There are grounds for hope that the story with which we are leading this week’s edition of the Mail & Guardian will represent a watershed in relations between the press and the judiciary – showing, as it does, the appreciation of those two institutions as to the primacy of justice, as opposed to merely the law, in the new South Africa.
The case of Martin Welz and Freddie Yalezo v H Mohamed & Associates is an unusual one – sufficiently so for the original trial judge to have referred it to the judge president of the Western Cape who directed it be heard by a Bench of two, because of the important public policy issues at stake.
The application was for an “Anton Pillar order”, a legal concept introduced here comparatively recently from English law which essentially allows the basic principle of justice – that all parties must be heard before judgment is given – to be overruled in circumstances in which a higher justice is served.
First used in South Africa to allow a court to order a raid on a police station for torture instruments without the police being informed, the application was brought in Welz v Mohamed & Associates in an attempt to uncover fraud on the road accident fund.
The second, unusual leg of the application was that Welz based his application on the evidence of an anonymous “source” – a “whistle blower” in the finest traditions of that species. The media’s claim that it has an inherent right to protect the identity of informants has long been a bugbear of the authorities. The use of such a source as the foundation to an application for an Anton Pillar order was therefore challenging to say the least.
The challenger was, however, a man who has become something of an institution. It is almost trite to describe Welz as the “leading investigative reporter in South Africa”; his courage, stubbornness, reforming zeal and quick intelligence – not to mention his legal background – has already raised him to near- legendary status in the industry.
The merits of the case still have to be submitted to final judgment, but on the surface it is particularly ripe for his talents. The case is outlined in detail in our news story and it suffices to say here that it offers evidence of a particularly nauseating kind of fraud, perpetrated over a 15-year period and designed to rip off a public purse to the disadvantage of the most vulnerable members of our society, such as a nine-year-old, brain-damaged girl.
Welz also offers evidence suggesting that there is what amounts to a wider, if looser, conspiracy among those who would profit from personal-injury cases. Minister of Transport Mac Maharaj is one of our most capable ministers. Yet one of the setbacks he suffered in his period of office was the frustration of his attempts to reform the road accident fund as a result of pressure on the government by a coalition of interests.
He still has the time to appoint a commission of inquiry into the fund and allied matters and we would strongly suggest that the case of Welz v Mohamed & Associates be seized by him as an opportunity to do so.
Believing bullshit
Inkatha Freedom Party leader Mangosuthu Buthelezi suggested this week that suspended foreign affairs official Robert MacBride, not content with the trouble he is already in, might now have joined a conspiracy to assassinate IFP leaders in KwaZulu-Natal.
No sooner had we digested this than word reached the M&G that a report was circulating within our security services alleging a conspiracy to foment disorder and assassinate political leaders in the coming elections. We are told the conspirators include Winnie Madikizela-Mandela, People against Gangsterism and Drugs and Vito Palazzolo. Among the few not enlisted are Mickey Mouse and Chicko the Mexican Chihuahua.
We understand Buthelezi’s concerns given recent history in KwaZulu-Natal. Likewise, we accept our security services must investigate such allegations. But we should bear in mind that several hundred more conspiracies are imagined than ever actually exist.
The reason is simply supply and demand. There is a conspiracy food chain. First come the politicians, for whom there is nothing like a good conspiracy to create a sense of self- importance. Then come the thousands of security service personnel employed to track down and expose conspiracies: if they don’t find any (because none exists) or can’t conjure up a few, their livelihoods are threatened.
Then come rival intelligence agencies: they want our security services to chase their own tails over imagined conspiracies. Then come former and aspirant spooks loitering in the shadows: if they come up with a good conspiracy, they can hope to be paid a retainer for as long as an investigation lasts. And then come the rest of us: we ooh and aah in wonder at the merry dance spies treat themselves to.
These latest conspiracy theories are not the first of their kind, and they will not be the last. We have emerged from a struggle in which both the African National Congress and the former apartheid government employed the politics of conspiracy. But there is a need for us now to leave behind what has become almost a dependence on conspiracy theories. We need to grow up.
Two moves could help this process. The first is that anyone making serious allegations to our security services should receive no money upfront and be subjected to a polygraph, or lie detector, test. Second, the lack of professionalism in our security services – admitted by their members – must be urgently corrected. We don’t need bullshitters. We need bullshit detectors.