By: Lindiwe Sisulu
Youth Day is a day to commemorate, remember, and honour, not just a day but a whole generation. It is a celebration of righteous anger and undaunted hope, of a decision to take hold of history, wrench it out of the hand of the oppressor, and steer it into a new course toward a new future not yet seen but firmly and absolutely believed. It is also a celebration of the spirit of resistance – of courage and bravery.
It was a revolutionary spirit that swept from Soweto to Cape Town, through the Eastern Cape to KwaZulu-Natal, to Pretoria, and points in between, waves of youthful determination that set the fires of freedom burning in the hearts of a new generation.
Those were remarkable times, created by a remarkable generation. Who, after all, were those revolutionaries? They were young people, students at universities and high schools, youth from the townships, employed and unemployed, from across the country. They looked at our history of imperialism, colonialism, and apartheid, at the realities of centuries of oppression and dehumanisation, at a history of land stolen, cultures denigrated, and communities destroyed. They saw how apartheid was destroying their parents and elders and decided: “No more!”
They emerged from a decade of brutal oppression from a white minority regime, fearful of the power of a people bent on freedom. They understood the meaning of Sharpeville and the Rivonia Trial; they saw their organisations banned, their leaders exiled and imprisoned, our people scattered, and all Black political activity relentlessly suppressed with laws unmatched in their draconian harshness. They saw the smug arrogance of apartheid, celebrating the creation of their apartheid republic as if apartheid had already won. Moreover, they decided: “No more!”
Intuitively, they understood themselves as heirs to our history of struggles, from 1510 along the banks of the Liesbeek River in Cape Town to Sharpeville in 1960. The first Treason Trial was in 1808, after the slave rebellion that year, to the last Treason Trial in 1956. They remembered the massacres, from the Seekoei River massacre in 1775 to the Bulhoek Massacre in 1921 to the Sharpeville massacre in 1960. They remembered the women’s marches in the Free State in 1913 and the great women’s march in 1956; they remembered the Defiance Campaign.
Furthermore, they decided: “Now it is our time!” So, they picked up the baton and ran with it.
Fifteen, sixteen, and seventeen years old, they put their aspirations, hopes, and dreams on hold. They set aside their fears – even after what they had seen – cloaked themselves in the spirit of struggle and shouted “Freedom!” from the rooftops. They took to the streets and confronted apartheid’s full and awesome might. They faced guns and dogs and teargas. They were imprisoned and tortured. So many of them were killed.
Furthermore, for whom did they do all that? Not for themselves only, because they had no guarantee that apartheid would be overcome within their lifetime. They made those tremendous sacrifices for others, for the generations to come. They fought because they believed in a different future and loved their country and people. Like Solomon Mahlangu as he was led to the gallows, they, too, could say, as they lay bleeding on our streets, “Tell my people I love them.”
That is the generation and the spirit we are honouring, commemorating, and celebrating today. So, on this day, how do we honour that generation? By paying our respects.
This day, this commemoration is paying respect to that generation, their sacrifices, and their contributions to our struggle. Paying respect demands honesty from us, and we must admit that this Youth Day of 2022 is commemorated in times of great disillusionment, anger, and confusion.
Almost thirty years into our democracy, the feelings of being proudly South African have primarily dissipated, leaving not a void but in their place disappointment, disillusionment, and deep anger born of a sense of betrayal. Even more dangerous, studies tell us, is the loss of trust, not just in politicians, but in politics, in our democratic processes and institutions, from elections to parliament, from the justice system, the prosecution authorities, and the courts to the police. Hardly anyone believes that the people who serve in these positions of trust and responsibility are indeed servants of the people. They serve their own interest in serving the interests of those in power and those with power in our society. It presents South Africa with the most treacherous political dilemmas: the politics of the lesser evil. That is a very precarious place to be.
Two years ago, there was still a sense of shock at every revelation the Zondo Commission brought us, and it did not only end there.
