When Race Politics Drives Journalism: A Response to a Takedown

French social psychologist, Gustave Le Bon (1841 – 1931) and American “public relations” theorist, Edward Bernays (1891 – 1995), are generally regarded as propaganda scholars. Their works have been consulted by numerous governments and corporations around the world on how to influence group psychology by manipulating the content of the information that the public consumes. This is a phenomenon colloquially known as propaganda.

In his seminal work, La Psychologie des Foules (1895) – the English translation of which was first published in 1896 under the title, The Crowd: A Study of the Popular Mind – Le Bon wrote about the power to the human psyche of the repetition of an idea or statement. (see The Crowd: A Study of the Popular Mind (Boomer Books, Waking Lion Press, 2006 ed), ch 7: “The Leaders of Crowds and Their Means of Persuasion”, pp 98-99).

Here is some of what he wrote on the power of repetition:

  • “Affirmation, however, has no real influence unless it be constantly repeated, and so far as possible in the same terms . . .”.
  • “The thing affirmed comes by repetition to fix itself in the mind in such a way that it is accepted in the end as a demonstrated truth. . .”
  • “This power [of repetition] is due to the fact that the repeated statement is embedded in the long run in those profound regions of our unconscious selves in which the motives of our actions are forged. At the end of a certain time we have forgotten who is the author of the repeated assertion, and we finish by believing it. . .”.
  • “If we always read in the same papers that A is an arrant scamp and B a most honest man we finish by being convinced that this is the truth, unless, indeed, we are given to reading another paper of the contrary opinion, in which the two qualifications are reversed. . .”.
  •  “When an affirmation has been sufficiently repeated and there is unanimity in this repetition . . . what is called a current of opinion is formed and the powerful mechanism of contagion intervenes. . .”.

It is in this context that I consider the attack by Marianne Thamm, a white woman who writes for the Daily Maverick, on a select group of Black advocates in an article titled The major foes of South Africa’s constitutional democracy star in Busisiwe Mkhwebane’s Fight of a Lifetime.

The piece comes on the back of “evidence” apparently presented by evidence leaders at the parliamentary inquiry into the fitness of the Public Protector to hold office. It is the presentation of that “evidence” for all to see that set in motion a train of events, including publication of this piece, with potentially ruinous consequences for the Black advocates concerned.

This does not appear to be by accident. It is difficult not to conclude that it may be the beginning of the constant repetition of a narrative aimed at “cancelling” the targeted Black advocates. All four Black Senior Counsel are currently leading in various ongoing litigation against government and the white business establishment on behalf of clients who have a right to legal representation in our democracy:

  • Mpofu SC represents the Public Protector in her impeachment inquiry by a parliamentary committee and has successfully challenged her unlawful suspension by the President a day after she announced that she was investigating his “Dollargate” This is the scandal that threatens to derail the President’s bid for a second term as President. Mpofu SC also represents former President Jacob Zuma in his criminal trial by the state, and in the private prosecution of a senior public prosecutor and a self-styled “legal” journalist. He also represented the former President in that unprecedented conviction and sentencing of a private citizen by the apex court.
  • Sikhakhane SC represents Mr Arthur Fraser (former State Security Agency Director-General) who lay criminal charges against the President in relation to his “Dollargate” or PhalaPhala scandal which may possibly scupper his ambition for a second term as President. He also represented former President Zuma at the State Capture Commission and sought recusal of the (now) Chief Justice. Also among his clients is the Sekunjalo Group of Companies in the main proceedings of the Equality Court against the banks and financial industry regulators including the South African Reserve Bank, the Financial Sector Conduct Authority and the Financial Intelligence Centre.
  • Masuku SC also represents former President Zuma in his criminal trial. He also leads a team that is challenging the review of the Mpati Commission of Inquiry on behalf of the Sekunjalo Group of Companies which are being targeted for closure by the banks and mainstream media, like the Daily Maverick, in South Africa. The banks and mainstream media are using the Mpati Report as a basis for targeting the Group. Masuku SC also represents Judge President Hlophe of the Western Cape High Court who has been in the crosshairs of certain persons in the legal profession.
  • Ngalwana SC represents the Sekunjalo Group of Companies against the banks which closed the Group’s bank accounts on the basis, principally, of the Mpati Report. The Equality Court and the Competition Tribunal have ordered the re-opening of these accounts and have interdicted the banks from closing them. Some of the banks are challenging the Competition Tribunal’s decision on review and appeal. Ngalwana is also leading a team that is challenging the State Capture Commission on review. He also leads a team challenging the freezing out of Black companies from state contracts. He has successfully lodged complaints against 2 white judges for gross misconduct and is a vocal opponent of the President’s incumbency for reasons he has articulated on social media.

