What would Biko say?

Xolela Mangcu wrote a book on Steve Biko. The title of the book is Biko: A Biography. At the launch of the book it was lauded as an overdue and necessary work on Biko. Please get yourself a copy of this book, read it and make up your own mind on the book. It is a great pity and a poor reflection on all of us that it has taken this long for a book to be written and published about one of the greatest South Africans. Well done Xolela; I hope there is more coming.

Andile Mngxitama wrote this review of Xolela's book in the Mail & Guardian. The content of what Andile wrote is not important for the purposes of this post. In fact the content of what Andile wrote could be a distraction. Xolela then wrote this review of the review of Andile. The content of that latter review is similarly not important.

My disappointment in these two students of Biko defies all descriptions I could muster. At one point the only response to both was a heavy heart and tears. They will probably have nothing but contempt for my tears, especially Andile (he is not sentimental type). Here is the thing, I have children who I would very much like it if they were to get to know about Biko and Sobukwe. Compared to the beloved Mandela, there is very little written and published by these two giants. Giants that Mandela himself has conceded their greatness. Look at the number of books written about Mandela - look past the fact that there is yet to be a book written by a black author - do you see anything even close to what these two have done? Fortunately, no writer will ever diminish the greatness of Biko or Sobukwe. What Andile and Xolela did does however diminish what I presume (I take responsibility for that presumption) Biko represents. What Biko represents as a black man, an activist and as Andile points out, a philosopher.

These two chaps kept the Black Consciousness torch burning while they were students at Wits. They were comrades facing the challenge and sometimes the wrath of the "Congress" types. They know first hand about the "black on black" violence of those dark days. They are both very gifted and in that sense, this country needs them and others like them if we are to make progress. Selfishly, I need them both for the education of my children. Of course they look at things differently, such is the nature of brilliant minds; but for blackness sake must they exchange insults in the process? I am all for robust debate, that is the only thing that will save us from the rubbish politics of greed and destruction. That however is no licence to be crass. Robust engagement should not take the form of black on black violence albeit of the intellectual kind.

Nobody and nothing is ever just one thing; that much I have learned and that much I believe is true. What stops these two from collaborating on a book about Biko? Instead of accusations and veiled insults could they not trade ideas about the next great book on Biko?

Would Biko read their respective contributions to the Mail & Guardian and then say: "ok, you are right and you got it wrong"? Would that even matter to Biko? Or would he tell them to each write what they like? What about their responsibility to those who do not know what they know? What about their responsibility to black thought? Something tells me that Biko (of whom I know very little) would be less than impressed with all of this.

Black leadership, in all spheres of South African life should take no prisoners as critiques of each other. That I believe is how ideas are shaped and how they become better for the benefit of us lesser mortals, more so for our poor radar-less children. The leadership, especially thought leaders owe us a duty to keep the dialogue respectable. An attack always begets defence; conversation on the other invites  participation in the exchange of ideas. Unfortunately this is not what Andile and Xolela do. They call each other names and in the process the valid points they each make gets lost in the noise of attack and defence.

With the greatest of respect to you Andile and Xolela, you can and must do better. The great work of the leaders and youth of the 70's has been largely undone by the brutal activism of the 80's. There is a lot of work to be done to reclaim the dignity of the black people - who better than the two of you and others like you to undertake that project?

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.