One asks oneself.
▪ Why was it only ANC MP Vincent Smith (now former Parliamentary member) who was dealt with as a consequence of this State Capture Inquiry, and yet many committed similar transgressions? Why do others like Thabang Makwetla escape the same rebuke and consequences?
▪ Was the State of Capture or Zondo Commission essentially designed to target specific individuals already framed by the media as the natural demons in the ANC, or was it about real justice? The same Commission did not flag it to highlight anything about Glencore, which Americans found was rotten to the core, particularly in buying and bribing Judges. The still-to-be-answered question is: How many South African Judges were bought and bribed by Glencore. It is of great concern when we consider the efficacy of sealing documents that have a decisive bearing on our political ecosystem with an impact on the foreseeable future of our body politic?
▪ How do those entrusted to the bench as judges find themselves in this cobweb of ignobility?
▪ What would be the motivation for the cooperation with eroding our democracy! Is it old greed and love for money that the ancient Biblical Text warns us against?
▪ Why don’t they stand for political contestation if they have political interest?
▪ What is the rightful response of our Judicial system to illicit financial inflows and outflows and the egregious violation of foreign currencies to the detriment of our sovereignty and country’s damaged image? Why the deafening silence?/
▪ Why is SARS, the watchdog of tax collection, so ominously quiet this season?
▪ What is wrong with our law enforcement agencies? South Africans want to know why are they not seeing people charged and arrested?
Now, our people will hardly be surprised if our compromised judiciary does not respond effectively and efficiently to these social matters. As such, the judiciary is increasingly threatening the country’s social cohesion. I say all this because our judiciary is not only predictable and deeply political but also has eyes unashamedly. The amounts of money may stun us, and the brazenness of the acts of theft may astound us, but we are no longer surprised. However, what leaves us with a shattering sense of dismay is the lack of accountability, the inability to take responsibility, the atmosphere of impunity, and the transparent selectivity in what is fingered and what is not.
The dismay is real because we are slowly realising that the problem is not simply persons, here and there, even though those claiming leadership roles must be vigorously held accountable. The problem is systemic. It is a sub-culture structurally embedded in deeply systemic fault lines, and our people are drowning in the bile it produces at every level of our society. Our young people feel that disappointment most keenly.
While unemployment is the highest overall since 1994, youth unemployment is staggering at 66.5%. In urban areas, it is +38%. However, in the rural areas, it is even worse: 68% of Education is still not accessible to everyone, and for even young people with a university degree, a job is not guaranteed. Large numbers never finish high school, and because of the traps of generational impoverishment, levels of crime, and poor living conditions that continue to plague far too many households, the dropout rates are alarmingly high at 50%.
The South African market is already flooded with persons not considered skilled for today’s job requirements, and the prospects for the immediate and long-term future are not good. South Africa remains the most unequal society in the world. A new report from Oxfam states that social and economic inequalities all by themselves – not wars or natural disasters or the pandemic – are causing the death of 21,000 persons per day globally. That is one every four seconds. Children and young people are bearing the brunt of these challenges.
Indeed, that is not for what we fought. The outbursts of violent anger, frustration, and vandalism, the shocking racial violence in Phoenix – death squads roaming the streets, hunting down Black people with semi-automatic weapons, retaliation for looting – all that has shocked and saddened us all immensely.
The face of visionless, directionless self-serving leadership has filled many with deep despair about our condition and the future of our country. However, our conditions today should not deflect from the truth about the conditions faced by the youth as a generation under apartheid.
How they turned those conditions of oppression and despair into a condition of resistance and hope by creating, in the face of one of the most brutal regimes of our times, a space for their agency in the ongoing fight for justice, freedom, and dignity. It should awaken in all of us that same determination and selflessness, the sacrificial commitment we saw in the youth of the 1976 revolution, because that is what is needed today, now more than ever before.
