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Judicial Activism vs Judicial Restraint: Lessons for South Africa

Judicial activism is often contrasted with judicial restraint. But what is “judicial activism”? Does it have a place in an unequal society? Where does judicial activism end and judicial overreach begin? Where does judicial activism end and judicial abusive language begin?

What is “judicial restraint”? Where does judicial restraint end and “judicial abdication” begin? Is judicial restraint, judicial deference?

One of the panelists observes:

“Choosing not to see something in the record that is there, is a form of [judicial] activism. That is not [judicial] restraint.”

She also observes:

“At the end of the day, if what you want is to see your beliefs become the law, then it actually pretty much doesn’t matter what [evidence] comes before you [as a Judge].”

Is this a desirable form of judicial activism in South Africa?

These are some of the questions explored in this panel discussion. It is a discussion that the South African judiciary would do well to revisit.

Watch here

By |2019-08-05T14:17:52+00:00Aug 5th, 2019|Legal Voices|0 Comments

Leadership, Corruption, Selective Justice, Sharing the Country’s Wealth, Life’s Purpose and Role of the Media. People Matter Foundation (in memory of Nelson Mandela’s Cutting-Edge Leadership) – Kempton Park, Johannesburg, 17 July 2019

On Leadership

I don’t think I have to go into any detail to explain just how troubled our country, and by extension Africa, and the rest of the world is.

There’s a paucity of leadership. And, therefore, alive to the reality that the whole world celebrates or commemorates the critical or cutting-edge leadership role that the first President of the democratic South Africa played, we should pause, reflect and ask,

“But who was Nelson Mandela? What would he expect of every South African? What would he expect of every African and any other person around the world who is a leader?”

Let me begin by saying each and everyone of us is a leader, by the way.

And Leadership that matters is not really positional. It is functional leadership that matters. Be careful of those who are prepared to do EVERYTHING, even outside of the book, to ascend to a leadership position or assume a leadership role. It’s never those they claim to seek to represent that they really seek to represent; it is their stomachs and their insatiable appetite for power and money that they seek to satisfy.

So, I would like to say a few things as briefly as a lawyer-cum-preacher could say, and allow for some question and answer engagement. For I believe that to resolve our country’s key challenges, this moment – the eve of the birthday of Madiba – requires of each and everyone of us to reflect on how we could contribute towards the eradication of corruption, all crime, unethical leadership and poor governance in our country.

Things have gone wrong and we were watching. We were too concerned about our careers, our slice of money-making opportunities, and possibilities to ascend to positions of leadership more than we were – if we were at all – about the plight of the suffering masses of South Africa, of Africa, and the rest of the developing world. I find it inescapable that I ground my message on the seminal statement made by President Nelson Mandela during the Rivonia trial – which will forever be profoundly inspirational and relevant to all who hate the injustice, oppression and exploitation perpetuated by one human being on another. He said:

“During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.”

Nelson Mandela would probably require and expects of everyone one of us to have a lifetime commitment to something. So the question is: since he had dedicated his life to a cause, what is it that you have dedicated your life to?

Reverend Mathebula sent me a picture of a huge truck load of food and other necessities for victims of Cyclone Idah in Mozambique. Through the People Matter Foundation, he and others, like Pastor Andre, have dedicated part of their lives to the betterment of the lives or the alleviation of the plight of others. What about you? The circumstances cried out for intervention after that cyclone. And I said to myself:

“Where are other South Africans? Where am I? If we care as much as we often say when we have opportunities to speak (because we know people expect us to say it) where do we find the practical expression of that which we profess?”

So what are you committed to? He made reference to the struggle, his commitment or his dedication to the struggle of the African people

Until you grasp the fundamentals behind the situation of the African people, you will never really feel impelled to do anything about their plight. The kind of poverty that obtains in Africa is nauseating. If you are the leader that I believe we all ought to be, you ought to drop a tear from time to time when you reflect deeply and soberly upon the reality that in a continent as well-endowed with minerals and natural resources – even fertile soil – as South Africa and Africa are, multitudes go to bed on a hungry stomach and barely have access to proper medical treatment.

