The whiff of something rotten in Chapter Nine

William Saunderson-Meyer on constitutional watchdogs gone rabid


It’s not yet the full-blown stench that makes the stomach heave. It’s just an occasional malodorous whiff, subtly alerting us to something going off.

In this case, it’s the first signals that the most important aspect of South Africa’s post-apartheid democracy, an evenhanded and independent judicial system, is under some toxic strain. A few rot spots are beginning to show.

This comes as a shock to many. After lifetimes under a legal system codified to enforce racial privilege, South Africans became quite giddy with excitement at the introduction of a Constitution that embraced every conceivable mechanism to protect human rights. Never again, was the mantra. 

It was especially the establishment of the so-called Chapter Nine institutions — specifically the office of the Public Protector (PP) and that of the SA Human Rights Commission (SAHRC) — that held great promise in foiling any attack on democracy. International jurists hailed these institutions as a step that elevated SA’s Constitution above most, making it, as we are constantly reminded, “one of the best constitutions in the world”.

That’s not how it is working out. The Protector’s office had a moment of glory under Thuli Madonsela, ironically appointed by the same person, President Jacob Zuma, whose nemesis she would prove to be. 

But Madonsela was the wild card exception. Her predecessors were pliant stooges, the ja-baas refrain no less vomit-making because it was chanted to placate the politicians of a majority government.

The only memorable act by the first PP, Selby Baqwa, was to thwart the arms probe that enriched so many African National Congress politicians. His successor, Lawrence Mushwana, was Zuma’s tool in the president’s battle with the National Prosecuting Authority to avoid corruption charges. At the end of his dismal term, he slithered straight out of the PP’s office into the chairmanship of the SAHRC. 

After Madonsela, SA was saddled the poisonous Busisiwe Mkhwebane, who has proven to be more disastrous than anyone could have imagined. She makes little pretence of impartiality, has lost every appeal that’s been entered against her findings and has been slated by the appeal judges for her lack of legal knowledge and her ‘blatant disregard” of her constitutional duties.

Despite all this, she is still there creating havoc — barely three years into a seven-year term — after being put into office by MPs who at the time boasted that they had chosen her in preference to her closest rival because they preferred a black person to a white person. These same MPs are now seemingly at a loss on how to get rid of her before she implodes the entire institutions, without getting any free-flying sick on their Hugo Boss suits.

The travails of the PP’s office are echoed at the SAHRC. For years now, it has been under increasing criticism for its apparent race bias — its speedy and unambiguous findings against white-trash bigots, while dragging its heels in bringing charges against high-ranking black politicians and then going through various intellectual contortions to exculpate them over their threats of a future white genocide.

Like the office of the PP, the SAHRC has waning integrity. Last week, SAHRC legal head Buang Jones made some extraordinarily prejudicial statements about Springbok rugby player Eben Etzebeth, who had been accused of a racial slur during a pub scuffle in August. Etzebeth is at present playing in the Rugby World Cup (RWC) in Japan.

The SAHRC laid a hate speech charge against Etzebeth and Jones was deployed by the SAHRC to represent the complainants, demanding over R1m in compensation from Etzebeth, that he attend anger management and racial sensitivity training, and that he do community service. At a public meeting with the aggrieved community, Buang vowed to “set an example” of Etzebeth, whom he accused of previously “getting away with murder”, and demanded that Etzebeth should forthwith be recalled to face the music — despite the SAHRC earlier having agreed that the case would be addressed only after the RWC.

The SAHRC has since asked Jones not to make any media statements, although it emphasised that it had “not silenced” him. It said that it was concerned over statements made on its behalf by Jones, which it labelled “problematic”, but went on to deny that any of this could be construed as evidence of prejudice on the part of the SAHRC.

The Jones incident is worrying for several reasons, aside from the defamatory implications of accusing a world-ranking sportsman of having committed murder.

The SAHRC seems to be dumbfounded that people are appalled that its legal head effectively declares the subject of a complaint not only to be guilty of an offence for which he has not yet appeared in court, but also several others unspecified offences from the dim and distant past, for which he has never been charged. It means that the leaders of a juristically critical institution simply don’t grasp a basic tenet of the law — innocent until proven guilty.

Jones’s behaviour is akin to that of a mob violence instigator who tramples upon rather than protects human rights, and should bring into question also the process by which Jones got the job of legal head. In this regard, the SAHRC is probably relying on events to absolve it of prolonged embarrassment, since Jones voluntarily may not be with them for much longer. 

No, not because he intends to resign in belated shame at revealing to all SA his legal ineptitude and ethical turpitude. It’s because like Mushwana, Jones is a player in the institutionally incestuous world of endless cadre rotation for the serially useless — he has been nominated for the position of Deputy Public Protector.

Maybe, this time, those malleable MPs will display more courage. A quarter of a century into democracy, the crux criteria for these appointments should not be race and which political party the applicants support, but their ability.

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