A tale of two dubious judgements

William Saunderson-Meyer writes on two anti-investment rulings in the WCape high court


A long time back, it was called indentured labour. Now, it’s called patriotism.

Justice Minister Ronald Lamola has urged lawyers to do their “patriotic duty” by volunteering to prosecute cases emanating from the Zondo Commission into State Capture.

Speaking at the Law Society’s annual general meeting, Lamola said that lawyers in private practice should do this work — so voluminous and exacting, the National Prosecuting Authority chief keeps telling us, that the NPA has been unable to launch a single prosecution in three years — without payment. Or if not free, at the very least, at a substantially reduced tariff, says Lamola.

One doesn’t know whether the lawyers fawned or fell about laughing. Since the law is generally, but no longer invariably, a profession based on a broad education and critical faculties, some would no doubt have been immediately reminded of an admonishment by 18th century English man-of-letters, Samuel Johnson.

“Patriotism," warned Johnson, “is the last refuge of the scoundrel. He went on, “We believe, that very many of our violent political declaimers are the greatest rogues out of prison which the nation contains. But not even a gang of banditti can subsist, without men of higher character as leaders.”

That’s all as true today as it was almost 250 years ago. And Johnson makes sense. When all rational arguments for supporting a cause or taking an action are exhausted, what else is left but to appeal to base emotions? 

Lamola's appeal for the private sector to prove its patriotism by doing at no charge the heavy lifting that the public service is paid to do, is on the face of it a benign manifestation of political speciousness. However, it is part of a trend, as the African National Congress government grinds ever deeper into the mire it's created.

Suicidally, in a country with four major racial divisions and eight or nine black ethnic groups, the government is increasingly sympathetic to “us” and “them” justifications for exclusion and dispossession. Cloaked in patriotism’s matching jacket, xenophobia, “us” are already pounding the shantytown streets, forcibly closing down the spaza shops of Somali refugees. “Us” are patrolling the highways to ambush, loot and burn the rigs of Zimbabwean truckers, and sometimes kill the drivers. 

The legal community is not, itself, immune to hiding behind the patriotic fig leaf. Sometimes pseudo-patriotism is mixed with political naïveté and feelings of entitlement, with unfortunate consequences. 

A Western Cape High Court judgment earlier this month illustrates the point. Judge Daniel Thulare rejected an application by financial services company Mukuru to employ foreign nationals at its South African call centres. 

Mukuru, a now-global financial success, was launched 18 years ago by a Zimbabwean entrepreneur. It is exactly the kind of 4IR operation that the president is also wittering on about as a path out of South Africa’s inability to create jobs.  

The company conceived and launched an online platform for migrants, mostly African but also Asian, to move earnings rapidly, safely and affordably to their families back home. Since many of their clients are unbanked, Mukuru has also linked with retail chains throughout the continent to act as “banking” branches.

That means Mukuru needs to have staff fluent in a variety of sub-Saharan African indigenous languages. These employees should preferably be mother-tongue speakers, as Thulare concedes in a muddled, sometimes embarrassingly contradictory judgment. 

He accepted, writes Thulare, that it was “necessary for their business health” for Mukuru to have mother-tongue speakers. However, Mukuru had not “uttered a single syllable” about training South Africans “on proficiency in the languages which they deem to be so central to their existence and development”. 

“They unfairly exclude South Africans … in favour of foreign nationals. This constitutes unfair discrimination on the grounds of race, ethnic or social origin, culture, language and birth.” 

“The superior logic in our laws on its own is no longer able to sustain the hope of the poor majority. Economic growth that does not address unemployment, poverty and inequality is useless for the stability of this country … Economic growth that enrich (sic) the business elite and do (sic) nothing for the poor citizens needs a serious disruption in the interests of the Republic.” 

To allow Mukuru to employ foreign native-language speakers would be to discriminate against “unemployed, poor, black” South Africans. These are the people who, despite the promises of the Constitution, were still excluded from the “engines and war rooms of economic growth in the private sector”. 

Instead, according to Thulare, businesses should “comprehend the fundamental need to reorient themselves” and work out ways “to address the social ills of the Republic. It is their social responsibility.”

Thulare — who is as accomplished an economic theoretician as he is a judicial scholar — is making a remarkable leap. When one boils down the verbiage, what he wants is to shift the burden of South Africa’s economic and political performance, historically the role of the state, entirely onto the shoulders of the private sector.  

Thulare believes that a company that is already paying substantial taxes and seeking to pay more, should spend vast amounts training a couple of hundred South Africans to speak — among others — Malawi's Chewa, Yao, Tonga, Sena, and Elomwe languages, as well Zimbabwe's Shona and Ndebele, also Nigeria's Hausa, Yoruba, Igbo, Fulfulde, Ibibio, Kanuri, and Tiv tongues. Not to forget the Asian languages spoken by its customers.  

Thulare is unfortunately not alone in the cuckoo tree. Last week another Western Cape High Court judge, none other than Deputy Judge President Patricia Goliath, joined him in the foliage.

Goliath granted an urgent interdict that stops dead, for the foreseeable future, Amazon’s R4.5bn investment in an Africa headquarters. The interdict — favouring a Khoisan activist group and the crumbling area’s civic association against the developers, the city, the provincial government, and an opposing Khoisan activist group — is to allow time for “further consultation” between the groups.

“This matter ultimately concerns the rights of indigenous peoples,” writes Goliath. “The development of substantial economic infrastructural and public benefits can never override the fundamental rights of First Nations peoples.” 

Part of Goliath’s reasoning for her finding is that the site had significant intangible value, in terms of history and memory, for the First Nations. This is arguably true of every centimetre of development land in the country, which opens a fat, juicy can of worms going forward.

Goliath ruled that the consultation process had been insufficient given that there are disagreements among First Nation groups. Independent outsiders would have to be appointed to restart the consultation process, which has already gone through several stop-go iterations

The City of Cape Town estimated that the development would “provide an immediate injection of billions of rands and thousands of jobs”. Instead, construction must stop immediately. This means that some 5,000 construction jobs are at risk and the developer is liable for R100m in penalties, as well as damages for being in breach of contract. 

Road upgrades and the development of a public park are stalled. So, too, an affordable housing construction, and the R38m rehabilitation of this environmentally degraded neighbourhood and its polluted rivers. 

Tactically, those opposing the development have achieved a substantial victory. The longer it’s stalled for intractable “consultations” the higher the costs for the developers, and the less likely they are to persist. 

As with the Thulare judgment, the aggrieved businesses can appeal. But that, too, is a slow process and it may eventually prove not be worth the time and effort.

Mukuru could as easily establish its call centres in a more investment-friendly African country. As for the Amazon project,  the developers’ best strategy — possibly anticipated with gleeful rubbing of palms by some— is to pay a fat settlement to make the problem go away. 

The buying-off of ersatz activist- and community groups is nothing new. It’s already established practice everywhere from Richard’s Bay to Sandton, to have to pay “concerned parties” not to impede legally and sabotage physically, any new development.

The implications of the two judgments will presumably have been noted by the well-heeled investors attending the government’s  4th South African Investment Conference, which opened on Thursday in Johannesburg. The government is seeking to draw R500bn in global funds.

But, hey, if they’re true patriots, the rulings won’t worry them. They’ll just swallow hard and take the hit.

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