Odyssey of Liberation: A memoir of a rebel advocate

By Adv Vuyani Ngalwana SC

Odyssey of Liberation: A Memoir of a Rebel Advocate by Muzi Sikhakhane SC is a huge book not only because of its size but also because of the gravity of the subjects it covers. Comprising four parts and covering almost 500 pages – from the author’s foundational Early Years, through Defining Moments at personal and professional level, Trials and Tribulations, and Political Perspectives – the book deserves proper attention and literary treatment. That is why this review is longer than most.

People read books for varied reasons. Some people read a book to confirm their own biases; others to gain new information, knowledge or wisdom on a specific subject; more to meet their New Year’s resolutions. There are also those who read a specific book with a view to gathering ammunition for later use against the author in this “cancel culture” infused era. Then there is the fan base – those who read the same book that others seek to weaponise against its author, as evidence of their loyalty to the author and/or his cause. Muzi Sikhakhane’s Odyssey of Liberation appeals to all these, and more besides.

I have read the book thrice. To be honest, the first reading was that of a fan who sought to confirm his own bias in favour of just about every subject covered in the book. When I read it the second time, my purpose was to clear the fan fog in my eyes and mind so that I could better grapple – hopefully with an open and curious mind – with the observations made about South Africa’s judiciary, the legal profession and NGOs. By the third reading, I had decided to write a critical review of the book, and hope to interview the author in order to understand exactly his state of mind in producing a book of this magnitude.

I have managed to sit down with the author for a chat. We did a deeper dive into several topics that some people may regard as “controversial” in the book. A series of those conversations will be published soon on this website. They are not sweetheart conversations of a fan with his hero. But then, you will be the judge of that.

This book is huge.

South Africans have not really had an open and honest discussion about several aspects of what makes for the true character that is South Africa; the South Africa DNA. For example:

• Why exactly did the old people who negotiated a “new South Africa” on our behalf prefer a move away from parliamentary democracy that worked perfectly fine for white people before April 1994, and adopt a “constitutional democracy” in which none of the negotiators had any experience?

• On balance, how is this “constitutional democracy” benefiting the majority of South Africans socio-economically?

• Is the balance of forces between elected representatives, on the one hand, and an unelected judiciary on the other, a reflection of what a true democracy that works to the advantage of the majority of ordinary South Africans should be?

• On balance, what role do NGOs (special interest groups) play in South Africa and what is the impact of that role in the advancement of democracy in South Africa?

• Are state institutions playing the role for which they were established, or are they advancing the interests of the powerful?

These, and more, are subjects that Odyssey of Liberation grapples with. These are issues that should form a staple engagement diet for all South Africans if we are to be truly actively engaged citizens in the crafting of our own future and that of generations to come.

That CODESA (the multi-party Convention for a Democratic South Africa established in December 1991 to embark on a negotiated peaceful end to apartheid) was an opportunity lost is a view I share with the author. With the benefit of hindsight, many thinking South Africans now realise that compromises were made by the leading liberation movement that should not have been made. Chief among these was effectively placing an unelected judiciary higher than elected legislators and an elected Executive on the trias politica hierarchy stakes. This is why, for example, a court could direct a sitting President – at whose pleasure cabinet ministers serve – to explain his decision to reshuffle his cabinet, and provide to the official opposition memoranda of advice that were given to him in that regard [Democratic Alliance v President of the Republic of SA; In re: Democratic Alliance v President of the Republic of SA and Others (24396/2017) [2017] ZAGPPHC 148; [2017] 3 All SA 124 (GP); 2017 (4) SA 253 (GP) (9 May 2017].

In a true democracy, characterised by political representatives being elected by the people to make decisions – including the constitution of their cabinet – as they see fit for the benefit of the people, this should not happen. Even where the ostensible reason for reshuffling his cabinet is a ruse and is not done for the benefit of the people, an unelected judge or court of judges should not have the power to instruct a sitting President (elected through the political party that gained the most votes in a democratic election) to explain the exercise of his prerogative political powers conferred on him by the electorate through his political party.

