The perfect storm – when fault lines are exploited by opportunists Quarter 3 2021

By HAPPY MASONDO, Published in The Law/Opinion

The Japanese proverb, "Nana korobi ya oki", which means fall down seven times and get up eight, is what we need as a mantra in this country in the aftermath of the riots, looting, pillaging, theft and vandalism of July 2021. Prior to 27 April 1994, protest action, unrest, riots, looting, vandalism and rendering the country ungovernable were commonplace. Our country has, on many occasions, come back from the cusp of violent destruction. It took a concerted collaborative effort on the part of our entire society.

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So too, following the July mayhem, several communities, which surprisingly included the taxi industry, as represented by the South African National Taxi Association (Santaco), came together, not only to protect their communities, infrastructure and environments but also, as far as possible, to ensure that where there was destruction, it was replaced with construction. Despite this enduring spirit of South African resilience, we still have to ask the question, what is it about this nation that propels us towards this seesaw of construction, destruction and construction?

Fault lines

The gap between rich and poor is the greatest fracture in our society and has, for many years, always bubbled under the surface. Like all fault lines, this has been caused by multiple factors, including poverty and high rates of unemployment, all of which have been exacerbated by the coronavirus pandemic.

"The extent of the rioting exposed South Africa's underlying economic problems, including high rates of unemployment and poverty.

Unemployment is more than 32%, and it is above 64% for those under the age of 35, according to South African government statistics. More than half of the country's 60 million people live in poverty, and more than 20% are food insecure. The country is one of the most unequal in the world, and that inequality has increased since apartheid ended in 1994, according to the World Bank." ("Explainer: What caused South Africa's week of rioting?", 12 July 2021, Africanews.com).

Our democratic nation was caught by surprise and so, it would appear, was our security cluster. In the days following the July mayhem, the crevices between the rich and poor proved to be as deep as those within the ruling party. "A government should stand united and give us direction, but the past few days have shown us how divided the ANC truly is and why that division is catastrophic for the average South African." (Burke, J "Enemies of Democracy behind South Africa's protests, says the President", 16 July 2021, theguardian.com).

So divided is the ruling party that those who orchestrated the insurrection threatening to overthrow the government of the day did not come from opposition parties, but from within the democratically elected ruling party. The July mayhem "evolved rapidly into wholesale looting of shopping malls… accompanied by attacks on communications facilities, railways, ports, roads and other critical infrastructure – targets that security experts… suggest a campaign of deliberate sabotage aimed at making the country ungovernable." (Ibid).

Rule of Law

The rule of law is the cornerstone of the Constitution, 1996, which was adopted and embraced as the supreme law of the Republic. The supremacy of the Constitution and the rule of law are further endorsed in the preamble of the Constitution as the founding values of this nation. The Constitutional Court is also established under the Constitution as the highest court in the Republic, in relation to constitutional matters.

Ironically, the catalyst of the July mayhem is said to have arisen from the implementation and application of the supreme law and the emphatic judgment of the Constitutional Court giving credence to the founding value of the rule of law.

The Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18 judgment was handed down on 29 June 2021 declaring, amongst other things that:

  1. Mr Jacob Gedleyihlekisa Zuma was guilty of the crime of contempt of court for failure to comply with the order made by the Constitutional Court in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Jacob Gedleyihlekisa Zuma [2021] ZACC 2.
  2. Mr Jacob Gedleyihlekisa Zuma was sentenced to undergo 15 months' imprisonment.
  3. Mr Jacob Gedleyihlekisa Zuma was ordered to submit himself to the South African Police Service, at Nkandla Police Station or Johannesburg Central Police Station, within five calendar days from the date of the order, for the Station Commander or other officer in charge of that police station to ensure that he is immediately delivered to a correctional centre to commence serving the sentence imposed in paragraph 2 above.
  4. In the event that Mr Jacob Gedleyihlekisa Zuma did not submit himself to the South African Police Service as required by paragraph 3 above, the Minister of Police and the National Commissioner of the South African Police Service was obliged, within three calendar days of the expiry of the period stipulated in paragraph 3, to take all steps that are necessary and permissible in law to ensure that Mr Jacob Gedleyihlekisa Zuma is delivered to a correctional centre in order to commence serving the sentence imposed in paragraph 2.
  5. Mr Jacob Gedleyihlekisa Zuma was ordered to pay the costs of the Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State, including the costs of two counsel, on an attorney and client scale.

