The section of the Judges' Remuneration and Conditions of Employment Act, on which President Jacob Zuma relied to extend Chief Justice Sandile Ngcobo's term of office, was "almost certainly unconstitutional", constitutional expert Pierre de Vos said on Thursday. De Vos said on his blog site Constitutionally Speaking that Ngcobo had "unwisely" accepted Zuma's offer to extend his term of office.
Zuma recently extended Ngcobo's term for five years after being told it would expire at midnight on August 14. De Vos said Zuma had merely informed political parties and the Judicial Service Commission (JSC) about this decision. This was followed by a Constitutional Court challenge brought by the Justice Alliance of SA (Jasa), Freedom Under Law (FUL), the Centre for Applied Legal Studies (Cals), and Council for the Advancement of the SA Constitution (Casac). Despite an urgent remedying Bill having been tabled in Parliament, the case was heard on July 18 but the court had yet to pronounce on the matter. The applicants contended that Section 8(a) of the Act was inconsistent with the Constitution because Section 176(1) of the Constitution provided for an Act of Parliament -- and only an Act of Parliament -- to extend the terms of office of any Constitutional Court judge.
The second reason was that the delegation of power by Parliament to the president was too wide and provided no guidelines for the exercise of the power. It was also submitted that Section 176(1) precluded the extension of the term of office of a particular Constitutional Court judge, including the chief justice, as distinct from extending the terms of all Constitutional Court judges. The fourth argument was that, even if the president had the power to extend the term of office of the chief justice, the Constitution placed an obligation on that office to consult with the JSC and political parties before making any extension.
De Vos said the inevitable controversy that resulted threatened the integrity of both the office of the chief justice and the incumbent.
Playing party politics
"The government made things worse by refusing to admit that the section on which the president had relied might be constitutionally problematic, and by then trying to play party politics with the extension by suggesting that those who were challenging the constitutionality of Section 8(a) were motivated by a hatred for the chief justice."
With the issue having been politicised and personalised, Ngcobo was placed in an almost impossible situation, De Vos said.
On Wednesday, Justice and Constitutional Development Minister Jeff Radebe announced that Ngcobo had withdrawn his decision to accept the extension of his term of office, and Zuma had accepted this. Ngcobo had taken the decision to protect the integrity of the office of the chief justice and the esteem of the judiciary. "Chief Justice Ngcobo said he found it undesirable for a chief justice to be a party in litigation involving the question of whether or not he or she should continue to hold office, as this detracts from the integrity of the office of the chief justice and the esteem with which it is held," Radebe said.
De Vos said government's original intransigent stance had threatened to destroy the integrity of a judge who had served South Africa with distinction. "By then -- belatedly -- proposing an amendment to the Act that would only extend the term of office of the chief justice and the president of the Supreme Court of Appeal (SCA) ... Radebe further complicated matters as it was far from clear that this new proposal would pass constitutional muster."
Vos questioned why the justice minister and the president had not thought -- a year or two ago -- whether Section 8(a) was constitutional, and what other legal mechanism could be used to extend the term of the chief justice. "How can one govern a country when one does things at the last minute in the hope that one can bluster one's way through by denigrating those who insist on upholding the Constitution? By resigning, Chief Justice Ngcobo is displaying the kind of integrity and respect for his office and for that of the Constitutional Court that those of us who have always admired him, came to expect from him."
Vos said the big question now was who Zuma would appoint to the position. Also on Thursday, Casac said Ngcobo had served the Constitutional Court, the judiciary, and the people of South Africa with great skill, ability, and dignity. "We are aware that this would have been a very difficult decision for the chief justice to take."
It was unfortunate that government's failure to deal with the proposed extension in a constitutionally compliant manner had created the conditions for Ngcobo to take this decision. In the legal challenge, Casac had made it clear it was not taking issue with the person of the chief justice. It was the use of Section 8(a) that was the focus of the challenge. The court's decision would provide clarity on the process to be followed in any extension of a term of office of a chief justice in future. "We trust that the president will now follow the provisions of the Constitution in properly consulting with the JSC and the political parties represented in the National Assembly before appointing a new chief justice," Casac said.
Source: Mail & Guardian
Thursday, July 28, 2011
Wednesday, July 27, 2011
South Africa: Survey on Schools Details Corruption and Worries
A major survey of teachers, students and principals in South Africa’s public schools by Transparency International found that a third of principals believed the highest corruption risk was embezzlement at the provincial level, in textbook procurement and school construction. The report also found that a quarter of students said schools were unsafe, with rape and violence major problems, while half the students said they did not always have a desk.
Source: New York Times
Source: New York Times
Friday, July 22, 2011
Foreclosure Fraud Victims Lose Their Shirt and Their Homes
He was their last hope—about 250 Southern California homeowners facing foreclosure and eviction believed him when he said he could save their homes. But in reality, he was their worst nightmare—he ended up fleecing the homeowners for approximately $1 million…and not a single home was saved in the process.
Last week, Jeff McGrue, owner of a Los Angeles-area foreclosure relief business, was sentenced to 25 years in prison for defrauding people who were at the end of their rope. Even the federal judge who sentenced him called him “heartless.”
It all started in late 2007, when McGrue—and several other conspirators who have pled guilty—orchestrated the scheme primarily through his company Gateway International. He paid unwitting real estate agents and others to serve as “consultants” to recruit customers who were facing foreclosure or were “upside-down” on their mortgages—meaning they owed more than their homes were worth. Many of the customers didn’t understand English or the contracts they were signing.
How the scam worked. McGrue and associates told the homeowners that “bonded promissory notes” drawn on a U.S. Treasury Department account would be sent to lenders to pay off mortgage loans and stop foreclosure proceedings; that lenders were required by law to accept the notes; and that homeowners could buy their homes back from Gateway and receive $25,000, regardless of whether they decided to re-purchase.
The payback for McGrue? The homeowners had to fork over an upfront fee ranging from $1,500 to $2,000…sign over the titles of their homes to Gateway…and pay Gateway half of their previous mortgage amount as rent for as long as they lived in the house.
Of course, nothing that McGrue told his victims was true: he didn’t own any bonds or have a U.S. Treasury account, plus the Treasury doesn’t even maintain accounts that can be used to make third-party payments. Lenders weren’t legally obligated to accept bonded promissory notes, which were worthless anyway. And Gateway International had no intention of selling back the properties to the homeowners. Evidence shown at McGrue’s trial revealed that it was his intent to re-sell the homes, once they were titled in Gateway’s name, to unsuspecting buyers.
The FBI began its investigation in 2008, after receiving a complaint from one of the victims.
During these uncertain economic times, there are many unscrupulous people looking to line their pockets at the expense of others’ misfortunes. One of the most effective ways to defend yourself against foreclosure fraud is awareness. According to the Federal Trade Commission, if you or someone you know is looking for a loan modification or other help to save a home, avoid any business that:
Contact your local authorities or your state’s attorney general if you think you’ve been a victim of foreclosure fraud.
Source: FBI
Last week, Jeff McGrue, owner of a Los Angeles-area foreclosure relief business, was sentenced to 25 years in prison for defrauding people who were at the end of their rope. Even the federal judge who sentenced him called him “heartless.”
It all started in late 2007, when McGrue—and several other conspirators who have pled guilty—orchestrated the scheme primarily through his company Gateway International. He paid unwitting real estate agents and others to serve as “consultants” to recruit customers who were facing foreclosure or were “upside-down” on their mortgages—meaning they owed more than their homes were worth. Many of the customers didn’t understand English or the contracts they were signing.
How the scam worked. McGrue and associates told the homeowners that “bonded promissory notes” drawn on a U.S. Treasury Department account would be sent to lenders to pay off mortgage loans and stop foreclosure proceedings; that lenders were required by law to accept the notes; and that homeowners could buy their homes back from Gateway and receive $25,000, regardless of whether they decided to re-purchase.
The payback for McGrue? The homeowners had to fork over an upfront fee ranging from $1,500 to $2,000…sign over the titles of their homes to Gateway…and pay Gateway half of their previous mortgage amount as rent for as long as they lived in the house.
Of course, nothing that McGrue told his victims was true: he didn’t own any bonds or have a U.S. Treasury account, plus the Treasury doesn’t even maintain accounts that can be used to make third-party payments. Lenders weren’t legally obligated to accept bonded promissory notes, which were worthless anyway. And Gateway International had no intention of selling back the properties to the homeowners. Evidence shown at McGrue’s trial revealed that it was his intent to re-sell the homes, once they were titled in Gateway’s name, to unsuspecting buyers.
The FBI began its investigation in 2008, after receiving a complaint from one of the victims.
During these uncertain economic times, there are many unscrupulous people looking to line their pockets at the expense of others’ misfortunes. One of the most effective ways to defend yourself against foreclosure fraud is awareness. According to the Federal Trade Commission, if you or someone you know is looking for a loan modification or other help to save a home, avoid any business that:
- Offers a guarantee to get you a loan modification or stop the foreclosure process;
- Tells you not to contact your lender, lawyer, or a housing counselor;
- Requests upfront fees before providing you with any services;
- Encourages you to transfer your property deed to title to them;
- Accepts payment only by cashier’s check or wire transfer; or
- Pressures you to sign papers you haven’t had the chance to read thoroughly or that you don’t understand.
Contact your local authorities or your state’s attorney general if you think you’ve been a victim of foreclosure fraud.
Source: FBI
Wednesday, July 20, 2011
Cellphone companies still selling hot air
The cellphone networks, which do rather well out of our collective obsession with staying connected via our ever-more-clever handsets, have been disappointingly slow to embrace aspects of the Consumer Protection Act which don’t suit them. Chief among these is the stipulation that all pre-paid vouchers must be honoured for up to three years. That means that any goods or services you pay for in advance – from a bus coupon to a facial to cellphone airtime – must be redeemed within three years of the date of purchase, and companies no longer have the right to tell you one or three months down the line “sorry, it’s expired, you forfeit”.
The cellphone companies appear to be carrying on regardless, in this and other respects, while promising the National Consumer Commission that they’ll get their act together within three months. Jerry Buirski told Consumer watch as he approached the Cape by sea last week that he noticed he had Vodacom’s 3G signal, so he powered up his laptop and prepared to send a month’s worth of e-mails. “However, I found I’d lost all my unused data on June 30. This does not seem right at all.”
National Consumer Commissioner Mamodupi Mohlala has recently publicly repeated the commission’s stance that all pre-paid airtime and data must be redeemable for up to three years in terms of the CPA. Asked to respond to Buirski’s experience, Vodacom’s chief officer of corporate affairs, Portia Maurice, said: “The commissioner has requested us to investigate this aspect of the act and present further submissions in support of our current business practices. We are currently reviewing this and will provide a response to the commissioner.”
Last month, when questioned on the premature expiry of pre-paid data, Vodacom told Consumer Watch: “When customers purchase data bundles, funds are deducted from their airtime in return for access to data bundles. So they are deemed to have exchanged the value of their prepaid airtime for access to data bundles. “There’s a difference between a voucher and a product bought by that voucher. The three-year expiry rule refers to vouchers and not to products purchased by vouchers.”
But Mohlala doesn’t agree with this interpretation, insisting that pre-paid data may not “expire” within three years of purchase. “We’ve had long discussions with the industry and I’ve made it clear that if they are not willing to come to the party on this and other issues of compliance with the act, we have the power to issue a compliance notice,” Mohlala said.
The ultimate sanction, in terms of the CPA, is a fine of R1 million or 10 percent of annual turnover. But subscribers continue to be deprived of cell products they’ve paid for a few months previously. Gary Cousins told Consumer Watch that he bought R300 of airtime for his teenage son in early March which was loaded on to his (son’s) number. But by early June, three months later, despite having used only about half that amount, his son was unable to send SMSes. “I suspected that the remaining airtime had been ‘removed’, so I sent him another R50 on July 10, and his phone immediately started sending SMSes,” Cousins said. “A balance enquiry showed R50 airtime remaining.”
So I asked Cell C: “Is it true that by early June the unused portion of that R300 airtime ‘expired’? “If so, how is this justified?” This was the response I got: “Icasa (the Independent Communications Authority of SA) is in the process of applying to the National Consumer Commission for an exemption with regards to this aspect of the act. Until the process is complete, Cell C cannot comment on the matter.”
Interestingly, Icasa’s concern about the CPA’s provision that pre-paid vouchers be redeemable by consumers for up to three years has to do with the recycling of numbers. But Icasa is not in favour of consumers losing out on pre-paid airtime and data. Icasa councillor Fungai Sibanda told Consumer Watch: “Icasa is of the view that consumers must be protected with respect to unused credit, whilst at the same time allowing inactive numbers to be recycled.” But right now pre-paid cellphone users are continuing to be “robbed” of their unused airtime and data – almost four months after the CPA came into effect.
Source: IoL
The cellphone companies appear to be carrying on regardless, in this and other respects, while promising the National Consumer Commission that they’ll get their act together within three months. Jerry Buirski told Consumer watch as he approached the Cape by sea last week that he noticed he had Vodacom’s 3G signal, so he powered up his laptop and prepared to send a month’s worth of e-mails. “However, I found I’d lost all my unused data on June 30. This does not seem right at all.”
National Consumer Commissioner Mamodupi Mohlala has recently publicly repeated the commission’s stance that all pre-paid airtime and data must be redeemable for up to three years in terms of the CPA. Asked to respond to Buirski’s experience, Vodacom’s chief officer of corporate affairs, Portia Maurice, said: “The commissioner has requested us to investigate this aspect of the act and present further submissions in support of our current business practices. We are currently reviewing this and will provide a response to the commissioner.”
Last month, when questioned on the premature expiry of pre-paid data, Vodacom told Consumer Watch: “When customers purchase data bundles, funds are deducted from their airtime in return for access to data bundles. So they are deemed to have exchanged the value of their prepaid airtime for access to data bundles. “There’s a difference between a voucher and a product bought by that voucher. The three-year expiry rule refers to vouchers and not to products purchased by vouchers.”
But Mohlala doesn’t agree with this interpretation, insisting that pre-paid data may not “expire” within three years of purchase. “We’ve had long discussions with the industry and I’ve made it clear that if they are not willing to come to the party on this and other issues of compliance with the act, we have the power to issue a compliance notice,” Mohlala said.
The ultimate sanction, in terms of the CPA, is a fine of R1 million or 10 percent of annual turnover. But subscribers continue to be deprived of cell products they’ve paid for a few months previously. Gary Cousins told Consumer Watch that he bought R300 of airtime for his teenage son in early March which was loaded on to his (son’s) number. But by early June, three months later, despite having used only about half that amount, his son was unable to send SMSes. “I suspected that the remaining airtime had been ‘removed’, so I sent him another R50 on July 10, and his phone immediately started sending SMSes,” Cousins said. “A balance enquiry showed R50 airtime remaining.”
So I asked Cell C: “Is it true that by early June the unused portion of that R300 airtime ‘expired’? “If so, how is this justified?” This was the response I got: “Icasa (the Independent Communications Authority of SA) is in the process of applying to the National Consumer Commission for an exemption with regards to this aspect of the act. Until the process is complete, Cell C cannot comment on the matter.”
