In June 2011, fifty years after the initiation of the UN Single Convention on Narcotic Drugs and forty years after former US President Nixon launched the US government’s ‘War on Drugs’, the Global Commission on Drug Policy released an explosive report on the failings of the war on drugs and its devastating consequences for individuals and societies around the world. The purpose of the Global Commission on Drug Policy is to bring to the international level an informed, science-based discussion about humane and effective ways to reduce the harm caused by drugs to people and societies. It consists of former world leaders, writers and business leaders including Kofi Annan, Carlos Fuentes, Ernesto Zedillo, Richard Branson and others. Traditionally, policy makers around the world premise drug strategies upon the belief that harsh law enforcement action against those involved in drug production, distribution and use would lead to a diminished market in controlled drugs such as heroin, cocaine and cannabis. As a matter of fact, the global scale of the illicit drug markets largely controlled by organised crime networks has grown dramatically over the past fifty years.
The international experience is replicated in Sub-Saharan Africa, which has seen the proliferation of organised crime networks involved in the international drug trade in the past decade. Cannabis is grown, smuggled and traded across the subcontinent, of which the majority is destined for the lucrative markets of Northern America and Europe. Hydroponic cannabis plantations have been found across South Africa. Authorities in South Africa have had some success in dismantling drug laboratories in urban centres, but acknowledge that synthetic drug producers have diversified and house their operations in mobile laboratories or have moved to neighbouring countries. While West Africa remains the major African transhipment region for cocaine consignments from South America to European markets, the potential for displacement of routes to Southern Africa has been a major concern to regional law enforcement bodies. East Africa, on the other hand, has become a port of entry and transhipment for the opiate trade from the Golden Triangle.
Since the northern markets are largely oversupplied and saturated, drug networks have been expanding their illicit operations to new markets in the developing world. This has led to an upsurge of the levels of ‘hard drug’ consumption including heroin, cocaine, methamphetamines and amphetamines in Sub-Saharan Africa. There has been a steady increase of consumption levels of cannabis and other natural stimulants such as the herbal drug Khat across the continent. Massive and potentially lucrative illicit markets that can be exploited by transnational organised crime networks are being created and at the same time, the incidence and scale of drug related violence is likely to escalate.
ISS research into organised crime shows that transnational drug trafficking networks are firmly entrenched at both the local and inter-regional levels. Local crime networks run domestic distribution of cannabis and some harder drugs, while foreign nationals ensure the smooth distribution and transhipment of both soft and hard drugs to regional and international markets. Corruption of police, airport security, customs officials and some politicians ensures that the majority of consignments pass undetected across borders. Networks employ dealers to distribute the drugs effectively. Drug related violence has been growing steadily in recent years. Several targeted assassinations against gangland leaders occurred in South Africa and turf wars between competing dealers have been documented, such as those among urban gangs in Cape Town, South Africa and drug dealers and consumers in the Colombias in Maputo. Additionally, Chibolya township in Lusaka and Kariakoo and Kinondoni townships in Dar es Salaam have encountered violent confrontations with the police.
Law enforcement authorities have prioritised the fight against drug trafficking across the subcontinent. Specialised police units have been set up. Interception efforts, drug seizures and interdiction at national borders have shown limited or low success rates. Ultimately vigorous action in one area leads to shifts in the pattern or modus operandi, or to the movement of the illegal activity to another area. Our research shows that the focus of law enforcement authorities has been on the low-level dealers, consumers and couriers, who are easily replaced with new recruits. Hundreds of drug couriers have been caught and are serving lengthy prison sentences across the region and elsewhere in the world. Small town dealers and drug consumers are sitting off long prison sentences in overcrowded prisons, whereas the kingpins carry on with their business unperturbed. A notable exception is the recent conviction of Sheryl Cwele, the wife of the South African Minister of State Security, and her associate Frank Nabolisa who were convicted of recruiting two women to deliver cocaine consignments.
Cannabis eradication campaigns in Lesotho, Swaziland and South Africa have been highly controversial and unsuccessful. The Agent Orange-type chemicals employed by the South African Police Service have led to the toxification of arable land and ground water. Subsistence farmers have moved their plantations to inaccessible land in the mountains. A divergence of legal and social morality is clearly discernible where local communities regard the cultivation of cannabis as necessary to survival thereby depriving the police of legitimacy and support from civil, political and social structures.
Most countries in Sub-Saharan Africa have signed and ratified the United Nations’ Vienna Convention (1988) limiting the production, distribution and use of listed narcotic drugs and psychotropic substances as well as the UN Convention against Transnational Organised Crime (also known as the Palermo Convention of 2000). However, most of these countries have no drug strategy and, in most instances, archaic and draconian anti-drug laws have been instituted which tally with the dominant drug control paradigm.
The global objective of the drug control paradigm has been twofold: on the one hand, the suppression of supply through action in source countries and strong enforcement against distribution and retail markets; on the other, the suppression of demand through hard hitting education and prevention and the identification and punishment of users. The prohibitionist paradigm underpins the law enforcement approach to drug control on the subcontinent. Moreover, authorities in East and Southern Africa see the drug problem as a law enforcement issue and not a health or social problem. This has led to very little resources being made available for treatment and harm reduction initiatives in both regions.
Internationally, there has been a move away from the repressive zero-tolerance model towards a more evidence-based humane drug policy paradigm. Examples from abroad provide lessons learned about less punitive approaches and their impact on levels of drug use and drug related harm to the individual and society. For instance, legislation lessening criminalization combined with shifting resources from law enforcement and incarceration to prevention, treatment and harm reduction is more effective in reducing drug-related problems. The so-called harm reduction approach has resulted in a greater diversity of treatment options, less stigmatization of drug users, prevention of diseases and overdoses, and reduction of crime. Moreover, this approach has been applied to deal with social harms such as the reduction of drug-related violence in Latin America. It is high time for Southern African law and policy makers to consider its utility in dealing with the drug problem.
Source: Institute of Security Studies
Wednesday, September 28, 2011
ANC sets up its own committee on secrecy bill
THE ANC has moved to clamp down on a groundswell of opposition to the new secrecy law by setting up its own private committee to gather input on the controversial bill. The DA said in reaction that the ANC had abused parliamentary procedures, because the bill is set to be voted on by Parliament. The only committee that has the right to hear new submissions is a parliamentary committee. The ad hoc parliamentary committee on the Protection of Information Bill was dissolved when the ANC removed the vote on the bill from the parliamentary order paper last week.
ANC chief whip Mathole Motshekga has established the new ANC "information bill unit" in his office, said ANC parliamentary caucus spokesman Moloto Mothapo yesterday. Mothapo said the unit would soon hold public meetings with "ordinary people in the remotest village" to hear their views on the bill.
Dale McKinley of the Right2Know Campaign slammed the move. "They promised more public hearings, but these hearings are led by the ANC and not Parliament. If the ANC is only going to talk to its own people, who it picks and chooses, then it is turning its back on the public participation process," McKinley said.
Fatima Hassan of the Ndifuna Ukwazi campaign (dare to know) said "the remotest village argument is interesting as this is something that Parliament should have led in the beginning".
Source: The Sowetan
ANC chief whip Mathole Motshekga has established the new ANC "information bill unit" in his office, said ANC parliamentary caucus spokesman Moloto Mothapo yesterday. Mothapo said the unit would soon hold public meetings with "ordinary people in the remotest village" to hear their views on the bill.
Dale McKinley of the Right2Know Campaign slammed the move. "They promised more public hearings, but these hearings are led by the ANC and not Parliament. If the ANC is only going to talk to its own people, who it picks and chooses, then it is turning its back on the public participation process," McKinley said.
Fatima Hassan of the Ndifuna Ukwazi campaign (dare to know) said "the remotest village argument is interesting as this is something that Parliament should have led in the beginning".
Source: The Sowetan
Mr Landers, a public interest defence is possible and widely accepted in democracies
This morning as I was driving to work, I heard Mr Luwellyn Landers, a member of the ad hoc Parliamentary Committee tasked with debating and rewriting the Secrecy Bill, talk about the impossibility of including a public interest defence in the Secrecy Bill. A public interest defence would protect whistle-blowers and journalists from wrongful prosecution for exposing corruption and maladministration in the public interest — even when they leak or publish the content of classified documents and even if these documents were classified top secret to protect national security.
Mr Landers claimed that it had been impossible for the Committee to include a public interest defence in the Secrecy Bill as this would turn the Bill into a useless document that would lose all effectiveness. Such a move would also go against “international practice”, he claimed.
Because I was listening to the radio, I could not see whether Mr Landers’ nose was growing longer as he spoke.
Mr Landers must be unaware of (or must deliberately be misleading the public about) the fact that the Council of Europe Convention on Access to Official Documents contains a public interest override. Article 3 of that treaty allows member states to deny citizens access to documents where this is ”necessary in a democratic society” and where it is “proportionate to the aim of protecting”, inter alia, national security, defence and international relations; public safety; the prevention, investigation and prosecution of criminal activities; privacy and other legitimate private interests; and the economic, monetary and exchange rate policies of the State.
However article 3(3) of this treaty states that:
Access to a document may be refused if the disclosure of the information contained in the official document would or would be likely to harm any of the interests mentioned [above], unless there is an overriding public interest in disclosure.
Moreover freedom of information organisations such as article 19 hold that a public interest override is ”crucial to the effective functioning of a freedom of information regime. It is simply not possible to envisage in advance all of the circumstances in which information should still be disclosed, even if this might harm a legitimate interest, and to address these through narrowly drafted exceptions or exceptions to exceptions.”
Thus that organisation has published the Principles on Freedom of Information Legislation which makes it clear that a public interest defence is pivotal for any legal regime dealing with the classification of information, stating that:
Even if it can be shown that disclosure of the information would cause substantial harm to a legitimate aim, the information should still be disclosed if the benefits of disclosure outweigh the harm. For example, certain information may be private in nature but at the same time expose high-level corruption within government. The harm to the legitimate aim must be weighed against the public interest in having the information made public. Where the latter is greater, the law should provide for disclosure of the information.
These Principles were endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression, in his report to the 2000 session of the United Nations Commission on Human Rights as well as the Organisation of American States (OAS) Special Rapporteur on Freedom of Expression in his 1999 Report to the Inter-American Commission on Human Rights. A claim that “international practice” holds otherwise can therefore at best be said to be factually incorrect.
Mr Landers must also be unaware of (or must deliberately be misleading the public about) the fact that the Canadian law dealing with state secrecy includes just such a public interest defence. The Security of Information Act of 1985, which regulates the classification of state secrets in Canada and also criminalises the leaking of documents and possession of documents classified as secret, contains a specific public interest defence in section 15 of that Act.
I thought it might be helpful to discuss this section of the Canadian Act to assist the ad hoc committee in its possible future deliberations on the Bill. Section 15(1) of the Canadian Act states that no person is guilty of an offence even where that person reveals “special operational information” if the person establishes that he or she acted in the public interest. “Special operational information” includes classified information about such serious state security issues as the identity of spies, plans of military operations, and information about the operation of intelligence services.
Section 15(2) states that a person acts in the public interest if
(a) the person acts for the purpose of disclosing an offence under an Act of Parliament that he or she reasonably believes has been, is being or is about to be committed by another person in the purported performance of that person’s duties and functions for, or on behalf of, the Government of Canada; and (b) the public interest in the disclosure outweighs the public interest in non-disclosure.
Subsection 15(4) of the Canadian Act contains a set of factors that a court must weigh up when deciding whether the public interest in the disclosure outweighs the public interest in non-disclosure. These factors include:
(a) whether the extent of the disclosure is no more than is reasonably necessary to disclose the alleged offence or prevent the commission or continuation of the alleged offence, as the case may be;
(b) the seriousness of the alleged offence;
(c) whether the person resorted to other reasonably accessible alternatives before making the disclosure and, in doing so, whether the person complied with any relevant guidelines, policies or laws that applied to the person;
(d) whether the person had reasonable grounds to believe that the disclosure would be in the public interest;
(e) the public interest intended to be served by the disclosure;
(f) the extent of the harm or risk of harm created by the disclosure; and
(g) the existence of exigent circumstances justifying the disclosure.
The section also provides for other safeguards that would prevent the disclosure of information that would harm the security of the state without having satisfied the public interest criteria. However, even then these safeguards do not apply if the communication or confirmation of the information was necessary to avoid grievous bodily harm or death.
