9✗ WEDNESDAY OCTOBER 16, 2013

THE MERCURYFollow us on Twitter@TheMercurySA Opinion

THE Constitutional Court has beenof seminal importance for the im-plementation of the democratic dis-pensation since 1994 in order to givecredible and cogent effect to the su-premacy of the constitution and avibrant human rights culture.

It has been manifestly the mostesteemed court in the land, beingthe ultimate guardian of a progres-sive and universally admired consti-tution which is the supreme law ofSouth Africa. Its erudite, exemplaryand bold jurisprudence is perusedand studied inother illustriouscourts, such asthe House ofLords, the Amer-ican SupremeCourt, the Indi-an SupremeCourt and theGerman Consti-tutional Court. Ithas had eminentjurists of worldclass who haveled the courtwith distinction, such as ArthurChaskalson, Pius Langa andSandile Ngcobo. They have left aninvaluable legacy that should not besquandered or tainted.

It is therefore a matter of pro-found sadness and regret that itsreputation and esteem are nowbeing tarnished by the ongoing sagainvolving the Judge President of theWestern Cape, John Hlophe, in theSpecial Disciplinary Tribunal, setup by the Judicial Service Commis-sion (JSC). This state of affairs hasits genesis in the serious allegationsthat Hlophe had attempted to defeatthe ends of justice by trying to influ-ence two Constitutional Courtjudges to give judgment in certaincases in favour of President JacobZuma.

Although the matter has beensimmering for five years and it wasfervently hoped that it would reachfinality when it was to be adjudicat-ed on by the tribunal, an unprece-dented development has now oc-curred with potentially prejudicialconsequences for the integrity, es-teem and indeed independence ofthe Constitutional Court and itsmembers.

Bizarre twist

In what can only be described asa bizarre twist of events, the twoprincipal witnesses, ConstitutionalCourt Justices Chris Jafta and BessNkabinde have in an unprecedentedvolte face refused to appear beforethe tribunal.

It was argued on purely technicalgrounds that Judge Hlophe had nocase to answer, since Justices Jaftaand Nkabinde had refused to givesworn statements, to appear beforethe tribunal to confirm their erst-while complaint and subject them-selves to cross-examination.

The chairperson of the JSC dis-ciplinary tribunal, retired JudgeJoop Labuschagne, dismissed theobjection that there was no validcomplaint, and held that there wasindeed a valid complaint and there-fore that the tribunal would have toaddress the substance of the com-plaint.

However, in a further develop-ment, as a result of JudgeLabuschagne’s dismissal of theobjection, Justices Jafta andNkabinde decided to institute a re-view application of the dismissal.Moreover, Judge Hlophe is reportedto be considering throwing his lot inwith the review application. Thiscould greatly prolong proceedings.

As a result, the motives of thetwo Constitutional Court judges arebeing openly impugned. Why havethe two judges changed their minds?

Who is, and who is not, tellingthe truth? Has any undue pressurebeen brought to bear? Althoughthese are profoundly painful ques-tions, failure to address them imper-ils our system of justice, which ispremised on integrity, honesty andpublic esteem.

It is therefore at least the charac-ter of three very prominent judges,who will continue to adjudicate andgive judgments in the highestcourts, that is being called into ques-tion. This is indeed a tragic tale ofwoe that threatens to cast a darkshadow over the judiciary.

● Devenish is EmeritusProfessor of Public Law at theUniversity of KwaZulu-Natal(Durban) and one of the scholarswho assisted in drafting theInterim Constitution in 1993.

Hlophecasecasts adarkshadowon SA

by GeorgeDevenish

TO THE girls I knowand to the billions Idon’t: Without exceptionevery one of you is gifted,talented, uniquely curios.

You are to be treasured. Believe your parents or

teachers when they ex-press something similar.

It is not said just to getyou motivated.

Talent, power andbravery are divinely endowed.They are yours. They are in yourbones, your soul; in the depths ofyour spirit and your being.

