Abahlali baseMjondolo Press Statement: The ANC Must be removed from Office

For nine years our movement has boycotted elections. We have been clear that no political party represents the interests of the poor and that it was necessary for us to build our own power in order to present our own needs and demands to society. In these nine years we have won many victories but most of us remain in shacks. Twenty years of shack life is a disgrace in a democracy.

Corruption is also a disgrace. In Durban you get nothing without a membership card for the ANC. All development goes through the councillors and their ward committees and ANC branch executive committees. Development is there to make ANC leaders rich and to control the rest of us by only making it available to ANC members. Development is not for the people. This kind of corruption is a disgrace in a democracy.

But an even bigger disgrace is the repression that we have faced from the ANC, its members, its leaders and its assassins. They have banned our marches; attacked our marches; arrested us on trumped up charges; assaulted us in detention; used armed men to drive us from our homes with police support; used death threats, attacks in our homes and torture in police stations to intimidate people to manufacture evidence against us; detained us for months and months while we wait for a trial that gets thrown out of court because there is no evidence against us; used their anti-land invasion unit to evict us for political reasons and beaten and shot us in our communities. Senior members of the ANC and the Municipality have made public death threats against us. Two activists were assassinated in Cato Crest last year and another, an unarmed teenage girl, was executed by the police.

We cannot go on with this level of repression. As everyone knows we are not the only people who face this kind of repression. We all know about Andries Tatane and all the others murdered by the police on protests. We all know about the Marikana Massacre.

In Durban court orders are just ignored by the Municipality and so the courts cannot protect us. Mostly the media and civil society tend to agree that because we are poor and black we are automatically violent and criminal and too stupid to think our own politics and so we do not get that much protection from the media and civil society either. We have some valued comrades on the left among the middle classes but mostly this left just wants to bus us into its meetings so that it can look credible without having any interest at all in our struggles, our ideas or our safety. NUMSA asked us to support their march in Durban but they have not shown any concern to support us when we face repression. The EFF also asked us to support their march in Durban but, like NUMSA, they have not supported us when we face repression. So far our experience of both these organisations is that they are operating like the left NGOs – we are treated as if our only role is to provide the large numbers of people that they need to be bussed in to justify their politics.

Because we cannot carry on like this we took a decision to vote against the ANC. We did not want to split our vote. We decided to collectivise our vote in order to make it stronger. Our main priority was that the ANC must be removed from office. We knew that this will not happen in this election but we were still clear that if we can weaken the ANC then we must do that. Also we knew that if we collectivise our vote all the political parties will know that there is a large bloc of votes that will be available at the next election for the party that does the best job in opposing repression and takes the best position on shack settlements.

We decided that all political parties except the ANC would be invited to make a presentation to the movement. Some of our members did not want to invite the DA to make a presentation as they are known to represent the rich and, in Cape Town, they are no different to the ANC when it comes to illegal and violent evictions. However we debated this at length and decided to invite them to make a presentation on the grounds that the removal of the ANC was our first priority and the weakening of the ANC was our second priority.

The DA, EFF, NFP and WASP all accepted the invitation to make a presentation to our members at the Diakonia Centre on 25 April and they all came and made their presentations.

The delegates to that meeting then returned to their branches to discuss the presentations there. We met again on 2 May and held a general meeting. At this meeting the general leadership did not vote as their role was to facilitate the meeting. The rest of the delegates voted and the results were as follows:

2 - undecided
2 - WASP
16 - EFF
26 - NFP
146 – DA

The DA and the EFF returned to witness the voting. WASP did not return. The NFP arrived three hours late with lots of car, bodyguards and their senior people. But by that time we were already dispersing.

The whole meeting was recorded on video and this video can be made available. Even those who were very disappointed with the results agree that it was a highly democratic process. The collective discipline of a democratic organisation requires that we all accept this outcome. Of course this decision is only for this election and it does not bind our members in Cape Town. When the next election comes we will again decide whether or not to vote and, if so, which party to vote for.

The main reason why the majority of the delegates supported the DA was because they wanted to have the strongest possible opposition to the ANC to put the maximum pressure on the ANC and to prevent it from doing what it pleases – which includes murdering us. We negotiated a legal agreement with DA which commits them to support some of our more basic demands. We hope that they will stand up for these issues and that they, and all other parties, will realise that if they want the support of the shack dwellers they will have to support us rather than see us as a problem to be eradicated or forcibly removed from the cities and taken to the human dumping grounds.

We will vote, as one bloc, for the DA tomorrow. We will not take membership of the party, we do not endorse its policies and we will continue to insist that no one can hold a position as an elected leader in our movement if they join a political party. We do not love or trust the DA. Already they are telling lies about our choice and we are not surprised. We have made a purely tactical choice. We will certainly continue to organise against all and any attacks on the poor in Cape Town by the DA government there.

One of the lies that is being told is that the DA are saying that we have endorsed them for this election in the Western Cape. This is not true. Our Western Cape branch has endorsed our decision to make a tactical vote for the DA in KwaZulu-Natal. Our Western Cape branch has not decided to make any collective vote for any party in this election.

Over the last nine years we have protected our autonomy from NGOs very carefully even though we do work with some NGOs. Now that we feel that it is necessary for our safety and our ability to continue to organise to use our numbers to make deals with political parties we will protect our autonomy from political parties in the same way.

Our politics puts people first. We cannot do nothing but wait for socialism to come one day in the far distant future. Our children are dying from diarrhoea right now, our old people and disabled people are dying in shack fires right now, we are being evicted and disconnected right now and we are being beaten and shot during evictions and disconnections right now. We been repressed, and even murdered, right now. We have to act to do what we can to make our members’ lives better right now. We have to act to protect our ability to organise and to sustain our living politics right now. This does not mean that we have given up on our vision of a world where land, cities, wealth and power are shared fairly. We call this a living communism and we remain committed to it. But we also remain committed to the human beings that we are now and to our families, neighbours and comrades. We will make what deals we have to make to protect our politics and improve our members’ lives right now but we will not give up on our political vision. We represent thousands of people who live in shack settlements. Those people who sit in university offices and NGO offices only represent themselves. Their children are safe. Their lives are not at risk. They are free to put ideology before people because they are not accountable to oppressed people and because they are not themselves oppressed people. But the fact that we do not enjoy that freedom does not mean that we have given up our politics. It means that we are searching for a practical way forward in a difficult and dangerous struggle.

The new Abahlali electoral position has offered us a lot to learn about. There is a lot to learn about party politics and its dirty campaigning tactics. There is a lot to learn about the deeper politics of our time. And, yes, there is a lot to learn about who cares and doesn't care about the struggles of the poor and the working class.

Ideology and principle are vital but if they both fail to house the homeless and rescue the repressed and recognise the humanity of the inhumanized then the oppressed are not doing any harm to anyone in trying to emancipate ourselves by taking practical action now to keep people safe and to make their lives better while always keeping a bigger vision of freedom and justice in mind.

We share a sadness that we have had to make this decision. Very few people outside the movement have been witness to what we’ve been going through in the hands of the ANC. We do not have words to explain the pain many of us have gone through. We do not have words to explain our pain of twenty years of shack life and all the state repression that has come to us when we stood up for our humanity. Last year we came to the ceiling of hopelessness. It was clear that we are people that can be freely killed. The stress that this created led to some intense internal conflicts. We knew that we could not carry on with our old politics. Our new position has enabled us to rethink our struggle. It may not be the perfect way but it brought a robust discussion about us that was seriously trying to find ways of creating a new hope from no hope.

We are not surprised at the way some people on the so called left have reacted on our position. We are not surprised at the usual lies from the usual people on the internet. Many people and organisations on the left do not accept that we have the right to think our own struggle and to make our own decisions. They think that because they are on the left they have the right to tell us what to do. We do not accept this. These people see our decision as stupid and as a sell-out while they are nowhere to be seen in our times of great difficulty. It makes us to think that such people enjoy our suffering or even benefit from it. Why will people who claim to be in our support judge us instead of contacting us to first understand our decision? It may be a wrong decision but the reality is that we cannot deceive ourselves purposefully on our pain. Why should we be made to struggle in a way that is only designed to try and impress other people simple because they say that they are on the left? We will never do this. Our members must live in shacks and they must try and survive repression. Their organisation is theirs and it will be directed by their decisions. We have never compromised on this and for this we have always been attacked by the regressive left that only want us to take their money so that in exchange we can arrange for people to be bussed into their meetings. This is not emancipation. It is another kind of oppression.

