The judges and their Whigs: The mirage of the rule of law in South Africa

… [T]he depiction of the highest courts, as the ultimate protector of rights, is at the same time distinctively romantic, and false. The state, in the accurate analysis of Max Weber, is the holder of the monopoly of legitimate force, which includes violence. The legitimate wielders of force are not only the security agencies of the state, but also, more subtly, the legislature, executive and the state administration, all sharing in the monopoly through the specific kinds of force associated with each branch. Importantly, it also includes the highest courts, specifically the apex court, whose interpretation exerts force in favour of the dominant elite and against its challengers. […] To the extent that there might be legitimacy in their actions, they are only legitimate in terms of the ideological commitments of the dominant elite as articulated in the legal terms used by the apex court.

– Koos Malan, There is no Supreme Constitution

Is vs ought is an underappreciated distinction. Is the South African judiciary an independent institution? Ought it to be? A more neglected question: Can such a thing even exist? The answer to the first question is a resounding no. The answer to the second of course depends on the third: Can the judiciary ever operate independent of the culture of the ruling class of the political community over which it presides?

Lindiwe Sisulu’s recent article made a lot of people angry. But this is strange, since there is nothing original in her argument at all: that rule of law does not hinder the implementation of tyrannical political orders; the end of apartheid didn’t miraculously cure black poverty, the persistence of which can be blamed on Western institutions – evil remnants of colonialism and apartheid – which must be destroyed without consideration to replacement or practicality.

Her original move was to attack her own party and its loyal placements in the judiciary. What she did was to make the attack on Western institutions concrete and to force all the lip service to transformation to confront the recklessness of its pantomime principles. Many have tried to use it as a distraction from the scandal of cadre deployment in the judicial selection committee and accused her of injuring the courts’ reputation. But if it is taken seriously, it is far worse than that.

For the radicals who are backing Sisulu, the argument regurgitated an old excuse for their 30 years of impotence. And for those in opposition, the article confirmed existing opinions and proved to them they were more needed than ever, and that they do not need to change a thing – they must just defend the Constitution harder.

All of them are lying to themselves.


Is?

The first modern critic of the rule of law as a concept was Robert Filmer. He argued that the notion that the law can restrain the king relies on the notion that those who restrain them have a higher law to which they appeal, outside of God, but existing nowhere, while the king’s derives from the succession of kings from Adam, and the ordinance of the Lord Himself. His objection – one that would not convince many today – is that the democratic aspirations of the aristocracy undermine divine law and represent the temptations of Lucifer.

But a modern critic would observe that the class of people who would restrain the king – whom Filmer sought to discredit – was an elite who restrains his projects, and has their own designs for the polity, whatever their true wishes are. In this sense, Sisulu is a child of Lenin and Filmer: The party executive is the king; the Constitutional bodies are meddling aristocrats who are violating the transcendent moral order that derive from some subterranean revolutionary revelation.

But the whole public conversation now is now so warped that these dimensions are not even examined. The moral outrage has centred on the ought to the neglect of the is, thus removing the requirement to define what it is that they are advocating for: We defend the status quo without understanding it, and then call it rule of law, contorting to avoid answering any of the issues raised.

Let us first ask whether we have rule of law. For that we need a working definition. I will quote from the speech which Sisulu herself plagiarised:

In his 2010 book Lord Bingham identified the core principle of the rule of law as being:

“…that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.”

He went on to outline 8 principles which he saw as being the key ingredients necessary to support that aim. In brief these were:

  1. The law must be accessible, intelligible, clear and predictable.
  2. Questions of legal right and liability should ordinarily be resolved by the exercise of the law and not the exercise of discretion.
  3. Laws should apply equally to all.
  4. Ministers and public officials must exercise the powers conferred in good faith, fairly, for the purposes for which they were conferred – reasonably and without exceeding the limits of such powers.
  5. The law must afford adequate protection of fundamental Human Rights.
  6. The state must provide a way of resolving disputes which the parties cannot themselves resolve.
  7. The adjudicative procedures provided by the state should be fair.
  8. The rule of law requires compliance by the state with its obligations in international as well as national laws.

By observing these 8 principles, and in particular the fifth, affording adequate protection of fundamental human rights, we avoid the dilemma identified by Professor Joseph Raz in his 1979 work ‘The Authority of Law’.

