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St. Paul writes to the Christian Church: “Rejoice in the Lord always; again I will say, Rejoice. Let your reasonableness be known to everyone. The Lord is at hand” (Phillipians 4:4-5 ESV) This is the watchword for the 4th Sunday in Advent.

Here are links to a sermon in isiZulu by Pastor Ronald Lushaba from Mayflower in Mpumalanga, which was translated by Rev. E.A.W.Weber DD into seTswana as well. We are grateful for the support by the Lutheran Heritage Foundation, which enables this publication. May the Lord bless the preaching and teaching of his holy word today throughout the world +

Tswana Sermon for the 4th Sunday in Advent by moruti Ronald Lushaba

Zulu Sermon for the 4th Sunday in Advent by umfundisi R.Lushaba

ADV SIMELANE, ADV RAMATHLODI AND THE ANC ASSESSMENT OF THE JUDICIARY

The recent Supreme Court of Appeal (SCA) judgment setting aside Adv Menzi Simelane’s appointment as National Director of Public Prosecutions illustrates the key role that our courts are playing in upholding core provisions of the Constitution. The Simelane case dealt with the integrity and independence of the prosecuting authority, an issue that is of crucial importance to the maintenance of the rule of law.

At the same time, the SCA’s Simelane judgment will undoubtedly deepen the growing rift between the executive and the judiciary.  Even more seriously, it will raise further questions in some ANC circles regarding the constitutional foundations of our society.   Many respected observers – including Judge Denis Davis – are concerned that political questions are increasingly being resolved in the courts rather than in the political arena where they more properly belong. There are real fears that if the courts continue to stymie the ANC’s will, its adherence to the independence of the judiciary, and even to our constitutional settlement, may be eroded.

In recent months government has fired a number of warning salvoes across the bows of the judiciary. On 18 August ANC Secretary-General Gwede Mantashe warned that the Constitutional Court (CC) was being used as an opposition to the government. He said that the judiciary should not be allowed to “arrest the functioning of government” and cited the CC’s Judgment in the Glenister case as an example of the court’s “opposition“ role.

At the beginning of November President Zuma repeated his view “ that there is a need to distinguish the areas of responsibility between the judiciary and the elected branches of the state, especially with regards to policy formulation.” In his opinion,  “the executive, as elected officials, has the sole discretion to decide policies for government”. He warned that “the powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote.”

Perhaps the most anguished criticism of the judiciary and the Constitution  came at the beginning of September in an article by Adv Ngoako Ramathlodi, the  Deputy Minister of Correctional Services – and also a member of the Judicial Service Commission(JSC).

Ramathlodi claimed that the balance of forces at the time of the constitutional negotiations had forced the ANC to make fatal concessions. During the negotiations the ‘regime’ had given up elements of political power to the black majority but had immigrated substantial power away from the legislature and the executive and had vested it in the judiciary, Chapter 9 institutions and civil society. As a result, “the black majority enjoys empty political power while forces against change reign supreme in the economy, judiciary, public opinion and civil society.”

White economic interests had used their power to curtail initiatives aimed at inducing fundamental changes. They frustrated the transformation of the judiciary by downplaying gender and colour requirements and delegitimized the JSC by systematically subjecting its decisions to judicial review. White interests consistently challenged government policy in the courts “where the forces against change still hold relative hegemony.” In a manifestation of subtle racism, they criticised the black-controlled public sector at every opportunity “as inefficient, corrupt and not worthy of any trust.”

This rising tide of criticism culminated in the announcement that the government will appoint a “reputable research institution” to assess “the transformation of the judicial system and the role of the judiciary in a developmental state.” The goal will be to ensure that “the judiciary conforms to the transformation mandate as envisaged in the Constitution”; to examine access to the courts; and “to affirm the independence of the judiciary as well as that of the executive and parliament with a view to promoting interdependence and interface that is necessary to realize transformation goals envisaged by the Constitution”.

Clearly, a central objective of the “assessment” will be to endorse the Executive’s view that it “has the sole discretion to decide policies for government”; that the over-riding imperative in the Constitution is ‘transformation’; and that “the separation of powers means that we should discourage the encroachment of one arm of the State on the terrain of another”.

It is difficult to view the proposed assessment as anything but a clear warning to the judiciary: firstly, that it should henceforth interpret the Constitution in conformity with the government’s transformation ideology – and secondly that it should remain firmly on its side of the separation of powers fence when it comes to decisions to review the constitutionality of government policy.

In its Strategy and Tactics (S&T) documents the ANC commits itself “to strengthen the hold of the democratic movement (i.e. the ANC) over state power, and to transform the state machinery to serve the cause of social transformation. The levers of state power include the legislatures, the executives, the public service, the security forces, the judiciary, parastatals, the public broadcaster, and so on. Control by democratic forces means that these institutions should operate on the basis of the precepts of the Constitution; they should be guided by new doctrines (i.e. the ANC’s National Democratic Revolution); they should reflect in their composition the demographics of the country; and they should owe allegiance to the new order (under hegemony of the ANC).” (My italics.)

