Jiba, Mrwebi in bid to stay in NPA
AFRIFORUM says it will approach the Equality Court in April as a “reluctant respondent” to oppose the Nelson Mandela Foundation’s application to have the old South African flag banned.
The foundation made an application to the Equality Court for an order declaring that the gratuitous displays of the old official flag of apartheid South Africa constitute hate speech, unfair discrimination and harassment based on race.
The matter is scheduled to be heard by the court on April 29 and 30 and AfriForum insists that the display of the flag does not in any way constitute hate speech, although they discourage people from displaying the flag.
“In our court papers we have said that we are a reluctant respondent, what we mean is that we also don’t use the old South African flag and we actively discourage people from using it.
“However we believe that an issue such as this should be dealt with as a social issue and it’s not going to resolve the problem if we simply ban the flag,” said Ernst Roets, AfriForum deputy chief executive.
He said their argument that the display of the flag did not constitute hate speech was based on their view that it did not comply with the definition of hate speech and to ban the flag would be a violation of freedom of speech.
“Regardless of this fact we want to encourage people not to use the flag because it’s offensive, but if something is offensive it does not mean that it’s hate speech.
He added that for something to constitute hate speech it means that it should be coupled with a call to action or it should amount to an incitement to cause harm and that “simply displaying a symbol” was not an incitement to cause harm.
In a statement the foundation said it was time to acknowledge that the old flag was a symbol of what was a crime against humanity and its display celebrated that crime and humiliated everyone who fought against it, especially the majority black South Africans.
Professor Shadrack Gutto, a constitutional expert, said banning of the flag would be wiping out a part of history, painful as it was, that would teach the current generation and the future generations of the journey that the country had traversed.
“There are certain things that are offensive, but they do not necessarily mean that they are criminal or violate the constitutional imperatives” Gutto said. SUSPENDED NPA prosecutors, advocates Nomgcobo Jiba and Lawrence Mrwebi, are expected to present formidable arguments before the Mokgoro inquiry today in an attempt to persuade the panel led by Judge Yvonne Mokgoro to retain them in office.
Yesterday, the Council for the Advancement of the SA South African Constitution (Casac) asked the inquiry to conduct a stringent test when deciding about the future of Jiba and Mrwebi in the National Prosecuting Authority (NPA).
Casac was one of two civil society organisations asked to assist the inquiry, which is probing the fitness of Jiba and Mrwebi to hold office.
The hearing began last month and is due to end today before Judge Mokgoro tables her final findings before President Cyril Ramaphosa on March 9.
Casac executive secretary Lawson Naidoo’s testimony was based on his previous experiences on sitting in similar hearings such as the Ginwala Commission, which looked into the fitness of former national director of public prosecutions, Vusi Pikoli, to hold office.
Naidoo asked the inquiry to consider the proposal tabled by Jiba when he asked it to consider allowing prosecutors their own prosecutorial discretion, similar to that of judges at all the courts – including the Constitutional Court.
Naidoo said in the current organogram, national deputy directors of public prosecutions were not accountable to their bosses for any of perceived misconduct, and it was up to the president to lay disciplinary actions against those implicated.
Naidoo pointed out all these aspects to the inquiry as some of the issues that could be reviewed and, if left alone,could have serious implications for the independence of the NPA.
He said that a more stringent test should be applied when contemplating the removal from office of a senior official.
“Prosecutors… are not in the business of seeking public popularity… They should rather aspire to be respected for doing the right thing.”
However, Naidoo maintained that the president must retain the powers to appoint the head of the NPA, but only after a credible selection process.