Interestingly, Icasa’s concern about the CPA’s provision that pre-paid vouchers be redeemable by consumers for up to three years has to do with the recycling of numbers. But Icasa is not in favour of consumers losing out on pre-paid airtime and data. Icasa councillor Fungai Sibanda told Consumer Watch: “Icasa is of the view that consumers must be protected with respect to unused credit, whilst at the same time allowing inactive numbers to be recycled.” But right now pre-paid cellphone users are continuing to be “robbed” of their unused airtime and data – almost four months after the CPA came into effect.
Source: IoL
Monday, July 18, 2011
Cellphone operators told to amend contracts
South Africa's four primary cellular network operators and two fixed-line providers will have new customer contracts that are compliant with the Consumer Protection Act in place within the next three months.This came as national consumer commissioner Mamodupi Mohlala prepared to sign consent order agreements this week with each of the companies, Business Report reported on Monday. These agreements were legally binding and a fine of R1 million or 10 percent of annual turnover could be imposed if they were breached.
Mohlala said that over the past two weeks the commission had reviewed all contracts provided by the individual companies and none of the contracts were compliant with the act. This, despite the fact that it had been in the pipeline for the past five years and its implementation was postponed from September last year to April this year. She said that in most cases about 75 percent of the cellphone contract terms and conditions would have to change.
Companies would have to change their billing systems, marketing approach and their staff would have to be educated and more skilled, which would require more spending on human resources, she said. "There is nothing untoward… we are aligning South Africa with international best practice."
Mohlala said Cell C, Telkom and 8.ta would have their contracts amended by the end of September, Neotel by next month and MTN and Vodacom both expected to have amended their contracts by the end of October.
Source: Times Live
Mohlala said that over the past two weeks the commission had reviewed all contracts provided by the individual companies and none of the contracts were compliant with the act. This, despite the fact that it had been in the pipeline for the past five years and its implementation was postponed from September last year to April this year. She said that in most cases about 75 percent of the cellphone contract terms and conditions would have to change.
Companies would have to change their billing systems, marketing approach and their staff would have to be educated and more skilled, which would require more spending on human resources, she said. "There is nothing untoward… we are aligning South Africa with international best practice."
Mohlala said Cell C, Telkom and 8.ta would have their contracts amended by the end of September, Neotel by next month and MTN and Vodacom both expected to have amended their contracts by the end of October.
Source: Times Live
Why ANC's eThekwini secretary Sibusiso Sibiya was killed
TENDERPRENEURS are suspected of being behind the murder of top and respected ANC leader Sbusiso Sibiya, who was a champion of anti-corruption.
Speaking on condition of anonymity, senior party officials on Saturday said Sibiya's strong views on the renewal of the multi-million rand Durban transport bus service contract could have led to his death. "There is a lot happening in the city and Sibiya as secretary had to put his foot down on many issues to give direction to save the ANC from the previous embarrassing tender issues," an insider said. "He had to ensure that the needs of commuters came before those who will get the bus service contract."
Sibiya's funeral service was held at KwaMashu's Princess Magogo Stadium on Saturday. He was buried in the hero's acre at Wiggins Road Cemetery. He was shot four times in his driveway at Congo informal settlement in Inanda, north of Durban. His close friend and ANC official, Wiseman Mshibe, was gunned down in March this year. Mshibe's killers are still at large. "The two officials were seen as an obstruction to those plundering and looting taxpayer's money by acquiring illegal tenders," said a source.
Divisions within the party in the region have been pronounced since it became obvious that Sibiya was going to be re-elected. "Some people were unhappy because he had stopped them from getting tenders while striking out corruption," another official said.
Some senior leaders at the funeral were also concerned that more people would be killed if police did not arrest those behind these murders. Others hope Sibiya's killers are not members of the ANC. Sibiya was also a bishop of the Jerusalem Apostolic Church of Zion in South Africa. "As regional leadership, we planned everything around him and never once did he agree on something he believed to be wrong," another official said.
Home Affairs Minister Nkosazana Dlamini-Zuma said it saddened her that Sibiya was killed in a place that he had fought hard to develop. "In the past we knew the enemy that killed our comrades. It was the apartheid government. But today I do not know who the enemy is," Dlamini-Zuma said. Cosatu provincial secretary Zet Luzipho called for the party leadership to cooperate with the investigators in Sibiya's murder case. "The one who pulled the trigger is not the one who planned the act.
"We want to know who knew that comrade S'bu would be arriving home from the meeting at that time," said Luzipho.
Source: The Sowetan
Speaking on condition of anonymity, senior party officials on Saturday said Sibiya's strong views on the renewal of the multi-million rand Durban transport bus service contract could have led to his death. "There is a lot happening in the city and Sibiya as secretary had to put his foot down on many issues to give direction to save the ANC from the previous embarrassing tender issues," an insider said. "He had to ensure that the needs of commuters came before those who will get the bus service contract."
Sibiya's funeral service was held at KwaMashu's Princess Magogo Stadium on Saturday. He was buried in the hero's acre at Wiggins Road Cemetery. He was shot four times in his driveway at Congo informal settlement in Inanda, north of Durban. His close friend and ANC official, Wiseman Mshibe, was gunned down in March this year. Mshibe's killers are still at large. "The two officials were seen as an obstruction to those plundering and looting taxpayer's money by acquiring illegal tenders," said a source.
Divisions within the party in the region have been pronounced since it became obvious that Sibiya was going to be re-elected. "Some people were unhappy because he had stopped them from getting tenders while striking out corruption," another official said.
Some senior leaders at the funeral were also concerned that more people would be killed if police did not arrest those behind these murders. Others hope Sibiya's killers are not members of the ANC. Sibiya was also a bishop of the Jerusalem Apostolic Church of Zion in South Africa. "As regional leadership, we planned everything around him and never once did he agree on something he believed to be wrong," another official said.
Home Affairs Minister Nkosazana Dlamini-Zuma said it saddened her that Sibiya was killed in a place that he had fought hard to develop. "In the past we knew the enemy that killed our comrades. It was the apartheid government. But today I do not know who the enemy is," Dlamini-Zuma said. Cosatu provincial secretary Zet Luzipho called for the party leadership to cooperate with the investigators in Sibiya's murder case. "The one who pulled the trigger is not the one who planned the act.
"We want to know who knew that comrade S'bu would be arriving home from the meeting at that time," said Luzipho.
Source: The Sowetan
Telecoms firms told to amend contracts
 |
| Mamodupi Mohlala |
This came as national consumer commissioner Mamodupi Mohlala prepared to sign consent order agreements this week with each of the companies. These agreements were legally binding and a fine of R1m or 10% of annual turnover could be imposed if they were breached.
Mohlala said that over the past two weeks the commission had reviewed all contracts provided by the individual companies and none of the contracts were compliant with the act. This, despite the fact that it had been in the pipeline for the past five years and its implementation was postponed from September last year to April this year. She said that in most cases about 75% of the cellphone contract terms and conditions would have to change.
Companies would have to change their billing systems, marketing approach and their staff would have to be educated and more skilled, which would require more spending on human resources, she said. “There is nothing untoward. We are aligning SA with international best practice.”
Mohlala said Cell C, Telkom and 8ta would have their contracts amended by the end of September, Neotel by next month and MTN and Vodacom both expected to have amended their contracts by the end of October.
Source: Techcentral
Friday, July 15, 2011
Protector's challenge to the president
Thuli Madonsela has thrown down the gauntlet to President Jacob Zuma, demanding that he confront her awkward findings and recommendations on two police lease deals worth a total of R1.78-billion. On Thursday the public protector released the second of her devastating reports on the leases, calling on Zuma and his Cabinet to take action against Minister of Public Works Gwen Mahlangu-Nkabinde, national police commissioner Bheki Cele and senior officials.
Madonsela's latest report found that a lease agreement between the public works department and businessman Roux Shabangu, for a headquarters building for the provincial South African Police Service in Durban, is invalid. In her previous report, released in February, she made similar findings about another police lease in Pretoria, also between public works and Shabangu.
Zuma has delayed acting on the Pretoria report, sending Justice Minister Jeff Radebe to negotiate for action to be taken only after the release of the latest report. Now it is time for the president to show to his backbone on the issue. Will he accept the findings and act decisively, or will he delay again?
The political ramifications of both options are significant. Madonsela's recommendations are stronger now, as they are bolstered by new evidence, and the political atmosphere has become charged by the furore that followed last week's media leak of the protector's "imminent arrest".
But if Zuma acts on her recommendations there could be unpleasant political consequences -- particularly if his role in the Shabangu leases was not benign. It is still not clear, for example, why Zuma sacked former public works minister Geoff Doidge, who was investigating the Shabangu deals.
And it is suspicious that Mahlangu-Nkabinde, Doidge's replacement, promptly suspended director general Siviwe Dongwana -- who was also investigating the deals -- and pushed the Pretoria lease through against senior legal opinion and despite her department's decision to suspend the lease.
Commenting on such suspicions, Madonsela said: "We could not find evidence of criminality. We could not explain why people behaved the way they did. The conduct of the police and the public works department was quite strange in trying to move regardless of the circumstances. But I can't make findings on the basis of a hunch. Their behaviour was strange." She said: "I am not prescribing what should be done, but I expect the president to do the right thing."
The biggest problem Madonsela has handed to Zuma is Mahlangu-Nkabinde, who refused to answer certain questions during the public protector's investigation. Madonsela said Mahlangu-Nkabinde's behaviour was improper and unlawful and the minister had "failed to meet the requisite of statesmanship expected from her". She urged Zuma to consider taking action against Mahlangu-Nkabinde. The minister should, within 60 days, "report to the Cabinet on her actions in relation to the procurement of the leases … and her failure to fully co-operate with the public protector".
Zuma will then have to deal with the Cele problem -- or publicly duck it. The commissioner once provided muscle for Zuma's rise to the presidency and is now rumoured to be part of a faction aiming to unseat him. Madonsela found Cele to be guilty of improper and unlawful conduct and maladministration. "The minister of police [Nathi Mthethwa] should, with the assistance of the national treasury, take urgent steps to ensure that the appropriate action is instituted against all the relevant officials of the SAPS," Madonsela said. These included Cele.
She also recommended that Mahlangu-Nkabinde take action against her errant officials, with the assistance of the treasury and the public service department. And while these steps were followed, Madonsela recommended that the police review their needs analysis for the accommodation of their provincial offices and the family violence, child protection and sexual offences units in Durban, which were to be housed in Shabangu's building.
The public works department should then follow proper procedures to help the police find suitable, cost-effective accommodation, as they are mandated to do. "The department of public works and the SAPS must ensure that appropriate measures are implemented to prevent a recurrence of contraventions of the relevant procurement legislation and prescripts," she said.
In both Durban and Pretoria Madonsela found that the lease agreements were invalid because their procurement had not complied with constitutional requirements and other regulations. In both cases she said the police -- Cele in particular, although he denies this -- had identified the buildings before involving the public works department, which is what they should have done. Public works then chose, irregularly, to deviate from open tender procedures, negotiating directly with Shabangu and settling on higher than market-value leases, which compromised the police's stretched operations budget. Shabangu contacted police and public works officials "and is alleged to have put pressure on them in regard to the finalisation of the procurement process".
Madonsela emphasised that there was no evidence of criminality in her investigation of Shabangu's role. "The argument presented by the department of finance was that since we could not conclude that Roux Property Fund [Shabangu's company] had got the leases because of fraud or through other illegal processes, we could not use the law to red-card him," she said. Little has changed in the protector's report compared with the draft that was leaked before she received the responses of those implicated. Looking at those responses -- now dealt with in the final report -- it is easy to understand why.
Commissioner Cele was at pains to point out that he did not invent the SAPS's need for a new lease. "On the contrary, there was a need to either relocate to a new building or construct one long before I came into this department in August 2009," he told the protector.
One of the main aspects of the provisional report disputed by Cele is that it was he who identified the Transnet building as alternative accommodation for police in Durban. But Madonsela says two of his subordinates -- Generals Hlela and Terblanche -- confirmed, independently of each other, that Cele had indeed instructed them to procure the lease of the Transnet building. She also points to an information note signed by Cele, dated June 28 last year, that apparently confirmed that the Transnet building was identified for leasing.
Cele points a finger at public works as the department responsible for managing the procurement process correctly. "The DPW is solely responsible for the unlawful conclusion of the lease agreement," he says.
Mahlangu-Nkabinde's version is contradicted by almost every other player in the leasing saga. According to Madonsela's report, the minister explained a mysterious increase in floor space needed by police -- which ended up being exactly what was on offer at Shabangu's building -- as being added "to accommodate for non-assignable areas, such as partitions, passages, toilets and common areas". "This explanation of the minister is, however, not in line with the needs analysis that was resubmitted by the SAPS," the protector noted.
The minister claimed that Doidge and his director general, Siviwe Dongwana, did not brief her properly. She denies instructing Dongwana to inform Shabangu's bankers that the transaction was proceeding. She refused to answer questions from the public protector, she claimed, because the report on the Pretoria lease showed that Madonsela had already made up her mind.
Shabangu denied applying undue pressure on public works officials, including the director general, or improperly influencing them in the procurement process relating to the Pretoria and Durban leases. He further denied ever meeting the minister outside her office. Asked to explain how he became aware of the SAPS's need for alternative accommodation in Durban, Shabangu indicated that he was informed that the office lease of the provincial police was due to expire and was provided with a "needs analysis" indicating the extent of the required alternative accommodation. It was because he was aware of the extent of the need for alternative accommodation in Durban that his company decided to buy the Transnet building.
But Madonsela noted: "Shabangu's above explanation is inconsistent with the documentary evidence obtained during the investigation, in terms of which it was found that the first needs analysis, reflecting the extent of the SAPS's need for alternative accommodation, was only submitted to the DPW on 23 June 2010. "However, the sale agreement for the Transnet building was concluded with Shabangu on behalf of [Roux Shabangu] on 19 March 2010, three months earlier." Ten days after Independent Newspapers claimed Thuli Madonsela faced imminent arrest for fraud and corruption there is no clarity on who was pushing the "investigation" and who leaked it. As the public backlash mounted, Justice Minister Jeff Radebe and Police Minister Nathi Mthethwa claimed the public protector was not being investigated.
Radebe cleared Madonsela of wrongdoing relating to work her company did for the justice department while she was a full-time South African Law Reform Commission member. President Jacob Zuma rushed to send out a statement of support. The newspaper group then produced "irrefutable proof" of its claims — an "information note" showing only that police were given insight, presumably by someone in the justice department, into a justice department file containing a September 2009 state law opinion on Madonsela's business interests. Police also apparently gave details of departmental payments to her company.
But, significantly, the note was directed to the Hawks's commercial crime head, Hans Meiring, which suggests senior police interest. The matter is also understood to have been drawn to Hawks boss Anwa Dramat's attention. "High-level sources" then leaked the document to a journalist, couched in claims of "imminent arrest" on "fraud and corruption charges" -- which the document did not prove.
Was there ever a police probe of Madonsela? Who was behind it? Was Independent Newspapers manipulated? By whom and why? In seeking to deny that there had been an investigation Hawks spokesperson Macintosh Polela made much of an apparent error in the case number refered to in the information note. It was all an "unfortunate mix-up", he said. The case number refered to a totally separate case ergo the note did not prove Madonsela had been investigated.
