Goals have little to do with soccer

Before this week’s blood-curdling threats issued against me by the Justice for Hlophe Alliance force me into the obscurity of a witness-protection programme, I thought that, like the nation, now in thrall to the Confederations Cup, I’d switch attention from politics to soccer.

But I’ve discovered that there is more than a stitch or two that threads together two of our nation’s, and the world’s, favourite pastimes.
And I’ve also learnt another of the perils confronting the apprentice weekly columnist: the tyranny of the deadline. This prevents me from knowing whether yesterday’s clash between Bafana Bafana and Spain reclaimed our national honour or not.

But last Sunday’s opening between our boys and Iraq resulted in what that country’s latter-day conqueror, George W Bush, would have called an “underwhelming” performance.
We stuttered to a goalless draw, and our team ignored the advice of the Sunday Times’s soccer maven, Carlos Amato, who had warned them that nothing short of “Zen concentration” would achieve a win.
Presumably, the reason for South Africa not attaining the single-minded concentration demanded by 12th-century Japanese Buddhists was that their attention was elsewhere.

It brought to mind a withering put-down I once heard of the talented, but underperforming Pakistani cricket team: “They are more preoccupied with issues in the change room than with the state of play on the field.”
One of the change room issues apparently occupying the minds of our players was a demand for R34-million from Safa, should they win the eight-team tournament. This led sports writer Mninawa Ntloko to harrumph in Business Day that “Bafana’s shameless greed and blatant opportunism” could prove to be “the team’s undoing.”
Whether their backdown from this “ransom attempt”, or opening-night nerves, or some other malady explained our disappointing loss of mojo is not known.
But, whatever perils await the Iraqi team back home, the advantage of post-Saddam Iraq is that their soccer team does not have to reckon with Saddam Hussein’s psychopathic elder son, Uday.

Apparently, a performance not to his liking could result in torture sessions, which included “ritual head-shavings”, “punching and slapping”, “sessions of kicking a concrete ball”, and “fitness work-outs that lasted 12 hours”.
But the international spotlight now shining on South Africa for the Confederations Cup has encouraged other sectors to ventilate their demands, and use the tournament as leverage to enforce them.

This week, the beleaguered and leaderless SABC was threatened by its unions with a blackout of Confed match coverage unless pay demands in excess of 12% were met.
Quite how the national broadcaster — R800-million in the red and seeking a taxpayer-funded bailout of R2-billion — intends to even pay its proffered 8.5% increase is an accounting mystery, a little like the creative book-keeping of our newly enthroned Ponzi king, Barry Tannenbaum.
A union official put the blackmail in straightforward terms: “No agreement, no Confederations Cup. .. a complete blackout.”
Doubtless, the cash will be stumped up, and the tournament will be televised.
Another no-show at the tournament was the much-anticipated Rea Vaya, the first phase of the bus rapid transport system.
The plug was pulled due to an election promise of President Jacob Zuma. Undoubtedly, its on-time introduction during the cup would have unleashed taxi mayhem on the streets.

Whatever the merits of the so-called Bafana “mercenaries” and other bandwagon climbers, the world of soccer is actually dominated by stupendous amounts of money. Three days before the Confed kickoff, Real Madrid set a world record when it paid £80-million for Manchester United’s Portuguese winger, Cristiano Ronaldo — making Bafana’s pay claim look like peanuts.
And this signing came just days after the club had paid £58-million to acquire Kaka, now on display here for Brazil, from AC Milan.
Those two transfers approximate half of the R4-billion national sports budget of South Africa.

Interestingly, Real Madrid was described by soccer writer Simon Kuper as “a populist democracy”. Its recently returned president, Florentino Perez, was elected by the club’s 70000 members.

The club, rather like a country, has no shareholders, only members. As Kuper explained, “he bought Ronaldo to please them”.
As I was totting up the revenue figures of Real and the other nine richest soccer clubs, all European (I arrived at the total of € 2.5 -billion), I came across a report stating that the world’s leading hunger fighter, the United Nations World Food Programme, had less than € 1.1-billion in its budget, and was obliged to slash its programmes and, among other cuts, suspend food distribution to 600000 seriously hungry people in northern Uganda.
As the old banking advert used to say, “It makes you think, doesn’t it?”