In the best of company youruniqueness, your talent and thepower within you will be encour-aged, respected and deeply valued.

But, some will try to exploit,ignore, or squelch you, and do sooften in the “nicest” of ways. Don’t

co-operate. Not formoney, fame, recogni-tion, or even to belong.Stay out of control.

Arm yourself bychasing education, re-jecting the foolish, per-vasive belief that beau-ty is skin deep. Use yourvoice as early, quicklyand as loudly as possi-ble. Stand up for your-

self. Speak up. Express your views.Do it now so it becomes a way oflife. Flee all who are more interest-ed in your charm or your beautythan they are in your appreciatingyour brain and respecting yourvoice.

THE BLUE flags are back on Dur-ban beaches, Poetry Africa is alsoback and another glorious Durbansummer beckons us to the wonder-ful public space at the beachfront.These should be good times inDurban.

But the crisis around housing inCato Crest is doing massive interna-tional damage to the city’s reputa-tion. There have been protests inglobal capitals, churches, interna-tional human rights organisationsand some of the greatest intellectu-als of our time have expressed theirdeep concern about Cato Crest.Bishop Rubin Phillip, so often themoral consciousness of this city, hasexpressed his outrage. Protests areplanned across Europe on October19.

The Cato Crest crisis did notcome out of nowhere. The city’shousing programme has been con-troversial for years. Unlawful evic-tions, shocking conditions in shacksettlements, the return of the hatedcolonial institution, the transitcamp, and tiny, poorly constructedhouses on the edges of the urban pe-riphery have all been condemned.

Then there was the whole deba-cle around the Slums Act, pushed bythe previous leadership of theprovince but later found to be un-constitutional. But following thescandal around the massive andquestionable wealth of tenderpre-neurs, as well as the revelations inthe Manase report, there is evidenceof corruption in housing.

It is a perfect storm of social toxi-city and requires a radical rethinkon the part of the government –local and national. There needs to bedecisive action against corruption

and a radical rethink of how thehousing crisis is approached. In herimportant book Cities with Slums

Marie Huchzermeyer, the head ofthe town planning department atWits, shows that in recent years thestate has tended to see the shacksettlement as a threat to be eradicat-ed rather than a space requiringdemocratic engagement and socialsupport.

In Cato Crest there have beenconsistent allegations of massivecorruption, party political bias andethnic discrimination against peo-ple from the Eastern Cape.

According to advocate Ismael Se-menya, of the General Council ofthe Bar, there has also been repeatedillegality on the part of some in themunicipality. A number of com-menters have serious concernsabout what has been termed “theblatant disregard for the courts andthe rule of law”.

But the reason why the situationhas created such waves internation-ally, and the reason why it is doingsuch serious harm to Durban’s repu-tation internationally, is the uncon-scionable violence with which theopposition to corruption and illegalevictions has been repressed on theground.

Two activists, ThembinkosiQumbelo and Nkululeko Gwala,have been assassinated. A 17-year-old girl, Nqobile Nzuza, was shot

dead, in the back of her head, by thepolice. Two other activists have alsobeen shot with live ammunition, oneby the police and one by the Land In-vasions Unit.

There have been constant allega-tions of assaults by the police. Therehave also been constant allegationsof death threats against activists. Aweek ago, award-winning activistMnikelo Ndabankulu was publiclythreatened with death on GagasiFM.

Outrage

Part of what is creating such out-rage is that no one has been arrestedfor these killings, shootings andother forms of intimidation, yet atthe same time a courageous youngwoman, Bandile Mdlalose, was ar-rested, held in Westville Prison andreleased on a shockingly high bailfor organising a protest against themurder of Nqobile.

In the eyes of many of Durban’spoorest citizens, and in the eyes ofthe world, it looks like the dark daysof repression are back. In this con-text, many shack dwellers in Dur-ban are organised into the largestsocial movement to have emergedafter apartheid, Abahlali baseMjo-ndolo.