In fact the case number proves nothing of the kind. Independent Newspapers originally wrote: "The police stumbled upon information on Madonsela while investigating a separate case registered at the Pretoria Central Police Station." But investigating officer James Hills wrote in the information note: "During the investigation of Pretoria-Central CAS 515/01/2008 at the department of justice and constitutional development, the following came to my attention." Clearly this case number is associated with the "separate case". It was never intended either by the Independent Group or by Hill to refer to the Madonsela probe.
Polela used this confusion to cover the fact that Cabinet had made it politically difficult for police to come clean on the investigation and the leak. He said: "There was a mix-up when someone read a file for that case. It appears there was a piece of paper which mentioned Madonsela, but I don't know what that piece of paper was about … As far as I know [the leak] is not being investigated from our side."
The previous week police headquarters said the South African Police Service would launch a full investigation into the circumstances that led to "media reports …that the public protector is about to be arrested" and would announce the outcome.
Why the arrest claim was leaked days before the release of Madonsela’s second SAPS lease report -- and why ministers then smothered the matter -- remain smouldering questions.
Source: Mail & Guardian
Madonsela's latest report found that a lease agreement between the public works department and businessman Roux Shabangu, for a headquarters building for the provincial South African Police Service in Durban, is invalid. In her previous report, released in February, she made similar findings about another police lease in Pretoria, also between public works and Shabangu.
Zuma has delayed acting on the Pretoria report, sending Justice Minister Jeff Radebe to negotiate for action to be taken only after the release of the latest report. Now it is time for the president to show to his backbone on the issue. Will he accept the findings and act decisively, or will he delay again?
The political ramifications of both options are significant. Madonsela's recommendations are stronger now, as they are bolstered by new evidence, and the political atmosphere has become charged by the furore that followed last week's media leak of the protector's "imminent arrest".
But if Zuma acts on her recommendations there could be unpleasant political consequences -- particularly if his role in the Shabangu leases was not benign. It is still not clear, for example, why Zuma sacked former public works minister Geoff Doidge, who was investigating the Shabangu deals.
And it is suspicious that Mahlangu-Nkabinde, Doidge's replacement, promptly suspended director general Siviwe Dongwana -- who was also investigating the deals -- and pushed the Pretoria lease through against senior legal opinion and despite her department's decision to suspend the lease.
Commenting on such suspicions, Madonsela said: "We could not find evidence of criminality. We could not explain why people behaved the way they did. The conduct of the police and the public works department was quite strange in trying to move regardless of the circumstances. But I can't make findings on the basis of a hunch. Their behaviour was strange." She said: "I am not prescribing what should be done, but I expect the president to do the right thing."
The biggest problem Madonsela has handed to Zuma is Mahlangu-Nkabinde, who refused to answer certain questions during the public protector's investigation. Madonsela said Mahlangu-Nkabinde's behaviour was improper and unlawful and the minister had "failed to meet the requisite of statesmanship expected from her". She urged Zuma to consider taking action against Mahlangu-Nkabinde. The minister should, within 60 days, "report to the Cabinet on her actions in relation to the procurement of the leases … and her failure to fully co-operate with the public protector".
Zuma will then have to deal with the Cele problem -- or publicly duck it. The commissioner once provided muscle for Zuma's rise to the presidency and is now rumoured to be part of a faction aiming to unseat him. Madonsela found Cele to be guilty of improper and unlawful conduct and maladministration. "The minister of police [Nathi Mthethwa] should, with the assistance of the national treasury, take urgent steps to ensure that the appropriate action is instituted against all the relevant officials of the SAPS," Madonsela said. These included Cele.
She also recommended that Mahlangu-Nkabinde take action against her errant officials, with the assistance of the treasury and the public service department. And while these steps were followed, Madonsela recommended that the police review their needs analysis for the accommodation of their provincial offices and the family violence, child protection and sexual offences units in Durban, which were to be housed in Shabangu's building.
The public works department should then follow proper procedures to help the police find suitable, cost-effective accommodation, as they are mandated to do. "The department of public works and the SAPS must ensure that appropriate measures are implemented to prevent a recurrence of contraventions of the relevant procurement legislation and prescripts," she said.
In both Durban and Pretoria Madonsela found that the lease agreements were invalid because their procurement had not complied with constitutional requirements and other regulations. In both cases she said the police -- Cele in particular, although he denies this -- had identified the buildings before involving the public works department, which is what they should have done. Public works then chose, irregularly, to deviate from open tender procedures, negotiating directly with Shabangu and settling on higher than market-value leases, which compromised the police's stretched operations budget. Shabangu contacted police and public works officials "and is alleged to have put pressure on them in regard to the finalisation of the procurement process".
Madonsela emphasised that there was no evidence of criminality in her investigation of Shabangu's role. "The argument presented by the department of finance was that since we could not conclude that Roux Property Fund [Shabangu's company] had got the leases because of fraud or through other illegal processes, we could not use the law to red-card him," she said. Little has changed in the protector's report compared with the draft that was leaked before she received the responses of those implicated. Looking at those responses -- now dealt with in the final report -- it is easy to understand why.
Commissioner Cele was at pains to point out that he did not invent the SAPS's need for a new lease. "On the contrary, there was a need to either relocate to a new building or construct one long before I came into this department in August 2009," he told the protector.
One of the main aspects of the provisional report disputed by Cele is that it was he who identified the Transnet building as alternative accommodation for police in Durban. But Madonsela says two of his subordinates -- Generals Hlela and Terblanche -- confirmed, independently of each other, that Cele had indeed instructed them to procure the lease of the Transnet building. She also points to an information note signed by Cele, dated June 28 last year, that apparently confirmed that the Transnet building was identified for leasing.
Cele points a finger at public works as the department responsible for managing the procurement process correctly. "The DPW is solely responsible for the unlawful conclusion of the lease agreement," he says.
Mahlangu-Nkabinde's version is contradicted by almost every other player in the leasing saga. According to Madonsela's report, the minister explained a mysterious increase in floor space needed by police -- which ended up being exactly what was on offer at Shabangu's building -- as being added "to accommodate for non-assignable areas, such as partitions, passages, toilets and common areas". "This explanation of the minister is, however, not in line with the needs analysis that was resubmitted by the SAPS," the protector noted.
The minister claimed that Doidge and his director general, Siviwe Dongwana, did not brief her properly. She denies instructing Dongwana to inform Shabangu's bankers that the transaction was proceeding. She refused to answer questions from the public protector, she claimed, because the report on the Pretoria lease showed that Madonsela had already made up her mind.
Shabangu denied applying undue pressure on public works officials, including the director general, or improperly influencing them in the procurement process relating to the Pretoria and Durban leases. He further denied ever meeting the minister outside her office. Asked to explain how he became aware of the SAPS's need for alternative accommodation in Durban, Shabangu indicated that he was informed that the office lease of the provincial police was due to expire and was provided with a "needs analysis" indicating the extent of the required alternative accommodation. It was because he was aware of the extent of the need for alternative accommodation in Durban that his company decided to buy the Transnet building.
But Madonsela noted: "Shabangu's above explanation is inconsistent with the documentary evidence obtained during the investigation, in terms of which it was found that the first needs analysis, reflecting the extent of the SAPS's need for alternative accommodation, was only submitted to the DPW on 23 June 2010. "However, the sale agreement for the Transnet building was concluded with Shabangu on behalf of [Roux Shabangu] on 19 March 2010, three months earlier." Ten days after Independent Newspapers claimed Thuli Madonsela faced imminent arrest for fraud and corruption there is no clarity on who was pushing the "investigation" and who leaked it. As the public backlash mounted, Justice Minister Jeff Radebe and Police Minister Nathi Mthethwa claimed the public protector was not being investigated.
Radebe cleared Madonsela of wrongdoing relating to work her company did for the justice department while she was a full-time South African Law Reform Commission member. President Jacob Zuma rushed to send out a statement of support. The newspaper group then produced "irrefutable proof" of its claims — an "information note" showing only that police were given insight, presumably by someone in the justice department, into a justice department file containing a September 2009 state law opinion on Madonsela's business interests. Police also apparently gave details of departmental payments to her company.
But, significantly, the note was directed to the Hawks's commercial crime head, Hans Meiring, which suggests senior police interest. The matter is also understood to have been drawn to Hawks boss Anwa Dramat's attention. "High-level sources" then leaked the document to a journalist, couched in claims of "imminent arrest" on "fraud and corruption charges" -- which the document did not prove.
Was there ever a police probe of Madonsela? Who was behind it? Was Independent Newspapers manipulated? By whom and why? In seeking to deny that there had been an investigation Hawks spokesperson Macintosh Polela made much of an apparent error in the case number refered to in the information note. It was all an "unfortunate mix-up", he said. The case number refered to a totally separate case ergo the note did not prove Madonsela had been investigated.
In fact the case number proves nothing of the kind. Independent Newspapers originally wrote: "The police stumbled upon information on Madonsela while investigating a separate case registered at the Pretoria Central Police Station." But investigating officer James Hills wrote in the information note: "During the investigation of Pretoria-Central CAS 515/01/2008 at the department of justice and constitutional development, the following came to my attention." Clearly this case number is associated with the "separate case". It was never intended either by the Independent Group or by Hill to refer to the Madonsela probe.
Polela used this confusion to cover the fact that Cabinet had made it politically difficult for police to come clean on the investigation and the leak. He said: "There was a mix-up when someone read a file for that case. It appears there was a piece of paper which mentioned Madonsela, but I don't know what that piece of paper was about … As far as I know [the leak] is not being investigated from our side."
The previous week police headquarters said the South African Police Service would launch a full investigation into the circumstances that led to "media reports …that the public protector is about to be arrested" and would announce the outcome.
Why the arrest claim was leaked days before the release of Madonsela’s second SAPS lease report -- and why ministers then smothered the matter -- remain smouldering questions.
Source: Mail & Guardian
Thuli Madonsela: A timeline
News reports about attacks on the Public Protector can be confusing. Why was she accused of fraud and who are her enemies? Use our timeline to make sense of the story.
October 2009
Advocate Thuli Madonsela is announced as South Africa's new Public Protector -- South Africa's third since 1994. She replaces Lawrence Mushwana, who had a dubious record in connection with the Oilgate scandal.
2 August 2010
Complaints are lodged by Paul Hoffman of the Institute for Accountability in Southern Africa and Pieter Groenewald of the Freedom Front Plus with the Public Protector in connection with a Sunday Times report alleging improper procurement in the leasing of office accommodation for the South African Police Services (SAPS) in the Sanlam Middestad building in Pretoria and the Transnet Building in Durban. These complaints originated from a newspaper article published on August 1 2010 alleging improper conduct and maladministration by police National Commissioner Bheki Cele and the Department of Public Works (DPW). The combined value of the leases amounts to over R1.7bn and is entered into between the South African Police Service and controversial property vendor Roux Shabangu.
August 3 2010
Madonsela requests Cele and officials at DPW to cease with implementation of the said leases until an investigation into the matter is completed. It is confirmed the investigation would be undertaken in conjunction with Willie Hofmeyr's Special Investigation Unit (SIU).
4 August 2010
Journalist Mzilikazi wa Afrika is arrested for allegedly being in possession of a fake letter of resignation from Mpumalanga Premier David Mabuza. His arrest is widely seen as an attempt at intimidation relating to the original report appearing in the Sunday Times. He is held in Nelspruit for several days -- even after his case is thrown out of court.
October 11 2010
Director general at DPW, Siviwe Dongwana, informs Cele a new procurement process for the leasing of accommodation for the SAPS headquarters in Pretoria and Durban will be affected after an internal enquiry and independent legal advice deems the lease acquisitions to be invalid.
October 25 2010
Madonsela issues a preliminary report on the investigation, confirming her support for the new procurement process initiation.
October 31 2010
Gwen Mahlangu-Nkabinde replaces the former minister of public works, Geoff Doidge, in a Cabinet reshuffle by President Jacob Zuma.
November 11 2010
Mahlangu-Nkabinde announces, upon obtaining legal advice from the Office of the State Attorney on the lease agreement with regards to the Middestad building, that the lease is enforceable.
December 8 2010
DPW announces the suspension of Dongwana on charges in relation to insubordination, dereliction of duty, failure to discharge official duties and bringing the department into disrepute.
February 22 2011
Madonsela releases an initial report into the matter entitled: Against the Rules -- with specific reference to the Sanlam Middestad building in Pretoria. The report lists a number of irregularities in the leasing process.
March 2 2011
The offices of the Public Protector are visited by members of the SAPS crime intelligence unit, allegedly regarding Madonsela's investigations into Cele. Police later deny it was a raid.
March 10 2011
Madonsela announces she will not revisit findings in her report, despite being asked to do so by Mahlangu-Nkabinde.
June 10 2011
Mahlangu-Nkabinde announces a moratorium on all DPW tenders to "root out corruption". The move is slammed by the media and opposition parties and labeled as political opportunism.
June 17 2011
Shabangu calls a press briefing in Pretoria to "set the record straight" and defends the leasing deals, accusing "white capitalists" of accusing him of shady deals because he is a successful black businessman.
June 18 2011
Dongwana tells the media he feared for his safety and that of his family as he felt he was pressured into approving two lease deals.
June 21 2011
Mahlangu-Nkabinde announces her intention to take the matter regarding the leases to court to pronounce legality.
July 6 2011
A shock report is published by the Star newspaper about Madonsela’s imminent arrest on charges of alleged corruption during her tenure many years before as commissioner at the South African Law Reform Commission.
July 6 2011
The Star report is published the same day as a scheduled press briefing by Madonsela about the police leases and other matters. The report is criticised as a political ploy related to Madonsela's investigations into the leases. The protector vows to continue in her investigations into the leases.
July 7 2011
Justice and Constitutional Development Minister Jeff Radebe throws his weight behind Madonsela, announcing that she did not break any laws when her company offered services to the justice department while she worked for the South Africa Law Reform Commission. Police Minister Nathi Mthethwa also announces that he has no knowledge of an imminent arrest, after consulting with Cele, and the Zuma makes his support clear as well.
July 11 2011
It is confirmed that the head of the SIU, Willie Hofmeyr, is being investigated by the Serious Economic Offences Unit for reportedly flouting supply-chain and procurement procedures in the awarding of a tender to refurbish SIU offices in Pretoria
July 14 2011
Madonsela releases a second report into the leasing scandal -- with specific reference to the Transnet building in Durban -- entitled: Against the rules too. The report finds serious fault with Mahlangu-Nkabinde and Cele during the acquisition and implementation of the leases and calls for serious remedial action. The pair are slammed for their lack of cooperation during the investigation.
July 15 to 17 2011
The weekend media announce the report as a watershed moment for Zuma, which will test his earlier support and possibly force him to take action.
July 18 2011
Cele announces a press briefing for July 19 to respond to findings by the Public Protector that his actions in connection with the two controversial building leases were unlawful, improper and constituted maladministration. The briefing is then postponed to July 21.
July 20 2011
Cele again cancels the press briefing, scheduled for the following day.
Source: Mail & Guardian
October 2009
Advocate Thuli Madonsela is announced as South Africa's new Public Protector -- South Africa's third since 1994. She replaces Lawrence Mushwana, who had a dubious record in connection with the Oilgate scandal.
