I Would Want 23 Year Old South Africa To Be A Person I Could Introduce To Slain MK Fighter Phila Ndwandwe.

I often wonder why the executive seems so resistant to the guidance of the judiciary, and so ready to appeal and fight its rulings.
The Constitutional Court sits, on March 17, 2017, in Johannesburg to deliver a ruling to resolve the social grant payment crisis in South Africa, two weeks before the current deal expires.
The Constitutional Court sits, on March 17, 2017, in Johannesburg to deliver a ruling to resolve the social grant payment crisis in South Africa, two weeks before the current deal expires.
Marco Longari / AFP / Getty Images

Brave. Very, very brave.

That was how one of the men who murdered Phila Ndwandwe described the young Umkhonto we Sizwe fighter. She was a dental therapy student when she was recruited by the ANC in 1985. She was living in exile in Swaziland when apartheid police abducted her in 1988. They hoped they could torture Phila into becoming an informer.

She had just had her first son and was still breastfeeding him when she was kidnapped by members of the Durban Security branch. Her abductors, it seems, didn't care. They stripped her naked and beat her, repeatedly. She made herself a pair of panties out of a plastic bag. Despite all the brutality she was subjected to, one of her killers later told the Truth and Reconciliation Commission, she simply refused to talk.

Eventually, the security police officers who had torn Phila away from her baby gave up on trying to turn her against the ANC. They decided to kill her. They dug a grave in a field in Kwazulu-Natal and took her there, blindfolded. They hit her over the head and then, while she was unconscious and could not fight back, they shot her. She was buried naked. Her killers covered her body with lime and a plastic sheet.

Years later, after Phila's killers disclosed what they had done to the Truth and Reconciliation Commission and received amnesty, her body was unearthed. Her parents were left broken by the realisation that they'd been living 10 kilometers from where their child was buried without knowing the horror of what had happened to her, believing the lies fed to them that she was alive and had eloped. Her nine year old son attended the funeral of a mother he never known - a clever vibrant brave young woman who would not be broken by violence or fear. An extraordinary human.

Today, an artwork hangs on the walls of the Constitutional Court. It shows a beautiful blue dress, made of plastic, floating. It's a ethereal and bitterly painful tribute to Phila Ndwandwe, who spent her last days naked and battered... but unbroken. It's a dress made of the plastic that she used to cover her body while enduring unspeakable torture. The plastic that covered her bones for nearly a decade.

Phila Ndwandwe was 23 years old when she was murdered. The same age as the democracy that she fought and died for.

There were hundreds, if not thousands, of South Africans who suffered unspeakable horror, even death, to bring us to this place today.

Phila's story is tragically not unique. There were hundreds, if not thousands, of South Africans who suffered unspeakable horror, even death, to bring us to this place today. This place where we can talk about our 23 year old democracy, and openly interrogate it, praise it and criticise it. A place where we can and must ask ourselves: what would 23 year old Phila Ndwandwe make of the lived reality of the democracy she gave her life for?

If that question makes you uncomfortable, I don't think you're alone.

South Africa's 23 year old democracy seems to be hurtling towards an imploding quarter life crisis, questioning its purpose, who and what it is and what it wants.

And it's very, very angry. That may be a good, and necessary thing. We can't call ourselves a transformed country if the face of poverty in South Africa is still, as former Public Protector Thuli Madonsela put it, black and female. We can't call ourselves a transformed nation if we fail to address, in a palpable and effective way, the issue of land reform. We must address economic transformation. Before the seething anger of the young and disenfranchised turns from protest into destruction.

I am not writing this to depress or scare you. I promise.

Because there is a real bastion of hope in the life of this 23 year old democracy: this country's courts.

As government persistently fails to make legal decisions, or persists in bizarre and ill fated agendas, our courts have steered us out of crisis and into calm. The South African Social Security Agency ruling delivered by the Constitutional Court is a perfect example of how eleven justices salvaged clarity from government's suicidal failure to address the grant payment crisis in a legally responsible way.