That is my take on one aspect of what is discussed in the book. Other people will no doubt have differing views. These views should all come out in the open and be dissected for all to see. Sikhakhane’s Odyssey of Liberation invites precisely such debates. It is my wish that South Africans will answer the invitation, and thereby countermand those who will seek to silence a view with which they disagree.

There are areas on which the author and I are not in agreement. One of these is the closeness of counsel to his brief. In one chapter, the author relates a story that paints a picture of a relationship with his brief that resembles one between close comrades than one between a lawyer in the referral advocacy profession and his client. This caused me some discomfort as I believe in order to maintain clarity of judgment and independence there should be clear boundaries beyond which counsel should not venture in his engagement with his brief. The author disagrees. While he acknowledges that many of his cases “present ethical dilemmas due to their high stakes and involvement in political battles that extend beyond the ordinary skills of advocates”, he believes he is “fortunate” because his background as a political activist has “equipped him with the necessary experience to contextualise political battles”.

On briefs with political implications

“Law is nothing but an offspring of politics. No matter how much it tries to sever itself from politics, it is simply impossible. The sooner society is honest about it, the better. The pretence about the rule of law is itself a political gimmick to dress up a political agenda as something more noble than it actually is. That is just the nature of law.”

I think this proposition requires a separate conversation of its own. It is this kind of thinking – a departure from the advocates profession’s idées reçus – that earns this book a badge of authenticity by shaking the mind from the profession’s ostensible anchor ethic. It is the stuff of awards.

The Alan Paton Award has historically been conferred for books that present “the illumination of truthfulness, especially those forms of it that are new, delicate, unfashionable and fly in the face of power”.

In recent years, very few South African books of non-fiction would qualify for this Award ahead of Odyssey of Liberation. Yet, one can’t help sensing that it is precisely the qualities for which the Award is customarily conferred that will likely earn this book and its author the obloquy of South Africa’s mainstream or legacy media and urban South Africa, mainly from people who have not even read it, having consumed its supposed content vicariously through the spin of detractors intent on snuffing out delicate and inconvenient truths. Worse still, the book may simply be ignored in mainstream discourse. That would be a tragedy, and an opportunity lost of coming to grips with our own sensibilities as a “nation”.

The sad reality of what has become South Africa’s irony is that we have become a society that punishes (or cancels) people for telling truths that the ruling class would rather were not told, and reward those who tell tall tales about their flirtation with the “capture” of the state which – more on their sanitised version than on the true facts – they successfully rebuffed.

As I write this review, I would not at all be surprised to learn that there are people already plotting a veritable assault on the author’s person and career, aimed not only at silencing him, but also at sending a strong message to others who may harbour ambitions of following in his path and publishing material that seeks to present stuff of the kind that speaks to the Alan Paton Award.

In today’s South Africa, publication of some truths seems fine; but that does not go for all truths. Some truths, it appears, are too inconvenient for the perceived greater good to be laid bare. This crassly Utilitarian theory of ethics that developed in the 18th Century has no place in a 21st Century constitutional democracy.

Utilitarianism posits that conduct is acceptable if it promotes the greater good, and unacceptable if it drifts against greater good. The trouble with the theory is that those who sit in judgment of what the greater good is, are often the same people (or class of people) who suppress truths that are inconvenient for their continued stranglehold on levers of power.

For example, under apartheid a series of laws aimed at keeping races apart, and advantaging one race above others, was justified by the assertion that, because the various races are inherently different and hold materially divergent values, they must be kept apart for the sake of what Hendrik Verwoerd termed “good neighbourliness”. That is what kept the National Party in power for decades in South Africa. That was their truth which brooked no deviance if they were to stay in power. As soon as the theory collapsed, so too the National Party lost political power.

