Adv. Mark Oppenheimer: Is the ANC liable for Genocide? - The NdB Sunday Show

In this edition of the NdB Sunday Show, Advocate Mark Oppenheimer of the Johannesburg Bar tells Chris Steyn “there may very well be an argument that the South African government itself has been either complicit or silent in the face of genocidal speech”. He was speaking after President Cyril Ramaphosa and former Foreign Minister Naledi Pandor made it clear that South Africa would press ahead with its ICJ genocide case against Israel - despite the Middle East Peace Pact. “…it would be interesting if the Israelis were to...take South Africa to court in a parallel piece of litigation." Oppenheimer commends the visit to Israel by two granddaughters of the late President Nelson Mandela, and their balanced view in contrast with their cousin Mandla who was detained and deported after the flotilla intercept. As for the Madlanga Commission, Oppenheimer fears that South African are suffering from “commission fatigue” - and warns: “…the ANC government might want to bear in mind that there's only so much you can do to the poor and the oppressed before they rise up against you and... slit your throats or do other terrible things to you as we've seen in other countries abroad.” Oppenheimer, who also specialises in municipal law, shares his thoughts on the Jo'burg Mayoral race - and shares his “unusual way of solving” the crisis in the City. He also gives the backstory to the case of Professor Adam Mendelsohn at UCT which stands to lose as much a billion rand in funding because of its anti-Israel stance.

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Edited transcript of the interview

Chris Steyn (00:02.061)

Welcome to the NDB Sunday Show with me, Chris Steyn. Today, my guest is Advocate Mark Oppenheimer of the Johannesburg Bar.

Chris Steyn (00:18.285)

Welcome, Mark.

Mark (00:21.166)

Thanks for having me.

Chris Steyn (00:23.713)

Mark, let us talk about the relationship between Israel and South Africa. When world leaders gathered to sign that Peace Pact, South Africa was notably absent. Since then, African National Congress leaders have made it clear that they are adamant that Israel should pay in court for its actions in Gaza. And those leaders include former Foreign Minister Naledi Pandor and President Cyril Ramaphosa. Your thoughts.

Mark (00:58.862)

Well, it's kind of astonishing. So after almost exactly two years, a peace deal is struck, which is a mesmerising peace deal. It ensures the release of all living hostages and also the release of the bodies of hostages who are in Gaza. And so if you think about this, you know, one of the greatest poems ever written, the Iliad, when Hector is killed, you know, his family grieves for his body to be returned. And so you have that feeling among Israelis, which is that they can't be whole until the nation is brought back, which includes the living and the dead hostages. 

And the South African press said almost nothing about this momentous occasion. The South African government also sort of doesn't see the nature of the moment, which is that almost the entire Arab world has gathered and said, we should have peace in the Middle East. 

And instead, what you have is the South Africans spitting in the face of the Americans which of course has a ricochet effect on all South Africans because it's going to make it very difficult for us to, you know, renew AGOA or have any kind of, you know, good relationship with America being our biggest trade partner. 

But let's talk about the merits of the ICJ case. You know, so the argument might be, well, we have a really good case and so we should, you know, persist. It just happens to be true that the South Africans have a terrible case. So, and a case that they've lied about on every occasion.  So, you had four appearances in the ICJ where the South Africans would say, we stopped the war, we achieved a ceasefire, we have a declarator that a genocide is going on, all of which is totally false. 

And of course you had a very complicit mainstream press sort of cheering on Team South Africa on the world stage as if they were the Springboks or the Proteas. 

So let's sort of think about what would it actually be to find a case of genocide. And, you know, the, the test in law is which comes from the Genocide Convention is that you have to have what's called dolus specialis. So it's a very particular kind of intent, which is to destroy a population in whole or in part. And that is the only inference that can be drawn from the evidence. 

