Rassie Erasmus.(Photo By Ramsey Cardy/Sportsfile via Getty Images)
DStv is currently broadcasting the Chasing the Sun 2 documentary, a behind-the-scenes look into the South African Springbok rugby team’s epic defence of their Rugby World Cup crown in France last year.
One of the pieces of footage that already stands out for me is where then director and current coach of the rugby team, Johan “Rassie” Erasmus, apologises to the team for his public battle with the referees and administrators during the 2021 British and Irish Lions tour of South Africa.
After the loss of the first test match against the British Lions, the Springbok players and management were incensed by the referee’s interpretation of the laws and the disrespect he showed towards South African captain Siya Kolisi.
A video featuring Rassie highlighting the referee’s mistakes was leaked to the public. World Rugby took a dim view of the video and blamed Rassie for it and he was banned for a year from all rugby.
It seemed that Rassie and the team learned a lot from that experience. It was like they recognised that fighting the referee and World Rugby was a battle that you could not win. Therefore the old adage, “If you can’t beat them, join them!” and in the 2023 Rugby World Cup, South Africa were one of the best-behaved teams.
They did not criticise a referee either before, during or after a match. Even when calls went against them, the captain and players exhibited no animosity towards the officials. They were the paragons of good schoolboys on the pitch.
In crucial encounters in the World Cup, the least of which the final against New Zealand, a player from the opposition was sent off for a tackle that seemed dangerous, in contrast with the Springboks, who may have been found guilty of a somewhat dangerous tackle, but it did not break the threshold for a South African player to be sent off.
Is this how we are supposed to manage those who have the authority to stand in judgment of us?
Well, Rassie and the boys won the World Cup, by never uttering a single criticism of the referee’s decisions, even where it seemed unfair and wrong towards them. I wonder if Rassie and the boys would be as magnanimous if they were on the receiving end of obviously wrong decisions, like the Springbok team in the 2011 World Cup?
South Africa lost to Australia in the quarter-finals; referee Bryce Lawrence made so many errors that it resulted in him being dropped from the elite panel of referees and he retired in 2012.
Are we expected to do the same with the judiciary in our country? Just play to their collective egos, never criticise them, just in case one day we may have to stand in front of them and be judged? Such that we bite our lips and still our voices, even when the judiciary makes decisions that seem palpably unfair and unjust.
I do not think our judiciary is above reproach. I do think there is nothing wrong with pressurising them as we do with other parts of the state, such as the executive government and the legislatures. Because left to themselves, our courts, like many other institutions in society, gravitate towards where they believe the power lies. In essence, our courts tend to be populist elitists.
I am a member of the Kensington Community Association (KCA) and it recently approached the courts to reverse a decision made by a private company Egoli Gas to suspend natural gas supply to the area. The court did not agree with the KCA, and that could be debated, but more worryingly, the court ruled that the KCA must be burdened with the costs of the legal action, for both plaintiff and respondent.
If the constitutional court agrees with the high court ruling, then it means local civic organisations cannot approach the court for legal clarity if they disagree with the practices of businesses in their area — because that would mean that if they lose they would bear the financial costs. And no one can question the constitutional court if it rules in this way.
I am unsure whether the court would have taken the same view if the KCA was seeking relief from the City of Johannesburg. The court has generally played to the peanut gallery, because they know that it’s far easier to blame the government (and the ruling party) than disagree with big business. For instance, recently the courts ruled that the minister of police, Bheki Cele, must be held vicariously liable for a cash heist and pay Lloyds of London R93 million — they were the underwriters to Nedbank which was the host bank.
On-duty police officers, and therefore in uniform, and using official police vehicles, working with criminals robbed a SBV vault in Witbank in 2014. So because these police officers went rogue, the taxpayer, through the minister of police must compensate Lloyds of London!
Our much-lauded SA constitution is based on co-operative governance. Given our divided past, the writers of the Constitution encouraged society, consisting of past enemies, to work together to resolve society’s problems. So it is not just a matter of placing blame, but working together to overcome our challenges.
However, the constitutional court has ruled that any remedial action put forward by the public protector must be regarded as an instruction, unless a court of law says otherwise. This renders the public protector process adversarial, as opposed to the collegial and conciliatory spirit envisaged by the Constitution.
The problem becomes that in our public discourse and engagement, we cannot question, critically discuss and openly disagree with constitutional court rulings. We are reminded that this is the apex court and its rulings cannot be overturned.
This cannot be correct. The judiciary must feel public pressure, otherwise it is left to the power of the elites — not just in government or political parties, but also in the private sector.
There cannot be holy cows in our democracy, including the judiciary. It cannot act as if it is beyond reproach. There are many examples where it has not just erred, but has ignored the plight of ordinary people in favour of the wealthy elite.
It is easy for the judiciary to be harsh on the government. We all love to hate them. For many ordinary South Africans, we do not believe that the courts are there for ordinary people — we think that the courts hold the wealthy and monied in far higher regard than ourselves.
Last week many South Africans celebrated Easter, and we should remember that according to the bible, no state law was broken when Jesus was crucified — the law and its foot soldiers, the judges, have to be accountable to the people, like everything else!
Donovan E Williams, a social commentator.