In a chapter of his autobiography, Blame Me On History, Bloke Modisane explains black life to his white friends. They can’t understand why he doesn’t use the law to fight obvious injustices.
He tells them it is the law that demands he carry a dompas, it is the law that has led to the demolition of his beloved Sophiatown, it is the law that commands who he may meet and mix with, and it is the law that rules he should earn less than his white colleagues.
In the end it is the law that is the cause of his greatest frustration.
Now, almost 60 years on, it is the law that has come once more to haunt and frustrate South Africans — of all colours this time. These days it seems that, as long as someone acts within the law, it does not matter what anyone else thinks or feels.
Beleaguered police National Commissioner Jackie Selebi is facing an investigation into his ”fitness” to hold his position, but he will not hear a word about ”stepping aside” during the probe.
His spokesperson, Sally De Beer, dismissed the Freedom Front Plus’s contention that the law requires of Minister of Safety and Security Charles Nqakula that he suspend Selebi until there is clarity about his fitness to hold office.
But it turns out that the FF+ invoked the wrong law — internal police regulations — to make its point. ”Matters pertaining to the national commissioner, in this context, are regulated by the South African Police Service Act,” said De Beer.
In another incident, Essop Pahad would not allow President Thabo Mbeki to be questioned about Selebi and the warrant for his arrest because the reporter was ”out of order” in asking the question. In terms of some regulation or other, she was not supposed even to have been in the same room as other members of the media, who were content with taking smiling pictures of the powers that be. Apparently she should have abided by a law governing questions about matters that affect the rule of law.
The PSL, too, is acting within the law by deciding how to deal with incentives for executives who negotiate multimillion-rand deals for professional football. Forget for a minute how Trevor Manuel made a fool of himself when he announced that Absa planned to or had deposited R50-million in the bank accounts of soccer officials when no such thing had happened or been planned.
At issue is that the league can go ahead and make these decisions no matter what debates rage outside its office. They can, and they do, because it is the law.
The Judicial Service Commission recently made a ruling on troubled Judge John Hlophe. In keeping with the letter of the law it found against the case for impeachment of the judge. The commission looked at the law and, being composed of men and women who know the law better than the average citizen, it is expected that fellow South Africans accept its findings regardless of how distasteful they might be to our palates.
Society has to respect its decisions. Strictly speaking, it is not against the law to second-guess judges — especially publicly, as some senior advocates have done — but we are often warned that criticism of judges might lead to lawlessness.
Just this week the ANC’s Vytjie Mentor was up in arms because the opposition Democratic Alliance told the media it intended to set in motion enactment of legislation to expunge the criminal records of individuals convicted in terms of silly apartheid laws, such as having sex with a person of the ”wrong” race.
During the apartheid years many South Africans were convicted of what the DA correctly says were crimes that would not be offences in today’s South Africa and which would not be considered crimes in any normal society. These include ”crimes” committed in terms of the Immorality Act, which made it an offence to have sexual relations across the colour bar.
Mentor said she would not support the proposed Bill because its sponsors had not followed procedure. If she had to choose between being a stickler for the rules and following a tradition of fighting racist discrimination, it seems she would follow the law.
For her the DA, by not following the law, committed an unforgivable act; and even more irritating was the fact that the party informed the media about its plans before it did the Speaker of Parliament.
Until the DA follows the law Mentor can’t be bothered, it seems, about the fact that some of her compatriots are refused visas to travel abroad because they once ”broke the law” regulating who they could fall in love with.
I cannot think of any sane individual who is against the rule of law. But it is this same law that keeps generating arbitrary decisions affecting the lives of people, such as redrawing provincial boundaries or allowing public representatives to switch allegiances with impunity.
Thirteen years on South Africa is on the road to a fully-fledged technocracy. We are under the rule of political or technical decisions. Old-fashioned values, such as questioning whether legal judgements are agreeable to those they are likely to affect, have no place. As in Bloke Modisane’s day, it is the law that matters.