Picture: JOHN GI CLARKE
Picture: JOHN GI CLARKE

For someone who has written a book titled "The Promise of Justice", yesterday was a wonderful day to spend in the North Gauteng High Court.

I was there be the eyes and ears of Sinegugu Zukulu, with whom I have been working for over a decade to support the Amadiba coastal community in their struggle to save his ancestral lands from unjust developments; viz the mining of the coastal dunes of the Pondoland Wild Coast, and plans by SANRAL to re-route the N2 along a new greenfields section that will pass though his maizefields and grazing land, and destroy wetlands that he cherishes. 

The Xolobeni Mining Rights battle has all but been won:  the Australian mining company has disinvested (or so they say), and Minister Zwane has declared an 18 month moratorium on mining activity, (which is hardly reassuring. We had argued that he should have extended that to 600 months – fifty years, in keeping with the biblical teaching on the Jubilee, which was to promote restorative justice, cancellation of debts, healing and reconcilication).  

The legal battle against Sanral’s shortcut has been going on for five years longer. The first salvo’s were fired in 2002, with significant successes along the way.  The  FaceBook page of the NGO which has facilitated the process Sustaining the Wild Coast provides chapter, verse and commentary.  Sinegugu Zukulu is vice-chair of SWC, and an esteemed member of the Baleni community with close kinship ties to the Chief, Lunga Baleni.  Zukulu is a environmentalist of the deep ecology variety, and at the same time deeply steeped in Pondo customary law and traditions.  He is the first applicant and his founding affidavit deserves republication as a text book for law students and anthropologists studying the customary law and traditional governance systems of the amaMpondo. If the NRF approves his funding application Zukulu will in due course get a PhD out his lifetime experience of Mpondo traditional knowledge systems, that will hopefully explain why the Amadiba don’t want mining and mega motorways to foul their ancestral lands – especially not in the name of development.   

From past experience of delays and procrastination tactics, Zukulu chose not to come from his Pondoland to Pretoria to listen to the court proceedings, and re-experience the exasperation of the arcane protocols of court procedure, and listen to advocates arguing over what he was actually saying in his affidavit, without giving him the opportunity to simply get up and explain himself verbally.  He sent me instead to listen to his advocate Geoff Budlender SC disposing of the interlocutary application brought by SANRAL which claimed that he lacked locus standi, because he had not been listed by name in the original objections, and therefore could not be said to have personally exhausted alternative, non adversarial remedies to have his personal objections addressed and therefore should not be allowed to proceed with his application for Judicial Review.

So, at great expense, for the second time the North Gauteng High Court convened to dissect legal argument that were abstruse, abtract and plainly annoying from the perspective of those who live in the real world of rural Pondoland.

The Honorable Judge NB Tuchten was presiding.

It was clear from the outset that he was in no mood for tedious technicalities, and had read the heads of arguments.

His inquisitorial approach made the court case so much more interesting to the gallery.

He deprived Advocate Budlender of the opportunity of making his case himself: "I have read your papers, and in the interest of time, can I just summarise what I understand your case to be?"

His summation left me with the impression that he had already drafted his judgement ...in our favour. Adv Budlender was more than satisfied that the Judge had more than got it.

The inquisitorial approach was not pleasant for Counsel for the applicant, Adv Loxton appearing for SANRAL. He had to try and make his case himself. The judge provided no assistance. On the contrary..

Loxton. "Zukulu cannot hide behind the community..." Judge. "Emotive words Mr Loxton.."  Loxton. "Well.. cannot associate with the community.."  Judge: "My point exactly."

The point was that, far from Zukulu ‘hiding behind’ the community, the Chief of the community had withdrawn from the case, without a council resolution or consultation with the community.  The Chief had abandoned Zukulu, thinking he had taken the community with him.

A corrupted chief cannot dissociate a community from a just cause.

SANRAL’s lawyers had thought it was clever to isolate Zukulu from his Chief.  Judge Tuchen seemed to me to have seen through the legal charade.  He was having none of it.

"One just man left standing is enough for me" said Judge Tuchten, echoing Jeremiah 5:1 "Rove to and fro the streets of Jerusalem, look, now, and learn, search her squares; if you can find a man, one man who does right and seeks the truth, then I will pardon her, says the Lord".

Search the crop fields, river gorges and beaches of the Amadiba Wild Coast and you will find several just men and woman seeking the truth, all inspired by Zukulu's courage to stand alone when the circumstances required, despite threats and intimidation, cooption and subversion. That is what The Promise of Justice is all about.

The case had been set down for two days. During the lunch break Geoff opined that it would be over by 2.30 pm.

The second consolation of the Promise of Justice was the news from my longstanding friend Dr Marjorie Jobson, of Khulumani Support Group, whom I happened to bump into in the cafeteria. She was sitting quietly by herself having just come from listening to Judge Billy Mothle in another court room, who had ruled that Ahmed Timol did not commit suicide but died after being tortured and pushed from a window by security branch police officers.

"For 37 years the family has waited for the promise of justice John", Marj said.

"Now we can reopen the Steve Biko case and many others".

Will the judgement opens the floodgates for other unexplained deaths to be prosecuted?

Yes, if the conclusion to Stand Alone Zukulu vs Silly Sanral has anything to say.

Back in court with Judge Tuchen, Geoff Budlender was wrong in one detail. The court adjourned at 2.32. He was two minutes longer in his summing up than he had predicted.

Advocate Loxton had tried 'the floodgates will open…’ argument, if Zukulu was allowed to proceed.

Judge Tuchen wryly observed “I have heard that argument often and the Counsel always have quote some or other legal authority, but I have never seen it ever happen”.

Budlender agreed, making up for the deprivation of his oratorial skills by the judge at the start with a flourising finish. 

“Finally, if I may agree with you, my Lord, and refer you to Judge Nafta in the Supreme Court of Appeal (Democratic Alliance vs NDPP and Jacob Zuma March 2012)…

"One of the principal objections often raised against the adoption of a more flexible approach to the problem of locus standi is that the floodgates will thereby be opened, giving rise to an uncontrollable torrent of litigation. It is well, however, to bear in mind a remark made by Mr Justice Kirby, President of the New South Wales Court of Appeal, in the course of an address at the Tenth Anniversary Conference of the Legal Resources Centre, namely that it may sometimes be necessary to open the floodgates in order to irrigate the arid ground below them. I am not persuaded by the argument that to afford locus standi to a body such as first applicant in circumstances such as these would be to open the floodgates to a torrent of frivolous or vexatious litigation against the State by cranks or busybodies. Neither am I persuaded, given the exorbitant costs of Supreme Court litigation, that should the law be so adapted cranks and busybodies would indeed flood the courts with vexatious or frivolous applications against the State. Should they be tempted to do so, I have no doubt that appropriate order of costs would soon inhibit their litigious ardour.’"

If he was not a humble, modest (and punctual) man, Advocate Geoff Budlender SC would have used another minute to continue with the citation from Judge Navsa, in which he had added.

"Thirdly, as was pointed out by Budlender, ‘if the cases are well-founded, there can be no objection to a flood of people trying to achieve justice’".

I left the court with a quiet sense that the ancestors of the AmaMpondo, now including King Justice Mpondombini Sigcau, whose story is told in my book The Promise of Justice, were smiling down on us. 

The book commences with this quote. 

"Let Judgement run down as waters, and righteousness as a mighty stream." Amos 5:24

* For more background to the saga see this recent YouTube film “Ihlazo (Disgrace)”

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