Is the left doing enough to care about our struggle? Or do they see our struggles as projects from which they can prove and debate their findings and analysis rather than as a struggle to genuinely confront the forces of darkness? Our decision aims at trying to keep the space open for us to liberate ourselves by making a tactical move. We do not love the DA or agree with its policies. Why do people who failed to condemn the ANC attacks on us get so angry with us when we try to punish the ANC by making a tactical vote for its enemy? Maybe for these people it is better for us to be oppressed by the ANC than the DA. For us it is better not to be oppressed. Some of the left is just like some of the development NGOs and some of the state. They want to experiment on us, to use us for their own projects. We say no. On this there is no compromise. We continue to say ‘talk to us, not for us’ and ‘think with us not for us’.

Our position remains honouring those who have supported and who continue to support us. Since we all don't know the answers in this struggle to humanise the world we will keep hunting and trying. Sometimes we will make wrong decisions but at least we offer debate and learning for ourselves and all our friends and comrades.

The ANC are a serious threat to society and to right of the poor to organise freely in this society. They must be removed from office and until we can remove them we must do all that we can to weaken them.

For further information and comment please contact:

Mnikelo Ndabankulu on 081 263 3462
Zodwa Nsibande on 082 902 2960
Thembani Ngongoma on 084 613 9772
Nono Majola on 074 803 1986

Source: Abahlali baseMjondolo

Officials cock a snook at Land Claims Judge

The Matabane Community of Waterberg in the Limpopo Province and landowners scored a significant Land Claim's Court victory three months ago. Both groups have been in an eighteen-year struggle for compensation. The Judge hearing their case berated Land Claims officials and the State Attorney for dragging their heels.

The community had sought restitution of the land that had been expropriated from them. It comprised a number of farms in the Waterberg district.

Officials remiss and arrogant

The Restitution of Land Rights Act came into operation in 1994, "To provide for the restitution of rights in land to persons or communities dispossessed of such rights after 19 June 1913 as a result of past racially discriminatory laws or practices." The Matabane Community fall into this group.

Judge Eberhard Bertelsmann said that in effecting redress, the law expects Land Claims officials to, "do anything necessarily connected with, or reasonably incidental to the expeditious finalisation of claims." It was clear from the evidence before the Land Claims Court that officials had been remiss in their handling of the Matabane Community's case and arrogant in their dealings with the court. Their "remissness", as the Judge described it, was not limited to this matter. Evidence before the court suggested that it was part of a bigger malaise.

Thousands of claims not yet finalised

Judge Bertelsmann said that is was: "disconcerting that between seven and nine thousand claims have not remotely been finalised almost twenty years after the Land Claims Act was passed." "One could be forgiven for assuming that under these circumstances land claims officials would be clamouring at the gates of Court insisting upon speedy resolutions of outstanding matters."

In the matter before court, land claims officials had early in 2007 established that the landowners, who were to be deprived of their farms, had rejected adjudication of their compensation claim through the Land Claims Commission's internal processes. They insisted that the matter be taken to court. Land Claims Court proceedings could only begin once the Commission has issued a Notice of Referral. This was not done.

Dragging of heels

Towards the end of 2007 the landowners obtained a court order compelling the Commission to issue the Notice of Referral. The Commission, unhappy with the Court's directive, unsuccessfully sought leave to appeal it. The Notice of Referral was finally issued late in May 2009. It was defective in a number of respects. Judge Bertelsmann: "There is no explanation on the papers why it took almost a year to take this step. Even less is there an explanation for the failure to fully include in such notice all information required by the Act and the Rules."

Hearings in the Land Claims Court - a court which has the same stature as the High Court - are preceded by a pre-trial conference so that the parties may agree on the further conduct of the case and limit the number of issues to be adjudicated upon. There were seven pre-trial conferences. The first took place in June 2011 and the last in May 2012. Bertelsmann found that this process had taken an unreasonably long time.

Judicial displeasure

Judge Bertelsmann: "The Commission and its functionaries have been remiss in the performance of their duties to advance the claimants' case as speedily as possible."

In the July 2011 pre-trial conference the defendants' attorney gave the Commission the addresses of all interested parties by so that they could be notified that the matter was heading for court and a decision might be made affecting their rights. At that pre-trial conference the Commission undertook to file at court a certificate relating to competing land claims and the State Attorney - the law firm representing the Commission - undertook to notify the interested parties. They all agreed that this would be done by 19 August 2011. This agreement had the effect of a court order.

By September 2011, when the third pre-trial conference took place, it became apparent that the undertakings by the Commission and the State Attorney had not been honoured. According to the judgment, the Commission was directed by the court to file an affidavit explaining how all of the court's previous directives had been dealt with. If the directive had not all been complied with, the Commission was directed to explain under oath:

• why it should not be held in contempt of Court;

• why is should not be ordered to comply with all previous orders within ten further days;

• why its legal representatives [the State Attorney] should not be ordered to pay the costs of two days of pre-trial conference de bonis propriis on the scale of attorney and client. In the alternative, why the Commission should not pay such costs on the punitive scale."

A costs order de bonis propriis is rarely made. It is a radical order, punitive in nature and conveys the court's disapproval of substantial misconduct by a litigant. The person against whom such an order is made has to pay the costs out of their own pocket. In the case of a state official, the relevant government department would not be held liable to pay the costs order on behalf of such an official.

The lamentable disregard for the Court's orders continued. Judge Bertelsmann: "In spite of this expression of judicial displeasure at the continued failure to comply with the Courts orders, no effect was given to them."

This Act makes provision for claimants lawyers to be paid by the Commission during the restitution process. Funding had been approved years before, but no money had been forthcoming. The Judge noted that this sort of failure is a factor that adversely impacts upon litigants' constitutional right of access to justice.

Constitutional litigation

The Judge observed that, "restitution of land rights is essentially constitutional litigation."

"The Commission is an Organ of State created for the very purpose of safeguarding the constitutional rights of claimants and landowners alike, who both find themselves in litigation with the State and whose interests and competing claims should be treated with due diligence and respect."

Contempt of Court

Judge Bertelsmann considered the defendants' request that a number of Land Claims officials be held in contempt of Court. "Attention must first be paid to the explanation proffered by the State parties for their remissness," he said. He singled out Mr Richard Mulaudzi, a Legal Administrative Officer in the Office of the Regional Land Claims Commissioner for the Limpopo Province.

Mulaudzi, in an affidavit, filed outside of the time limits set by the court, shared his personal views with Judge Steve Kahanovitz, the Judge who heard an earlier aspect of this claim: "I would not serve much purpose for the Commissioners to be deviated by the Court to appear. I did not find any compelling reason [given by Judge Kahanovitz] that necessitated that the Commissioner should be ordered to attend."

"Mr Mulaudzi's remarks regarding the need for the Commissioners to obey the Court's instruction are grossly inappropriate and display an extremely and highly regrettable attitude towards the Court's dignity and authority. Mulaudzi's views regarding the need to obey a Court's order are contemptuous and display an extremely worrisome ignorance of his duties as a civil servant employed by an organ of State toward the Courts in general and toward this Court in this matter in particular. Orders of court must be complied with, regardless as to whether they are issued correctly or otherwise, until they are recalled or set aside. This is a fundamental principle of a democratic constitutional State," said Judge Bertelsmann.

Referring to the time early in 1998 when Louis Luyt subpoenaed former President Nelson Mandela to testify to the South African Rugby Football Union case, Bertelsmann wrote, "Mr Mulaudzi would be well advised to study the example of the first post-apartheid President of the Republic of South Africa."

The Judge was unable to hold the Land Claims officials in contempt on legal technical grounds.

He expressed the Court's displeasure by ordering the Regional Land Claims commissioner to pay the defendants costs on the scale as between attorney and client.

Judge Bertelsmann further ordered that the matter be brought to finality as soon as possible.

We will be following the further progress of this particular land claim. Watch this space.

Source: Politicsweb

ANC at 102: when the revolution eats its own children

There are few people who can talk about the state of the ANC without sighing and shaking their heads. The transition from a liberation movement to a political party in government has not been kind – the organisation appears to be on a mission of self-destruction with lure of power and wealth tattering its fibre, and factionalism and patronage constantly diminishing its stature. The ANC has been able to reach the grand age of 102 because of the strength of its leadership and its popularity throughout its lifespan. But now it is difficult to hold up the ANC in 2014 against the organisation with a progression of heroic leaders which took power in 1994. Most bizarre is the way it has turned on itself. By RANJENI MUNUSAMY.

Lieutenant General Sean Tshabalala died of a broken heart. His body was found in his locked office at the police headquarters in Pretoria on Christmas Eve. Tributes at his memorial service and funeral tell the story of a once proud Umkhonto we Sizwe (MK) soldier and one of the first line of VIP protectors when the ANC returned from exile, withering in a state of depression after being marginalised by the police management.

