Don’t think the judiciary can’t be captured

Helen Zille responds to the media push back against her comments on the ANC and the ConCourt.

“All Truth passes through three phases, first it is ridiculed, second it is violently opposed, third it is accepted as being self-evident.”

This profound insight comes from German philosopher, Arthur Schopenhauer, and is as true today as it was in the 19th Century.

South Africa is a living testament to this insight.

An example: When the DA first raised the risks of ANC cadre deployment more than 20 years ago, and pointed to its inevitable trajectory from cronyism to corruption and finally the captured, criminal state, we were laughed out of court.

After all, it was the height of Mandelaphoria, and the great man himself had presented the cadre deployment proposals to the ANC’s Mahikeng conference in 1997, to (mostly) uncritical media acclaim.

Around 2016, two decades later, the media suddenly “discovered” state capture, and there has been a glut of reporting on it ever since, even though it is still poorly understood.

Most of them, to this day, erroneously think that state capture involves the Guptas “capturing” institutions of state. Not so. It is about the dominant faction of the ANC capturing nominally independent state institutions — from the National Prosecuting Authority, to the Police, the SABC, State Owned Enterprises, the Human Rights Commission etc — and bending them to the ANC’s will.

In recent days, I have resurrected a subject I have addressed repeatedly before — the ANC’s capture of the Judicial Service Commission, which has arguably the most crucial job in a constitutional democracy:- the nomination of senior advocates to serve as Judges, and to recommend senior Judges for appointment to the Appellate Division and the Constitutional Court.

My recent focus on this subject was prompted by the belated decision of the JSC (almost 20 years too late) to impeach Judge President of the Western Cape, John Hlophe, for “gross misconduct”. I wrote an analysis of the JSC’s profound failures in this recent article.

I myself served on the JSC during my tenure as Premier of the Western Cape — and saw it gradually degenerate into a cadre deployment arm of the ANC. More often than not, the ANC nominees and MPs arrived at these crucial meetings, with a “mandate”. They knew who to support, irrespective of the candidate’s track record. In sometimes became apparent that some ANC members of the JSC had not even read the preparatory papers before presuming to vote in support of aspirant Judges.

I wrote about that on several occasions too, including this article dated October 13, 2014.

No-one paid much attention at the time. The media was still at the “ridiculing” phase of Schopenhauer’s Truth sequence in relation to state capture.

The big problem in failing to spot these trends early enough, is that the rot accumulates silently, until suddenly, institutions crumble.

State capture happens, as they say, in two stages: First slowly, then quickly.

And, with the judiciary, the pace is quickening and becoming more visible — which is why suggestions to this effect are met with “violent opposition”, the second phase of Schopenhauer’s time series.

The interesting thing is that the ANC has never hidden its intentions of capturing the judiciary.

Way back in 1998, writing in the ANC mouthpiece Umrabulo, Joel Netshitenzhe described the movement’s aim “to extend the power of the national liberation movement over all levers of power: the army, the police, the bureaucracy, the intelligence services, the judiciary, parastatals and agencies such as regulatory bodies, the public broadcaster, the central bank and so on”.

There you have “state capture” in a nutshell. The ANC never hid its intentions. It is perhaps the only project the party has ever successfully undertaken. But, as I have learnt, if you even dare to insinuate that it may be succeeding, especially in relation to the judiciary, the woke media will more than fulfil Schopenhauer’s second-stage of “violent opposition”.

This, despite the fact that not too long ago, we heard before the Zondo Commission of Inquiry, that the ANC’s cadre deployment Committee discussed ANC deployees to the Judiciary (including, apparently, the Constitutional Court)!

Worse still, in his evidence before the Zondo Commission, former Minister Sydney Mufamadi, who had investigated the rot in the intelligence services, revealed that there was a secret State Security Agency Slush Fund, earmarked to buy-off judges.

That sensational revelation caused a mere ripple of concern, and a little red rash of reporting, when it should have been relentlessly pursued by the media, until they established what the money was used for, and if judges were paid off, who they were.

The crucial question also arises: why was Arthur Fraser, the alleged master-mind behind these “special projects”, not called to give evidence to the Zondo Commission and face cross-examination on the slush fund to buy-off judges?

While this earth-shattering revelation was allowed to die a gentle death, the woke media’s “violent opposition” was reserved for those who suggest that something may be rotting in the state of the judiciary.

Take the latest brouhaha over the ANC’s failure to meet the IEC deadline for the submission of its lists in 93 municipalities.

Claiming that the IEC’s technology and Covid 19 had thwarted them, the ANC lodged legal papers with the Electoral Court, seeking an order for the re-opening of the candidate nomination process.

Then inexplicably, within hours, the ANC withdrew its court appeal, without clarifying what had caused it to change its mind in the short space of time between the submission and the withdrawal.

The ANC merely said it would now wait for the Constitutional Court to rule on the IEC’s application to postpone the election to February 2022 — in which case the timetable will be changed and the registration period, both for candidates and voters, will re-open.

Die Burger, the only remaining readable Western Cape daily, ran a front page article the next day (1 September) speculating on the reasons why the ANC withdrew its appeal (in the absence of any credible explanation by the ANC itself) and quoted Professor Andre Duvenhage of the University of the Free State suggesting that the ANC must have received inside information that the IEC’s application to have the application postponed would succeed.

As the newspaper’s quote was confusing, I telephoned Professor Duvenhage myself, who unambiguously repeated this view to me. I also telephoned the journalist, Llewellyn Prince, who told me that the correct version of Professor Duvenhage’s quote had appeared in his original article, published by Netwerk24 and confirmed the Professor’s quote.

Armed with this background I posted a series of four numbered tweets summarising the situation:

1) Die Burger this morning doesn’t mince its words. In its headline it suggests that the ANC must have received inside information from the Constitutional Court, which led to the ANC withdrawing its case before the electoral court to re-open candidate registration.

2) The context is this. If the ConCourt enables the IEC to postpone the election, then it presses the “re-set” button and it issues a new timetable, which will enable the ANC to re-register its candidates. So the ANC would not have to get permission from the Elec Court.

3) The ANC’s withdrawal from the Electoral Court indicates that they have been tipped off that the IEC’s application to postpone the election was successful. If information is leaking from the Concourt to the ANC, it is nothing short of an Constitutional crisis.

4) If this is so, cadre deployment will have destroyed every institution, right up to the ConCourt, turning them into instruments of ANC power abuse, rather than protectors of the people against ANC power abuse. That is the crisis we are facing now. SAns must wake up.

Nothing in any of these tweets that had not been said before. But, the outrage manufacturers in the media went into overdrive.

I was more than a little bemused.

Why, I asked myself for the umpteenth time, don’t most of the media take the ANC’s stated intentions seriously until it is far too late?

The ANC has been entirely open about its plan to capture state institutions, including the judiciary, from the very start of our democracy.

Yet today, over 20 years later, if you dare suggest that the ANC may be succeeding in its quest to capture the judiciary, you risk howls of outrage from those self-same journalists who should have been exposing what has been going on for years, rather than excusing it.

Well, as they say, the truth will out, if not now, in the not too distant future. Then, tragically, we will reach Schopenhauer’s stage when the fulfilment of the ANC’s “state capture” strategy will all, very suddenly, be “self evident”.

Unless, of course, enough of us are prepared to do enough to stop it.

Which is why the DA (and I) will not hesitate to say what we believe to be true, and fight to set them right, whatever the consequences.

That is why we fight elections. And that is why voters, who once ridiculed the idea of voting DA, will suddenly come to the belated realisation that doing so should have been “self evident” all along.