It would be naïve to exclude this context when considering the Daily Maverick attack on these targeted Black advocates. The only reasonable conclusion would be that the tainting of these targeted Black advocates by constant repetition in the media (by innuendo since there is no evidence of criminality or unprofessional conduct) that we are “beneficiaries” of monies “funnelled” through the office of the Public Protector. That way, it is hoped that our voices will be muted and our professional standing as Officers of the Court is forever compromised. The ripple effect of that is obvious, and that is probably why the names of less senior advocates on brief with us in various matters have also been unfairly published. Either they are also accused of malfeasance or, more likely, the message seems to be a warning to them not to associate with us.

***

Neither the journalist nor the evidence leaders cared to hear the side of the targeted Black advocates on the “facts” before putting out material that suggestive of professional misconduct in the public domain. Neither notice nor hearing was afforded. As it turns out – at least in my case – the alleged “facts” are wrong. The leading evidence leader has admitted as much to me that “the figure was incorrect”, and that she will “correct it”.

But that’s hardly the point. Why was it necessary for the evidence leaders to parade our names (leaving out many others, including white Counsel) in their pursuit of proving the Public Protector unfit to hold office? Why was it necessary for them to do this even without giving us notice? Why couldn’t they verify with us the accuracy of the “facts” on which they rely before going public with such potentially damaging information?

And these are not even allegations or accusation. In my profession, there is a practice known as “self-reporting” if there is an accusation or allegation of unethical conduct, but which has not been formally reported to the Bar Council, or if Counsel suspects there may be something possibly amiss in his or her own conduct that may require the attention of the professional committee. The expectation is that Counsel knows (or should reasonably know) when a matter of his or her own conduct requires the attention of the Bar Council. One need not first be reported.

So, with that in mind, I asked the evidence leader directly:

“Are you accusing me of anything? If so, of what exactly? I ask so that I can decide how to approach what you did this past week.”

Her answer was an emphatic: “No I am not accusing u of anything”.

Then she apologised and said she will do it openly during the parliamentary committee sitting. I look forward to learning of the precise content of the apology.

As part of proving their case that Adv Mkhwebane is not fit to hold office, the evidence leaders (both advocates) had it in their heads that it would be a good idea to expose for public consumption the fees that a select number of Black Counsel had earned from rendering legal services to the Public Protector on instruction from various attorneys (8 in my case) to the glaringly obvious lack of attention on white counsel, white law firms and other black counsel who, it seems in their view, do not fit the narrative they seem intent on putting forth. Did they do this deliberately? The lack of focus on white counsel and white firms makes the attention on targeted Black Counsel a racially slanted exercise.

Anyway, I digress. My purpose here is not to engage with the unpardonably louche conduct of the evidence leaders. I have started a process of dealing with that elsewhere. My focus is the Daily Maverick takedown of specifically targeted Black advocates for doing what advocates in the referral profession do: render legal services to a client through an instructing attorney on fees agreed in advance with the instructing attorney.

That the targeted Black advocates should earn a fee, over a period [4 years and 5 months in my case], from rendering legal services to an institution that is funded by government (ultimately taxpayers) seems to stretch the bounds of credulity for this white journalist. Her interest seems to have been triggered by the amounts the targeted Black advocates are alleged to have earned: “millions of rand”, she pronounces with apparent disgust. One could only imagine what her reaction would be if she were to hear the amounts the white advocates earned.

Labelling these targeted Black advocates variously as “those who are opposed to accountable government”, “a cluster of well-known professionals” and “an A-list of high-powered beneficiaries”, she spares hardly an adjective or verb that is suggestive of criminality. For example, according to her, these targeted Black advocates did not earn their fees from rendering legal services. Instead, they “benefitted handsomely” from the litigation “funnelled through” the Public Protector’s office.

By innuendo, these carefully chosen words are intended to suggest malfeasance or corruption or worse. But on what evidence? Did she even bother to ask the targeted Black advocates she so callously defames? Of course not. That would spoil her broth.

Notice the careful choice of the verb “funnelled”. It seems intended to create the impression that these are monies diverted from elsewhere. Why? Well, because these Black advocates “lost all these cases” – a lie of course, but why would she let facts get in the way of a good yarn?

Quite apart from the fact-free merits of the publication, let us consider the journalistic value of the article.