A furore erupted after Tshabalala’s funeral where former national police commissioner Bheki Cele revealed a list of 18 names of former MK combatants serving or formerly in the South African Police Service who were allegedly on a target list, presumably of the current national commissioner Riah Phiyega and her political bosses. Tshabalala’s name allegedly topped the list. His friends and former colleagues had earlier told of Tshabalala’s heartbreak at being shifted sideways from Protection and Security Services division of the police to the information technology division and later to a non-job at the police inspectorate.

Police Minister Nathi Mthethwa acted swiftly to meet with some of the people on the list and dismiss the claims as rubbish. Phiyega denied knowledge of the list. However, the perception exists that experienced ANC and MK members were being steadily hounded out of the security services since President Jacob Zuma won power at the ANC’s Polokwane conference.

There has been a deluge of early retirements and resignations from the Department of State Security, the military and the SAPS in recent years, most of which involved people who served in MK or ANC intelligence structures during the liberation struggle. Some of these people went into exile in their teenage years, some were involved in dangerous intelligence missions at great personal cost, some were trained in the camps under the ANC’s most iconic leaders.

Their departure from the security services has been a curious phenomenon. Zuma, formerly head of intelligence in the ANC, has always seen security and intelligence as high priority. But after the recall of Thabo Mbeki, it would seem that paranoia set in and people perceived to be loyal to the former president were systematically weeded out, irrespective of their skills, service to their country with distinction or role in the liberation struggle.

Cele is well aware of the purge because he was instrumental in implementing it while he was national commissioner. In one case, he called a high-ranking officer who was on a mission abroad immediately back to the country and informed him he was being transferred to another job. It did not take long for the officer to resign from the police service. Cele was also the one who transferred Tshabalala out of the Protection and Security Services division.

Tshabalala, unlike most of his comrades, stuck it out in the police despite being sidelined – a decision which probably eventually cost him his life. Shortly before his death, Tshabalala had received a letter transferring him to the Northern Cape province (viewed as the Siberia of deployments), and this is possibly the reason his depression became too much to bear.

Tshabalala is just one of many of people whose lives have been destroyed by the organisation they dedicated their lives to. Others have been able to move on with their lives but their disillusionment with the ANC is profound. For many of them, the ANC was not just a political organisation but a way of life, a reason for being. To see the organisation self-destruct is worse than a family feud or divorce because they had chosen the ANC over their families and their own safety when they joined the struggle.

There are various explanations for the purge. The first is that ANC people in the security services would refuse to use state institutions to fight power battles in the party. There is always the risk that loyalty to the ANC would outweigh loyalty to the individual in power, which could lead to instructions being ignored, undermined or disclosed. The theory goes that this is why Zuma and Mthethwa saw use in Richard Mdluli – as a person who worked for the apartheid era police, he has no affiliation to the ANC and is loyal only to those who pay his salary.

The second theory is that the security ministers felt threatened by the seniority, knowledge and experience of the commanders serving under them. In terms of ANC hierarchy, many of the officials were senior to the current batch of ministers and this was a source of tension, particularly when there were differences of opinion on operational issues. But while there might have been underlying resentment, it would be strange if Zuma allowed the security services to be depleted of loyal and experienced officials on the basis of his ministers' inferiority complexes.

The third theory is more complex. A former senior member of the security services says the success of South Africa’s transition was partly due to the fact that security of the country was in the hands of the “doves”.

“This ensured that national security was based on human security. Now the focus is on state security. For the first time, security is now in the hands of the ‘hawks’, just like during the Apartheid era when the hawks saw a red (communists) under every bed. So we have come full circle with the hawks again in charge,” he said.

He said the current crop of hawks are fixated on external threats to the country, such as from foreign governments, imperialist forces and lobby groups, and they trade on conspiracy theories. “The real threats to the country are unemployment, inequality and poverty, and our failure to deliver. But anyone who puts forward that view is hounded out, marginalised or made redundant.

“They do not want to hear about our own failures; they prefer nonsensical stories about plots against the president, like what was in the Mdluli report. The plot is the failure of delivery. That is the biggest threat to national security,” the retired member said.

The theory is consistent with how the state and ANC views the personal security of the president and the state as interchangeable – as exemplified by the handling of the issue of the security upgrades at Zuma’s Nkandla estate. But the retired security official says people often overlook how the Constitution defines the governing principles around national security: “National security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life”.

The Constitution says nothing about the President and his Cabinet receiving special protection in their homes and cars as a principle of national security but dictates that ordinary people should be “free from fear”. It would appear that the organisation which drafted this Constitution has these days lost sight of these principles.

To the ANC at 102, it would seem, people, even their most experienced and dedicated comrades, are expendable. It has become a pattern that factional battles need to be fought till one group is hounded out and the organisation belongs only to the victors. From branch to national level, battles are fought for dominance of leadership positions, and those who lose are treated as pariahs and purged from positions in the state.

At the ANC national conferences, voting for the top six positions and the national executive committee takes place according to slates, dependent only according to loyalty to those who control the faction. As a result, the organisation is controlled by the winning faction and those outside the faction are marginalised, irrespective of their seniority, credentials or what they have to offer the party or the country.

Both Mbeki and Zuma appear to believe that the best way to protect their presidencies is to surround themselves with loyalists who tell them what they want to hear and fight off dissent on their behalf. It is this very tendency which builds resentment in the ANC and leads bad decision-making.

As the ANC celebrates its 102nd anniversary, it is also in the process of compiling its lists of representatives to serve in Parliament and the provincial legislatures. The list process is also likely to be defined by factional politics, with loyalists able to get higher on the lists and stand a better chance of becoming a member of Parliament. Those who refrain from factional battles or who campaigned against Zuma’s second term at the ANC’s Mangaung conference are less likely to be elected.

But there are also a number of people who are declining nomination because they cannot in good conscience agree to serve the ANC in its current state. “It is a bloody nightmare for us,” said one high-ranking member who has declined nomination.

He said if the party was serious about its future and that of the country, they would ask the president and other ANC leaders steeped in scandal to step aside. “But in the NEC, few can stand up and impose their integrity. The rest will be found wanting themselves,” he said.

Others, however, believe that they should remain in the fold and the ANC will self correct at its next conference in 2017. But what is the likelihood of it and how much damage would have been done by then? With the organisation a shadow of its former self now, what will it look like with four years still to go under the current leadership?

Despite the many problems in the ANC, there are only few people who are able to speak up and confront the issues besetting the organisation. The leadership seems to believe that the organisation is resilient and can withstand the scandals and strife. And those who do speak out are treated as disgruntled elements that should be disregarded. ANC and South African Communist Party veteran Ronnie Kasrils wrote in The Guardian last year: “The ANC's soul needs to be restored; its traditional values and culture of service reinstated. The pact with the devil needs to be broken”.

The ANC simply ignored him.

And so, Africa’s oldest liberation movement turns 102 on Wednesday. It is a momentous occasion for the organisation with a proud history and iconic leaders to still be going strong and enjoying the support of the majority of South Africans. While the current leaders mark the occasion with celebratory rallies, doubling as campaign events, many people will be looking on from the outside, mourning for days gone by when the ANC was a home for all.

Perhaps it is normal for any political organisation to find itself unable to keep its soul once it gets touched by the spoils of uninterrupted power. It has happened many times before, and it will happen many times in the future. What is surprising, though, is how history always fails to teach the ones at the top. At 102, the ANC is drifting into the darkness, increasingly disconnected from the lives and reality of those they are sworn to protect: the masses that continue to exist in the tough reality and fearing a hopeless future. DM

Source: Daily Maverick

Obama's tribute to Mandela: The full speech

To Graça Machel and the Mandela family; to President Zuma and members of the government; to heads of state and government, past and present; distinguished guests – it is a singular honor to be with you today, to celebrate a life unlike any other. To the people of South Africa – people of every race and walk of life – the world thanks you for sharing Nelson Mandela with us. His struggle was your struggle. His triumph was your triumph. Your dignity and hope found expression in his life, and your freedom, your democracy is his cherished legacy.

It is hard to eulogise any man – to capture in words not just the facts and the dates that make a life, but the essential truth of a person – their private joys and sorrows; the quiet moments and unique qualities that illuminate someone’s soul. How much harder to do so for a giant of history, who moved a nation toward justice, and in the process moved billions around the world.

Born during World War I, far from the corridors of power, a boy raised herding cattle and tutored by elders of his Thembu tribe – Madiba would emerge as the last great liberator of the 20th century. Like Gandhi, he would lead a resistance movement – a movement that at its start held little prospect of success. Like King, he would give potent voice to the claims of the oppressed, and the moral necessity of racial justice. He would endure a brutal imprisonment that began in the time of Kennedy and Khrushchev, and reached the final days of the Cold War. Emerging from prison, without force of arms, he would – like Lincoln – hold his country together when it threatened to break apart. Like America's founding fathers, he would erect a constitutional order to preserve freedom for future generations - a commitment to democracy and rule of law ratified not only by his election, but by his willingness to step down from power.