Were the South African Constitutional Court to be asked to consider whether the drastic infringement on the right to freedom of expression and the right of access to information currently contained in the Secrecy Bill were justified in terms of the limitation clause of our Constitution, it would ask what was “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. It would then have to consider whether the absence of a public interest override defence is usually included in legislation of democratic countries. The Court will probably find that it is usually included, given the fact that the inclusion of such a defence is required for all countries in Europe, endorsed by officials of the United Nations and included in Canadian legislation.
Mr Landers may of course argue that South Africa is a special kind of democracy and that our government requires more stringent secrecy laws to protect it from exposure … I mean the disclosure of sensitive information — even if it is in the public interest to do so. He may argue that we should not be measured against other democracies but rather against only partly democratic or authoritarian countries where secrecy is the norm instead of the exception. But I suspect that such an argument would not be politically palatable. No wonder he is wrongly claiming that including a public interest defence in our Secrecy Bill would be impractical and would not be required by “international practice”.
Source: Constitutionally Speaking
Mr Landers claimed that it had been impossible for the Committee to include a public interest defence in the Secrecy Bill as this would turn the Bill into a useless document that would lose all effectiveness. Such a move would also go against “international practice”, he claimed.
Because I was listening to the radio, I could not see whether Mr Landers’ nose was growing longer as he spoke.
Mr Landers must be unaware of (or must deliberately be misleading the public about) the fact that the Council of Europe Convention on Access to Official Documents contains a public interest override. Article 3 of that treaty allows member states to deny citizens access to documents where this is ”necessary in a democratic society” and where it is “proportionate to the aim of protecting”, inter alia, national security, defence and international relations; public safety; the prevention, investigation and prosecution of criminal activities; privacy and other legitimate private interests; and the economic, monetary and exchange rate policies of the State.
However article 3(3) of this treaty states that:
Access to a document may be refused if the disclosure of the information contained in the official document would or would be likely to harm any of the interests mentioned [above], unless there is an overriding public interest in disclosure.
Moreover freedom of information organisations such as article 19 hold that a public interest override is ”crucial to the effective functioning of a freedom of information regime. It is simply not possible to envisage in advance all of the circumstances in which information should still be disclosed, even if this might harm a legitimate interest, and to address these through narrowly drafted exceptions or exceptions to exceptions.”
Thus that organisation has published the Principles on Freedom of Information Legislation which makes it clear that a public interest defence is pivotal for any legal regime dealing with the classification of information, stating that:
Even if it can be shown that disclosure of the information would cause substantial harm to a legitimate aim, the information should still be disclosed if the benefits of disclosure outweigh the harm. For example, certain information may be private in nature but at the same time expose high-level corruption within government. The harm to the legitimate aim must be weighed against the public interest in having the information made public. Where the latter is greater, the law should provide for disclosure of the information.
These Principles were endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression, in his report to the 2000 session of the United Nations Commission on Human Rights as well as the Organisation of American States (OAS) Special Rapporteur on Freedom of Expression in his 1999 Report to the Inter-American Commission on Human Rights. A claim that “international practice” holds otherwise can therefore at best be said to be factually incorrect.
Mr Landers must also be unaware of (or must deliberately be misleading the public about) the fact that the Canadian law dealing with state secrecy includes just such a public interest defence. The Security of Information Act of 1985, which regulates the classification of state secrets in Canada and also criminalises the leaking of documents and possession of documents classified as secret, contains a specific public interest defence in section 15 of that Act.
I thought it might be helpful to discuss this section of the Canadian Act to assist the ad hoc committee in its possible future deliberations on the Bill. Section 15(1) of the Canadian Act states that no person is guilty of an offence even where that person reveals “special operational information” if the person establishes that he or she acted in the public interest. “Special operational information” includes classified information about such serious state security issues as the identity of spies, plans of military operations, and information about the operation of intelligence services.
Section 15(2) states that a person acts in the public interest if
(a) the person acts for the purpose of disclosing an offence under an Act of Parliament that he or she reasonably believes has been, is being or is about to be committed by another person in the purported performance of that person’s duties and functions for, or on behalf of, the Government of Canada; and (b) the public interest in the disclosure outweighs the public interest in non-disclosure.
Subsection 15(4) of the Canadian Act contains a set of factors that a court must weigh up when deciding whether the public interest in the disclosure outweighs the public interest in non-disclosure. These factors include:
(a) whether the extent of the disclosure is no more than is reasonably necessary to disclose the alleged offence or prevent the commission or continuation of the alleged offence, as the case may be;
(b) the seriousness of the alleged offence;
(c) whether the person resorted to other reasonably accessible alternatives before making the disclosure and, in doing so, whether the person complied with any relevant guidelines, policies or laws that applied to the person;
(d) whether the person had reasonable grounds to believe that the disclosure would be in the public interest;
(e) the public interest intended to be served by the disclosure;
(f) the extent of the harm or risk of harm created by the disclosure; and
(g) the existence of exigent circumstances justifying the disclosure.
The section also provides for other safeguards that would prevent the disclosure of information that would harm the security of the state without having satisfied the public interest criteria. However, even then these safeguards do not apply if the communication or confirmation of the information was necessary to avoid grievous bodily harm or death.
Were the South African Constitutional Court to be asked to consider whether the drastic infringement on the right to freedom of expression and the right of access to information currently contained in the Secrecy Bill were justified in terms of the limitation clause of our Constitution, it would ask what was “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. It would then have to consider whether the absence of a public interest override defence is usually included in legislation of democratic countries. The Court will probably find that it is usually included, given the fact that the inclusion of such a defence is required for all countries in Europe, endorsed by officials of the United Nations and included in Canadian legislation.
Mr Landers may of course argue that South Africa is a special kind of democracy and that our government requires more stringent secrecy laws to protect it from exposure … I mean the disclosure of sensitive information — even if it is in the public interest to do so. He may argue that we should not be measured against other democracies but rather against only partly democratic or authoritarian countries where secrecy is the norm instead of the exception. But I suspect that such an argument would not be politically palatable. No wonder he is wrongly claiming that including a public interest defence in our Secrecy Bill would be impractical and would not be required by “international practice”.
Source: Constitutionally Speaking
Thursday, September 22, 2011
Nelson Mandela most trusted world figure
More than 51 000 people in 25 countries voted for Nelson Mandela number as one in a new study designed to measure the degree to which a person is liked, respected, admired and trusted. The Reputation Institute released its findings yesterday.
Click here to view the full report.
Source: Nelson Mandela Foundation
Click here to view the full report.
Source: Nelson Mandela Foundation
Zuma's tweets from New York contradict info bill
As President Jacob Zuma navigated his way through New York - from the stock exchange to the United Nations - his Presidency ZA Twitter account mirrored his movements. A picture of the US and South African flags was posted from the NY Stock Exchange, where he rang the closing bell. Then came a tweet about UN acceptance of the National Transitional Council of Libya (even though South Africa had initially taken the unequivocal position not to recognise it).
Next was Zuma's commitment to US President Barack Obama's Open Government Partnership, in which access to information is a key part of the declaration.
More importantly, there was the tweet about the importance of free media. Should we look at this tweet - and Zuma's speech at the partnership launch - for clues to the sudden and surprising withdrawal of the Protection of Information Bill on Tuesday? Clearly, if the bill had come before the National Assembly while Zuma sat in the Waldorf Astoria as a co-signatory to Obama's global partnership, it would have caused embarrassment. It would have been difficult for the president of Africa's largest economy to explain to the "leader of the free world" why he had a bill back home that includes punitive measures against journalists.
Critically, Zuma's speech made direct reference to South African media: "Also key to open government and creating an open society is a free media. We pride ourselves on having freedom of expression and media freedom enshrined in the Constitution. This makes ours a vibrant democracy with a healthy exchange of ideas in society." By becoming a signatory to Obama's partnership, the president and his ANC government will surely have to rethink their position on the info bill altogether. Even if, as it seems, the ANC no longer prides itself on being co-creator of a free media in post-apartheid South Africa.
Source: Times Live
Next was Zuma's commitment to US President Barack Obama's Open Government Partnership, in which access to information is a key part of the declaration.
More importantly, there was the tweet about the importance of free media. Should we look at this tweet - and Zuma's speech at the partnership launch - for clues to the sudden and surprising withdrawal of the Protection of Information Bill on Tuesday? Clearly, if the bill had come before the National Assembly while Zuma sat in the Waldorf Astoria as a co-signatory to Obama's global partnership, it would have caused embarrassment. It would have been difficult for the president of Africa's largest economy to explain to the "leader of the free world" why he had a bill back home that includes punitive measures against journalists.
Critically, Zuma's speech made direct reference to South African media: "Also key to open government and creating an open society is a free media. We pride ourselves on having freedom of expression and media freedom enshrined in the Constitution. This makes ours a vibrant democracy with a healthy exchange of ideas in society." By becoming a signatory to Obama's partnership, the president and his ANC government will surely have to rethink their position on the info bill altogether. Even if, as it seems, the ANC no longer prides itself on being co-creator of a free media in post-apartheid South Africa.
Source: Times Live
Monday, September 19, 2011
Political will needed to stem the tide of tender corruption
A recent Auditor-General's report detailing massive tender corruption across South Africa's nine provinces once again illustrates just how easy it has become to manipulate government contracts. But, worse still, the report only lists tender fraud found in 247 projects worth R6.6-billion in the health and education provincial departments. In some instances, contracts were awarded without even going through the tender process while, in others, contractors delivered incomplete or shoddy work and still managed to receive substantial payments.
As Themba Godi, chairman of the standing committee on public accounts, said after receiving the AG's report last week: "So much has been spent and very little has been delivered." This is, indeed, the crux of the problem. For failure to deliver government infrastructure, particularly in the areas of health and education, goes far beyond the depletion of the public purse. It goes to the heart of service delivery. A clinic not completed in a rural area means that the poorest South Africans are denied access to basic healthcare. And a school that is never completed translates into hundreds of children being taught under trees or in mud structures.
Finance Minister Pravin Gordhan announced earlier this year a range of measures meant to curtail tender fraud. Along with publishing a blacklist of tenderers, Gordhan said Treasury approval would have to be sought for tenders in excess of R10-million. The AG's report shows just how entrenched tender corruption has become and how easy it is for both public servants and unscrupulous contractors to fleece the government. This must then raise the question - even with the purest of intentions and the greatest of will: can the tide be turned on corruption?
Source: Times Live
As Themba Godi, chairman of the standing committee on public accounts, said after receiving the AG's report last week: "So much has been spent and very little has been delivered." This is, indeed, the crux of the problem. For failure to deliver government infrastructure, particularly in the areas of health and education, goes far beyond the depletion of the public purse. It goes to the heart of service delivery. A clinic not completed in a rural area means that the poorest South Africans are denied access to basic healthcare. And a school that is never completed translates into hundreds of children being taught under trees or in mud structures.
Finance Minister Pravin Gordhan announced earlier this year a range of measures meant to curtail tender fraud. Along with publishing a blacklist of tenderers, Gordhan said Treasury approval would have to be sought for tenders in excess of R10-million. The AG's report shows just how entrenched tender corruption has become and how easy it is for both public servants and unscrupulous contractors to fleece the government. This must then raise the question - even with the purest of intentions and the greatest of will: can the tide be turned on corruption?
Source: Times Live
Thursday, September 15, 2011
Operators face showdown at the consumer corral
The National Consumer Commission, established in April to enforce the new Consumer Protection Act, has received objections from all of SA’s big operators, with the exception of Neotel, to the compliance notices it served on them demanding they make the terms of their contracts clearer to consumers.
Head of the commission, Mamodupi Mohlala, initially set a deadline of mid-September for operators to comply with its demands for transparency in advertising, non-automatic renewal of contracts and the ability for consumers to cancel contracts by giving 20 days’ notice, as stipulated by the act. To date, only Neotel has agreed to amend its contracts.
Vodacom recently expressed its opposition to the compliance notices, claiming it was already in talks with the commission regarding amendments to its contracts and advertising. The company’s chief officer for corporate affairs, Portia Maurice, said recently the company was “surprised” to receive a compliance notice because it “already had an amendment process underway and had agreed with [the commission to] an implementation date of 31 October”.
Mohlala says the commission received objection notices from Cell C and MTN on Wednesday, and that it expected objections from Telkom and its mobile arm, 8ta, to follow. The commission has been arguing with Vodacom about issues of quality of service for some time. “In terms of section 54 of the act, which deals with issues of quality of service, a consumer is entitled to receive goods or services at levels to which that consumer is accustomed, or at the levels as stipulated in the consumer’s contract,” Mohlala tells TechCentral.
