09 Oct 2014 | Tony Leon | Times Live
As a detribalised attorney, I
am pleased that, thanks to the Oscar Pistorius trial, so many lay people are
now on nodding terms with such esoterica from the realm of criminal law as mens
rea and dolus eventualis.
“Folk in Hong Kong protesting
for democracy? Ukraine wanting Russia to leave it alone? Not on our agenda”
But it is from our civil law that we can take a concept that goes some
way towards finding the truth in the accusations and counter-accusations flying
between the mayor of Cape Town, Patricia de Lille, Archbishop Emeritus Desmond
Tutu and former president FW de Klerk (an interesting alliance) on the one
side, and the presidency on the other.
The most recent verbal mortars were fired after the announcement last
week that the 14th World Summit of Nobel Laureates had been canned in Cape Town
and would relocate offshore. This unprecedented sanction, at least in our
post-apartheid brave democratic age, which was meant to end isolation, has been
imposed on us by some of the most admired people in the world. They have done
this because of the government's refusal to grant the Dalai Lama a visa to
attend the summit.
The Roman Dutch mouthful eceptio doli generalis simply means that a defendant
can raise the defence that the plaintiff has not acted in good faith, or that
he cannot set up his own bad conduct, such as intimidation, to prosecute a
claim against someone.
For technical reasons back in 1988, the Supreme Court of Appeal ruled
that it did not apply in South African law. But it is a handy term to divine
the truth around the Dalai Lama saga, perhaps the final nail in our claims to
be a country that acts as an independent sovereign, not as a client of China.
It might also answer the question: do we still practise, not breach, the
famous Nelson Mandela 1993 formula that pinned our foreign policy to the mast
of "human rights"? On all current evidence, we do not, but let's see
who is telling the truth on this issue, not just relying on prior bad conduct
to assert a claim.
In the Dalai Lama case, the president's spin doctor (by now he must be a
specialist surgeon in the dark arts of communications), Mac Maharaj, was
furiously unequivocal.
He slammed the mayor's statement (and by implication De Klerk's as well)
as "inaccurate and misleading" and stated that the government had
been informed by the Dalai Lama's office that he would not be attending the
summit. This meant the holy man was "thus effectively cancelling his visa
application", Maharaj triumphantly proclaimed.
Well, as they say in the classics "you can't bulls**t a
bulls****er".
Entering the row next was Dave Steward, who knows a thing or two about
government communications, having headed the "Bureau for Information"
when PW Botha imposed his states of emergency in the 1980s.
From his current perch as head of the FW de Klerk Foundation, Steward
said Maharaj was guilty of a "terminological inexactitude" and
pointed out a simple fact: On September 4, the Dalai Lama's representative had
been contacted by an official at the Department of International Relations and
Cooperation [by telephone no doubt, and thus no danger of a paper trail] who
"had informed her that the Dalai Lama would not be granted a visa".
Only after this unwelcome news did he withdraw his visa application.
Talk about the exceptio doli, or relying on bad conduct to perfect your
claim, and there you have it.
The letter that 14 Nobel laureates sent to President Jacob Zuma asking
that the visa be granted received no response, and certainly not the
"terminological inexactitude" cooked up later by Maharaj.
Case closed. Except of course, we do apply a human rights, rather than a
realpolitik, standard elsewhere.
The ANC and the toy-town revolutionaries of its youth league are in full
cry sanctioning, boycotting and disinvesting from any organisation that dares
to stock chopped herring, or whatever, sourced from the gardens of
"apartheid" Israel. And if, as its ally Cosatu maintains, this should
include sanctioning the most cost-effective and medically reliable Israeli
circumcision device (after all, which country has practised this longer?) then
so be it, even at the cost of saving our own lives. Ideology comes first. Folk
in Hong Kong protesting for democracy? Ukraine wanting Russia to leave it
alone? Not on our agenda - wrong places, wrong opponents, wrong ideology.
But thinking back on the high place in the world we occupied under
Mandela, this simply proves, as Christopher Hitchens noted, that when you fall
from a great height, the descent can be very swift.
• Leon is the author of Opposite Mandela
(Jonathan Ball) Follow him on Twitter: @TonyLeonSA OR on Facebook: facebook.com/TonyLeonSA
No comments:
Post a Comment