‘Now is the winter of our discontent…’

Shakespeare: Richard III, spoken by Gloucester

'Despair is the state we fall into when our imagination fails. When we have no stories that describe the present and guide the future, hope evaporates. Political failure is, in essence, a failure of imagination' (George Monbiot, 2017).

Welcome to Judith's Prudence. Every two weeks Judith February will curate the latest legal-related journalism, events and analysis for your benefit. Know a legal professional who'd benefit from this? Forward it on.

If this newsletter had been written last week, it may have been wrapped in a black masthead in sheer lament. Instead, it is wrapped in the colours of our flag to remind us of who we are as we contemplate what has been lost in the past week.

Sometimes words do not suffice to describe deeply painful moments in the history of a country. We are in a trifecta of a political, social and economic crisis.

Our country is used to suffering and lament. On 10 July, we remembered the birth of Solomon Mahlangu who was hanged by the apartheid state on 6 April 1979. As he walked to the gallows, he said, ‘Tell my people that I love them and that they must continue the fight, my blood will nourish the tree that will bear the fruits of freedom, Aluta continua!’

Much blood was shed thereafter and continues to be shed in this bewildering and bewitching place.  Last week we tasted the bitter fruit of post-apartheid failures.  We saw violence and destruction on a scale we have never seen in a democratic South Africa.
It has shaken us to our very core.

President Ramaphosa said the quiet part out loud on Friday night when he said what we witnessed was an ‘attempted insurrection’ and an ‘attempt to dislodge the democratic state’.  Of course his minister of Defence and Military Veterans Nosiviwe Mapisa-Nqakula contradicted this which raises even more alarming questions about Ramaphosa’s cabinet.

We always knew that Zuma, still in an Estcourt prison, would fight to the bitter end. We heard his threats of violence, sometimes mumbled, other times spoken quite openly. We heard his son Duduzane Zuma urge people to ‘loot responsibly’ and we saw his daughter Duduzile, openly incite violence on social media.

There has been much analysis over the past week. Some of it has been a mixture of ‘I told you so’ and ‘This was always going to happen, why are we surprised?’

What we have also known for years is that our social compact, which was always tenuous even in the heady days after 1994, has been fraying to the point of breaking. No society with the levels of poverty and inequality equal to ours is viable or sustainable.

With a youth unemployment rate at over 70%, what chance is there for young people to buy into the future? Or, to buy into a constitution which they believe does not ‘deliver’ to them? Of course a constitution is not a self-executing document and so we need to ask some very serious questions about a government and a governing ANC whose internecine battles simply render it unfit for purpose.

While we have known all of this, very few would have predicted the attempted insurrection we saw last week- deliberate economic sabotage, trucks burning, food supplies cut, petrol shortages and hundreds dead.

I certainly did not.

In  fact, in the last edition of this newsletter, I wrote, ‘A former President is in prison. There has been no blood shed and no US-style January 6 insurrection. Our Parliament is not barricaded neither is the Union Buildings. The Constitution holds.’

That was true at the time of writing of course. Then came an ugly turn of events.  Tragically, blood has been shed. There was an attempted insurrection. Our constitution holds- barely, as this piece says so eloquently:

OPINIONISTA: The long-term threat to the constitutional model that South Africa chose in 1996 is real

I did not predict the haphazard nature of this, the bloodshed and economic sabotage, together with opportunistic looting and mayhem. It was a confusing picture to say the least. It was not as simple as an ‘Arab Spring’-type uprising or a food riot. It is a toxic mix of a multiplicity of factors.

What can be said is that it was sobering and its effects on us all will be lasting.  Everything has now been laid bare: the weakness of the state, the failure of the Police and Intelligence services and the full effects of state capture. Ramaphosa’s cabinet ministers looked at sixes and sevens, as did he in his first public address. Later he confessed that  government was surprised by what had happened. What a spectacular lack of preparedness.

Ramaphosa was clearly not prepared for the enemy within. What he does now (and the clock is ticking on that..) will be crucial and will define the future of his government.

At times of national crisis, leadership matters. This may well be the time to remember again Mandela’s leadership at the moment of Chris Hani’s assassination. It was Mandela’s act of leadership that pulled us back from the brink. Amidst the strong emotion of the moment, Madiba addressed a tense nation which may well have been on the brink of civil war that night.

And who can forget Mandela’s statesmanlike speech to a 200,000-strong crowd in Durban at the height of IFP-ANC violent clashes, when he said: “Take your guns, your knives and your pangas and throw them into the sea. End this war now.” He urged peace at a time when we thought peace was impossible – let alone a free and fair election.

It is this kind of leadership which is called for now, not only from Ramaphosa who looks and sounds battle-weary, but from those within civil society, the media, communities, political parties, business and religious organisations. We would seek it from the governing ANC, but it is too divided and compromised to provide truly wise leadership at a time such as this.

Ramaphosa has some urgent work to do. If he was waiting for a ‘break glass now!’ moment, this is it.

Pandora’s box has been opened and he should simply expend the political capital he has. To do so he will need to harness the overwhelming majority of South Africans and social partners against the common ‘enemy’ - those who seek to destroy the democratic state and endanger its citizens.

The first agenda item would be to restore order. While things seem to have quietened down, unpredictability and fear still stalk parts of KwaZulu-Natal and Gauteng. Ramaphosa said there are 12 individuals who are responsible for the mayhem and violence. ‘We know who they are’. Arrests should follow swiftly. If ever there was a time for consequences in this country of no consequences, this is it. A failure to hold those responsible to account will leave them free to threaten and destroy again. It will also substantially weaken Ramaphosa.