Given the sweep of his life, and the adoration that he so rightly earned, it is tempting then to remember Nelson Mandela as an icon, smiling and serene, detached from the tawdry affairs of lesser men. But Madiba himself strongly resisted such a lifeless portrait. Instead, he insisted on sharing with us his doubts and fears; his miscalculations along with his victories. "I'm not a saint," he said, "unless you think of a saint as a sinner who keeps on trying."

It was precisely because he could admit to imperfection – because he could be so full of good humor, even mischief, despite the heavy burdens he carried - that we loved him so. He was not a bust made of marble; he was a man of flesh and blood – a son and husband, a father and a friend. That is why we learned so much from him; that is why we can learn from him still. For nothing he achieved was inevitable. In the arc of his life, we see a man who earned his place in history through struggle and shrewdness; persistence and faith. He tells us what’s possible not just in the pages of dusty history books, but in our own lives as well.

Mandela showed us the power of action; of taking risks on behalf of our ideals. Perhaps Madiba was right that he inherited, "a proud rebelliousness, a stubborn sense of fairness" from his father. Certainly he shared with millions of black and colored South Africans the anger born of, "a thousand slights, a thousand indignities, a thousand unremembered moments … a desire to fight the system that imprisoned my people."

But like other early giants of the ANC – the Sisulus and Tambos – Madiba disciplined his anger; and channelled his desire to fight into organisation, and platforms, and strategies for action, so men and women could stand-up for their dignity. Moreover, he accepted the consequences of his actions, knowing that standing up to powerful interests and injustice carries a price. "I have fought against white domination and I have fought against black domination," he said at his 1964 trial. "I’ve cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die."

Mandela taught us the power of action, but also ideas; the importance of reason and arguments; the need to study not only those you agree with, but those who you don’t. He understood that ideas cannot be contained by prison walls, or extinguished by a sniper’s bullet. He turned his trial into an indictment of apartheid because of his eloquence and passion, but also his training as an advocate. He used decades in prison to sharpen his arguments, but also to spread his thirst for knowledge to others in the movement. And he learned the language and customs of his oppressor so that one day he might better convey to them how their own freedom depended upon his.

Mandela demonstrated that action and ideas are not enough; no matter how right, they must be chiseled into laws and institutions. He was practical, testing his beliefs against the hard surface of circumstance and history. On core principles he was unyielding, which is why he could rebuff offers of conditional release, reminding the Apartheid regime that, "prisoners cannot enter into contracts." But as he showed in painstaking negotiations to transfer power and draft new laws, he was not afraid to compromise for the sake of a larger goal. And because he was not only a leader of a movement, but a skillful politician, the Constitution that emerged was worthy of this multiracial democracy; true to his vision of laws that protect minority as well as majority rights, and the precious freedoms of every South African.

Finally, Mandela understood the ties that bind the human spirit. There is a word in South Africa – Ubuntu – that describes his greatest gift: his recognition that we are all bound together in ways that can be invisible to the eye; that there is a oneness to humanity; that we achieve ourselves by sharing ourselves with others, and caring for those around us. We can never know how much of this was innate in him, or how much of it was shaped and burnished in a dark, solitary cell. But we remember the gestures, large and small – introducing his jailors as honoured guests at his inauguration; taking the pitch in a Springbok uniform; turning his family’s heartbreak into a call to confront HIV and Aids – that revealed the depth of his empathy and understanding. He not only embodied Ubuntu; he taught millions to find that truth within themselves. It took a man like Madiba to free not just the prisoner, but the jailor as well; to show that you must trust others so that they may trust you; to teach that reconciliation is not a matter of ignoring a cruel past, but a means of confronting it with inclusion, generosity and truth. He changed laws, but also hearts.

For the people of South Africa, for those he inspired around the globe – Madiba’s passing is rightly a time of mourning, and a time to celebrate his heroic life. But I believe it should also prompt in each of us a time for self-reflection. With honesty, regardless of our station or circumstance, we must ask: how well have I applied his lessons in my own life?

It is a question I ask myself – as a man and as a president. We know that like South Africa, the United States had to overcome centuries of racial subjugation. As was true here, it took the sacrifice of countless people – known and unknown – to see the dawn of a new day. Michelle and I are the beneficiaries of that struggle. But in America and South Africa, and countries around the globe, we cannot allow our progress to cloud the fact that our work is not done. The struggles that follow the victory of formal equality and universal franchise may not be as filled with drama and moral clarity as those that came before, but they are no less important. For around the world today, we still see children suffering from hunger, and disease; run-down schools, and few prospects for the future. Around the world today, men and women are still imprisoned for their political beliefs; and are still persecuted for what they look like, or how they worship, or who they love.

We, too, must act on behalf of justice. We, too, must act on behalf of peace. There are too many of us who happily embrace Madiba’s legacy of racial reconciliation, but passionately resist even modest reforms that would challenge chronic poverty and growing inequality. There are too many leaders who claim solidarity with Madiba’s struggle for freedom, but do not tolerate dissent from their own people. And there are too many of us who stand on the sidelines, comfortable in complacency or cynicism when our voices must be heard.

The questions we face today – how to promote equality and justice; to uphold freedom and human rights; to end conflict and sectarian war – do not have easy answers. But there were no easy answers in front of that child in Qunu. Nelson Mandela reminds us that it always seems impossible until it is done. South Africa shows us that is true. South Africa shows us we can change. We can choose to live in a world defined not by our differences, but by our common hopes. We can choose a world defined not by conflict, but by peace and justice and opportunity.

We will never see the likes of Nelson Mandela again. But let me say to the young people of Africa, and young people around the world – you can make his life’s work your own. Over thirty years ago, while still a student, I learned of Mandela and the struggles in this land. It stirred something in me. It woke me up to my responsibilities – to others, and to myself – and set me on an improbable journey that finds me here today. And while I will always fall short of Madiba’s example, he makes me want to be better. He speaks to what is best inside us. After this great liberator is laid to rest; when we have returned to our cities and villages, and rejoined our daily routines, let us search then for his strength – for his largeness of spirit – somewhere inside ourselves. And when the night grows dark, when injustice weighs heavy on our hearts, or our best laid plans seem beyond our reach – think of Madiba, and the words that brought him comfort within the four walls of a cell:

It matters not how strait the gate,

How charged with punishments the scroll,

I am the master of my fate:

I am the captain of my soul.

What a great soul it was. We will miss him deeply. May God bless the memory of Nelson Mandela. May God bless the people of South Africa.

Source: Mail & Guardian

FNB: You Can Help campaign is regrettable

FNB met with the leadership of the ANC, led by its secretary general Gwede Mantashe on Thursday. The bank apologised to the ANC on Friday.

"The CEO of FirstRand, Mr Sizwe Nxasana, agreed that the research clippings that were posted online were regrettable; he apologised for the posting of the research clippings online," the ANC said in a statement.

"He then assured the meeting that this regrettable incident will not be repeated."

The FNB campaign features a number of videos of children in school uniform reading their hopes for the country. Opposition parties and activist groups said the ANC's criticism of the campaign showed its intolerance.

During the meeting, the ANC pointed out that the video clips were a deliberate attack on the ANC.

The clips fed into the opposition narrative that sought to project the ANC and government in a negative manner, it said.

The ANC said the clips had a negative impact on business confidence and could undermine the promotion of investment into the country.

"The ANC indicated that its leadership and membership were strongly raising a question why the organisation should continue to bank with a bank that has adopted an oppositional (sic) stance to it."

Nxasa explained to the ruling party the objectives of their youth campaign and stressed that it was meant to inspire all South Africans to work together by helping one another.

FNB expressed its commitment to the National Development Plan in addressing the areas of poverty, inequality and unemployment, the ANC said on Friday.

Source: Mail & Guardian

Mthethwa fails to stop Zille's police inquiry

A high court has dismissed an application by the police minister for an interdict against a commission of inquiry into Khayelitsha's policing.

On Monday the Western Cape High Court announced its dismissal of Police Minister Nathi Mthethwa's urgent interdict against the commission set up by Premier Helen Zille last year. The commission – headed by advocate Vusi Pikoli and retired Constitutional Court Judge Catherine O’Reagan – was tasked with investigating allegations of police inefficiency and the breakdown of the relationship of the police after public lobbying by organisations such as Equal Education, the Social Justice Coalition and the Treatment Action Campaign.