"In a majority judgment penned and delivered by acting Deputy Chief Justice Sisi Khampepe…, the court said it was compelled not only by Zuma's defiance of its order to comply with summons to testify before the Zondo commission, but his casual and 'scandalous' attacks on the courts." (Ferreira E, "In depth: ConCourt sentences Zuma to 15 months in prison, gives him 5 days to report; Mail & Guardian, 29 June 2021").

This judgment was celebrated in legal circles as a clear illustration of the application of the rule of law without fear or favour. The celebratory mood was short-lived as we then saw a rapid unravelling of our society as we know it in the July mayhem. The saboteurs would have us believe that they were the supporters of Jacob Zuma protesting against his 'unfair' incarceration. Given the long history of riots and protests against an undemocratic apartheid government, the irony is not lost on the rest of us South Africans that the saboteurs of the July mayhem used the same violent protests as were used prior to 1994.

The Minister of Justice and Correctional Services has concluded that "[w]ithout socio-economic inclusion of the majority of South Africans, it is evident that the rule of law is under threat…[and] those who drafted the Constitution had in mind to unite South Africans with their diversity, uproot the economic imbalances and all forms of discrimination." (Pule Leshwiti-Jones, "Rule of law under threat without the socio-economic inclusion of majority – Lamola" News24, 30 July 2021).

Unity of Purpose

"The only thing necessary for the triumph of evil is for good men [and women] to do nothing." Edmund Burke

The opportunists and saboteurs did not count on South African society standing together to protect existing infrastructure and going against attempts to sow division and destroy unity. They did not foresee that our society is actually stronger than the opportunistic criminals exploiting the plight of the poor to achieve their misplaced political ends and the infighting within the ruling party. We dare not watch the triumph of evil.

Just as we were beginning to decry the dearth of leadership, we found it in the most unlikely of sources, Santaco, the biggest taxi association. Santaco "teamed up with members of communities in Gauteng and KwaZulu Natal to protect infrastructure from being destroyed amid the civil unrest…[which had] engulfed both provinces." (Nkosi, N. & Mtshali, S. "Communities rally together to end looting and protect businesses", Cape Argus, 15 July 2021). The efforts of Santaco were ably supported by members of communities who took it upon themselves to protect their resources and infrastructure.

Together with Santaco, various communities across Gauteng stood against looting in parts of Soweto, Kwa-Thema, Soshanguve and those in Tembisa also took turns in protecting and guarding their shops and shopping malls around the clock. It is reported that in certain communities, politicians "who claimed [they] came to support them" (Ibid) were chased away by these communities.

The Minister of Justice and Correctional Services, Ronald Lamola, firmly believes that the solution lies beyond political leadership. In his approach, he refused to focus on the mere political in-fighting of the ruling party by calling for "a social compact between civil society, private sector and government to build a just society…[because] the relationship between justice and economic freedom is highly contingent on how all social partners implement our Constitution." (Pule Leshwiti-Jones, "Rule of law under threat without the socio-economic inclusion of majority – Lamola" News24, 30 July 2021).

Clean-up efforts "have demonstrated that a more equitable and multiracial future is possible, but that we have to create it ourselves." (Mthiyane W and Brig-Ortiz "Steps to take for the reincarnation of South Africa", Daily Maverick 20 July 2021, dailymaverick.co.za).

The call from the Minister is one to South Africans from all walks of life…to become activists to dismantle the legacy of apartheid, because it is when we show a unity of purpose that we succeed. He relies on the recent acceleration of the vaccination programme as a stellar example of the success achieved through co-operation between the private sector, civil society and government.

It is clear that the "riots are a warning shot demanding us to dismantle and reconstruct South Africa to make it a more equitable country for everyone." (Ibid).

Masondo writes in her personal capacity; she is a lawyer and sits on numerous boards of directors.