Using his refund to help the poor fight their legal battles must be applauded not criticised, says Fikile-Ntsikelelo Moya.
Pretoria - Mark Shuttleworth probably did not expect the kind of backlash he got from some quarters after he announced that he would not keep a cent of the R250 million, but would use the money to set up a fund.
“I will commit the funds returned to me by the SCA (Supreme Court of Appeal) to a trust run by veteran and retired constitutional scholars, judges and lawyers, that will selectively fund cases on behalf of those unable to do so themselves, where the counterparty is the state.
“The mandate of this trust will extend beyond South African borders, to address constitutional rights for African citizens at large, on the grounds that our future in South Africa is in every way part of that great continent.”
Imagine my surprise when I read some, including senior officials in government, suggesting Shuttleworth was “irrational”, “arrogant” or party to those who used the courts as a parallel government because they had lost the ballot.
Shuttleworth could have taken his money and flown to the moon again – but he did not.
Instead, he created a fund for those who are unable to enforce their “guaranteed constitutional rights”.
Legal services are expensive.
It is no exaggeration to say justice is often a preserve of the rich. If in doubt ask Oscar Pistorius’s accountant.
It is a common refrain by top lawyers that they would probably not afford themselves if they got into trouble.
And so when a billionaire donates R250m to a fund to help those who, in the opinion of experts, have a constitutional case worth fighting, I could not think of anything more noble.
But the comrades see it differently.
They see this as seed funding for regime change, but will not say what they base their suspicions on.
They see a seditionist under every stone, much like the apartheid government saw a communist under every rock. They are a reminder how the Nationalist Party “discovered” that the FNB logo had a cryptic message showing that it was sympathetic to the then-banned ANC.
Onus is on the comrades to show why we should be suspicious of Shuttleworth’s gesture.
In the absence of evidence by the comrades, I will stick to my view that Shuttleworth is a nice guy and his gesture a worthy contribution to the constitutionalism project.
I applaud Shuttleworth because we know from experience that it is possible for a well-meaning and popularly elected government to pass laws that prove to be unconstitutional.
The Constitutional Court has over the years ensured that the values enshrined in the constitution are realised, even for foreigners living in South Africa.
Ignorance or amnesia must have caused comrades to forget that the first case the Constitutional Court heard, State vs Makwanyane, was of a man who on his own would probably not have afforded to take the matter to the highest court so he could be spared the hangman’s noose. The court eventually ruled the death penalty unlawful.
The court has helped develop human rights law and made South African constitutional jurisprudence the standard against which other countries could benchmark themselves.
Irene Grootboom – from the Wallacedene informal settlement in Cape Town, whose case resulted in what is commonly called the Grootboom judgment in 2001 – would not have on her own been able to challenge the state on the right to housing for the poor and thus help codify socio-economic rights.
When she died in 2008, she was still living in a shack.
Organisations like the Treatment Action Campaign would not have been able to go to the Constitutional Court and win those living with HIV and Aids the right to access drugs necessary for their treatment had it not been for the philanthropy of people like Shuttleworth.
The case against Tanzanian citizen and alleged al-Qaeda operative Khalfan Khamis Mohamed, wanted for conspiracy in the Dar es Salaam and Nairobi bombings, helped establish jurisprudence directing that South Africa refrain from extraditing citizens of other countries if they faced prospects of capital punishment and the receiving state had not given a guarantee that they would not be executed.
Assuming the comrades’ memory is failing them and they cannot think that far back, they should know that as matters stand, a state agency – the SANDF – refuses to recruit persons living with HIV on the grounds of their state of health.
Are comrades hoping that those on the receiving end of their rights being abused should just grin and shrug their shoulders bemoaning their bad luck?
The comrades must ask themselves who they would rather have between Shuttleworth, who chooses to use his money to support constitutionalism in South Africa and the likes of Osama Bin Laden, who used his wealth to pursue intolerance and hatred.
* Fikile-Ntsikelelo Moya is executive editor of the Pretoria News. Follow him on Twitter @fikelelom
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