M&G editor in chief Nic Dawes tells you everything you need to know about Public Protector Thuli Madonsela's report into police leasing deals. Will the president take action? What's next for Madonsela? Watch our video analysis and find out.
Complaints are lodged by Paul Hoffman of the Institute for Accountability in Southern Africa and Pieter Groenewald of the Freedom Front Plus with the Public Protector in connection with a Sunday Times report alleging improper procurement in the leasing of office accommodation for the South African Police Services (SAPS) in the Sanlam Middestad building in Pretoria and the Transnet Building in Durban. These complaints originated from a newspaper article published on August 1 2010 alleging improper conduct and maladministration by police National Commissioner Bheki Cele and the Department of Public Works (DPW). The combined value of the leases amounts to over R1.7bn and is entered into between the South African Police Service and controversial property vendor Roux Shabangu.
August 3 2010
Madonsela requests Cele and officials at DPW to cease with implementation of the said leases until an investigation into the matter is completed. It is confirmed the investigation would be undertaken in conjunction with Willie Hofmeyr's Special Investigation Unit (SIU).
4 August 2010
Journalist Mzilikazi wa Afrika is arrested for allegedly being in possession of a fake letter of resignation from Mpumalanga Premier David Mabuza. His arrest is widely seen as an attempt at intimidation relating to the original report appearing in the Sunday Times. He is held in Nelspruit for several days -- even after his case is thrown out of court.
October 11 2010
Director general at DPW, Siviwe Dongwana, informs Cele a new procurement process for the leasing of accommodation for the SAPS headquarters in Pretoria and Durban will be affected after an internal enquiry and independent legal advice deems the lease acquisitions to be invalid.
October 25 2010
Madonsela issues a preliminary report on the investigation, confirming her support for the new procurement process initiation.
October 31 2010
Gwen Mahlangu-Nkabinde replaces the former minister of public works, Geoff Doidge, in a Cabinet reshuffle by President Jacob Zuma.
November 11 2010
Mahlangu-Nkabinde announces, upon obtaining legal advice from the Office of the State Attorney on the lease agreement with regards to the Middestad building, that the lease is enforceable.
December 8 2010
DPW announces the suspension of Dongwana on charges in relation to insubordination, dereliction of duty, failure to discharge official duties and bringing the department into disrepute.
February 22 2011
Madonsela releases an initial report into the matter entitled: Against the Rules -- with specific reference to the Sanlam Middestad building in Pretoria. The report lists a number of irregularities in the leasing process.
March 2 2011
The offices of the Public Protector are visited by members of the SAPS crime intelligence unit, allegedly regarding Madonsela's investigations into Cele. Police later deny it was a raid.
March 10 2011
Madonsela announces she will not revisit findings in her report, despite being asked to do so by Mahlangu-Nkabinde.
June 10 2011
Mahlangu-Nkabinde announces a moratorium on all DPW tenders to "root out corruption". The move is slammed by the media and opposition parties and labeled as political opportunism.
June 17 2011
Shabangu calls a press briefing in Pretoria to "set the record straight" and defends the leasing deals, accusing "white capitalists" of accusing him of shady deals because he is a successful black businessman.
June 18 2011
Dongwana tells the media he feared for his safety and that of his family as he felt he was pressured into approving two lease deals.
June 21 2011
Mahlangu-Nkabinde announces her intention to take the matter regarding the leases to court to pronounce legality.
July 6 2011
A shock report is published by the Star newspaper about Madonsela’s imminent arrest on charges of alleged corruption during her tenure many years before as commissioner at the South African Law Reform Commission.
July 6 2011
The Star report is published the same day as a scheduled press briefing by Madonsela about the police leases and other matters. The report is criticised as a political ploy related to Madonsela's investigations into the leases. The protector vows to continue in her investigations into the leases.
July 7 2011
Justice and Constitutional Development Minister Jeff Radebe throws his weight behind Madonsela, announcing that she did not break any laws when her company offered services to the justice department while she worked for the South Africa Law Reform Commission. Police Minister Nathi Mthethwa also announces that he has no knowledge of an imminent arrest, after consulting with Cele, and the Zuma makes his support clear as well.
July 11 2011
It is confirmed that the head of the SIU, Willie Hofmeyr, is being investigated by the Serious Economic Offences Unit for reportedly flouting supply-chain and procurement procedures in the awarding of a tender to refurbish SIU offices in Pretoria
July 14 2011
Madonsela releases a second report into the leasing scandal -- with specific reference to the Transnet building in Durban -- entitled: Against the rules too. The report finds serious fault with Mahlangu-Nkabinde and Cele during the acquisition and implementation of the leases and calls for serious remedial action. The pair are slammed for their lack of cooperation during the investigation.
July 15 to 17 2011
The weekend media announce the report as a watershed moment for Zuma, which will test his earlier support and possibly force him to take action.
July 18 2011
Cele announces a press briefing for July 19 to respond to findings by the Public Protector that his actions in connection with the two controversial building leases were unlawful, improper and constituted maladministration. The briefing is then postponed to July 21.
July 20 2011
Cele again cancels the press briefing, scheduled for the following day.
Source: Mail & Guardian
Sunday, July 10, 2011
Ngoepe: Powers of executive and judiciary are equal
The powers of the three organs of government -- the executive, the judiciary, and the legislature -- are all equal, Judge President of the North and South Gauteng High Courts, Bernard Ngoepe, said on Sunday. "None can be higher than the other. They are all equal," he told the South African Press Association in an interview at the closing of the Access to Justice conference in Johannesburg.
Ngoepe was referring to comments made by President Jacob Zuma that although the separation of powers was important, courts should not be more powerful than the government. "In as much as we seek to respect the powers and role conferred by our Constitution on the legislature and the judiciary, we expect the same from these very important institutions," Zuma said on Friday. "The powers conferred on the courts cannot be superior to the powers resulting from the political and consequently administrative mandate resulting from popular democratic elections."
Zuma stressed the need to distinguish the areas of responsibility between the judiciary and the branches of government, particularly with regards to government policy formulation. "The executive, as elected officials, have the sole discretion to decide policies for government. "This means that once government has decided on appropriate policies, the judiciary cannot, when striking down legislation or parts thereof on the basis of illegality, raise that as an opportunity to change the policies," he said.
Ngoepe believed Zuma meant that all three institutions were bound by the Constitution. "As far as I am concerned, what he [Zuma] means is that the Constitution demarcates the areas of authority of the judiciary, the executive and Parliament, and that each of the three institutions is bound by the Constitution to remain within the parameter of its constitutional authority and not encroach on the authority of the other two." This was a valued principle, said Ngoepe.
Some political analysts told the Saturday Star they interpreted the president's comments as a reference to the Constitutional Court's ruling earlier this year in which a narrow majority of justices found legislation that controversially killed off the Scorpions unit -- and established the Hawks -- as being unconstitutional. Political analyst, advocate Paul Hoffman, director of the Institute for Accountability in Southern Africa, told the publication it was the duty of the courts to uphold the Constitution. "The executive cannot do as it pleases on matters of policy," he said. "Any law or any conduct produced as a matter of policy which is inconsistent with the Constitution, such as dissolving the Scorpions or denying treatment to Aids patients, is invalid."
Delegates heard at the three-day conference that the independence of the judiciary was crucial for a democratic and just system. Zuma said the Constitution had adequate checks and balances to protect and safeguard the independence of the judiciary. Some politicians had undermined this, Ngoebe said. "In the past, there have been a few remarks by some individual politicians which could be understood as undermining the independence of the judiciary. However, there has been nothing serious in this regard."
He said there had been times when judges believed their lives were in danger. "There have been instances when judges who were doing certain cases felt threatened and were afforded police protection."
Source: Mail & Guardian
Ngoepe was referring to comments made by President Jacob Zuma that although the separation of powers was important, courts should not be more powerful than the government. "In as much as we seek to respect the powers and role conferred by our Constitution on the legislature and the judiciary, we expect the same from these very important institutions," Zuma said on Friday. "The powers conferred on the courts cannot be superior to the powers resulting from the political and consequently administrative mandate resulting from popular democratic elections."
Zuma stressed the need to distinguish the areas of responsibility between the judiciary and the branches of government, particularly with regards to government policy formulation. "The executive, as elected officials, have the sole discretion to decide policies for government. "This means that once government has decided on appropriate policies, the judiciary cannot, when striking down legislation or parts thereof on the basis of illegality, raise that as an opportunity to change the policies," he said.
Ngoepe believed Zuma meant that all three institutions were bound by the Constitution. "As far as I am concerned, what he [Zuma] means is that the Constitution demarcates the areas of authority of the judiciary, the executive and Parliament, and that each of the three institutions is bound by the Constitution to remain within the parameter of its constitutional authority and not encroach on the authority of the other two." This was a valued principle, said Ngoepe.
Some political analysts told the Saturday Star they interpreted the president's comments as a reference to the Constitutional Court's ruling earlier this year in which a narrow majority of justices found legislation that controversially killed off the Scorpions unit -- and established the Hawks -- as being unconstitutional. Political analyst, advocate Paul Hoffman, director of the Institute for Accountability in Southern Africa, told the publication it was the duty of the courts to uphold the Constitution. "The executive cannot do as it pleases on matters of policy," he said. "Any law or any conduct produced as a matter of policy which is inconsistent with the Constitution, such as dissolving the Scorpions or denying treatment to Aids patients, is invalid."
Delegates heard at the three-day conference that the independence of the judiciary was crucial for a democratic and just system. Zuma said the Constitution had adequate checks and balances to protect and safeguard the independence of the judiciary. Some politicians had undermined this, Ngoebe said. "In the past, there have been a few remarks by some individual politicians which could be understood as undermining the independence of the judiciary. However, there has been nothing serious in this regard."
He said there had been times when judges believed their lives were in danger. "There have been instances when judges who were doing certain cases felt threatened and were afforded police protection."
Source: Mail & Guardian
Friday, July 1, 2011
Vodacom cuts off about a million users
Vodacom, South Africa's biggest wireless phones operator, cut off about a million users on Friday for failing to register their SIM cards under a new law in the country. Under the new Regulation of Interception of Communication Act, mobile phone SIM cards must have been registered by 10pm GMT on Thursday to avoid being cut off from the network.
Vodacom, a unit of Britain's Vodafone, said under a million subscribers were disconnected from its network but spokesman Richard Boorman said the impact on revenue would be minimal. "Overall, I can say we're not expecting a major revenue impact," Boorman said, adding only a portion of those disconnected, frequently used their lines.
Vodacom's rival MTN declined to disclose how customers were locked out of the network but said initial indications showed that the numbers were not significant. "MTN is not in a position to disclose the figures of ... subscribers who have been cut off because MTN is in a closed period," Eddie Moyce, customer relationship executive at the operator's South African unit, said in an emailed response to Reuters questions.
MTN is finalising its half-year results and companies typically refrain from making comments on their balance sheets before the results are published. MTN has about 19-million subscribers in South Africa while Vodacom boasts about 26 million users in the country.
Source: Mail & Guardian
Vodacom, a unit of Britain's Vodafone, said under a million subscribers were disconnected from its network but spokesman Richard Boorman said the impact on revenue would be minimal. "Overall, I can say we're not expecting a major revenue impact," Boorman said, adding only a portion of those disconnected, frequently used their lines.
Vodacom's rival MTN declined to disclose how customers were locked out of the network but said initial indications showed that the numbers were not significant. "MTN is not in a position to disclose the figures of ... subscribers who have been cut off because MTN is in a closed period," Eddie Moyce, customer relationship executive at the operator's South African unit, said in an emailed response to Reuters questions.
MTN is finalising its half-year results and companies typically refrain from making comments on their balance sheets before the results are published. MTN has about 19-million subscribers in South Africa while Vodacom boasts about 26 million users in the country.
Source: Mail & Guardian
'Spooks are everywhere'
The latest African Media Barometer (AMB): South Africa 2010 report presents a mixed picture on the state of the media and media freedom in the country. It says there is widespread belief that "spooks are everywhere".
South Africa's overall rating for its media environment has decreased, according to the report published by Friedrich-Ebert-Stiftung (FES) and the Media Institute of Southern Africa. FES is a private German political, non-profit, public-interest institution committed to social democracy. In 2006, the overall score for freedom of expression for the country was 3.2 out of 5, in 2008 it was 3.5 and in 2010 it decreased to 3.
Categories taken into account include: freedom of the media, the media landscape including diversity, independence and sustainability, broadcasting regulation and professional standards. Scoring in a range of subcategories were conducted by a 10-person panel of South Africans, including a trade unionist, a media academic, a journalist, a human rights activist, a broadcasting consultant, a social movement activist, a gender activist and an IT specialist.
The barometer says that although the right to freedom of expression, including media freedom and the right to access information, is guaranteed in the Constitution, in "recent years, though, these protections are being increasingly challenged in practice, or by proposals for new legislation". "The tone of the political discourse is becoming sharper", with "harsh criticism of corruption and greed in government circles from a broad spectrum of society". Government, as well as sections of the ANC, the report says, reacts defensively and critics are labelled as "unpatriotic", "enemies" or "counter-revolutionaries". And police, "overreact" against people with critical views whereas whistle-blowers feel increasingly insecure. "There are reports of people who had revealed instances of corruption to the press being threatened or even killed … and there is the suspicion that spooks are everywhere" the report says, quoting Congress of South African Trade Union's Zwelinzima Vavi's statement that many believe that people are listening in to phone conversations.
However, South Africa scored top marks for the fact that entry into and the practice of journalism was legally unrestricted and that websites and blogs were not required to register or get permission from state authorities. The scores dropped in the category: "the right to freedom of expression is practised and citizens, including journalists, are asserting their rights without fear". In 2008 it was 3.2 and in 2010 it was 2.9. The advertising market, according to the survey, was not large enough to support a diversity of media outlets: in 2008 this score was 3.9 and in 2010, it dropped to 2.7 There was a significant decrease in adequate competition legislation/regulation to prevent media concentration and monopolies. In 2008 it was 4.7 and in 2010 it was 2.6. In the same vein, the indictment on broadcasting regulation and its levels of transparency and independence was severe: the 2006 score was 4.6, the 2008 score was 5 and the 2010 score was 3.3. The scores for "public information is easily accessible, guaranteed by law, to all citizens" was generally low for the three years. In 2006, it was 2.7, in 2008 it was 2.3, and in 2010 2.7.
Regarding the provision that there were "no laws restricting freedom of expression such as excessive official secrets or libel acts, or laws that unreasonably interfere with the responsibilities of media", the country scores a good 4, but the report says if the Protection of Information Bill is enacted and if a media appeals tribunal is instituted, it would change the picture.
Applying for information in terms of the Promotion of Access to Information Act of 2002 (Paia) is "cumbersome" and "often requests for information are ignored. Further, many departments did not appoint information officers as required under the act, the report says. Mention is made of the Mail & Guardian winning a High Court order in June 2010, which obliged the government to release a report on the 2002 elections in Zimbabwe. The judge agreed that the release of the report was in the public interest, but government appealed to the Supreme Court of Appeal, lost that appeal in December 2010, and then applied to the Constitutional Court this year. Judgment is pending.
