Farlam Commission Must Act Now to Salvage Its Credibility - By Paul Ngobeni; Legal Analyst and former special adviser to Minister of Defence.

All right thinking people must be perturbed by the Farlam Commission’s handling of the Marikana tragedy investigation.  Appointed by the President in terms of section 84(2)(f) of the Constitution, the Commission’s mandate is to investigate matters of “public, national and international concern” arising out of the tragic incidents at the Lonmin Mine which led to the deaths of approximately 44 people, more than 70 persons being injured, approximately 250 people being arrested.  Given its importance domestically and internationally, especially for investors in the ailing mining industry, one would expect that parties before it, particularly government, would conscientiously cooperate and avoid gamesmanship and shenanigans eviscerating the truth-seeking attributes of the Commission.  It's a crying shame that the Justice Department has repeatedly shirked its responsibility for the legal fees associated with the presentation of the version of the victims at the Commission.  It is equally damnable and disconcerting that the supposedly independent Legal Aid also refused funding.  Even more disgraceful is that the victims and their families with meager financial resources have been forced by the arrogance and insouciance of the officials to approach the Court for appropriate relief. This follows a familiar pattern of the government officials arrogantly acting in breach of constitutional imperatives and with impunity, and not being held accountable mostly because of inability, unwillingness or political reasons.

Sadly, Judge Farlam is squarely to blame for the proceedings being bogged down in litigation and procedural side-shows instead of being focused, speedy and efficient for the sake of our society, our judiciary and for benefit of all involved.  Farlam dropped the ball from the very onset when he appears to have swallowed, hook, line and sinker, the constitutionally disingenuous argument by the Department that it is permissible to treat the families as illegitimate step-children in a process investigating the murder of loved ones.  Justice spokesman Mhaga expressed this misguided attitude when he said there was no legal basis for paying the costs for families who wished to attend the commission hearings “on state expense”.  In Mhaga’s view, the victims’ families are mere free passengers and any expenses paid by government for them are mere gratuity and not an entitlement.  He claims: “The attendance of the first session of the commission was mainly based on humanitarian basis as it is important that they understand the primary purpose of the inquiry.” 

Without a firm rebuke from Judge Farlam, the state shamelessly engaged in evasive tactics, downright stalling and stonewalling to refuse paying legal expenses required for the victims and families to participate in the hearings.   Farlam has been reduced to functioning as a bloodless automaton throughout the process.  Under his watch, the state uses the public purse to finance the police officers implicated in the massacre and assure their witnesses of continued financial support while denying the victims similar benefits. 

Farlam appears not to have interrogated three pivotal issues: whether the state is constitutionally obligated to carry out an effective investigation into the death of persons killed as a result of lethal force by police; whether the victims’ families have any entrenched constitutional rights to participate in the proceedings before a commission appointed under section 84(2)(f); and assuming they have such rights, as opposed to unilateral expectation of a voluntary gratuity from the state, what are the exact contours of their entitlement to financial assistance given that the SA Police Service is getting state funding for legal representation.

The Concourt’s Makwanyane judgment, which drew from the capital punishment jurisprudence of the European Court of Human Rights (ECHR) and other democracies, outlawed the death penalty as inconsistent with the constitutional guarantees of right to life as well as the prohibition of cruel and unusual punishment.  Since that decision, the right to life has been interpreted by the ECHR to impose a procedural duty on the State to conduct an effective investigation into any death occurring in circumstances where the substantive obligations not to take life arbitrarily and to protect life have (or may have) been breached by state agents.  In McCann v. UK, the ECHR opined that failure to conduct an effective investigation constitutes a violation of the right to life, notwithstanding proof of compliance with the substantive obligations not to take life arbitrarily and to protect life. Without such an obligation, the prohibition on the unlawful or arbitrary taking of life is rendered largely meaningless. Importantly, courts have recognized that family of the deceased must be involved in the inquiry to the extent necessary to safeguard his or her legitimate interests. In the UK, the obligation to ensure proper family participation has been interpreted to mean that the family must be provided with legal representation where it is likely to be necessary to ensure an effective investigation.  In R (Amin) v. Secretary of State for the Home Department [2003] the court held that: “The duty to investigate is partly one owed to the next of kin of the deceased as representing the deceased: it is partly to others who may in similar circumstances be vulnerable and whose lives may need to be protected. “ Further, it ruled that the family must also be provided with relevant material and given the opportunity to cross-examine witnesses.  It is not clear how Farlam intends to ensure that the duty to investigate owed to the next of kin of the deceased and the injured victims is enforced.

