Judge: SA has to move on from apartheid

South Africa has to move on from its apartheid history and forge ahead with democracy despite the pain it often causes, Johannesburg High Court Judge Mohamed Jajbhay said on Wednesday.

He was addressing human rights activists opposing the Absa takeover bid by Barclays Bank.

“We live in a constitutional state. The consequences ... are that we do honour those who fight for justice and freedom in our land,” Jajbhay told former Robben Island prisoner Professor Dennis Brutus and Jubilee South Africa, who have brought an urgent application to stop the takeover.

“We also believe that we must lay the foundation for a democratic society in which the right of every citizen is protected.
We also believe in the concept of ubuntu.

“We have to go forward. We need to go forward. We can never undermine the sacrifices you have made and millions of South Africans have made in the creation of our democracy.

“As a young democracy, we suffer from time to time the pangs of birth pain, but that must not stop us from forging ahead,” he told them.

Asking them to understand that he does not “underplay or underestimate” their position, he pointed out that in expressing a judgement, he has to express a balanced view.

“That is what the Constitution enjoins me to do,” Jajbhay said.

He will decide on Thursday whether Jubilee and Brutus have a right to intervene to stop the deal and, if so, make a finding on their arguments.

Absa contends that they have no legal grounds to intervene.

Peter Solomon, SC, for Absa, argued that they have not demonstrated that they would suffer prejudice if the deal goes ahead, nor have they set out the nature of that prejudice should the matter not be resolved this week.

A variety of other parties would be significantly prejudiced if the matter is further delayed, he contended.

Members who have already tendered their shares for sale under the scheme would be unable to trade them in until the matter is finalised and a number of related transactions by major shareholders would be delayed.

Disruption of proper trading in Absa shares would have a profound effect on their listed price and its thousands of staff would have to wait for certainty about their jobs.

There might also be a negative impact on the country’s currency and exchange rate. Delaying a deal that involves R33-billion—part of which has to be brought into the country—has a “potentially profound effect on the currency and the stability of the currency”, Solomon told the court.

The Johannesburg High Court has only to sanction the deal for it to proceed, should it find there are no grounds for the urgent intervention.

“The scheme should not be sanctioned. If it is, justice will have failed the majority in this country,” Jubilee representative Makoma Lekalakala told the court.

Brutus submitted that financial impact should not be of paramount interest in determining the right to intervene, arguing that the question of human rights should instead be the prime consideration.

Denying a suggestion that their application is “some sort of delaying tactic”, Jubilee and Brutus maintained they approached the court so late into the matter as a last resort, following a public pressure campaign and failed attempts to set up a meeting with Barclays to outline their demands for its return to South Africa.

They submitted that their intervention, although not economically grounded, is in the human rights interests of all South Africans.

They alleged that Barclays not only aided and abetted the apartheid regime in grossly violating human rights before it left the country in the 1980s, but was involved more recently in the controversial arms deal.

They have submitted that before being allowed back into the country, Barclays should apologise to South Africans and pay reparations to the victims of apartheid.

Jajbhay told them the Constitution enjoins South Africans to improve the quality of life of all citizens and free the potential of all.

It would not be unreasonable for them to consider talking to a division of Barclays to establish a fund to improve the lot of the thousands of disadvantaged South African children who want to go to school.

Jajbhay on Wednesday dismissed a third application opposing sanction, brought by engineer Chris Addington, appearing as a concerned citizen, who argued that the case was being steam-rollered through the courts and would be “rubber-stamped”.

He ruled that Addington had failed to comply with the rules of the court in neglecting to make a written submission.—Sapa

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