No common ground

The debates around student fees and decolonisation became increasingly polarised. In October 2016 I wrote an opinion piece in the Daily Maverick asking “here is the middle ground in the South African debate?”In part, it was a response to intolerance within the #FeesMustFall debate and the demonising of people such as University of the Witwatersrand (Wits) Vice- Chancellor Adam Habib.

Habib had been forced out of a meeting with students in a local Johannesburg church, which was meant to be the start of a “Peace Accord”. He was pilloried for being an anti-progressive force. Had Habib made mistakes regarding his dialogue with students and staff or the way in which security was deployed? It would have been difficult not to have made mistakes given the volatility of the situation. Yet, the labelling of individuals like Habib came so easily that it was not only destructive but truly undermined the ability of all sides to find solutions to the crisis at Wits and other institutions.

I happen to know Adam and have no doubt about his commitment to progressive values and his personal integrity. It pains me that those were such difficult days for him and many other decent men and women in university leadership. The long-term negative impact on those who still teach and find themselves in these institutions cannot be underestimated. The levels of trust between student and teacher have in many cases been irretrievably broken down. My Daily Maverick piece was also in part a response to the reaction I personally received when drafting a petition relating to the protests at UCT.

When I wrote that opinion piece, the temperature at UCT was on the rise. The university had been closed for a month as a result of various pro- tests. Students and management were meant to try and “find each other” during this time. The activist news agency GroundUp published a report on 5 October that gave a good flavour of the situation on the ground.55 A group of protesting students stood outside a lecture hall, shouting obscenities at security personnel, and aggressively saw off those who wished to enter. Lectures were disrupted by roving bands of protesters. Students attending lectures were forced to abandon them. Protesters later assembled in the Leslie Building to listen to protest leader Athabile Nonxuba and politics professor Lwazi Lushaba.

Lushaba pledged the support of academics to the students: “It is no longer enough for our black academics to continue going to class to teach, when our black students are here.” The meeting also reported on a letter to staff and students sent by UCT communications director Gerda Kruger: “The situation on campus is reaching a point where we are at risk of serious conflict and escalating violence and we will not be able to contain the situation without a very large increase in security and intervention by the South African Police Service. This would only serve to make matters worse and may lead to injury and even lives being at risk.”

Management and students seemed involved in an endless round of back-and-forth and it was during this time that the vice-chancellor’s office was attacked. The currency on campus was fear in many sinister manifestations. It seemed to me that something urgent had to be done to bring some form of order to the UCT campus and that a small group of students, uninterested in the actual work of being a university student, were holding the university to ransom.

I penned a petition on behalf of UCT alumni for circulation. While the petition drew thousands of signatures (including members of my final year LLB class) it also drew severe criticism, both on social media and elsewhere. Mostly, the criticism was that the petition took a securocratic approach and that the violence on campuses was as a direct result of heavy-handed security guards who were also untrained to deal with such situations. Mistakes were made and security guards at universities have undoubtedly often acted in ways that were heavy-handed, if not downright brutal. At UCT students at- tacked a security guard, leaving him bloodied and injured. UCT described the incident as “deeply regrettable” at a time when negotiations were meant to be ongoing. The incident was captured live on video.

Academic activity was being thoroughly disrupted. It seemed like a step too far for many of us alumni. The very idea of the university as a place for the exchange of ideas and intellectual activity was being seriously undermined. Many academics remained silent for fear of reprisals. The levels of intolerance and violence were unacceptable in my view. Speaking to many sensible and progressive colleagues and friends at UCT’s Law Faculty, I could see that they were feeling besieged by the daily abuse or fear of abuse from students. There will be those who say they did not feel this intimidation, but mostly these tended to be people who were not there on a daily basis and had little knowledge of what was actually going on and specifically what lecturers were having to cut through each day simply to get to their offices.

Whatever controversy the petition brought about, we all felt strongly that there were fundamental principles of academic freedom at stake. Part of the petition read as follows:

It is a fact that free higher education is not the university’s to give. That is the role of the state. In our view it is also not possible to “decolonise” entire curricula overnight although we believe universities are the right places to discuss such transformation initiatives. On the basis of these two demands alone, UCT could be shut down for months if not years. They simply cannot be solved immediately even with the best will in the world. They are far too complex.

