Paul Jacobson

I have just been reading the Supreme Court of Appeal’s judgment in the case between Jacob Zuma and the National Director of Public Prosecutions which was handed down yesterday. This case is an appeal from a decision handed down by Judge Nicholson in the Pietermaritzburg High Court in September 2008. Judge Nicholson found, among other things, that there was political interference in Zuma’s prosecution and ultimately ruled that the decision to prosecute Zuma should be set aside. This earlier judgment led to Thabo Mbeki’s resignation as President and paved the way for Zuma to become President (at some point). Judge Nicholson’s judgment was controversial, to say the least, at it wasn’t surprising when just about everyone maligned in the judgment sought to appeal to a higher court to address the allegations against them. That pretty much led to the NDPP’s appeal to the Supreme Court of Appeal.

Yesterday’s judgment was handed down by Judge Harms, the Deputy President of the Supreme Court of Appeal. The scope of the case before him and his fellow judges was as follows:

THE SCOPE OF THE CASE

[8] It would be naïve to pretend that we are oblivious to the fact that Nicholson J’s judgment has had far-reaching political consequences and that there may be an attempt to employ this judgment to score political points. It is accordingly necessary to state at the outset what the case is about as opposed to what it is not about. An applicant is required to set out his case in the founding affidavit. This Mr Zuma did. He asserted that his case for the setting aside of the two decisions to prosecute him was premised on two bases, something he confirmed in his replying affidavit.

[9] He relied in the main on s 179(5)(d) of the Constitution, which s 22(2)(c) of the National Prosecuting Authority Act 32 of 1998 (the NPA Act) repeats. It provides in summary that the NDPP may ‘review’ a decision to prosecute or not to prosecute, after consulting the ‘relevant’ Director of Public Prosecutions (the DPP) and after taking representations from the accused, the complainant and any other relevant person. His case in this regard was simple: the Pikoli and Mpshe decisions to prosecute amounted in each instance to a review of the Ngcuka decision not to prosecute him; they were made without his having been invited to make representations in fulfilment of a constitutional requirement and they were, consequently, invalid. It matters not that he was able, if he so desired, to make representations – his complaint was that he had to be invited to make them.

[10] The second and alternative ground on which he relied was that he had a legitimate expectation to be invited to make representations before any decision was taken to change the Ngcuka decision. In this regard he relied principally on s 33 of the Constitution, which deals with just administrative action. The expectation, according to the founding affidavit, arose from the content of Mr Ngcuka’s press release when he announced his decision not to prosecute him and from some other non-contentious facts that will be detailed in due course.

[11] From this it is apparent that Mr Zuma’s case depended, as far as the first ground is concerned, on an interpretation of the Constitution. In regard to the second it depended in essence on whether s 33 of the Constitution applied and, if so, on the meaning of the Ngcuka press statement. (The ultimate argument was somewhat different but does not affect the general purport of the point now under discussion.) These are all legal issues based on common cause facts.

[12] Mr Zuma made it abundantly clear that he did not wish to impugn the decisions themselves, and that his application was not concerned with the reasons and motives for the decisions: it related only to the procedural requirements for making them. He implied that he might attack the merits of the decisions in separate proceedings. In spite of this explicit statement of intent, Mr Zuma introduced a large number of facts that related to the merits of the decisions. The NDPP contended that they were irrelevant.

[13] It follows from this that, as the trial judge recognised, ‘political meddling’ was not an issue that had to be determined (para 229 of his judgment). Nevertheless, a substantial part of his judgment dealt with this question; and in the course of this discussion he changed the rules of the game, took his eyes off the ball and red-carded not only players but also spectators. Lest his judgment be considered authoritative it will be necessary to deal with these matters.