In response to arguments by advocates representing Zille, the Social Justice Coalition and the commission itself last year, Mthethwa's legal team argued Zille's decision to appoint the commission would have an impact on the independence of the South African Police Service. Advocate Peter Hawthorne, acting for the coalition, on Monday told the court Mthethwa's legal team failed to prove the commission would cause irreparable harm to the SAPS. The commission was meant to hold public hearings from November 12 to December 14, which was since suspended pending the outcome of Mthethwa's application.

Last year the M&G reported that there had been more than 18 vigilante killings in Khayelitsha in 2012 – which activists related to the community’s lack of trust in the police’s ability to maintain order – as well as a spate of gang violence in the area.

"The rationale behind the setting up of such a commission, which, at a strategic level, only focuses on the South African Police Service and not the Western Cape metro police, is suspicious if not questionable," Mthethwa said in November after the commission was set up.

"Despite the engagements we held with the premier over the past weeks, it is evident that she is determined to continue with the commission by hook or crook, which leaves us with no option but to challenge the matter through the legal framework," said Mthethwa when he challenged the validity of the commission.

Following Mthethwa’s urgent interdict in November, many residents of Khayelitsha and activists – including Social Justice Coalition founder Zackie Achmat and its workers – gathered outside the Western Cape High Court last year to protest against the police minister's attempt to stop the commission of inquiry.

Outside the court on Monday residents took part in the “people’s commission of inquiry into crime in Khayelitsha” where they shared stories about their experiences with the police in the township, and Achmat used a loudspeaker to call witnesses to the "stand".

Source: Mail & Guardian

Time to raise the bar on Africa’s integration

MUCH has been said about African trade and the continent’s integration into a range of forums. It is the policy of African governments, and plenty of implementation is under way.

Africa’s leaders have long recognised the importance of economic integration as a remedy for the continent’s fragmentation. At the past two African Union summits, much was discussed regarding intra-African trade. We know the problems, the diagnostics and even the cure.

More than half of Africa’s 54 countries have a gross domestic product of less than $10bn, and a population of less than 10-million. Sixteen are landlocked, with all the challenges associated with small size and small markets. All of this is known.

Most African countries struggle to achieve the economies of scale required to become competitive internationally. That is why, through successive agreements, African governments have committed themselves to the pursuit of greater integration.

These commitments have not always proved easy to implement. In practice, national priorities have often trumped regional needs — a phenomenon not unique to Africa, of course.

As a result, the opportunities of regional integration have not been fully exploited. Yet today, as yesterday, trade still holds tremendous unrealised potential as a driver of growth and a way of improving food security, creating jobs and reducing poverty.

In short, while intra-African trade has more than doubled over the past five years, it remains far below potential. Most people would agree there are four pervasive challenges:

• a lack of adequate hard infrastructure, in particular transport, connectivity and energy;

• problems with ‘soft’ infrastructure — the institutions and regulations to facilitate trade links, which includes the overall business environment, and impediments to the free movement of goods, capital and talent;

• myriad company-level challenges that affect the private sector and the emergence and sustainability of exports, such as quality and meeting standards; and

• access to finance, trade finance and the financial infrastructure that supports trade.

These are issues we know well. Of growing urgency are railways and maritime port capacity. Much of our railway network dates back to the colonial era, and the costs of ageing systems with multiple gauges are now a real impediment. Few railways have been built since independence.

At our ports, crucial for regional integration and international trade, capacity has become a major obstacle. The volume of freight that they handle has increased dramatically in recent years. Most of these ports were not designed with a regional market in mind, and many are rapidly running out of capacity, especially as mineral exports increase.

As a result, they operate well below international norms, resulting in higher costs and longer processing times.

We know what has to be done, including the financing gap. Today, we need to ask a different question: since we all seem to agree on the principles and even the road map, what keeps us from faster progress? And how can our legislatures help?

Of late, many African countries have celebrated their golden jubilees. There has been much celebration, indeed, but also soul searching. There has been acknowledgment of progress and of disappointments.

However, as with all celebrations, there is the morning after. Where did we go wrong? Could we have charted a different path?

While we are all wiser in hindsight, there is no doubt we could have made better progress. And the new global environment dictates we do better.

As Africa enters this new era, we have only two options: a paradigm shift or a new period of muddling through, pleading some sort of African exceptionalism.

Our founders laid the basis: political liberation. They achieved much, including the epic struggle to rid Africa of the last vestiges of colonialism and apartheid. Like all pioneers, they often made mistakes — sometimes costly ones — that led to military dictatorships, one-party states and economic experimentation. In between, often economic meltdown, mayhem and even genocide.

There is much unfinished business politically: building peace, security and rule of law. However, most people would now agree the colossal struggle in Africa must be that of economic liberation through integration. There is also now near unanimity that this outcome is not possible with 54 balkanised states, economically speaking.

Nations develop through trade and investment. Of course some develop by exploiting other nations’ wealth and labour, and by imposing on other nations economic policies that they did not follow themselves at earlier stages of their development.

I am not saying Africa should also explore the second option. That would be absurd. What I want to suggest is different, an affirmation that many of the regions also grew by integration. By delaying economic integration in Africa, therefore, we are almost by default making it possible for others to continue exploiting our wealth and potential.

Former president Julius Nyerere of Tanzania, one of the founding fathers of the Organisation of African Unity, had this to say in Accra at Ghana’s 40th independence anniversary: "The confession is that we of the first-generation leaders of independent Africa have not pursued the objective of African unity with the vigour, commitment and sincerity that it deserved ...

"So this is my plea to the new generation of African leaders and African peoples: work for unity with the firm conviction that without unity, there is no future for Africa.

"My generation led Africa to political freedom. The current generation of leaders and peoples of Africa must pick up the flickering torch of African freedom, refuel it with their enthusiasm and determination, and carry forward Africa’s integration."

These are powerful words. The case he makes was valid yesterday and remains so today, more urgent than ever given recent developments in the global economy.

• Kaberuka, who holds a doctorate degree in economics from the University of Glasgow, is serving his second five-year term as president of the African Development Bank. He was the architect of Rwanda’s economic reforms and growth, having served there as finance minister from 1997 to 2005.

Source: Business Day

Where is the grace? Where is the compassion?

I am haunted by this picture. It is of a woman unsuccessfully trying to stop a bulldozer from demolishing her home in Lenasia. No one seemed to have thought of asking the woman her name. The newspapers said she was “unidentified”: Like so many other black woman in South Africa she is literally treated as being without an identity, without a history, without a personality. Why did the Gauteng government want to demolish this woman’s home and why did a court grant an order allowing the demolition?

The bulldozing of people’s homes is an emotionally laden issue in South Africa. Anyone with a passing knowledge of the apartheid past must recall the horrible images of bulldozers wrecking people’s homes in Fietas, Sophiatown, District Six and in many other parts of the country. It therefore came as a shock to hear that our government sought, and a South African court ordered, the demolition of houses in Lenasia.

The Gauteng local government and housing department began destroying the houses two weeks ago because the land they were built on was intended for government housing, and had been sold illegally. About 50 houses had been destroyed and another 113 were in line to be demolished before the South African Human Rights Commission went to court to try and stop this. The plots of land were apparently sold fraudulently for amounts ranging from R2500 to R95 000. The buyers were given forged deeds of sale with the department’s logo.

On 29 September last year, the South Gauteng High Court ordered the relevant residence of Lenasia to vacate their homes and to demolish the homes or structures erected on the property. In the event of failure to remove or demolish within the time period given, the City was granted the right to demolish the homes. The Order did not require the City to provide those evicted with alternative accommodation.

Given the Constitutional Court’s jurisprudence on forced evictions and the provisions of the Prevention of Illegal Evictions from and Unlawful Occupation of Land (PIE) Act, it is difficult to agree with the court for granting this court order – which in any case the Gauteng Government should never have asked for. I guess if one does not live at Nkandla, one’s home is not seen as either private or sacred by our government.

In terms of section 26(3) of the Constitution, when considering whether to order the forced eviction of unlawful occupiers from their homes, a court must take into account all relevant factors. As the Constitutional Court stated in Port Elizabeth Municipality v Various Occupiers, our Constitution “acknowledges that a home is more than just a shelter from the elements”. A home “is a zone of personal intimacy and family security” and the forced removal from a home “is a shock for any family”. It does not make any difference whether that home is lawfully or unlawfully occupied.

It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when state action intensifies rather than mitigates their marginalisation. The integrity of the rights-based vision of the Constitution is punctured when governmental action augments rather than reduces denial of the claims of the desperately poor to the basic elements of a decent existence. Hence the need for special judicial control of a process that is both socially stressful and potentially conflictual.