Meanwhile, at the University of KwaZulu-Natal (UKZN) what had the strong appearance of an arson attack gutted part of the Howard College Law Library. The attack raised many questions regarding the nature and moral limits of protest in South Africa and also about the shortcomings of participatory democracy and the ongoing relationship between citizens and their elected representatives that the Constitution envisages.

At UKZN, the arson was part of ongoing student protests on the campus regarding fees. While condemning the attack, the president of the Student Representative Council, Bandile Majola, said there were “general issues” that students sought to have addressed urgently. He went further to tell reporters: “These are issues the university has been well aware of for a long time. They have failed to act on them. Negotiations are a tactic; they use (them) to get students to quieten down. They don’t implement agreed-upon resolutions.’ Students were also angry that university officials had employed private security personnel who they said were using “strong-arm tactics” against them. Wherever the truth lay in this messy and violent episode, the burning of the library was widely condemned, although it seemed indicative of where we were as a country and our propensity to resort routinely to violence.

In addition to the In Transformation initiative, there were other events I was part of that provided a first-hand perspective on the often misguided anger of students.

In late 2016 a handful of “Fallists” (perhaps four or five) tried to interrupt an event I was chairing. The event was the Cape Town launch, hosted by the University of the Western Cape (UWC), of former Deputy Chief Justice Dikgang Moseneke’s touching and brilliant memoir, My Own Liberator. It was organised by the publisher, Pan Macmillan, at the Artscape Theatre Centre and held in the rather cavernous Chandelier Foyer, a throwback to the 1970s if ever there was one.

The book is a thoughtful reflection by Moseneke on his life’s journey, not his legal judgments. It is a poignant work detailing his childhood, his schooling during apartheid and how he landed up on Robben Island. The book goes on to deal with his release from prison – Moseneke entered as a teenager and left as a man – and how he managed through sheer grit, discipline and determination to reach the heights of the legal profession. The book is fascinating for many reasons, not least of which is Moseneke’s commitment to the intrinsic value of education, something his parents and wider family understood only too well. Theirs was a family of educators and priests. He discusses his years at the then prestigious Kilnerton school and describes the teachers of the time thus:

Teachers were adored. They taught us to think for ourselves, demanded hard work and imposed discipline with all who were open to these things … It was my inimitable headmaster Mr Makhudu Ramopo who bellowed at a morning school assembly: “You have no business to be lazy when you are poor and oppressed. Your foremost task is to change your condition.” Those were our teachers. They were educators to the boot. They earned little and gave us their utmost.

It is no wonder that at the launch Moseneke said the book should be required reading for every South African Democratic Teachers’ Union teacher. My task for the evening was to be “in conversation” with Moseneke – a not insubstantial task given the subject matter and his immense personal and professional stature. I was filled with more than a gentle sense of trepidation. After all, here was one of South Africa’s greatest legal minds. I had heard Moseneke speak in 2012 at Georgetown Law School while I was based in Washington DC that spring, where he was also spending time writing part of this memoir. There, his presence filled the room and the largely American legal audience sat in awe of someone whose gravitas was evident, and who was able to command respect not only for his legal prow- ess but for his personal story of bravery, discipline and tenacity. Moseneke’s has also been a deeply ethical life, committed to the Constitution and the rule of law.

I need not have worried. He was disarming, charming and avuncular at the same time. As he walked into the room, it seemed as if I had known him for a long time; such is his ease inside his own skin and his ability to remain free of the pomposity which well-known people sometimes carry. Not Moseneke. He was by temperament ideally suited to the role history would bestow upon him; erudite but with a sense of perspective about his place in the world, and everyone else’s.

The launch began and we traversed a lot of territory, mostly about his childhood years and the importance of education and then his relationship with his family, specifically his parents. The memoir is deeply personal and recalled so beautifully the minutiae of his childhood years that I felt duty- bound to cover those years in detail during our conversation. His memory of those years is admirably crystal clear.

The hour flew by, and while we had touched on aspects of the law, there was simply no time to get through the details of such a rich life. As I opened the floor to questions, the smallish audience initially asked many of the usual questions one hears at these sorts of gatherings. That was until a few students interjected with questions related to the #FeesMustFall movement.