Professor Raz argued that, seemingly, within the framework of the rule of law, there can exist societies which oppress minorities, condone slavery, and support sexual inequalities – all of which would be abhorrent to liberal democracies. And yet, by adhering to strict legal structures and procedures such societies could still legitimately claim to excel in their conformity to the rule of law.

[…] Absent protection for human rights, courts and legal system may deprive fellow citizens of their freedom, property and ultimately their very existence.

What is painfully obvious to those who have seen how the law operates on those who are deemed public enemies, is that there is not now, nor has there ever been, a state that operates in the fashion thus described. Not the Chagos Islanders, not Tommy Robinson, not Julian Assange, not the protesters of 1/6 who are being tortured in prison without trial, not the countless Muslims in Guantanamo, not the hundreds of thousands of victims of the rape gangs in England, have seen this rule of law as so described.

The rules only apply to those whose confrontations with the law have no political dimension, and the ruling elite get to decide what is political and what is discretionary. The ultimate illustration of this is the treatment of the Chagos Islanders. Removed from the island of Diego Garcia in 1967 to make way for an American military base, the legal permissions were created by fabricating a new British overseas territory, and authorising the ethnic cleansing by means of an Order in Council. When the courts challenged the orders, they were overruled by another Order in Council in 2004.

They were then overruled by the principle of parliamentary supremacy, a principle that was subsequently overruled by the Supreme Court (a creation of Tony Blair’s staffed ideological confederates), which declared in 2017 that the Parliament is subordinate to the Council of the European Union (and by implication, the Court itself). Of course, that ruling has now been ignored, and Brexit happened anyway.

So where does sovereignty lie? It lies with whoever dictates the terms of change. The Constitution must first be seen as the living structure of the state, and only secondarily as a codified document, which in any case seldom matches reality in practice. It can change in three ways, but the Western tradition usually only recognises the first (while acknowledging the second and promptly forgetting about it):

  1. Explicit codified changes in legislation;
  2. Interpretation by the courts;
  3. The emergence of new de facto realities, whether legislated or not.

We have formally amended the South African Constitution 17 times. Each time has been no more than a minor technical adjustment. The only time that a serious change was contemplated was to enable expropriation of property without compensation or non-arbitrary cause – a matter which has been foundering due to the inability of the ANC to convince the EFF to take a compromise position between here and full Soviet communism. So point 1 is moot for now.

Point 2 is more salient. South Africa’s judiciary do not need to follow the Constitution to a point when they are in charge of interpreting it. What they follow instead, is an ideological doctrine that Koos Malan refers to as transformationism. The idea is that the society must be transformed (whether it wants to or not) into a culturally homogeneous, black-dominated, communist society. The Radical Economic Transformation (RET) faction’s philosophy is merely that the need for institutions outside of the party executive is superfluous for the achievement of these ends.

This principle of jurisprudence arose in part due to party politics, in part due to the true beliefs of the ruling class, and in part due to framing parameters that were given by the authors of the Constitution. It is given a spiritual mandate by the preamble, to achieve social justice (meaning the levelling of humanity according to the statistical averages of demographic abstractions) by reversing the legacy of history. It does not abolish racial discrimination – only “unfair” racial discrimination. It rigidly defines the spheres of government so that local autonomy cannot be clawed back in times of national decay or tyranny.

The judges who were picked from early on to represent the Constitutional Court were true believers in the achievement of absolute equality of outcomes – underscored by an influential judgment by ConCourt Justice Kreigler (President of RSA vs Hugo) underscored by Justice Moseneke and senior scholars like Albertyn and Goldblatt. Since 2013, the Judicial Services Committee has made it very clear, as Chief Justice Mogoeng put it, that merit is not a criteria for the selection of judges; only skin colour and ideology is. This is the aim of the 2014 Legal Practices Act, which explicitly prioritises “transformation” over any other understanding of justice.

This principle, trumping as it does every single principle of truth and pragmatism, has eroded and destroyed every single institution in the country before an educated and skilled black population could be raised through a modern education system. As a result, the constant rising demand for black people to fill quotas has outpaced the supply of skilled black professionals, which mandated the lowering of all educational standards, and the subsequent hiring of unqualified parasites and dunces. The erosion of all native language representation has been the cost of suppressing and stamping out Afrikaans – endorsed by the Constitutional Court – since it would be “divisive” to allow the language to survive.