So the Israeli scientists said, well, we are engaged in a war after the greatest attack against the Jewish people since the Holocaust, where you had…

Mark (03:20.878)

…250 people taken hostage and 1200 people murdered because they were Jews in the most violent barbaric, torturous manner. And Hamas filmed themselves doing this, beheading people, raping people, and that it's necessary, in other words, to engage in a war to one, retrieve the hostages, which has happened due to military pressure. So the hostages have been released. And also to prevent a further October 7th. And you had Hamas saying we will have an October 7th, you know, time and time again. You know, we pray for the annihilation of the Israeli Jewish state. 

So the question is, well, were the Israelis trying to exterminate every single Palestinian around? Well, no, given what the numbers look like and given what the casualty ratios look like. So one must ask, is it likely that they were trying to eliminate Hamas and that you had civilian casualties along the way, or were they trying to exterminate the Palestinian people?

So if you look at the sort of total deaths, and, of course, those deaths are reported by Hamas, so they should be taken to the pinch of salt, you have roughly 67,000 people who are killed. And the Israelis have said that every innocent life that is killed is tragic. 

But the civilian to combatant ratio is at worst for the Israelis about two to one. 

Now to put that in perspective, because I think you must work out, well, what does that mean in terms of other wars? Mosul, for example, was four to one. So four civilians were killed for every combatant. 

Now, what makes it even more difficult for the Israelis fighting this war is that Hamas have used human shields, that they have built terror tunnels where they hid hostages underneath civilian infrastructure, that they hid hostages inside of mosques, inside of hospitals. So a place that will ordinarily be civilian are converted into military targets by international law.

Hamas, of course, have killed their own people and are continuing to do this right now on the basis that they viewed them as collaborators with the Israelis or that they're of rival factions. 

So it just cannot be the case that South Africa could ever succeed in its litigation before the ICJ, just like it didn't succeed in any of the other realms. 

And so the question is, what is the purpose of doing it? Well, I'd imagine the one explanation is that the ANC derived a benefit.

Mark (05:45.784)

There's good reason to think that it stems from Iran, that MTN has an office in Iran and they might very well have funneled money to the ANC. 

Of course, the South African taxpayer will pay for the actual litigation and will then of course receive all the detriment of ruining our relationship with America, which sees itself as Israel's great ally. 

So, I expect nothing less of our government, which is sort of saying from the river to the sea while wearing keffiyehs and spitting in Jewish citizens' faces to continue down this terrible path.

Chris Steyn (06:19.651)

Now Mark, despite the African National Congress's hard line stance, two granddaughters of the late President Nelson Mandela have visited Israel and even met with President Isaac Herzog. Of course, they also went across to Gaza on a humanitarian mission, but they retained a very balanced view in contrast with their cousin Mandla who was on that flotilla that was intercepted, saw him detained and he later claimed that the South African delegation was singled out for humiliation.

Mark (06:54.059)

Yes, it is interesting that those granddaughters could go to Israel and really sort of walk in the shoes of Nelson to say, we should treat people as equals. Often there's a certain line that's quoted that Mandela said that we will not be free until the Palestinians are free, but he also recognised the right of a Jewish state and said that Zionism is a legitimate political position. And I think it's commendable of them to have gone. 

I think it's very hard to understand Israel unless you've been there, partly because the sort of Apartheid lie that's spread about Israel falls apart as soon as you land in the airport and you realise that you're in one of the most racially-mixed countries around. Most people sort of outside of Israel think that Jews look like Woody Allen. 

And actually you had 800,000 Jews who were expelled from North Africa in the 40s and 50s, you know, from Morocco, from Iraq, from Iran, you know, who are Arabs, you know, who are Jews. And then you also have Arab Christians and Arab Muslims who live in Israel. You have Jewish, black Ethiopians who live there. So, you know, you have this wide mix of cultures. So, and of course there's no Whites Only benches in Israel. So that's the one thing. 