The Secrecy Bill, if enacted, would threaten the gains envisaged in Paia, according to the report.
Source: Mail & Guardian
South Africa's overall rating for its media environment has decreased, according to the report published by Friedrich-Ebert-Stiftung (FES) and the Media Institute of Southern Africa. FES is a private German political, non-profit, public-interest institution committed to social democracy. In 2006, the overall score for freedom of expression for the country was 3.2 out of 5, in 2008 it was 3.5 and in 2010 it decreased to 3.
Categories taken into account include: freedom of the media, the media landscape including diversity, independence and sustainability, broadcasting regulation and professional standards. Scoring in a range of subcategories were conducted by a 10-person panel of South Africans, including a trade unionist, a media academic, a journalist, a human rights activist, a broadcasting consultant, a social movement activist, a gender activist and an IT specialist.
The barometer says that although the right to freedom of expression, including media freedom and the right to access information, is guaranteed in the Constitution, in "recent years, though, these protections are being increasingly challenged in practice, or by proposals for new legislation". "The tone of the political discourse is becoming sharper", with "harsh criticism of corruption and greed in government circles from a broad spectrum of society". Government, as well as sections of the ANC, the report says, reacts defensively and critics are labelled as "unpatriotic", "enemies" or "counter-revolutionaries". And police, "overreact" against people with critical views whereas whistle-blowers feel increasingly insecure. "There are reports of people who had revealed instances of corruption to the press being threatened or even killed … and there is the suspicion that spooks are everywhere" the report says, quoting Congress of South African Trade Union's Zwelinzima Vavi's statement that many believe that people are listening in to phone conversations.
However, South Africa scored top marks for the fact that entry into and the practice of journalism was legally unrestricted and that websites and blogs were not required to register or get permission from state authorities. The scores dropped in the category: "the right to freedom of expression is practised and citizens, including journalists, are asserting their rights without fear". In 2008 it was 3.2 and in 2010 it was 2.9. The advertising market, according to the survey, was not large enough to support a diversity of media outlets: in 2008 this score was 3.9 and in 2010, it dropped to 2.7 There was a significant decrease in adequate competition legislation/regulation to prevent media concentration and monopolies. In 2008 it was 4.7 and in 2010 it was 2.6. In the same vein, the indictment on broadcasting regulation and its levels of transparency and independence was severe: the 2006 score was 4.6, the 2008 score was 5 and the 2010 score was 3.3. The scores for "public information is easily accessible, guaranteed by law, to all citizens" was generally low for the three years. In 2006, it was 2.7, in 2008 it was 2.3, and in 2010 2.7.
Regarding the provision that there were "no laws restricting freedom of expression such as excessive official secrets or libel acts, or laws that unreasonably interfere with the responsibilities of media", the country scores a good 4, but the report says if the Protection of Information Bill is enacted and if a media appeals tribunal is instituted, it would change the picture.
Applying for information in terms of the Promotion of Access to Information Act of 2002 (Paia) is "cumbersome" and "often requests for information are ignored. Further, many departments did not appoint information officers as required under the act, the report says. Mention is made of the Mail & Guardian winning a High Court order in June 2010, which obliged the government to release a report on the 2002 elections in Zimbabwe. The judge agreed that the release of the report was in the public interest, but government appealed to the Supreme Court of Appeal, lost that appeal in December 2010, and then applied to the Constitutional Court this year. Judgment is pending.
The Secrecy Bill, if enacted, would threaten the gains envisaged in Paia, according to the report.
Source: Mail & Guardian
Thursday, June 30, 2011
Cellphone networks not working
Cellphone service providers Vodacom and MTN were having serious network problems on Thursday, the companies said. "We are currently experiencing network issues in some areas. Our engineering team is working hard to resolve the problem. We apologise to all affected customers," said Vodacom spokesperson Ashleigh Dubbelman.
The contact number provided was a Vodacom number, with no landline number supplied, so further details were not immediately available. However, the company used Twitter to apologise, reply to questions and post short updates, repeating several times that it was not related to the Rica deadline to register sim cards. "We're aware that certain customers are experiencing an inability to call or SMS. Sincere apologies, we're working on a fix :-/," one of the posts read.
In another post they wrote: "...there is a network wide issue on Voice and SMS that some customers are experiencing, we are attending to this." Technicians were working on the problem.
MTN echoed this, also offering apologies.
Source: Mail & Guardian
The contact number provided was a Vodacom number, with no landline number supplied, so further details were not immediately available. However, the company used Twitter to apologise, reply to questions and post short updates, repeating several times that it was not related to the Rica deadline to register sim cards. "We're aware that certain customers are experiencing an inability to call or SMS. Sincere apologies, we're working on a fix :-/," one of the posts read.
In another post they wrote: "...there is a network wide issue on Voice and SMS that some customers are experiencing, we are attending to this." Technicians were working on the problem.
MTN echoed this, also offering apologies.
Source: Mail & Guardian
Cellphone networks not working
Cellphone service providers Vodacom and MTN were having serious network problems on Thursday, the companies said. "We are currently experiencing network issues in some areas. Our engineering team is working hard to resolve the problem. We apologise to all affected customers," said Vodacom spokesperson Ashleigh Dubbelman.
The contact number provided was a Vodacom number, with no landline number supplied, so further details were not immediately available. However, the company used Twitter to apologise, reply to questions and post short updates, repeating several times that it was not related to the Rica deadline to register sim cards. "We're aware that certain customers are experiencing an inability to call or SMS. Sincere apologies, we're working on a fix :-/," one of the posts read.
In another post they wrote: "...there is a network wide issue on Voice and SMS that some customers are experiencing, we are attending to this." Technicians were working on the problem.
MTN echoed this, also offering apologies.
Source: Mail & Guardian -- Sapa
The contact number provided was a Vodacom number, with no landline number supplied, so further details were not immediately available. However, the company used Twitter to apologise, reply to questions and post short updates, repeating several times that it was not related to the Rica deadline to register sim cards. "We're aware that certain customers are experiencing an inability to call or SMS. Sincere apologies, we're working on a fix :-/," one of the posts read.
In another post they wrote: "...there is a network wide issue on Voice and SMS that some customers are experiencing, we are attending to this." Technicians were working on the problem.
MTN echoed this, also offering apologies.
Source: Mail & Guardian -- Sapa
Monday, June 27, 2011
Unlawful application of a lien clause
A service provider can rely on a debtor/creditor as security for its claim. This type of lien, conferred by virtue of an agreement between the creditor and the debtor, is a sub-species of a broader right to retain physical control of another’s property, whether movable or immovable, as a mechanism for securing payment of a claim, until the claim has been met. In other words, the service provider, who makes provision for such a lien in its contract, can refuse to release goods which are in its possession until it has received payment.
An example of the clause which introduces this right into a contract is that often used by clearing and forwarding agents and which might be worded along the following lines: “All goods shall be subject to a special and general lien either for moneys due in respect of such goods or for any other moneys due to the company from the customer, sender, owner, consignee, importer or the holder of the bill of lading or their agents, if any.” Such clause would go on to deal with the right of the clearing and forwarding agents to sell the goods after notice has been given to the debtor, if the debt remains unpaid. Other examples of creditors who may make provision for a lien in their contracts would be builders, motor vehicle repairers, warehousemen, transporters and professionals such as lawyers, accountants and architects.
A clause with wording similar to that quoted above has been tested and applied in cases which have come before our courts in the past – see for example Section 27 Ridgeprop CC t/a Tile Distributors SA v Sharaf Cargo (Pty) Ltd 2009 JDR 1022 (KZN).
The point which immediately jumps out, on reading this clause, is that it envisages a lien which can be exercised over goods which are unrelated to the debt.
Our law accepts that it is reasonable for a creditor to require security for its claim – much commercial activity is entirely dependent on this construct. Our courts recognise the validity of a lien which can be exercised over goods of a debtor in the possession of the lien holder even where the debt relates to other goods of that debtor which may no longer be in the possession of the lien holder. See for example the case of Danzas Trek (Pty) Ltd v du Bourg and Another 1979 (4) SA 915 (W).
Our law, relating to all types of lien, dictates that possession of the goods which constitute the subject matter of the lien is an intrinsic prerequisite for the exercise of this right by the lien holder. It is worth noting that our courts have found, most recently in Oceana Leasing Services (Pty) Ltd v BG Motors (Pty) Ltd 1980 (3) SA 267 (W), that where a lien holder voluntarily releases the property subject to the right, the lien is lost and remains irrevocably extinguished, and it does not revive if the property at a later stage reverts to his control. Hence, a service provider may well have to look to other goods in its possession where it has already delivered or released the goods in respect of which the debt arose.
There is little for the debtor to complain about if the goods which are subjected to the lien are owned by that debtor, who has failed to pay the debt, even if the debt relates to other goods of that debtor.
A more problematic application of such a clause arises when the lien holder contracts with an agent who acts for several principals. In that scenario one may find that a debt relating to goods owned by principal “A” are secured by a lien over goods belonging to principal “B”.
The fact that the clearing and forwarding agent is appointed by an agent who is not the owner of the goods over which the lien is exercised will not ordinarily be a problem for the service provider seeking to enforce its lien, because the agent will have been authorised to bind his principal, the owner, to the terms of the contract concluded with the clearing and forwarding agent. It is only when he acts as agent for several owners that issues of ownership are put in the spotlight.
The lien discussed above is a personal right which the lien holder can exercise against its debtor. This type of lien is not one which can be exercised against the world at large, because of its personal nature.
This personal right can be exercised by the service provider against the agent and accordingly also against its principal, the owner of the goods which are the subject of that lien and who owes the debt, but not against another person who owns goods which happen to be in the possession of the service provider, by virtue of another contract between them.
Because of the personal nature of the lien, where an agent acts for two different principals, the goods belonging to principal “B” cannot lawfully, we submit, be the subject of a lien arising from a debt due in respect of the goods of principal “A”, despite the wording of the clause.
ENS - Edward Nathan Sonnenbergs
Janine Lee
South Africa
Source: Lexology
An example of the clause which introduces this right into a contract is that often used by clearing and forwarding agents and which might be worded along the following lines: “All goods shall be subject to a special and general lien either for moneys due in respect of such goods or for any other moneys due to the company from the customer, sender, owner, consignee, importer or the holder of the bill of lading or their agents, if any.” Such clause would go on to deal with the right of the clearing and forwarding agents to sell the goods after notice has been given to the debtor, if the debt remains unpaid. Other examples of creditors who may make provision for a lien in their contracts would be builders, motor vehicle repairers, warehousemen, transporters and professionals such as lawyers, accountants and architects.
A clause with wording similar to that quoted above has been tested and applied in cases which have come before our courts in the past – see for example Section 27 Ridgeprop CC t/a Tile Distributors SA v Sharaf Cargo (Pty) Ltd 2009 JDR 1022 (KZN).
The point which immediately jumps out, on reading this clause, is that it envisages a lien which can be exercised over goods which are unrelated to the debt.
Our law accepts that it is reasonable for a creditor to require security for its claim – much commercial activity is entirely dependent on this construct. Our courts recognise the validity of a lien which can be exercised over goods of a debtor in the possession of the lien holder even where the debt relates to other goods of that debtor which may no longer be in the possession of the lien holder. See for example the case of Danzas Trek (Pty) Ltd v du Bourg and Another 1979 (4) SA 915 (W).
Our law, relating to all types of lien, dictates that possession of the goods which constitute the subject matter of the lien is an intrinsic prerequisite for the exercise of this right by the lien holder. It is worth noting that our courts have found, most recently in Oceana Leasing Services (Pty) Ltd v BG Motors (Pty) Ltd 1980 (3) SA 267 (W), that where a lien holder voluntarily releases the property subject to the right, the lien is lost and remains irrevocably extinguished, and it does not revive if the property at a later stage reverts to his control. Hence, a service provider may well have to look to other goods in its possession where it has already delivered or released the goods in respect of which the debt arose.
There is little for the debtor to complain about if the goods which are subjected to the lien are owned by that debtor, who has failed to pay the debt, even if the debt relates to other goods of that debtor.
A more problematic application of such a clause arises when the lien holder contracts with an agent who acts for several principals. In that scenario one may find that a debt relating to goods owned by principal “A” are secured by a lien over goods belonging to principal “B”.
The fact that the clearing and forwarding agent is appointed by an agent who is not the owner of the goods over which the lien is exercised will not ordinarily be a problem for the service provider seeking to enforce its lien, because the agent will have been authorised to bind his principal, the owner, to the terms of the contract concluded with the clearing and forwarding agent. It is only when he acts as agent for several owners that issues of ownership are put in the spotlight.
The lien discussed above is a personal right which the lien holder can exercise against its debtor. This type of lien is not one which can be exercised against the world at large, because of its personal nature.
This personal right can be exercised by the service provider against the agent and accordingly also against its principal, the owner of the goods which are the subject of that lien and who owes the debt, but not against another person who owns goods which happen to be in the possession of the service provider, by virtue of another contract between them.
Because of the personal nature of the lien, where an agent acts for two different principals, the goods belonging to principal “B” cannot lawfully, we submit, be the subject of a lien arising from a debt due in respect of the goods of principal “A”, despite the wording of the clause.
Janine Lee
South Africa
Source: Lexology
Sunday, June 26, 2011
ECONOMIC FREEDOM IN OUR LIFETIME: Can we have a proper debate this time?
Joel Netshitenzhe
As the delegates of the ANC Youth League rose from their 24th Congress, the slogan of 'economic freedom in our lifetime' on their lips, the "lost generation" seemed to be returning the favour of generational stereotyping. We, the older lot in society, bemused by a misshapen movement taking root in spite of our apprehensions, had by some quirk of fate become the "bewildered generation". Mesmerised by the antics of individuals, irritated by the seeming immaturity of it all, and bedazzled by the media focus on palace politics, the historic nature of the moment seemed to escape us.
In its January 8th Statement this year, the ANC asserts: "Political emancipation without economic transformation is meaningless. That is why we have to commit ourselves to economic freedom in our lifetime, and the ANC must continue to be in the forefront of that transformation."
What indeed is "economic freedom" and how can it be attained? Is there a common and coherent storyline across society on the final destination and how to reach it?
This historical moment calls for serious societal debate. Imploring the ANC leadership to put its foot down and suppress the debate will not put the genie back in the bottle. Launching ideological missiles about who is more Left and the vanguard of workers, or speculating whether this campaign is a proxy for ANC palace politics, will not smother the appeal of a sentiment.
It is no accident that this issue emerges in this stark form 17 years after the attainment of democracy. Having obliged Kwame Nkrumah's injunction to "seek ye first the political kingdom", economic liberation is an issue that post-liberation states on the continent and elsewhere had to come back to.
The efforts sometimes resulted in welcome success. In many other situations, failure by society honestly and rationally to engage the issue, poor policy choices on the part of leaders, and a brittle and corrupt state produced disastrous results. On the extreme, predatory elites used so-called economic liberation policies such as nationalisation, indigenisation, price controls and tariff barriers for self-enrichment.