It is by that same depraved theory of Utilitarianism in today’s South Africa that truths that are perceived by the ruling class as potentially disruptive of the “state capture” narrative must be snuffed out. Once the carefully choreographed baroque that is “state capture” is exposed, that should spell the end of the ruling class tight grip on levers of power both in the state and in the economy.

Odyssey of Liberation seeks to expose this Utilitarian character of today’s South Africa. Whether it succeeds in doing so will depend on each reader’s acquaintance with South Africa’s recent history. As a sceptic – since South Africans have in my view never really unshackled themselves from the binary disposition that characterized social engagement in apartheid South Africa – I venture to suggest it will also depend on the reader’s political or factional leanings. For the more rational among us, however, I hope that good old fashioned common sense will be the measure.

One example of an attempted exposé in the book is the story of the formation of the State Capacity Research Project, allegedly funded by the George Soros Open Society Foundation, by a coterie of academics affiliated to leading South African universities, who in May 2017 produced a document titled “Betrayal of the Promise: How South Africa is being stolen”.

It is in this document, crafted with the help of what the author terms “foreign advisors”, that “a mysterious interpretation” was assigned to commonly known terms such as “repurposing” of state institutions and “state capture” with a view to – as Mr Arthur Fraser puts it in his written statement to the State Capture Commission – “promoting, in a concealed manner, social uprising rather than promoting the Constitutional parliamentary process to resolve social problems in democratic South Africa”. And so it was, that former President Zuma – together with a motley crew of selected fellow travellers in his cabinet and others “associated” with him – was chosen to bear the cross of “state capture” and “repurposing” of state institutions.

Some may argue that the toppling of former President Zuma owes its success, at least in part, to this State Capacity Research Project. He finally fell on his sword in February 2018 and, a month later – with President Ramaphosa now in charge without an electoral mandate – the national prosecuting authority announced its decision to reinstate corruption charges against him that it had previously withdrawn. Of course, this decision may have been fortified by a judgment of the Supreme Court of Appeal – nine years previously – which set aside a high court decision which had absolved President Zuma from criminal prosecution on the ground that his prosecution had been politically motivated. The SCA found that “[a] prosecution is not wrongful merely because it is brought for an improper purpose”. That judgment probably paved the way for the re-prosecution of President Zuma 9 years later, and immediately after President Ramaphosa had – without a popular electoral mandate – taken over and subsequently started pursuing office on a “state capture” campaign ticket.

The author quotes from a written submission made by Mr Arthur Fraser to the State Capture Commission which had been established in January 2018 – 8 months after the State Capacity Research Project had produced its “Betrayal of the Promise: How South Africa is being stolen” document – to investigate allegations of state capture, corruption and fraud in the public sector including organs of state. Mr Fraser is a former Director General of the South African State Security Agency and was the author’s brief (referral advocates do not have clients; they have briefs).

The author laments that, although various allegations were made in relation to Mr Fraser at the Commission, Mr Fraser was never invited by the Commission to give evidence and elaborate on his written statement. The Commission says he never applied. The author takes the view that part of the reason for not inviting Mr Fraser to testify was to keep the contents of his statement hidden from public view. My own view is that a person implicated in the evidence of others should not have to apply for his version to be heard and considered by the Commission.

The author’s overall take on the Zondo Commission is this: “In the end, I am of the opinion that the Zondo Commission was never established to uncover the truth. Instead, it was established to validate a preconceived grand narrative seeking to absolve some and condemn others”.

He is not the first to make this assessment. Whether or not it is an accurate assessment will depend on the reader’s own objective assessment of the goings-on at the Commission over its four years duration. It will also depend on the reader’s engagement with the author’s extensive discussion of events that led him to this conclusion about the State Capture or Zondo Commission, of course with a sprinkle of the reader’s own common sense.

The author also expresses opinions that I can best describe as “unflattering” about South Africa’s judiciary. It is to this that I now turn.