The other thing that you realise is how tiny the place is. So, you know, this idea that we shouldn't allow Jews to be colonisers in this land. The first thing you should do is sort of zoom out and look at the map, you know, and that you sort of see that there are, I think, roughly 22 Arab states, which are almost entirely Arab only states. There are very few Christians and Jews who live in those countries. Many of them who did live there were pushed out and persecuted. And so you have this tiny place, the sort of size of the Kruger Park, which is surrounded by traditionally hostile states. 

You know, on October 7th, Hamas had hoped that Hezbollah would have stormed through. They did fire many, many rockets over and drove, I think, between 60,000 and 120,000 Israelis out of their homes. You obviously have rocket fire from Iran and from the Houthis in Yemen. So, it's a tough neighbuorhood for the Israelis. And so being on the ground gives you an insight into that. You realise that Tel Aviv and Gaza are along the same coastline and very close by…

Mark (09:19.022)

…and that rockets from Gaza would land in Israel on a very regular basis. And that gives you a sense of the tensions. 

I think it's very easy to sort of say, you know, we should have peace, but if you live in a country that's peaceful, it's easy to imagine that. If you live in a country that, you know, is constantly under existential threat, it's much harder. 

And what is amazing is that the Israelis have achieved incredible peace deals. So the Abraham Accords, you know, is a wonderful building block with many of their sort of nations. And I think that the current arrangement may well lead to peace in the Middle East, which would be an astonishing achievement.

Chris Steyn (09:58.477)

South Africa hasn't had proper diplomatic relations with Israel since Ambassador Eli Belotzerkovsky was recalled. And I do remember that prior to him being recalled, he faced very hostile treatment from this government.

Mark (10:18.284)

Yes, and it's sort of astonishing how badly treated the Israelis have been, you know, given that there've been quite good links between Israel and South Africa for a long time, that there's a number of Jews who still live in South Africa and a number of African Jews who moved to Israel, and that you have all this incredible expertise from the Israelis. 

So, you know, one thing that I sort of think about is that when Cape Town had its water shortage, you know, the Israelis stepped up and said, well, you know, we live in one of the most water scarce regions in the world and we've solved our water crisis using incredible technology and we'd love to offer it to South Africa - and the South Africans refused. So we're willing to die of thirst rather than deal with those despicable Zionist Jewish pigs in Israel. It's really a matter of cutting off your nose to spite your face. 

And one would hope that a sensible policy would be, if South Africa really believed that it was not aligned, then it would do that. It would have friendships with nations that are democratic and liberal and sort of have a set of human rights. 

I mean, one of the things that I sort of find astonishing is you have very vibrant Gay Pride rallies in Israel, that you can quite openly be trans or gay, but try that in any of the countries that that neighbour Israel and you're asking for death. But of course what we found is these sort of rallies where you have Gays for Gaza. I've always thought there's something amusing about that, but also in traveling in the sort of lack of information that people have. If you were openly gay in Gaza, it wouldn't be for very long because you'd be thrown off of a building. Whereas in Israel, of course, you would be embraced.

Chris Steyn (12:01.987)

Now, one of the reasons President Donald Trump of the United States is not very enarmoured with South Africa is that case, the ICJ case. Do you think though that Israel itself could at some point avenge itself on the ANC directly, not via the US?

Mark (12:31.554)

Very interesting. So, I one of the cases that I'm quite well known for is the Kill the Boer case. And if you think about the South African delegation going to visit Donald Trump in the Oval Office, there's that line where Donald says, Dim the Lights, you know, and much footage is shown of the remnants of farm attacks and lots of footage of Julius Malema singing Kill the Boer at mass rallies. 

And there may very well be an argument that the South African government has been either complicit or silent in the face of genocidal speech. Not that there's a white genocide, but that when you have a very powerful politician calling for a particular ethnic group to be murdered and has either endorsed the speech or said that this is protected speech, that that may very well breach its obligations in terms of the Genocide Convention. 

So yeah, it would be interesting if the Israelis were to...you know, take South Africa to court in a parallel piece of litigation. 