In the S & T documents the ANC also commits itself to “the fundamental provisions of the basic law of the land, which accords with its own vision of a democratic and just society.” However, it does so “within the context of correcting the historical injustices of apartheid”- i.e. within the framework of the transformation ideology expounded in the National Democratic Revolution (NDR).

Our Constitution does not empty the state of power as Adv Ramathlodi suggests.  It accords the Executive the full range of powers that are enjoyed by democratic governments all over the world. However, it protects the rights and freedoms of citizens, the media and civil society from the increasing threat of pervasive state control. It does so by guaranteeing freedom of expression; freedom of association and, above all, free and independent courts.

The government loses so many court cases, not because of a sinister white/liberal conspiracy, but  because its policies are so often unconstitutional. They are unconstitutional because they are based on the ideological, hegemonic and racial precepts of the NDR and not on the non-racial and genuinely democratic values and principles of the Constitution.

One thing is clear: we really do need to talk to one another.

Dave Steward

On the third Sunday in Advent the Church commemorates the return of Jesus Christ in glory. Here is a sermon by Rev. Ngcobo in both isiZulu and seTswana. Peace +

Zulu Sermon for the 3rd Sunday in Advent 2011 by Rev. Ngcobo

Tswana Sermon for the 3rd Advent by Rev. Ngcobo

Grateful for faithful pastors, who preach God’s word for God’s people even in Zulu. This time this work was done by our dear brother Rev. Eliot Sithole, working in Durban,  KwaZulu/Natal on the revision of the Zulu Bible translation with the United Bible Society. Here is his sermon for this Sunday, which has already passed in South Africa: Tswana Sermon for the 2nd Sunday in Advent by Rev. E.Sithole

Grateful for faithful pastors, who preach God’s word for God’s people even in Zulu. This time this work was done by our dear brother Rev. Eliot Sithole, working in Durban,  KwaZulu/Natal on the revision of the Zulu Bible translation with the United Bible Society. Here is his sermon for this Sunday, which has already passed in South Africa: Zulu Sermon for the 2nd Advent by Rev. Sithole.

SA HUMAN RIGHTS COMMISSION FINDING ON THE BLUE LIGHT BRIGADE COMPLAINT 

The arrogance, the intolerance of dissent and the lack of respect for the Constitution which the Minister of State Security displayed as he bulldozed the Protection of State Information Bill through Parliament is cause for grave concern in itself. It is of even greater concern, however, because it is increasingly the attitude displayed by other Ministers and the parliamentary members of the ruling party.

In particular, it was the same attitude displayed by the Minister of Police in the handling of the complaint lodged by the Centre for Constitutional Rights against the Minister and the Special Protection Unit of the South African Police Service concerning their unlawful arrest of Mr Maxwele and the abuse of his rights.

It is an attitude which is diametrically opposed to the culture of openness, transparency and accountability envisioned in the Constitution. It is an attitude which ignores the rights of those they represent, the rights of the ordinary citizens and it is an attitude that threatens our Constitution. It is thus increasingly important that our Chapter Nine Institutions, whose brief is to strengthen our constitutional democracy, exercise their powers and perform their functions without fear, favour or prejudice.

We at the Centre for Constitutional Rights accordingly welcome the recent finding on appeal by the South African Human Rights Commission in that complaint. Its finding not only protects Mr Maxwele’s human rights, but also promotes respect for human rights and educates the South African Police Service on human rights, as the Commission is constitutionally mandated to do.

The complaint arose from the unlawful arrest and detention by certain members of the Special Protection Unit during February, 2010, of Mr Chumani Maxwele for allegedly pointing his middle finger at the President’s motorcade. The members who occupied the last of a six-car convoy which was transporting the President, bundled Mr Maxwele into their car, pushed  him onto the floor of the vehicle, shouted at him, tied his legs up with a rope and had a black bag pulled over his head. Thereafter, he was taken to the Rondebosch Police Station and then to the Mowbray Police Station and later to holding cells at the Wynberg Magistrate’s Court, where he was unlawfully detained for 24 hours. Whilst at the cells, he was manhandled and subjected to cruel and inhumane interrogation. He was also forced to write an apology to President Zuma for his behaviour.  Furthermore, his home was searched by police officers whilst he was being detained and his belongings and notebooks were rifled through. He was charged with crimen injuria and resisting arrest, but these charges were all dropped upon his release from detention. All of this for allegedly showing “the finger” to the cavalcade.