It should be expected that youth in our country would be at the forefront of the economic freedom campaign. Just on access to economic opportunities: the employment ratio among 15 - 24 year olds is 13.2% compared to 40% in Asia and Latin America. 48.2% of those available to work in the 20 - 24 age cohort are jobless. 86% of unemployed youths have not gone beyond Grade 12; and two-thirds of these have never worked. This not only has major macro-social implications including crime and youth mortality as well as socio-political stability especially at local level. It is patently unsustainable.
It can be argued that this problem affects many countries. Besides the youth of the Arab Spring, there is concern in Japan about the so-called freeters (freelance arbeiters), mileuristas in Spain and the UK's NEETS (not in education, employment or training). This is what Peter Coy of Bloomberg Business Week describes as "the common element [of] failure - not just of young people to find a place in society, but of society itself to harness the energy, intelligence, and enthusiasm of the next generation".
The irony which is not irrelevant to our own discourse on economic freedom is that in Spain, for instance, the youth's "May 15 movement" of massive demonstrations has led to the recent defeat of the Socialist Party in regional and local elections. According to the Financial Times (17 June 2011), the right-wing Popular Party is expected to win the next general election. And so, counter-intuitively, socio-economic difficulties result in the rise of the right-wing, as the Left is unable to pose and mobilise around alternatives to the status quo. Under such circumstances, phenomena such as Louis Bonaparte's lumpen proletariat in 19th century France, the Tea Party extremists currently in the United States and the Green Bombers across the Limpopo river can gain prominence.
While there may be structural causes to youth marginalisation in many countries, a major contributor to the current problem is the global economic crisis.
South Africa differs in the sheer size of the problem, the low education and skills levels, the very high levels of inequality and the historical and racial dimensions to the phenomenon of youth unemployment. In our situation it is systemic, manifesting even during high growth periods. As the National Planning Commission (NPC) points out in its Diagnostic Overview, the central problem in our country is that too few people are involved in economic activity.
If the slogan, "economic freedom in our lifetime" has to have any meaning, it should aim at addressing this fundamental challenge. The root causes of the problem, the NPC argues, relate among others to the structure of the economy, the quality of education, poorly located and inadequate infrastructure, a resource-intensive path dependency, and spatial economic and settlement patterns.
A growth story line
South Africa needs a growth storyline that addresses these issues and clearly describes:
* how we can use the infrastructure programme not only to crowd in the private sector, but also to build supplier industries that will absorb more labour;
* the competitive advantages that we need to forge, to be able to manufacture many of the mass market goods that we currently import;
* a strategy fully to take advantage of our massive mineral endowments to exploit the commodities super-cycle and more critically to build a mature industrial cluster around these endowments;
* how we can take advantage of these and other endowments and potential to build a green economy that is more than just cost-neutral; and
* a clear strategy to take advantage of the high economic growth rates on the continent through regional integration and the pooling of sovereignty.
We should build "an economy in which cutting edge technology, labour-absorbing industrial development, a thriving small business and co-operative sector, utilisation of information and communication technologies and efficient forms of production and management all combine to ensure national prosperity" (2007 ANC Strategy and Tactics document). This will ensure that we escape the middle income country syndrome - where countries reach a level of development and then stagnate, unable to break out because of path dependency and sheer inertia.
However, the immediate challenge of unemployment, particularly among the youth, cannot wait until high growth over some 5 years starts to have qualitative impact. By then, the ticking time-bomb may have gone off. As such, specific programmes to address this deficit need to be pursued. Besides the public works programme, this should include measures such as massive artisanship training, learnerships, a school-to-work transition programme, job transition through the state and so on.
At the same time, programmes to address asset poverty including housing and land reform need to be intensified. And the approach to BEE should also focus on community trusts for youth and women as well as employee share ownership schemes. With regard to land, policy and planning should take account of the reasons why measures such as the audit of state land, the Communal Land Rights Act, the Land Use Management Bill, revival of collapsed agricultural schemes and other support programmes in rural areas are taking so long fully to materialise.
It is this kind of methodology, firstly, to identify the objective, and then the processes and mechanisms required to achieve it, that should inform the approach of the 'economic freedom movement'.
Source: ANC Umrabulo
Thursday, June 23, 2011
8ta drops broadband bomb on rivals
Telkom's new mobile operator, 8ta, has dropped a bomb on rivals Vodacom, MTN and Cell C, introducing a cut-rate broadband product offering 10GB of data a month for R199 on a 24-month contract. For an additional R100 per month, users will have 20GB of bandwidth -- 10GB plus an extra 10GB for use between midnight and 5am.
The 10GB package equates to an effective cost-per-megabyte of less than 2c, making it the most aggressive mobile broadband pricing in South Africa to date. The out-of-bundle rate is 30 cents per megabyte and no modem is included in the packages.
The offer will only work in areas where Telkom has built 8ta towers and will not work in areas where the company relies on roaming partner MTN for coverage. 8ta has almost 1 000 active mobile broadband base stations across the country, and has said it will have more than 2 000 by March next year.
Amith Maharaj, managing executive of Telkom Mobile, says consumers have expressed concern about the cost of mobile data and he believes 8ta's aggressive new pricing will help win over those customers. "Price has seemed to be the barrier to entry until now," Maharaj says.
He emphasises that the two new products are a special offer only. However, he won't say when the special offer will end. Customers who sign up for a 24-month contract are guaranteed the prices won't increase throughout the contract period. -- TechCentral
Source: Mail & Guardian
The 10GB package equates to an effective cost-per-megabyte of less than 2c, making it the most aggressive mobile broadband pricing in South Africa to date. The out-of-bundle rate is 30 cents per megabyte and no modem is included in the packages.
The offer will only work in areas where Telkom has built 8ta towers and will not work in areas where the company relies on roaming partner MTN for coverage. 8ta has almost 1 000 active mobile broadband base stations across the country, and has said it will have more than 2 000 by March next year.
Amith Maharaj, managing executive of Telkom Mobile, says consumers have expressed concern about the cost of mobile data and he believes 8ta's aggressive new pricing will help win over those customers. "Price has seemed to be the barrier to entry until now," Maharaj says.
He emphasises that the two new products are a special offer only. However, he won't say when the special offer will end. Customers who sign up for a 24-month contract are guaranteed the prices won't increase throughout the contract period. -- TechCentral
Source: Mail & Guardian
Saturday, June 18, 2011
Yemen’s Unfinished Revolution
AFTER more than five months of continuous protests, I stand today in Change Square with thousands of young people united by a lofty dream. I have spent days and nights camped out in tents with fellow protesters; I have led demonstrations in the streets facing the threat of mortars, missiles and gunfire; I have struggled to build a movement for democratic change — all while caring for my three young children.
We have reached this historic moment because we chose to march in the streets demanding the resignation of President Ali Abdullah Saleh, an end to his corrupt and failed regime and the establishment of a modern democratic state. On June 4, our wish for Mr. Saleh’s departure was granted, but our demand for democracy remains unfulfilled. Following months of peaceful protests that reached every village, neighborhood and street, Yemen is now facing a complete vacuum of authority; we are without a president or parliament. Mr. Saleh may be gone, but authority has not yet been transferred to a transitional presidential council endorsed by the people. This is because the United States and Saudi Arabia, which have the power to ensure a peaceful transition to democracy in Yemen, have instead used their influence to ensure that members of the old regime remain in power and the status quo is maintained. American counterterrorism agencies and the Saudi government have a firm grip on Yemen at the moment. It is they, not the Yemeni people and their constitutional institutions, that control the country.
American intervention in Yemen is a product of the war on terror. In exchange for military and intelligence partnerships established after the bombing of the American destroyer Cole in 2000, the United States provided the Saleh regime with increased economic aid and military assistance. Because American security was given priority over all other concerns, counterterrorism agencies paid no attention to the human rights abuses being committed by their local partners. Indeed, American officials chose as local partners the Central Security Forces, the National Security Agency and the Republican Guard, all of which are controlled by Mr. Saleh’s sons and nephews. As a result of their partnership with United States counterterrorism agencies, these organizations received generous American financing as well as guidance and technical assistance. Because America has invested so heavily in Yemen’s security forces, it now seems that a transition to democracy will depend on whether Washington believes that investment will remain secure. The establishment of a new government will therefore be contingent on American officials’ approving the country’s new leaders. Sadly, it seems likely that the United States will support figures from the old regime rather than allow a transitional government approved by the people to take control of Yemen. This would be a grave mistake.
American policy makers must understand that the activists and young people who started Yemen’s peaceful revolution deeply respect the United States and Western civilization. Indeed, it was in Washington and other capitals throughout the free world that many of these activists learned the peaceful methods they employed during our revolution. We call on American officials to engage with the leaders of Yemen’s democracy movement and abandon their misplaced investment in the old regime’s security apparatus, which has killed more innocent women and children than terrorists. We understand America’s concerns about terrorism and recognize your right to attack terrorist sanctuaries. We have no objection to agreements that protect your security interests. We only ask that you respect international standards on human rights and the Yemeni people’s rights to freedom and justice.
On behalf of many of the young people involved in Yemen’s revolution, I assure the American people that we are ready to engage in a true partnership. Together, we can eliminate the causes of extremism and the culture of terrorism by bolstering civil society and encouraging development and stability. We also call upon our Saudi neighbors to let us pursue a democratic path. For 50 years, the Saudi government has provided a special committee of its ministers with an enormous annual budget to intervene in Yemeni affairs. Over the years, this committee has consistently meddled in Yemen’s domestic politics and exerted considerable influence over the country’s development. In many cases, Yemeni tribal leaders and other prominent individuals have received far more generous aid payments from Riyadh than from the Yemeni government.
Saudi interference in Yemen is also motivated by a fear that the Arab Spring, which spread from Tunis and Cairo to Sana, might soon reach Riyadh. But the fear that our revolution will cross the border is unfounded. This is an information age revolution; it spreads through Facebook, Twitter and other social media, which are not subject to political boundaries. We ask our neighbors in Saudi Arabia to stop hindering the rule of law and healthy economic development through the purchase of politicians and tribal leaders. We also call on the Saudi government to stop pursuing policies that undermine the people’s desire for democratic change. Saudi initiatives that aim to remove the president while keeping the old regime and its security apparatus intact risk unleashing a civil war, which would no doubt have dire consequences for Saudi Arabia as well as for Yemen.
The young people of this revolution have made their demands clear: authority must be handed over to a transitional presidential council approved by the people. This council will manage the country until a constitutional referendum and elections can be held. And the government’s security forces must never again be used to serve the personal agendas of government officials or to establish a monopoly on power.
Yemen’s people have charted the course of revolution and we will follow this course to its end. We have left our authoritarian past behind. Now, we ask our friends in Washington and Riyadh to help us build a democratic future.
Source: New York Times
We have reached this historic moment because we chose to march in the streets demanding the resignation of President Ali Abdullah Saleh, an end to his corrupt and failed regime and the establishment of a modern democratic state. On June 4, our wish for Mr. Saleh’s departure was granted, but our demand for democracy remains unfulfilled. Following months of peaceful protests that reached every village, neighborhood and street, Yemen is now facing a complete vacuum of authority; we are without a president or parliament. Mr. Saleh may be gone, but authority has not yet been transferred to a transitional presidential council endorsed by the people. This is because the United States and Saudi Arabia, which have the power to ensure a peaceful transition to democracy in Yemen, have instead used their influence to ensure that members of the old regime remain in power and the status quo is maintained. American counterterrorism agencies and the Saudi government have a firm grip on Yemen at the moment. It is they, not the Yemeni people and their constitutional institutions, that control the country.
American intervention in Yemen is a product of the war on terror. In exchange for military and intelligence partnerships established after the bombing of the American destroyer Cole in 2000, the United States provided the Saleh regime with increased economic aid and military assistance. Because American security was given priority over all other concerns, counterterrorism agencies paid no attention to the human rights abuses being committed by their local partners. Indeed, American officials chose as local partners the Central Security Forces, the National Security Agency and the Republican Guard, all of which are controlled by Mr. Saleh’s sons and nephews. As a result of their partnership with United States counterterrorism agencies, these organizations received generous American financing as well as guidance and technical assistance. Because America has invested so heavily in Yemen’s security forces, it now seems that a transition to democracy will depend on whether Washington believes that investment will remain secure. The establishment of a new government will therefore be contingent on American officials’ approving the country’s new leaders. Sadly, it seems likely that the United States will support figures from the old regime rather than allow a transitional government approved by the people to take control of Yemen. This would be a grave mistake.
American policy makers must understand that the activists and young people who started Yemen’s peaceful revolution deeply respect the United States and Western civilization. Indeed, it was in Washington and other capitals throughout the free world that many of these activists learned the peaceful methods they employed during our revolution. We call on American officials to engage with the leaders of Yemen’s democracy movement and abandon their misplaced investment in the old regime’s security apparatus, which has killed more innocent women and children than terrorists. We understand America’s concerns about terrorism and recognize your right to attack terrorist sanctuaries. We have no objection to agreements that protect your security interests. We only ask that you respect international standards on human rights and the Yemeni people’s rights to freedom and justice.
On behalf of many of the young people involved in Yemen’s revolution, I assure the American people that we are ready to engage in a true partnership. Together, we can eliminate the causes of extremism and the culture of terrorism by bolstering civil society and encouraging development and stability. We also call upon our Saudi neighbors to let us pursue a democratic path. For 50 years, the Saudi government has provided a special committee of its ministers with an enormous annual budget to intervene in Yemeni affairs. Over the years, this committee has consistently meddled in Yemen’s domestic politics and exerted considerable influence over the country’s development. In many cases, Yemeni tribal leaders and other prominent individuals have received far more generous aid payments from Riyadh than from the Yemeni government.
Saudi interference in Yemen is also motivated by a fear that the Arab Spring, which spread from Tunis and Cairo to Sana, might soon reach Riyadh. But the fear that our revolution will cross the border is unfounded. This is an information age revolution; it spreads through Facebook, Twitter and other social media, which are not subject to political boundaries. We ask our neighbors in Saudi Arabia to stop hindering the rule of law and healthy economic development through the purchase of politicians and tribal leaders. We also call on the Saudi government to stop pursuing policies that undermine the people’s desire for democratic change. Saudi initiatives that aim to remove the president while keeping the old regime and its security apparatus intact risk unleashing a civil war, which would no doubt have dire consequences for Saudi Arabia as well as for Yemen.
The young people of this revolution have made their demands clear: authority must be handed over to a transitional presidential council approved by the people. This council will manage the country until a constitutional referendum and elections can be held. And the government’s security forces must never again be used to serve the personal agendas of government officials or to establish a monopoly on power.
Yemen’s people have charted the course of revolution and we will follow this course to its end. We have left our authoritarian past behind. Now, we ask our friends in Washington and Riyadh to help us build a democratic future.
Source: New York Times
Thursday, June 16, 2011
Vodacom grows customers, profit
Vodacom has grown its customer base significantly while headline earning per share have grown by 29%, according to its preliminary results released on Monday. "Group customers increased 9% percent to 43,5-million," Vodacom said in a statement on its results for the year ended March 31, 2011. Headline earnings per share -- a measure of profit -- were up 28,6% to 656 cents per share.
"Credit to the team for the financial and operational results, delivered in an environment of mobile termination rate reductions, price reductions and inflationary cost pressure," Vodacom Group CEO Pieter Uys said. "This has been achieved through a sharp focus on the customer experience, the R6,3-million capital invested in our networks and delivering on our R500 million cost efficiency programme. "The resulting 51% increase in total shareholder returns is really pleasing," he said.