We honour them by honouring the ideals they lived, fought, and died for and by setting those ideals as the standards for our politics, governance, and life as a nation.
Today I want to ask our youth to remember from where we come. South Africans are an ancient people from the first dawn of humankind. We were overrun by European imperialist powers with more advanced machinery of artillery mightier. We were assaulted and disempowered by the forces of colonialism and white supremacy, which left us bereft of our land, stripped of our rights, and denied our freedom. Nevertheless, not of our dignity, our longings for justice and freedom, our determination to fight for our liberation.
We are a resilient people. Our nobility lies not in the fallacies of race and the illusions of skin colour, but in our ability to, despite the onslaughts, despite genocide and decimation, despite land theft and ecological destruction, shatter our intimate, symbiotic relationship with Mother Earth and creation of all around us, rise again, resist, reassert our humanity, reclaim our sense of belonging; rekindle our hopes and our future. It is in this that our nobility lies: in our reservoirs of audacious hope, in our capacity to reclaim, time and time again, despite atrocity after atrocity, our humanity; in our willingness to share our humanity with others, in our intuitive desire to give, as Steve Biko said, and that generation so fervently believed, the world a human face.
We honour that generation by remembering that they remembered where they came from, upon whose shoulders they stood as they continued our struggle for freedom. We honour them by not abandoning those ideals as we continue the struggle for the land, full and unfettered economic freedom, and the indisputable dignity of all our people.
We honour them by not pretending that our freedom is complete, that all our people are equal under the law, or that our Constitution is perfect. Moreover, we honour them by reminding ourselves of who we are, of the roots and deepest truths of our nobility as a people.
I have raised these issues publicly, and for months, my views have not been the subject of mature, democratic debate, as I had hoped, but instead the target of an attack, revilement, and sometimes abuse. However, I stand by what I have said. Our Constitution must not only have transformational intent that we are all agreed upon. It must also demonstrably be intentionally transformative. For that to happen, the Constitution must also be the ongoing subject of our transformation efforts toward that greater justice we seek and so desperately need.
I stand by what I have said, not because I believe I am eternally right, but because I have been proven right by some of our most prominent justices who have raised concerns about the same issues. So, for instance, in a recent lecture, Judge President Dunstan Mlambo of the Gauteng Division of the High Court did.
“It has been emphasised many times,” writes the Honourable Justice, “that our Constitution embraces an aspiration and an intention to realise, in South Africa, a democratic, egalitarian society committed to social justice and self-realization opportunities for all.” He then talks about transformative constitutionalism “and why it necessarily requires that, in the Judiciary, but the legal sector in general, we transform legal culture and the judicial mindset in line with Constitutional dictates.”
Like me, Judge Mlambo speaks not only of the need for the Constitution to be an instrument of transformation of legal culture but of one of the main problems standing in the way: the mindset of judicial officials. He reminds his audience that we must be aware of the impact of South Africa’s apartheid history. That means that, as in all other spheres, we have inherited a colonised mindset, a mindset that must be consciously, systematically, and radically transformed to serve transformational justice truly. That was precisely my point.
Justice Mlambo asks a pivotal question, “How Have Judges Performed”? Just like I did before him, Justice Mlambo answers as follows:
‘South African legal practice and, in a sense, the judiciary has a conservative setting. Borne out of our apartheid past, our legal culture is conservative” in other words, in deep need of transformation. Finally, Judge Mlambo concludes,
“Currently, there are themes that seek to suggest that our Constitution has been a failure in that it has not resulted in better living conditions for the poor masses; there are themes that suggest that judges and courts have become a Juristocracy that impedes the socio-economic development of the poor masses; there are yet other themes that suggest that courts and judges, unelected as they are, have become too powerful and must be reined in and that South Africa could do better under a parliamentary supremacy framework.”
It was never remotely my wish for our Constitutional democracy to be abolished, as some in ignorance and obduracy have labelled my legitimate quest. I want our Constitution to be transformed so that it not only accommodates our people’s desire for justice and full dignity but our people’s right to justice and full dignity. This must be not only the Constitution’s intent but also the Constitution’s daily workings.