Sikhakhane SC is a practising Senior Advocate or Barrister in South Africa (equivalent of a “QC” or “KC” in England and Wales). Not unlike Lord Jonathan Sumption, former Justice of the Supreme Court of England (formerly House of Lords) who was publicly critical of the manner in which the British government handled management of the covid-19 pandemic, Sikhakhane SC has seen fit to speak out on issues of general public interest that many people, especially in the legal profession, only whisper about in safe echo chambers.

Closer home, the author’s speaking out on principle on what he perceives to be the compromising of judicial standards in South Africa is not unlike the courage displayed by Bram Fischer who was hounded out of the advocates profession by the Johannesburg Society of Advocates for speaking his truth and living according to his conscience. He was later reinstated – decades later – and posthumously conferred a Silk status for that same courage.

One of the issues on which the author speaks out is his views on the South African courts’ approach to political cases or cases that have political implications. For example, the author takes the view that many judges in South Africa’s courts “are unconscious victims of popular sentiment and sponsored grand narratives … [and as a result tend to] dispense injustice in the belief that they are being patriotic and associating with the ‘right’ side”.

This is not new criticism directed at South African judges. During apartheid, there was trenchant criticism in white liberal circles of “executive minded” judges for whom the apartheid government could do no wrong in its spirited enforcement of apartheid ‘laws’. Adopting what some among us regard as “legal positivism”, the attitude of those judges was that their role was to interpret and apply apartheid laws and not to question them (see, for example, ‘The Judicial Process, Positivism and Civil Liberty’ (1971) 88 SALJ 181).

Not unlike white liberals of the apartheid era, the author seeks to expose “legal positivism” and “executive mindedness” of a different kind in today’s South Africa. He identifies an attitude of judges hellbent on never finding against the incumbent President in cases with negative political implications for him. In this regard, the judgment of the Constitutional Court, concerning what has become colloquially known as the President’s “PhalaPhala Farmgate” scandal, should be awaited with interest.

In that case (see the pleadings and written submissions here –> Economic Freedom Fighters v Speaker of the National Assembly and Others) two opposition parties have challenged as irrational, unlawful and unconstitutional parliament’s resolution (by majority) declining to adopt an Independent Panel’s Report (headed by a former Chief Justice) and refer it to the impeachment committee for the possible impeachment of the President following the Panel’s finding that the President may have committed a serious violation of the Constitution (See the Independent Panel’s Report here –> Ramaphosa Impeachment Report – 30 November 2022). This follows the discovery of foreign currency (reportedly far in excess of what is permitted by law) hidden in furniture at the President’s farm residence, a criminal complaint of money laundering against the President by Mr Arthur Fraser at the South African Police Service, and a refusal by the South African National Prosecuting Authority to prosecute the President.

Of course, the disposition of the Constitutional Court towards the President – if any – should be judged by its reasoning for whatever finding it makes rather than by the finding itself. A finding in favour of parliament (and therefore, by extension, in favour of the President) should not by that reason alone constitute evidence of Adv Sikhakhane SC’s view of South African courts’ partiality towards the President. Similarly, a finding in favour of the opposition political parties (and therefore against the President) should not, by that reason alone, be indicative of the courts’ antipathy towards the President. Proof of the court’s [disposition] pudding should be in the [reasoning] eating.

The author also identifies the determination of our judiciary to maintain the “state capture” narrative by ensuring that one Zuma continues to be regarded as the personification of “state capture” and “repurposing” of state institutions. That is why the Constitutional Court (the highest court in South Africa) had to compel President Zuma to appear – again – at the State Capture Commission before a Commissioner (the country’s Deputy Chief Justice at the time) even though Zuma said he harboured a reasonable apprehension that the DCJ could be biased against him for reasons he articulated in his application for the DCJ’s recusal.

The author is critical both of that decision by the Constitutional Court, and of its subsequent custodial sentence of 15 months that it meted out to Zuma – without subjecting him to a criminal trial – for refusing to appear before a commissioner he regarded as biased. Characterising the judgment as “probably the most shameful judgment a post-apartheid court has ever issued”, the author criticizes the court for justifying “its unprecedented decision [in civil contempt proceedings] to order an incarceration of a person without a trial”.