***

The Daily Maverick article is a wide-ranging piece of work, although labelling it as “work” is rather charitable. The piece lurches imperceptibly from partisan political commentary to didactic UNreasoning to what inevitably comes across as a white superiority sermon. As a journalistic piece it is incoherent, a language understood only by fellow travellers. As a propaganda tool it is blunt and unlikely to persuade a discerning reader.

It is difficult to understand how this piece made it past the sub-editor’s desk, let alone being published. Surely the editor could discern the significant reputational risk to the media house? Perhaps not? Perhaps this is the sort of unbridled attack on Blackness that we should come to expect from the publication?

The measure of a good script is usually a coherent plot. That normally comprises a clear thesis, focused and unwavering reasoning aimed at proving the thesis, and a conclusion that brings everything to a logical end.

Writers are often encouraged to flesh out the plot with colourful characters and vivid settings that will enhance the story and grab the reader’s attention. The journalist does this with aplomb. Characters like Adolf Hitler feature prominently alongside Black advocates. The imagery is disturbing. But that is the point: to shock and awe and, ultimately, cancel the targeted Black advocates by resorting to thoroughly disreputable imagery.

In a work of fiction, this is well and good. But playing Russian roulette with people’s professional careers that could trigger all forms of potentially ruinous consequences is just mean-spirited. Already, there are people who believe – simply on the basis of innuendo – that these targeted Black advocates “looted” the public purse.

But even in a work of fiction – which this article largely is – staying focused on the thesis is key. Nothing is worse than a good plot idea that grows ever more chaotic as the story develops. But Daily Maverick‘s Marrianne Thamm – who has apparently written books – appears to have suspended this rudimentary literary exploit as she lurches directionless from one chaotic sub-plot to the next in quick succession.

For example, what has Ngalwana’s representation of Dr Iqbal SURVÉ to do with Adv Mkhwebane’s fitness for office? Ah! Rogue by association. That’s it. If Ngalwana represented Mkhwebane and now represents Dr Iqbal SURVÉ, then abracadabra, Ngalwana must be a rogue. “Dots have joined …”, she claims triumphantly. Such is the didactic UNreasoning of the piece.

Stumbling from, at once, excoriating and praising politicians (Malema, Sisulu, Zuma – even Pallo Jordan is dusted off from politico-academic oblivion in order to make a desperate point about the Freedom Charter somehow, conveniently, birthing the Constitution) to judges (Hlophe and Sachs) to lawyers (Mpofu, Sikhakhane, Ngalwana, Xulu, Masuku, Seanego – ignorantly making no distinction between attorneys’ and advocates’ roles, if she even understands the distinction) the piece meanders haplessly into a lump of shapeless bile – which in itself inadvertently paints the writer as a foe of democracy.

So, what next? Does one sue for defamation? Perhaps. But the damage is done. No amount of court-awarded damages will undo it. The writer and her lawyers know this. To her and her bosses R500,000 is a small price to pay for the damage they wanted so desperately to inflict on those they consider out of step with their view of the world they still want maintained for posterity. An apology? A retraction? From a media house? What good will that do in a scandal-enthused public?

What about defamation against evidence leaders? Does parliamentary privilege shield them in this case? Is that why they felt no compunction in doing what they did? I find it difficult to believe that a member of the Bar (as I know it) would deliberately seek to malign colleagues in this fashion. At least that is the member of the Bar in me. I suppose time and further developments will prove what the correct position is. But can the same be said of a journalist?

One thing is clear, though. The hard work of freeing South Africa from the shackles of totalitarianism of all sorts continues.

By |2022-11-09T14:43:42+02:00Nov 9th, 2022|Blog, General, News|Comments Off on When Race Politics Drives Journalism: A Response to a Takedown

Secretary of State Capture Commission v Zuma CCT295/20: Written Submissions – By Vuyani Ngalwana

On 3 December 2020, the Secretary of the JUDICIAL COMMISSION OF INQUIRY INTO ALLEGATIONS OF STATE CAPTURE, CORRUPTION AND FRAUD IN THE PUBLIC SECTOR INCLUDING ORGANS OF STATE (“the State Capture Commission”) launched an urgent application in the Constitutional Court asking that court, among other things,

  • to declare that President Zuma is constitutionally obliged to appear before the State Capture Commission and account by giving evidence and answer allegations that he failed as President and head of the executive to fulfill his constitutional obligations;
  • to declare that Pres Zuma is obliged to comply with any summons served on him by the Commission;
  • directing Pres Zuma to appear before the Commission on 18 to 22 January 2021 and 15 to 19 February 2021 unless otherwise excused by the Chair, and to remain in attendance during that period;
  • directing that Pres Zuma must answer all questions put to him, subject to his invoking the right against self-incrimination but not the right to remain silent (which the Commission says is available only to accused persons).