In our complaint, the Centre expressed its concern that not only had Mr Maxwele’s rights to human dignity, to freedom and security of the person, to privacy, to freedom of expression, to make political choices and the right to certain conditions of detention been violated, but that the attitude of the SAPS members involved revealed a shocking ignorance of the Bill of Rights and of their overriding duty to uphold the Constitution and the rights that it assures. Their conduct was, we believed, reminiscent of the attitude of intolerance, the unfettered power and the lack of accountability that characterized the conduct of the police during the apartheid regime which resulted in the widespread suppression of the freedoms and rights of the people of our country.

The purpose of our complaint was thus twofold – firstly, to restore Mr Maxwele’s dignity and secondly, to stem the growing attitude of the SAPS that they are above the law. As part of its requests, the Centre accordingly asked that the Minister of Police should be required to acknowledge that he accepted the supremacy of the Constitution and the rule of law, as well as the duty of the state to respect, protect, promote and fulfil the rights in the Bill of Rights. It specifically asked that steps should be taken to ensure that the South African Police Service acts, teaches and requires its members and, specifically, members of the Special Protection Unit involved to act in accordance with the Constitution and the law; and that all those involved in this incident should make a full apology to Mr Maxwele for their unlawful and unconstitutional behaviour.

After the initiation of the complaint in March, 2010, and independently, Mr Maxwele laid a civil claim for damages against the SAPS.

Despite numerous communications from the Commission, the Minister failed to respond timeously to the complaint and when he eventually did, simply stated that, as there was a civil claim, the matter should be left to the courts for determination. The Commissioner found that Mr Maxwele’s rights had indeed been abused and that the respondent’s initial failure to cooperate with and respond timeously and substantively to have been unreasonable and unacceptable. The Commission ordered that the Minister apologise to Mr Maxwele and that he submit a report acknowledging the supremacy of the Constitution, the rule of law and the SAPS duty to respect, protect, promote and fulfil the bill of rights. In addition the Minister was to report on their plans, with specific timeframes, regarding steps to be taken to ensure that the SAPS understood their constitutional duties.

Once again, the Minister failed to implement the recommendations timeously and also failed to file his notice of appeal within the stipulated period. It was only when the Commission threatened legal action at his expense, that he did file an appeal. When he did so, the substantive grounds on which the Minister appealed were again that the matter was before a civil court and that the Commission accordingly had no right to hear the matter. The basis for applying for condonation for his late appeal was what the Minister had termed “administrative problems.”

In a detailed finding the Commissioner found that, although the Minister had indicated that “there was no intention on his part to undermine or disregard the Human Rights Commission”, his conduct in not responding to communications from the Commission, as well as that of the Minister’s  office had throughout the process clearly led the Commissioner “to conclude that the appellant was doing exactly that.” As to the defence that the delay in appealing was due to administrative problems, the Commission found that “…this defence is just not credible. What has been pointed out throughout the process is a consistent failure to cooperate with and responding timeously and substantively to the Commission’s correspondence.” Such conduct was “unreasonable and unacceptable”. Importantly, the Commissioner found that “[d]ifferentiating between the responsibility of the appellant and that of his office is passing the buck and a failure to take full ministerial responsibility.”

The Public Protector has, rightly so, enjoyed much publicity regarding her shown ability to act without fear or favour. It is thus equally encouraging to find the Human Rights Commission doing likewise. The Minister was ill-advised both in his original response to the objection and more so in his grounds of appeal. It is hoped that proper note will now be taken of both the original finding and the appeal finding and that the recommendations will be implemented. Should he not, it is hoped that the Commission will launch its earlier threatened court application to enforce implementation of its recommendations. State organs and government officials need to learn that they treat our Chapter Nine Institutions with disdain and disrespect at their own peril.

N de Havilland

November 2011

It’s that time of the year again and Seminarians reap the fruit of their hard work throughout the year. As usual prices are awarded to those, who achieved the best overall results in both the beginners and the main course. Then the best progress gets recognized as well as those, who are deserve the “good fellowship-price”.  The latter is normally a box of chocolates, whereas the academically inclined receive a good book on Lutheran Theology. Here is the program: 2011 Invitation to LTS Price-giving

Dear friends of the Lutheran Theological Seminary!

Greetings and blessings to you in this very special time of Advent + when the Church remembers Christ’s first coming in humility and is encouraged to expect with great joy his second coming in glory.

Our Seminarians have finished their examinations, most of them have passed and all have now earned a good rest back home with their wives, children, parents and greater families and congregations. The Summer break over Christmas and Epiphany  is over 2 months long and we are hopeful that God willing everybody will be able to come back refreshed for a new beginning in 2012.

Here is the link to our latest newsletter containing some pictures and short stories from Seminarians, volunteers and others that tell a bit about us and our work here at the LTS: 11,4 NL

Please don’t tire to support the Lutheran Theological Seminary with your prayers, gifts and services + We thank you for your ongoing encouragement and wish you a very blessed Christmas and a very happy new Year of the Lord 2012.

Yours sincerely

Wilhelm Weber