And since this is all blatantly destructive and any sensible person would conclude that we ought to change direction, the mechanism for ensuring that this transformation continues to occur, namely the courts, must be fed with fresh zealots to remain on course. This does not mean that the courts are utterly immune to law or reason, but that they are strongly resilient. That resilience relies on the political will of these main bourgeois-aristocratic forces: the press, academia, the bar society and the ruling party.

This does not allow for the seizure of the means of production, but it does not allow for the construction of new means either – just an unending tumble downhill, strapped together in a mutually resentful embrace; a country consumed by the desire for revenge but straitjacketed into close proximity without room to swing a fist. This may seem an ironic fate for such a hopeful beginning, but in truth we got what we paid for; the ruling party has always been a bourgeois black-elite party, looking to join the white elite, not overthrow it, as Phyllis Jordan wrote in 1994:

It is in this sense that it cannot be called revolutionary. Its formation can be viewed as an attempt by the black petit bourgeois to be included in the ruling class of the structure that was created in 1910; a structure whose primary aim was to more efficiently exploit black labour. It was the black petit bourgeoisie knocking at the door, saying “Let us in. We belong, too.” This is not to say that there were never revolutionary elements in the ANC; their position was never dominant.

Successive South African governments, obsessed with race and colour, never understood this. Only the white liberals did – – liberals who are both the formulators of policy and the guardians of the principles of the bourgeois democracy. Small wonder then, that the first whites to take the ANC seriously were the liberals. The political aims of the ANC and the liberals were the same: the establishment of a bourgeois democracy in South Africa.

This, which Fanon called mimicry, is typical of postcolonialism: resentful attempts to both displace and imitate whites, without fundamentally replacing their institutions. Cripple law and order to undermine Western rule of law without finding a substitute. Spit on Western notions of fiscal propriety in the name of redistribution, while focusing on get-rich-quick schemes. All at the expense of uplifting their communities, because fixing poverty is actually very difficult and requires acknowledging that some Western practices work. Deriding the “white man’s racist standards” kills training and administrative function. Tu quoquearguments like “colonialism is the real state capture” shield their consciences.

Their embrace of handouts, socialist tinkering and urbanisation destroy communities and create masses of dispossessed, rootless, idle and spiteful young men with promises of wealth that turned to ash. Then they strip all the railways for scrap metal and run drugs through townships that are inaccessible to police. The police turn to gun running as debt and inflation eat their salaries and the law hampers their exercise of authority. Playing around with socialist land reform always results in mass destitution and economic dependency on former colonial powers.

But at least the courts can be trusted to prevent a real tyranny from occurring, right? Well, no. This is where the third manner of change manifests.

The ANC uses informal power through the taxi mafias to violently settle factional disputes. They use racketeering and shack farming to dilute the vote in demographically unfavourable areas, to block Democratic Alliance (DA) infrastructure projects and to collect illegal taxes from the poor. They have systematically protected the gangs in the Cape from prosecution since 2011 to destabilise the opposition. The total shutdown of all national infrastructure along the Durban-Johannesburg economic corridor by the Zuma faction in July last year has resulted in no legal action at all.

Years ago, when the Constitutional Court was presented with the thoroughly sound argument that the police are irredeemable and intrinsically corrupt and captured by the ruling party (Helen Suzman Foundation v President of the RSA; Glenister v President of the RSA), they ruled the evidence as inadmissible, not because it was false, but because it threatened the dignity of the reigning political order.

In the United States, the state uses private entities in partnership with unaccountable bureaucratic organs to circumvent the constitutional rights of its citizens. Big Tech gatekeep the ideological sphere by blacklisting books and deplatforming dissidents. In the UK, Blair’s handpicked Supreme Court blocks any attempt to reverse progressive or security reforms. Progressive or state-security reforms are not checked against any of the rights guaranteed by law. Big finance blocks access to the banks for anyone truly subversive, like Gavin MacInnes or Curtis Yarvin, and throws whistle-blowers in the dungeon. The UK and Australia are now countries where no citizen has any rights whatsoever – even to citizenship, which can be stripped by fiat if the executive so desires (for example Shemima Begum).

South Africa does not need to do any of this, because the only power anybody wants is the occasional display of ideological virtue, and the ability to get rich. Knowledge of corruption or violence against our citizens is a political irrelevance to leaders. Our elites are the most worthless in the Western sphere of influence – so much so that Sisulu barely even acknowledged most of their responses.

