Abuse of the courts

THE recent cases of hate speech against ANC Youth League president, Julius Malema have thrust into the open an emerging trend - the employment of the courts, quasi-judicial institutions, and media to address issues that proponents know they will fail to win in the open market of ideas and political contest.

THE recent cases of hate speech against ANC Youth League president, Julius Malema have thrust into the open an emerging trend - the employment of the courts, quasi-judicial institutions, and media to address issues that proponents know they will fail to win in the open market of ideas and political contest.

I hold no brief for the ANC Youth League; they can answer for themselves. My argument here is about the effects of resorting to the courts and quasi-judicial institutions to challenge matters that require political contestation.

A matter that has not received attention is the effects that these developments have on the meaning of liberation for black people, and what still needs to be done to advance black people's struggle.

Recent examples of a turn to the courts include: the case of Captain Renate Barnard and her fight to be promoted in the South African Police Service . and the hate speech cases brought before the courts against Malema, directly and indirectly.

While the above are the most written about in the last few days the other important practice of using the courts are the numerous cases brought by Afrikaner groups against the restoration and affirmation (not renaming or name change as erroneously coined) of city and town names.

This trend demonstrates a number of factors about the nature of our society, post 1994.


The first and most important is the class nature of our society. Writing in his 1845 book, The German Ideology, Karl Marx wrote: "The ideas of the ruling class are in every epoch the ruling ideas, i.e. the class which is the ruling material force of society, is at the same time its ruling intellectual force."

Given South Africa's history of racialised capitalist accumulation and the subsequent consolidation of this position post-1994 it is the white component of our society that still controls the means of production. This position of continued privilege means that, on the whole, whites continue to shape thought processes in society.

Access to material means ensures that the ruling class, which is largely white - and not the political class, which would mean the ruling party - is able to use the courts and other sectors to advance its interests.

The media is another platform that the white ruling class is able to use effectively.

So, if the view canvassed through the courts and the media is that a historical song constitutes hate speech everyone in society starts believing that that is the case.

It doesn't matter whether the writer of a particular newspaper article is black or white. Someone might be black but the ideas are effectively those of the ruling class.

A typical example of how these thought processes work is the latest call for lifestyle audits. The debate is such that a less critical person would think that the black bourgeoisie is the only class that is capable of being corrupt.

Very little is ever heard through the media about the corruption committed by white persons and companies, except for the exposés in the magazine Noseweek.

The class nature of our society and how it shapes our thinking processes is beginning to take the form already manifest in the US - rightwing political lobbying and practice.

As in the US those who resort to using the courts advance mainly right-wing political agendas; from a fight against affirmative action through to frustrating efforts to restore city and town names.

Does that mean, though, that aggrieved groups in society should not resort to the courts to obtain relief?

That is not my argument. In fact, there have been a number of judgments that found in favour of the working class. Some judges have, without saying it, adopted what is known in the US as 'judicial activism' in favour of poorer sections of the society.

My point is that we need to expose the underlying class and race motives behind the developments alluded to in this article. It is my considered view that these developments reflect an unpronounced admission that certain world views no longer appeal to the majority.

As a result, the only route to preserve them is to use those platforms that are not regulated to popular will. For instance, a simple consultation process about the name Tshwane will be in favour of the restoration of that name. Instead, the courts are used to punch holes in the processes to restore the name.

Another strategy related to the use of the courts is the use of pseudo-research and adoption of scare tactics. For instance, the song Ayasab' amagwala is suddenly the root cause of farm killings. The song will, similar to an earlier and related ruling by the Human Rights Commission against the song Kill the Boer, Kill the farmer, cause "psychological harm".

The actual root cause of crime and psychological harm, which is the violent history of this country under the white minority regime and systematic dehumanisation of its peoples which led to the production of an army of brazen and heartless criminals, is conveniently forgotten.


Affirmative action is suddenly to blame for a few white people not having access to jobs. The reality that 99percent of white graduates find employment immediately after completing their tertiary education as compared to less than 50percent of black graduates who secure a job is conveniently ignored.

The fact that the entire world is undergoing skills shortage is suppressed.

The restoration of the city and town names, according to right-wing advocates and commentators, is a waste of money "that can be used for service delivery". This new concern for the poor is interesting coming from those who over the years systematically condemned the black-working class to a life of poverty.

All these strategies are adopted because their proponents know very well that they are unable to convince the majority of our people. As such, the courts, quasi-judicial organs of state such as the Human Rights Commission, and the media are used effectively to shape ideas in the society.

What then needs to be done to reverse this trend? Can it be reversed in the first place?

The reality is that in the era of the dominance of a liberal ideology, where the courts have assumed the role of supreme arbiters in social dialogue it will be difficult, if not impossible, to reverse this development. But it is possible to contest this development by exposing its true racial and class nature.

It should be possible, through robust debate, to expose the role played by the courts and certain elements within the judiciary who consistently hand down questionable judgments that have an effect of undermining the trajectory of our liberation and efforts to improve the quality of life of black people.

l The writer works for the City of Tshwane. He writes in his personal capacity