By Khotso Molekane
The most oppressive governments rely on the judiciary to give a veil of respectability to their oppression. The repressive elements derive the legitimacy and instructions from the courts. Apartheid was no different. The apartheid judges were there to enforce and justify oppression of the majority for the benefit of the minority. The courts were the last line of defence against the majority. A few judgements may have gone against the system, but that was the exception – The rule stands. Let us be frank, no one became an apartheid judge thinking that they were going to end oppression. They were the chief enforcers.
In 1994 the beneficiaries of apartheid were forced to surrender economic power. The Afrikaaners were the most traumatised by this reality. Naturally, they were not going to let go without a fight. Firstly it was to protect language rights and schools hence the introduction of Model C schools. The idea here is that the state continues to fund these semi private institutions while handing over control to the “community”. This project has been mostly led by the Afriforum.
We also see signs of this attempt to retain control and influence in gated communities, private clubs, university hostels and even hotels and game lodges. where the rules tend to be discriminatory in the name of culture, language or any other justification. Do you think that Penny Sparrow would rent her apartments to black people?
This project seems to have worked so well that it has convinced its patrons and sponsors that the recapture of the state is within reach. This is where lawfare comes in. Wikipedia defines “lawfare” as ‘a form of asymetrical warfare, consisting of using legal system against an enemy, such as by damaging or delegitimising them, tying up their time or winning a public relations victory’. This is the strategy that has been applied to delegitimise the will of the majority by the will of the courts. Every decision of the elected government (except the national treasury) is subjected to second guessing by the courts. The intention is to regain power lost at the ballot box through the courts. Behind all these cases is the belief that the courts are manned by people who share their view of the world and will decide in their favour.
Lately the intention is to paralyse the public service by asking the courts to find public servants personally liable for costs that are awarded for decisions they took in their official capacity. This is an attempt to render all spheres of government controlled by the ANC impotent. Incidentally, this demand has never been raised where the DA is in power. Take the Public Protector findings in Midvaal for example. Lastly, these groups would never demand that the CEO of Murray and Roberts be held personally liable for the tragedy that took place at Grayston Road in Sandton. Do we hear similar calls for all the industries where the CEOs and top executives were involved in rigging prices of basic commodities like bread or the construction industry cartel? The answer is no. This is not about accountability, it is about regaining state power. Will the National Treasury be taken to court for misallocation of national resources and prioritising the needs of the rich? They funded the crooked construction companies and ask the poor to pay. Surprisingly, they sing a different tune on nuclear energy.
So, when former state prosecutor, Gerrie Nel talks about private prosecutions with Afriforum of all groups, be sure that that it is part of warfare and there are no prizes for guessing who it will be directed at and who will be immune.
If the courts allow themselves to be dragged into political fight-back campaigns, they should not be surprised when the owners of power, who are the people of South Africa condemn and push them to the margins of society and history.