This follows Pres Zuma leaving the Commission hearing on 19 November 2020, and not returning on 20 November 2020 when he was still under summons.

On 17 December 2020, Ngalwana filed a conditional application in the Constitutional Court to be admitted as friend of the court (amicus curiae) raising certain issues not raised by either party that he considers relevant and in the public interest for the Constitutional Court to determine together with the Commission’s application. The application is conditional upon the Constitutional Court granting identified relief in respect of Pres Zuma.  It seeks to complement, not oppose, the Commission’s application against Pres Zuma. It asks that the Constitutional Court take into account the “deeper public purpose” of the Commission by extending some of the relief sought in relation to Mr Zuma to other members of his cabinet and other senior civil servants and Eskom chief executive.

On 18 December 2020, CASAC also filed its application in the Constitutional Court to be admitted as friend of the court. It wants Mr Zuma to denied the benefit of the privilege against self-incrimination when answering questions put to him at the Commission.

On 22 December 2020, the Helen Suzman Foundation also filed its application to be admitted as friend of the court. Its focus is the centrality to the rule of law of the importance of everyone, including former head of state, obeying or complying with the summons and subpoenas issued by the Commission.

On 23 December 2020, the Chief Justice issued Directions conveying that all applicants for amicus status must file written submissions by 13h00 on 28 December 2020, but that they “will not present oral argument at the hearing on 29 December 2020” and that a decision as regards whether they will be admitted as friends of the court will be communicated in the judgment of the court.

On 28 December 2020, further Directions were issued laying the ground rules for the conduct of the hearing on 29 December 2020.

Read ALL the parties Written Submissions by clicking on the links immediately below:

Written Submissions

Heads of Argument in Secretary Commission v Zuma – 18 December 2020

Written Submissions in State Capture Commission v Zuma – Vuyani Ngalwana 28 December 2020

CASAC Heads of Argument – Secretary Commission v JG Zuma (Case No CCT 295-20)

HSF written submissions

Concourt Directions

Concourt Directions – 23 December 2020

Concourt Directions – 28 DEcember 2020

By |2020-12-28T14:34:11+02:00Dec 28th, 2020|Cases of Interest, South Africa|2 Comments

Is There A Case for President Ramaphosa and Others To Answer at the State Capture Commission: A Constitutional Court Intervention – By Vuyani Ngalwana

On or about 3 December 2020, the Secretary of the JUDICIAL COMMISSION OF INQUIRY INTO ALLEGATIONS OF STATE CAPTURE, CORRUPTION AND FRAUD IN THE PUBLIC SECTOR INCLUDING ORGANS OF STATE (“the State Capture Commission”) launched an urgent application in the Constitutional Court asking that court, among other things,

  • to declare that President Zuma is constitutionally obliged to appear before the State Capture Commission and account by giving evidence and answer allegations that he failed as President and head of the executive to fulfill his constitutional obligations;
  • to declare that Pres Zuma is obliged to comply with any summons served on him by the Commission;
  • directing Pres Zuma to appear before the Commission on 18 to 22 January 2021 and 15 to 19 February 2021 unless otherwise excused by the Chair, and to remain in attendance during that period;
  • directing that Pres Zuma must answer all questions put to him, subject to his invoking the right against self-incrimination but not the right to remain silent (which the Commission says is available only to accused persons).

This follows Pres Zuma leaving the Commission hearing on 19 November 2020, and not returning on 20 November 2020 when he was still under summons. It is not immediately clear whether he was in fact under obligation to return because the Chair announced on 19 November 2020 – after learning of Pres Zuma’s departure – that there would not be a sitting on 20 November 2020. Perhaps the Chair assumed that Pres Zuma would not return. Perhaps Pres Zuma conveyed that to the Chair. Neither the Commission nor Pres Zuma has explained precisely what the correct position is in this regard.

Ngalwana has filed a conditional application in the Constitutional Court to be admitted as friend of the court (amicus curiae) raising certain issues not raised by either party that he considers relevant and in the public interest for the Constitutional Court to determine together with the Commission’s application. The application is conditional upon the Constitutional Court granting identified relief in respect of Pres Zuma.  It seeks to complement, not oppose, the Commission’s application against Pres Zuma. It asks that the Constitutional Court directs the Commission to compel President Ramaphosa and other members of cabinet, senior civil servants and Eskom chief executive to answer questions on specific issues on the same grounds advanced by the Commission in relation to Pres Zuma in support of certain identified prayers.

