EAST, WEST OR AFRICA
For the moment it did not matter for the patrons of Luigi’s on Ambush Alley. They had all worked hard, inherited, invested wisely and it was time to put the feet up. They chose the Umhlanga Village for its superb year round climate, excellent accommodation, restaurant and shopping facilities and village bonhomie.
Here you walk to the shops, meet friends along the way, relax with a cup of coffee and perhaps a pastry and while away your retirement in complete security and enjoy being cooled by a gentle sea breeze. For the more adventurous, a stroll along the promenade above the crashing waves always gets the adrenaline going before pre-lunch drinks. And then of course there are the lunches. The lunches are long, boozy affairs with friends reliving the highlights of their stay on the planet. Wonderful times shared by friends and associates while sipping Unbelievable. That is the substance that greases the wheels and allows coyness to creep surreptitiously out of restaurant leaving behind laughing, dancing and happy retirees.
On this day the ever elegant Ladies’ Club was meeting for lunch at Angelo’s. Although the Club alternated between several of the excellent eateries in the village, Angelo’s was a favorite. Maeve, ever the efficient Irish convener, had assembled a table of the village’s finest.
Brenda and Steph arrived arm in arm, Dawn bustled in, Ingrid took her place quietly, Leslie was her efficient self and Jackie strolled in and sat down. Ryno, wishing to join the ladies, was abruptly shown the door.
Cell phone images of grandkids, travel adventures, latest books and nude male models were shared amongst the happy throng. Lunches were nibbled, shared and tasted while the giggling, laughing debates grew louder in proportion to the Unbelievable consumed. Waiters were admonished, managers were sent scurrying and the Ladies Club began to dissect the natures, reputations and behaviour of the male inhabitants of the village.
It was a microcosm of Nuremberg all over again. Repeat offenders were dispatched to Coventry, Umdloti and in severe cases The Bluff. The central committee of the Ladies Club had maintained decorum, high standards and etiquette in the village for longer than anyone could remember.
Today’s cadaver for dissection was Max. His shocking treatment of the lovely Sue had brought outrage to the village. The facts were succinctly brought before the members and they debated all of the issues. Then they were unanimous in their verdict.
Max had to go.
So the lad was sent down to Umbogintwini for life. He now lives in simpler accommodation and leads a life forever contemplating his appalling treatment of the lovely Sue.
The Ladies Club then noisily departed the venue, arm-in-arm, for the slow stroll to Luigi’s on Ambush Alley where the de-briefing on the day’s proceedings would take place over a glass of Unbelievable or two.
And, as the band played on beyond the walls of the sleepy village, the real South Africa outside was in big trouble.
Headlines screamed ‘State Capture’. Parliamentarians contemplated impeachment of the President. The Constitutional Court had to decide almost every issue. The ANC was falling apart. The Press had to work overtime to cover all of the looting. The world was rating South Africa a risk to global peace and the team could not beat their grandmothers at rugby.
Luigi’s on Ambush Alley was an incubator against all of this mayhem.
To which ‘African way’ do you refer, President Zuma?
Paul Hoffman
11 Apr 2016
Paul Hoffman SC is the director of Accountability Now.
President Jacob Zuma has said that he wants to resolve his delicate Nkandla matter
“in an African way” rather than through a court of law. But which African way is that, exactly? And what about the rule of law that Zuma is sworn to uphold and protect?
Not a week after delivery of the judgment on Nkandla, and President Jacob Zuma’s subsequent apology, Zuma found himself at a gathering of traditional leaders in Pretoria. According to the Hogarth column in the Sunday Times, which is usually scrupulously accurate, the president remarked to the traditional leaders that: “I think we can resolve these matters in an African way, not through the law. You can’t stand in court and defend yourselves. You need a lawyer. The law goes to the other side. The judges convict you, even if you tell the truth”
Given Zuma’s high office, and its accompanying responsibilities, this deserves further scrutiny.
