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