Moseneke was peppered with questions. Most of them related to the Constitution and why it was that there was still such a high degree of pov- erty and inequality in 2016. What was the point of the Constitution? they asked. And why had the ConCourt failed to deal conclusively with land reform? The chief interlocutor was a young man, sporting a peak cap, who seemed to have had interactions with Moseneke before. They seemed to be on familiar territory. The questioning went on for a while in a frustratingly circuitous manner. That was my view. There was certainly no sign that Moseneke felt the slightest bit of discomfort or irritation. The students’ peers interjected and asked questions in a similar vein concerning the Constitution and the 1994 settlement. The students’ voices were raised and what seemed to me like rehearsed questions cascaded forth.

I could feel myself wanting to intervene since I was chairing the event and my concern was that it would degenerate into the students effectively “taking over (would “hijacking” be too strong a word?) the event. It felt wrong to me, as if they had heard none of the preceding discussion about the sacrifices Moseneke had made to bring about the freedom that it was never guaranteed he would see. I also felt that they were ignoring the crucial role of the ConCourt in securing the rights that South Africa had never enjoyed before. On a personal level, I felt it inappropriate that they were not affording Moseneke the respect of the moment. After all, this was his book launch and he was hardly to be blamed for the socio-economic ills of the post-1994 society. I thought the raised voices were inappropriate towards a man who carried himself with such dignity and had such respect for the views of others.

I interjected, asking the students to stick to asking questions as opposed to questions wrapped in complex speeches using Fanonesque language. By this point, quoting Fanon and The Wretched of the Earth had gained widespread cachet amongst students. This was coming at the end of a very long 2016 in which disruption and burning had become par for the course. In addition, students started posing questions regarding sanctions placed on their fellow students at UWC. These were addressed to the general audience and then to the UWC rector, Tyrone Pretorius, who was present on behalf of the institution.

Moseneke appeared to sense my rising irritation. Either way, he was never going to take the bait and raise his voice back at the students. He has the perfect judge’s temperament – that much was clear. He whispered under his breath, “leave this to me, Judith, I’ve done this before”. It was probably a little naive of me to think I would need to “intervene” to save the session when Moseneke was in the room. He was quite capable of defending himself!

Slowly, deliberatively and surely, he started addressing each of the students’ questions in detail, most of which had been about the failure to ensure justice in land redistribution. He talked about the role of the ConCourt, which he said only adjudicates on questions brought before it. No substantive cases had been brought in order to ensure that land reform was placed firmly on the agenda, he proffered. He then paused briefly to ensure that the students were actually listening and continued talking about respect, that while we might disagree, shouting was never an option and listening to the other side was crucial if we were to be a society in which dialogue and not name-calling was the preferred way of dealing with our differences and our challenges.

Moseneke ended by affirming the students’ right to ask questions but as ever it was how we discussed these issues that was often equally important. He addressed the young man wearing the peak cap directly. The young man had, incidentally, removed his headgear before putting the questions to Moseneke, a gesture of respect that did not quite square with the misguided rhetoric and name-calling that followed, it must be said. But such is Messianic fervour. In a powerful moment, Moseneke held the room.

The student had lamented his own suffering by way of poverty in post-apartheid South Africa. Moseneke replied assuredly, in the manner of an elder, that no one was to speak to him of suffering when he was nearly killed by the apartheid police and spent his youth in prison, not knowing if he would ever be released. There he learnt Latin declensions from Stanley Makgoba and shared books with fellow inmates. In prison he obtained his BJuris and, when released, had to enter the long battle to be admitted as an advocate after attaining his Bachelor of Laws. This was suffering, Moseneke said, with due respect for the young man. No one who was not interrogated by apartheid police would know this, no one who was under house arrest at age 25 would fully understand, he said. The young man after all was one of a small percentage of his generation who had the opportunity to be at university and change his world.

The room fell silent momentarily. Moseneke’s story was a powerful and moving one, told without rancour or bitterness. This lack of bitterness has largely been the trait of his generation of stalwarts who helped deliver freedom through their personal sacrifices. Its authenticity cannot be challenged yet the generational gap was there for all to witness. I hoped, sitting there, that some of this resonated with the students so eager to dismiss Moseneke’s generation as “sell-outs” or simply unable to understand their current plight. We moved to the next questions from other audience members that were unrelated to #FeesMustFall. Right there Moseneke had shown that elusive trait – leadership. He could hold the room because he commanded that respect, yet it was an uncomfortable moment. It highlighted again that what lies beneath our public discourse is often an intolerance and impa- tience which can slowly go beyond listening and turn into violent language and actions. We see some of that in the careless rhetoric of Malema and the nationalist/populist part of the ANC when it talks about land reform and restructuring the economy – the so-called radical economic transformation, which has little substance but has been favoured to sweep up emotion, as we saw in the run-up to the ANC’s 54th conference in December 2017.