South Africa’s constitutional dispensation is founded on many sound and salutary values, among them that the Constitution and the rule of law are supreme. The system is designed to ensure openness, accountability and responsiveness. Leaders and the common folk are equal before the law. The state, including organs of state like the Presidency, is obliged to respect and protect equality before the law and all the other rights guaranteed to everyone in the Bill of Rights
The president himself is bound by an oath of office, as prescribed in a schedule to the Constitution, in which he swears that he will “obey, observe, uphold and maintain the Constitution and all other laws” in addition to protecting and promoting the rights of all South Africans.
As regards traditional leaders, the institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution. Significantly in the present context, the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. In short, the Constitution and the law trump custom. As was found in the litigation over Nkandla, conduct that is inconsistent with the Constitution is invalid. The obligations imposed by the Constitution and the oath of office taken by the president must be fulfilled.
Everyone, including opposition political parties, has access to the courts for the purpose of resolving disputes. There is no reference to “the African way, not through the law” in the Constitution. On the contrary, an order or decision of a court binds all people to whom and all organs of state to which it applies. Our courts are obliged to apply the law, impartially and without fear, favour or prejudice. Without this system there would be anarchy and self-help.
Is there ‘an African way’?
Does he not remember that his own ancestors, according to some historians, fought on the side of the British to put a stop to the way politics worked in pre-colonial times and were rewarded for their efforts with the right to continue to live at the Nkandla settlement?
The president himself is bound by an oath of office, as prescribed in a schedule to the Constitution, in which he swears that he will “obey, observe, uphold and maintain the Constitution and all other laws” in addition to protecting and promoting the rights of all South Africans.
As regards traditional leaders, the institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution. Significantly in the present context, the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. In short, the Constitution and the law trump custom. As was found in the litigation over Nkandla, conduct that is inconsistent with the Constitution is invalid. The obligations imposed by the Constitution and the oath of office taken by the president must be fulfilled.
Everyone, including opposition political parties, has access to the courts for the purpose of resolving disputes. There is no reference to “the African way, not through the law” in the Constitution. On the contrary, an order or decision of a court binds all people to whom and all organs of state to which it applies. Our courts are obliged to apply the law, impartially and without fear, favour or prejudice. Without this system there would be anarchy and self-help.
Perhaps the president was thinking not in historical terms but with greater modernity. This too poses problems. An examination of the ‘African way’ in our region of the continent reveals an absolute monarchy in Swaziland, a constitutional monarchy in Lesotho, and a virtual dictatorship run by Robert Mugabe and his henchmen in Zimbabwe. Namibia and Botswana are constitutional states, like South Africa.
Botswana is probably the most successful state in the region. Surely it could not be hat the president prefers their forms of constitutionalism to ours, given their similarity. The only other neighboring state is beleaguered Mozambique. When it eventually won independence from its colonial power, Portugal, a government gazette was issued in Maputo to the effect that “the legal system is hereby abolished”. This does not seem to have helped the citizenry much.
The consequences of the President’s longing for ‘the African Way’
From the wide variety inherent in these examples drawn from our neighboring states, it is plain that “the African way, not through law” is a perilous, varied path, and not for those who prize the hard won freedom under law of the new South Africa.
The sad truth is that the struggle of the people for freedom has, under the leadership of the president, morphed into a struggle for power between those in the governing alliance who wish to serve the interests of the people and those who do not give this priority due to their own greed and insecurity. The president’s long-standing (but now abandoned) preparedness to benefit unduly from the non-security enhancement of Nkandla, whether intentionally so or not, does not put him in the category of politicians who see service to the people as their primary objective. His longing for the “African way” demonstrates a deliberate and calculated flouting of his oath of office (again) and proves him to be yet another constitutional and legal illiterate in the top structures of the ANC.
