By Sipho Seepe

W. H. Auden’s phrase: “those to whom evil is done, do evil in return”, taken from a poem he wrote on 1 September, 1939 to commemorate the invasion of Nazi Germany, states the obvious.
Tit for tat is a universal principle. Unfortunately, this leaves the cycle of vengeance unbroken. Others perpetuate evil because they know no better. They have no other models to learn from, apart from their own experience. Instances of this happens when the former oppressed employ the very same methods as their former oppressors. The ANC has somehow taken copious notes and lessons from the apartheid government. The party has, after all, inherited all the repressive apparatus of apartheid. Every evil trick that is reminiscent of apartheid is now in full operation. Instilling fear, use of force and abuse of the courts are mechanisms deployed to cow disgruntled citizens into silence. The July 2021 social unrests are a case in point. Claims of insurrection by President Cyril Ramaphosa are unfounded. The July 2021 unrest is a result of the ANC’s failure to resolve the grotesque structural inequalities and the attendant degrading poverty. The Washington Post (19 July, 2021) is spot-on in arguing that “what happened in South Africa is what happens when the gross inequality that shapes a whole society boils over”. The paper also notes that “the celebrated rainbow nation is the global poster child of economic inequality, where deep poverty sits in the shadow of astronomical wealth”. For the New York Times (28 July, 2021) the genesis of the unrest is to be found in the “deep rot of South Africa’s social and political order – rife with racial tension, communal mistrust, injustice and corruption – [which] is now on full display. The rainbow nation, the supposed beacon of reconciliation, is falling apart” (28 July, 2021). Instead of addressing these structural challenges, the ANC has resorted to finding scapegoats. There is nothing new about this. This is history repeating itself. During the apartheid years, the then government blamed communists.
Nelson Mandela’s response is instructive: “I have done whatever I did, both as an individual and as a leader of my people, because of my experience in South Africa.” The unrest of 2021 is no different. People took to the streets, not because of some instigators. Social unrest was triggered by people’s experiences and a sense of outrage at what they considered to be an injustice meted out on former president Jacob Zuma. In jailing Zuma, the Constitutional Court introduced apartheid’s detention without trial into the new dispensation. It does not matter how much the Zuma hating brigade wants to spin, the former president was jailed without a trial. Facts speak for themselves.
Zuma was given a longer sentence than that prescribed in law and was subjected to detention without trial. Secondly, the Constitutional Court pretended to be oblivious of the fact that Zuma had taken Justice Raymond Zondo’s refusal to recuse himself for review. The minority judgement was correctly scathing. It argued that “the main judgement develops the law to meet the peculiarly frustrating circumstances of this case. It leaves in its wake a law that is not only bad, but also unconstitutional. It is, undoubtedly, an unprecedented case, but the law we apply must always be compliant with the Constitution”.
In this regard, the Constitutional Court failed the most basic test of judicial restraint. To this end, these judges proved once more that they are mere mortals, no different from the egomaniacs among us.
Evidently, judges of the Constitutional Court missed the wise counsel of Lord Atkin in the Andre Paul v Attorney-General of Trinidad, AIR 1936 PC 141 case.
Atkin opined: “Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny…We ought never to forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the Court but may sometimes affect it adversely.”
Professor Ziyad Motala of Howard Law School in Washington DC captured the ordinariness of the judges of the Constitutional Court. In his article headlined: “What has gone wrong with our Constitutional Court?” (Sunday Times, 19 August, 2021), Motala argues that recent judgments of the Constitutional Court “smack of personal predilections and politicking…Of late, some important court decisions represent a prattle of nonsense leading to whispers that our apex court at times projects as a junior moot court bench.” Amen to that!
The consequences are ghastly.
As Motala notes that “making up stuff from thin air based on the personal predilections of the judges, like the Constitutional Court, is haemorrhaging into lower court decisions”.
Arguably, ordinary people seem to have a far greater sense of justice than those we have entrusted to dispense justice. In his memoir My Own Liberator, former Deputy Chief Justice, Dikgang Moseneke, could have been making the same point about justice when he writes that “lack of formal tuition does not deprive a person of common sense and native intelligence. A sense of self-worth is not diminished by illiteracy alone. Many in my and other literacy classes [on Robben Island] were leaders of the movement in their own right and understood well the repulsive exclusion of the political arrangement of colonialism and apartheid”. Indeed, South Africans can see and smell injustice from afar.
The social unrest of 2021 started as nothing more than an expression of righteous anger against injustice.
The nation-wide arrests of so-called insurrectionists is something that comes directly from apartheid’s playbook. Like the apartheid regime, Ramaphosa’s government finds it inconceivable that the oppressed could take to the streets without being instigated by some provocateurs. A protest against an adverse ruling by a court or against a sitting president does not amount to an insurrection.
Only a desperate and paranoid regime would invoke such terms. Besides, insurrection refers to acts or instances of “revolt against an established government”.
No single government building or official was targeted during the unrest. Protesters focused mainly on looting shops for food and household items. The arrests are a convenient diversion. As the Washington Post pointed out, South Africa’s challenges are to be found in the “social and political order – rife with racial tension, communal mistrust, injustice and corruption”. Arresting individuals for expressing their outrage against the ruling elite on social media should send chills down our spines.
Shockingly, instead of being alarmed, some media houses have joined the witch-hunt, scouring through WhatsApp groups to out possible culprits. They have become reliable collaborators in clamping down those seen as threats to the current regime.
Indeed, the ghosts of apartheid have resurrected to haunt us. Steve Biko could as well have been referring to the ANC when he observed that “black people should not at any one stage be surprised at some of the atrocities committed by the government…To expect justice from them at any stage is to be naive… There is only one way of showing that upper hand – by ruthlessly breaking down the back of resistance among the blacks, however petty that resistance is”. In the current conjuncture, belonging to a WhatsApp group can easily render you an enemy of the state. Be warned. Dictatorship does not announce itself. South Africa is on a slippery slope of totalitarian state. The unleashing of terror through the use of state apparatus like the police, the military, the intelligence services, the National Prosecuting Authority are all meant to suppress any form of hope against unseating Ramaphosa.

Professor Sipho Seepe is Deputy Vice Chancellor – Institutional Support at the University of Zululand