And, you know, it's not like South Africa sort of covered itself in much glory locally. I mean, if you sort of think about… speeches about how terrible things are in Gaza, you know, you sort of think about, how many people in South Africa don't have clean water, don't have electricity, you know, are starving. We now have people starving to death in South Africa. You have hospitals that have been ruined by an ANC government and terrible policy by theft. So, you you might think that they've really engaged in the grand deflection policy because things are so bad here.

Chris Steyn (14:07.555)

Mark, I don't know if you are able to talk to us about the case of Professor Adam Mendelsohn at UCT.

Mark (14:15.576)

Yes, I'll say a couple of things about Mendelsohn case. So the one is of course that I'm a member of UCT's Council, but I'm not gonna speak on their behalf. But the court case is a public case. So I'll speak about what is sort of on the public record. It will be proceeding to court next week. The facts are basically that before I became a member of counsel, UCT's Council passed two resolutions. 

The first, being a resolution that the university would disallow Israelis who are affiliated with the IDF from being able to do research work with members of UCT. Now, worth bearing in mind, of course, that Israel has Conscription, which means that almost all Israelis are going to be affiliated with the IDF in some manner. So really, it's the targeting of one state's academics kind of regardless of their political views. So there are going to be many people in Israel, for example, who are not fans of Netanyahu, critical of the state, and they would be banned from doing work with UCT, or people who do totally non-political work. So people who work in high tech and finance, you know, on water purification, all that sort of stuff. 

The second was that they said that the IRA definition of anti-Semitism will not be treated as the definition of GCT and that they'll instead use the Jerusalem Declaration. Now, why these things matter is that the council when they voted on this seemed to do so very quickly and without much information. 

So, Mendelsohn has claimed that the decision was irrational and to the detriment of the university. It's to the detriment in a couple of ways. The one of course is that University being an organ of State has an obligation to uphold the rights in the Bill of Rights, which includes the right to Freedom of Expression. And our Constitution specifically mentions the right to Academic Freedom. So it makes it very difficult for him personally to continue the work that he does because you would need to do work with his…. academics and of course affects many other people and all sorts of different faculties from doing their work. So you've got this breach of a fundamental right in the Constitution.

Mark (16:39.79)

Also, the Chair of Council, Norman Arendt, had signed an agreement with the Donald Gordon Foundation on behalf of council that they would donate 200 million Rand to the university, which would be used, I think, for part of the Health Sciences faculty. And they'd said, you know, one of the requirements is that you have a zero tolerance attitude towards anti-Semitism and that the definition of anti-Semitism is the IRO definition. 

So, this wasn't disclosed to members of council. They then lost this 200 million rand. So 20 million rand had been paid over, 180 was canceled and they may have, UCT may very well have to pay over the remaining 20 million rand. 

It also turns out that the foundation had in mind to provide a hospital to UCT, similar to the Donald Gordon hospital that's been provided to Wits in Johannesburg. And so this has been lost.

And then of course, the Americans are not very happy with what UCT has done, not only its anti-Israel stance, but also its cozy relationships with Iran and Russia and China, where it does have ongoing research relationships. 

And so it may very well lose hundreds of millions of rands in NIH funding. I think the one estimate I saw was over a billion rand. It would lead to 200 members of staff having to be retrenched.

And that would cause a knock on effect because our labour laws require giving people notice. You can't just fire them. You have to pay them for some extended period. 

So, when the Vice Chancellor had a fundraising speech in Johannesburg, he said, UCT is currently rated as the top university on the continent. And that if things keep going the way that they're going, it'll spiral down and become one of the lowest rated in South Africa, and it be very hard to recover. Once you burn everything down, you can't just resurrect it. So it's a rather sad state of affairs. 