She says the issue is of growing relevance in light of Vodacom’s recent network failure and the furore earlier this week regarding its announcement that it would be throttling data speeds of heavy users of the BlackBerry Internet Service. Vodacom has since backtracked on its stated plans, with group CEO Pieter Uys blaming miscommunication by its corporate communications department. “In terms of these compliance notices, we as the commission are saying there must be some guarantees with regards to quality of service. Currently, as the operators’ contracts stand, there are no guarantees,” says Mohlala.
She says consumers are expected to “hold up their end of the agreements” by paying for services and paying additional fees in the case of premium services, but there “are no reciprocal guarantees from network operators around quality of service”.
The consumer act specifies that in the event that an operator does not meet the “particular quality-of-service levels that are outlined in a contact”, then the it “must offer the affected consumer a remedy”, she says. If not, “the consumer is entitled to a refund to the extent that they have not received the guaranteed services or quality of service. Consumers must be compensated when operators don’t meet their obligations.”
According to Mohlala, operators have “exclusive control over issues of network coverage and quality of service” and therefore need to give “some sort of commitment to consumers who are paying a lot for those services”.
She says the compliance notices served on the operators also deal with the provisions of section 14 of the act. This refers to the bundling of services. The act says the “bundling of services is not prohibited, but operators must clearly show the benefits of a bundled service to consumers. Over and above that, they must show the financial benefits to the consumer.”
Under the act, operators are obliged to make explicit and explain “in simple terms” what the unbundled costs of a service would be when compared to the bundled offering. “The obvious argument operators are going to put forward is that they don’t have absolute control over the services or over the full value chain of bundled services,” she says. “But we are saying to some extent, in relation to the product and services that they do offer, they have exclusive control over airtime [and] they have a responsibility to demonstrate the benefits of the various elements of the bundled service.”
Mothibi Ramusi, Cell C’s executive head of regulatory affairs, says the company objected to notice it received because it believes there was “no merit in issuing a compliance notice as Cell C’s subscriber agreement is compliant with the act”.
Vodacom’s Maurice says the operator intends to “address the matter” of the compliance notice it received “directly with the commission”. And Robert Madzonga, chief corporate services officer at MTN SA, says the compliance notice called for it to “adopt wording proposed by the commission” in its contracts and that it has “formally objected to the notice on various legitimate grounds”.
“MTN has asked the [national consumer] tribunal to set the notice aside,” Madzonga says. “Amongst other things, MTN contends the notice was issued at a time when the subscriber agreement was in fact compliant; that the notice is based on an outdated and incorrect version of the subscriber agreement; and that the wording proposed in the notice is inappropriate.”
He says that should the tribunal refuse to set aside the notice, “MTN has asked that the terms of the notice ought to be varied so as to allow a proper timeframe for compliance”.
Source: — Craig Wilson, TechCentral
Head of the commission, Mamodupi Mohlala, initially set a deadline of mid-September for operators to comply with its demands for transparency in advertising, non-automatic renewal of contracts and the ability for consumers to cancel contracts by giving 20 days’ notice, as stipulated by the act. To date, only Neotel has agreed to amend its contracts.
Vodacom recently expressed its opposition to the compliance notices, claiming it was already in talks with the commission regarding amendments to its contracts and advertising. The company’s chief officer for corporate affairs, Portia Maurice, said recently the company was “surprised” to receive a compliance notice because it “already had an amendment process underway and had agreed with [the commission to] an implementation date of 31 October”.
Mohlala says the commission received objection notices from Cell C and MTN on Wednesday, and that it expected objections from Telkom and its mobile arm, 8ta, to follow. The commission has been arguing with Vodacom about issues of quality of service for some time. “In terms of section 54 of the act, which deals with issues of quality of service, a consumer is entitled to receive goods or services at levels to which that consumer is accustomed, or at the levels as stipulated in the consumer’s contract,” Mohlala tells TechCentral.
She says the issue is of growing relevance in light of Vodacom’s recent network failure and the furore earlier this week regarding its announcement that it would be throttling data speeds of heavy users of the BlackBerry Internet Service. Vodacom has since backtracked on its stated plans, with group CEO Pieter Uys blaming miscommunication by its corporate communications department. “In terms of these compliance notices, we as the commission are saying there must be some guarantees with regards to quality of service. Currently, as the operators’ contracts stand, there are no guarantees,” says Mohlala.
She says consumers are expected to “hold up their end of the agreements” by paying for services and paying additional fees in the case of premium services, but there “are no reciprocal guarantees from network operators around quality of service”.
The consumer act specifies that in the event that an operator does not meet the “particular quality-of-service levels that are outlined in a contact”, then the it “must offer the affected consumer a remedy”, she says. If not, “the consumer is entitled to a refund to the extent that they have not received the guaranteed services or quality of service. Consumers must be compensated when operators don’t meet their obligations.”
According to Mohlala, operators have “exclusive control over issues of network coverage and quality of service” and therefore need to give “some sort of commitment to consumers who are paying a lot for those services”.
She says the compliance notices served on the operators also deal with the provisions of section 14 of the act. This refers to the bundling of services. The act says the “bundling of services is not prohibited, but operators must clearly show the benefits of a bundled service to consumers. Over and above that, they must show the financial benefits to the consumer.”
Under the act, operators are obliged to make explicit and explain “in simple terms” what the unbundled costs of a service would be when compared to the bundled offering. “The obvious argument operators are going to put forward is that they don’t have absolute control over the services or over the full value chain of bundled services,” she says. “But we are saying to some extent, in relation to the product and services that they do offer, they have exclusive control over airtime [and] they have a responsibility to demonstrate the benefits of the various elements of the bundled service.”
Mothibi Ramusi, Cell C’s executive head of regulatory affairs, says the company objected to notice it received because it believes there was “no merit in issuing a compliance notice as Cell C’s subscriber agreement is compliant with the act”.
Vodacom’s Maurice says the operator intends to “address the matter” of the compliance notice it received “directly with the commission”. And Robert Madzonga, chief corporate services officer at MTN SA, says the compliance notice called for it to “adopt wording proposed by the commission” in its contracts and that it has “formally objected to the notice on various legitimate grounds”.
“MTN has asked the [national consumer] tribunal to set the notice aside,” Madzonga says. “Amongst other things, MTN contends the notice was issued at a time when the subscriber agreement was in fact compliant; that the notice is based on an outdated and incorrect version of the subscriber agreement; and that the wording proposed in the notice is inappropriate.”
He says that should the tribunal refuse to set aside the notice, “MTN has asked that the terms of the notice ought to be varied so as to allow a proper timeframe for compliance”.
Source: — Craig Wilson, TechCentral
Tuesday, September 13, 2011
Vodacom 'spiritually at odds' with Consumer Protection Act
Vodacom's decision to slow down the speed at which BlackBerry users access the internet if they have used more than a 100 megabytes of data a month could be in breach of the "spirit" of the Consumer Protection Act (CPA), analysts say.
The mobile phone company announced on Monday that "the 5% of the base who are not using the service for what it was intended will have their connection speed reduced from 3G to 2G levels". Any BlackBerry user who downloads more than 100MB a month would get remaining data at a slower speed even if the consumer had paid for a 3G phone. BlackBerry enterprise users are not affected.
Vodacom has defended its decision, saying the move was intended "to make sure the vast majority of BlackBerry users could access the internet and BlackBerry services more quickly and are not affected by those who abuse the service". But Plain Language attorney Candice Burt believes there is scope to challenge this new business practice under the CPA. "The CPA provides that a supplier of services must not engage in misleading conduct," she told the Mail & Guardian. "This applies to adverts as well as to contracts. It also places an onus on a supplier to correct any false expectations that consumers may have. We must look at how a consumer would understand the terms 'unlimited browsing' and '3G'," she added.
After the announcement, almost 700 Vodacom customers threatened "war" on the company's Facebook page. Subscribers lambasted the mobile company's decision and threatened to take their business to other mobile operators. "Maybe I should report this to the National Consumer Commission, they're the only one who can bring them to book," wrote Tumelo Mokhele on the Facebook page.
Vodacom spokesperson Richard Boorman acknowledged that there was "huge anger" at the company, but said BlackBerry users misunderstood the move, which was aimed at stopping people downloading excessive amounts of data. Boorman said the company was "finding a way to make sure 95% weren't disadvantaged by small minority". He said that reducing download speeds to 2G would not make accessing the websites on a BlackBerry "dramatically slower" for most users, but it would stop users from downloading movies and streaming video when the free BlackBerry service was designed for normal web browsing. "By doing this the network will become faster," he added.
Sarina Govindsamy, an attorney at Gavin Gow Inc, said the decision was not in the "spirit and ethos of the Consumer Protection Act". "A company may not amend the terms and conditions of a contract after it has been agreed. That would constitute a breach of contract," she said. Boorman denied the company was in breach of contract. "We're not changing the terms and conditions of contracts," he said. However, according to Burt, for Vodacom to invoke existing terms and conditions, the consumer's attention would have to be drawn expressly to the relevant clause in the contract that spoke about misuse of the BlackBerry internet service, and the consumer would have to expressly acknowledge the contents of the clause. "To decide if this change by Vodacom contravenes the CPA, we must look at the subscriber agreement," she said. "The plain language requirement of the CPA also means that the contract must be written in a way that the 'ordinary consumer with minimal experience of the product or service' can understand and use the information without undue effort," Burt added.
Boorman said Vodacom's BlackBerry subscribers are not guaranteed a specific download speed when they sign up, but rather promised free internet service -- to which they still had access, following the decision to limit speeds. "We did this to make sure the vast majority people get what they want," he told the M&G.
IT analyst and World Wide Worx managing director Arthur Goldstuck criticised Vodacom's decision to slow down internet usage after 100MB of data had been used. He said it showed "they do not understand how the South African market is using the internet on mobile phones". But Boorman insisted 100MB was a lot of data. "A hundred megabytes on a BlackBerry is equal to about 400 megabytes on a normal computer because BlackBerry phones compress the size of websites, regardless of whether they were mobile websites or not," he said.
Vodacom may have implemented the speed limit because its technical infrastructure is taking strain. "It may be that Vodacom is trying to contain the high usage because the data network is creaking at the seams," said Goldstuck.
On Vodacom's Facebook page, Jose Antonio De Abreu voiced similar concerns: "This is just a way for Vodacom to hide the fact that they are running out of network capacity. They are trying to hide it buy throttling users to try and cope better".
Vodacom's Boorman denied this, however. "There is no problem with the network," he said, insisting the decision was simply meant to benefit the average user. "There is no internet cap," he reiterated. "Customers will continue to have unlimited internet service." He said the decision was to combat users like the one who posted this comment on my broadband.com internet forum: "In a 24hr period I managed to download a total of 8.1GB of Big Bang Theory episodes on my BB 9300 3G.
According to some opinions BlackBerry isn't the 'slickest' or the 'fastest growing' OS out there but the potential to download a possible 243GB in a 30-day month for R59/month makes a big argument in its [favour]."
Source: Mail & Guardian
The mobile phone company announced on Monday that "the 5% of the base who are not using the service for what it was intended will have their connection speed reduced from 3G to 2G levels". Any BlackBerry user who downloads more than 100MB a month would get remaining data at a slower speed even if the consumer had paid for a 3G phone. BlackBerry enterprise users are not affected.
Vodacom has defended its decision, saying the move was intended "to make sure the vast majority of BlackBerry users could access the internet and BlackBerry services more quickly and are not affected by those who abuse the service". But Plain Language attorney Candice Burt believes there is scope to challenge this new business practice under the CPA. "The CPA provides that a supplier of services must not engage in misleading conduct," she told the Mail & Guardian. "This applies to adverts as well as to contracts. It also places an onus on a supplier to correct any false expectations that consumers may have. We must look at how a consumer would understand the terms 'unlimited browsing' and '3G'," she added.
After the announcement, almost 700 Vodacom customers threatened "war" on the company's Facebook page. Subscribers lambasted the mobile company's decision and threatened to take their business to other mobile operators. "Maybe I should report this to the National Consumer Commission, they're the only one who can bring them to book," wrote Tumelo Mokhele on the Facebook page.
Vodacom spokesperson Richard Boorman acknowledged that there was "huge anger" at the company, but said BlackBerry users misunderstood the move, which was aimed at stopping people downloading excessive amounts of data. Boorman said the company was "finding a way to make sure 95% weren't disadvantaged by small minority". He said that reducing download speeds to 2G would not make accessing the websites on a BlackBerry "dramatically slower" for most users, but it would stop users from downloading movies and streaming video when the free BlackBerry service was designed for normal web browsing. "By doing this the network will become faster," he added.