The Commission can only have legitimacy if it takes these admonitions to heart and, in actuality and in appearance, meets the test of independence.  In Edwards v United Kingdom, the Court stated that absolute independence of persons responsible for and carrying out the investigation from those implicated in the events is crucial for independence. This means not only a lack of hierarchical or institutional connection but also a practical independence.   The adoption of an over-deferential attitude to the executive or members of the security forces invariably constitutes a serious if not fatal shortcoming in any Commission. 

Lest we forget, the President’s power to appoint the Commission is an original constitutional power he exercises alone as a head of state rather than as head of the executive.  Typically, the purpose behind most Commissions is the restoration of public confidence and Commissions achieve that by educating the public on why a particular tragedy or social problem occurred and by making recommendations to improve the situation or to prevent a future occurrence. Unlike the typical judicial role, the functions of commissions of inquiry are to determine facts and to advise the president through recommendations.  But, as the Concourt stated in SARFU, the "President is bound neither to accept the commission’s factual findings nor is he or she bound to follow its recommendations."   It is no exaggeration to state that the credibility of the Commission and its report and their acceptance by the generality of the public are indispensable for restoration of investor confidence in our mining industry which is the mainstay of our economy.   

Imporatntly, the Bill of Rights has added another twist to Commissions that Farlam fails to appreciate.  In light of the constitutional obligation to investigate a massacre involving real victims, a presidentially appointed commission operating under an apartheid-era statute can never suffice.   Had Farlam been alert, he would have proactively prevented the Commission’s processes from being used in a manner that results in unconstitutional and unequal treatment between the police officers and victims who are parties to the dispute.  Another principle overlooked by the Commission is “equality of arms.” It requires each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. Farlam, who has been given wide latitude to manage the hearings, has failed to ensure adherence to this principle.  Instead of using the Commission’s vast and expansive powers to avoid discrimination, disenfranchisement and unlawful treatment of the victims, Farlam proved powerless.  Under his watch the state has severely eviscerated the truth-seeking attributes of the Commission.  In the final analysis, the credibility and integrity of the Commission rests squarely on Farlam’s shoulders, something he is not free to fob off to a seemingly unembarassable executive. 

I am supremely confident that Farlam has the wisdom and courage to make amends.  He can adopt panoply of prophylactic measures designed to ensure fairness, efficiency and transparency of the propceedings.  Managing the inquiry into this massacre requires going far beyond the desultory debate about privilege versus right when it comes to funding victims’ legal teams.  At the behest of the justice ministry, criminal prosecutions were placed on hold and the public was told the Commission was designated as the vehicle for unearthing the truth.  Properly utilized, it will set in motion the wheels of justice both in terms of criminal prosecutions and civil damages claims.  When it comes to investigating a massacre, we must jettison the simplistic pre-constitutional view of commissions as nothing more than an adjunct to the policy formation responsibility of the President.   With the stakes so high, a discredited report may revive the titanic violent battles between the unions for dominance in the mining sector.  Victims who reposed their confidence in the Commission may walk away with an abiding sense of betrayal and may forever rue their excruciating patience and decision to give government a chance.  The extant lack of financial resources to mount further legal battles may also give way to exasperation and total loss of confidence in our judiciary, an outcome too ghastly to contemplate.  Without confidence in the judicial system, people may resort to self-help remedies and meet at high noon in the streets to do battle.  Farlam’s failure will definitely have a huge impact on the outcome of the seemingly dormant debate within the jurisprudential community about whether judges accepting executive appointments on commission compromise judicial independence by cozying up to the executive or legitimizing farcical processes.

UCT Anti-African Cruelty and the Transformation Agenda

University of Cape Town(UCT) Anti-African Cruelty and the Transformation Agenda  

                        By: Paul Ngobeni – former UCT Deputy Registrar

The UCT, a self-styled bastion of white liberalism has been exposed for the latest racist assault on the dignity of black African students.  This comes in the wake of the student newspaper, Varsity News, publishing a chart polling the most attractive race at the university. The pie chart, titled “UCT votes on most attractive race”, lists the races as Caucasian, Indian, Coloured, African, Asian, and Mixed. According to the chart, the majority of students (38%) thought that Caucasians were the most attractive race, while the least amount of students (8%) thought that Africans were the most attractive race. Other races garnered between 10-20% each.  The cruelty visited upon a black former student over a 17 year period must be viewed in this context. 