Again, the sense of nihilism floating beneath the surface is evident.

Moseneke argues as follows at the end of his memoir:

Going back to our constitutional arrangements, it is well and good to have the near-perfect normative standards, but they are not a panacea. Even if they were, they are sometimes observed in the breach. So, the normative standards tell us little about how to achieve inclusive growth in a way that overcomes structural economic inequality and resultant low growth. This must surely mean that the national conversation, particularly with the youth, must urgently concentrate on what is hurting the people of our country most – economic inequality and stagnation. Should we not be pointing our young people to some obvious and burning questions? For example, how, within the discipline of our Constitution, do we collectively reconfigure the social structure of our country?

Moseneke pleads for inclusive solutions to our socio-economic crisis, yet within the “discipline of our Constitution”. It is this point that seems to elude so many, given the dangerous, populist moment we are, in where the Constitution is seen as a stumbling block to socio-economic transformation and quick-fix solutions are being sought. If we have no Constitution as a guiding force, what rises in its stead? Autocracy? Collapse? It is not a question that the students are able to answer coherently.

After the launch, milling around chatting to guests, Moseneke graciously signed every book that was thrust before him. As I stood in line to have him sign my own copy, I heard the students making disparaging comments about me and my “politics”.

Perhaps our voices – of another generation or era – do need to be chal- lenged, I thought; my experiences of living in an unequal society did not match some of those in the room. I had graduated from UCT law school in 1993 when we were on the cusp of democracy. Things were different then, the country felt alive with possibility, but there was also a great degree of uncertainty. There was a lot of “touch and go”. I remember watching Eugene Terre’Blanche’s Afrikaner Weerstandsbeweging (AWB) threatening civil war and images of people dying on the streets of Katlehong. How would we ever be able to vote, I wondered. That uncertainty somehow dissolved when I stood in the queue at Muizenberg Civic Centre (of all places) to cast my vote on 27 April 1994.

That feeling of “firsts” can never be replicated but somehow we need to find the ways to tell our stories of “firsts”. How do we describe the day Mandela was freed from prison? The students I spoke to might not have been born then and so it is easy for them to describe Mandela glibly as a “sell-out” now without criti- cally examining the objective political conditions of the time. How can we pos- sibly describe the moment when we saw Madiba stride out of Victor Verster prison like the colossus he would always be? That was a day of unbridled joy. Freedom had come in our lifetime and we were, indeed, living history. That feeling of deep gratitude to Madiba was replicated in the drawing of the curtain as an air force helicopter flew his body to Qunu in December 2013.

Hope and history rhymed, in the famous words of Seamus Heaney,62 at that time for those of us fortunate enough to witness those years, and was sweet justice for those who had been held in apartheid’s prisons and, I suppose, for some members of my own family, a sweet catharsis. Basil February, my father’s cousin, had after all joined Umkhonto weSizwe (MK) while still a brilliant young medical student at UCT after BJ Vorster turned down his application to study law. He was eventually held in detention twice and, after dropping out of university, he, together with James April, fled the country in 1964.After completing MK training, it was agreed that he would re-enter South Africa via then Rhodesia. However, en route back, Basil and his unit were ambushed and he died in that attack in 1968, the details of which remain sketchy. He was one of the first young people to die in the course of the armed struggle. He was subsequently awarded the Order of Mendi in Gold posthumously.

I had to acknowledge that for the students at the book launch the emotional content of the transition was absent. So too was the perspective of where we had come from and how a civil war had been averted. Ivor Jenkins and Mohammed Bhabha had been involved in that transition process and we were all “present” in some way when Chris Hani was killed in his driveway and the country stood at the edge of the abyss. We had seen Madiba’s leadership at first hand, and so part of the narrative that some of the students were peddling was almost offensive to those of us who had lived through the transition. We knew how hard it all was. We knew that Mandela was not the figure of pop culture who met the Spice Girls and dressed in “funny’ shirts”. He was a revolutionary, a freedom fighter, a thinker and, above all, a man committed to the Constitution and the rule of law. DM