Sarina Govindsamy, an attorney at Gavin Gow Inc, said the decision was not in the "spirit and ethos of the Consumer Protection Act". "A company may not amend the terms and conditions of a contract after it has been agreed. That would constitute a breach of contract," she said. Boorman denied the company was in breach of contract. "We're not changing the terms and conditions of contracts," he said. However, according to Burt, for Vodacom to invoke existing terms and conditions, the consumer's attention would have to be drawn expressly to the relevant clause in the contract that spoke about misuse of the BlackBerry internet service, and the consumer would have to expressly acknowledge the contents of the clause. "To decide if this change by Vodacom contravenes the CPA, we must look at the subscriber agreement," she said. "The plain language requirement of the CPA also means that the contract must be written in a way that the 'ordinary consumer with minimal experience of the product or service' can understand and use the information without undue effort," Burt added.
Boorman said Vodacom's BlackBerry subscribers are not guaranteed a specific download speed when they sign up, but rather promised free internet service -- to which they still had access, following the decision to limit speeds. "We did this to make sure the vast majority people get what they want," he told the M&G.
IT analyst and World Wide Worx managing director Arthur Goldstuck criticised Vodacom's decision to slow down internet usage after 100MB of data had been used. He said it showed "they do not understand how the South African market is using the internet on mobile phones". But Boorman insisted 100MB was a lot of data. "A hundred megabytes on a BlackBerry is equal to about 400 megabytes on a normal computer because BlackBerry phones compress the size of websites, regardless of whether they were mobile websites or not," he said.
Vodacom may have implemented the speed limit because its technical infrastructure is taking strain. "It may be that Vodacom is trying to contain the high usage because the data network is creaking at the seams," said Goldstuck.
On Vodacom's Facebook page, Jose Antonio De Abreu voiced similar concerns: "This is just a way for Vodacom to hide the fact that they are running out of network capacity. They are trying to hide it buy throttling users to try and cope better".
Vodacom's Boorman denied this, however. "There is no problem with the network," he said, insisting the decision was simply meant to benefit the average user. "There is no internet cap," he reiterated. "Customers will continue to have unlimited internet service." He said the decision was to combat users like the one who posted this comment on my broadband.com internet forum: "In a 24hr period I managed to download a total of 8.1GB of Big Bang Theory episodes on my BB 9300 3G.
According to some opinions BlackBerry isn't the 'slickest' or the 'fastest growing' OS out there but the potential to download a possible 243GB in a 30-day month for R59/month makes a big argument in its [favour]."
Source: Mail & Guardian
Friday, September 9, 2011
Five years in jail an 'appropriate' sentence for McBride
Former Ekurhuleni metro police chief Robert McBride was sentenced to five years’ imprisonment by the Pretoria Magistrate’s Court on Thursday.
Magistrate Peet Johnson sentenced him to two years for driving under the influence of alcohol, and five years for defeating the ends of justice, of which two years were suspended for five years.
Johnson said it was in the interests of society that the court handed down an appropriate sentence. McBride would appeal the sentence. His bail of R1 000 was extended.
Civil rights body AfriForum said the sentence was a victory for justice.
‘No place for dishonesty’
“His sentence sends a strong message to law enforcement officers that there is no place for dishonesty and that they can wear their uniform with pride,” spokesperson Nantes Kelder said.
McBride was supposed to be an example to the community and had the responsibility to abide by the law, which he did not do, said Kelder.
The Congress of the People in Gauteng said McBride’s sentencing showed that no-one was above the law.
“Taxpayers will cherish the completion of the case, as more than R11-million paid by the council for McBride’s legal defence should be paid back,” Cope Ekurhuleni municipal councillor Lesego Sentsho said in a statement.
“In terms of public service statutes, officials found guilty of any offence are required to pay back money provided by the state for legal defence.”
‘I do not have problems with alcohol’
McBride on Thursday denied that he had a problem with alcohol.
He told the court he would comply with a court order which included attending an alcohol rehabilitation programme.
“I will comply even though I’m not happy. I do not have problems with alcohol,” he said.
He told the court he was a tracker and could be used to track rhino poachers. He could also be used to teach in prisons or any underprivileged community as he was a teacher with two BA degrees.
He told the court he believed he did not belong in jail. - Sapa
Source: Mail & Guardian
Magistrate Peet Johnson sentenced him to two years for driving under the influence of alcohol, and five years for defeating the ends of justice, of which two years were suspended for five years.
Johnson said it was in the interests of society that the court handed down an appropriate sentence. McBride would appeal the sentence. His bail of R1 000 was extended.
Civil rights body AfriForum said the sentence was a victory for justice.
‘No place for dishonesty’
“His sentence sends a strong message to law enforcement officers that there is no place for dishonesty and that they can wear their uniform with pride,” spokesperson Nantes Kelder said.
McBride was supposed to be an example to the community and had the responsibility to abide by the law, which he did not do, said Kelder.
The Congress of the People in Gauteng said McBride’s sentencing showed that no-one was above the law.
“Taxpayers will cherish the completion of the case, as more than R11-million paid by the council for McBride’s legal defence should be paid back,” Cope Ekurhuleni municipal councillor Lesego Sentsho said in a statement.
“In terms of public service statutes, officials found guilty of any offence are required to pay back money provided by the state for legal defence.”
‘I do not have problems with alcohol’
McBride on Thursday denied that he had a problem with alcohol.
He told the court he would comply with a court order which included attending an alcohol rehabilitation programme.
“I will comply even though I’m not happy. I do not have problems with alcohol,” he said.
He told the court he was a tracker and could be used to track rhino poachers. He could also be used to teach in prisons or any underprivileged community as he was a teacher with two BA degrees.
He told the court he believed he did not belong in jail. - Sapa
Source: Mail & Guardian
Thursday, September 8, 2011
South Africa: Justice Is Appointed Over Opposition of Civil Groups
President Jacob Zuma appointed Mogoeng Mogoeng as chief justice on Thursday, casting aside accusations that the judge has been lenient on rapists and is homophobic. Social justice, women’s and gay rights groups, opposition parties, three South African bar associations, nine American law professors and three female Nobel laureates had written submissions opposing the nomination.
Source: New York Times
Source: New York Times
Sunday, September 4, 2011
Mampara of the week: Luwellyn Landers
Then, just as the country was lulled into a false sense of security, he announced that there would be no protection for media who published classified documents which expose corruption. They would go to jail and so would anyone else publishing classified information.
Keeping a straight face, he added that there was no "unjustifiable constraint on media freedom or freedom of expression" in the bill. Someone protect our democracy from this Mampara.
Source: Times Live
JSC bruising keeps Justice Mogoeng on the ropes
Justice Mogoeng Mogoeng's interview for the Constitutional Court chief justice position by the Judicial Service Commission in Cape Town on Saturday was no heavyweight fight. Despite the only contender's initial swagger as he entered the Eastern Ballroom of the International Convention Centre at around mid-morning to open his interview with an attack on those, especially the media and legal commentators, who had been critical of his nomination by president Jacob Zuma, this was a mismatch for Mogoeng. One where, especially in the session following lunch, he had to contend with several bruising jabs from commissioners over whether he had the intellectual capacity to be the "flag-bearer of the judiciary"; gender insensitivity; perceived homophobia; and his ethics.
Such was the flurry of punches that, at one point, the contender cracked, snapping at the JSC's chair, deputy chief justice Dikgang Moseneke, to stop being "sarcastic" when he was pushed on his "jurisprudential position" behind dissenting on the Le Roux v Dey Constitutional Court judgment. In that judgment, Mogoeng was the only justice of the 11 who heard the case to hold that it was defamatory to call someone gay. He didn't state why -- casting a shadow over both his judicial rigour and the way his attitude towards gays and lesbians was perceived. When asked about the matter by commissioner Engela Schlemmer, Mogoeng initially admitted, "I think I should have provided reasons. I erred in not providing reasons," he said. He then added he did not have sufficient time to "reflect on the matter" before potentially writing a judgment and hence, had not. When pushed by both Schlemmer and Moseneke on his "jurisprudential position" behind his initial dissent, Mogoeng was initially evasive and eventually cracked when called on the very specificity of the question, snapping at Moseneke to stop being "sarcastic". Eventually, unable to cough up a jurisprudential position, he backtracked, and said: "I say now: I should not have dissented."
It was a telling admission. And a body blow for a potential chief justice hoping to assert his intellect. It caused Koos van der Merwe, the IFP MP on the JSC, to ask Mogoeng if he had a short temper. The judge answered in the negative before being chastised by Van der Merwe for his "arrogance". "I have sat on this commission since the beginning and this is the first time in 15 years that an applicant is so arrogant that he has done what you have done. It points to your unsuitability as a chief justice," said Van der Merwe.
Gender activists in the massed public gallery could be seen visibly squirming as Mogoeng sought to defend his reduction of sentences in various rape cases he had presided over because, he said, rape "varies in degrees". Commissioner Krish Govender had, mindful of the "violence and trauma" inherent in "all" rape incidents, pushed Mogoeng on his reduction of sentences for convicted rapists -- especially since the judge had identified mitigating circumstances which in some cases included the perpetrator being married to the survivor and in another (S v Sebaeng) where the perpetrator had, as Mogoeng noted in his judgment, demonstrated a "tender approach" in raping a seven-year-old. Mogoeng asserted that he had merely noted the "degrees" of rape in his written judgments and also pleaded being a young judge who "was learning from my superiors and I followed my superiors" in reducing sentences. Asked by Moseneke if he would rewrite those judgments, Mogoeng demonstrated one of several Zuma-like moments with a "Maybe. I don't want to put myself on the spot. Maybe."
While Mogoeng was found wanting with rigorous questioning from commissioners such as Govender, Moseneke and Schlemmer, he also undoubtedly had several firmly in his corner. If the JSC interview were a boxing match, then minister Jeff Radebe would undoubtedly be Mogoeng's sweat-dabber in the corner, towel at the ready to dry the brow -- or staunch the blood -- between rounds.
Radebe and the three ANC MPs on the JSC, including deputy ministers Fatima Chohan (home affairs) and Ngoako Ramathlodi (correctional services) together with Advocate Dumisa Ntsebeza (one of four presidential appointees to the JSC) were instrumental in ensuring Mogoeng had breathing space between probing, questioning combinations with much softer questions and observations. After Mogoeng's defence had crumbled following his inability to provide any jurisprudential reasoning behind his dissension in the Le Roux v Dey judgment, Ramathlodi stepped up to note that the judge was a "mirror image" of himself. Both, noted Ramathlodi, had grown up poor, in the rural North West, but had succeeded in becoming "an inspiration" to the rural youth back home.
Earlier in the morning, many of these commissioners had argued against a submission by the DA's Hendrik Schmidt, that discussion should take place about whether nominations for more candidates ought to be reopened. Further discussion on the matter is likely to take place on Sunday at the Grand West in Hotel after the interview of Mogoeng, at the same venue, closes. Yet, despite the obvious partisanship of some members of the JSC, the complete irrelevance of others (especially those from the National Council of Provinces) and Mogoeng's early morning broadside at critics, the prospective chief justice must have felt like being at the end of Muhammed Ali's fists for long periods on Saturday. He was asked about his ethics in not recusing himself in cases prosecuted by his wife (there were no clear guidelines, but he did feel "discomfort" at the time) and his paucity of seminal, reported-upon judgments and ability to inspire and lead the Constitutional Court and the larger judiciary ("I have full confidence in my intellectual depth").
He also attempted to rebut perceptions that he was sympathetic to the executive by citing four cases where he had ruled against government and denied claims that he had a close relationship with Zuma that might have influenced the president's choice. Mogoeng said he had "no relationship whatsoever" with Zuma, and stated that a 2008 meeting with the president -- exposed by the Mail & Guardian -- had been their first and that he had met the president three times since then. But Mogoeng reiterated that he had spoken to Zuma only at their first meeting, and their last meeting, which took place when he was informed of the president's decision to nominate him for the chief justice position. Mogoeng added that he did not believe this would lead to a "corrosion of the separation of powers".
It was a bruising day for Mogoeng, but the bout is not over. The JSC hearing is set to continue on Sunday at 9am.