Mr. Khohlokoane, an African male student was subject to the most appaling treatment and act of cruelty by the UCT.  He completed his coursework 17 years ago while still owing some money to the UCT in 1996.  Because he owed money, the UCT refused to release any information to potential employers regarding the completion of the coursework.   Unable to prove his academic credentials, Mr. Khohlokoane started working as a petrol attendant at a Shell Ultra City in Worcester to try and pay his debt.  Conscious of his obligation and imbued with a sense of honour, he approached the UCT with a proposal to pay the debt from his limited income but was stonewalled by the racist arrogance of those in charge of the UCT.  Khohlokoane states: "I wanted to pay it off at R100 a month, but they said it wasn't enough."  See, http://www.timeslive.co.za/local/2013/06/07/you-can-use-your-degree-even-if-you-haven-t-paid-for-it-uct .  According to the report, he spent the next ten years working as a petrol attendant, and then another seven as a cleaner.  His employer, Willem Venter reported that a farmer in the area, Clarence Johnson, had heard about Khohlokoane's situation and arranged for his debt to be paid. Over the years, the debt had accrued interest and had grown to R100,000.  Mr. Clarence Johnson, a farmer has more conscience and better appreciation of the African potential than two black African vice chancellors who were at the helm at  the UCT during the time Mr. Khohlokoane went through hell. 

Mr. Khohlokoane studied social science and wanted to a career as a social worker.  In March 2012, the South African Council for Social Service Professions (SACSSP) reported that there were 16 740 registered social workers. This represents a 70% shortfall for the implementation of the Children's Act alone.  Social workers are life savers needed for service to vulnerable communities. Specialised social work professisonals are the last line of defence for children, in particular, who are abused, at risk, abandoned or neglected.   But that matters very little to the UCT and institutions of similar ilk.

As a former deputy registrar at UCT, I know from first hand experience that this treatment meted out Mr. Khohlokoane is very different from white students who systematically received lenient and favourable treatment from the UCT.  White students who went to the extent of burglarizing lecturers’ offices and changing the marks on their exam scripts and fraudulently changing their grades were given lenient treatment and allowed to graduate.  It is remarkable that during the 17 years Mr. Khobohlaone was subjected to the torture of working menial jobs while his degree was held hostage by the UCT, the university had two successive black African vice chancellors who seem to have been appointed for window-dressing purposes and whose record on transformation is appalling to say the least.   This act of cruelty occurred under Dr. Mamphele Ramphela’s watch and may offer an insight into what her recently-launched political party, “A-gang”, will offer to our citizens.  It was perpetuated under Professor Njabulo Ndebele, a veritable Uncle Tom, who seems to have reinvented himself as the unapologetic ventriloquist for the DA and other forces opposed to transformation.  But anectodal evidence on this seemingly isolated cases must be viewed in a larger context of a titanic ideological struggle and battles for transformation taking place at some of these public universities.  

The post-1994 public universities have become virtual war zones as fierce ideological battles rage on about the appointments of Vice Chancellors.   Appointments in key or strategically important public institutions have been part of contested terrain as they go to the heart of leadership and transformation.  It is perhaps inevitable that in the post-apartheid society, the selection of a leader at the university will always provoke heated, controversial and passionate debates.  After all, a search for new leadership involves a process of unearthing a leader dedicated to fulfilling the University’s educational mission and research enterprise, to advancing in the context of a developing country, a vision for the University’s future, and to developing and nurturing a tradition of academic excellence.  But the nasty fights at the universities have revealed the ugly side of corrupt appointment processes in which mediocrity is celebrated and scholarship and stellar leadership qualities are not valued.   In this atmosphere, the culture of meanness and insouciance to the plight of black people is celebrated as a virtue.

 

To some the series of crises and controversy were a natural outgrowth of a society in transition and reflected nothing more than our collective search for common ground.  To others inclined toward a less sanguine view, the battles reflected competing ideologies and the political agenda of their protagonists.  On the one hand are the previously excluded, marginalized and oppressed who want the system to be transformed fast.  On the other hand are those beneficiaries of apartheid desperately seeking to hold on their ill-gotten privileges and to maintain status quo. In this theatre of engagement subjectivities loom large. In the process our society is impoverished as fundamentals that are supposed to inform the academic project are jettisoned.  The adversarial ethic is taken to extremes – there is disagreement about everything from the University’s leadership, its educational mission and research enterprise, to the vision for the University’s future.  Those opposing change have harped on the need to maintain “standards” and have resisted pressure for meaningful transformation in the name of institutional autonomy.  The latter has been used to justify just about every anti-transformation stance at most universities.   In this atmosphere, one must deal with the reality that forces opposed to transformation are not only well-organized but they have the resources, determination and very powerful lobbyists hell-bent on maintaining the status quo or re-inventing our society to suit their own fancy.  Sadly, the internecine warfare, which is often accompanied by corruption of processes, has manifested itself very strongly in our universities which are supposed to be bastions of reasoned discourse, integrity of process and fair play.  Fairness, transparency and integrity are all sacrificed on the altar of expediency and sheltered from public scrutiny and accountability in the name of institutional autonomy.  It is not surprising that a black student who overcame enormous odds and finished his coursework can be condemned to 17 years of hell because he lacked the financial resources to settle his debt or make a lump sum payment to the university.

