Louis Brandeis

Louis Brandeis

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FM Edition:

I get worried when government corruption appears overwhelming and people console themselves by saying: "At least the courts will protect us."

Pretoria’s initiation of withdrawal from the Rome Statute and thus from the International Criminal Court (ICC), is not an isolated notion. It is part of a trend of disrespecting courts and other instruments of justice and human rights that hamper power and money-grabbing opportunities by government and its friends.

Withdrawal from the ICC was foreshadowed when our government backed the destruction of the SADC tribunal based in Windhoek. That court dispensed justice to individuals whose governments trampled on their rights, but when Zimbabwe’s president Robert Mugabe moved to demolish it, leaving people in the region helpless against lawless states, SA joined right in.

Even the courts in SA itself show growing evidence of government disrespect for the law and the rights of its own people.

Take last week’s decision in the case of the Bakwena ba Mare, a Phogole community. For decades this community was systematically dispossessed of their land under apartheid. They relied, 20 years ago, on new-era law and government promises and brought a land claim. After consultation and investigation, government officials — the land commissioners relevant to the area — said they had reached agreement and the claim could go ahead.

The land claims court thus issued an order in terms of which the claim had to be published in the Government Gazette within 60 days. That was more than two and a half years ago, but nothing has happened since then. The court order and the legal process have been ignored.

Eventually the frustrated community went back to court for an order "compelling" government compliance. Criticism in the resulting judgment should cause grave concern to us all.

Acting Judge Nasreen Rajab-Budlender said it was clear from the start that the claim involved large swathes of land south of Johannesburg — Ridgeway, Brackendowns and Walkerville, for example. It involved "enormous tracts of land including municipal offices, prisons and private homes", with grave consequences for the state as well as for private land owners. The onerous implications of gazetting such a claim were also obvious — no sale or lease of any land in the area without a month’s written notice to the land claims authorities. Yet the commissioners officially reported they had reached agreement with the community "on all issues related to the claim" and that they "acknowledged unconditionally" the validity of the claim.

Government ignores the court

As a result there is now a valid court order for government to begin the land claims process, but the state has chosen to disobey it. Rather than asking for the order to be rescinded if it felt the commission had made a mistake, government has ignored the court, ignored the constitutional rights of the community and perpetuated apartheid’s injustice to the people of the area.

In the view of the judge, the "flagrant disregard" of the court order by state entities was a matter of deep concern.

Saying the case before her was not about the merits of the claim, but about government failure to obey the court, she ordered that there must be official compliance within seven days.

She referred to judgments that call government the ultimate teacher and describe dire consequences when it disobeys the law.

She quoted from, among others, former US supreme court justice Louis Brandeis. The existence of government would be imperilled, he wrote, if it failed to observe the law scrupulously.

Withdrawal from the ICC, the SADC tribunal demolition job, increasing disregard of domestic courts — these are all just a stone’s throw from campus chaos.