Vukile Phanyaphanya
July 18 has come and gone, with many believing that the freedom of the nation has come. The reality is that there is neither freedom nor democracy.
The recent spurt of insults and character assassinations of former judge president John Hlophe is an indictment of the so-called democracy; and his sponsored removal from office, an ever-lasting scar on the much-praised Constitution and the judicial system in the sold dream of the rainbow nation.
Like Hitler’s KGB and Gestapo, the law enforcement agencies in the land of Madiba have been used as an instrument of “Geheime Staatspolizei” – a German concept that plunges this country straight into the dungeon of a police state. Exactly like the notorious Paul Joseph Goebbels in Nazi Germany, the media in this country has assumed the unfortunate posture of state propaganda, peddling lies and rumour configuration aimed at of destroying the good, praising the bad and lifting the ugly.
The former judge president became the victim of this arrangement not because of any serious corruption, as we are told, but because of the “democratic” agenda of the undemocratic ruling elite pulled by the strings of the neo-liberal white colonial settlers. Former president Thabo Mbeki was also the victim of the same agenda after he became a threat to the West when he called for African unity and African Renaissance.
In all the judicial bullying and a distasteful Mafia state that’s clearly driven by its legal Mafia, women have become more vulnerable than any of the victims I have mentioned in this article. The Western Cape, ironically governed by the DA, is the epitome of the democratic oxymoron of a bitter-sweet democracy for the so-called people of colour. In the province, a group of women have organised themselves into a group that they call “Moms Supporting Moms for Injustice” in the high court.
The group was started by Pearl Walsh and her organisation, Social Impact With Pearl, established to raise the voices of women in a desperate attempt to assist the women to have their voices heard about the unjust practices of the legal system and the collaborative judges and lawyers therein.
One of the issues the women have been raising is the inconsistency of the judicial voice, where the Constitutional Court has said one thing and the Western Cape High Court another on the same matters. One cannot help but think: Is it because this is the province where there is strong advocacy for its independence by white monopoly capital? Was Hlophe a victim of the collective legal Mafia and judicial syndicate?
As an illustration of the point, one is tempted to juxtapose the case of Bwanya versus Master of the High Court. In this matter, the Constitutional Court found: “In respect of the Intestate Succession Act, it was unconstitutional to exclude permanent life partners from benefits of intestate succession.”
The court, therefore, ordered that wherever the act referred to the deceased’s “spouse”, that word should be read to mean spouse or a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support.
Interestingly, in his article of July 10, Rob Stammers argues that: “But as things started to unravel and more and more details were revealed via these said documents something glaringly distasteful started arising. Too many valid and legitimate facts started rising to the top that could and cannot be ignored and they were all in favour of Pearl Walsh.”
Of course, the argument is based on the pronouncements made in the Bwanya case and on the indicators that prove, prima facie, the strength of the cohabitation relationship Walsh had with her deceased partner. If this is the case, why then would the judiciary speak in tongues on the Walsh-Dieter Fuchs case?
Instead of addressing the legal arguments raised in the estate claim by Walsh, the legal Mafia keeps shifting the goal posts and abusing their legal power and proximity to prevent the matter from being heard. Without any merit or valid argument on the claim, nomenclature is being used on a lay person, obviously taking advantage of her inability to afford the exorbitant legal costs and the fact that she is a woman, vulnerable and cannot defend herself.
The terms “frivolous” and “vexatious” are being used frequently with the threats that she will have to pay legal costs and the costs of the attorneys. This is what happens in this country when one is invoking constitutional rights. What is sad is that advantage is being taken because the person is a woman in a country that claims high advocacy for the rights of women and children.
A legal fundi gets so pompous to the extent of thinking that these are serious legal terms and that when invoked by a lawyer, they have made a valid and crucial legal point. In essence, these are the words they use to indicate their irritation at someone insisting on their human rights.
Judge Ian Cameroon, for example, states: “The Legal Practice Council has displayed lax oversight and is not asking for explanation as to why lawyers are adopting these delaying practices”. The answer lies in the honourable judge’s view that: “This could be because unprecedented attacks on the judiciary in recent years are paying off. They are leading to over-cautious and overly deferent judgments that err on the side of the other branches of government in what is a clear misunderstanding of the principle of the separation of powers.”
It is time the citizens of this country rise and expose the lies they are being fed about democracy, the rights of women and children and the independent judiciary. A justice system based on capture, proximity and college or law school relationships is one that is bound to fail its citizens. It is a system where, in the same breath of judicial independence, freedom of speech, democracy and constitutional values, traces the tendency to threaten the people with contempt and a judicial anti-criticism stance; of course, this is nothing far from totalitarianism disguised as democracy.
It is the same contradictions and confusion brought about by constitutional democracy that has caught up with the ruling elite. The same people who declared the former judge president unfit for office find themselves eating own humble pie as he serves on the Judicial Service Commission today. The man in the street is being told that this is how democracy works. In fact, this is how confused their democracy is. It leaves the people confused and wondering if their safety in the country is in the right hands.
Given his investigation of the matter and the consideration of the relevant case law, Stammers writes in his article: “So I felt compelled to at least do all I could to give her more of a fighting chance. Not just for Walsh but any other partners who end up in such a horrendous debacle down the line, without the clout or the means to sweep things under carpets, hire massive legal teams to bully and intimidate and leave the calls for justice and a dying man’s wishes.”
Any other person with a similar gesture to raise alarm on the abuse of legal power against women and children and those who stand for the rights of the vulnerable, such as Dr Hlophe, by the Western Cape High Court judges and those who control the system, is likely to get accused of being “against the lord and state” (a book by KN Panikkar).
What is clear though is that the people will never give up on calling for accountability and the demand for the promised democracy and human rights. The state and the ruling elite have, without prejudice, promised to deliver on humanity, human rights, the rights of women and children and the rights of the poor and vulnerable.
This is the promise for which they must be held accountable. If they deviate from the promise, for whatever reason, corruption, abuse, capture, bribery or otherwise, they must be held accountable. There is no democracy in faking protection of humanity against the ruling elite. It is perhaps the foreign concept of calling judges “your honour”, “my lord” and so on that must change. The deification of humans is the first temptation to thinking one is above all.
Read more on these legal issues on Judgements on Cohabitation, Lesbian Partnerships, Same-sex Partnerships (Odgers v Gersigny, Hodgesd v Courough)
Phanyaphanya is an author and a retired teacher.