Some readers may agree with this assessment; others may disagree. But this is precisely the sort of debate that South Africans, in an open and democratic society, should have about the application of that concept that the author seems to regard as amorphous or chameleon-like: rule of law. Indeed, the author may in my view have a point in that this rule of law concept seems to take its character and form from the identity of the litigants before courts. It is an issue (even at the level of perception) to which judges must be alerted and be pointed to specific examples; not buried – especially by legal practitioners – for fear of being “cancelled” or targeted for “scandalizing” the judiciary.

The observations in the book about the judiciary will no doubt trigger resentment and harden arteries in some quarters. In other circles, however, the observations will have a ring of truth. They are the author’s opinion deriving from his own experience as a practising Barrister. The question is whether South Africa will prove itself – in reaction to the expression of such opinion – ready for a mature conversation on touchy subjects about institutions that some people consider to be sacrosanct. Should we hold our tongues on matters that concern us, and the professions in which we practise, for fear of wounding the feelings of those who wield power over us?

And what of the book’s literary qualities?

Odyssey of Liberation is not a literary masterpiece in the milieu of Ta-Nehisi Coates’ Between the World and Me or Maya Angelou’s book of poems And Still I Rise. But then it was not intended to be. The book probably compares favourably to Steve Biko’s I Write What I Like (although, to be fair, it is more scholarly than the collection of speeches, letters and court testimony that make up Biko’s offering). This is not surprising. Both Coates and Angelou are renowned award-winning authors. Biko was not. Biko’s literary contribution was to tell, in print, truths at a time when telling such truths was, bizarrely, a radical act.

Odyssey of Liberation places Adv Sikhakhane SC in that Biko mould. He teases out truths that you will not read or hear in mainstream media or publications; truths that those who feel exposed by them find inconvenient and therefore want to suppress them and cancel the exponents of such truths.

Those who pick up Odyssey of Liberation and thumb through it expecting demagoguery of the Mein Kampf mould will be bitterly disappointed. The book is a masterclass on the life of a Black professional who does not follow the herd but charts his own path; a crash course on the relationship between Law and Politics; and a lesson on the difference between racism and “playing the race card”, colonialism and coloniality, a lesson on “whiteness” (hint: it is not a reference to white people), a lesson on Blackness (hint: Blackness is a state of mind, not the colour of your skin).

Of enormous value in the book is the insight the reader gains on critical legal-cum-political contestations that we have, until now, only seen through the lens of mainstream or legacy media. The book gives the reader the VIP front-row seats and places the reader right at the centre of these controversies.

These include:

• The origins of the complaint by judges of the Constitutional Court against Judge President Hlophe leading ultimately to his impeachment

• The Sikhakhane Report in relation to the so-called “Rogue Unit”

• How concepts such as “state capture” and “repurposing” of state institutions came to assume a unique meaning in to achieve a particular outcome

• The real reason Zuma did not oppose the State Capture Commission’s application in the Constitutional Court to have him imprisoned, ostensibly for contempt of court

• Whether there was really a “staged walkout” from the State Capture Commission by Zuma’s legal team

• Why Arthur Fraser never appeared before the State Capture Commission although he submitted a substantial written statement

• Why Sikhakhane SC stepped back from “the Zuma cases”

• What Kemp J Kemp SC’s view of the courts was in relation to “Zuma cases”

• The abuse faced by Black advocates, including at the hands of advocates with black skin

• The role of NGOs (special interest bodies)

• And much more

The book is not without blemish, at least from my perspective. As a literary project, I find it something of a mishmash – fish and fowl at once. It seems the author could not quite decide whether to write a political memoir, a personal memoir, a professional memoir, a political lecture, or a sociological lecture on the vagaries of coloniality. In the final analysis, we end up with a discursive offering that meanders from childhood challenges to a near-death experience at age 20, to a critique of the legal profession and the judiciary, to an entire section (or PART) titled “Political Perspectives” but which contains some chapters the contents of which could, in my view, have been better located under the PART dealing with “Trials and Tribulations”.

