with election debates? I concede, nothing?! I apologise. Anyway, it appears that Mr Ngcebetsha now speaks on behalf of Cope. Will he still support the likes of cases he and Fagan sought to bring? That in the face of the TRC?

Anyway, I should not judge a party by the company it keeps or should I? This promptly reminded me of a certain Mr Marais who is also apparently a Cope member, if the news are anything to go by. Once again, it's the company you keep in my book.

Back to the debates, the honourable Surty did do his best to duck the figuritive shoes that were being hurled at him. It was classic, when asked about the things the ANC government was meant to have done a term or two ago, he pointed out that there is in fact a meeting to deal with that very issue, next week. Don't blame the man, you would all have read about the letter he received from one Judge Hlophe, who has now had enough of gardening leave and wants to go back to dispensing justice, which is what he was doing before he was rudely interrupted by those guys who wear green dresses.

All in all, this is riveting TV and I implore all you thousands of South Africans who read this blog to go out there and get involved in the politics of your country. Especially now that getting involved does not mean toyi-toying and shouting slogans - or does it. Anyways, get involved, get the government you deserve.

Whatever you do, do not leave politics to this lot alone.