Source: Mail & Guardian
Such was the flurry of punches that, at one point, the contender cracked, snapping at the JSC's chair, deputy chief justice Dikgang Moseneke, to stop being "sarcastic" when he was pushed on his "jurisprudential position" behind dissenting on the Le Roux v Dey Constitutional Court judgment. In that judgment, Mogoeng was the only justice of the 11 who heard the case to hold that it was defamatory to call someone gay. He didn't state why -- casting a shadow over both his judicial rigour and the way his attitude towards gays and lesbians was perceived. When asked about the matter by commissioner Engela Schlemmer, Mogoeng initially admitted, "I think I should have provided reasons. I erred in not providing reasons," he said. He then added he did not have sufficient time to "reflect on the matter" before potentially writing a judgment and hence, had not. When pushed by both Schlemmer and Moseneke on his "jurisprudential position" behind his initial dissent, Mogoeng was initially evasive and eventually cracked when called on the very specificity of the question, snapping at Moseneke to stop being "sarcastic". Eventually, unable to cough up a jurisprudential position, he backtracked, and said: "I say now: I should not have dissented."
It was a telling admission. And a body blow for a potential chief justice hoping to assert his intellect. It caused Koos van der Merwe, the IFP MP on the JSC, to ask Mogoeng if he had a short temper. The judge answered in the negative before being chastised by Van der Merwe for his "arrogance". "I have sat on this commission since the beginning and this is the first time in 15 years that an applicant is so arrogant that he has done what you have done. It points to your unsuitability as a chief justice," said Van der Merwe.
Gender activists in the massed public gallery could be seen visibly squirming as Mogoeng sought to defend his reduction of sentences in various rape cases he had presided over because, he said, rape "varies in degrees". Commissioner Krish Govender had, mindful of the "violence and trauma" inherent in "all" rape incidents, pushed Mogoeng on his reduction of sentences for convicted rapists -- especially since the judge had identified mitigating circumstances which in some cases included the perpetrator being married to the survivor and in another (S v Sebaeng) where the perpetrator had, as Mogoeng noted in his judgment, demonstrated a "tender approach" in raping a seven-year-old. Mogoeng asserted that he had merely noted the "degrees" of rape in his written judgments and also pleaded being a young judge who "was learning from my superiors and I followed my superiors" in reducing sentences. Asked by Moseneke if he would rewrite those judgments, Mogoeng demonstrated one of several Zuma-like moments with a "Maybe. I don't want to put myself on the spot. Maybe."
While Mogoeng was found wanting with rigorous questioning from commissioners such as Govender, Moseneke and Schlemmer, he also undoubtedly had several firmly in his corner. If the JSC interview were a boxing match, then minister Jeff Radebe would undoubtedly be Mogoeng's sweat-dabber in the corner, towel at the ready to dry the brow -- or staunch the blood -- between rounds.
Radebe and the three ANC MPs on the JSC, including deputy ministers Fatima Chohan (home affairs) and Ngoako Ramathlodi (correctional services) together with Advocate Dumisa Ntsebeza (one of four presidential appointees to the JSC) were instrumental in ensuring Mogoeng had breathing space between probing, questioning combinations with much softer questions and observations. After Mogoeng's defence had crumbled following his inability to provide any jurisprudential reasoning behind his dissension in the Le Roux v Dey judgment, Ramathlodi stepped up to note that the judge was a "mirror image" of himself. Both, noted Ramathlodi, had grown up poor, in the rural North West, but had succeeded in becoming "an inspiration" to the rural youth back home.
Earlier in the morning, many of these commissioners had argued against a submission by the DA's Hendrik Schmidt, that discussion should take place about whether nominations for more candidates ought to be reopened. Further discussion on the matter is likely to take place on Sunday at the Grand West in Hotel after the interview of Mogoeng, at the same venue, closes. Yet, despite the obvious partisanship of some members of the JSC, the complete irrelevance of others (especially those from the National Council of Provinces) and Mogoeng's early morning broadside at critics, the prospective chief justice must have felt like being at the end of Muhammed Ali's fists for long periods on Saturday. He was asked about his ethics in not recusing himself in cases prosecuted by his wife (there were no clear guidelines, but he did feel "discomfort" at the time) and his paucity of seminal, reported-upon judgments and ability to inspire and lead the Constitutional Court and the larger judiciary ("I have full confidence in my intellectual depth").
 |
| Jacob Zuma met Mogoeng Mogoeng for the first time at a dinner in Mafikeng in 2008 |
It was a bruising day for Mogoeng, but the bout is not over. The JSC hearing is set to continue on Sunday at 9am.
Source: Mail & Guardian
Friday, September 2, 2011
Federal Regulators Sue Big Banks Over Mortgages
A bruising legal fight pitting the country’s most powerful banks against the full force of the United States government began Friday, as federal regulators filed suits against 17 financial institutions that sold the mortgage giants Fannie Mae and Freddie Mac nearly $200 billion in mortgage-backed securities that later soured.
The suits are the latest legal salvo fired at the banks accusing them of misdeeds during the housing boom. Investors fled financial shares Friday amid growing concern that the litigation could last for years and undermine earnings and balance sheets in the process. The complaints were filed just as the stock market closed Friday afternoon, but with word leaking out of the impending legal action during the trading session, shares of Bank of America fell more than 8.3 percent, while JPMorgan Chase dropped 4.6 percent and Goldman fell 4.5 percent. “The suits only add to the uncertainty that dogs the industry,” said Mike Mayo, an analyst with Crédit Agricole. “Banks should pay for what they did wrong, but at the same time they shouldn’t be treated as a big piñata that has the effect of delaying the housing recovery. If banks have to pay for loans they made five years ago, are they going to make new ones?”
After the savings and loan crisis in the late 1980s and early 1990s, years of litigation followed. The mortgage bust and the subsequent financial crisis have spawned a similar legal fight, said Jaret Seiberg, a financial policy analyst with MF Global in Washington. “It’s going to be exceedingly difficult and take years to play out,” he said. “There’s not much incentive for either side to settle.” The litigation represents a more intense effort by the federal government to go after the financial services industry for its supposed mortgage failures. Indeed, the cases were brought on the basis of 64 subpoenas issued a year ago, giving the government an edge in its investigation that private investors suing the banks lack.
The Obama administration as well as regulators like the Federal Reserve have been criticized for going too easy on the banks, which benefited from a $700 billion bailout package shortly after the collapse of Lehman Brothers in the autumn 2008. Much of that money has been repaid by the banks — but the rescue of the mortgage giants Fannie and Freddie has already cost taxpayers $153 billion, and the federal government estimates the effort could cost $363 billion through 2013. Even though the banks already face high legal bills from actions brought by other plaintiffs, including private investors, the suits filed Friday could cost the banks far more. In the case against Bank of America, for example, the suit claims that Fannie and Freddie bought more than $57 billion worth of risky mortgage securities from the bank and two companies it also acquired, Merrill Lynch and Countrywide Financial.
In addition to suing the companies, the complaints also identified individuals at many institutions responsible for the machinery of turning subprime mortgages into securities that somehow earned a AAA grade from the rating agencies. The filing did not cite a figure for the total losses the government wanted to recover, but in a similar case brought in July against UBS, the F.H.F.A. is trying to recover $900 million in losses on $4.5 billion in securities. A similar 20 percent claim against Bank of America could equal a $10 billion hit. In a suit that identifies 23 securities that Bank of America sold for $6 billion, the company “caused hundreds of millions of dollars in damages to Fannie Mae and Freddie Mac in an amount to be determined at trial.”
Within minutes of the filing of the suits, several banks responded with a preview of the legal arguments they will make in the coming months, namely that Fannie and Freddie were sophisticated investors who should have known the securities were not without risk, and that the losses were caused not by fraud or misrepresentation but by underlying difficulties in the housing market. In a statement, Bank of America said Fannie and Freddie “claimed to understand the risks inherent in investing in subprime securities and continued to invest heavily in those securities even after their regulator told them they did not have the risk management capabilities to do so.” In spite of that warning, Bank of America said, the government-controlled mortgage giants “are now seeking to hold other market participants responsible for their losses.”
Other large banks also assembled huge amounts of so-called private label mortgage-backed securities for Fannie and Freddie that declined sharply in value after the housing bubble burst in 2007. JPMorgan Chase sold $33 billion, while Morgan Stanley sold over $10 billion and Goldman Sachs sold more than $11 billion. A who’s who of foreign banks were also big bundlers and sellers of these securities, like Deutsche Bank with $14.2 billion, Royal Bank of Scotland at $30.4 billion, and Credit Suisse selling $14.1 billion. All were sued Friday. “We believe the claims brought by the F.H.F.A. are unfounded,” said Frank Kelly, a spokesman for Deutsche Bank. “Fannie Mae and Freddie Mac are the epitome of a sophisticated investor, having issued trillions of dollars of mortgage-backed securities and purchased hundreds of billions of dollars more, often after hand-picking the loans they now claim should not have been included in the offerings.“
Buried in the filings themselves, however, is a damning portrait of the excesses of the housing bubble, when borrowers were able to obtain home loans without basic proof of income or creditworthiness, and banks appeared only too happy to mine profits taking the risky loans and assembling them into securities that could be sold to investors. In the complaint against Goldman Sachs, for example, the suit says that “Goldman was not content to simply let poor loans pass into its securitizations.” In addition, the giant investment bank “took the fraud further, affirmatively seeking to profit from this knowledge.”
When an outside analytics firm, Clayton, identified potential problems in the underlying mortgages Goldman was turning into securities, the suit said, “Goldman simply ignored and did not disclose the red flags revealed by Clayton’s review.” Goldman Sachs declined to comment, as did JPMorgan Chase, Morgan Stanley, Credit Suisse and Citigroup.
Similar behavior in terms of warnings provided by Clayton transpired at Bank of America, Citigroup, Deutsche Bank, RBS and UBS, according to the complaints.
Source: New York Times
The suits are the latest legal salvo fired at the banks accusing them of misdeeds during the housing boom. Investors fled financial shares Friday amid growing concern that the litigation could last for years and undermine earnings and balance sheets in the process. The complaints were filed just as the stock market closed Friday afternoon, but with word leaking out of the impending legal action during the trading session, shares of Bank of America fell more than 8.3 percent, while JPMorgan Chase dropped 4.6 percent and Goldman fell 4.5 percent. “The suits only add to the uncertainty that dogs the industry,” said Mike Mayo, an analyst with Crédit Agricole. “Banks should pay for what they did wrong, but at the same time they shouldn’t be treated as a big piñata that has the effect of delaying the housing recovery. If banks have to pay for loans they made five years ago, are they going to make new ones?”
After the savings and loan crisis in the late 1980s and early 1990s, years of litigation followed. The mortgage bust and the subsequent financial crisis have spawned a similar legal fight, said Jaret Seiberg, a financial policy analyst with MF Global in Washington. “It’s going to be exceedingly difficult and take years to play out,” he said. “There’s not much incentive for either side to settle.” The litigation represents a more intense effort by the federal government to go after the financial services industry for its supposed mortgage failures. Indeed, the cases were brought on the basis of 64 subpoenas issued a year ago, giving the government an edge in its investigation that private investors suing the banks lack.
The Obama administration as well as regulators like the Federal Reserve have been criticized for going too easy on the banks, which benefited from a $700 billion bailout package shortly after the collapse of Lehman Brothers in the autumn 2008. Much of that money has been repaid by the banks — but the rescue of the mortgage giants Fannie and Freddie has already cost taxpayers $153 billion, and the federal government estimates the effort could cost $363 billion through 2013. Even though the banks already face high legal bills from actions brought by other plaintiffs, including private investors, the suits filed Friday could cost the banks far more. In the case against Bank of America, for example, the suit claims that Fannie and Freddie bought more than $57 billion worth of risky mortgage securities from the bank and two companies it also acquired, Merrill Lynch and Countrywide Financial.
In addition to suing the companies, the complaints also identified individuals at many institutions responsible for the machinery of turning subprime mortgages into securities that somehow earned a AAA grade from the rating agencies. The filing did not cite a figure for the total losses the government wanted to recover, but in a similar case brought in July against UBS, the F.H.F.A. is trying to recover $900 million in losses on $4.5 billion in securities. A similar 20 percent claim against Bank of America could equal a $10 billion hit. In a suit that identifies 23 securities that Bank of America sold for $6 billion, the company “caused hundreds of millions of dollars in damages to Fannie Mae and Freddie Mac in an amount to be determined at trial.”