We simply have to look at the kind of so-called houses that many of them live in, the level of illiteracy, the exploitation and suffering that they are subjected to in South Africa and Africa. What are we doing about it? Where is the commitment? It ill-behooves us to gather here today, and in the years to come, and talk about Nelson Mandela when there is nothing about what Nelson Mandela stand for to show in our individual lives, when most of us paying lip service to, or are actually hiding behind those who are doing something about, what needs to be done, to appear committed.

So, have you made it your business to soberly reflect on the plight of the African people that Nelson Mandela was talking about, or have we lulled our consciences to that situation? Does it matter to you – when you pass Khayelitsha, Langa, Alexander, Diepsloot or any of these places – does it touch you, have you allowed it to prick your conscience that these are human beings, and that none of us ought to allow this to be normalised? South Africans ought not to resign themselves to this, as their fate.

So what are we doing about it? If we are to gather like this next year, here or elsewhere, what progress would each and everyone of us be able to share as a contribution towards the realisation of the aspirations of all our people so artfully crafted in the Preamble to our Constitution?

On Corruption and Sectional Agendas

Have you fully embraced and internalised the fight against injustice, white or black domination, or do you go along with whatever narrative is put up there in the furtherance of whatever sectional agenda might be there to make others look forever good, and others look inherently or forever bad?

Maybe I should pause there. Part of what we need to grapple with here is corruption. Part of what we need to grapple with in Africa and the rest of the world is corruption. But it looks like we have allowed ourselves to be channelled into believing that corruption can only be practised or committed in the public sector. Believe you me, it almost always takes two to tango – business and the state.

We will NEVER be able to DEFEAT corruption for as long as we allow ourselves to be choreographed into believing that corruption can only be in the public sector, or – let me be a bit crude about it so that we can get a rude awakening – that it’s a black thing.

EVERY HUMAN BEING IS CAPABLE OF BEING CORRUPT.

And believe you me, I believe we haven’t even begun to scratch the surface in relation to the magnitude that obtains in the private sector.

So, if we are to uproot corruption from South Africa and around the world, we have got to accept as a reality that there are masters of corruption EVERYWHERE, even in the Church of God. I mean, the shenanigans that we have seen ought to convince us that human infallibility renders it virtually inescapable that you could find corruption ANYWHERE.

So we’ve got to move from the premise that we’re going to make it our business not to malign others at the expense of others; not to make others untouchable; not to allow anybody – including me – to be awarded an undeserved saintly status. When you try to scratch the surface about this one – even if indications are that there might be something there (that the smoke possibly points to a raging fire) – you will be bombarded with insults and so much negativity – a loud and clear message being sent out that “YOU DARE NOT TOUCH THIS ONE. CHECK!”

I’m a very frank person. But there are things which I say, like saying there’s corruption in the private sector, which is true. But whenever I say them, either immediately or after a while, there will be one article over another made to look unconnected when it may not necessarily be so. It will not deal with what I’m saying, but there will be one side kick after another.

But would Nelson Mandela do? Nelson Mandela would probably say, “I’m even prepared to die for this cause.”

On Selective Justice and Untouchables

An injustice is an injustice regardless of who the perpetrator is. And we will get this country right if, moving from this meeting we are determined not to be told who is clean and who is dirty. We have to be determined to research it ourselves. And when there is a smoke we would have to follow it up to its logical origin to the source.

Let me just mention by the way what I am talking about. I read a story from one of the Sunday papers this past Sunday. There was a human being who was projected as, I got a sense, nothing but a drunk. I was left to believe that this man is always on a high. Nothing positive can ever come out of the mouth of this one. He was made to look like a thoroughly discredited person, and I was wondering why anybody would want to rely on the evidence of that person. That’s the narrative that I was fed with, I think.

Until on Monday the man appeared on Channel 405. The man was sound. He said but what was written about me is a lie! And articulated what happened. I’m not saying he was telling the truth. I’m just saying that he did not strike me as a mad and crazy man who lives in a haze all the time. Sadly, some of the things that we read about other people, some of the things that some of our analysts would like to feed us with appear to be designed to project some people in a negative light and others always in a positive light. That is not how to build a nation.