Moreover, my view, beginning with the profound question raised by Article 25, is that the most extended clause in the Constitution that now turns out to be the refuge of those who stole the land and want no discussion on how to have it returned.
However, Justice Mlambo is not the only one. Also in agreement with my perspectives is Constitutional Judge Jody Kollapen, who writes,
“For many, the Constitution has truly been the source and the foundation of a better society, a better life, a better future – one characterised by respect for their worth and dignity and one that has enabled them to reach their potential, as the preamble to the Constitution so boldly proclaims.
For many others, however, the Constitution remains an illusion far on the horizon. They impatiently wait to feel its presence and effect and to deliver on its promise of a better life. Moreover, the longer they wait, the more likely they believe it is more elusive than real. Yet, the very future of our country depends on how this constitutional pact is honoured for all South Africans.”
Wendell Griffen, a Circuit Judge for the Sixth Judicial Circuit, Fifth Division in Arkansas, (United States of America), as a rejoinder to my ‘Hi-Mzantsi article,’ open our eyes and make the following observations and assertions, and I quote:
“In all times, the law is the handmaiden of those in power. Only in extraordinary circumstances will courts and legislatures break with this traditional role and reach out to the dispossessed, usually in ways that benefit those without power in small ways and the short run. In large ways and the long run, the seemingly remedial actions of law stabilize and are legitimate even when, as is often the case, the powerful are most active in their opposition to these modest reforms”.
Michael Eric Dyson’s observation about the “willed forgetfulness of our racial past” that enables most White people and many Black people” to “re-enact a pantomime of social civility through comfortable gestures of racial reconciliation,” and Derrick Bell’s observation that “Blacks and Whites who challenge the racial status quo are seldom hailed as heroes in their own time,” are as true now as when they were made in 1997. That explains why right-wing politicians, judges, religious figures, journalists, neo-fundamental capitalist colonizers and imperialists, and white supremacists are trying to stop teaching, learning, writing, and discourse about the history of racial injustice, including critical race theory, in colleges, universities, and otherwise.
Unisa as an institution and the department host this event should feel free to extrapolate this point. Judge Griffen, concurring with me, goes as far as to assert that “Black people in the United States and Indigenous people in South Africa and elsewhere have always known that the long pattern of domestic terrorism against our communities, places of learning and worship, our burial places, and our historical sites is a basic aspect of white supremacy and domination. At the same time, the descendants of Indigenous and formerly enslaved Africans who asserted our inherent rights of dignity, equality, and freedom from oppression have always recognized how White colonizers and their descendants used Black lackeys as agents of pacification. In the early years of the last Century, Booker T. Washington served that purpose. At the end of the last Century and currently, judges such as Justice Clarence Thomas and religious figures such as Tony Evans serve that purpose”.
We cannot say South Africa does not have that kind of Judge. In agreeing with my Hi-Mzantsi musing, Judge Griffen makes the following analogy:
“Black people suffered and continue to suffer because of centuries of slavery, segregation, and discrimination perpetrated under “the rule of law.” A generation ago, Randall Robinson wrote about what the United States owes Africans and African Americans for the damage.
After quoting the long-settled legal principle that a party wronged by unjust acts is entitled to recompense, so the wrongdoer is not unjustly enriched, Robinson wrote:
“The thinking must be that the case that cannot be substantively answered is best not acknowledged. Only in the case of Black people have the claims, the claimants, the crime, the law, the precedents, and the awful contemporary social consequences all been roundly ignored. The crime – 246 years of an enterprise murderous both of a people and their culture – is so unprecedentedly massive that it would require some form of collective insanity not to see it and its living victims. Hence, the United States government and white society generally have opted to deal with this debt by forgetting that it is owed.