Within minutes of the filing of the suits, several banks responded with a preview of the legal arguments they will make in the coming months, namely that Fannie and Freddie were sophisticated investors who should have known the securities were not without risk, and that the losses were caused not by fraud or misrepresentation but by underlying difficulties in the housing market. In a statement, Bank of America said Fannie and Freddie “claimed to understand the risks inherent in investing in subprime securities and continued to invest heavily in those securities even after their regulator told them they did not have the risk management capabilities to do so.” In spite of that warning, Bank of America said, the government-controlled mortgage giants “are now seeking to hold other market participants responsible for their losses.”
Other large banks also assembled huge amounts of so-called private label mortgage-backed securities for Fannie and Freddie that declined sharply in value after the housing bubble burst in 2007. JPMorgan Chase sold $33 billion, while Morgan Stanley sold over $10 billion and Goldman Sachs sold more than $11 billion. A who’s who of foreign banks were also big bundlers and sellers of these securities, like Deutsche Bank with $14.2 billion, Royal Bank of Scotland at $30.4 billion, and Credit Suisse selling $14.1 billion. All were sued Friday. “We believe the claims brought by the F.H.F.A. are unfounded,” said Frank Kelly, a spokesman for Deutsche Bank. “Fannie Mae and Freddie Mac are the epitome of a sophisticated investor, having issued trillions of dollars of mortgage-backed securities and purchased hundreds of billions of dollars more, often after hand-picking the loans they now claim should not have been included in the offerings.“
Buried in the filings themselves, however, is a damning portrait of the excesses of the housing bubble, when borrowers were able to obtain home loans without basic proof of income or creditworthiness, and banks appeared only too happy to mine profits taking the risky loans and assembling them into securities that could be sold to investors. In the complaint against Goldman Sachs, for example, the suit says that “Goldman was not content to simply let poor loans pass into its securitizations.” In addition, the giant investment bank “took the fraud further, affirmatively seeking to profit from this knowledge.”
When an outside analytics firm, Clayton, identified potential problems in the underlying mortgages Goldman was turning into securities, the suit said, “Goldman simply ignored and did not disclose the red flags revealed by Clayton’s review.” Goldman Sachs declined to comment, as did JPMorgan Chase, Morgan Stanley, Credit Suisse and Citigroup.
Similar behavior in terms of warnings provided by Clayton transpired at Bank of America, Citigroup, Deutsche Bank, RBS and UBS, according to the complaints.
Source: New York Times
Thursday, September 1, 2011
Why Ramatlhodi promotes an autokratic kleptocracy
It is by now trite to note that in South Africa there are very serious, some would say obscene, disparities in wealth between rich and poor, made worse by the recent economic turmoil in the world. More than a million South Africans have lost their jobs over the past two years, joining the roughly 35% of the population that are unemployed or has long since stopped looking for work at all.
Many people continue to live in informal settlements (in shacks that are often flooded and are bitterly cold in winter) and many go to bed hungry. Many cannot afford the pay-as-you-go water and electricity services ostensibly provided to them by the state – if these services are provided to them at all – while many others receive substandard health care and are forced to send their children to dysfunctional schools where teachers are often not in class to teach and where children may well have no access to libraries, laboratories or sufficient computer facilities.
Of course, if one happens to be an ANC leader – inside or outside of government – or if one is one of the captains of industry (who became rich by exploiting black workers during the apartheid era and remain rich today by donating money to the ANC), one would probably not directly be affected by this reality. After all, one will be driving around in a car (who was paid for by tax money that could have fed a starving child) costing more than a million Rand (that is, when one is not renting a fancy car for hundreds of thousands of Rand a year), or one will be living in the Mount Nelson Hotel (if one is not living in a R8 million house provided by the state). Just yesterday it was reported that the state had forked out R183 million on brand new mansions to house cabinet ministers, money that could have been used to house around 2,000 poor families.
It is against this background that one should read the bizarrely immoral opinion article (penned by Ngoako Ramatlhodi, ANC NEC member, chairperson of the ANC National Elections Committee and Deputy Minister of Correctional Services) and published in The Times today. Mr Ramatlhodi probably knows that the credibility of the ANC and the government it leads is being eroded by lavish and wasteful spending on the perks of party leaders and by the constant revelations of government corruption in our media and by the Public Protector.
It is therefore not surprising that he is now using the South African Constitution and our indpendent constitutional institutions as scapegoats to try and divert attention from the failures of the government. Our government is failing to address the most basic needs of the poor while government and party leaders live lavish lifestyles at the expense of taxpayers and of the poor, whose lives could have been improved by the money wasted on extravagant perks and the millionaire lifestyles of ANC leaders.
According to Mr Ramatlhodi the Constitution is deeply flawed because while it bestows political power on the ANC (who by virtue of divine intervention will always represent the interests of all black South Africans even when its leaders steal from the very masses it claims to represent and when these leaders misuse funds – earmarked to address the social and economic inequality in our society - to satisfy their own venal and selfish needs), it also supposedly ”immigrates” substantial power away from the legislature and the executive and vests it in the judiciary, Chapter 9 institutions and civil society movements. He bemoans the fact that the ANC ”embraced what one calls the emptying of the state” and then continues:
"Apartheid forces sought to and succeeded in retaining white domination under a black government. This they achieved by emptying the legislature and executive of real political power. On the other hand, the liberation movement was overwhelmed by a desire to create a society bereft of any form of discrimination and, as a result, made fatal concessions. We thus have a Constitution that reflects the great compromise, a compromise tilted heavily in favour of forces against change."
Thus the Constitution - interpreted and applied by the judiciary, and Chapter 9 bodies such as the Public Protector - as well as civil society groups fighting for real transformation of our society have been allowed to rob the ANC of its power to govern the country through the legislature and the executive, blocking the “fundamental change” required to turn South Africa into a true kleptocracy. (Ok, I paraphrase the honourable Deputy Minister’s words slightly, but pardon me for interpreting this opinion piece as arguing for more power for the ANC to act in the interest of its leaders without having to account to anyone for how it spends and wastes our money for the benefit of the few.)
Mr Ramatlhodi is also upset that people challenge unlawful and unconstitutional actions of the government in our courts and that they dare to take part in democratic debates by expressing views with the aim of trying to influence public opinion for the better of society. God forbid that democracy should actually lead to a situation in which the majority of South Africans might disagree with something the governing party – with its divine right to rule - might have said or done. The ANC can surely not allow democracy actually to, well, work. What would become of the cars, the houses, the tenders, the champagne, the whiskey, the farms, the trips to visit drug-dealing girlfriends in Swiss jails?
The other tactic is to challenge as many policy positions as possible in the courts, where the forces against change still hold relative hegemony. The legislature itself has not escaped the encroaching tendency of the judiciary, with debatable decisions taken by majority views, in some instances. Decisions of the Judicial Services Commission have equally been systematically subjected to judicial reviews. The process of delegitimising the commission and its decisions has been initiated through the instrument of “public opinion”.
These views are not only uninformed and demonstrably wrong; they are also callous and dangerous. Blaming the Constitution, the courts and chapter 9 institutions for the failures of the government sufficiently to change the lives of ordinary citizens who suffered under apartheid is like a man blaming an umbrella for making him wet or a white South African blaming black citizens for apartheid.
First, it is based on the assumption that the government of the day – who currently happens to be led by the ANC – should have a free hand to do what it likes because any check on the exercise of power of the legislature and the executive would turn these branches of government into ineffectual and impotent institution. This is of course nonsense, as the majority party in Parliament can pass any law it wishes – as long as it does not infringe on the rights of the very citizens who vote for it.
Second, it assumes that a majority party will always have the best interest of the country and its people at heart, that it will never act in a selfish or corrupt manner and that it must always be trusted to respect the rights of everyone and to act in a manner that will advance the interests of those who most rely on the state for their survival and well-being. This is a truly bizarre view as governments are formed by people – and not ordinary people but politicians whose job it is to amass power and to act in their own interest while pretending to serve the public - who are not superhuman and will not act like angels unless they are forced to.
Lastly, this assumes that the ANC government actually always acts in the interests of the poor and the marginalised – even when it spends R183 million on new houses for a few cabinet Ministers, when cabinet Ministers stay at the Mount Nelson Hotel at taxpayers’ expense, when its officials enter dubious and probably corrupt leases with well-connected businessmen and waste billions of Rand in the process, money that could have been spent on really making a difference to the lives of those South Africans who are unemployed and depend on the state for its survival and well-being.
The view of the courts expressed in the Ramatlhodi piece is also either shockingly uninformed or deliberately misleading, which is, I guess, understandable as one needs to manufacture an enemy when one is losing the trust of the electorate because one is so obviously acting in a selfish and venal manner to line one’s own pockets to enable one to live a life of luxury at the expense of the poor. If Mr Ramatlhodi had read only a few judgments of the Constitutional Court, he would have known that our highest court – far more than the legislature and the executive – has been acting as a champion of transformation and of the interests of the poor.
If it was not for that court, the government would not have been forced to provide anti-retroviral drugs to poor, mostly black, pregnant women, thus saving the lives of hundreds of thousands of (mostly black) babies – all while people like Mr Ramatlhodi kept criminally silent. How many hundreds of thousands of babies died as a result of this communal silence, Mr Ramatlhodi? He would have known that thousands of people have been protected from unlawful eviction through the intervention of that court.
He would have known that the Constitutional Court has enthusiastically endorsed affirmative action and land reform and has taken the ANC government to task for not doing anything to scrap some of the most scandalous pieces of racist apartheid era legislation. One wonders whether this oversight might have been caused by the fact that leaders were too busy to benefit from tenders and to wine and dine their friends at taxpayer’s expense at the Mount Nelson Hotel or at their government provided mansions to actually care enough to table changes to the oppressive apartheid laws in our democratic Parliament.
He would have known that the Constitutional Court declared invalid sections of the truly shockingly named KwaZulu-Natal Slums Act adopted by the ANC government in that province because that Act tried to punish the landless or homeless poor for being landless or homeless (which is understandable, I guess, because a person like Mr Ramatlhodi would probably not want to be reminded of the landless and the homeless when he is sipping champagne in his R8 million government provided house).
He would also have known – just to be fair – that sometimes the Constitutional Court has not been as progressive in its judgments as some of us would have liked but that this have almost always been when it has endorsed government policies or pieces of legislation that are anti-poor, anti-women or anti- the marginalised and the vulnerable. Thus it found that it was ok for the government to cut off the electricity of destitute people and for the government to have pay-as-you-go electricity meters installed in the homes of Joburg residents – even if this was only done in poor areas where black South Africans live and not in rich areas where the ANC leaders and white people live.
It also found constitutionally valid a law which basically left destitute a women who had looked after her partner for more than ten years because that law only required the estate of a deceased partner to support a women if she had been legally married to her partner. That the ANC of Mr Ramatlhodi would support such a law is probably not surprising, seeing that the ANC President has now nominated a man for Chief Justice who has made the following remarks in a case in which a man was found guilty of raping a innocent and defenceless child (in the case of S v Sebaeng (CA 16/2007) [2007] ZANWHC 25 (22 June 2007) about the “shortcomings” in the victim’s evidence:
"She claims that the sexual intercourse was very painful but there was clearly nothing about her to suggest that she was in any pain when she arrived home and even during her stay there at her grandmother’s home … When she arrived at her grandmother’s home, the only strange things observed and spoken about by those who saw her were the Simba chips, the R30.00 and the 9 o’clock appointment with the Appellant…."
One can safely assume that [the accused] must have been mindful of her tender age and thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and the R30.00.
So, while Mr Ramatlhodi believes we should entrust our legislature and executive with unlimited powers, I do not: not this government, not a DA government not ANY government anywhere in the world. Down that road lies tyranny and oppression of the worst kind. As the ANC government of which Mr Ramatlhodi is a member has demonstrated over and over again, even where the power of a government is limited and even where the Constitution exhorts it to address the needs of the poor and vulnerable, it often acts in the interests of its own members and not that of the broader public whose interests it claims to serve.
Whether the ANC is in power or anyone else is in power, we need the very institutions that Mr Ramatlhodi attacks. These institutions – created by our Constitution – protect us from the government of the day, no matter which party might serve in government. This is true in South Africa as it is true in the United States, France, India or Nigeria. If it was not for institutions like our courts – interpreting and enforcing the progressive provisions of our constitution – and of the Public Protector – exposing the scandalous corruption of Ministers and of government officials - how far away would we have been from Muammar Gaddafi’s Libya?
