YONELA DIKO: Lindiwe Sisulu and the mischief of failed ANC leaders

Lindiwe Sisulu's attack on the judiciary is widely unreasonable. She should know better. She does know better. In multiple seminal court cases, our judges have proven to be ideologically sound, politically mature and deeply invested in redressing the injustices of the past as required by the Constitution.

One case that captures this was the City of Tshwane Metropolitan Municipality v Afriforum when Afriforum argued against the name change of “Afrikaner oppressors” into “struggle heroes” and “community activists”. In a concurrent judgment penned by Justice Chris Jafta supporting the majority judgment penned by Mogoeng Mogoeng, Jafta said, “I am troubled by the statement in which is implied that a cultural tradition founded in history rooted in oppression may find recognition in the Constitution. And it cannot be gainsaid that the oppression we are talking about here was based on race and therefore was racist to the core. Its central and yet false pillar was that the white race was superior to other races. As many authorities show the Constitution creates a clean break from our ugly past of racial oppression by emphatically rejecting discrimination based on race and the humiliation and indignity suffered by black people at the hands of their white compatriots.”

In fact, in the majority judgement, Mogoeng is clear that the Constitution places on all of us, the responsibility and duty to transform our country and remove the old structural development that make South Africa a “Europe within Africa” and the Afrikaner minorities whose stronghold in the country remains evident over and against the black majority, even in street names, needs to be rejected and abandoned.

And yet, although judges are clearly not a monolithic group, some experts have noticed that certain justices, particularly Zondo and Jafta, seem to prefer to give the executive more latitude to exercise its transformative or solemn duty to the people even when the executive has trapped itself into an illegal contract. In cases such as the Department of Transport vs Tashima, or Bel Porto School Governing Body and Others v Premier of the Western Cape Province and Another, and many others shows that judges do go an extra mile to support the executive in serving the people even when government has run itself into a tight corner.

It is, therefore, offensive in the extreme that our judges, who have been the bulwark against those who seek to perpetuate and protect their unjustified enrichment and evil gains in the past to be accused as enablers who suffer from the last vestiges of the colonial mental slavery.

What Sisulu is asking for, however, are two things. That the courts must solve society’s ills and that they must ignore wrongdoing by the previously oppressed. Here, she is outside her mind. As Chief Justice of the United States John Roberts once said, “The courts job is to decide legal disputes under Constitution and laws. Not to cure the ills of society. To the extent that people are looking at the courts, they ought to be looking elsewhere”.

Secondly, whatever pain black people have suffered under colonialism and apartheid, whatever heavy yoke we still carry from the past, as blacks, we have no license to perform acts of fraud and corruption; we cannot support conman and swindlers who disobey legal orders of our courts. If anything, our past makes us the high priests of what is just, good and fair and all that is codified in the Constitution we drafted.

It is important to remember that the very Constitution that Sisulu and other jailbirds find to be a yoke upon black people’s shoulders is based on the ANC drafted Bill of Rights and Constitutional Principles of 1988, which are almost a mirror image of the interim Constitution that would be drafted in 1993 and the final Constitution by the elected representatives of the National Assembly in 1996, including the contested issue of protection of property rights.

ECONOMIC JUSTICE AND ECONOMIC REDRESS

Sisulu's ideas are not original and offer no new or blinding insights. They are part of the mischief of those who understood fully the rational of the path South Africa took, the risk of a measured and reformist approach, the aspirational Constitution of our high-end ideals, and the obvious risk of being accused as bourgeoisie reformist by any populist left-wing even as their seeming revolutionary options risk sinking the very people they claim to represent over the bourgeoisie that will always land on their feet.

In the ANC national executive meetings in the early 90s, leading up to 1994, there was clearly a contest of ideas between the reformers and the revolutionaries. All of them wanted change, they JUST differed in the scale and pace of change. The revolutionaries, as it happens everywhere, in their desire to upend and overturn existing systems, always find themselves with the painful reality that the consequences of their ideas affect more the poor, predominantly non-white, as the richer and more affluent white owners of the current system always land well on their feet.

So it was that at the NWC extended meeting in 1992, attended by all ANC leaders, including Nelson Mandela and Joe Slovo, a decision was taken to build the new country incrementally, building first the capacity of the state before it was stampeded with unrealistic revolutionary programmes. That strategy was called the “Flight of the Flamingos”.

On the other side of the channel, where ANC had deployed a balanced delegation of senior leaders, including communists, some who had been editors of Marxist international publications, into the drafting of the Constitution, the same revolutionary vs reformer battle of ideas was playing out. What was true was that the new South Africa was not going to mimic a particular country or view, it would be a new country, almost perfect in its ideals and principles.

In a conversation between senior ANC leaders Vusi Mavimbela and Essop Pahad, Mavimbela raised the issue with Pahad when reading the first draft of the Constitution, that the current Constitution was lacking effective tools for a government that was looking to make drastic changes in the country in favour of the oppressed and struggling majority. The aim was to have a country that would stand as a beacon of the progressive world. In a way South Africa would not be the leftist or right-wing country but would be a rational, progressive and developmental nation. This of course would not satisfy either of the extreme left or right, and most certainly would potentially result in impatience at a later stage, a fertile ground for the rise of left-wing populism.

HAS THE REFORMIST APPROACH FAILED?

It is true that in a polarised political environment like ours, everything is seen in factional terms, including arms of the state and as is clear, the Constitution. Like Jacob Zuma, who got a mysterious reincarnation about black pain only towards the end of his presidency when his back was against the wall, the tendency to stock and trade on black pain as a distraction to one's failures is an available populist tool.

Has the reformist approach, which Sisulu has been part of since the early 90s been successful?

As Sisulu would know, part of the rational of choosing the reformist approach, as stated by Thabo Mbeki stated in 1994, was that “Government could not 'embark on ambitious transformation programmes before they had the capacity properly to plan and implement these programmes’”. Effectively, the State had to be built first, resources had to be generated first and implementing capacity had to be assured before we embarked on the clear tasks of redressing the ills of our past.

When one looks at the facts, as stated by the many experts, including the Maphungubwe Institute, poverty was halved in the country between 2001 and 2011. The black middle-class has doubled to close to six million since 1993, and according to UCT professor and director of the Democracy in Africa Research Unit, Robert Mattes, “black middle-class (defined by former director of the UCT Unilever Institute of Strategic Marketing, Emeritus Professor John Simpson, as those earning between $1,550 (R21,000) and $4,800 (R67,500) per month) was driven by legislative changes regarding education, employment equity (affirmative action) and black economic empowerment”.

As one proud black middle-class young man said “I am a product of the policies; a beneficiary of attending no-fee schools; receiving a government-linked scholarship for university study and getting employed partly through affirmative action and employment equity. The polices have enabled me to become educated, be an employed citizen and have the opportunity to have a quality life.”

Black progress is not only limited to the middle-class and the poor. According to the 2015 advisory firm, New World Wealth research the country has about 17,300 millionaires (those people with net assets of US$1 million (R14.5 million) from previously disadvantaged groups, which equates to 45% of South Africa’s total millionaire population.

This number has skyrocketed, from 6,200 in 2007, as reported by the New World Wealth.

CONCLUSION

Depending on one's appetite for change, South Africa has either had great reform over the last 27 years or a revolution, without the burning and the first pumping.

It's great progress. It's a South African story. It's a black people's story.

Sisulu knows this and should rightfully take credit for her role in realising this progress. The rest is polemics which may well be her only available avenue for her next political quest.