Those who are prepared to forgive the president his trespasses in respect of Nkandla, and they are many, should be aware that his longing for “the African way” is a treacherous and a disgraceful violation of his oath of office. Those who turned a blind eye to the irregular expenditure of public money at Nkandla ought to consider the implications of wishing for a change, which abandons the rule of law, which the president is sworn to uphold, in order to substitute some nebulous dispute resolution misadvising the president, that he is allowed to make silly utterances of the kind he made to the traditional leaders at this dangerous juncture in the history of constitutional democracy in this country?
Wishful thinking of the kind the president indulges in can only hasten the ratings downgrade of our economy to junk status, with dreadful consequences for the poor, especially those who depend on social grants to survive. The ability of the state to keep paying those grants (and parliamentarians’ pensions) is placed in jeopardy if the downgrades materialize. The irresponsibility of the president both in relation to Nkandla and in relation to his longing for a lawless “African way” is intolerable. He must go before he does any more damage to our nascent and fragile democratic order.
The good ANC leaders, and they are many, would do well to recall the plea of Lady Macbeth in the Shakespearian tragedy:
“I pray you, speak not.
He grows worse and worse.
Question enrages him.
At once, good night.
Stand not upon the order of your going,
But go at once.”
Our mad President
President Jacob Zuma complained last week that we politicise ratings in SA. "In other countries, this is not politicised," he added. The besieged 74-year-old pointed to recent downgrades in France and the UK as well as other emerging markets of Russia, Brazil and China. "But here, we make a big issue of it," he said.
Encapsulated there, in just a few sentences, is why this magazine warned on our cover in February 2008 that SA should be afraid of a Zuma presidency — supplementing this sentiment last year by saying we actually should have said ‘be very afraid’
It’s not even Zuma’s cavalier economic illiteracy that’s the problem: it’s his casual ability to distort fact, while blithely choosing to discount the day-to-day impact of his kamikaze-presidency on people he swore an oath to protect.
His response on the ratings evoked that of the iconic Alfred E Neuman, the grinning country bumpkin mascot for Mad magazine whose motto for every scenario was: "What, me worry?"
Paramount, said Fitch, was "political risks to standards of governance and policy-making have increased and will remain high at least until the ANC electoral conference in December 2017".
Fitch said SA’s "indicators of economic development are weaker" than similar-rated countries. In other words, we’re hanging onto investment grade by the skin of our teeth.
Moody’s also left SA’s rating unchanged (at two notches above investment grade, in their case), but published a report last week that made no bones about just how precarious this rating is, thanks to the "noise" and "political uncertainty".
Zuma might argue about how his enemies are "politicising" the ratings, but the fact is, the ratings agencies themselves point to the deep economic risks of his political actions. If he doesn’t like it, well, then he can start his own ratings agency like the mooted Brics ratings agency. But any agency that acts as a mouthpiece of the politicians would be ignored by any serious investor. To best answer Zuma’s question of why a downgrade should be a "big issue", look to Brazil, which was downgraded to "junk" status this year. This year, Brazil’s economy is set to shrink by 3.4% — in part, a self-fulfilling prophesy as foreign investors are often obliged to pull cash from countries with sub investment-grade ratings. The equivalent of its prime interest rate is now 14%; inflation hit 10.6% earlier this year; and unemployment has doubled within three years to 11.8%.
A chilling report last week by consultancy the Paternoster Group is titled: "What if SA does a Brazil?" Its worst-case scenario suggested that a steep slowdown in growth would lead to sharp hikes in taxes, rocketing unemployment, rising poverty, and a harsh security crackdown as Zuma responds to rising "slow-burn" pressure.
A country can, of course, survive a downgrade to junk, though much would depend on the rand. But what is clear is that if finance minister Pravin Gordhan were to be fired, it could get really nasty.
Zuma himself, having survived a heated ANC discussion on his future, isn’t going anywhere. Clearly he is eager to avoid the fate of Brazil’s now-impeached president, Dilma Rousseff — whose economic legacy is horrendous.
So take a look at Brazil, Mr President. And see why ratings can be such a big deal.