Nelson Mandela would never have survived if all South Africans flowed with the negative tide that ran against the course that he was championing or was prepared to die for. And I believe that we would do well for the sake of posterity if we were really to take a deep breath, before we passed judgment on others based purely on what is said or written about other people or institutions.

I was touched yesterday morning, on Morning Live, by what two women – Leanne Manas and Sakina Kamwendo – were saying. They basically said that there are things that we don’t just allow ourselves to look into even if there appears to be a smoke or more behind of what we are told. And they raised a particular issue and said, “Why are we not allowing ourselves to probe into this one?” That’s how we are channelled. “You touch this one at your peril. DON’T GO THERE! THE PROBLEM IS THERE!”

Let me round this issue up by saying: It will be a disservice to this nation if we were ever to allow ourselves to believe that once you have dealt with the Gupta situation you have dealt with corruption in its entirety. It’s a fallacy. I carry no brief for them! But think about it.

When did our state-owned enterprises begin to lose money massively? Who else is benefitting from the coal issue at Eskom? What percentage of the coal did these people get? Have we ever bothered to find out,

“But how much are other people getting? Is it inflated or not? Who is benefitting from the South African Airways ALL THESE YEARS, and any other state-owned enterprise?”

Why are we not talking about those interests? Why are we not curious? Mandela would probably want to know. He stood for the ideal of a truly democratic and free society. And you and I need to allow ourselves to be captured by the ideal of a democratic and free society.

I’m in the habit these days of saying, “But what is democracy? A government of the people by the people and for the people?” Does it continue to be so, even if you stand no chance of winning the elections unless you’re connected to the financially well-resourced? And if they fund you to the point where you succeed and win and become the government, are you not captured in advance?
So, we need to REALLY think deep about how capture happens. There’s no free lunch! And never for the Millions. You may get free lunch maybe for a thousand Rand. But once they begin to give you R1 million, R3 million, R5 million, R50 million R100 million whether I set you up in business or in government, ah, there will be pay-back time. Why should I make you a multi-millionaire? Why? Why do I prefer you over others? Why? It’s an investment.

On Benefiting From the Country’s Wealth

Nelson Mandela espoused the vision of a country where all live together in harmony and with equal opportunities. Do we live together in harmony? Are we trying to live together in harmony? Do we have equal opportunities?

I think the good starting point is to admit the truth. We’ve got to work hard towards harmonising relations between black and white South Africans. It is a betrayal of the cause for which Nelson Mandela suffered for us to perpetuate division rather than seek to achieve national unity and reconciliation. I know others would say, “How can we when we don’t have land, when we don’t have this?” I’m very much alive to the challenges that confront all of us.

But I believe that there is more to be achieved when you allow yourself to be calm – to be sober and engage in a discussion designed to find solutions rather than trade insults; rather than harden attitudes.

I was watching television last night and I saw that most of the Big Companies that are listed on the Stock Exchange – 85% of them – are managed by white South Africans. The rest is shared by the previously disadvantaged. It should concern all of us. What am I suggesting? That people must just be given things? No. But there has got to be a quality decision taken or a serious commitment by all of us that we each on a daily basis must work towards finding a solution to this problem because if a solution is not found no narrative, however wisely crafted, will enable us to evade the challenges that come with an injustice that is left to live on and on and on.

It is an anomaly that the indigenes of South Africa and, by extension, of Africa, and the rest of the developing world, are not benefitting as optimally from the riches of their country as they ought to. It’s an anomaly. We are failing our country and posterity, if in order not to offend we lie to each other and say this is normal; don’t worry it’s abnormal. It is nothing to insult one another about, but it must be addressed.

And difficult as it is, like Nelson Mandela, it is something to reflect very deeply on and say, “But this looks like an intractable challenge. What is it that we can do about it?”

Even the land issue. It looks like an intractable challenge that has the potential to rip us apart. You and I as we celebrate the life of Nelson Mandela, on a daily basis, within our circles of influence, owe it to the nation and to posterity and to ask ourselves, “But what can we do?”

