N Barney Pityana[1] GCOB 

Some years ago when I used to be a member of the African Commission on Human and Peoples’ Rights and had a responsibility for the rights of indigenous peoples in Africa I was told of an experience by one of the activists for land restitution by the indigenous, first nations in Kenya. My friend had been a land rights activist in his community. They took the government to court to claim back their ancestral lands but the Supreme Court of Kenya ruled against them. This was a devastating blow as they then had to pay the costs of the state and of the farmers who occupied their lands, but above all, it shattered the confidence of the community, and destroyed any hope that they might have had of getting justice in the courts of their land.

Early one morning shortly after the court’s judgment, my friend was visited by police at his rural home. He was instructed to get into the car with the police without any explanation. He knew that this only meant that he was under arrest. Hurriedly, he dressed for an indefinite period in jail. The police convoy drove and drove until the gates opened and they entered not prison as he had expected but a palatial home in the middle of the forests. He was then ushered into the breakfast room, and to his shock, into the presence of Daniel arap Moi, the President. A rather affable Moi then invited him to join him for breakfast having confirmed that he was indeed the native who was causing all the trouble. He asked him about the case, and about the costs, and who would now pay. Having made all these fatherly enquiries, he then said to him: “Do you and your people not realize that I appoint all the judges. They cannot make any decisions against my instructions. My advice is that when you and your people have a problem, come to me. Let us talk and we find a solution to your problem. If you go to the judges, they can only judge according to what I tell them.”

Now, that was many years ago shortly before the upset of the elections that brought the Orange Coalition into power. Moi was riding high. His power was unassailable. He had ruled Kenya for over 20 years. Since the last post-election carnage, a new Constitution has now been adopted in Kenya, and two of our country’s most prominent jurists retired Justices of the Constitutional Court Johann Kriegler and Albie Sachs have played no small part in reconstituting the judiciary, and many of the Moi judges have been relieved of their judicial appointments.

A country finds itself in this situation stealthily but inexorably when, as Prof John Dugard said so many years ago in his inaugural lecture at Wits University Law School (24 March 1971):

…the largely quiescent attitude of the legal profession towards statutes invading individual liberty, the mechanical search of the judiciary for the legislature’s intention in these statutes – with firm adherence to the distinction between law and legal values; the failure of legal education to relate law to the social sciences; and the general lack of interest among lawyers in the nature and role of law in modern South African society…” (1971 SALJ 186; “The Judicial Process, Positivism and Civil Liberty”).

Granted that was in 1971 at the height of the reign of apartheid when the shroud of positivist legal philosophy was used by the judiciary as a smokescreen to ensure the maintenance of the system, but give it legal validity and the respectability of law. Those were the days of the fiction of the supremacy of parliament, even to the point of finding a mechanism to pack parliament in order to remove Coloured people from the Voters’ Roll. Such a state as we all know ended up being accountable only to itself, and drifted towards authoritarianism and to its eventual demise. But with it came the total discrediting of law and the processes of law.

Why am I telling these two stories? It is simply to warn us never to take our democracy for granted, and to outsource to the power elites of our day the responsibility for a lived daily experience of democracy and liberty. It is to say that any system of law is capable of being corrupted through citizens ceasing to be vigilant and holding the state into account. It happens because of the political and moral choices we make and our failure to do so in the face of obvious evidence and we suspend our moral judgments at our own peril.

The challenge of law and governance in our country is to give practical meaning to those ringing words of our Constitution:

(to) lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;

(and to…)

Improve the quality of life of all citizens and free the potential of each person…

Found in the Preamble. The Constitution is the Great Promise, in my view. The promise is stated in indelible words in the Founding Provisions, that South Africa is a state founded on the values of “human dignity, the achievement of equality and the advancement of human rights and freedoms…” The problem is that those promises to some of our people are no longer worth the paper they are written on. Instead, inequality continues to balloon almost out of any possibility of remedial action. When we are often told that the Constitution was a mere compromise document, we have another tactic of delegitimisation. It suggests that what was negotiated in honour and integrity can just as easily be thrown into the dustbin of history. I think not. I accept that the Constitution is a living document and must continuously breath the life of the people in their existential environment. It also means that the Constitution is a solemn pact with the people, and all of us must commit to abide by it.

The state of law in our country is a matter deserving of urgent reflection. No doubt to me and many others such thoughts are spurred by the crises in the manner of policing, with the murder of Andries Tatane not very far from here at the hands of law-enforcement officers, to the horror of the death squad uncovered in Cato Manor in KZN, and more horrifyingly in the machine-gun fire directed at protesting miners at Marikana on 16 August.