*Published Sunday Times 21 June 2009

Case for serious reflection in a dangerous season for justice

AFTER last Saturday’s M-Net-Via Africa literary prize I found myself in the unexpected position of participating in a post-award interview.
Trying to match the occasion with some book knowledge, I did no better than invoke the character of Robert Jordan in Ernest Hemingway’s A Farewell to Arms. He spoke of things “which are worth the fighting for”.

In the dying hours of the constitutional negotiations, back in November 1993 at Kempton Park, I led the fight-back against a National Party-African National Congress deal that would have empowered the president and his cabinet to have effectively hand-picked their own Constitutional Court. The minuscule Democratic Party, sidelined on many other key issues, managed to win this battle.
My efforts to provide a Judicial Service Commission to act as a filter between the executive and appointments to the highest court in the land drew both cynicism and praise.

Both the cynicism and excessive praise were overblown. I just reckoned then, as now, that without an independent constitutional court which owed fealty to the constitution, not to the government, SA’s brave new democratic world would be stillborn.

Reading the criticism and concern which greeted the unprecedented adjournment of the first meeting of the Judicial Service Commission (JSC) since the election, I thought perhaps another of Hemingway’s aphorisms applied to the body on whose establishment I had expended so much energy all those years ago. He used the phrase “beautiful fatalism” to describe people “who stay loyal to a doomed cause”. Are the causes of judicial independence, and the JSC as a vehicle to ensure it, doomed?
Certainly the JSC has been knocked all over the legal ballpark recently. It has made a meal and, the South Gauteng High Court suggests, a hash of investigating complaints of misconduct against Cape Judge President John Hlophe.
On the appointments front, new Justice Minister Jeff Radebe prevailed, on a majority vote, to postpone proceedings, in part, he said, to allow him meaningful input on the question of the transformation of the judiciary, “with regard to race and gender representivity”.

Actually, inside one of the documents that members, including Radebe, received for the meeting, was an appendix baldly entitled “Demographics”. Here, in detailed racial arithmetic, was the result of the JSC’s handiwork on the transformation front over the past 15 years. At the commencement of the new constitutional order, 97% of all judges were white men. According to the JSC document, today 54% of the country’s judiciary are black, and 27,2% are female. To widen the pool of women appointees, the JSC has inaugurated a special training programme targeting women practitioners. In terms of race, the JSC has ensured that 87% of the nominees it proposed for high court positions in the past year were black.

But such progress, impelled in part by the constitutional requirement that the judiciary “reflect broadly the racial and gender composition of SA”, is quite insufficient for the taste of the Black Lawyers Association. According to their document, which was attached in support of one of the candidates up for consideration, nothing short of full-scale proportional representation will suffice: “The judiciary, and therefore the JSC, cannot pretend that it is proper that justice should be meted out to the majority black population by a majority white judiciary, or a marginally black majority bench.”

Strangely , there was no document before the JSC that dealt with any of the violations we have witnessed over the past few months of section 165(3) of the constitution, which provides that “no person or organ of state may interfere with the functioning of the courts”. No doubt a vast file could be filled with threats made against the judiciary in recent times .

Last weekend, Democratic Alliance leader Helen Zille warned against reducing the judiciary to puppets of the ruling party. Doubtless, Radebe will have regard for this concern. He should also use the period of reflection he has arranged to consider how best to balance the sometimes competing claims of diversity and competence. Supreme Court of Appeal Judge Carole Lewis last year drew attention to inexperienced high court judges meting out “horrifying convictions and acquittals where judges had simply not understood the fundamental rules of evidence or criminal law”.
I suspect most South Africans, of all stripes, would rather appear before a judge, of any colour, who could competently apply the rule of law, without prejudice, and hold the ring for them against the mightiest forces in the land.
That is, indeed, “worth the fighting for”.