Remember where there is a will there is a way.

We would never be the constitutional democracy that we are had we not decided as black and white South Africans that this impossibility will become a testimony. It was our determination to find a solution that got us to where we are. And the same should apply to any other serious problem that confronts us. The problem is we don’t invest as much time, as much energy and as much resources as the magnitude of the problem demands that we should in order for the problem to be solved.

We’ve got to nurture the hope to achieve these ideals in our lifetime. I think there is so much more progress that we can make if moving from this meeting we would refuse to be party to any negativity, and the hatred that manifests itself up from time to time here and there. If only we can move from this meeting determined that, in our families and as teachers in the schools where we are, as Ministers of the Gospel, leaders of faith based organisations, we are on a regular basis going to contribute towards finding solutions to the challenges that confront South Africa out of respect for Nelson Mandela.

Let me rush to the last point.

On Conviction and Life’s Purpose

When people benefit from wrongdoing, they fight any attempt to dislodge them. When people have reached a level where they are prepared to make money and to ascend to power BY ANY MEANS NECESSARY they tend to be merciless. Don’t think that they will smile at you when you try to rock the boat. Smear campaigns, well thought out smear campaigns, will be waged against you. Another will write something about you there; another there; they will look like they are unrelated. The truth will be so shamelessly distorted about you. There will be this side kick here and there.

I think Nelson Mandela suffered more than a side kick, and yet he said, “If needs be, it is an ideal for which I am prepared to die.”

Remember, as I round up, a revelation that I never knew popped up recently when former President Kgalema Mothlanthe was addressing a meeting at Lilly’s Farm. He said a quality decision was taken by Mr Nelson Mandela, Walter Sisulu and all the other Rivonia trialists that even if they were to be sentenced to death they were not going to appeal the sentence. They decided to lay down their lives for you and I.

Nelson Mandela did not know me. I mean where was I? I think I was a small boy. I had not even been to school. But how could he know about me. But they all were prepared to have their families destroyed; to have their children grow up virtually fatherless; to have their spouses harassed, tortured and possibly even killed for you and I. They were prepared to die.

It was not in anticipation of some well-paying political office or business opportunity that they were prepared to die. There was no room for any benefit. They were trying to be populists. They were not trying to be heroes. They had a sense of purpose. There was SOMETHING WORTH DYING FOR A CAUSE!

What are you prepared to die for?

I know many are prepared to kill: for MONEY! And even for POSITIONS! And to lie artfully their way into wealth and positions of influence or leadership.

But what Mandela-like ideal are you prepared to die for? Let us move away from saying what we are expected to say when in fact that which we profess to be our vision, to be our convictions, is far removed from what we really want and what we are really about.

We have suffered enough for the last 25 years. A lot of good has been done. I wouldn’t be where I am. Most of you would not be where you are. I doubt, Reverend Mathebula, that you would be allowed to have a church here without breaking the law. So, a lot of progress has been made. There is a lot to celebrate. But there is also a lot to lament because there are far too many missed opportunities.

Happily, it’s not too late if only we were not to allow it to be business as usual. If only we were not to stay in a place where we always position ourselves for praise and favourable media coverage.

On the Role of Media and The Outsourcing of Thinking Abilities

I made a statement at one conference and there were some serious media personalities there. I said,

“You know, in some of the media platforms (and I’m not attacking the media; I’m free to talk about anything; everybody talks about me too) I said sometimes you get a sense that there are analysts who are not allowed to feature in some media platforms when certain issues are to be discussed. There seems to be a cohort of carefully selected analysts, and you can tell in advance that when this one appears to discuss certain issues, there’s a particular narrative that is going to be advanced or championed.”

That’s not how to build a country! You need objectivity. We can’t have a situation where it looks like we sometimes come together and decide, “Nobody should depart from this narrative.” As judges we disagree all the time because the fundamentals of independence dictate that you do only what your conviction and what your conscience says is the right thing to do. They’re not happy to see things the same way.

