Cape Independence - Lessons from Nkandla

PRESS ARTICLE: Zuma's constitutional defiance and the state's weak response has implications for Cape Independence

Cape Independence – Lessons from Nkandla

Everything in life is a lesson.

The spectre of South African impotence as Jacob Zuma once more brazenly defies an order from the highest court in the land, cheered on by an illegal mob gathered in contravention of stringent lockdown rules which the government itself has just strengthened, has not gone unnoticed in the Western Cape.

The ANC national government would do well to remind itself that it governs the Western Cape with the consent of a majority who despise it. Since 1994, the majority of Western Cape voters have never voted for the ANC, and in 2019, only 28.6% of them wanted an ANC government.

As the national government, the ANC has presided over rampant corruption, gross incompetence, the collapse of many state-owned entities, runaway unemployment, and it is intent on using its constitutional majority to force through policies which are deeply unpopular in the Western Cape.

It has been allowed to do so because the people of the Western Cape have played by the rules, even when those rules have seen decisions made to which they are vehemently opposed. The ANC governs with the willing consent of the vanquished majority.

Our legal system is on trial

Our legal system is now on trial. Ordinary people do not have the professional insight to examine the minutiae of complex legal argument, but, as laypeople, they can see which way the wind is blowing with considerable clarity.

They know Julius Malema should not be helping to select judges for the constitutional court. They know Judge John Hlope should not be Judge president of the Western Cape. They know Judge Roland Hendricks, who presided over the infamous Coligny show trial, should not subsequently have been promoted to Deputy Judge President of the North-West.

If they have read further, they will have heard Koos Malan, Professor of Public Law at the University of Pretoria declare that it is no longer possible to get an ideologically fair judgement at the South African constitutional court. Last week, jurist Martin van Staden expounded on this, explaining in layman’s terms how he believes Transformation and Affirmative Action, as currently implemented, are in fact unconstitutional. There is, however, no prospect of ever getting the constitutional court to acknowledge this, he explains, because the law and the judges’ political ideologies conflict, and their ideologies take precedence.

South Africa desperate for a glimmer of hope

Desperate for any glimmer of hope, South Africans are given to leap for joy at the sight of a single swallow, deluding themselves that it may indeed signal the onset of summer. It never does of course, and inevitably hope is soon extinguished.

The Constitutional Court order against Jacob Zuma was one such glimmer. Inevitably the usual cheerleaders were declaring we had finally crossed our Rubicon (again). Justice had prevailed. President Cyril Ramaphosa’s infamous long game was finally reaching its magnificent Zenith.

The reality, of course, was far less glorious. Within 4 days the ConCourt was going to blink.

There have been too many ‘wise after the event’ justifications of the ConCourt’s apparent about turn, as the pedants argue over rescission orders and the merits of a minority judgement. Whilst each may very well have merit, they simply serve as misdirections from what should be blatantly obvious.

After months of thumbing his nose at the Zondo commission and then the constitutional court, openly defying our constitutional order, flaunting his invincibility, knowing that with a nod in the right direction he could summon a legion of RET foot soldiers, and stoke the flames of racial and tribal conflict, the South African Constitutional Court finally called time on Zuma’s outrageous antics.

In doing so, it was rightly applauded for the manner in which it eliminated wiggle room from the past master of the Stalingrad defence. He had five days to submit himself into custody, and if he did not, the South African Police Service (SAPS) had three days to forcefully take him into custody.

Armed and unruly crowd

So, what changed? Zuma’s age and state of health certainly did not. Neither did his willingness to appear before Judge Zondo, nor his criticism of the Constitutional Court.

Instead, a large armed and unruly crowd gathered and threatened that they would violently resist the forces of law and order.

The ConCourt reacted by agreeing to hear a rescission order, and as the deadline passed by which it had commanded Zuma to surrender himself, Zuma remained very much at large, jovially holding a press conference where he poured further scorn onto the court that had passed sentence upon him.

Western Cape secessionists watched on with great interest. The establishment has been at pains to point out to them that Cape Independence will never pass constitutional muster, and any attempt to circumvent the constitution via international law, was likely to lead to a military response from the South African government.

Mob rule and constitutional order

Is that the lesson that Nkandla has now taught? Or alternatively have we been shown that all it takes to defy the constitutional order is an angry mob willing to stare down government forces? That in the face of such a mob, political solutions are the order of the day?

The Cape Independence movement is dominated by doves. Democracy, respect for the law, and peaceful means are the foundation upon which the movement has built itself. That should not be misinterpreted to mean there are not plenty of eager hawks. Sanity is currently in the ascendency, and the Western Cape’s beleaguered and long-suffering voters are still playing by the rules.

A minority ANC government (in the Western Cape) and an ideologically compromised court system should think long and hard before it demonstrates that mob rule has replaced the constitutional order.

Everything in life is a lesson.

This article was published by Mail & Guardian's 'Thought Leader'.

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