America accepts responsibility for little that goes wrong in the world, least of all the contemporary plight of black Americans. Nevertheless, many, if not most, whites still cannot or will not see it (a behaviour accommodated by all too many uncomplaining blacks). Moreover, until America can be made to do so, it is hard to see how we can progress significantly in our race relations. So, all this raises a question. Why is there no public reaction to these statements, bearing out my own views on these matters? Why is it that when men say it, it is all good, but when a woman says it, there are howls of indignation, screams of shock, and streams of abuse?
But I say it, and I will continue to raise these issues because I believe this is a way to honour those young people who stood up on June 16, 1976, and so courageously led the assault on the apartheid edifice.
So, how do we honour that brave generation of freedom fighters on this day? We honour them by returning to the politics of decency, honesty, integrity, courage, and virtue. I keep on saying this, for this is what we need, now more than ever.
In an authentic sense, 1994 was our response to that generation: their hopes and dreams, aspirations and expectations, struggles, and sacrifices. Our declared readiness to govern was meant to be a response to them and the generations to come, to all of you sitting here today. We made a sacred pledge to our people, built on respect and trust. A better life for all does not only mean material things, not just housing, school buildings, infrastructure, and jobs. It also means together embracing those values we can all live by, as individuals, as communities, and as a people. Those values give our lives meaning, direction, and purpose.
In the Bluebook 21st edition. Karl E. Klare, on Legal Culture and Transformative constitutionalism in 1998, wrote the following:
“By transformative constitutionalism, I mean a long-term project of constitutional enactment, interpretation, and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing large-scale social change through nonviolent political processes grounded in law”.
I am consciously aligned with Karl E. Klare’s philosophy. One has in mind a transformation vast enough to be inadequately captured by the phrase ‘reform,’ but something short of or different from ‘revolution’ in any traditional sense. In the background is an idea of a highly egalitarian, caring, multicultural community governed through participatory, democratic processes in the polity and large portions of what we now call the ‘private sphere.’
Now, living in a constitutional democracy, all actions of parliament and the executive are subject to decisions made by these judicial officers. The three branches of STATE are co-equal and co-responsible for the state of the country, without apportioning blame. In many cases, the judiciary has the final say. Furthermore, to quote a prominent Irish Judge, Sir James Mathew, at the turn of the 20Th Century: “Justice is like the Ritz Hotel (five stars). It is open to the rich and the poor.”
Thus, you will find that various well-funded non-governmental legal formations quickly rush to court when their interests are threatened. They have the resources and the will to fight laws inimical to their interests through direct legal actions or Amicus Briefs. Perhaps it is time to question the influence of dark money on Judiciary outcomes in our beloved country and debate on amicus transparency. Moreover, as the African proverb goes, a snake always gives birth to something long.
Poverty in South Africa is difficult not to talk about. We have the greatest dishonour of being the most unequal country in the world, firmly drawn along racial lines for decades up till today.
The thrust of the musing Hi Mzansi, have we seen justice? was purely about economic disequilibrium in today’s South Africa. It was about the intransigent absence of any Economic Reconciliation, which most critics have conveniently ignored and framed as an attack on the judiciary and questioning the Constitution’s legitimacy. It was what we all agree are the evils that plague South Africa: Poverty, inequality, and unconscionably high unemployment, especially among the youth.
To reiterate, the mention of the Constitution and the rule of law was only tangential to the extent that the rule of law and the Constitution is foundational and fundamental to how wealth and poverty are arranged and distributed. The natives land act of 1913 is a case in point. Now we have a constitutional democracy. How the Constitution has been interpreted in our courts becomes vital. It is worth mentioning that the courts should get credit for many landmark rulings in favour of the poor to ameliorate the harsh conditions they find themselves in. However, at the end of the day, we are all judged by results.
If the result is unsatisfactory after 28 years, must we not have a second look at how we can aid the courts through judicial reform and a reform of the Constitution? Absolutely. The judiciary is not untouchable, and the South African Constitution is not a holy script. What is so difficult to understand about this? Is the Africanisation of the law a swear word?