[14] However, it must be understood that this aspect of the judgment is not about the guilt or otherwise of Mr Zuma or whether the decision to prosecute him was justified. It is even less about who should be the president of the ANC; whether the decision of the ANC to ask Mr Mbeki to resign was warranted; or who should be the ANC’s candidate for President in 2009. More particularly, this aspect of the judgment is not about whether there was political meddling in the decision-making process. It is about whether the findings relating to political meddling were appropriate or could be justified on the papers.

Judge Harms took a very dim view of Judge Nicholson’s judgment and his failure “to adhere to some basic tenets, in particular that in exercising the judicial function judges are themselves constrained by the law. The underlying theme of the court’s judgment was that the judiciary is independent; that judges are no respecters of persons; and that they stand between the subject and any attempted encroachments on liberties by the executive”. Judge Nicholson exceeded his powers by considering issues that were not part of the case, colouring his judgment with his political views and generally failing to protect the sacrosanct independence of the judiciary. He received quite a slap on the wrist by Judge Harms! A good portion of the judgment is damage control. Judge Nicholson’s judgment carries authority and to the extent that is bad authority, a higher court has to correct it. This is what Judge Harms had to do on a number of fronts ranging from procedural issues to interpretation of various legal provisions.

Another key issue to be dealt with was whether the NDPP’s decision to charge Zuma (the most recent decision by the acting head of the NDPP) was taken in line with the Constitution. Zuma contended that there were procedural irregularities that undermined the decision to prosecute and which meant that the decision ought to be set aside. Judge Harms ruled that the section of the Constitution Zuma relied on to establish this was misinterpreted by his legal team and didn’t apply in any event. Ultimately Zuma couldn’t sustain his case before the the appeal court’s judges and the court ruled in the NDPP’s favour, setting aside Judge Nicholson’s judgment and substituting it with a new judgment upholding the NDPP’s appeal against Judge Nicholson’s judgment and ordering Zuma to pay legal costs.

This judgment is important because it tackles issues of criminal procedure and the independence of the judiciary seen from within the judiciary. It also means that Zuma could well face prosecution again and if he does, the ANC will have to come up with a plan if Zuma is elected President while the prosecution proceeds. Zuma could spend a fair amount of his time as President sitting in a court room defending himself. That is hardly an ideal situation because it severely hampers the government’s ability to function effectively. It also means that if Zuma is convicted as a sitting President he will be impeached by Parliament (at least he should be).

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jacob zuma, zuma, supreme court of appeal, judgment, nicholson, harms, indepedence of the judiciary, judges

Saul published the post about Israel’s attack on Hamas in Gaza I have been thinking about posting the last few days. Like Saul, some of the reports about Israel’s attack on Hamas in Gaza disgust me. Granted it is largely a propaganda campaign and many of the major news outlets see it for what it is but the protest against Israel’s actions in the last week paints a very one sided and inaccurate picture of what is going on. This is common whenever Israel takes steps to protect its citizens from terrorism. We see news reports based on fake events and based on part of the real story. The Wall Street Journal put in nicely:

Israel’s air assault on Gaza in response to Hamas rocket attacks is inspiring familiar international denunciations. But the best commentary we’ve heard might be this one: “If somebody was sending rockets into my house where my two daughters sleep at night, I would do everything to stop that, and would expect Israel to do the same thing.”

Barack Obama said those words in July while visiting Israel as a Presidential candidate.

Now as President-elect, Mr. Obama is maintaining an appropriate silence while deferring to the Bush Administration before his Inauguration. But his July remarks capture the essence of Israel’s right to self-defense. Moreover, the more successful Israel is this week in damaging Hamas as a terrorist force, the better chance Mr. Obama will have to make progress in facilitating a genuine Mideast peace.

Hamas is a terrorist organisation that is backed by states that promote terrorism. Rather than confronting the Israeli military in a more conventional manner (which it couldn’t, the Israeli army would crush it), Hamas launches its attacks from the backs of motor vehicles in residential areas in Gaza. Gaza is a densely populated area and Hamas is relying on the Israeli military to strike back at them and cause civilian casualties in the process. It is cowardly to hide behind innocent citizens who are just trying to make a life for themselves.

