Mbete’s ‘Verwoerdian slip’

In an interesting case in the 1940s, Hendrik Verwoerd sued The Star for defamation after the newspaper criticised him for being a Nazi supporter.

The Star’s take on Verwoerd was in reaction to statements he had published in Die Transvaler, advocating for the Union of South Africa to be neutral towards Nazi Germany and to forge a “separate peace.”

This, he said, would be a step towards the establishment of a republic in South Africa.

The matter came before Justice Philip Millin. Ironically, Verwoerd – yes, he who would become architect of apartheid – argued that he had exercised his right to free speech and a free press in a “democratic country”. He submitted that The Star was wrong to seek to silence him.

Verwoerd lost the case. In his judgement, Justice Millin said the right to publish what he liked was not the question. “The question is, whether when he (Verwoerd) exercises his legal right in the way he does, he is entitled to complain if it is said of him that what he writes supports Nazi propaganda and makes his paper a tool of the Nazis. On the evidence, he is not entitled to complain. He did support Nazi propaganda, he did make his paper a tool of the Nazis in South Africa, and he knew it.”

While Verwoerd was campaigning for a seat in the white Parliament, he was questioned in a public meeting by Advocate H Titren, a member of the Johannesburg Bar, about Justice Millin’s findings on him.

Verwoerd’s answer was that the judge was wrong. Titren retorted: “Well why don’t you appeal?” The question was not answered because question time had run out.

According to the legendary Advocate Isie Maisels QC, who told the story in his memoirs, A Life at Law, Verwoerd did not appeal because he was bound to lose. (It is worth mentioning that Maisels represented many freedom fighters since the Treason Trial in the 1950s.)

I recalled Verwoerd’s story of smearing a judge who had shown his independence after reading a disgusting portion of an interview with National Assembly Speaker Baleka Mbete in the Sunday Times.

Mbete told the paper she and her National Council of Provinces counterpart, Thandi Modise, had requested a meeting with President Jacob Zuma and Chief Justice Mogoeng Mogoeng to discuss the relationship between the arms of the state. The meeting was triggered by concerns of judicial bias.

“When there is a case that affects someone from the ANC, those cases would find their way [into the courts] and when they end up in the hands of certain specific judges, forget it, you are going to lose the case,” Mbete said.

More disturbing, coming from a leader of the legislative arm of government who knows nothing about the law, she added: “It has nothing to do with merit, with our correctness or wrongness. Some names [of biased judges] pop up in the head already.”

Why Mbete never bothered to appeal the specific judgements by the judges whose names pop up only in her head, and why she never complained about the judges in question to the Judicial Services Commission (JSC) is mindboggling.

Mbete occupies a position of influence. The position confers upon her important authority over the affairs of Parliament and the country. As chairperson of the ANC who wants to be taken seriously she should have appealed the judgements or lodged a complaint with the JSC. Instead, she chose the Verwoerdian option that is totally unsuitable in a constitutional democracy.

Now that she has put her claims in the public domain, she should either be summoned to appear before the JSC to substantiate them, or withdraw. The legal profession must weigh in on this because it has a negative impact on the administration of justice.

Mbete must not be allowed to come up with the tired “quoted out of context” non-explanation, or the currently trending “typo” excuse.

It was improper of her to request a meeting with the chief justice under the guise that there was a need to discuss “working relationships” between the different arms of the state, when her grievance was about ANC members who lost court cases. This is only the latest indication of her inability to manage her inherently conflicting roles of being speaker of the legislature and a chairperson of the ANC.

Given her reckless comments, it is compelling to transpose Titren’s question to Verwoerd: “Well why don’t you appeal, Madam Speaker?”

With the benefit of Verwoerd’s precedent, we shall from now on call Mbete’s condemnation of the judiciary without subjecting herself to the rigours of appeal what it actually is: a “Verwoerdian slip”. Surely, it’s worse than a “Freudian slip”.

Mogoeng is correct to be “deeply concerned” about Mbete’s conduct. Unsubstantiated attacks on judges by leading members of Parliament could erode public trust in the courts.

If citizens, who are misled by high-profile public representatives, decide not to follow court orders we will be in worse trouble than we already are.

With an executive and parliament that have failed to live up to the wishes of the people as expressed in the Constitution, the people have found sanctuary in the courts. You take away that sanctuary, you are likely to have an Arab Spring.

In the highly unlikely event that Mbete’s strange dream of becoming president becomes true, the chance of rebuilding the country, after Jacob Zuma’s illegal coalition arrangement with the Guptas, will be postponed. This is too ghastly a scenario to contemplate.

– Mpumelelo Mkhabela is a fellow at the Centre for the Study of Governance Innovation (GovInn) at the University of Pretoria.