The right to freedom of speech is not limited to those clever people who can express a perfectly informed and logical view (by who ever’s standards). That would disqualify most of us from the debate – with the exception, perhaps, of Judge Flemming of the Johannesburg High Court, the late lamented Dr Verwoerd and P W Botha.
In fact, if those eminent and powerful men are perfectly informed and perfectly logical in their analysis and interpretation of the facts, there is hardly need for debate at all. Which, on the question of Judge Flemming’s judgment in the case of Kerzner and others vs Allan Greenblo and another, is no doubt how he would prefer things to be.
One of the essential characteristics of democracy is the insight that in any society there are many different, imperfect and competing views of what the “truth” might be – there are even different views about what facts are relevant to forming such a view. All have a right to be heard. South Africa’s apartheid-era judges were not called upon – and still do not choose – to judge by the standards of democracy. If they had in the past, they might have been out of a job. If they did so today, they might – horrors – have to critically review their own past actions.
Under Apartheid – Judge Flemming hates that malicious phrase - judges were enforcement technicians in the service of a racial oligarchy where skin colour rather than merit was rewarded. Included in the package were laws that made the expression and propagation of certain contrary views, or criticism of various organs of State, a criminal offence. In the process of enforcing and then defending the morally indefensible for 50 years, they often re-interpreted the common law in a way which today is not only contrary to democratic values; it ignores logic.
Sol Kerzner and the Sun group of companies he founded have spent millions (which should otherwise have been paid in tax) on promoting their celebrity image and the “success” of their businesses. They were able to do so because of the huge profits they derived from their gambling empire: a business which is not only regarded by many as intrinsically questionable (see adjacent column) but, in the South African context, was based almost entirely on political dishonesty, immorality and financial deviousness. Most - not all - of what they did was probably lawful at the time.
The black “independent” (which they were not) “homelands” (which they frequently were not), were able to maintain the appearance of independence because those in real power had, aided significantly by Sol, devised a devious system to subsidise and promote them. They did so by, inter alia, allowing forms of business in these “black” areas (gambling, tax evasion, monopoly formation, bribery and corruption of the press and public officials, sale and display of pornography, etc.) that Presidents Botha and De Klerk vociferously claimed could not morally be tolerated in “white” South Africa. It was even, on occasion, referred to as “vice capital”. That is our – no doubt imperfect – interpretation of those facts that are known to us.
Now it is Judge Flemming's view - his order! - that citizens of the new, free South Africa may not publicly express or promote the view that Kerzner’s enterprise and the way he conducted his business was – and remains – unacceptable. You may not say anything which might damage their prospects for getting further casino licenses here or abroad – even if you happen passionately to believe that they should not get them. The reason? Sol's involvement in Bop was the sort of business that any lawyer or businessman in Judge Flemming’s acquaintance would do. To disagree with the judge is unlawful. And, when it comes to talking about the R2 million "consideration” Sol (or Sun) paid to George Matanzima in the 1980s, you must accept Sol’s latest assertion that he was not the perpetrator of a crime – he was the victim of extortion by big bad George! (See The Full Monty in this issue)
Judge Flemming not only demands judgment which is perfect by his standards; he demands saintliness of spirit too. We must, he has determined, accept the excuses of apartheid profiteers, not mention their past support of the National Party in ANC company, and, generally, we must let bygones be bygones and bury the past.
That Judge Flemming – and Sol – should be so lucky!
Kerzner Unauthorised is not perfect – sorry Allan, but consider the company you might otherwise find yourself in! noseweek has not been prohibited from publishing the material; we have merely been warned that we do so at our peril. What’s new? We’re not the Chippendales, ladies, but when it comes to Sol – when the circumstances are desperate enough – we go the full Monty. And to hell with Judge Flemming!
- The Editor
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