There is no independent judiciary or justice system. But Lindiwe Sisulu, by declaring the need to do what is already being done as if it weren’t already being done, has allowed the liberal (I use that term loosely) branch of the ANC, the press and academia to continue pretending that transformationism does not already dominate the justice system.

They still need the illusion of the rule of law to give the multiple stamps of approval that nominally independent branches of government can confer on a policy or order to multiply its legitimacy, mitigate the duty to act and vitiate all energy to change matters. And so the pantomime of judicial impartiality must be upheld.

Yet just as the wonderful and wholesome Zondo Commission into state capture was drawing to a close, the President destroyed this last illusion for everyone to see. He gave testimony to the effect that the Cadre Deployment Committee of the ANC has no effect on the selection of judges. That turns out to have been an unusually transparent lie. Usually such lies are ignored, because what transpires under the ANC omertà seldom sees the light of day. Not so in this case.

Our tiny liberal opposition party, the DA, has acted through the one arm of the state through which they have any meaningful capacity to intervene: the courts. On the back of the Zondo Commission’s report, the DA recently publicised internal ANC memos that show how they use political loyalty tests to select judges before the public hearings on their competency. This is cadre deployment. The President told Judge Zondo there is no such thing happening, and now faces the possibility of being prosecuted for perjury under DA pressure.

And yet Sisulu got all the coverage.


Ought?

Sisulu is rightly confused. What does this rule of law thing even mean if it can support all kinds of cruelty and insanity in broad daylight, and infinite deviations and exceptions at night or during a crisis? What does the law mean if it does not even reflect the moral culture of the population that it governs? What good is an elitist instrument of transformation if it has not transformed poverty into prosperity? While it has been easy to point out her hypocrisy, nobody has really answered her questions. We are all advocating for phantoms we can barely see.

Consequently, the only charges Sisulu was concerned with defending herself from, were accusations of “ill discipline” from party apparatchiks. What is truly revealing in the disciplinary conversation that Minister Sisulu was subjected to, is that the President objected neither to her rejection of the rule of law or the tradition of law which governs this country, nor to her extreme racial prejudice against the white minority.

No, the objection was that she called into question the ideological commitment of the judges. That is to say, the only objectionable thing the President found in her statements was that she had implied that the judges actually were independent and a check on party authority. The respect due to these servants of transformation must be upheld because each branch of government serves – not to check one another, but to amplify each other’s legitimacy.

Ought we to have rule of law? That depends on what you mean. White people without platform noticed that she was racist, and want equal esteem in the civitas. Radicals said that she did not go far enough, and we need real transformation, right now – rule of law is ineffable, and inefficient; just give us results.

But the dominant voice in this debate is from the more progressive, Anglo-dominated newspapers. Theirs is a defence of the liberal political order as an instrument of progress. In a bygone era, these people would be called Whigs. They want utopia to come quietly enough that they do not have to stop sipping their lattes (the ANC only wants it to come late enough so that they have time to party away all the resources).

The only sliver of the commentariat who appears to really ask for anything else, are those who are against transformationism, but for the Constitution. This is a special kind of incoherence, because even the most lenient interpretation of the Constitution still results in an increasingly socialist political trajectory (see right to housing, right to social welfare, etc.), that will welcome collapse sooner or later. This is the DA position: a weaker, more conservative form of Whiggery, which sees the means of political deliverance to lie in a purified sort of 19th century English liberalism. This, in contemporary Africa, is folly of the first order. Even Kissinger could tell you that.

But what all of these people agree on, is that whatever the judges must do, it must reflect what they want to turn society into. This is to say, a preservation of an elite project of transformation of some kind, but not one that involves careful introspection.

Rebecca Davis simply attacks Sisulu’s (admittedly seedy) character, pleading to avoid discussing the serious dimensions altogether. But Ferial Haffajee has the best take on the current scandal, by which I mean the most stereotypical of her blinkered class. Every writer on the Soros/Gates payroll (Mail & Guardian, Daily Maverick) has the same line: They can describe the patient’s deterioration, but cannot do nothing more than to prescribe more poisonous muti. More transformation.

Haffajee rails against “populism” in imitation of Western elite discourse, forgetting that the whole current dispensation was built on dumbo populism from the get-go promises of utopia, African cultural flourishing and free refrigerators.