I particularly found it curious that there should be a separate PART on “Political Perspectives” since the author is not shy to inject his political perspectives throughout the book – the uncommonly lengthy “Prologue” not excepted – so that these perspectives are scattered all over the book. Why then a stand-alone PART on “Political Perspectives”?

Anyway – sound or not – these are criticisms better directed at the editor and publishers than the author.

Nevertheless, I think this mishmash works to the benefit of the reader who, by it, is treated to more than just a biographical work but also to political consciousness and the inner workings of the legal profession, including judicial proclivities, from a perspective of one who has been (and continues to be) intimately engaged in both.

Another curious feature of the book is the haphazard use of epigrams and other excerpts cited from famous and not-so-famous thinkers at the beginning of some chapters. It appears that by Chapter 5 the author had run out of fitting epigrams until Chapter 11 where he resumes with them, loses them again in Chapter 14, regains them in Chapter 15, loses them again in Chapter 18 until he recalls them in Chapter 23, only to lose them yet again in Chapter 24 until he regains them in chapter 27, and loses them again in the Epilogue, whereas the Prologue kicked off with one.

As an English major who has read many classic works that favour opening chapters with fitting epigrams (George Eliot’s Middlemarch immediately springs to mind) and having tried the exercise myself in my flirtation with authoring a book, I can relate to the difficulty of maintaining epigrammatic introductions to each chapter in a book as long as this. I have found that there are at least two landmines that lie in wait: either you will at some point use an unfitting epigram or you will completely run out of fitting epigrams for each chapter and abandon the whole exercise. Quite why the author persisted after realising that the approach is not sustainable will remain one of life’s engaging mysteries about this book.

So, what now?

As I read the book, it strikes me as intended to relate the life experiences of one Black man – in which others of a similar background may find resonance – in an open, frank and un-gilded fashion. Characterised by a level of frankness rarely seen in the advocates profession, the book is a window to a mind unshackled by custom and an assortment of political, ethical and economic idées reçus. By its unadorned diction, it administers “shock therapy” especially to the sensibilities of a judiciary unaccustomed to trenchant criticism since the dark days of apartheid. Will the judiciary “let the dogs out” or pause, reflect and engage open-mindedly? It is my hope that this book will serve as some kind of cathartic moment for the judiciary, rather than invite the girding of the loins which the book does not seem intended to do.

Perhaps when a strong urge emerges to “punish” or “cancel” an advocate for expressing a view dissenting from popular discourse, those feeling the pangs of the urge to punish will do well to pause and reflect on Chief Justice Pius Langa’s words:

“Sometimes the simplest act of dissent can change the course of history… Sometimes the dissenter is the lone voice of reason in the dark. There will be some who privately agree with a dissenter, be it a Galileo, a Saro-Wiwa, a Rosa Parks or a More. The value and courage of dissent comes in standing up and pronouncing the difficult view in public and taking the consequences. It is easy to believe in something, it is much more difficult to speak out.”

And, quoting Bram Fischer,

“When an advocate does what I have done, his conduct is not determined by any disrespect for the law nor because he hopes to benefit personally by any ‘offence’ he may commit. On the contrary, it requires an act of will to overcome his deeply rooted respect of legality, and he takes the step only when he feels that, whatever the consequences to himself, his political conscience no longer permits him to do otherwise. He does it, not out of a desire to be immoral, but because to act otherwise would, for him, be immoral.”

Fischer was posthumously honoured by the advocates profession for his principled courage. In the fullness of time, we shall learn whether this honour – in what has become the South African tradition – is reserved for those favoured and pre-approved for the time being by those who wield power over others.

This article was first published on anchoredinlaw.net.

* The views expressed here do not necessarily reflect those of Independent Media or IOL.