There’s something about the American media. When you turn to CNN you know or have a sense of what to expect in relation to certain issues. When you turn to Fox News you know what to expect. But it is supposed to be different in South Africa because our Constitution says our media houses exist to inform, not to misinform, the public. And there’s a critical role that the media has to play to make sure that not some corruption, but all corruption is uprooted.

The media has a critical role to play in ensuring not some unethical leaders are exposed but all. No leader in the private sector, in the political system, in the judiciary, and in the media ought to be allowed to target innocent people and make them look bad for flimsy reasons and we just sit back and say, “It’s none of our business.”

I think we should say, “Enough of this.” We’ve got to be vocal. This is our country too. It’s an insult to the brain you have; it’s an insult to the heart and the conscience you have to allow anybody to manipulate you in the furtherance of an agenda which when you are sitting alone, be it in the restroom or wherever, you know that this can only have the effect of further sectional interests but not the interests of all of us.

I beg you all. Let us stop outsourcing our thinking responsibilities.
Let us stop accepting as FACT anything that is dished out to us. I keep on telling people that one of the intelligence agencies – in fact two – first the German and later the American, many years back, did research (it’s a project that was started by Hitler) and they discovered that all you have to do to discredit a person is to recycle a lie that is blended with a measure of truth many times over. If you repeat it and repeat it and repeat it, ultimately it ‘s going to be accepted as truth.
And there is something else that they discovered: that 87% of the public never interrogate anything that features in the public domain. They readily accept whatever is said as a fact.
The problems that we have as a nation are far too serious for us to allow ourselves to be manipulated. It’s a sign that you have no respect for yourself. It’s a failure by any leader to allow themselves to be pulled by the nose like that.

I say without any fear of contradiction: I am ready to be insulted; after all that’s how I was baptised into my office.

I’m ready to be misrepresented and deliberately misunderstood in pursuit of the ideals that Nelson Mandela was prepared to die for. You want to say I’m a populist. You may want to say it looks like I’m salivating for political office as one person said, “Why don’t you go out and be open about your ambitions and stop hiding under the green robe?”. That’s your problem!

I bear the responsibility not just for justice, but the chief responsibility for justice in our country. And I’m not going to allow myself to be intimidated into silence. I have seen through all the shenanigans that could keep us stagnant for another 25 years or 50 years. When I do wrong criticise me factually. When any leader – regardless of how like disliked he or she might be – does wrong, criticise them factually. But let’s make a determination for the sake of South Africa, and for the sake of Africa which cannot make much progress without South Africa itself repositioning itself appropriately, for the crucial role it is fated to play.

Let’s make a commitment that never again are we going to be directly or indirectly complicit in smears against others; obedient victims of manipulative messages and self-serving agendas. All those with an insatiable appetite for power and money can ever do is to try to assassinate your character, not you physically. Mandela was prepared to be assassinated PHYSICALLY hence the quality decision they made not to take the death penalty on appeal, if imposed. It resonates with “but if needs be, it is an ideal for which I am prepared to die”. So let us not betray his legacy.

I thank you all. May you be the functional and visionary leaders that you have all the possibilities and potential to become.

I’m ready for questions.

Public Protector Busisiwe Mkhwebane in Concourt to reverse North Gauteng High Court order on personal costs

The High Court directed, at the instance of the SA Reserve Bank, that the Public Protector pay 15% of the costs of the Reserve Bank’s review application for the setting aside of her Report in which she had recommended, among other things, that the Reserve Bank recover from ABSA Bank over a Billion Rand that it had given to Bankorp as a “lifeboat”. Bankorp has since been acquired by ABSA Bank. The Public Protector is one of only 6 institutions created in terms of chapter 9 of the Constitution with the stated purpose of “strengthening constitutional democracy in the Republic”. This is argument at the Constitutional Court where the Public Protector seeks to have that order set aside as being unwarranted and in any event undesirable & inappropriate given the constitutional mandate of the Public Protector.

By |2019-03-06T12:05:20+00:00Feb 20th, 2019|Legal Voices|9 Comments