Secondly, Ramaphosa has a moment now to reshuffle his Cabinet: let us rid ourselves of the disloyal, the corrupt and the feeble. There is a running list of incompetents, stokers of violence and rabble-rousers that should go immediately.  Can we afford a minister of police known only for bluster and sartorial inelegance and whose loyalty to Ramaphosa is questionable? What of Lindiwe Sisulu, who rushed to Nkandla in heels before Zuma’s arrest and defended the appearance of men in fatigues? And, what of Stella Ndabeni-Abrahams, who said that Zuma understood the Constitution well and would speak out against the violence if he had access to proper communications? And of course a Mapisa-Nqakula who is comfortable to contradict the President before Parliament.

That there needs to be an urgent revamp of the intelligence agencies is obvious. It is worth noting that applications have been invited for the position of inspector-general of intelligence as required by Section 210(b) of the Constitution. This appointment is now more important than ever given the abject failure of intelligence over the past week. The same vigilance would need to be applied in the South African Police Service.

Thirdly and most importantly, we need to start the grand project of social reconstruction. Implementing a universal basic income grant would be a useful starting point. Organisations like SPII have done extensive research on this. See their latest press release here. 

We desperately need dignity for those on the margins of our society. This week the formal inquest into the Life Esidimeni deaths started.

Can there be any more proof (though it exists, sadly) of the inhumanity of the state towards those most vulnerable? This formal inquest started five years- yes, five years- after the tragedy. How callous is this state? But we know that it is when Michael Komape, a young child drowns in his own faeces in a pit latrine toilet. 'When the Komapes sued the state, it conceded the merits yet still continued to trial regarding the quantum of damages. ' This heartlessness and corruption must end. GroundUp tells the stories of the most vulnerable amongst us.

The social partners should be convened to think through urgent relief and creative economic intervention at this time of absolute crisis. But more than that, this is a moment for renewed citizen activism in every possible sphere of our society. What this past week has shown us is that ‘we are the ones we’ve been waiting for.’ South Africans have shown that they have little appetite for the destruction unleashed by insurrection. They have shown even less appetite to “die for Zuma”. What they did demonstrate was a will and a resilience to build a country and to protect their communities. Thousands of people across race groups have come out to clean their streets and towns and also to protect their malls and shops. It has shown the other side of who we are. Marianne Thamm writes about it here beautifully:

Marianne Thamm writes about it here beautifully:

Sabotage and violence in Zuma backlash awakens spirit of Mandela as thousands come out to rebuild

#CleanupSA — picking ourselves up: South Africans show solidarity and community spirit in aftermath of public violence

This is us: Those trying to tear South Africa apart…

This is us: Those holding South Africa together

Let us stop putting our faith in compromised politicians and instead build communities. This will mean understanding that our futures are intrinsically interlinked. Ramaphosa has encouraged us to clean our streets and our neighbourhoods: an excellent initiative in a country choking on its own litter and degradation.

Yet, Ramaphosa should not have been seen surrounded by people doing so in ANC regalia or Thuma mina! /CR22 sweaters. Really?

This should be a moment far beyond the tawdry, cannibalistic ANC internal party politics.  In fact, Ramaphosa should be seen on the streets with local leaders, opposition party leaders, churches and civic groups and coalescing society around community initiatives, big and small. It is the moment of political imagination Monbiot calls for.

This is where we are. Our constitutional order is hanging by a thread.

We decide whether it lives or dies. We, the people have that power. To the cynics out there, the ‘I told you so’ crowd, we say, we have been here before, albeit in different circumstances, and we have always chosen the better angels of our nature.

Branko Brkic, editor of Daily Maverick, provides us with some insights into using the constitution as a basis for reconstruction (yet again), ‘The likes of ‘Jacob Zuma and his RETinue abandoned politics this week and chose violence as their descriptor. They should never be allowed back into politics; most of them should be given a comfortable bed and three square meals in the correctional facility near them, for the longest time. The likes of Julius Malema, who chose, in the moment the country was on its knees, to come closer and land a kick in the solar plexus should be charged with fanning violence and declared persona non-grata. His politics of racist cowardice should be forever condemned.’

The next days and months will be tough- let us make no mistake. Jacob Zuma remains on trial for corruption, the Constitutional Court is still seized with the legal nonsense of a rescission application brought by Zuma’s unprincipled lawyers.  It is clear that Zuma, aided and abetted by the likes of Mpofu, has no commitment to constitutionalism. Mpofu shamelessly tried to intimidate the ConCourt during argument when he implored the justices to avoid ‘Marikana-style violence’.

The ConCourt should-especially not at this time- blink. If they do, our constitution would not be worth the paper it is written on.
In the last edition of this newsletter, I also wrote ‘We are at an important moment in our constitutional democracy.  Will the organs of state work to undergird the rule of law or will they prevaricate? It also goes far beyond Zuma but to the heart of the kind of country we want to be.’

In the circumstances it does feel rather odd putting together a newsletter detailing the next meetings at Parliament or about legislation wending its way through the system. But on reflection, it is now more important than ever to undergird the rule of law, to build our representative and participatory democracy and invoke the power of our constitution. Doing anything less would be to hand ourselves over to the thugs who instigated last week’s violence and sabotage.

While it will be difficult, we must meet this moment with clear-eyed vision and with a will and a plan to build the inclusive future that our Constitution demands of us.

Hard as it may be, we simply must find our way out of this long, dark night.

Until next time, stay safe. (We remain in a global pandemic, after all.)