Few literary characters are as recognisable as Sherlock Holmes. Launched in a thirty-year career spanning 56 stories by his creator, Sir Arthur Conan Doyle, he is said to be the most widely portrayed fictional character across stage and screen. Indeed, he has become a cultural icon, the quintessential investigator, a byword for clean, unadulterated intellect and the power of cold reasoning.
Holmes also gifted to English some recognisable idioms. One of these has to be ‘the dog that didn’t bark’. Drawn from the 1892 story The Adventures of Silver Blaze, it is a reference to the significance of what does not happen, a matter of equal importance to what does.
Discussing an apparent murder with the local police inspector – whose attention has been ‘keenly aroused’ – Holmes draws attention to ‘the curious incident of the dog in the night-time.’ The Inspector protests that the dog did nothing. ‘That,’ replies Holmes, ‘was the curious incident.’
The controversy occasioned by tourism minister Lindiwe Sisulu’s public comments about South Africa’s judicial order brings this to mind. ‘It seems today,’ she writes, ‘we have legitimised wrongdoing under the umbrella of the rule of law.’
She goes on to lambaste the judiciary in remarkably intemperate terms: ‘Today, in the high echelons of our judicial system are these mentally colonised Africans, who have settled with the worldview and mindset of those who have dispossessed their ancestors. They are only too happy to lick the spittle of those who falsely claim superiority. The lack of confidence that permeates their rulings against their own speaks very loudly, while others, secure in their agenda, clap behind closed doors.’
‘Foreign belief systems’, she adds, are exercising a malign influence.
The minister’s sentiments have ‘keenly aroused’ public interest, in no small measure because her remarks seem clearly aimed at positioning her ideologically for a run at the presidency of the African National Congress – presumably on some sort of Radical Economic Transformation ticket.
Be under no illusion that what is on display here is a fulsome attack on the constitutional order. It is the stuff of reckless populism that seeks scapegoats in the restraints that constitutionalism and the rule of law necessitate. This is no doubt an appealing stance in an environment in which both disregard for the law and rank incompetence is pervasive and extends to the highest reaches of the state and government.
It is an argument that has arisen regularly albeit in different guises over the years. In 1998, then secretary general of the ANC, Kgalema Motlanthe, said that his party hoped to obtain a two-thirds majority to amend the constitution to allow it to rule ‘unfettered by constraints’. In 2009, Mbulelo Sogoni, senior ANC MP and chairperson of the parliamentary Standing Committee on Appropriations, asserted that the constitutional protections of property were ‘clearly sunset clauses’ that would ‘not be there forever’. In 2011, Ngoako Ramatlhodi – then a deputy minister – damned the constitutional settlement as a ‘compromise tilted heavily in favour of forces against change.’ And former president Zuma – before his ascent to office, during it, and afterwards – has put forward an attitude that can at best be described as ambivalent towards constitutionalism. In 2016, he suggested in the National House of Traditional Leaders that it would be better to do things ‘the African way’, whatever that may have meant, although it was clearly intended as a contradistinction to the ‘Eurocentric’ constitution. Post-presidency, and under pressure from his legal troubles, Zuma has gone full throttle on this, warning that the country is sliding into a ‘constitutional dictatorship.’
So Sisulu’s position is not a new one, nor an especially unusual one. It’s the dog that barks aggressively.
Hers is also a thoroughly political stance. It implies that the solution lies in gathering and wielding ever more power and ever wider discretion on the assumption that a conscientised cadre of leaders, steeped in an appropriate political ideology and cultural background, would do what the stodgy and discredited constitutional order had failed to do.
For those valuing constitutionalism and the rule of law, it was heartening to see some voices pushing back against what she had to say. These included deputy chief justice Raymond Zondo, Justice and correctional services minister Ronald Lamola, and ANC veteran Mavuso Msimang.
But this masks the dog that is not barking. This is President Ramaphosa.
Throughout this controversy, he has remained conspicuously silent. This is despite his own supposed positioning as a champion of constitutionalism, clean governance and ‘reform’ – whatever the latter may mean.
A political attack demands a political response, and if there is any validity to the notion of a Ramaphosa-led reformist faction in the ruling party, this was an opportune moment to demonstrate it. He might have appealed to the country as a whole that the constitution and the rule and law are precious and valuable commodities, to be treasured, and defended from those who threaten them – and reminding the country of just who these are. And that the state of the country has had nothing to do with the application of constitutional governance and the rule of law, but with their abrogation. Indeed, as his position both within the ANC and the state is fundamentally a political one, this would have been a task tailored for him.
But the dog did not bark. The most he could muster was a desultory weekly letter calling for the defence of the constitution. Outlets like News24 and Business Day attempted to put a spin on this, terming it ‘veiled’ and ‘cautious’. But the President’s reference points were the Zondo Commission, the fire at Parliament and the memory of the late Archbishop Emeritus Desmond Tutu. All broad generalities that most people could get behind without the complications of taking a specific stand. Of Sisulu or her charges, nothing at all. The dog was at most whimpering, not barking.
For Holmes, the failure of the dog to bark was an indication that the crime was committed by someone within the household, someone with whom the dog was familiar.
For South Africa, the inference is not dissimilar. To stand up and challenge Sisulu would be to risk disrupting the internal ‘unity’ of the ANC. This, the state of South Africa’s dysfunctional ruling party, is to all appearances what drives the President’s calculations. Whether or not he directly sympathises with her positions, they are not ones that he has shown any appetite to challenge.
Indeed, the President himself has signalled that his own repertoire is more sympathetic to state capture (if not to the Gupta variety) than his supporters recognise. He cut a pathetic figure at the Zondo Commission, pleading for it to be understanding of its serial violation of the constitution via its cadre deployment programme. The subsequent release of the minutes of the ANC’s deployment committee demonstrated just how deep and systemic the assault on constitutional governance was. Should we ever see the records from the second Zuma presidency – during which Ramaphosa chaired the committee – it is likely to confirm some dreadful continuities and commonalities across whatever factions and leadership figures exist. (Incidentally, the Daily Maverick recently ran a piece by Rebecca Davis whose title is very revealing: ‘How President Ramaphosa and ANC leaders misled SA about the party’s cadre deployment committee’.)
Significant reform, it seems, is not an option, and probably never was. As Holmes once put it to his partner and chronicler, Dr Watson: ‘You know my methods, Watson.’
The dog, in other words, will not bark.
Sadly, that implies that no serious efforts will be forthcoming to address South Africa’s decline in the foreseeable future. Only a major political shift will do this.
In the interim, it will fall to ordinary people and civil and business organisations to fill the void that will probably get ever greater. This will mean increasingly looking to themselves and their own resources for services that are the nominal responsibility of the state. We’ve seen this in healthcare, security and education. Expect to have to do more.
And give up on the idea that a saviour is coming. The investment in Ramaphosa fulfilling this role was a disaster. If the idea of constitutional governance is to endure, it will be because South Africa’s people step up to defend it.
And that may be a dog that bites as well as barks…