When people are unorganised re-pression can often be effective incrushing their struggle. But when

people are well organised it is oftenpossible for repression to be resis-ted. The attempt to try to crush so-cial movements with violence is onethat has backfired massively on thepowers that be.

There have been, and will contin-ue to be, court actions. There havebeen road blockades around the city.There is also a rapidly escalatingcampaign of international solidari-ty. The city’s ability to govern itspoor residents without their consentis in peril. At the same time thecity’s international reputation is atreal risk.

It is clear that further repressionwill lead to further popular resist-ance and massive internationaldamage to the city’s reputation.

What is needed now is a credibleinvestigation, immediate action toarrest those responsible for the as-sassinations and shootings in CatoCrest, a return to the rule of law bythe city and a serious attempt to re-solve the escalating conflict betweenthe city and its poorest residentswith negotiation rather than vio-lence. The situation is grave and thetime to act is now.

●Buccus is a research fellowin the School of Social Sciencesat UKZN and academic directorof a university study abroadprogramme on politicaltransformation.

Frank negotiation, not violence,will help city and shack dwellers find each other in the mayhem

Durban’s housing crisis needs a rethink

You & Meby Rod Smith

● Smith is a family therapist inthe US. He can be e-mailed at Rod@DifficultRelationships.com

CHINA is constantly at thesharp end of Western ac-cusations that it is infring-

ing intellectual property rights. The latest US government vio-

lations report keeps it on a prio-rity watch list of 10 nations.

But theft of patents, designsand copyright is not just a pro-blem in the countries that arenamed and shamed. It is aninternational phenomenon thathas no boundaries. Hon Lik, theChinese inventor of the electro-nic cigarette, well knows that. Heclaims he is being robbed of afortune by companies in Chinaand elsewhere that are unlaw-fully making copycats.

Hon is widely acknowledgedas the creator of the smokelesscigarette and the firm he co-founded, Ruyan, has been sellingit on the mainland since 2003.

Patent protections are held byDragonite International, a HongKong-listed company of whichhe is chief executive. A numberof American companies have

been sued and several more arebeing pursued, but that has notdeterred countless other firmsthere and around the world fromillegally profiting.

The e-cigarette market is ex-ploding, especially in Europe andNorth America. Tens of millionsof the world’s 1 billion smokershave turned to them in the beliefthat they are less harmful thantraditional tobacco products.

Researchers at Wells Fargo &Co predict that global sales willnear $2 billion (R20bn) by theend of the year and top $10bn by2017. There are likely to be un-scrupulous business people insuch an environment.

Hon’s companies do not havethe resources to pursue everypatent infringement. Nor cancases always be promptly han-dled and processed

China has challenges in en-forcing intellectual propertyrights protection but, as the e-cigarette shows, so too can West-ern nations.

SOUTH Africa’s medical pa-role system has come intosharp relief in recentweeks, with two of the

most high-profile beneficiariesbeing seen out and about. In dis-graced former police commis-sioner Jackie Selebi’s case, thiswas going into a local shop onan errand, albeit driven there bya driver.

In the case of Schabir Shaik,the convicted former financialadviser of our president, it wasslightly more of an active pursuit– allegedly clubbing his caddiewith his wedge and stomping onhim with his golf shoes.

Both Selebi and Shaik were re-leased from prison on medicalparole. Selebi was serving a 15-year jail sentence when he wasfreed after 229 days because ofkidney failure. Shaik served twoyears and four months of his 15-year sentence before beingreleased owing to his “uncon-trollable” hypertension.

Both men were released be-cause the Department of Correc-tional Services was apparentlyunable to treat their conditionsin jail hospitals. Nobody in theirright mind would wish eitherman dead, or harm, for that mat-ter. The reality is that both of

them were duly convicted ofvery serious offences. In Shaik’scase, he suborned the deputypresident of this country and gothim fired in the process. The factthat the same person ended upbecoming president, and theNPA opted not to charge him,is a subject for another day.

Selebi gave crime intelligencereports to his “friend”, a druglord.