Ultimately the debate surrounding the article has been like the classic tale of the seven blind men who went looking for an elephant. How they “saw” the elephant depended on where they touched it. The one who touched the tail said the elephant was a giant snake. The one who touched the sides said it was a big wall. The one who touched the legs said it was a big tree. Unfortunately, in our scenario, not many have cared about the big elephant in the room – the subject of Economic Reconciliation and reparations. No one even refers to the main reason the article was written, encapsulated in the quote of the tremendous economic justice fighter Sampie Terreblanche.
I will recap the original article to focus our attention:
“There are excellent reasons why the late Sampie Terreblanche, renowned economist and fighter for justice, kept insisting on a new Truth and Reconciliation Commission focusing on economic justice and reparations. But obviously, his voice, like other voices calling for economic justice, economic restoration, and economic reparations as essential for reconciliation, has been consistently ignored by those with the power to give effect to these calls.”
Are we not doing the same here by ignoring the main point of that article? Selecting small portions and framing them as “attacks” that required a burning at stake? Blinded by fog, are we not gas-lighting the public about the real issue? The real issues are economic reconciliation and reparations, judiciary reform, land, and constitutional review.
Let me briefly observe the South African judiciary and the areas requiring reform. The late Chief Justice of the United States Supreme Court Justice Stephens once remarked, and here I quote:
“It is the confidence in the men and women who administer the judiciary system that is the true backbone of the Rule of Law. It is the Nation’s confidence in the Judge as an impartial guardian of the Rule of Law.”
The judiciary exists because of public trust and confidence in the system. Judges in most liberal democracies such as ours are unelected. Therefore, public confidence and trust in the judiciary are premised on believing that the judges will be fair, impartial, ethical, and apolitical. The appearance of impartiality is paramount to the dispensation of justice.
That the ascendency to the ANC presidency by President Ramaphosa saved South Africa from eternal abyss and damnation is hugely unfortunate. Against this backdrop, there was consternation concerning the utterance by Chief Justice Zondo regarding the outcome of the ANC elective conference in 2017. Perhaps there is a need for more, not less, debate on ethics, accountability, and code of conduct for the constitutional court. There is also a need to develop disclosure rules through a Disclosure Act for all judiciary officers to root out ethics issues.
One is fully mindful that we are raising uncomfortable issues for many. I think I have said enough for, as noted by the great Irish playwright and political activist George Bernard Shaw, all great truths begin as blasphemies. We must be hard on ourselves to move forward as a nation. We must rise to the occasion, which is littered with difficulties. We must think and act anew. Africa shall rise, and South Africa as a true member of this mother continent, shall reach her manifest destiny of prosperity for all.
I, therefore, thank God for Unisa’s courage to open up spaces for intellectual discourse.
I thank God for borrowing us the young Solomon Mahlangu and others like Steve Biko and Chris Hani, who refuse to allow the massive debt owed Africans to be disregarded and disallowed by the “willed forgetfulness” and “collective insanity” rationalized by reliance on “the rule of law.”
I thank God for the spirit of Winnie Mandela, which refuses to allow reliance on “the rule of law” to silence the rightful claim of South Africans to the reparation owed for the land and labour stolen from them for centuries.
And I thank God for Martin Luther King Jr., Malcolm X, France Fanon, James Cone, Jeremiah Wright Jr, Langalibalele John Dube, and other prophetic religious and secular leaders like Zachariah Mahabane and Albert Luthuli, who proclaim a festering inconvenient truth.
Moreover, I thank you for affording me the opportunity and privilege to address this gathering.
*This is a full version of
keynote address delivered on Tuesday by ANC NEC member Lindiwe Sisulu at the College of Law: Department of Public, Constitutional and International Law at UNISA on the occasion of commemorating Youth Day
