Cape Independence - Fact Checking the Daily Maverick

Cape Independence is an inherently divisive and evocative subject. Its entire purpose is to partition South Africa and to allow the Western Cape people to form their own sovereign state free from the influence of the disastrous South African governments which they have habitually rejected.

Given the impact such an event would have on the lives of millions of South Africans, it is an idea which requires intense scrutiny. For the same reason, that scrutiny must be honest and balanced. 

‍Daily Maverick not entitled to own facts‍

In its article, ‘Fact check: Is it likely the Western Cape could become an independent state?’, the Daily Maverick falls woefully short of this bar. As the adage goes, you are entitled to your own opinion, but not your own facts.

The editorial team at Daily Maverick is clearly opposed to Cape Independence. For years it has declined to publish any article supportive of the idea, but has periodically published articles opposing it. It is of course entitled to do so, but the result is that its reporting of this issue will never be balanced. 

To publish this article as a ‘Fact check’, is something else entirely. This is very definitely an opinion piece and to describe it as a fact check is irresponsible and dishonest.

The opinion of the author, senior journalist Rebecca Davis, is that Cape Independence parties, including the Referendum Party of which I am the leader, are selling voters an unobtainable pipe dream. She is entitled to that opinion, she is not entitled to present it as fact.

To support her assertion, Davis offers a series of seemingly credible referenced sources which give the appearance of authority to her ‘fact check’.

Sadly, her facts do not bear up under scrutiny.

‍Law on Cape Independence is complex‍

Davis concedes that polling has demonstrated majority support for Cape Independence, but adds context, presumably intended to undermine its authority, by highlighting what she describes as a small sample size. In doing so, however, she uses data from the wrong year (2021 vs 2023) and quotes the wrong sample size (886 vs 1080). She also fails to report that, because this is provincial polling rather than national polling, the sample size is actually quite large in a South African context.

This is a relatively minor error. The legal argument she presents to discredit Cape Independence is infinitely more problematic.

The reason we have courts in the first place, replete with legal experts offering contradictory interpretations of the law, is because the law is almost never absolute. When it comes to the incredibly complex matters of law around secession, which encompasses not only the Constitution but international law, human rights, and geopolitics, then this uncertainty is amplified exponentially.

To base your entire case on the legal opinion of one individual is reckless. When the person in question is Prof. Pierre de Vos, it is reckless in the extreme.

‍De Vos not universally respected ‍

I am not a lawyer, but in my role as co-founder of the Cape Independence Advocacy Group (CIAG) and leader of the Referendum Party, I have been advised for years by a multitude of legal experts in both constitutional and international law, based within and outside South Africa. The result has been two-fold.

My knowledge of the legal nuances around Cape Independence specifically, on which I have written a widely reviewed legal white paper, is considerable. And, in the legal circles where I moved to acquire that knowledge, de Vos is regarded as something of a joke. 

De Vos is at heart a left wing political activist, and thus the darling of the left wing media. It is impossible for the average reader to determine the barely visible line between activist and legal expert in his media articles. To other eminent jurists however, it is glaringly obvious.

Interestingly, when subject to independent scrutiny, the Daily Maverick is itself unwilling to stand behind de Vos’s status as a legal expert.

‍Davis not fully transparent with reader‍

In her article, Davis used two pieces of journalistic misdirection (something which certainly does not belong in a piece claiming to be a ‘fact check’).

In the first, she presents Dr. Corné Mulder’s (the Western Cape leader of the Freedom Front Plus) opinion as political and presents de Vos’s comments as the legal rebuttal. She fails to mention that Mulder’s doctorate is in Constitutional Law and that as such, he is just as qualified as de Vos is to offer a legal opinion.

In the second, she refers to an article which de Vos had ‘written elsewhere’ without declaring that in fact the article was reproduced in full on the Daily Maverick. Worse still, she further failed to disclose that the Daily Maverick had subsequently refused to publish a ‘right to reply’ which took de Vos to task over the claims he had made in it. 

I know this because I wrote the right to reply, and I was so incensed by the Daily Maverick’s refusal to publish it that I referred the matter to the Press Ombudsman. The findings, which the Daily Maverick accepted, are extraordinarily pertinent. The Ombudsman found that the Daily Maverick was under no obligation to offer a right to reply because de Vos was not stating facts but purely his own personal opinion, and that since the article was published in the opinion section, the average reader would not be misled by this.

On what basis then do we find, four years later and sixty days before an election, the Daily Maverick offering precisely the same article as the basis for its fact check?

‍What are the facts?‍

Here are some other pertinent facts which neither de Vos nor Davis saw fit to declare.

Section 127(2)(f) authorises provincial premiers to call referendums. No serious jurist denies this. Well known legal commentator Martin van Staden gives a detailed explanation in this article (his opinion) of how this right can be exercised right now by Premier Alan Winde. I also know from personal knowledge (because I have a copy of it) that Winde has a legal opinion on his desk saying precisely the same thing. 

Independence referendums are commonplace globally, and there have been 81 around the world in the last 50 years, with 35 countries gaining their independence. The list can be viewed here.

Only the people of the region seeking to secede get to vote in the referendum. The 81 referendums which actually took place testify to this reality and Prof. James Kerr-Lyndsay from the London School of Economics explains why in this video.

De Vos’s inference that South Africa can simply ignore the outcome of a referendum on Cape Independence is fanciful. That the Constitution neither declares referendums binding or otherwise is of no consequence. We can be sure of this because the implications of what an independence referendum means in a democracy has been recorded in judgements by both the Canadian Supreme Court (Quebec) and the UK Supreme Court (Scotland). The international law underpinning both cases applies equally to South Africa. 

‍Cape Independence will improve people's lives‍

In my opinion, the reality of Cape Independence is this. 

Cape Independence will vastly improve the quality of lives for the Western Cape people, a view which polling confirms the overwhelming majority of Western Cape voters also hold.

The Western Cape people have a clear and undeniable right to hold a referendum on Cape Independence, and to exercise a right to self-determination should the majority so choose. Polling shows 68% of Western Cape voters would support such a referendum.

If the majority of Western Cape people vote for their independence in a legal referendum, then independence will become an inevitability (although it will not happen overnight).

If people want a referendum to be held, and in doing so lay the foundation for a bright and prosperous long-term future in the Western Cape, then they need to vote for it in the 2024 elections. The Referendum Party was created to allow them to do exactly that.

The Daily Maverick has not granted the Referendum Party’s request for a right to reply. In response, the party has reported the publication to the Press Ombudsman citing multiple breaches of the Press Council of South Africa’s Code of Conduct.

‍