*Published 19 June in Business Day

Judge Hlophe seeks to destroy from within

During the Spanish Civil War, General Emilio Mola was asked which of his four army columns would capture Madrid. He replied: “The Fifth Column.” This was a reference to citizens inside the capital loyal to Franco. Thus the term “fifth columnist” entered the political lexicon — a reference to members of the community with a loyalty to the state, or a constitutional body, but determined to strike a blow, perhaps a crippling one, against it.
I’m beginning to get the feeling that Western Cape Judge President John Hlophe and his outriders have become home-grown vandalisers of our constitution. If I’m wrong, then the imputation is even more serious. Because according to Judge Hlophe, the entire Constitutional Court, the president of the Supreme Court of Appeal (SCA) and the leadership of the Judicial Service Commission (JSC) are, variously, “liars”, “biased” and serial violators of the fundamental rights they have sworn to uphold.
Since May 2008, Judge Hlophe and his supporters have used whatever weaponry available — from legal bazookas to rhetorical flame-throwers — to avoid or delay facing charges of gross misconduct levelled by 13 permanent and acting Constitutional Court judges. The court said he had approached two of them in an attempt to influence a pending judgment relating to the Jacob Zuma search-and-seizure warrants case.
They referred the complaint to the JSC — the constitutional body that deals with judicial misconduct. Judge Hlophe’s lawyer claimed the Constitutional Court, by issuing a media release about its planned action without advising him first, had “acted with unseemly haste ... to crucify him in public”. Ironically, in a recent interview, Judge Hlophe indicated a wish to serve on the same court.
And that was just the start — the latest round was a split-court decision on Monday in South Gauteng which found that by starting proceedings while Judge Hlophe was ill in April, the JSC had violated his rights. While Judge Hlophe and the JSC search for a date on which the proceedings can recommence, perhaps we should pause to consider the damage.
According to Anthea Jeffery of the Institute of Race Relations, at various stages over the past year Judge Hlophe has accused Chief Justice Pius Langa and his deputy, Dikgang Moseneke, of lying and urged the JSC to investigate them for gross misconduct, since both might have been politically motivated to back “a trumped-up complaint”.
In a recent attack, two members of the JSC — its acting chairman and president of the SCA, Judge Lex Mpati, and veteran human rights lawyer George Bizos — were accused by the “Justice for Hlophe Alliance” of “the most nefarious and despicable acts their minds could conjure up”.
And if that was not serious enough, Judge Hlophe complained in a case he ultimately lost before the SCA in March that basically every one of his constitutional rights — from dignity to equality, right down to the presumption of innocence — had been violated by the Constitutional Court. The ordinary citizen must wonder: if Judge Hlophe is correct, and if this is how the highest court of the land treats a member of the judiciary, what hope do I have of a fair trial?
Alongside all the other taxpayer-funded trials and applications Judge Hlophe has embarked upon, his attempt to appeal this judgment to the Constitutional Court, the very body that launched the complaint against him in the first place, is bizarre.
Since the bulk of the court would have to recuse itself, Judge Hlophe simply suggests that its members be replaced by a sort of tribunal constituted by the minister of justice. This has been dismissed by constitutional law expert, Professor Pierre de Vos, as “daft and dangerous” in terms of the separation of powers doctrine and the principle of judicial independence.
Judge Hlophe has his rights and they are obviously entitled to protection. But Justice Louis Brandeis once observed that the “lawyer has a duty to the case as well as to the client”. When you take a wrecking ball to every carefully constructed constitutional edifice, with the scorched earth tactics employed by the Judge Hlophe camp, compromise becomes much harder. If the courts and their disciplinary body climb down now, then the stain of Judge Hlophe’s charges against them and the administration of justice will remain.
Last July, the ANC warned judges not to “undermine the integrity of the courts”. The new government needs to remember that warning when, later this year, it considers replacements for the Constitutional Court. It would do well to remove from consideration one of the chief underminers.

*published in the Sunday Times 7 June 2009