The state of law and order is never far from and unrelated to the social conditions in which people live. The moral character of society somehow expresses and responds to the conditions of life people experience daily in their lives. It is also about the extent of the confidence have in their own legal system to address persistent problems, and give tangible effect to what is believed in common, and understand and share the belief in the equal treatment of people before the law. This, I suggest, is much more than people clamouring for delivery of basic services, important as that might be. It is, in my view a fundamental disjuncture from what is believed and a lack of confidence in the system that defines individual and societal identity. In other words, it is that belief once articulated by Leon Fuller that “internal adherence to the internal morality of law would, in practice, significantly inhibit a government’s ability to engage in grossly immoral behavior…” (Bradney: Two Links of Law and Morality, ETHICS Vol 103 January 1993 No 2, 283). What is under question in our country is whether people believe that the “internal morality of law” any longer has currency. I wish to suggest that that “internal morality” of law is expressed in our Constitution, but its lifeblood is in the practice of law and governance.

One must never be unmindful of the fact that law and its legitimate practice is affected by the economic conditions the people live under. The state of our economy, I suggest, is not being openly declared to the citizens, and that the serial downgrades by the rating agencies are matters that ordinary citizens will feel in their stomachs: unemployment, food insecurity, homelessness and delibilitating poverty. The immorality is compounded by the class and political elites living it up, often at state expense- leading to the collapse of governance in provinces like Limpopo and Eastern Cape, in general misgovernance and corruption and a collapsing education and health system for the ordinary citizens. It means that the courts are embroiled in this in the labour disputes, excessive levels of political crimes, in the extent of all forms of crime not least sexual crimes, in land occupations, labour unrest and the effect that does on productivity and economic performance – and eventually in bulging court rolls that are nearly unmanageable, and a prison population way in excess of standards in economies our size.

One must not be unmindful of the flickers of light which sometimes shines through with much promise. Among these is, perhaps, the National Development Plan, and what it promises for  a better synchronised functioning of government. Except, of course, this promise has to navigate in an environment of incoherent policy framework, and of poor leadership, and burgeoning corruption in society that is threatening to become a way of life.

Daniel Bradney in the essay referred to above refers to the interlocking system of responsibilities between the governed and the governors. These interlocking responsibilities are built on trust, trust about the capacity of the government to discharge its responsibilities in the interests not just of those who agree with it, voted for it, or belong to the same party or inner clique – but to society as a whole. It is not just to rule in favour of those who abide by your diktat. That is what the apartheid system did. When it did it lacked coherence and lost legitimacy. It means that government must treat citizens with some respect, and understand that citizens are agents for the betterment and well-being of their own conditions. They are, says Fuller, “self-determining agents…”  Such a free agent is a moral agent.

By the way, I am making this point in this fashion because I am afraid that too much of the mind-set and language of state these days suggests that citizens are unthinking beings who must just be prodded along by forms of coercion into conformity. The striking miners are nothing more than criminals and cannibals, and that the state must take stern action to uphold the law; the truck drivers are greedy in their demand for a fair and living wage, and workers are unreasonable by not abiding with agreements. Believe me, it is possible for legitimate instruments of state to be corrupted because they get to serve partial political and social interests. I can think, for example of the JSC, and I ask what legitimate cause can be advanced for failing to appoint eminent lawyers like Advocates Jeremy Gauntlet SC and Geoff Budlender SC repeatedly to the bench? It means, in my view, that the JSC has allowed itself to play a political role that is devoid of morality. It is too easy to label worthy citizens as anti-transformation in order to de-legitimise them. It is also just as easy to label the courts as “anti-transformation” or reactionary, or counter-revolutionary merely to justify and undermine their legitimacy in the eyes of the people. By so doing law itself and the proper regard the population must have for the law is threatened.

This is the logic of dehumanization and therefore of legitimization of state action without accountability. In many ways our political system lands itself to a kind of feudal treatment just like Daniel arap Moi did. The President can do as he pleases, because the “king can do no wrong…”; we have the power to do what our party has decided because we are the elected majority. Patronage can be dispensed in disregard of the competences and moral capacities of the people concerned as long as they are considered loyal cadres of the Movement. It is quite unfortunate that our Courts, especially the SCA and the Constitutional Courts, have had to judge on a whole range of matters that, with legal acumen and sensitivity to the Constitution, might never and ought never to have gone to the Courts.