We shall see how the litigation goes, but as I say, the claim is that the university has acted very badly and irrationally and sacrificed its own interests for a rather partisan agenda. I mean, you can't imagine them having passed a resolution against any other country…

Mark (19:04.335)

…that the resolution wasn't passed in general terms, that it specifically targets one of the smallest nations on the earth and the only Jewish states on the planet. So it sort of reeks of anti-Semitism. And also the levels of anti-Semitism that are tolerated on campus is astounding. They have a thing called Israel Apartheid Week. And on one of those occasions, Jewish students were surrounded by people wearing shirts that said, we are Hamas, Jews were spat at, Yarmulkes were kicked off their heads. You had people sort of screaming in their faces, covering Israeli flags and And you had scores of Jewish students saying, we're not willing to be at UCT anymore, we're gonna move to Stellenbosch.

Chris Steyn (19:49.187)

Mark, as a resident of Johannesburg, a member of the Johannesburg Bar and somebody who has a specialty in municipal law, I would love to talk to you about the next mayor of the city of Johannesburg. Do you think it's going to be a duel between the Patriotic Alliance's Kenny Kuneni and the Democratic Alliance's Helen Zille? Or do you think it will be a three way race, including ActionSA’s Herman Mashaba.

Mark (20:22.575)

It's very interesting. I mean, the polling as far as being very positive for the DA, it would be of course, in the best interest of the DA and the city, if they were to win outright, although I think this is quite difficult. 

I have an unusual way of solving this problem, which is that in 2000, we used to have a Mayor of Sandton. And after that, what we did was we created this megalopolis of Johannesburg with COJ, which clearly is dysfunctional. 

I mean, it's very regularly the case that people don't have water and that's, you know, there aren't street lights that work and, you know, your potholes are everywhere. And it might just be because it's so big and that it would be much easier to sort of govern smaller sectors. And so one way to give everybody what they want is to carve Joburg up into different districts. And so you could imagine the simplest one being, you know, the south of Joburg and the north of Joburg. And so you could have… Eldorado Park, Soweto, know, could have their own mayor and you could have that for the North or you could have, you know, many more sort of small mayors who would then be able to sort of make an actual difference in the areas that they control. 

You may find, of course, that the poorer areas are currently being heavily subsidised by the wealthy areas. And so you could have those smaller places cross-subsidised by the national government. 

But I do think what you find at the moment is that it's very hard to have an outright winner, which means that you have a lot of chaos. So when the DA have won the mayoralty in the past, they've had to do it in a broad coalition of people who don't share their values. It's very hard to exercise control over the city's administration, that the unions will sort of put a lot of pressure on whoever's in. And so then to do the reform work that's necessary becomes so hard.

And the city, from what I can tell, is sort of rotten to the core. A lot of the work that I've done in practice has been suing the city for its sort of billing crisis stuff. And it used to be the case that there'd be an error in your account, you'd get a million Rand bill out of nowhere, you'd sue them, and you would win, and then your account would get rectified. Now all that'll happen is you'll win, your account won't get rectified, you'll then launch contempt of court proceedings…

Mark (22:50.223)

…which won't be defended. Eventually you'll have to sort send the Sheriff around to find the official who was supposed to fix your error. They'll duck and dive and….you’ll have to spend more and more funds. And then eventually maybe your account gets fixed. So you've got a system that's sort of like really straining to do the most sort of easy things. So you can imagine if the billing system doesn't work, that's just an aspect of a system that's largely broken.

And it's important to be able to fire all those people that, you know, have been licking gravy off the train for far too long and not doing their jobs, which means that you need a mayor who can actually do that. know, Helen Zille was voted the best mayor in the world. And when she became the mayor of Cape Town, she did so as part of a seven-party coalition. And then in the next election cycle, won outright and the DA have never lost another election since in the city. 