The “opinion” of Mr Ramatlhodi is no more than an argument in favour of an autocratic kleptocracy in which a few well-connected party leaders and businessmen would live an obscenely opulent life, while the rest of us wouldl try to survive in a world that would be nasty, brutish and probably far too short.
Source: Constitutionally Speaking
Many people continue to live in informal settlements (in shacks that are often flooded and are bitterly cold in winter) and many go to bed hungry. Many cannot afford the pay-as-you-go water and electricity services ostensibly provided to them by the state – if these services are provided to them at all – while many others receive substandard health care and are forced to send their children to dysfunctional schools where teachers are often not in class to teach and where children may well have no access to libraries, laboratories or sufficient computer facilities.
Of course, if one happens to be an ANC leader – inside or outside of government – or if one is one of the captains of industry (who became rich by exploiting black workers during the apartheid era and remain rich today by donating money to the ANC), one would probably not directly be affected by this reality. After all, one will be driving around in a car (who was paid for by tax money that could have fed a starving child) costing more than a million Rand (that is, when one is not renting a fancy car for hundreds of thousands of Rand a year), or one will be living in the Mount Nelson Hotel (if one is not living in a R8 million house provided by the state). Just yesterday it was reported that the state had forked out R183 million on brand new mansions to house cabinet ministers, money that could have been used to house around 2,000 poor families.
It is against this background that one should read the bizarrely immoral opinion article (penned by Ngoako Ramatlhodi, ANC NEC member, chairperson of the ANC National Elections Committee and Deputy Minister of Correctional Services) and published in The Times today. Mr Ramatlhodi probably knows that the credibility of the ANC and the government it leads is being eroded by lavish and wasteful spending on the perks of party leaders and by the constant revelations of government corruption in our media and by the Public Protector.
It is therefore not surprising that he is now using the South African Constitution and our indpendent constitutional institutions as scapegoats to try and divert attention from the failures of the government. Our government is failing to address the most basic needs of the poor while government and party leaders live lavish lifestyles at the expense of taxpayers and of the poor, whose lives could have been improved by the money wasted on extravagant perks and the millionaire lifestyles of ANC leaders.
According to Mr Ramatlhodi the Constitution is deeply flawed because while it bestows political power on the ANC (who by virtue of divine intervention will always represent the interests of all black South Africans even when its leaders steal from the very masses it claims to represent and when these leaders misuse funds – earmarked to address the social and economic inequality in our society - to satisfy their own venal and selfish needs), it also supposedly ”immigrates” substantial power away from the legislature and the executive and vests it in the judiciary, Chapter 9 institutions and civil society movements. He bemoans the fact that the ANC ”embraced what one calls the emptying of the state” and then continues:
"Apartheid forces sought to and succeeded in retaining white domination under a black government. This they achieved by emptying the legislature and executive of real political power. On the other hand, the liberation movement was overwhelmed by a desire to create a society bereft of any form of discrimination and, as a result, made fatal concessions. We thus have a Constitution that reflects the great compromise, a compromise tilted heavily in favour of forces against change."
Thus the Constitution - interpreted and applied by the judiciary, and Chapter 9 bodies such as the Public Protector - as well as civil society groups fighting for real transformation of our society have been allowed to rob the ANC of its power to govern the country through the legislature and the executive, blocking the “fundamental change” required to turn South Africa into a true kleptocracy. (Ok, I paraphrase the honourable Deputy Minister’s words slightly, but pardon me for interpreting this opinion piece as arguing for more power for the ANC to act in the interest of its leaders without having to account to anyone for how it spends and wastes our money for the benefit of the few.)
Mr Ramatlhodi is also upset that people challenge unlawful and unconstitutional actions of the government in our courts and that they dare to take part in democratic debates by expressing views with the aim of trying to influence public opinion for the better of society. God forbid that democracy should actually lead to a situation in which the majority of South Africans might disagree with something the governing party – with its divine right to rule - might have said or done. The ANC can surely not allow democracy actually to, well, work. What would become of the cars, the houses, the tenders, the champagne, the whiskey, the farms, the trips to visit drug-dealing girlfriends in Swiss jails?
The other tactic is to challenge as many policy positions as possible in the courts, where the forces against change still hold relative hegemony. The legislature itself has not escaped the encroaching tendency of the judiciary, with debatable decisions taken by majority views, in some instances. Decisions of the Judicial Services Commission have equally been systematically subjected to judicial reviews. The process of delegitimising the commission and its decisions has been initiated through the instrument of “public opinion”.
These views are not only uninformed and demonstrably wrong; they are also callous and dangerous. Blaming the Constitution, the courts and chapter 9 institutions for the failures of the government sufficiently to change the lives of ordinary citizens who suffered under apartheid is like a man blaming an umbrella for making him wet or a white South African blaming black citizens for apartheid.
First, it is based on the assumption that the government of the day – who currently happens to be led by the ANC – should have a free hand to do what it likes because any check on the exercise of power of the legislature and the executive would turn these branches of government into ineffectual and impotent institution. This is of course nonsense, as the majority party in Parliament can pass any law it wishes – as long as it does not infringe on the rights of the very citizens who vote for it.
Second, it assumes that a majority party will always have the best interest of the country and its people at heart, that it will never act in a selfish or corrupt manner and that it must always be trusted to respect the rights of everyone and to act in a manner that will advance the interests of those who most rely on the state for their survival and well-being. This is a truly bizarre view as governments are formed by people – and not ordinary people but politicians whose job it is to amass power and to act in their own interest while pretending to serve the public - who are not superhuman and will not act like angels unless they are forced to.
Lastly, this assumes that the ANC government actually always acts in the interests of the poor and the marginalised – even when it spends R183 million on new houses for a few cabinet Ministers, when cabinet Ministers stay at the Mount Nelson Hotel at taxpayers’ expense, when its officials enter dubious and probably corrupt leases with well-connected businessmen and waste billions of Rand in the process, money that could have been spent on really making a difference to the lives of those South Africans who are unemployed and depend on the state for its survival and well-being.
The view of the courts expressed in the Ramatlhodi piece is also either shockingly uninformed or deliberately misleading, which is, I guess, understandable as one needs to manufacture an enemy when one is losing the trust of the electorate because one is so obviously acting in a selfish and venal manner to line one’s own pockets to enable one to live a life of luxury at the expense of the poor. If Mr Ramatlhodi had read only a few judgments of the Constitutional Court, he would have known that our highest court – far more than the legislature and the executive – has been acting as a champion of transformation and of the interests of the poor.
If it was not for that court, the government would not have been forced to provide anti-retroviral drugs to poor, mostly black, pregnant women, thus saving the lives of hundreds of thousands of (mostly black) babies – all while people like Mr Ramatlhodi kept criminally silent. How many hundreds of thousands of babies died as a result of this communal silence, Mr Ramatlhodi? He would have known that thousands of people have been protected from unlawful eviction through the intervention of that court.
He would have known that the Constitutional Court has enthusiastically endorsed affirmative action and land reform and has taken the ANC government to task for not doing anything to scrap some of the most scandalous pieces of racist apartheid era legislation. One wonders whether this oversight might have been caused by the fact that leaders were too busy to benefit from tenders and to wine and dine their friends at taxpayer’s expense at the Mount Nelson Hotel or at their government provided mansions to actually care enough to table changes to the oppressive apartheid laws in our democratic Parliament.
He would have known that the Constitutional Court declared invalid sections of the truly shockingly named KwaZulu-Natal Slums Act adopted by the ANC government in that province because that Act tried to punish the landless or homeless poor for being landless or homeless (which is understandable, I guess, because a person like Mr Ramatlhodi would probably not want to be reminded of the landless and the homeless when he is sipping champagne in his R8 million government provided house).
He would also have known – just to be fair – that sometimes the Constitutional Court has not been as progressive in its judgments as some of us would have liked but that this have almost always been when it has endorsed government policies or pieces of legislation that are anti-poor, anti-women or anti- the marginalised and the vulnerable. Thus it found that it was ok for the government to cut off the electricity of destitute people and for the government to have pay-as-you-go electricity meters installed in the homes of Joburg residents – even if this was only done in poor areas where black South Africans live and not in rich areas where the ANC leaders and white people live.
It also found constitutionally valid a law which basically left destitute a women who had looked after her partner for more than ten years because that law only required the estate of a deceased partner to support a women if she had been legally married to her partner. That the ANC of Mr Ramatlhodi would support such a law is probably not surprising, seeing that the ANC President has now nominated a man for Chief Justice who has made the following remarks in a case in which a man was found guilty of raping a innocent and defenceless child (in the case of S v Sebaeng (CA 16/2007) [2007] ZANWHC 25 (22 June 2007) about the “shortcomings” in the victim’s evidence:
"She claims that the sexual intercourse was very painful but there was clearly nothing about her to suggest that she was in any pain when she arrived home and even during her stay there at her grandmother’s home … When she arrived at her grandmother’s home, the only strange things observed and spoken about by those who saw her were the Simba chips, the R30.00 and the 9 o’clock appointment with the Appellant…."
One can safely assume that [the accused] must have been mindful of her tender age and thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and the R30.00.
So, while Mr Ramatlhodi believes we should entrust our legislature and executive with unlimited powers, I do not: not this government, not a DA government not ANY government anywhere in the world. Down that road lies tyranny and oppression of the worst kind. As the ANC government of which Mr Ramatlhodi is a member has demonstrated over and over again, even where the power of a government is limited and even where the Constitution exhorts it to address the needs of the poor and vulnerable, it often acts in the interests of its own members and not that of the broader public whose interests it claims to serve.
Whether the ANC is in power or anyone else is in power, we need the very institutions that Mr Ramatlhodi attacks. These institutions – created by our Constitution – protect us from the government of the day, no matter which party might serve in government. This is true in South Africa as it is true in the United States, France, India or Nigeria. If it was not for institutions like our courts – interpreting and enforcing the progressive provisions of our constitution – and of the Public Protector – exposing the scandalous corruption of Ministers and of government officials - how far away would we have been from Muammar Gaddafi’s Libya?
The “opinion” of Mr Ramatlhodi is no more than an argument in favour of an autocratic kleptocracy in which a few well-connected party leaders and businessmen would live an obscenely opulent life, while the rest of us wouldl try to survive in a world that would be nasty, brutish and probably far too short.
Source: Constitutionally Speaking
Ngoako Ramatlhodi: Opinion: ANC's fatal concessions
We have a Constitution celebrated as the best in the world. Some would say it is the most progressive, while others would call it the most liberal. A brief analysis of the conditions and forces that gave birth to our Constitution seems to be in order. In case we do not remember, the collapse of the then Soviet Union provided the most immediate catalyst to the process of negotiations for a new and democratic South Africa. In apartheid South Africa in the late 1980s, the regime could only keep a modicum of law and order through a state of emergency. The masses were no longer willing to be ruled in the same old way.
An orderly retreat for the regime meant giving up elements of political power to the black majority, while immigrating substantial power away from the legislature and the executive and vesting it in the judiciary, Chapter 9 institutions and civil society movements.
Interestingly, and perhaps reflecting the balance of forces at the time, the movement was willing to make this fundamental and substantive concession. However, the concessions described cannot be explained only as a reflection orresult of a balance of forces at the time. In this regard, one ventures to suggest that the negative experience of the apartheid government by the oppressed might explain the ease with which the liberation movement embraced what one calls the emptying of the state.
Apartheid forces sought to and succeeded in retaining white domination under a black government. This they achieved by emptying the legislature and executive of real political power. On the other hand, the liberation movement was overwhelmed by a desire to create a society bereft of any form of discrimination and, as a result, made fatal concessions.
We thus have a Constitution that reflects the great compromise, a compromise tilted heavily in favour of forces against change. However, there is a strong body of thought arguing the view that our Constitution is transformative. In this regard, a point needs to be made that a constitution can either be progressive or reactionary, depending on the balance of forces in the society it governs.
In our case, the black majority enjoys empty political power while forces against change reign supreme in the economy, judiciary, public opinion and civil society. The old order has built a fortified front line in the mentioned forums. Given massive resources deriving from ownership of the economy, forces against change are able to finance their programmes and projects aimed at defending the status quo. As a result, formal political rights conferred on blacks can be exercised only within the parameters of the old apartheid economic relations. This imbalance is reflected across the length and breadth of the country in economic, social and even political terms to some extent.
The objective of protecting white economic interests, having been achieved with the adoption of the new Constitution, a grand and total strategy to entrench it for all times, was rolled out. In this regard, power was systematically taken out of the legislature and the executive to curtail efforts and initiatives aimed at inducing fundamental changes. In this way, elections would be regular rituals handing empty victories to the ruling party.