Democracy without popular enthusiasm is just a complex administrative ritual for the maintenance of the managerial class. But populism, despite being necessary for substantive democracy, is also unpredictable – and is dangerous to the bourgeoisie. By attacking those parts of the status quo that are causing dynamic change (well, decay and entropy, anyway), Haffajee is defending the status quo. Not because she understands it or thinks it is doing anybody any good (she does not think about that at all); she points to all the former British colonial states that have followed the same downward trajectory, by the same means, including Zimbabwe, without noticing the common theme.

Even the most intelligent and seasoned Whigs have the same disease. Raymond Suttner recently released an article calling for “change”. But what he describes is just more running in place: Change reality to preserve the formal order, which does not really exist. The whole of the South African intelligentsia has been gripped by this growing hysteria, growing less quiet as the New Dawn fails to arise: We must do something, but we have no idea what! Maybe more handwringing, Lady MacBeth?

Suttner’s solutions are: 1) to revive “some kind of” civil society democratic engagement to hand out more free gifts at the taxpayer’s expense; 2) a Thabo Mbeki plan to control and direct all private investment (I wonder how that could go wrong?) and 3) that the media should lead the charge to unite business and civil society to reinforce the constitution. (Little does he know that business and state already collude – to destroy SMEs and monopolise the organisation of labour through collective bargaining settlements that apply sector-wide to absent parties. But that’s a story for another day.).

He has one good insight though:

The media are colluding — despite the ANC having suffered a serious defeat — in presenting the outcome of the ANC internal elections and leadership structures as the only or main question to which we must look for the securing of our democratic future.

[…] This type of focus on the ANC is making it more difficult to remedy democratic failure and dysfunction. This is done by media reportage and analysis that focuses almost entirely on personalities in one or other “camp”, to whom they owe loyalty, and who may be on one or other “ticket” to the presidency of the ANC or may be won over to one or other “camp”.

It is media colluding in the depoliticisation of politics.

That is a mighty polite and longwinded way of saying that the entire media establishment are ruling-party bootlickers without an ounce of substantive critique in them.

So what is to do? Scrap the party? No, not the precious liberation movement! Fix the party? No, the cost is too high. Back another party with completely different ideas? No, that would be siding with “oppression” by denying the state dependents their idle and despairing state dependency.

Who does Suttner put forward as his shining example of democratic civic engagement? Gift of the Givers, a Muslim charity run by a single man in raw autocracy. So you want a religious order supported by sacred rites of almsgiving and held together by rigid spiritual discipline and the autocratic vision of a benevolent dictator? I will grant that Gift of the Givers works absolute wonders, but for an atheist Anglo progressive like Suttner, any of the ingredients that make the charity work are anathema to his soggy spiritual constitution.

What this all really is, is a nostalgia for the white side of the Struggle (cheerleading for African protest action), so that they can feel the holy glow of liberation from their armchairs. They find symbolic scapegoats to ritually re-enact it: Afrikaners, “whiteness” or Jacob Zuma. The more the past is benighted, the more the future can be bright.

Like the other Whigs, Suttner is a believer in the Zuma theory of corruption. Only if dear Cyril gets his act together and does a real purge of the populist faction can we move forward to a glorious eternity of ring-around-the-rosy with smiling black schoolchildren. Mbeki could not have been a true thief, he was too civilised. And we cannot see the whole party as bad, because then they will not have any Westernised progressive black people to champion, and their consciences would eat them to death.

This is the fundamental issue: The Whigs can only celebrate Africans if they speak well (but keep enough of an accent for “authenticity”), and utter platitudes about Western institutional forms (while also calling for being liberated from them). The idea is that we can only liberate ourselves by giving ourselves to a black struggle. However, giving ourselves to a truly African revolution is tremedously scary, so we need a version dressed in tweed and neatly pruned English, or an avuncular mystical wise man like Mandela.

They say African culture is wonderful, but when it is anything more than song and dance, they recoil like germaphobes in a leper colony. Zuma was a chauvinist, you see, a patriarchal thug who has not embraced the gospel of Anglosphere gender relations. He cannot be an actual fascist, though, because true evil is a quality reserved for those who are civilised and intelligent enough to be evil: the paler, nearer enemy – Afrikaners. Only a racist could find evil in a black man.