And so I do think what's interesting is that Johannesburgers are quite pragmatic that…there's that sort of viral interview of Helen being interviewed by Anele on Highveld and the usual race-baiting and sort of stuff is sort of made, and Zille fights back very hard. And the comments online are just very, very supportive of Helen. I think people are sort of sick of the idea that you can try and stop someone who's very effective from being able to make positive change merely because they're white or have said things that you sort of find offensive or deliberately tried to find offensive. I mean, even News24, which ran a poll, sort of showed that like 81% of people wanted Zille there. 

Now the question is, say, is what happens if she can't get an outright majority and can they do deals with ActionSA and the PA? I don't know, they've had quite hostile relationships in the past. The impression that I get of the PA is that they are a very pragmatic party and are quite keen on being able to have some level of control. And, you know, they said many negative things about the DA and the ANC, but they're in the national government with both of them. 

So, you know, who knows what had happened there. Actually, I can't really imagine persisting in the next national election. I mean, it's a party that I think a lot of people had a lot of hope for. You know, it's kind of largely been in disarray.

Mark (25:09.679)

I sort of say it's a one-man party and that one man's not even Herman Mashaba. It's Michael Beaumont. And yeah, it is possible that they'll get some sort of traction, but yeah, I don't think they would play that much role in Johannesburg.

Chris Steyn (25:25.911)

Thank you, Mark. Before I let you go, are there any other political developments in the country that you'd like to comment on?

Mark (25:35.449)

Well, I suppose the one that people have been following quite closely is these Madlanga hearings after the sort of revelations that we have, know, rife corruption. And I have this sort of worry about these commissions. And I imagine a lot of people have the same worry, which is that if you sat glued to your screens watching the Zondo Commission for four years and then thought, wow, we've found out all this information about how our country was looted. And of course there's going to be repercussions for all of these thieves. And then you waited and nothing happened. 

And my worry is that we're going to have commission fatigue. There's maybe a commission where there's good reason to do it via the route of a commission. But if we never have any consequences after we get the transparency, but we don't see any accountability, South Africans will sort of lose their stomach for it.

One other thing that's sort of worth thinking about if we, you know, often South Africans are kind of a little bit parochial and we think about our own problems and we don't look abroad. 

You know, you've had this wave of Gen Z protests in other countries where they've gotten sick and tired of their government not being able to provide water and electricity and they've risen up against them and they've burnt down government buildings and they've chased them out of office. 

And, you know, there's something that Julius Malema sort of said, which is that you'll have an unled revolution in South Africa, that eventually people will feel so downtrodden and so desperate that you'll have this chaos that emerges. And we saw a little bit of that chaos in 2021, know, with the riots in KZN, probably not unled, but sort of, you know, driven by certain factors. 

But, you know, I think the ANC government might want to bear in mind that there's only so much you can do to the poor and the oppressed before they rise up against you and, you know, slit your throats or do other terrible things to you as we've seen in other countries abroad. 

And so we'd hope that they would go down a sort of reasonable path. 

There is an interesting concession that was recently made in some litigation, is the, where the Expropriation Act is constitutional. And it was reported this morning that Ramaphosa has accepted that Section 19 of the act is incoherent and unconstitutional. And, you know, he sort of said the court should try and fix it. But…

Mark (28:01.392)

…it should just be declared unconstitutional and it should never resurface. I mean, when you take away property rights from people and tell them that the State can confiscate your goods and give you nothing, you're on the road to despair. You're on the same road that the Venezuelans are on, that the Zimbabweans have been on. There's nothing there but suffering, especially for the poorest of the poor. And you have a real life case of Ekurhuleni of a piece of land that was stolen by the State. The owners were given nothing with the promise of real build housing and six years later, there's nothing on that land, and the poor property owners had to sort of carry the legal tab. 

So again, as I'd say, if we start walking a path of proper policy, we can move our way into prosperous abundance as opposed to despair.

Chris Steyn (28:48.077)

Thank you. That was Advocate Mark Oppenheimer of the Johannesburg Bar speaking to BizNews. I'm Chris Steyn. Thank you, Mark.

Mark (28:59.057)

Pleasure.