The headlines were grabbed by bodyguards with assault rifles, by some of the ANC’s most credible leaders coming to the defence of a man who wants them voted out of office and by Winnie Madikizela-Mandela’s return to frontline politics, but amid the sound and fury of the Julius Malema hate-speech trial one thing was clear: South Africa asks an awful lot of its courts.
In the Grootboom and Nevirapine cases we asked them to give effect to the basic socioeconomic rights set out in the Constitution. In the many trials of Jacob Zuma we asked them to save us from a succession battle that was engulfing our state institutions.
And in Hugh Glenister’s bid to overturn the dissolution of the Scorpions we asked them to reassert the rule of law amid the wreckage caused by that battle. In short, where our single-party-dominant political system tips away from democracy we rely on the courts to restore the constitutional balance.
The pressure that comes from displacing the toughest political questions to the legal domain is intense. Indeed it provoked a near constitutional crisis at the height of the tension between Thabo Mbeki and Jacob Zuma.
The decision of the Freedom Front Plus and right-wing agriculture unions to have a court determine that singing Dubul’ ibhunu amounts to hate speech repeats this pattern.
We have long argued that Julius Malema ought to show enough judgment not to sing the song and that if he can’t be relied upon to restrain himself the ANC leadership should do so, as it did last year. But to ban the song is wrong. We don’t think it rises to the very high level that the Constitution requires before freedom of speech can be interfered with. That is, it should not be a rallying cry for a mainstream political party in 2011, but it does not amount to hate speech that is likely to incite imminent violence.
The court bid is misguided for reasons more basic than that, however. The FF+ and white farmers have every right to joint the hue and cry over crime and to express racial anxieties. In seeking a court ban, however, they have turned an obscure chant into a totem of liberation history and made Malema, of all people, into a custodian of struggle culture.
The trial is really about the incomplete — and in some ways stalled project of national reconciliation, reduced to a clash of white Afrikaans-speaking fear and demagogic triumphalism. The evidence of Derek Hanekom and Gwede Mantashe helped to rescue the court process from that crudeness, but their testimony really revealed how inadequate the courtroom is as a venue for so complex a task.
Whatever the outcome, there are two risks. First, that any decision the court makes will be seen by a section of the community as undermining the legitimacy of the legal process which is crucial to the democratic project and, second, that both struggle history and the hard, messy task of figuring out how we can best live together will be reduced to a fight about a song.
Judge Colin Lamont has a difficult, but clearly delimited job. We hope he refuses to ban the song and leaves the larger task to all South Africans.
Measure of performance
President Jacob Zuma is looking keen to fire Cabinet embarrassment-in-chief Sicelo Shiceka, although he might wait until Parliament’s ethics committee and the public protector, Thuli Madonsela, provide him with cover.
We would argue, of course, that he has more than adequate grounds already to demand Shiceka’s resignation. The evidence that Zuma holds is irrefutable and in contempt of both the spirit and letter of the law governing public money.
Never mind the media, the staff at Shiceka’s department of cooperative governance and traditional affairs have been complaining about lavish spending for at least a year — to no avail. Meanwhile, a portfolio that is crucial to both basic service delivery and the political legitimacy of the governing party has drifted dangerously. Violence continues to flare in small towns and rural areas over corruption, incompetence and indolence, and a report on the state of cities released by the department this week paints a bleak picture of progress in the major metros. Some responsibility for the death of Andries Tatane at the hands of police in Ficksburg last week must surely also rest with Shiceka and his department, which is responsible for local government performance.
Of course, South African Cabinet ministers are almost never fired for incompetence or ethical lapses — Zuma’s October reshuffle had more to do with politics than probity. So, if he does get rid of the minister of expensive hotel suites, it will set a welcome and praiseworthy precedent. But we should be clear, Shiceka is not exactly a hard target. He is gravely ill and it is far from clear that he will ever be able to return to work in such a demanding job. He also has no real constituency in the ANC.
So if Zuma really wants to demonstrate his performance monitoring bona fides he should rid himself of his turbulent Police Commissioner, Bheki Cele, the public works minister, Gwen Mahlangu-Nkabinde, who is also up to her neck in a scandal over the procurement of buildings, and the hapless public service and administration minister, Richard Baloyi.