What we don’t see is widespread protest against these tactics. We also don’t see protests in the streets of Europe about the 6 000+ rockets that Hamas has fired into Israel since 2005. Instead we see complaints about the proportionality of Israel’s response to Hamas’ attacks. Perhaps Israel should fire 6 000+ missiles indiscriminately into Gaza in response. Would that be a proportionate response?

Certainly there are unintended casualties but the majority of the dead and wounded are Hamas personnel. The Israeli Air Force is targeting specific installations and structures that support Hamas’ activities including tunnels leading into Egypt which Hamas has been using to smuggle weapons into Gaza.

Critics compare Israel’s tactics to Apartheid and the Holocaust. Both comparisons couldn’t be more inaccurate. This is not a racially or faith-based initiative to keep a population group out of Israel. These are imperfect efforts to keep suicide bombers out of Israel and to keep Israeli’s safe from rockets attacks directed at their homes. What should Israel do? Open its borders to terrorists intent on killing as many people as they can in buses, at restaurants and on the street? I don’t hear anyone protesting America’s restrictions on suspected terrorists entering the USA intent on killing American citizens. Would there be so much protest if Hamas was launching rockets into the USA or Europe’s cities? I doubt it very much. We would more likely see global solidarity against such terrorism and support for decisive military action to stop the attacks.

When it comes down to it, protests against Israel’s efforts to protect its citizens is anti-semitism. The attacks are aimed at undermining the State of Israel itself both as a nation state and as a Jewish state. They are also intended to kill as many Jews as possible. These attacks are little more than a gradual process of genocide and yet I don’t see charges filed against Hamas leadership (or any other similar organisation for that matter) by the International Criminal Court for war crimes or genocide related crimes against humanity. Despite limited public comments about Israel’s right to defend itself and condemnation of Hamas’ ongoing attacks on Israel (including during the supposed cease fire recently), Israel is left to defend itself and that is what it is doing.

Duncan McLeod pointed out a couple articles that present a more balanced perspective on the attacks and which are worth reading. I have bookmarked them here.

Image credits: demo against Gaza Siege by farfahinne licensed under a Creative Commons Non-Commercial ShareAlike 2.0 license and Israeli Patrol – Gaza Strip by cromacom licensed under a Creative Commons Non-Commercial NoDerivatives 2.0 license

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israel, gaza, terrorism, hamas, attacks, israeli military, rockets, protests, genocide

Heather feels that bloggers aren’t doing enough to draw a more diverse group of bloggers into the local blogosphere. She pointed to a post by David Sasaki where he talks about the lack of diversity in the South African social Web and voiced her opinion that we (being the apparently white boys’ club – sorry ladies and any other non-white demographic) are not doing enough to create/encourage/drive greater diversity.

Again the question: what have we done?

Have we actively sought to invite a diverse range of people to blogging events like the 27 dinner?

Have we done anything to bring new bloggers into the field with any training or mentorship?

Have we sought out the opinions of bloggers from people outside our own circle?

Have we commented on and supported the posts of new bloggers?

I say this because I accept some of the blame myself. This is a community. A community where we take collective responsibility for moving the industry forward because it’s important for all of us. Bloggers tend to be huge individualists, and I think that’s why we’ve focused on being better bloggers, getting better contacts, extending our own individual networks. But I think the time is ripe now to give some time and energy to the collective.

This isn’t the first time this argument has done the rounds and I’m not sure how I feel about it aside from a mildly queasy feeling. Part of me wants to leap onboard the guilt train and commit to bringing a non-white male blogger to work and teaching him/her to blog. That would be a quick reaction to an accusation of sorts that I am a member of some white elite blogger group and I haven’t quite taken my boots off the non-white male South African bloggers’ throats. The thing is, that just isn’t an accurate reflection of what has been going on from my perspective (however white male centric that view may be).