Selebi and Shaik were sup-posed to spend a major portionof their remaining lives behindbars for these crimes. We cannotquestion the advice of medicalexperts who testified to thesemen’s terminal illnesses, but, likethe rest of South Africa, we canponder their apparent miracu-lous recoveries to non-immi-nently terminal status.

And we can wonder, too, justwhy – if they are in such appar-ent rude health, particularly inShaik’s case – their parole has notbeen reviewed, if not revoked.The message, whether Selebi orShaik’s camps like it or not, isthat freedom for these menshows that there is one set oflaws for those who are connect-ed, and another for the rest of us.

And no amount of spin willever change that.

Spin worn thin

WE ARE writing to urge politiciansto respond to recent police violenceand contraventions of the courts inDurban. On September 30, NqobileNzuza, 17, was shot and killed by liveammunition, which witnesses saywas fired by the Cato Manor police.

During the months leading up toNqobile’s death, her community ofCato Crest was undergoing forcedevictions that, the General Councilof the Bar noted with concern in anopen letter, the courts had interdict-ed no less than three times.

Previously, Nkululeko Gwala,who prominently had drawn atten-tion to housing corruption in thearea, was killed after receivingdeath threats. Several other activistshave been shot by police.

Activists outside Cato Crest alsohave been arbitrarily arrested, in-cluding Bandile Mdlalose, who hasreceived national recognition as acivil society leader for her work withAbahlali baseMjondolo. Other lead-ers, such as S’bu Zikode, the found-ing president of Abahlali, have beenthreatened with death.

The escalation of violence comesat a time when the Independent Po-lice Investigative Directorate esti-mates that police assaults have in-creased by 218 percent.

There have been 4 047 cases of as-sault, 275 deaths in custody, 22 rapesin custody, 50 cases of torture, and641 complaints of the discharge ofan official firearm. Human rightsgroups such as Amnesty Interna-tional have documented similarlyalarming trends. Adding to the state-ments made by lawyers, scholars, re-ligious leaders, activists and organi-sations in South Africa and abroad,we ask that attacks on activists andtheir homes in Cato Manor beceased, to fairly investigate thekillings and other incidents of vio-lence policing, and to move forwardthrough meaningful negotiations.

Violent policing makes everyoneless safe, and in any free, open anddemocratic society, it should not betolerated.

PROFESSOR LUCY WILLIAMS,

Northeastern University School of Law,

PROFESSOR KARL KLARE,Northeastern School University

School of Law, LISA KELLY, S J D candidate,

Harvard Law School, DR LAURENCE RALPH,

Departments of African andAfrican American Studies and of

Anthropology, Harvard University,ASSISTANT PROFESSOR AZIZA

AHMED, Northeastern UniversitySchool of Law, Boston,

PROFESSOR BROOK BAKER,Northeastern University School

of Law, and Honorary

Research Fellow, University of KwaZulu-Natal,

DR GURCHATHEN SANGHERA,School of International Relations,

University of St Andrews, DR KERRY CHANCE,

Anthropology Department,Harvard University,

DR MICHELLE BURGIS-KASTHALA,

Public International Law School ofLaw, University of Edinburgh,

DR VALENTINA AZAROV, Human Rights and International

Law Al-Quds Bard College, Al-QudsUniversity, Abu Dis, Palestine,

HEIDI MATTHEWS, S J D candidate, Harvard Law

School; Fellow, Institute for GlobalLaw and Policy, Harvard Law

School; CLARK BYSE FELLOW,

Harvard Law School; Fellow, FilmStudy Center, Harvard University,

ASSOCIATE PROFESSOR CYRA AKILA CHOUDHURY,

Florida International University,College of Law, Miami,

ZINAIDA MILLER,Fellow, Institute for Global Law and

Policy, Harvard Law School PhDcandidate, The Fletcher School,

Tufts University, Boston,ALEJANDRA AZUERO-QUIJANO,

Fellow, Weatherhead Center forInternational Affairs, Harvard

University, SJD Candidate HarvardLaw School,

DR PAUL O’CONNELL, School of Law, SOAS, University

of London

Tollgate has a richhistory in DurbanIN RESPONSE to Michael Corrig-more’s question as to the origin ofthe name Tollgate in Durban (TheMercury Forum, October 14), I canconfirm that a tollgate did exist atthe top of Berea Road.