Regarding the judiciary, a two-pronged strategy is evident. The first and foremost is to frustrate the transformation agenda by downplaying requirements of gender and colour representation. Many obstacles, such as comments from white-dominated law societies, have to be taken into account when final decisions are made by the Judicial Service Commission. The subtext of this is to ensure that in the inevitable event of these appointments being made, the new appointees are expropriated by the system in place. This is done through the application of an unwritten plethora of rules during the initiation of new appointees.
The other tactic is to challenge as many policy positions as possible in the courts, where the forces against change still hold relative hegemony. The legislature itself has not escaped the encroaching tendency of the judiciary, with debatable decisions taken by majority views, in some instances. Decisions of the Judicial Services Commission have equally been systematically subjected to judicial reviews. The process of delegitimising the commission and its decisions has been initiated through the instrument of "public opinion".
At an ideological level, the public sector under the control of the black majority is posited as inefficient, corrupt and not worthy of any trust. This manifests itself in the form of vulgar and at times subtle racism. This means that, in our country, capital also has colour, as was the case under colonialism of a special type. It is, therefore, not surprising that any black person doing business with government exposes himself or herself to extraordinary scrutiny. This way the government is compelled to retain contracts with established white business. When the government employs black people in senior positions, it is seen as cadre deployment. When whites are employed in the private sector and public areas controlled by the opposition, it is lauded as wise skill deployment.
In the view of the dominant but seriously contested ideology, the private sector is promoted as the ultimate panacea for all societal ills. Public opinion, which in fact is the opinion of the private sector, is deployed to propagate this world view. In this context, any different opinion is immediately discredited as pro-government and therefore unreliable propaganda to be dismissed. In this regard, it is interesting to note that even the public broadcaster has been compelled to succumb to the power of hegemonic forces. To remain credible it has to be seen to be critical of the government of the day, except in areas controlled by the opposition. To criticise the private sector is to enter taboo land and to commit an unforgivable sin.
Seventeen years later, a moment has arrived for an honest collective reflection of the state of the nation and the common future we are duty-bound to build, as failure to do so would lead to colossal destruction of the country. One is initiating this reflection in the context of the foregoing analysis. In the 17 years, we have witnessed sustained and relentless efforts to immigrate the little power left with the executive and the legislature to civil society and the judiciary.
The main drivers in this process are the opposition and civil society, who feel relatively strong in those fronts, given the mainly still untransformed judiciary. The opposition to the judiciary itself and the bashing of the Judicial Service Commission should be understood in this context.
Source: Times Live
An orderly retreat for the regime meant giving up elements of political power to the black majority, while immigrating substantial power away from the legislature and the executive and vesting it in the judiciary, Chapter 9 institutions and civil society movements.
Interestingly, and perhaps reflecting the balance of forces at the time, the movement was willing to make this fundamental and substantive concession. However, the concessions described cannot be explained only as a reflection orresult of a balance of forces at the time. In this regard, one ventures to suggest that the negative experience of the apartheid government by the oppressed might explain the ease with which the liberation movement embraced what one calls the emptying of the state.
Apartheid forces sought to and succeeded in retaining white domination under a black government. This they achieved by emptying the legislature and executive of real political power. On the other hand, the liberation movement was overwhelmed by a desire to create a society bereft of any form of discrimination and, as a result, made fatal concessions.
We thus have a Constitution that reflects the great compromise, a compromise tilted heavily in favour of forces against change. However, there is a strong body of thought arguing the view that our Constitution is transformative. In this regard, a point needs to be made that a constitution can either be progressive or reactionary, depending on the balance of forces in the society it governs.
In our case, the black majority enjoys empty political power while forces against change reign supreme in the economy, judiciary, public opinion and civil society. The old order has built a fortified front line in the mentioned forums. Given massive resources deriving from ownership of the economy, forces against change are able to finance their programmes and projects aimed at defending the status quo. As a result, formal political rights conferred on blacks can be exercised only within the parameters of the old apartheid economic relations. This imbalance is reflected across the length and breadth of the country in economic, social and even political terms to some extent.
The objective of protecting white economic interests, having been achieved with the adoption of the new Constitution, a grand and total strategy to entrench it for all times, was rolled out. In this regard, power was systematically taken out of the legislature and the executive to curtail efforts and initiatives aimed at inducing fundamental changes. In this way, elections would be regular rituals handing empty victories to the ruling party.
Regarding the judiciary, a two-pronged strategy is evident. The first and foremost is to frustrate the transformation agenda by downplaying requirements of gender and colour representation. Many obstacles, such as comments from white-dominated law societies, have to be taken into account when final decisions are made by the Judicial Service Commission. The subtext of this is to ensure that in the inevitable event of these appointments being made, the new appointees are expropriated by the system in place. This is done through the application of an unwritten plethora of rules during the initiation of new appointees.
The other tactic is to challenge as many policy positions as possible in the courts, where the forces against change still hold relative hegemony. The legislature itself has not escaped the encroaching tendency of the judiciary, with debatable decisions taken by majority views, in some instances. Decisions of the Judicial Services Commission have equally been systematically subjected to judicial reviews. The process of delegitimising the commission and its decisions has been initiated through the instrument of "public opinion".
At an ideological level, the public sector under the control of the black majority is posited as inefficient, corrupt and not worthy of any trust. This manifests itself in the form of vulgar and at times subtle racism. This means that, in our country, capital also has colour, as was the case under colonialism of a special type. It is, therefore, not surprising that any black person doing business with government exposes himself or herself to extraordinary scrutiny. This way the government is compelled to retain contracts with established white business. When the government employs black people in senior positions, it is seen as cadre deployment. When whites are employed in the private sector and public areas controlled by the opposition, it is lauded as wise skill deployment.
In the view of the dominant but seriously contested ideology, the private sector is promoted as the ultimate panacea for all societal ills. Public opinion, which in fact is the opinion of the private sector, is deployed to propagate this world view. In this context, any different opinion is immediately discredited as pro-government and therefore unreliable propaganda to be dismissed. In this regard, it is interesting to note that even the public broadcaster has been compelled to succumb to the power of hegemonic forces. To remain credible it has to be seen to be critical of the government of the day, except in areas controlled by the opposition. To criticise the private sector is to enter taboo land and to commit an unforgivable sin.
Seventeen years later, a moment has arrived for an honest collective reflection of the state of the nation and the common future we are duty-bound to build, as failure to do so would lead to colossal destruction of the country. One is initiating this reflection in the context of the foregoing analysis. In the 17 years, we have witnessed sustained and relentless efforts to immigrate the little power left with the executive and the legislature to civil society and the judiciary.
The main drivers in this process are the opposition and civil society, who feel relatively strong in those fronts, given the mainly still untransformed judiciary. The opposition to the judiciary itself and the bashing of the Judicial Service Commission should be understood in this context.
Source: Times Live
Norway to speak for SA as Zuma boycotts Libya meeting
South Africa and Norway came closer to mending the gap between the two countries on their different stances on Libya, with Norwegian Prime Minister Jens Stoltenberg undertaking to carry the South African and the African Union (AU) message to a meeting of world leaders in Paris on how to restore normality to Libya. President Jacob Zuma, who is on a state visit to Norway, turned down an invite to Paris, where French President Nicholas Sarkozy is hosting the meeting to discuss Libya's future from Thursday.
Norway formally recognised the National Transitional Council (NTC) as the "legitimate governing authority" of Libya two weeks ago. In a strictly managed press conference in the Norwegian capital of Oslo on Thursday morning, Zuma told journalists that South Africa and Norway were "finding each other" on Libya. "We are coming together on what should happen," he said. "In Libya, because of its unique circumstances, we're calling for an inclusive government. We agree on that but we also agree that that process must not be taken away from the UN [United Nations]. It is a UN process and the AU must support it,' said Zuma. He declined an invitation to the Paris meeting mainly because of South Africa's unhappiness with the Nato bombings in the country. Without naming the countries, but generally understood to be referring to France and Britain, who led the military strikes, Zuma blamed leaders of the West for not respecting the AU's road map on Libya. The AU had already taken its resolution for a peaceful solution when the UN followed with its own, disregarding the African leaders' process, he said. Even then, South Africa cooperated. "When the Libyan question emerged we were all together, we were part of the UN resolution, but that resolution was interpreted differently. We had individual countries, too many people, taking over the process". Now that the NTC [the rebel's national transitional council] has taken over a large part of Libya, the UN must take the process. We can't have individual countries taking over the process," said Zuma.
The bombing of Libya did not tally with the requirements of the UN's resolution to protect civilians, Zuma said. "If any measure of military would be used, it was to help to protect expats, as we understood it. Instead of protecting people it became the bombing [and] a cover for the other group [the rebels] to advance". Libya's rebels succeeded in taking over much of Libya largely because of a backing by Nato air strikes. On their own, the situation could have been different for the NTC.
Norway seemed convinced. Stoltenberg told the media that Zuma's views were "interesting" because he was "so close to developments in Libya and Africa". Stoltenberg agreed that the military intervention in Libya created unnecessary tension and blocked the way for what could have been a peaceful settlement, but the Norwegian Prime Minister expressed a wish to bury the hatchet on the matter. "The use of military force is always controversial, but now is not the time to discuss what could have happened if we did things differently. It is time to move on. That is the only way we can help build a democratic country that can respect human rights," said Stoltenberg, who encouraged cooperation between the UN and the AU.
Delegates from 60 countries are taking part in the Libyan talks in Paris, with the world eager to hear the NTC's plans for the north African country and if the rebel group can live up to the expectations of a new democratic Libya that respects human rights. The NTC expressed its wish to hold elections within 18 months.
Zuma is leading a delegation of government ministers and about 50 business representatives on a state visit to Norway that seeks to strengthen trade relations with one of Europe's smaller, but wealthy nations.
Source: Mail & Guardian
Norway formally recognised the National Transitional Council (NTC) as the "legitimate governing authority" of Libya two weeks ago. In a strictly managed press conference in the Norwegian capital of Oslo on Thursday morning, Zuma told journalists that South Africa and Norway were "finding each other" on Libya. "We are coming together on what should happen," he said. "In Libya, because of its unique circumstances, we're calling for an inclusive government. We agree on that but we also agree that that process must not be taken away from the UN [United Nations]. It is a UN process and the AU must support it,' said Zuma. He declined an invitation to the Paris meeting mainly because of South Africa's unhappiness with the Nato bombings in the country. Without naming the countries, but generally understood to be referring to France and Britain, who led the military strikes, Zuma blamed leaders of the West for not respecting the AU's road map on Libya. The AU had already taken its resolution for a peaceful solution when the UN followed with its own, disregarding the African leaders' process, he said. Even then, South Africa cooperated. "When the Libyan question emerged we were all together, we were part of the UN resolution, but that resolution was interpreted differently. We had individual countries, too many people, taking over the process". Now that the NTC [the rebel's national transitional council] has taken over a large part of Libya, the UN must take the process. We can't have individual countries taking over the process," said Zuma.
The bombing of Libya did not tally with the requirements of the UN's resolution to protect civilians, Zuma said. "If any measure of military would be used, it was to help to protect expats, as we understood it. Instead of protecting people it became the bombing [and] a cover for the other group [the rebels] to advance". Libya's rebels succeeded in taking over much of Libya largely because of a backing by Nato air strikes. On their own, the situation could have been different for the NTC.
Norway seemed convinced. Stoltenberg told the media that Zuma's views were "interesting" because he was "so close to developments in Libya and Africa". Stoltenberg agreed that the military intervention in Libya created unnecessary tension and blocked the way for what could have been a peaceful settlement, but the Norwegian Prime Minister expressed a wish to bury the hatchet on the matter. "The use of military force is always controversial, but now is not the time to discuss what could have happened if we did things differently. It is time to move on. That is the only way we can help build a democratic country that can respect human rights," said Stoltenberg, who encouraged cooperation between the UN and the AU.
Delegates from 60 countries are taking part in the Libyan talks in Paris, with the world eager to hear the NTC's plans for the north African country and if the rebel group can live up to the expectations of a new democratic Libya that respects human rights. The NTC expressed its wish to hold elections within 18 months.
Zuma is leading a delegation of government ministers and about 50 business representatives on a state visit to Norway that seeks to strengthen trade relations with one of Europe's smaller, but wealthy nations.
Source: Mail & Guardian
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