If you look at the tools that are available today for people to get online and blogging/otherwise expressing themselves, there is a very low barrier to entry once you get past having access to an Internet connected computer. Anyone can set up a blog on WordPress, Blogger or Vox (for example) at no cost and in a pretty short time period (it takes almost literally 5 minutes to set up a WordPress.com blog). From there it is up to that budding blogger to blog.

The big issue here is gaining access to an Internet connected computer and the fault lies at our government’s, ICASA’s and the telcos’ doors for various reasons. That is also another debate I am pretty passionate and frustrated about.

Getting back to me not doing enough as a blogger, I also have to ask why I should be required to specifically seek out blogs or content published by non-white male bloggers and undertake to bring those bloggers/creators on board. For one thing the South African blogosphere is hardly an invitation only club. If you have something interesting to say and people want to hear it, you’ll have an audience. In fact, if you have something to say and say it on your blog, you are part of the community already.

Maybe I am just being an apathetic white male blogger … well, that is also an over simplification of who I am. I am white (check), male (check) and a blogger (check). I am also Jewish, married, have a small child, a lawyer, passionate about open content licensing, excited for some strange reason about typography, love Star Trek and Battlestar Galactica, get a little too obsessed with new mobile devices and social networks and I have a thing about sunflowers. Actually there is more to me but if you want to establish an elite clique then you really should look a little further than white and male because real people are a little more complex than a colour and a gender. Sure if you want to put me in a box then why don’t you pigeon hole me as a sci-fi lover who is married? Or maybe as a heterosexual male who owns a mobile phone? Actually, it would probably be more helpful to say I am Jewish (we control the world anyway) and I drive a car. Hmmm, when you think about it the “white male blogger” is a little arbitrary and self-serving. That is the problem with surveys conducted along limited lines with a view to putting us all in nice, tidy boxes. The results tend to conform to tired racial and gender based categories which work well for people who only see things along those lines. There just isn’t all that much attention paid to all the rest of our characteristics that make us living, breathing three dimensional people.

Anyway, back to the issue of not following enough black (or some other category) bloggers. The one big challenge for any budding blogger is that there is so much content out there, people have to focus on the stuff they really want to know about or they will drown in a sea of feeds. I subscribe to more than 200 feeds and that is after a recent cleanup. I don’t have time to subscribe to and follow everyone I come across so I focus on the people who talk about things that interest me. If one of those bloggers happens to live in Soweto then that is great. It really makes little difference to me whether the bloggers I follow are black, white, Asian, Canadian or like to smoke shrubbery in the morning before eggs and toast. If she is blogging about a topic I find interesting, I’m there like a bear. This portrayal of the South African blogosphere as an intentionally exclusive club reveals an overly pessimistic view of this apparent elite. Sure there may be a disproportionate number of white and male bloggers but that doesn’t mean the blogosphere was designed to be that way. It just means those white and male bloggers had more opportunities to start blogging early (I started in December 2004) and to become prominent through a combination of staying power, interesting content and occasionally a fine sense of humour.

One thing that continues to bug me is this notion that if we haven’t mentored a certain number of people from some demographic then we ought to feel guilty as bloggers. Some of us bloggers are driven to bring about that sort of social change through their blogs and that is admirable. I tend to highlight issues that catch my attention and occasionally advocate change in other areas. Some people just blog because they want to talk about their love lives. Others blog because their ego needs the attention. We all blog for our own reasons and we read other people’s blogs for other reasons. I refuse to feel guilty because the blogs I read don’t comprise 40% black South African bloggers living in some shack somewhere. On what basis is it acceptable to dictate what I can and can’t read or what my blogging should be directed at? Why do some people cling stubbornly to convenient demographics and refuse to see that issues are rarely so black and white?