The company declared a final dividend of 280 cents per share. Vodacom's group data revenue increased by 35,5% to R6,4-million while it had a 34,6% growth in its South African data customers to nine million. "The decision we took some years ago to lead the industry on mobile data is bearing fruit," said Uys. "The combination of considerable investment in new base stations and taking charge of our own transmission has put us in an enviable position. The new dual-carrier technology that we're rolling out across the network has both speed and capacity benefits and will support continued growth in the data business."
Source: Mail & Guardian -- Sapa
"Credit to the team for the financial and operational results, delivered in an environment of mobile termination rate reductions, price reductions and inflationary cost pressure," Vodacom Group CEO Pieter Uys said. "This has been achieved through a sharp focus on the customer experience, the R6,3-million capital invested in our networks and delivering on our R500 million cost efficiency programme. "The resulting 51% increase in total shareholder returns is really pleasing," he said.
The company declared a final dividend of 280 cents per share. Vodacom's group data revenue increased by 35,5% to R6,4-million while it had a 34,6% growth in its South African data customers to nine million. "The decision we took some years ago to lead the industry on mobile data is bearing fruit," said Uys. "The combination of considerable investment in new base stations and taking charge of our own transmission has put us in an enviable position. The new dual-carrier technology that we're rolling out across the network has both speed and capacity benefits and will support continued growth in the data business."
Source: Mail & Guardian -- Sapa
Sunday, June 12, 2011
Right-wing demagogy the greatest threat - SACP
Central Committee warns against dangerous tendency within ANC alliance
SACP Central Committee Statement
The Central Committee of the SACP met in Johannesburg over the weekend of the 10-12th June. An analysis of the May 18th local government elections, an interaction on challenges within the youth sector (in which we were joined by the national executive committee of the Young Communist League), further consolidation of the SACP's perspectives on government's New Growth Path framework document, and preparations for the commemoration of the SACP's 90th anniversary were among the main items under discussion.
The CC suspended deliberations for most of Saturday to enable CC members to join thousands of other South Africans at the funeral of our beloved leader, cde Albertina Sisulu. Cde Albertina was the second recipient (after cde Madiba) of the SACP's Chris Hani Peace Award. Hamba kahle, Mama Sisulu! May we never forget your inspiring example of courageous, militant and unassuming service to the people of South Africa - you passed on with your dignity and integrity intact.
May 18th Local Government elections
The SACP was an active partner in the ANC's local government election campaign from the outset with the development of the election manifesto, through the candidate selection process, and into mass mobilization and door-to-door work. The CC saluted the role played by our tens of thousands of activists in the campaign.
The CC also congratulated the many communist militants who, in their capacity as ANC members and leaders, have been elected as councilors. In particular, the CC congratulated CC member, cde Zukiswa Ncitha who has been elected mayor of the new Buffalo City Metro, and KZN SACP chairperson, cde James Nxumalo, elected as mayor of the eThekwini metro.
These positive developments which bring added responsibilities to the Party and its members are in line with our medium term vision of seeking to build progressive influence and working class hegemony in all sites of struggle. The SACP calls on all ANC councilors not to take the electorate for granted and to ensure that with our support we rise to the expectations expressed in the campaign.
The CC agreed that with 63% of the vote the ANC together with its alliance partners had, once more, received an overwhelming electoral mandate. The CC further noted that this significant electoral victory was achieved in challenging circumstances - in the midst of the local aftershocks of the global economic crisis, and in the context of many challenges in the local government sphere. In many other countries, from the US to Spain, previously incumbent political parties have suffered massive electoral defeats in the midst of the economic crisis. The ANC-alliance's sustained performance and continued overwhelming majority support from our core constituencies is, therefore, particularly noteworthy.
However, the ANC-alliance would also be seriously mistaken if we did not take note of many warning lights from this election campaign. There was, for a local election, an exceptional voter turnout.
Some of this was attributable to the DA's ability to turn out a very high level of support in so-called "minority", and particularly white areas. But the high turnout was also a popular response from our mass base in provinces and municipalities where the working class and poor sensed that their organizations and their struggle were under threat from an axis of anti-majoritarian forces that included the major media houses, right-wing NGOs like Afriforum, and the DA.
But in other provinces and municipalities there was a noticeable decline in ANC voter turnout, which is in part an indication of frustration with corruption and ineffective ANC performance in some municipalities.
The SACP welcomed the innovative ANC candidate selection process that involved active community participation. Amongst other things, this approach to candidate selection sought to bring popular power to bear in the struggle against organizational gate-keeping, tenderpreneurship, and money-politics. In some cases, regional gate-keepers and money politics still managed to either side-step or hijack the community participation process provoking some of the current popular anger - but, overwhelmingly, community participation proved to be a very positive process. The SACP will be strongly supporting this approach for future elections, while learning lessons and adapting where needed.
The CC noted the many subjective and objective problems in the local government sphere. Much criticism of local government focuses, often correctly, on subjective weaknesses - inappropriate deployments, corruption, tenderpreneurship, etc. However, we need also to look at the objective challenges in the current model of local government and the impossible challenges with which many local governments are confronted. The SACP supports the overall thrust of the Municipal Systems Amendment Bill that has passed through both houses in parliament and now awaits presidential proclamation.
We also support turnaround proposals from the Cooperative Governance and Traditional Affairs department . Amongst other things, we support the measure that office bearers (not members) of political parties should not occupy senior administrative posts in local government; and the need for a more clearly defined separation between the roles of elected councilors and administrators. The SACP strongly supports the critical need to strengthen popular participatory involvement in local government through, amongst other things, ward committees. These measures are not just legalistic and institutional responses to challenges.
They are aimed at professionalizing and greatly improving the efficiency and effectiveness of local government. They will also help to strike at the heart of areas in which corruption and tenderpreneurship have often proliferated. Other critical areas that require attention include the funding model for local government, and the key role of district municipalities in rural development.
Right-wing demagogy within the ranks of the broader movement - the greatest threat to the national democratic revolution
There are many lessons that need to be derived from the May 18th election campaign - but the greatest of all is that factionalism led by a dangerous right-wing demagogy within our broader movement is costing us dearly. This demagogy constitutes the greatest threat, not just to our electoral performance, but also to our hard-won democratic achievements as a country in general.
We are dealing with an anti-worker, anti-left, anti-communist, pseudo-militant demagogy that betrays all of our long-held ANC-alliance traditions of internal organizational democracy, mutual respect for comrades, non-racialism, and service to our people. It has created substantial space for an anti-majoritarian, conservative reactive groundswell that seeks to tarnish the whole movement, portraying us all as anti-constitutionalist and as narrow nationalist chauvinists.
The SACP calls on our Alliance partners to unite, to close ranks and to deal decisively with this grave threat. Closing ranks does not mean that various other debates and differences amongst us should be suppressed - but it does mean that within and across our Alliance we must not open up a dozen fronts of fractious public dispute, as if all differences and debates were of equal significance.
So how do we unite to confront the demagogic challenge? There is one fundamental response - across the Alliance we need to take up with renewed vigour the programme of action that we have agreed upon at the ANC's 2007 Polokwane conference and in subsequent Alliance summits. The programme of action embraces five key pillars - jobs, education and training, health, rural development and the fight against crime and corruption. It is a programme of action that must combine the determined exercise of state power and active mobilization of popular forces.
In the midst of media-supported diversions we often lose sight of very important gains made in these key areas of transformation. Popular mobilization and a change in government policy have seen, for instance, a very significant reduction of mother-to-child HIV/Aids transmission - saving an estimated 67,000 children. There have been important gains in funding students through a reinvigorated mandate for NSFAS. National Treasury has announced very important corruption-busting measures that name and shame fronting and other tenderpreneuring activities and prevent those involved in doing business with government. All of these measures have been won as a result of popular struggles and a more determined and strategic use of state power.
But these advances must be replicated across the board, and particularly in areas of burning concern - notably the crisis of unemployment (especially youth unemployment) and rural development - including the critical questions of accelerated land reform and sustainable rural livelihoods. The CC supports the Department of Land Affairs and Rural Development's intention to bring to cabinet the proposal of reopening the land restitution program. The SACP has resolved to pursue our cooperatives campaign linking this much more actively to prescribed state procurement policies. The SACP will also be closely studying the important Indian rural work-guarantee programme, we believe it has important potential application to SA when addressing rural development and youth unemployment.
The crisis in Swaziland
The deepening economic and social crisis in Swaziland in the midst of a ruling elite's squandering of resources, underlines the importance of increased pressure to ensure that this backward feudal dispensation is finally democratized. The CC noted and welcomed the recent launch of a Swaziland Communist Party which is already making an important impact in strengthening the broader democratic movement.
Forward to the 90th anniversary of the SACP!
The end of July marks the 90th anniversary of the Communist Party in South Africa. In the course of nine decades, the Communist Party has made an indelible contribution to the South African struggle and to our new democratic dispensation. The Communist Party was the first, and for many decades the only, political party in SA that not only aspired to a non-racial future, but had an active membership of black and white comrades shoulder-to-shoulder in struggle. The Communist Party pioneered militant trade unionism, and progressive journalism in SA. As many generations of outstanding ANC leaders, among them cde Nelson Mandela, have acknowledged, the Party has also made an outstanding contribution to consolidating and defending a mass-based and campaigning ANC.
The 90th anniversary celebrations will be launched on the 3rd July in Bushbuckridge, in Mpumalanga, with many Red Forums and other activities in all provinces, culminating in a main rally on 31 July at Sugar Ray Xulu Stadium, Clermont in KZN.
Statement issued by the SACP, June 12 2011
Source: Politicsweb
SACP Central Committee Statement
The Central Committee of the SACP met in Johannesburg over the weekend of the 10-12th June. An analysis of the May 18th local government elections, an interaction on challenges within the youth sector (in which we were joined by the national executive committee of the Young Communist League), further consolidation of the SACP's perspectives on government's New Growth Path framework document, and preparations for the commemoration of the SACP's 90th anniversary were among the main items under discussion.
The CC suspended deliberations for most of Saturday to enable CC members to join thousands of other South Africans at the funeral of our beloved leader, cde Albertina Sisulu. Cde Albertina was the second recipient (after cde Madiba) of the SACP's Chris Hani Peace Award. Hamba kahle, Mama Sisulu! May we never forget your inspiring example of courageous, militant and unassuming service to the people of South Africa - you passed on with your dignity and integrity intact.
May 18th Local Government elections
The SACP was an active partner in the ANC's local government election campaign from the outset with the development of the election manifesto, through the candidate selection process, and into mass mobilization and door-to-door work. The CC saluted the role played by our tens of thousands of activists in the campaign.
The CC also congratulated the many communist militants who, in their capacity as ANC members and leaders, have been elected as councilors. In particular, the CC congratulated CC member, cde Zukiswa Ncitha who has been elected mayor of the new Buffalo City Metro, and KZN SACP chairperson, cde James Nxumalo, elected as mayor of the eThekwini metro.
These positive developments which bring added responsibilities to the Party and its members are in line with our medium term vision of seeking to build progressive influence and working class hegemony in all sites of struggle. The SACP calls on all ANC councilors not to take the electorate for granted and to ensure that with our support we rise to the expectations expressed in the campaign.
The CC agreed that with 63% of the vote the ANC together with its alliance partners had, once more, received an overwhelming electoral mandate. The CC further noted that this significant electoral victory was achieved in challenging circumstances - in the midst of the local aftershocks of the global economic crisis, and in the context of many challenges in the local government sphere. In many other countries, from the US to Spain, previously incumbent political parties have suffered massive electoral defeats in the midst of the economic crisis. The ANC-alliance's sustained performance and continued overwhelming majority support from our core constituencies is, therefore, particularly noteworthy.
However, the ANC-alliance would also be seriously mistaken if we did not take note of many warning lights from this election campaign. There was, for a local election, an exceptional voter turnout.
Some of this was attributable to the DA's ability to turn out a very high level of support in so-called "minority", and particularly white areas. But the high turnout was also a popular response from our mass base in provinces and municipalities where the working class and poor sensed that their organizations and their struggle were under threat from an axis of anti-majoritarian forces that included the major media houses, right-wing NGOs like Afriforum, and the DA.
But in other provinces and municipalities there was a noticeable decline in ANC voter turnout, which is in part an indication of frustration with corruption and ineffective ANC performance in some municipalities.
The SACP welcomed the innovative ANC candidate selection process that involved active community participation. Amongst other things, this approach to candidate selection sought to bring popular power to bear in the struggle against organizational gate-keeping, tenderpreneurship, and money-politics. In some cases, regional gate-keepers and money politics still managed to either side-step or hijack the community participation process provoking some of the current popular anger - but, overwhelmingly, community participation proved to be a very positive process. The SACP will be strongly supporting this approach for future elections, while learning lessons and adapting where needed.
The CC noted the many subjective and objective problems in the local government sphere. Much criticism of local government focuses, often correctly, on subjective weaknesses - inappropriate deployments, corruption, tenderpreneurship, etc. However, we need also to look at the objective challenges in the current model of local government and the impossible challenges with which many local governments are confronted. The SACP supports the overall thrust of the Municipal Systems Amendment Bill that has passed through both houses in parliament and now awaits presidential proclamation.
We also support turnaround proposals from the Cooperative Governance and Traditional Affairs department . Amongst other things, we support the measure that office bearers (not members) of political parties should not occupy senior administrative posts in local government; and the need for a more clearly defined separation between the roles of elected councilors and administrators. The SACP strongly supports the critical need to strengthen popular participatory involvement in local government through, amongst other things, ward committees. These measures are not just legalistic and institutional responses to challenges.
They are aimed at professionalizing and greatly improving the efficiency and effectiveness of local government. They will also help to strike at the heart of areas in which corruption and tenderpreneurship have often proliferated. Other critical areas that require attention include the funding model for local government, and the key role of district municipalities in rural development.
Right-wing demagogy within the ranks of the broader movement - the greatest threat to the national democratic revolution
There are many lessons that need to be derived from the May 18th election campaign - but the greatest of all is that factionalism led by a dangerous right-wing demagogy within our broader movement is costing us dearly. This demagogy constitutes the greatest threat, not just to our electoral performance, but also to our hard-won democratic achievements as a country in general.
We are dealing with an anti-worker, anti-left, anti-communist, pseudo-militant demagogy that betrays all of our long-held ANC-alliance traditions of internal organizational democracy, mutual respect for comrades, non-racialism, and service to our people. It has created substantial space for an anti-majoritarian, conservative reactive groundswell that seeks to tarnish the whole movement, portraying us all as anti-constitutionalist and as narrow nationalist chauvinists.
The SACP calls on our Alliance partners to unite, to close ranks and to deal decisively with this grave threat. Closing ranks does not mean that various other debates and differences amongst us should be suppressed - but it does mean that within and across our Alliance we must not open up a dozen fronts of fractious public dispute, as if all differences and debates were of equal significance.
So how do we unite to confront the demagogic challenge? There is one fundamental response - across the Alliance we need to take up with renewed vigour the programme of action that we have agreed upon at the ANC's 2007 Polokwane conference and in subsequent Alliance summits. The programme of action embraces five key pillars - jobs, education and training, health, rural development and the fight against crime and corruption. It is a programme of action that must combine the determined exercise of state power and active mobilization of popular forces.