These judges, using the Constitution, prevented a situation where Cash Paymaster Service could name its price to keep delivering social grants to ten million of South Africa's most poor and vulnerable people. They also protected the information of those grant recipients from being owned by CPS subcontractor Grindrod Bank - or being shared for so-called "FICA purposes".

Social Development Minister Bathabile Dlamini now faces a R5 million legal bill over her handling of this thoroughly unnecessary crisis. She apparently only knew about the imploding grant disaster six months after SASSA first sought legal advice about it and blocked three attempts to formally inform the Constitutional Court about it. As yet, there has no real explanation as to why - but the Minister will this week file an affidavit about why she should not be held personally liable for the costs. If she is ordered to pay costs, it'll the most stern potential reprimand that the court is able to give her. And there will no doubt be multiple headlines, opinion pieces and talk shows that endlessly dissect her response and what the Constitutional Court does with it.

The rhetoric of the court's being battlefields is actually not helpful any more.

But there is a more powerful point here, one that it seems the executive has yet to fully grasp.

It never needed to be like this.

The rhetoric of the court's being battlefields, the scenes of endless skirmishes that ultimately, more often than not, leave government bruised and bleeding, is actually not helpful any more. Perhaps it never really was.

I don't believe that the courts want to constantly be overturning irrational state decisions, or constantly identifying the many ways that certain members of the executive have flouted rule of law, ignored court rulings and effectively done whatever the hell they wanted. Underneath the much played soundbyte of Chief Justice Mogoeng Mogoeng begging Minister Dlamini and SASSA' s advocate to explain how or why they had arrived at a position "where you look so incompetent", was a real and desperate desire to understand: how could you let this happen? You, the state, who are constitutionally entrusted to act in the best interests of citizens. To be accountable. Responsible. Compassionate.

How could you let this happen?

It was almost like hearing an exasperated parent speaking to a 23 year old in the midst of an unfolding quarter life crisis, angry and uncertain of itself, who keeps repeatedly making self destructive decisions. Why are you doing this? Can't you see that you're hurting yourself? That you're hurting all of us?

I often wonder why the executive seems so resistant to the guidance of the judiciary, so ready to appeal and fight its rulings, so dangerous in pushing rhetoric about judges being counter revolutionary, controlled by outside forces? Dangerous allegations, made with no evidence. Is it because our democratic leaders are haunted by the memories of what our courts used to be? The tools of the racist apartheid state, used to oppress the anti apartheid movement, and to kill and imprison it's leaders....

And then I think about judges like Dikgang Moseneke - imprisoned as a 15 year old for plotting to overthrow the apartheid government, he spent ten years studying towards becoming a lawyer, then an advocate...and later one of South Africa's first black judges. He experienced the worst excesses of apartheid state sanctioned brutality, and it compelled him into a life where he would fight to protect the Constitution and rule of law.

Perhaps because, I think, Dikgang Moseneke understands what happens when court's become the unquestioning tools of the state - rather than the constant, conscious and questioning defenders of the Constitution.

Apartheid died when it was 49 years old. Our democracy isn't even half its age.

We cannot forget that the poison of that previous evil system still runs in the veins of this 23 year old that we should all be fighting to protect and strengthen....

That is why it's so pivotal that our government understands that the courts are not its enemies, but its powerful sources of legal certainty, its guides. That we, as citizens, are engaged and active in holding a mirror up to this 23 year old democracy, and to ourselves. Because this 23 year old carries all our history, our fears, prejudices, dreams. And possibilities.

When I think about this 23 year old democracy as a person, I ask what I would want her to be like? What I would hope her to embody?

My simplest answer is this: I would want that 23 year old to be a person I could introduce to Phila Ndwandwe. I could say to her: We all know what you gave up, how you suffered, what you lost, how brave you were.

But look at this person who you died for... this incredible brave strong person, so much like you.... she tries so hard to do the right thing.

Look at her. She was worth it.

This is an amended version of a speech that was given to the Law Society in Cape Town.


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