Man this is a scary situation:

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mumbai, terrorism, terrorist attacks, video, youtube, india

Simon Dingle made an interesting comment when we were in Japan recently. He spoke about how in Japan there is a sense of tremendous national pride coupled with an almost unspoken distinction drawn between the Japanese and people who are simply not Japanese. This pride inspires the Japanese to be so good at what they do.

I was thinking about the stuff we put up with here and Simon’s point got me thinking about South African national pride, or rather, the apparent lack thereof. Despite the hope for a rainbow nation in the early years after the 1994 elections, we remain a deeply divided nation. We are divided across all the lines which we hoped to bridge: race, gender, cultural heritage, political alignment and religion. There has been talk in the past about what it actually means to be South African and what identifying as South African actually means beyond being a statement of citizenship.

I just don’t know that there is a coherent sense of South African identity. We don’t have the kind of national identity and national pride that drives us to do better and excel at what we do as South Africans. We are far more concerned with our own communities and, in many cases, even smaller groups of people we identify with. The distinction between South African and not South African is a question of which ID book you hold. Without a clear and strong sense of national pride we remain a hodgepodge collection of racial, cultural, political, religious and gender-based groups huddling under this umbrella term: “South African”. This boils down to a lack of respect for each other as human beings and fellow South Africans and we see that in our daily lives through the way people treat each other and how we don’t look at each other anymore.

Even our government doesn’t speak about a rainbow nation anymore. Have we lost our national pride altogether?

Image: Colour by coda licensed under a Creative Commons Non-Commercial ShareAlike 2.0 license

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south africa, national pride, pride, fractured society

I just read a scary article in IOL about the possible consequences of helping the migrant refugees from murderous township mobs:

A mob of angry South Africans attacked a mother and daughter who were handing out clothes to Zimbabwean asylum-seekers at the makeshift refugee camp on Cape Town’s Foreshore.

The attackers beat Alison Goldberg of Green Point to the ground before smashing the window of their 4×4 with a hammer and trying to drag her 16-year-old daughter Lili out of the car.

Lili, a Grade 10 pupil at St Cyprian’s, had been sitting in the back of the car passing clothes and blankets through an open window to her mother who was distributing them to the refugees.

During the frightening attack two weeks ago, Goldberg said all she could hear was her daughter screaming.

At the risk of being labelled a pessimist I have been waiting for reports like this. There are a number of wonderful initiatives on the go to assist these refugees and many many people who are working hard and risking themselves to help out. The problem is that by doing so these people are potentially becoming targets themselves just by helping out.

Obviously the intention is to stop all help to the refugees and force them out of the country (I am having a vague recollection of some threat to push all the whites/blacks in the country into the ocean many years ago during the darker days this country experience pre-1994) and these mobs are determined enough to sacrifice their fellow citizens for their “cause”. This isn’t a reason to stop helping out but it is a good reason for these volunteer angels to thing carefully about their personal security while helping out.

The same thing goes for people who are embarking on these protest marches. It is naive to think they won’t be attacked just as the refugees were. The line between refugees and their “conspirators” (aka compassionate South Africans) is a pretty thin line to a violent, murderous mob.

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vengeful, violence, xenophobia, refugees, volunteers

The show of support for the growing number of refugees in our country as a result of the savage and xenophobic attacks on them by hoards of blood crazed murderers is really good to see. It really is and it is great to know there are ways we can help these poor people who have experienced so much hardship and persecution before arriving in South Africa only to be rooted out because they are foreign to this country and forced to become refugees once again. While I understand that foreigners from neighbouring countries are putting pressure on our economy and the unemployed’s frustration at the increased competition for already scarce jobs but this is just not an acceptable way to express that frustration.