By the way, I understand that it is unprecedented in our baby democracy that so many rulings and decisions of the President have been overturned by the courts. They range from the embarrassing climbdown in the appointment of the Chief Justice, to the purported recent appointment of the National Director of Public Prosecutions. All these suggest a disdain for the processes of law in the highest office in the land. South Africans should be worried about the level and extent of incapacity at executive level.

Franz Fanon refers in his THE WRETCHED OF THE EARTH refers to that class of the new rulers and bureaucrats buoyed by the legitimation of the liberation struggle, and who soon exercise classic displacement syndrome. That means that they get to take over the instruments of power in a manner of entitlement and unquestionability. They soon find language to basically maintain the features of the power elite in tact, except that they now no longer rule for the benefit of the oppressors but in the interests of their power elites. It is thus not surprising that 18 years after the end of apartheid the country has not been able to master enough intelligence and innovation and authority to create an education system we can be proud of. Even the idea of a national health system is long overdue and would add greatly to the initial efforts of Dr Nkosazana Dlamini Zuma in creating a health system based on primary health care and the duty of all citizens to take responsibility for their own health.

There is nothing untoward, and should in fact be welcomed and engaged in that the ANC Youth League is challenging our fidelity to an economic system designed merely to enrich the elites and land ownership patterns from the apartheid past virtually left in tact. There is nothing outrageous in demanding that the mineral resources of our country be redistributed to underline a shared a just distribution of wealth. It was only proper that the country stands up as one against the various versions of the State Security Bills whose passage through Parliament has been much delayed as a result. Indeed, why is it that we cannot find it in ourselves to construct once again a legitimate labour relations systems given that some of the presumptions on which our current system was based are no longer supported by sufficient numbers of those who are the social partners. I am afraid, our problem is simply that we are governed by complacency instead of by innovation and continuous reference back to the people who are the sources and legitimisers of power.

At a time when social cohesion is a canon of our political dispensation it is untenable that this democratic system should be subjected to various forms of undemocratic hegemonies as those of traditional leaders. It cannot be that we would wish to entrench that system of inherent injustice in a mockery of justice in the so-called traditional courts system, and give it a veneer of law under a democratic constitution. The net result is that the more things change, the more they stay the same. We now have bantustanisation which the apartheid system could not sustain for illegitimacy, now being legitimized by us under our democratic Constitution. No wonder that social cohesion will forever be a pipedream, and tribalism the currency of self-identification and choice relationships.

That idea that citizens are unthinking, or are endowed with defective cognitive abilities is a theme that runs through much of government messaging these days. The Minister of Social Development states that the poor must be made to work for their social grants so that they would express gratitude to the government; the youth, according to the President, must talk to the elders first before they express themselves; and the Minister of Public Works tells us that for the state to spend over R200m on upgrades at the President’s private homestead is the appropriate responsibility of government is to treat the intelligence of citizens with disdain, or that the President declines to submit the record of conversations on the basis of which the NDPP made the decision to withdraw the charges against him, and the list goes on ….

In summary then, the fundamental premise of the justifiability of law to the people is that government, officials and all arms of the law must be seen to be practicing just rule, even if that brings out results contrary to what they believe. If that is the case, then police would not just be gangsters and thugs enforcing the law with lethal force, but those who police with consent of the people, and negotiate their respective roles for mutual benefit. Power that is exercised without any pretensions of acting justly is tyranny. Bradney ends his essay with a comment that “law has a halo of morality”. What that suggests to me is that law has that indefinable, almost intangible value. You know it is there when see it or experience it, and you know when it is not there. It is that respect for the law and its moral efficacy without which society cannot hold.

May I end with a note from a poem by Margaret Walker, from her anthology, “For My People”

Let a new earth arise. Let another world

be born. Let a bloody peace be written

in the sky. Let a second generation full

of courage issue forth, let a people

loving freedom come to growth, let a beauty

full of healing and a strength of final

clenching be the pulsing in our spirits

and our blood. Let the martial songs

be written, let the dirges disappear. Let

a race of men rise and take control.


That has to be the hope for South Africa.


 Free State Law Society Annual General Meeting

Golden Gate, Free State

25 October 2012.

[1] Rector: College of the Transfiguration Grahamstown; Emeritus Professor in Law, University of South Africa, and Honorary Visiting Professor, Rhodes University Allan Gray Centre for Ethics in Leadership.

Last Modified: Tue, 11 Mar 2014 16:15:45 SAST