Mark Shuttleworth’s “war chest” appears to be driven by revenge against the State, says Nelson Kgwete.
Pretoria - We are fortunate as South African citizens to live in a country where freedom of opinion is guaranteed in the constitution – the highest law in the land – and protected by competent institutions of the state, including the judiciary, Chapter 9 organs and the government.
Related to our treasured freedom of opinion is freedom of speech and freedom of association, both of which are equally guaranteed and protected.
In spite of this constitutional paradigm, which is duly celebrated and regarded as a model by oppressed and free peoples of the world, our level and culture of debate appears to be degenerating; thereby undermining our capacity to listen and learn as our democracy matures.
A case in point is the reaction to the announcement by billionaire entrepreneur Mark Shuttleworth that he intended setting up a trust, to be funded by the proceeds of a lawsuit against the Reserve Bank, to fund selected Constitutional Court cases against the State.
As one would expect from a free and open society, there were those in support of Shuttleworth’s gesture and some against it.
What you wouldn’t expect, however, is the stubborn refusal by some to listen to others; to examine the merits of the dissenting party’s arguments.
We seem to prefer a shouting match on many of the issues pertinent to the sustenance of our constitutional status.
The one shouting the loudest wins the debate. And this worrying culture is embraced not only by “ordinary people”.
Opinion-makers in positions of authority, including the academia, the NGO sector and the media, are often leading the pack.
Shuttleworth, a fellow South African who has hoisted our flag at the highest point (in outer space), in so doing making the country proud, is also known for his commendable philanthropic gestures; for sharing his fortunes with the needy.
Many of the others who are equally fortunate can learn from him.
What shouldn’t be emulated, however, is Shuttleworth’s apparent belief that it is only the State that has the capacity to undermine people’s constitutional rights and privileges.
A fair number of Constitutional Court cases dealing with the promotion of human rights and freedoms have been brought successfully against non-State institutions; and these cases continue to serve as precedent for the lower courts.
It is also worth noting that the Constitutional Court does not exercise exclusive jurisdiction in respect of constitutional matters.
The various divisions of the High Court and the Supreme Court of Appeal have the requisite competence and authority to rule on constitutional matters.
It is only under exceptional circumstances when the Constitutional Court is approached directly to adjudicate on a case.
A well-meaning activist dedicated to the rights of the downtrodden would recognise that the constitutional rights of ordinary people are also being settled at levels lower than the Constitutional Court and focus much attention there. Instead, what do the monied and arrogant prefer?
An antagonistic showdown with the State at the highest levels where the issue is no longer the denial or violation of ordinary people’s rights, but rather the flexing of one’s financial muscles.
Blind loyalty to the government of the day must be bemoaned in the same way that blind loyalty to any anti-government voice must be bemoaned.
Many a commentator welcomed Shuttleworth’s announcement of the “war chest” without interrogating, in an honest manner, its possible flaws and apparent irrational motive.
In his contribution to the debate, Fikile-Ntsikelelo Moya categorises those not supportive of Shuttleworth’s decision as “comrades” who see “a seditionist under every stone, much like the apartheid government saw a communist under every rock”.
All those with a different opinion are dismissed in a simplistic manner in keeping with the degenerating culture of debate highlighted here.
There can be no denying that “ordinary people” must have access to justice, including at the level of the Constitutional Court.
Those with the means to facilitate access to the courts for the less fortunate must be encouraged to do so.
But if we think it is wrong for those without money not to access the courts, we must similarly question those wanting to use their deep pockets in a who’s-the-boss showdown with the State.
The motive must be to uplift the poor and realise the objective of equality before the law, unlike in the Shuttleworth example where the motive appears to be a desire to avenge the troubles the philanthropist had to go through in his battle with the Reserve Bank, a State institution.
* Nelson Kgwete is a public servant.
** The views expressed here are not necessarily those of Independent Newspapers.
Pretoria News