The gate and the tollkeeper’shouse were erected in 1866 at the cityboundary, situated where RamsayAvenue fed into Berea Road beforethe building of Tollgate Bridge. Thetollkeeper’s house straddled the

house Ridgeton, or No 3 Ridge Road,initially owned by John Ramsay andlater by Edwin Corbishley.

The first tollkeeper, appointed in1866, was Henry Bird. What is cur-rently referred to as the WesternFreeway, was not always free.

According to the late historianKillie Campbell, both the tollkeep-er’s house and the gate were re-moved at the beginning of the 20thcentury and the gate was then rein-stalled at a home in Kloof.

In July 1970, a woman, signingherself only as Mrs M, reported thatthe “small tollgate” was in her backgarden in Kloof.

IAN CORBISHLEYDurban

Good old days when6d got you throughVICTORIAN and Edwardian Natal,a coffee-table book by Verbeek, hastwo pictures of the tollgate function-al in the 1870s. The fee was 6d.

JANET LEVYWestville

Don’t miss concertheld for ChildlineA CONCERT to raise much-neededfunds for Childline KZN will be heldat Live-The Venue, at 166 MatthewsMeyiwa (Stamford Hill) Road,Greyville, on Saturday, October 26.

The show will feature local bandsSalty Dog, Zwarte Piet Band, Cus-tomized, Gainsford, ARB, East CoastBasement Blues Band, F ’n Rits andBobby & The Dynamites. With actorand comedian Frank Graham.

All these artists will performfree. The management of Live hasoffered the venue, equipment andsound crew free of charge.

The venue will open at 5pm andthe music will start at 5.30pm. Therewill be raffles and lucky draws .

Anyone wishing to donate itemsor wanting more information can e-mail callmesmelly@gmail.com, orphone 078 264 9475.

ERROL “SMELLY” FELLOWSDurban

Now follow up withaction, Mr PhosaWHETHER it is because MathewsPhosa is no longer an ANC nationalexecutive committee member thathe speaks out with such convictionagainst corruption, or because he istrying to instil confidence in a shakyelectorate, he should be commendedfor his strong words (“ANC hasfailed to deliver” (The Mercury, Oc-tober 9).

However, he says he remains acommitted member of the ANC andthat “the ANC is an anti-corruptionparty”. His words become meaning-less, hypocritical drivel as long as heserves a president who has over 100charges of corruption against him,and who has been content to sacri-fice the judiciary and our countrytrying to keep himself out of jail.

He talks about trying to save aonce great liberation movement thathas become rotten.

It is too late, Mr Phosa, the dam-age is done. The only way forward isto impeach the president and try toreplace the leadership with honestmen and women. How this would bedone when the opposite is so deeplyingrained I cannot imagine.

We have to accept that there wasan old ANC and now a new ANC, theformer a proud and great liberationmovement, the latter a disgrace.

For anybody voting for the ANCin its current form, you get the go-vernment you deserve.

So, millions will vote for the ANCnext year with a thank-you vote, thesame vote that kept the Nationalistsin power for 40 years. Theirs was athank-you for liberating the Boersfrom the Brits; now we have blindsupporters of the ANC who will givetheir vote to the ANC for liberatingus from apartheid.

How sad that a country such asours with such huge resources, suchbrilliant people and such beauty, hasbeen hijacked by a small bunch per-fectly happy to turn us into anotherZimbabwe.

BEEZY BAILEY Cape Town

Robbed far and wide

A pleafor thevictimsof CatoManor

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Man may have discovered fire, but womendiscovered how to play with it. – Candace

Bushnell, author of Sex and the City

Yourviews

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Thought for the day

Second take From the South China Morning Post

by ImraanBuccus