No institution has attracted much controversy than the University of Witwatersrand. The most infamous incident was an orchestrated campaign against Professor Malegapuru Makgoba. He had been earmarked for the position until he started making pronouncements about Africanization. This was seen as a vulgar provocation. Professor Makgoba discusses the ordeal in his book, Makgoba, M.W. (1997). MOKOKO: The Makgoba Affair--A reflection on transformation. In the preface to Chapter 11, which he entitles "So what was the fuss all about?"Makgoba states that:

[t]he fuss was largely to protect White privilege; to protect White power; to protect a dying, unsustainable imitative ideology; to protect the family jewel and business; to protect the poor qualifications of some of the academics; to protect the poor record of research output, research mentorship, low quality research ideas; to protect the low international competitiveness; to protect the inability by (sic) academics to attract first rate research funding; to protect the low academic standards and finally the protection of a Eurocentric educational philosophy (p.142, emphasis added).

Makgoba exposes the ugly truth that the so-called need to maintain standards has a coded meaning and is used to obfuscate the mediocrity of the very people arguing against transformation.  He asks poignantly:

How can you produce top class research if you yourself have never carried it out? How can a Bachelors train a Masters or PhD? How can academics justify their excellence with largely mediocre articles of no value theoretically, practically and intellectually? These were the issues facing the university at this time of major transformation. With transparency and accountability on the cards, there is nowhere to hide, unlike during the apartheid era. (p.142,  cf also p.225).

Professor Makgoba’s stellar work and exemplary leadership at the UKZN speaks volumes about the qualities required to realize the mission of transforming higher education.  Wits was determined not to let visionary black leaders assume leadership of the institution.  Instead it preferred blacks who will simply manage the status quo and not even tinker with it.  Wits eyed Professor Nongxa, a non-threatening insider, as its preferred candidate.  But it brazenly cast aside all pretence and resorted to corrupt and downright farcical process to eliminate the competition when its darling candidate was faced with unexpected stiff competition from outsiders who were highly educated blqcks.  The end result was an unseemly spectacle where an individual had to contest against himself. There is no prize for guessing who the winner is. As one academic luminary puts it, in a rat race, only a rat will win. It is even so when the rat is the only contestant.  The deafening silence from the academic community when the charade was unfolding speaks volumes about how processes and systems can be corrupted in the name of autonomy.  In a perverse manner, the very transformation project is hijacked to impose a candidate who will assist the institution maintain the status quo for as long as possible.   

The loss of academic integrity was to prevail also at University of Pretoria. Despite his unquestionable academic and intellectual leadership, Professor Jansen was overlooked for the position of Deputy Vice Chancellor after a sterling term as the Dean of Education. Jansen was too hot for the institution which wanted to control the transformation agenda. Jansen resigned. He applied for other VC’s position at other institutions until he finally got appointed VC of the University of the Free State.

The appointment of both Professor Barney Pityana and Professor Makhanya at Unisa followed similar controversies around the academic project. Pityana, himself a towering figure was preferred over accomplished scholars who tried to take the matter to court. A member of Council for Unisa and alumni took the Unisa Council to court citing irregularity in the appointment of Makhanya. The tragicomedy has played itself in other institutions.

All eyes are now on the CPUT as it makes the important decision to appoint its next vice chancellor.  The seeming contest between Professor Seepe and Dr. Nevhutalu not only raises important issues around the intellectual and academic project but it also calls for more soul-searching on how seriously we take the transformation agenda.  In this regard, it is important to appeal to the institution’s own advert against the CVs of the two candidates. The CVs are the only objective measures available regarding the academic and intellectual standing of the two candidates.     We are mindful that the appointment takes place in the Western Cape and against the background of reports from various agencies showing that the Western Cape is the worst in the country in terms of employment equity in both the private and the public sector.   In the area of transformation, the proof of the pudding is in the eating.  A candidate who has played it safe and assiduously shied away from the vital but controversial issues affecting society cannot be magically transformed into a transformation leader overnight.  We know Professor Seepe’s track record of sustained public engagement and leadership on transformation issues.  In addition, a candidate who has had only one publication, has poor record of research output, cannot be relied upon as a leader in the march towards academic excellence.  The CPUT has a choice.  It can appoint leadership dedicated to fulfilling the University’s educational mission and research enterprise, to advancing transformation and a vision for the University’s future, and to guide it in the never-ending quest for academic excellence.   Alternatively, it can betray its mission and succumb to the temptation of internecine warfare, institutionalized mediocrity and corrupt processes witnessed in other institutions.  When all is said and done the pivotal question will be whether the university has the quality visionary leadership that will not simply replicate the despicable puppetry of the likes of Njabulo Ndebele at the UCT.