If granted leave to intervene, written submissions by way of heads of argument will then be prepared.

As of the evening of Saturday 19 December 2020, no word had yet been received from the Constitutional Court, on the one hand, or either the Commission or Pres Zuma’s legal team, on the other, as regards their attitude towards the intervention application which was filed and served on 17 December 2020. The Commission filed its heads of argument on 18 December 2020, which it served on Ngalwana too, but says nothing about the intervention application in those heads of argument. Pres Zuma has elected not to participate in the Constitutional Court proceedings. Instead he has launched review proceedings in the High Court in relation to the Commission Chair’s ruling on Pres Zuma’s earlier application for his recusal.

Read the Full Conditional Application by clicking on the link immediately below:

Secretary of State Capture Commission v Zuma – Amicus Application 17 December 2020 (Intervention Application)

RELATED DOCUMENTS

Concourt Pleadings in State Capture Comm v Zuma (Commission’s Application)

Heads of Argument in Secretary Commission v Zuma – 18 December 2020

State Capture Terms of Reference – Original

By |2020-12-19T22:23:22+02:00Dec 19th, 2020|Cases of Interest, South Africa|1 Comment

This is a Participatory Democracy: PARTICIPATE. The State Capture Commission is Yours Too

Many people view the JUDICIAL COMMISSION OF INQUIRY INTO ALLEGATIONS OF STATE CAPTURE, CORRUPTION AND FRAUD IN THE PUBLIC SECTOR INCLUDING ORGANS OF STATE (“the State Capture Commission” or “the Commission”) with suspicion, at best, and as a witch-hunt specifically for President Zuma’s associates, at worst.

But is this justified?

A cursory reading of the Commission’s Terms of Reference and Rules reveals that such suspicion can either be blunted or blown out into the open or completely disproved.

ANYONE, whatever his or her status in life, who believes that any person should be called as a witness on specific issues, and be questioned on those issues by the Commission, can ask the Commission Chair to call that person as a witness. All you need do is send a written request to the Secretary of the Commission in which you

  • identify yourself
  • identify the person/s you want called
  • specify the issue/s on which you want the person/s questioned
  • explain why that evidence is likely to be valuable to the Commission in the performance of its work
  • link the issue/s on which you want the person/s questioned to at least one aspect of the Terms of Reference.

(The Terms of Reference – to which a link is provided below – have been amended since first being promulgated in January 2018, but not in a manner that materially affects the discussion here)

In this regard, Rule 9.1 of the Commission Rules says:

“If any person considers that a particular witness should be called to give oral evidence, a written request to this effect should be made to the Commission and shall include the reasons for the request and the likely value of the evidence of such witness. Such witness may be called at the discretion of the Chairperson.”

If the Commission Chair invites the person concerned, s/he must be questioned in terms of Rule 3.2 of the Commission Rules which says:

“A member of the Commission’s Legal Team may put questions to a witness whose evidence is presented to the Commission by the Commission’s Legal Team including questions aimed at assisting the Commission in assessing the truthfulness of the evidence of a witness. Subject to the directions of the Chairperson, the Commission’s Legal Team may ask leading questions.”

Since the primary purpose of a Commission of Inquiry is the pursuit of the truth, you are free to suggest a line of questioning to the Commission on the issues that trouble you. Ultimately, whether the person you have identified is invited to give evidence and be questioned at the Commission is for the Chair to decide. But the discretion of the Chair must be exercised judiciously, not on a whim.

If the Chair should refuse your request, you are entitled to reasons. If no reasons are given, or you find the reasons inadequate or irrational or unreasonable, you have a right to challenge the decision on review in the high court.

If the nature of the questioning should strike you as “sweetheart” questioning of the sort that is intended simply to go through the motions without any intention of extracting the truth, you have a right to challenge the process on review to the high court.

Now, the purpose of this brief opinion is this: it is unhelpful to stand on the sidelines hurling invective at the Commission when you can participate in making it a success. We live in what should be a participatory Democracy. PARTICIPATE.

Read an example of a Written Request by clicking on the link below:

Request to State Capture Commission – Website

RELATED DOCUMENTS

State Capture Commission DAY 133 TRANSCRIPT DD 2019-07-15 – Zuma Evidence

State Capture Commission Rules

State Capture Terms of Reference – Original

By |2020-08-16T20:21:58+02:00Aug 16th, 2020|Cases of Interest, South Africa|Comments Off on This is a Participatory Democracy: PARTICIPATE. The State Capture Commission is Yours Too
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