ANC’s opportunistic commitment to justice

William Saunderson-Meyer says our govt's concern for the rule of law does not extend far beyond The Hague


The South African government’s charges against Israel of genocide before the International Court of Justice will, whichever way the ruling goes, be a seismic event.

It seems legally inconceivable that the genocide accusation — which will take months, possibly years, to be ruled upon — will succeed. If it were to, there are many nations, most of them anti-Israel, who would very soon find themselves in the same dock. However, it seems equally likely that some kind of provisional intervention will be granted, with the African National Congress government reportedly confident that Israel will be ordered to entirely halt its military operation.

The proceedings are riveting. This is the law as a gladiatorial spectator sport with the public and politicians — as well as the “impartial” journalists and commentators— cheering their respective sides with scant regard for the law or reality. 

In South Africa, it’s been unfolding with the kind of media rah-rah that accompanied mixed-martial arts fighter Dricus du Plessis’s victory in the middleweight division of the Ultimate Fighting Championship this week. Lots of boastful hollering and warnings that a loss would be clear evidence that the referees had been bought.

“Our” side, according to the local media, is apparently going to win. News24 authoritatively proclaimed — citing no credible authority and before Israel even tabled its rebuttal — that the South African case was “a masterstroke of legal genius”.

I’m not a lawyer but I’m personally unconvinced of its legal genius. But the South African move, if not its arguments, was certainly a political masterstroke.

Aside from the position that it’s staked out for itself as the improbable moral voice of the “non-aligned” world — remember the refusal to arrest Sudan President Omar Al Bashir, a convicted perpetrator of genocide? — it’s a rare moment for the ANC to display a face that’s not raddled with corruption, ineptitude and greed. And that’s a most useful distraction to be able to mount in an election year.

In reality, perhaps the most remarkable aspect of South Africa’s application was not its self-proclaimed brilliance but the speed and efficiency with which it was executed. It would seem that the entire process, from conception through gestation to delivery, took only a few weeks.

That’s exceptional for a government that over half a dozen years has failed to bring a single successful prosecution against those, overwhelmingly from within ANC ranks, who looted an estimated more than one trillion rand from state coffers during Jacob Zuma’s administration. This is the same government that took two years to file an extradition application for two ringleaders of that looting  which failed, because it was poorly drafted, on a technicality.

Similarly the 2021 riots in KwaZulu-Natal and Gauteng, which cost at least 360 lives and inflicted R70 billion in economic damage. Despite President Ramaphosa stating that the ANC knew the identities of the 12 main orchestrators of the violence — all ANC members — none has faced justice.

The first responsibility of the state, any state, is to protect its citizens and their property. In South Africa, that’s simply not happening.

The National Prosecution Authority is literally a joke. Last year, the judge presiding over what the NPA said was its “seminal prosecution” of eight people charged with state looting, described the state’s case as “a comedy of errors”. The only way the NPA could get a conviction, she said caustically while dismissing all charges, was if the accused were stupid enough to incriminate themselves.

The SA Police Service is as moribund as the NPA. Large numbers of South Africans no longer bother to report crimes, unless they require a case number for insurance purposes.

Despite the police budget virtually doubling in just over a decade, detection rates have plunged in lockstep. SAPS makes an arrest in only 10% of aggravated robbery cases and only 14% of murder cases.

The police presence in large swathes of the country exists only in name. During the 2021 riots, police stations just battened the hatches and hunkered down until the army was deployed. Lacking well-trained and unquestionably loyal officers, as well as in some cases reportedly being short of ammunition, they had little option.

There are, as academics and politicians consistently point out, many practical and relatively simple interventions that can be made to improve the SAPS and the NPA. Although well-intentioned, such recommendations seem doomed.

The core problem of criminality in our country is that so many within the ANC, both party leaders and deployed cadres, are either actively involved in crime or at least complicit. There is less than a handful of people in Ramaphosa’s cabinet untainted by allegations of criminal behaviour. Sadly, the president is not one of them.

The ANC has a track record going back to the 1999 arms scandal of diverting state resources to fund the party and to enrich its elite. Much in the manner that the 1950s mafia franchised its activities to extract “tributes” from smaller operators in return for protection, the ANC is the chief enabler of state corruption, of the extortionist construction and building syndicates, and of the immensely powerful black taxi sector.

Not only are gangster taxi bosses suspected to be behind arson attacks on passenger rail infrastructure and bus companies, but the taxi bosses have on occasion acted as the government’s enforcers. In the 2021 uprising, as Ramaphosa calls it, the police were ineffectual while the SA National Defence Force managed to hold its own. But it was the “spontaneous” deployment of heavily armed taxi drivers that brought the rioting to an abrupt end.

A security consultant to organised business tells me, unattributably, that in his experience the ANC is deeply implicated in almost every area of criminal activity. Crime is an intractable problem because virtually without fail, every criminal string that the private security companies follow eventually leads to Luthuli House, the ANC’s headquarters.

“The criminal syndicates operate like medieval robber barons, each with a fiefdom it’s licensed to exploit. Sometimes — like last week’s gun battle, waged with automatic weapons between rival taxi associations in Port St John’s, leaving six people dead — they squabble over turf.

“On occasion, they clash violently with honest police officers trying to do their jobs. But mostly the cops act not as law enforcers but as umpires. And, at the end of the day, the leaders of these crime syndicates have the tacit protection of the state,” he says.

That makes for a grim situation. When the state protects the predator, or is itself the predator, the ordinary citizen’s constitutional protections become meaningless.

A case in point is Intercape, the biggest bus operator in southern Africa, which has endured a seven-year campaign against it by Eastern Cape taxi associations. There have been more than 200 attacks, with staff and passengers incurring severe injuries and one driver killed. There hasn’t been a single arrest.

When the police wouldn’t act, Intercape CEO Johann Ferreira approached the provincial and national ministers of Transport, begging them to intervene. They advised him to “do a deal” with the taxi bosses.

At his wits’ end, Ferreira in 2022 petitioned the High Court to order the government to ensure the safety of his business. Judge John Smith's ruling was scathing of the government’s “toleration of criminal violence” and its failure to ensure the safety of its citizens.

He gave SAPS and the ministers 20 days to develop an actionable plan. Nothing was done.

Last month, Intercape — which has paid out an estimated R50m on vehicle damages and legal fees — headed back to court. Judge Motilal Rugunanan found the national and provincial police commissioners in contempt and gave them a month to formulate a plan to protect Intercape. Failure to provide “visible policing” could lead to them being jailed.

Both locally and internationally, the ANC government’s commitment to the rule of law and justice has been superficial, opportunistic and steeped in hypocrisy. On reflection, precisely the character traits one would expect of the country leading the charge against Israel.

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