The PIE Act confirms that a court must take into account all the relevant circumstances under which people occupied the land. In the PE Municipality case justice Albie Sachs warned that a court should be slow to order the eviction of its citizens from state owned land as “the state generally has further land to meet its obligations”. The degree of emergency or desperation of people, who have sought a spot on which to erect their shelters, would always have to be considered. And persons “occupying land with at least a plausible belief that they have permission to be there” can be looked at with far greater sympathy than those who deliberately invaded land with a view to disrupting the organised housing programme and placing themselves at the front of the queue.

It is settled law that a court should be reluctant to grant an eviction against relatively settled occupiers unless it is satisfied that a reasonable alternative is available. In City of Johannesburg v Blue Moonlight Properties the Constitutional Court found – in slightly different circumstances than the present – that the City’s housing policy was unconstitutional to the extent that it excluded some people evicted from privately owned property from consideration for temporary accommodation. It found that such an exclusion was unreasonable. This does not mean that the City would always have to provide alternative accommodation, but if it failed to do so in circumstances where people would be left homeless the eviction would almost never be granted.

In the end a court must consider all relevant factors but should not do so in a mechanical way or in a way that gave too much weight to the bureaucratic needs and plans of the Municipality and too little weight to the needs of those who might be affected by the eviction. In PE Municipality Sachs explained the approach as follows:

The Constitution and PIE require that in addition to considering the lawfulness of the occupation the court must have regard to the interests and circumstances of the occupier and pay due regard to broader considerations of fairness and other constitutional values, so as to produce a just and equitable result. Thus, PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern.

In this case, the residents were defrauded. They built structures on government owned land believing that they had bought the plots. They built solid structures, using their own money, believing they had a right to do so. They did not do so because they wanted to jump the queue for land or housing. Those who committed the fraud are being prosecuted, but it is unclear why those who were duped must be punished for their crime.

It is unclear what constitutionally permitted purpose is being served by the eviction of such innocent people from their homes. How does the bulldozing of their homes demonstrates the Gauteng government’s commitment to a caring society, one which is animated by the principle of Ubuntu, which holds that we are all demeaned if some among us are treated without grace and compassion – all in order to pursue a coldhearted and bureaucratic housing plan without any consideration of the feelings of those affected?

I wonder if the Gauteng Premier and the judicial officer who granted the eviction and demolition order have had time to pause for a moment to consider the feelings of the unnamed woman in the picture. Have they asked themselves what must have gone through her mind as she desperately threw her body in the path of that bulldozer? Do they wonder about all the hopes and dreams she had about her new home and how these have now been shattered by the greedy fraudsters who sold these plots to innocent citizens, abetted by the Gauteng Government and by the court who ordered the eviction?

Where is the grace? Where is the compassion? Where is the common decency? Or are these feelings only reserved for one “special” person, a person who might bleed and sleep and eat and have sex and defecate like the rest of us, but who somehow is viewed as more important and more worthy of concern and respect than the unnamed woman in Lenasia who planted her body in front of that bulldozer?

Why is it that we are told (in expensive adverts in the Sunday papers) not to care that the homes of some citizens are bulldozed, while we are also told that it is none of our business that more than R250 million of public funds are being used to upgrade the private homestead of our king, our leader, our father in chief – all while some of our people who contributed to the upgrade of the President’s house do not have a roof over their heads and will be forced to sleep under a bush or in a ditch tonight and for many, many, more nights to come?

Source: Constitutionally Speaking

Scramble to raise farm wages amid Cape havoc

THE government on Wednesday announced an immediate review of minimum wages for all farm workers as part of a deal in which trade unions representing striking Western Cape farm workers agreed to return to work on Thursday.

The development came after a day of unprecedented and frequently violent protest action by farm workers in the Western Cape, in which one worker was confirmed dead as a result of police action in Wolseley. Other towns in which protesters clashed with police and public roads were barricaded included: De Doorns, Ceres, Prince Alfred Hamlet, Robertson, Ashton, Bonnievale, Villiersdorp and Piketberg. Amid the chaos, Western Cape Premier Helen Zille warned that the province was "heading for anarchy", and that thousands of jobs could be on the line.

The promised wage review will have profound implications for the agricultural sector, for which the labour minister has set a minimum wage of R70 a day. It could also push up food prices and inflation, and have a knock-on effect on other minimum wages. Western Cape farm workers are demanding R150 a day. If they find the new minimum wage, expected to be announced within two weeks, unacceptable, they will resume striking on December 4. At a press briefing in Cape Town on Wednesday, acting labour minister Angie Motshekga — Labour Minister Mildred Oliphant is out of the country — said a notice will be published in the Government Gazette within a week "indicating the intention to call all interested parties to comment on the possibility to review the sectoral determination". A notice will also be published announcing the cancellation of the existing wage determination, affecting all agricultural workers.

The Employment Conditions Commission, the statutory body which advises the labour minister on minimum wages, was meeting from Wednesday to begin determining a new minimum wage. Employer and worker representatives will have an opportunity to make representations to the commission on appropriate wage levels. There was some uncertainty over whether a single minimum wage for all agricultural sectors will again be set, or whether there will be differentiation according to different province’s products.

Congress of South African Trade Unions (Cosatu) Western Cape secretary Tony Ehrenreich is advocating that there should be differentiation within the sector as some products — such as the table grapes grown in the De Doorns area where the strike began — are more profitable than others.

Agriculture, Forestry and Fisheries Minister Tina Joemat-Pettersson said on Wednesday that the commission would have to make recommendations on whether new minimum wages should be set for all provinces, or whether the higher wages would apply only in the Western Cape. However, the cancellation of the existing determination necessarily implies that wages in all provinces be reviewed.

Cosatu, which led the brokering of the deal between the government and the strikers, was confident on Wednesday that workers would return to work, despite the strike spreading across towns and farms in the Western Cape over the past two days. Although not initially involved in the labour action, Cosatu and a coalition of independent unions and nongovernmental organisations active on the farms were "invited" by strikers to represent them in the negotiations. Cosatu subsequently assumed a leading role in the action among workers, of whom only 6% are unionised. Co-ordination of the strike across the towns was achieved largely through the relatively small networks of organisations, which spread word by SMS.

Mr Ehrenreich said the agreement contained three key elements: an urgent review of the national minimum wage; that no disciplinary action be taken against strikers; and that an interim minimum of R80 apply until the new wage is agreed.

Wednesday was the second day of unprecedented and frequently violent protest action by farm workers in the Western Cape. One worker was confirmed dead as a result of police action in incident in the town of Wolseley. Other towns in which protesters clashed with police and public roads were barricaded yesterday included: De Doorns, Ceres, Prince Alfred Hamlet, Robertson, Ashton, Bonnievale, Villiersdorp and Piketberg.

Premier of the Western Cape Premier Helen Ms Zille wrote to President Jacob Zuma on Tuesday, asking him and Ms Oliphant to set a new minimum wage for farm workers. On Wednesday, Ms Zille made a desperate appeal for co-operation to Western Cape African National Congress leader Marius Fransman. "We are heading towards anarchy. Thousands of jobs will be lost and an industry potentially destroyed," she said in an SMS to Mr Fransman. "I am receiving horrific reports of farm worker intimidation. It is essential that we remove politics from this matter and stabilise the situation. I am extremely worried that lives are in danger and that people will retaliate."

Presidency spokesman Mac Maharaj said yesterday that Ms Zille could ask for the South African National Defence Force’s assistance to quell the violence as Mr Zuma had already authorised its deployment until January to assist with public violence nationwide after the Marikana tragedy in September. Mr Maharaj said Ms Zille had to engage with Ms Oliphant and Defence Minister Nosiviwe Mapisa-Nqakula. "There is no need for the president to micromanage everything. Ms Zille should approach the channels available," he said.

Employer body Agri SA said the setting of minimum wages was the sole preserve of government. Agri SA president Johannes Möller said farmers were free to negotiate with workers on pay. "Agri SA has encouraged farmers, where possible, to pay above the minimum wage."

Cape Chamber of Commerce president Fred Jacobs said the government should return to "an empirical methodology" rather than "sucking a number out of the sky to determine what should be paid".

Source: Mail & Guardian

Land Reform in South Africa: An Unfulfilled Obligation

The question of land and agricultural reform in South Africa remains largely unresolved as we head towards the end of our second decade of democracy. It is remarkable that a democratically elected government, enjoying such an overwhelming parliamentary majority and popular support, has failed so spectacularly, in such an important area of governance, for so long.

It is equally remarkable that the government is still, this late in the day, touting concepts as vague as the five-step programme on land reform recently outlined by President Zuma. Something certainly has to be said about this hot button issue. What with leadership under review, even vapid brainstorms may be interpreted as leadership!

The fact is that land reform, tenure and security has not yet been tackled sufficiently robustly by the democratic government. The early iterations of the land reform process bumbled along with good intentions but with little impact.