Saul talks about how he feels a bit like a German “living in a town near a concentration camp“. I’m not sure this is the best analogy because this isn’t exactly xenophobia supported by the State (at least not actively) but I understand the sentiment. As I pointed out in my previous post, this is more like the recent violence in Kenya or the horrors of Rwanda as a result of widespread genocide. Ever the optimist, Nic took issue with Saul’s general statement that he is ashamed to be South African and instead talked about how uplifting it is to see the show of support for our new refugees and how he sees himself as part of a solution, not the problem:

I am not going to say that due to one single event (the xenophobic attacks) that is happening now that I am ashamed of my heritage, my culture and my fellow South Africans. I am not. I am uplifted. I am uplifted by the number of people talking, disagreeing and loudly rebelling against this sort of action. A small faction of savages are destroying people’s lives and we must all feel as if we are part of it? Rubbish. I am not a part of that, I never was and never will be. I am a part of the solution to it. I am a part of the growth in people’s consciousness that allows them to step back and say no to this sort of human rights violation.

Great sentiment and I am really glad we have people like Nic to make these statements. As good as it is to hear that, it also glosses over a growing phenomenon we are perhaps not seeing. We are like lobsters being boiled. I am not sure if this is how lobsters are actually cooked but I was once told that you don’t toss live lobsters into boiling water (customers apparently don’t like to hear their food screaming as it dies), you place them in cool water and slowly heat it. Before they realise something is up their goose is cooked, so to speak.

A big challenge South Africa faces is being slowly brought to a boil at which point things fall apart. We have idiot ministers who can’t accept that we have an HIV/AIDS pandemic in this country that needs serious attention, not gardening tips alone. Our infrastructure is under severe pressure because of short-sighted and wholly inadequate planning. Service delivery is lousy. Our government seems incapable of tackling tyrants and instead offers its support of these vile regimes and now we are forced to watch as these mobs roam the streets with weapons, attacking and even killing anyone who might be a foreigner. Justin makes a very passionate point that reflects many people’s views, my own included:

Last week my domestic worker fell victim to these attackers as she and her two daughters, all South African, were kicked out of their house, electricity cut and left in the streets until 2am in the morning. She said that two blocks up from her two people had allegedly been killed for being suspected foreigners living in the area. She also made it very clear that the attackers don’t care what nationality you are, all they care about is creating anarchy.

It is clear that what has started as an attack on foreigners is now just an attack on our freedom because these savages just want to inflict pain and fear into the hearts of all the residents of this country.

I have a very real problem with victims standing up for their rights and in turn becoming the oppressor, all the while doing as much damage as your oppressor has inflicted on you. What good is it setting a man on fire, raping women, or beating someone within an inch of his/her life? Does this actually solve anything, are you really addressing the problem?

I’m about fed up with the state of this nation as are a lot of other people. White, Black, Indian, Coloured, whatever – we all want to see a change and feel safe and secure in our country.

I’ve also had enough of this disrespect for the value of life. Senseless killing is an everyday occurrence in this country and it has to stop. As a parent I am responsible for safe-guarding my wife and two children yet how is this possible when a large chunk of our nation lacks the basic moral fibre for life?

We don’t just have one issue to contend with in this country. It isn’t just a ” small faction of savages … destroying people’s lives”. The water is getting hotter and we’re sniping from the sidelines about the inequity of it all. Where is the real force for change? Sure a couple bloggers and a few hundred people spreading word of a march is a powerful start but where is the follow through? Will the masses mobilise against this violence, our corrupt and inept government and bring about real change in next year’s elections? Sure, the newly constituted ANC leadership is making noises about being less tolerant about that dictator up north and even profiteering in the name of BEE but will we actually see real change in a year when we go to the polls again or will we see an even more racially divided country with less tolerance for little things like freedom of expression, socio-economic rights (you know, to stuff like clean water and perhaps even electricity) that is a long way away from the miracle we all hoped would come to pass when we listened to then President Nelson Mandela give his historic speech in 1994? What ever happened to that spirit of Ubuntu anyway? Anyone remember where they put it?

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south africa, violence, xenophobia, optimism, racial tension