It is quite clear that some judges are struggling to get to grips with their role in the constitutional democratic order. The constitutional injunction of applying the law "impartially and without fear,favour or prejudice" seems to elude some of our judges. They are quick to adopt fixed positions against the government (the Executive arm) or indeed against the ruling party in order to demonstrate that they are "without fear". They do not bother to show that they are "without prejudice". More and more, their prejudices are coming to the fore. The judgment mentioned in this SACP press release is but one such example.
The honourable judges would do well to note the words in the recently published book by judge Dennis Davis and Michelle le Roux where they say; ". . . To what extent can courts extend the bridge and help create the kind of transformed society promised in the Constitution without risking the essential condition of legitimacy, which would render courts perilously vulnerable to political attack? In other words, if the judgments of the courts are fundamentally opposed to the dominant political and social outlook of society, that institution may not have the public respectability needed to mount a defence against government attack.'" Dennis Davis & Michelle le Roux: *Precedent & Possibility: The (Ab)use of Law in South Africa *(2009) at 186-7. Mthimkulu Mashiya On Wed, Mar 31, 2010 at 1:13 PM, Dominic Tweedie <[email protected]>wrote: > > *[image: SACP logo]* > > > *Our dignity and history is not for sale* > * > > 31 March 2010* > > The SACP finds the latest manoeuvres to use our courts to try and rewrite > our history extremely distasteful and seriously runs the risk of undermining > our reconciliation process. It is also important that we also caution the > courts themselves not to allow themselves to be used to try and wipe out the > history of the heroic struggles of our people against the criminal apartheid > regime. It certainly was not the intention of the authors of our > constitution – a constitution written in blood and suffering of millions of > South Africans – that an independent judiciary must mean that it should > operate as if our country has no history. It is important that we remind > ourselves of this as these attempts to use the courts to try to make us > ‘forget’ our history are actually a direct attack on the very process of > reconciliation in our country. Our liberation songs are not only about our > past but are also about who we are, our sacrifices, our dignity and our > future. > > We therefore fully support the intention of the ANC to appeal the absurd > High Court judgement about one of the songs of our liberation struggle. > > The SACP will strenuously oppose any attempt to re-write our history for > the benefit of those who inflicted enormous damage on our people and our > country. We shall not allow our institutions to be used to erase the > collective memory of our nation, a past imposed on us by the capitalists and > beneficiaries of the apartheid regime, who today try to opportunistically > project themselves as latter day democrats. Where were the likes of > Afri-Forum and their fellow travellers in the struggle against apartheid, > and on whose side were they when our people were being thrown into jail, > driven into exile, the underground, butchered by the apartheid police and > military machine? > > The overwhelming majority of our people have correctly taken a lead in the > reconciliation process, but this should not be taken as a sign of weakness > and that they will allow their history to be re-written. We owe it to future > generations of South Africans to know about our past so that they too can > have a future free of exploitation, racism and patriarchy. > > Over the years, the ploy of the racist right wing apartheid regime was to > position the liberation movement, its military wing and its alliance > partners as nothing else but a group of terrorists as they where referred to > at that point. To demonstrate its point and hide its heinous crimes > committed against our people, the literature of the movement and its songs > were used as examples of how the liberation movement was essentially a > terrorist movement. Essentially today by these actions we are being told > that we have intentions to murder! > > Unfortunate parallels were being drawn about the alliance of the ANC and > the South African Communist Party to further argue this point. > > The issue of songs, language and mobilisation slogans to rally the people > to heed a specific message has always been a contested matter in South > Africa. At the Truth and Reconciliation Commission, the then Deputy > President of the ANC, Cde Thabo Mbeki, led extensive evidence on this issue > to clarify what songs and slogans meant for the liberation movement. > > Organisations like Afri-Forum represents some of the worst hypocrites in > our country, especially in their approach to these very fundamental matters > of building a new South Africa. They have selectively focused on the murder > of white farmers, but not once have they gone to court or any chapter 9 > institution about murders of farm-workers by some white farmers and the > slave-like conditions under which farmworkers and farmdwellers are treated > by some racist white farmers. In fact Afri-Forum and its associated > organisations are simply pursuing a racist and elitist class agenda to > defend the narrow interests of their members, even at the risk of > undermining our carefully constructed institutions of democracy. > > Whilst every citizen has a right to approach the courts, but to > reinvigorate what you lost at the TRC now through courts and complaints > through our Chapter 9 institutions is opportunistic and an attack on our > negotiated settlement by the propertied classes who at the same time oppose > any constitutional amendment aimed at transforming the lives of millions of > our people for the better, e.g. land reform and property relations. > > The SACP abhors hate speech and respects the upholding of human rights > values and principles. The key question is in whose class interest are some > of these things being pursued? Why do you seek to maintain and protect the > legacy of thousands of white South Africans who butchered our people, stole > their land and renamed our cities in honour of these butchers and > simultaneously attack the legacy of the liberation movement? > > *Issued by the SACP* > > *Contact:* > > *Malesela Maleka* > > *SACP Spokesperson – 082 226 1802* > > <http://www.sacp.org.za/> > > -- > You are subscribed. This footer can help you. > Please POST your comments to [email protected] or reply to > this message. > You can visit the group WEB SITE at > http://groups.google.com/group/yclsa-eom-forum for different delivery > options, pages, files and membership. > To UNSUBSCRIBE, please email [email protected]. > You don't have to put anything in the "Subject:" field. You don't have to > put anything in the message part. All you have to do is to send an e-mail to > this address (repeat): [email protected] . > > To unsubscribe, reply using "remove me" as the subject. > -- Mthimkulu Mashiya Transnet Bargaining Council P O Box 2951 Houghton 2041 Tel +27114863003 Mobile +27827273692 -- You are subscribed. This footer can help you. Please POST your comments to [email protected] or reply to this message. You can visit the group WEB SITE at http://groups.google.com/group/yclsa-eom-forum for different delivery options, pages, files and membership. To UNSUBSCRIBE, please email [email protected] . You don't have to put anything in the "Subject:" field. You don't have to put anything in the message part. All you have to do is to send an e-mail to this address (repeat): [email protected] .
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