In the midst of media-supported diversions we often lose sight of very important gains made in these key areas of transformation. Popular mobilization and a change in government policy have seen, for instance, a very significant reduction of mother-to-child HIV/Aids transmission - saving an estimated 67,000 children. There have been important gains in funding students through a reinvigorated mandate for NSFAS. National Treasury has announced very important corruption-busting measures that name and shame fronting and other tenderpreneuring activities and prevent those involved in doing business with government. All of these measures have been won as a result of popular struggles and a more determined and strategic use of state power.
But these advances must be replicated across the board, and particularly in areas of burning concern - notably the crisis of unemployment (especially youth unemployment) and rural development - including the critical questions of accelerated land reform and sustainable rural livelihoods. The CC supports the Department of Land Affairs and Rural Development's intention to bring to cabinet the proposal of reopening the land restitution program. The SACP has resolved to pursue our cooperatives campaign linking this much more actively to prescribed state procurement policies. The SACP will also be closely studying the important Indian rural work-guarantee programme, we believe it has important potential application to SA when addressing rural development and youth unemployment.
The crisis in Swaziland
The deepening economic and social crisis in Swaziland in the midst of a ruling elite's squandering of resources, underlines the importance of increased pressure to ensure that this backward feudal dispensation is finally democratized. The CC noted and welcomed the recent launch of a Swaziland Communist Party which is already making an important impact in strengthening the broader democratic movement.
Forward to the 90th anniversary of the SACP!
The end of July marks the 90th anniversary of the Communist Party in South Africa. In the course of nine decades, the Communist Party has made an indelible contribution to the South African struggle and to our new democratic dispensation. The Communist Party was the first, and for many decades the only, political party in SA that not only aspired to a non-racial future, but had an active membership of black and white comrades shoulder-to-shoulder in struggle. The Communist Party pioneered militant trade unionism, and progressive journalism in SA. As many generations of outstanding ANC leaders, among them cde Nelson Mandela, have acknowledged, the Party has also made an outstanding contribution to consolidating and defending a mass-based and campaigning ANC.
The 90th anniversary celebrations will be launched on the 3rd July in Bushbuckridge, in Mpumalanga, with many Red Forums and other activities in all provinces, culminating in a main rally on 31 July at Sugar Ray Xulu Stadium, Clermont in KZN.
Statement issued by the SACP, June 12 2011
Source: Politicsweb
Friday, June 10, 2011
Zuma's move on Ngcobo 'illegal'
Hoffman described Zuma's recent decision to extend Ngcobo's term by another five years as "unconstitutional, illegal and invalid". "I say this with a heavy heart. Sandile Ngcobo is a proper judge because he knows what the role of the rule of law is in a constitutional democracy. "And if an Act of Parliament were to be passed that would extend his term, I would welcome his reappointment," said Hoffman. "But as no Act of Parliament that allows this extension has been passed, I must be true to the law and therefore critical of the president's decision."
Ngcobo's 12-year term is coming to an end in September, but Zuma announced last week he would be extending the term to 2016 in terms of the Judges' Remuneration and Conditions of Employment Act. Legal sources said that Moseneke was widely regarded in legal circles as "too independent" for the post. In 2008 the ANC issued a statement complaining that comments Moseneke made at his birthday party had shown disdain for its delegates to the ANC's national conference in Polokwane in 2007, but it later retracted its complaint. At the time Moseneke was quoted by the Sunday Times as saying: "I chose this job very carefully. I have another 10 to 12 years on the Bench and I want to use my energy to help create an equal society. It's not what the ANC wants or what the delegates want; it is about what is good for the people."
Hoffman said Zuma might also be concerned about three coming legal challenges in the Constitutional Court, two by the Democratic Alliance -- the controversial appointment of Menzi Simelane as prosecutions boss and the decision by former acting prosecutions head Mokotedi Mpshe to drop corruption charges against Zuma -- and Terry Crawford-Brown's bid to force Zuma to appoint a commission of inquiry into the R30-billion arms deal in which Zuma himself was implicated. Hoffman said the Constitution clearly stated that a Constitutional Court judge could hold office for a non-renewable term of 12 years, or until he or she reached the age of 70, whichever occurred first, except where an Act of Parliament extended the term of office of a particular judge.
Professor Pierre de Vos, a constitutional law expert, wrote in his online blog, Constitutionally Speaking, that the Constitution was amended in 2001 to accommodate respected former chief justice Arthur Chaskalson and extend his term of office but after much heated debate Chaskalson retired. "At the time, many constitutional lawyers argued that this amendment was unwise and opposed it. Some lawyers who respected and even revered Chaskalson had a problem with the amendment (generally known as the Chaskalson amendment) because it was argued that as a matter of principle it was unwise for politicians to be involved in extending the term of office of a judge, especially the chief justice." The problem was that it would create the impression that the judge was not independent, he said.
Professor Raylene Keightley, director of the Centre for Applied Legal Studies at Wits University, said the legal provisions that the president used to extend the chief justice's term would be challenged. "We wish to emphasise that the challenge is not directed at the current chief justice, or at his competence, integrity or other attributes. The case raises fundamentally important constitutional issues involving among others, the independence of the judiciary. "Clarity on these issues is of vital importance to the administration of justice in South Africa and our challenge is therefore brought with the broader public interest in mind," Keightley said.
Source: Mail & Guardian
Wednesday, June 8, 2011
Is self-help allowed under our new constitution?
Many of us are far too quick to enter into agreements without paying close enough attention to their terms. The folly of this laissez faire approach becomes all too clear when things go wrong and we are surprised to find ourselves at the wrong end of the bargain.
It is at this point that we are reminded of the principle of South African law to the effect that a contracting party is bound by the terms of any contract which has been concluded by him/her. The correct time to complain about a contractual term is before the conclusion of the deal, and not later when the effects of this term are felt.
Our courts recognize that people’s right to freedom of contract should be respected and that this entails giving effect to the terms of agreements reached between the parties, even if these terms are onerous or prejudicial to the interests of one of the parties. We are free to agree to any terms, as long as these are not unlawful. Having agreed to a set of terms, we must be held to this bargain. Our law has also always recognised that, notwithstanding the aforesaid principle, effect ought not to be given to contractual terms which are contrary to public policy. The effect of the new Constitution of South Africa has been, inter alia, to flesh out the meaning of “public policy”. In short if a clause constitutes an unwarranted infringement of a right guaranteed in terms of the Bill of Rights, that clause may be susceptible to attack on the basis that it is contrary to public policy.
The approach of our courts is to conduct an enquiry where the first question is: Is the contractual clause in question per se contrary to public policy? If the answer is in the affirmative then the enquiry need not go any further - the clause is invalid. A contractual term may appear innocuous but its effect in particular circumstances may well offend public interest. Therefore, even if the first question is answered in the negative, the enquiry is not necessarily complete and a further question is posed, namely - Does the operation of the clause in the prevailing circumstances render it contrary to public policy?
In order to answer the questions relating to public policy regard must be taken of our Bill of Rights. One of the rights enshrined in the Bill of Rights is the right of access to our courts, which reads: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.” This right is directed against a tendency for parties to take the law into their own hands.
Our courts are constantly working through a massive backlog of civil cases and legal process can drag on for years before any result is achieved. It is not surprising, therefore, that attempts are made to obviate the need to refer issues to the courts. For example, a company which repairs a motor vehicle or electronic equipment may seek the power to sell off the car or tv if the repair costs are not paid on time. A trucking company wants the right to sell off goods which it has transported, if its charges are not paid when due. Do contractual clauses which are aimed at allowing the repairer or transporter to auction goods, without obtaining a court order, fall foul of public policy because they amount to an abuse of the right to access to our courts?
This argument was made in the case Juglal NO and Another v Shopright Checkers (Pty) Ltd t/a OK Franchise Division1 where the court analysed the contractual clause in question and concluded that it regulated the rights of the parties vis-á-vis each other but said nothing about ousting the authority of the courts or restricting the parties’ access to the courts or making a court application unnecessary before action could be taken to perfect the security contemplated in the clause. However, the court did say “That the respondent subjected the terms of the contract and its implementation to the intervention and oversight of the court takes much of the sting out of the appellant’s complaint about the arbitrary, unreasonable and oppressive nature of the contractual powers conferred on it.”
In other words, when considering the second leg of the test discussed above, the court was positively influenced by the fact that the appellant had sought the authority of the court before proceeding to sell the goods which represented his security, even though the clause did not necessarily compel the appellant to do so.
A clause which seeks to oust the jurisdiction of the court would be unconstitutional. If the clause does not prohibit an approach to the court or expressly make an application to court unnecessary, it is probably not, per se, contrary to public policy.
However, an attempt to sell the goods without first seeking court authorisation would often be found to be an infringement of the right of access to court which is enshrined in the Constitution. In other words it may be found to be contrary to public policy in its effect, especially where the debt is in dispute. It is in respect of the second leg of the test highlighted above, concerning the implementation of the clause in these circumstances, where such a clause may fail the test imposed by our new Constitution.
ENS - Edward Nathan Sonnenbergs
Janine Lee
South Africa
Source: Lexology
It is at this point that we are reminded of the principle of South African law to the effect that a contracting party is bound by the terms of any contract which has been concluded by him/her. The correct time to complain about a contractual term is before the conclusion of the deal, and not later when the effects of this term are felt.
Our courts recognize that people’s right to freedom of contract should be respected and that this entails giving effect to the terms of agreements reached between the parties, even if these terms are onerous or prejudicial to the interests of one of the parties. We are free to agree to any terms, as long as these are not unlawful. Having agreed to a set of terms, we must be held to this bargain. Our law has also always recognised that, notwithstanding the aforesaid principle, effect ought not to be given to contractual terms which are contrary to public policy. The effect of the new Constitution of South Africa has been, inter alia, to flesh out the meaning of “public policy”. In short if a clause constitutes an unwarranted infringement of a right guaranteed in terms of the Bill of Rights, that clause may be susceptible to attack on the basis that it is contrary to public policy.
The approach of our courts is to conduct an enquiry where the first question is: Is the contractual clause in question per se contrary to public policy? If the answer is in the affirmative then the enquiry need not go any further - the clause is invalid. A contractual term may appear innocuous but its effect in particular circumstances may well offend public interest. Therefore, even if the first question is answered in the negative, the enquiry is not necessarily complete and a further question is posed, namely - Does the operation of the clause in the prevailing circumstances render it contrary to public policy?
In order to answer the questions relating to public policy regard must be taken of our Bill of Rights. One of the rights enshrined in the Bill of Rights is the right of access to our courts, which reads: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.” This right is directed against a tendency for parties to take the law into their own hands.
Our courts are constantly working through a massive backlog of civil cases and legal process can drag on for years before any result is achieved. It is not surprising, therefore, that attempts are made to obviate the need to refer issues to the courts. For example, a company which repairs a motor vehicle or electronic equipment may seek the power to sell off the car or tv if the repair costs are not paid on time. A trucking company wants the right to sell off goods which it has transported, if its charges are not paid when due. Do contractual clauses which are aimed at allowing the repairer or transporter to auction goods, without obtaining a court order, fall foul of public policy because they amount to an abuse of the right to access to our courts?
This argument was made in the case Juglal NO and Another v Shopright Checkers (Pty) Ltd t/a OK Franchise Division1 where the court analysed the contractual clause in question and concluded that it regulated the rights of the parties vis-á-vis each other but said nothing about ousting the authority of the courts or restricting the parties’ access to the courts or making a court application unnecessary before action could be taken to perfect the security contemplated in the clause. However, the court did say “That the respondent subjected the terms of the contract and its implementation to the intervention and oversight of the court takes much of the sting out of the appellant’s complaint about the arbitrary, unreasonable and oppressive nature of the contractual powers conferred on it.”
In other words, when considering the second leg of the test discussed above, the court was positively influenced by the fact that the appellant had sought the authority of the court before proceeding to sell the goods which represented his security, even though the clause did not necessarily compel the appellant to do so.
A clause which seeks to oust the jurisdiction of the court would be unconstitutional. If the clause does not prohibit an approach to the court or expressly make an application to court unnecessary, it is probably not, per se, contrary to public policy.
However, an attempt to sell the goods without first seeking court authorisation would often be found to be an infringement of the right of access to court which is enshrined in the Constitution. In other words it may be found to be contrary to public policy in its effect, especially where the debt is in dispute. It is in respect of the second leg of the test highlighted above, concerning the implementation of the clause in these circumstances, where such a clause may fail the test imposed by our new Constitution.
Janine Lee
South Africa
Source: Lexology
Monday, June 6, 2011
Durban mayor declares war on corruption
Durban's new mayor on Monday "declared war" against corrupt councillors and officials. “I declare war against fraud, corruption and maladministration and we will take action against councillors and officials who are found to be doing business with the municipality,” James Nxumalo said at the Durban City Hall on Monday afternoon, after being sworn in as the municipality's new mayor. A forensic firm was appointed earlier this year to probe fraud, corruption and maladministration allegations in the municipality. Auditor General Terrence Nombembe's 2009/10 report indicated R532m had been spent irregularly in the municipality.
Nxumalo said strict measures would be put in place to ensure departments adhered to supply chain management processes. The municipality would also not allow officials to flout tender procedures. He said he expected employees to work productively and passionately to improve the lives of residents. The municipality would continue “the great track record of unqualified audits”.
He would convene a two-day workshop in August where the city’s "strategic framework" would be mapped out. Improving the city’s economy, providing jobs and ensuring the costs of public transport, housing and basic services were reduced, would be among subjects to be discussed. Former deputy mayor Logie Naidoo was voted the municipality's new speaker on Monday. Executive committee member Nomvuzo Shabalala would fill the vacancy he left.
Naidoo got 134 votes to the beat the Democratic Alliance's Warwick Chapman, who got 44. The African Christian Democratic Party's speaker candidate Jonathan Naidoo managed to get three votes. Speaking after he was sworn in, Naidoo said he would ensure the municipality was a leading council in South Africa. “I will make sure that this council improves the lives of our people. I will make sure that service delivery is a priority.”
Source: News 24
Nxumalo said strict measures would be put in place to ensure departments adhered to supply chain management processes. The municipality would also not allow officials to flout tender procedures. He said he expected employees to work productively and passionately to improve the lives of residents. The municipality would continue “the great track record of unqualified audits”.
He would convene a two-day workshop in August where the city’s "strategic framework" would be mapped out. Improving the city’s economy, providing jobs and ensuring the costs of public transport, housing and basic services were reduced, would be among subjects to be discussed. Former deputy mayor Logie Naidoo was voted the municipality's new speaker on Monday. Executive committee member Nomvuzo Shabalala would fill the vacancy he left.
Naidoo got 134 votes to the beat the Democratic Alliance's Warwick Chapman, who got 44. The African Christian Democratic Party's speaker candidate Jonathan Naidoo managed to get three votes. Speaking after he was sworn in, Naidoo said he would ensure the municipality was a leading council in South Africa. “I will make sure that this council improves the lives of our people. I will make sure that service delivery is a priority.”
Source: News 24
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