So Hanlon’s razor becomes a mandatory implement of analysis. Zuma has to be bad because he is uneducated, uncouth and so forth, because if he is instead a smart Machiavellian operator with considered political attitudes, then you have to ask why all the ideas that he touted worked so well to cement his power.

The reason why the Whigs took offence to Sisulu is not that the judiciary has not already been politicised, it is that it cannot be seen to be politicised, because then they might have to actually do something about it. After watching every single institution be destroyed by the deployment of endless Zerg-like waves of African communists, respectable Angloform progressives are finally starting to take offence. Why? Because they are waking up to the fact that it also affects the only instrument of state that they believe would still defend them if the politicians finally sunk their claws into the soft underbelly of suburbia.

The illusion maintained by the Whiggish commentariat is that, somehow, the merits of the case or the individual before the court are what matter, rather than the political aims of the judges and the ruling party. They are mistaken, however, and ignore all available evidence to the contrary, defending the imaginary notion that the courts would be able to stop any truly serious threat to the peaceful continuity of the bourgeois lifestyle.

It is a lesson that should have been learned after observing Zimbabwe and their supposedly glorious and independent judiciary (even after all that has transpired, headlines like this are still – unbelievably – being printed: “Judicial independence under threat in Zimbabwe. That horse died and became glue years ago: The judges are not coming to save you, and the rule of law is no more than the consensus of the ruling elite, veiled behind a gossamer tissue of legislated codes of conduct.

This veil is constantly being defended from those who would poke holes in it to reveal the monster lurking behind it. This is because it is of paramount concern to those who think of themselves as good citizens, that, to remain good citizens, all they have to do is nothing. Nothing is wrong, and shame on those who think there is! All evils are an aberrant hangover of a long dead past, which will fade away with time’s transformations, as we progress toward the enlightened future promised by that sacred document under which we all shelter.

Yes, we ought to have rule of law. But that involves confronting reality, confronting our powers, confronting our limitations and, ultimately, confronting each other.


Can?

The reactionary canon, as established in the last few years by dissident political theory experts, agrees on a few basic observations, which align with those of Prof. Malan. However, Malan leans on none of these canonical theorists to reach the same conclusions, primarily leaning on his experienced apprehension of the legal environment of a society in freefall. He also realises a few things that romantic absolutists do not.

What he intuitively knows from living among a people who have been republicans for 400 years, is that a hereditary monarchy is off the table. A charismatic leader, while many clamour for one, encourages lethargy from the people. Sovereignty, if it is to resemble the “rule of law” in any meaningful way, must arise from a spontaneous consensus among the people. For it to emerge as such, it requires distributed participation by a large plurality of the community at every level, deferring defensive individual moral judgments downwards (and backwards in time), a constant betrayal of one’s self-proclaimed superiors.

In Afrikaans, the distinction between society (Afrikaans: samelewing)and community (Afrikaans: gemeenskap)is much clearer than in English. Society is simply the greatest extent of contact under a political or economic order. The community, on the other hand, is something with a concrete, shared metaphysic and normative consensus. It is this phenomenon of normative and metaphysical consensus that drives ordinary organic communities and detached, institutionalised elites alike.

In many ways, the awareness of this common feeling and intuition is consonant with Ibn Khaldun’s notion of asabiyya, the power of which holds together the nations that men like Shaka, Moshoeshoe, Rhodes and Kruger established here. It naturally decays as settled urban life crystallises into imperial forms – and South Africa, however much we pretend otherwise, is not a community, but a tattered patchwork empire.

The wielders of sovereignty are those who can project the appearance of community consensus with either the broad mass of society or with the elite. The elites are easier to co-opt. To most leaders, the elite are socially closer; they are fewer in number; and due to social inertia, ordinary people defer to them for decisions and opinions on a daily basis: the party, the civil service, the media, academia, the chambers of commerce, the mineral oligarchs, the banks and international organisations.

People like Boris Johnson, Donald Trump and Jacob Zuma are despised, not for violating the rule of law, but for violating the unwritten rule: You shall never betray your class by seeking support among the masses by deferring to their normative consensus. Malan insists the precise opposite: We have to defer to this popular normative consensus, or else the law is a tyranny that whittles away our spirits for factional advantage. And this is not the rule of law, but the rule of Athenians over Helots.