The new post 1994 political leadership appeared unable or unwilling to grasp obvious solutions like tapping into the vast collection of state owned land as a starting point. A major roadblock was that the dysfunctional Department of Public Works was unable to quantify state land ownership. This problem remains unresolved. A separate national audit of all private land ownership, meant to be completed in 2010 also awaits completion. No wonder land reform remains so fraught.

We are now in the anomalous position of decreasing numbers of white commercial farmers owning increasingly large farms. This has occurred through the government continuing to support an industrial farming model dependent on high input, energy intensive farming using genetically modified seed. This is the antithesis of farming practice required for land and agrarian reform. Land reform and agricultural practices are inextricably connected if transformation is to succeed.

A global consensus has emerged amongst ideologically disparate organisations like the World Bank, the UN Global Environment Facility and various other UN bodies that diversified, smallholder led, sustainable farming practices are required to feed a growing global population in the face of climatic and economic uncertainty.

The failure to achieve land and agricultural reform has negatively impacted food security. National levels of mal- and under nutrition remain a disgrace in a food exporting nation like South Africa. Land reform, food security, market reform and access to a balanced diet are each distinct aspects of the same problem, none of which have been adequately addressed, let alone resolved.

While the government has made the right noises about land reform during the previous 18 years, little more has been achieved than placating investors while alienating the political support base. The land reform programme started by the 1994 Restitution of Land Rights Act has largely failed key constituencies such as women and marginalised communities who voted the ANC into power.

A green paper on land reform took six years to compile. When it was released in 2011, it said nothing new and was arguably counter-productive. Rural Development and Land Reform Minister Gugile Nkwinti has attempted to fix a broken system but clearly lacks an over-arching vision. There is little work being done on the Land Tenure Security Bill. The Communal Land Resources Act of 2004 was declared unconstitutional in 2010, in a judgement, which turned on technical details yet left the substantiative problems related to communal land ownership unaddressed.

The Extension of Security of Tenure Act, meant to protect vulnerable farm workers and dwellers, has not been adequately enforced. So land tenure and security, both within traditional structures and on conventional farms, remain unresolved.

Agricultural extension and support programmes such as the Comprehensive Agricultural Support Programme (CASP), Micro Agricultural Financial Institutions of South Africa (MAFISA) and the Land Care Foundation have been criticised by both parliamentary committees and by farmers. The present Minister of Agriculture is clearly out of her depth and would not be there except for her obsequious support for the President. Previous Ministers have fared little better.

Neither have supposedly neutral arbiters been much help. Recent proclamations by the Institute of Race Relations (IRR) assumed a particularly tactless stance by claiming “populist” calls for land reform, particularly for agricultural land, were misplaced. The IRR opined that these calls were unrealistic, suggesting that people rather aspired toward middle class, urban lifestyles than toward a return to unglamorous, agrarian roots. While increased urbanisation and the middle class dream may be relevant, this is only one facet of a complex land debate.

Despite a promise to transfer 30% of agricultural land by 2014, only 8% has been transferred to date. Even this is problematic as extension services to newly settled farmers are inadequate and failure rates of new land claimants are high. State extension services can cost more than R40 000 per visit. Smallholder farmers are seldom assisted and extension quality is rated below par.

On the other hand NGO’s and private entities are providing extension services at a fraction of this cost. In KwaZulu Natal a full time extension officer provides support at less than R40 000, to extended communities, per month. There are clearly ways to fix the problems of agrarian reform, more efficiently, flexibly and productively than is presently being done.

Land reform is an undeniably political process. Yet the piecemeal, fragmented and un-coordinated solutions of land and agricultural reform have signally failed to achieve the desired results. The recently released New Growth Plan recognises the importance of the agricultural economy, yet its proposals echo the ASGISA programme, which failed to achieve any significant progress. It is fine and well for the New Growth Plan to propose creation of a million farming jobs by 2030 but how realistic is this given prior delivery experience?

The string of examples cited highlight an overriding reality: That we have attempted to fix a broken system of land and agricultural reform without a suitable overarching vision or template. We have never achieved anything approaching a national consensus on how we should achieve what is clearly urgently required.

It seems obvious that a national summit on land reform should be held. Practical and academic studies and models must be presented, discussed, and a focussed, overarching policy hammered out. The CODESA template would provide a suitable way forward. It may be an expensive exercise but the alternative is to continue to waste billions of Rands, attempting to fix a broken system with broken tools. Some degree of constitutional and legal reform may be required to solve land and agrarian issues, but broad consensus must be gained and then acted upon.

The reality is that the world is rapidly changing. South African agricultural policy has failed to reflect this. Industrial agriculture remains the dominant voice, echoing the past but devoid of a suitable vision for the future. While the old agricultural extension model may have worked in the past, it is increasingly irrelevant.

Extension to large commercial farmers is provided by seed and chemical companies while small and emerging farmers are left in the cold by extension officers incapable of helping them because of poor foundations - agricultural colleges perpetuate outdated practices. Small and emerging farmers need constant, innovative and hands on assistance, not a visit every year or two by extension officers trained in irrelevant methodology.

There are numerous experts with excellent proposals to achieve the required changes. The Programme for Land and Agrarian Reform (PLAAS) at the University of the Western Cape has studied many of these and proposed numerous solutions to various aspects of these systemic problems. The Sustainability Institute at the University of Stellenbosch has implemented several courses examining food production systems at Masters and higher levels.

There are numerous small scale NGO-run schemes, which can be scaled up, just as there are indeed some successful programmes initiated by the government, which can be replicated. Equally, we can learn as much from our failures as from our successes. We should also take some lessons from land reform programmes in South America and elsewhere in Africa.

A broad body of relevant international experience exists, including agricultural programmes devised to withstand the impacts of climate change and water constraints. These are particularly suited to smallholder and emerging farmers. The UN FAO runs regular international dialogues on food security from which our policy makers are notably absent. Most of our systemic shortcomings can be addressed.

We also need to reduce staff turnover with every change of political administration, especially in portfolios like agriculture where institutional memory is so important.

The solutions for land reform are certainly more complex than those related to agricultural solutions, because of the political baggage. However land reform can never succeed if there is not an over-arching model to enable the productive use and resettlement of the land.

It is fruitless to hand over huge parcels of land to new, emerging farmers with inadequate capital resources and no means to leverage land for capital collateral. Most of the land presently being transferred to new owners is not even transferred, but leased, almost setting the system up for failure.

We urgently need to move away from the failed dialogue of the deaf between government and commercial farmers. We need wider expertise, broader buy-in and the involvement of grass roots farmers if this system is to succeed. All of the interests and experts in this field must co-operate to solve this problem for once and for all.

Or we can just muddle along, floating woolly concepts until the fuse for the powder keg is lit by circumstance or a Malema clone, placing expediency above the collective interest.

Source: by Glenn Ashton: SACSIS

Kenya: High Court Ruling in Mortgage Dispute

(Obiter as per Ogola, J.)

"Really where is justice? Banks cannot just hide behind the contracts they make, regardless of how unjust they are, to literally destroy their customers. Without their customers the banks cannot operate. A time has come for banks in Kenya to look into the eyes of their customers and answer the question: Are banks Kenyans? Or have they just entered Kenya for business? Banks in Kenya reign large.

I am reminded of a predator who after killing the prey is not satisfied to leave the carcass to the vultures, but becomes both the predator and the vulture, killing the prey and gleaning the meat from the carcass to ensure the prey is really dead. I am also reminded of a robber killing his victim and not only attending his funeral, but insisting on carrying the casket to the grave to confirm that his victim is dead and buried."

Captain J N Wafubwa vs Housing Finance Co. of Kenya

High Court at Nairobi - Milimani Commercial Courts

E.K O Ogolla. J

April 26, 2012

Ownership of a home in Kenya is a dream for many Kenyans. That is why many banks have gone into mortgage financing in a quest to fulfill the dream of many citizens of owning a home by taking a mortgage. Usually, the mortgage instrument is a standard contract across the board that gives the Bank the right to sell the mortgaged property in case the borrower is unable to repay the loan as stipulated in the Contract.

In exercising its right of statutory power of sale, the bank may sometimes err and cause serious frustrations to the borrower of the loan similar to what happened in the present case. Captain Wafubwa took a mortgage from the defendant, Housing Finance (HFCK) in 1989 and ran into arrears which gave HFCK the right to sell his mortgaged property to recover the loan.

The facts

The Plaintiff in this case, Captain Wafubwa took a mortgage with Housing Finance Company of Kenya in 1989. He fell into arrears with the repayments. The bank in exercise of its statutory power of sale held a public auction in 1996 and sold off the property for Ksh 4.5M to United Millers Ltd who were supposed to pay 25% of the price at the fall of the hammer.

