Deep divisions as senior Minister takes aim at Constitution
Publish date: 17 January 2022
Issue Number: 956
Diary: IBA Legalbrief Africa
Category: South Africa
An attack on the Constitution and judiciary by a senior Cabinet Minister has sent shockwaves across the country and caused deep divisions within the ruling African National Congress (ANC). Legalbrief reports that Tourism Minister Lindiwe Sisulu – the daughter of liberation heroes Walter and Albertina – last week raised a number of arguments about the country’s globally acclaimed judicial system and Constitution, saying it had kept the formerly oppressed masses in poverty. In her published article, Sisulu wrote that ‘the most dangerous African is the mentally colonised African’. ‘And when you put them in leadership positions or as interpreters of the law, they are worse than your oppressor. They have no African or pan-African-inspired ideological grounding. Some are confused by foreign belief systems. Today, in the high echelons of our judicial system are these mentally colonised Africans, who have settled with the world view and mindset of those who have dispossessed their ancestors,’ she wrote.
Meanwhile, questions about Sisulu having plagiarised a speech by former UK Attorney-General Dominic Grieve continue to feature in the media. A September 2013 speech by Grieve, titled ‘The rule of law and the prosecutor‘, contains stark similarities and, in some instances, identical phrasing to passages from Sisulu’s latest tirade, notes a Daily Maverick report. However, spokesperson Steven Motale was adamant the Minister did not plagiarise anything. He said: ‘Plagiarism is when a person, in writing something, uses the words and thoughts of someone else without giving credit to the original author. Minister Sisulu cited the author, the source, the specific piece and date of publication or court ruling instance. This is the exact opposite of plagiarism.’ Motale’s claims are untrue, says the DM, which notes that at no point does Sisulu mention Grieve or his speech. Motale said the Minister does not believe she breached her oath of office. ‘In writing her opinion piece, Minister Sisulu was exercising her right to freedom of expression which is enshrined in the Constitution,' he said.
The reaction was fast and furious. A report on the News24 site notes that Acting Chief Justice Raymond Zondo described her conduct as ‘completely unacceptable’. ‘It should not be acceptable in a constitutional democracy such as ours that a member of Parliament and the executive should wake up one morning without any facts and write an article that insults African judges. I just want to say this: no amount of intimidation, no bullying by anybody, and I mean anybody, is going to succeed in making the judiciary not to do its work in accordance with the oath of office that we as judges take. We are in this job not to be popular, but to do a very important function in our constitutional democracy. We will not allow a situation where people want us to deviate from our oath of office by using these tactics,’ he said. The Ahmed Kathrada Foundation, the Council for the Advancement of the South African Constitution, Corruption Watch, Defend our Democracy, Freedom Under Law, the Helen Suzman Foundation and Judges Matter have all slammed Sisulu’s comments.
Justice Minister Ronald Lamola said it was wrong for Sisulu to blame the Constitution for the failure of the governing party. ‘Referring to judicial officers by using crude racial tropes cannot pass off as a debate,’ according to Lamola in a News24 report. ‘Aside from the attacks on judges, there is a pervasive narrative in our body politic which characterises the Constitution as a sell-out,’ said Lamola. ‘... perhaps indeed, this is an opportune moment to debate our constitutional democracy further, especially as we have just marked the 25th anniversary of the adoption of our Constitution. But in so doing, we should be unequivocal about what passes as debate and what does not. Referring to judicial officers using crude racial tropes cannot pass off as a debate. Attacking the very institution that is (there) to uphold the Constitution goes against the grain of everything that we wanted to change from before 1994,’ Lamola said. ‘Insinuating that judges who have assumed the high calling of judicial office in our democratic era are mentally colonised is a personal attack that cannot be condoned under any circumstances. In addition, calling any black person – whether a judge or not – a “house negro”, is insulting.’ Lamola said Sisulu's opinion pieces did not cite a single judgment by the country's democratic courts.
President Cyril Ramaphosa is shackled by the fear that he will be seen to be acting against a political opponent should he fire his rogue Minister. A Business Day report quotes what it describes as a source close to the President as saying even though Ramaphosa has the sole constitutional prerogative to hire and fire those in his Cabinet, he is not keen to fire a potential political opponent without following ‘due process’. The Sunday Times takes the same line, suggesting Ramaphosa's deafening silence is because he fears any action he takes against her would jeopardise his chances of winning a second term when the party holds its national conference in December. The President's failure to act comes as the Council for the Advancement of the SA Constitution calls for Sisulu’s sacking, arguing she breached the oath she took when she was appointed to the Cabinet.
Sisulu though was quick to admonish Lamola. In another article (her third in 10 days) published on the IoL site, she responded wrote: ‘You have taken the unusual step of addressing me, a colleague, in an open letter, something unheard of in the tradition of our movement, as far as I know. This appears alarming since it seems to be a follow-up of the public statement issued by your department, which was all part of an equally unusual and disturbingly vicious public castigation of me since my attempt to draw public attention to one of the most fundamental issues South Africans should be discussing.’ According to News24, she said the Constitution was a man-made and historically contextualised document. Citing a particular case, Sisulu writes: ‘I do believe that our Constitution far too often serves the few, the powerful, and the well-connected. It cannot be that resources become the determining factor between justice and injustice, right and wrong, moral and immoral. In this regard, I bring to your attention the ongoing case of Vodacom and Mr Nkosana Makate. A black young man whose invention aided Vodacom's wealth had to rely on aid to make his case in the Constitutional Court. The matter is still not settled and remains ongoing. I cite this here not in pre-empting an outcome but to highlight the challenge the poor have to take on the wealthy and to find rightful justice. That situation needs vigorous debate and firm correction. The evidence is as straightforward as it is devastating: South Africa is the most unequal society on earth. Yet you blithely assert that the Constitution needs no critique, and the judges are above all critique because "judgments of our courts have brought about a much more equal society". What I am trying to do, is to make us all see that, at this time of celebration of the adoption of South Africa's Constitution, we have come to the point of serious and honest reflection: where do we come from, where are we, and where are we going? And perhaps the voices of our youth will help us here,’ read her article.