Since Ramaphosa came to power, he has been publicly undermined by members of the opposing faction in the ANC. This is something that has not occurred before. Mapisa-Nqakula, Dlamini-Zuma and even Mantashe have gone against programme. The fact that Sisulu rejected the President’s olive branch publication of her apology for ill-discipline shows that even on the pettiest issues, the leader of the party’s authority counts for nothing. The populists are reaching out to the people. Even if this is half-heartedly and in self-interest, the reach has begun, and people are thirsty for the illusion of being heard. The form this tacit compact takes is National Socialism.

The reason why the DA clings to the hope that the thoroughly corrupted legal infrastructure will help them is not exactly that they have – empirically – won some minor concessions from our judges; they do win occasionally. They also have a very strong chance of winning this current challenge, thereby undermining confidence in the Presidency, the judiciary, and the state as a whole. However, these legal challenges are powerless to shift the course of the state and its transformative agenda. If they ever rise to power, they will ride castrated institutions which are not even respected in the heartland of the West anymore and which are fundamentally politicised at home. These institutions are gliding gently into the graveyard of civilisation – just slowly enough to make the transformation complete.

Just like the media, the ruling party and academia, the justice system regarded the old-liberal push for the abolition of racial discrimination with contempt and their belief in property rights as outdated. However, the system will occasionally concede some procedural rights when presented with them. Even voters have started leaving them behind, and support has stagnated. The reason why they cling to the hope that the formal character of the Constitution matters and can be relied on, is that, if it cannot, they have nothing else to rely on – and there are no more rules. And if that is the case, they will have to take true sovereign action by fiat, or else give the people the law that they want (a radically conservative, authoritarian order), notions that terrify them.

The ANC and the EFF certainly do not play by the rules. Much of the ruling strategy involves informal structures like racketeering gangs, formal alliances with organised crime and the mass theft of land in shack-farming operations; also intimidation, bribery and secret compacts. The DA is faced with two worlds that they can choose. Through inaction they get the future of an endless coalition government, which requires playing this game on the enemy’s turf and becoming like them to survive.

The only part of the country in which the DA can hope to claw back enough power to see some of their leadership’s remaining values (such as they are, being so hollowed out these days) organically realised, is the Western Cape. But they fear taking responsibility for the bloodbath that is South Africa, even in part. They therefore fear using violence to end violence, and prefers to put all their chips on Rhodes’ dream. However, they forget that Rhodesia becomes Zimbabwe in the end. I would fight to prevent Zimbabwe from occurring twice and am glad to see that some in my circle are dragging them kicking and screaming toward the referendum.

Rule of law is never coming to South Africa. The reason is – quite plainly – that South Africa is completely divided: As a community, it does not exist. No civitas can persist without of a common understanding of jus and justitia, without a common understanding of law, and only our detached elites share enough to even debate a question like this. So we instead have a Whiggish elite who tussle with a Radical elite over how to deliver communist utopia, while neither one suggests any path to delivering the rule of law that they use as a hollow prop for their Punch and Judy show.

The rule of law can only function if it is transparent, and it can only be transparent if it is legible to all citizens. It can only be legible if it reflects the citizens’ spontaneous, culturally defined moral judgments. And it can only reflect these if the elite who are tasked with implementing the law and running the state share the same moral intuitions as the people – law that is at variance with custom meets none of Lord Bingham’s aforementioned criteria and is despotic.

And that is what we have – this is why black-conscious scholars repudiate the Constitution.

White people carry the Western tradition for the most part; Westernised blacks carry it reluctantly; black radicals undermine it at every opportunity; and a black population does not care for it one way or the other. The staunchest defenders of the Western legal tradition are either undermining it with their elite project (Whigs and Radicals) or are shut out of the polity entirely (Afrikaner republicans, African traditionalists and ordinary people).

The only way in which rule of law will come to South Africa – and not just for some Athenian ruling class, but for every community within it – is if it is torn apart, whether by force of law, force of arms or by slow decay. A new asabiyya must be established; the old one that created the British Empire is finished.

The champions of the new orders, those who carry the burden of future justice, are the Cape Independence Movement, the Solidariteit Beweging and people like Herman Mashaba – people who know that prosperity is established upon the needs of the people for justice and security, and for law and order – over and above any redistributive mandate; over and above the concerns for the comfort of the lawless, or dreams of utopian human transformation, no matter how offensive it may be to the bickering aristocrats lounging in the king’s court.

Robert Duigan

Robert Duigan is a researcher at Opinor, writer and online content creator.

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