United Millers paid the 25% but did not follow through the transaction and therefore the house was not transferred to them. They therefore forfeited the deposit of about Kshs. 1,125,000. The bank in its testimony testified that the said deposit of the money went to its profit and loss account and therefore the borrower still owed the bank money.

In 2009, the Bank sold the suit property through a private treaty to a third party for Kshs 4.5M an amount, which it was worth 13 years back. At that point in time, HFCK claimed they were owed Ksh. 11M by Captain Wafubwa. With this amount, the Bank credited Captain Wafubwa's account and still asked him to repay more than Kshs. 6.8M remaining as part of the debt.

Before the bank did the private treaty, the Captain had sought to redeem his house to no avail and had taken his battle to the Court of Appeal. In the Court of Appeal, it was agreed by a majority decision that the right of redemption by Captain Wafubwa had been extinguished at the fall of the hammer but with one Judge of Appeal dissenting.

The dissenting Judge argued that the right to redeem the house had not been extinguished at the fall of the hammer since the sale was never finalized and as such, the owner still had a chance to redeem his house. However, since a decision by the majority of the Judges had been reached, the owner had no recourse but to seek alternative civil remedy, which resulted in this suit. The Captain went to court claiming wrongful eviction and also claiming the deposit paid in 1996 of Kshs. 1,125,000 and the balance of Kshs. 20,000.

The mortgage had been entered into under the Indian Transfer of Property Act 1882 (now repealed) which at section 69 (c) provides for the mechanism of how proceeds of a sale or attempted sale are to be applied when a bank exercises its statutory power of sale. The section provides;

"The money which is received by a mortgagee, arising from a sale by him under the mortgagee's statutory power of sale after discharge of prior encumbrances to which the sale is not made subject, if any, or after payment into court of a sum to meet any prior encumbrances, shall be held by him in trust to be applied by him, first, in payment of all costs, charges, and expenses properly incurred by him as incident to the sale or any attempted sale, or otherwise, and secondly in discharge of the mortgage - money, interest, and costs, and other money, if any, due under the mortgage, and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorized to give receipts for the proceeds of the sale thereof."

Court Findings

The court opined that the auction sale which took place on November 8, 1996 was a "sale" or an "attempted sale" and therefore the deposit received from it could only be spent as provided under the Act and the balance thereof after deducting the costs and charges had to be used to reduce the mortgage debt and interest, with the residue, if any, given to Captain Wafubwa.

From the foregoing the court found that Captain Wafubwa was entitled to the said credit balance of Kshs.20, 662.80 immediately the deposit of 25% was made pursuant to the attempted sale on 8th November 1996. This being so, his property ought not to have been sold by private treaty in February 2009 as at that time the Captain did not owe HFCK any money on account of the aforesaid mortgage transaction. Captain Wafubwa was therefore entitled to his property.

However since the property was sold to a purchaser for value without notice of the preceding events, and since title had passed to the said purchaser upon the transfer registered on April 21, 2009, Captain Wafubwa was only entitled to the value of his property as at the time of the transfer to the Purchaser together with the expected appreciation in value since, the court said.

Judgment was hence entered for Captain Wafubwa for (a) Kshs.20,662.80/= with interests at 27.5% p.a. with effect from November 12, 1996 till payment in full, (b) Kshs.4, 500,000/= with interest at 27.5% p.a. with effect from February 9, 2009 till payment in full being the value of the suit premises from date of sale and (c) Cost of the Suit with interests thereon at court rates.

Source: All Africa

Can't you hear the thunder?

The headlines scream 'Marikana Massacre'; 'Killing Fields of Rustenburg'. Radio and TV Talk shows and social media all display the anger and expose the psyche of a nation badly wounded. The bloodiest security operation since the end of apartheid has left us shocked and asking what went wrong? The reality is, many things went wrong. Way too many things went wrong, for way too long now. Jay Naidoo

When I think of Marikana, I am reminded of Frantz Fanon in Wretched of the Earth: “Come, then, comrades; it would be as well to decide at once to change our ways. We must shake off the heavy darkness in which we were plunged, and leave it behind. The new day which is already at hand must find us firm, prudent and resolute.”

As a union organiser in the ’80s, I knew that taking workers out on strike on a legitimate wage demand is not an uphill battle. Taking workers back to work after a failed strike is the ultimate test for any union leader. Now is the time for calm heads to prevail.

The Judicial Commission of Enquiry appointed by President Zuma will hopefully present all the facts. It is the right decision. But it will take painstaking commitment on all sides to rebuild the trust that has been shattered. And that involves us all as citizens. There is not going to be a simple solution. This is a complex dispute that is at its very essence a microcosm of South African society.

Today a community struggles to recover from a bloody confrontation that has left the crumpled bodies of 44 citizens lying in the veld, seen starkly in our lounges and across the world. It has split brother from brother and left a community divided and volatile. This is the real trial of leadership on all sides. It is a tinderbox. We do not need demagoguery that stirs explosive emotions or to engage in finger-pointing that adds fuel to the fire.

The critical question is how could this have happened in 2012, 18 years into our democracy and the centenary commemoration of the ANC’s struggle for social justice and human dignity?

The answer simply is that there has been a massive failure of leadership on all sides. The critical question is why we did not act earlier on this festering dispute that today the nation mourns?

There is growing ferment in our land. The people in our townships, rural areas and squatter camps are bitter that democracy has not delivered the fruits that they see a tiny elite enjoying. Our leaders across the spectrum are not talking to our people, they are not working with them systematically to solve their problems, in providing the hope that one day, even in their children’s lives, things will be better.

All they see is the obscenity of shocking wealth and the chasm of inequality growing. The platinum mines they toil in, for a pittance, yield a precious metal that makes exorbitant jewellery that adorns the necks of the affluent and catalytic converters for the expensive cars the middle classes drive. The workers live in hovels, in informal squatter camps, surrounded by poverty and without basic services. All they experience is a political arrogance of leaders who more often than not enrich themselves at the expense the people. They are angry and restless.

A narrow law and order approach will not work in this depressing context. There is genuine anger out there that needs a political solution. I am aghast at the rapid rate at which our government had militarized the security forces and the creeping stranglehold of securocrats within the state. I wonder why our police intelligence failed so miserably to avert a disaster that threatens the country’s economic prospects. Are the securocrats in the state so occupied in searching for imaginary enemies in NGOs and civil society organisations and with passing “Secrecy Laws” that they missed one of biggest crises to face our democracy? There are important choices to be made by the government, but hard questions must first be asked. What are our priorities? What is the root cause of conflict in our society? These may be tough questions, but they are also unavoidable.

Inter-union rivalry is part of the problem. Lonmin management has recognised the Association of Mineworkers and Construction Union (Amcu), which claims between 20% and 30% of the workforce, for dealing with shop floor issues affecting their membership; but they have fanned the rivalry by only giving recognition to the dominant unions, the National Union of Miners (NUM) and Solidarity, in official wage bargaining structures.

When you recognise a union but exclude it from the collective bargaining negotiations around the core issue of wages, you have a recipe for disaster.

The leadership of NUM and Cosatu need to address why so many mineworkers chose a different union and why they lost confidence in a Cosatu affiliate.

I have been in many places where I am personally told: “Comrade, we do not see union organisers. We don’t know what is happening in our union. Our leaders are too involved in politics and we do not get the services and education we did in the past.”

Have we lost touch with our members? After all, these workers were seasoned unionists who have fought many battles, yet they consciously joined an alternative union. We will need some brutal self-assessment here.

Collective bargaining is the cornerstone of our democracy. I believe it was the prototype of the political negotiations that laid the basis of our democracy. The battles fought by hardened antagonists who faced each other across a negotiating table that recognised the alternative to negotiations was a “scorched earth”. As trade unionists, we knew all the negotiating tactics: strikes, go-slows and lockouts and compromises. When industrial disputes spilled into the streets we united to find solutions and face the heat of angry workers.

Putting this collective bargaining machinery at risk will be a severe blow to our democracy. We cannot afford a free-for-all in such a fragile stage of our democracy.

Rustenburg is not a homogenous community. The growth of the platinum belt created an opportunity to develop the new non-racial towns of the future. Instead, all we see is the mushrooming of informal settlements, racial divisions and the spatial planning of our apartheid past. As job seekers flooded in from all over the country the competition over scarce resources was inevitable. We ignored the festering discontent in the bosom of our economy.

And linked to that, Lonmin, a company with its head in the sand, was woefully oblivious to the conditions its workers lived under. It is a reminder to corporate leaders that social stability must be part of the mainstream business agenda. It cannot be written off as a responsibility of the local government and political leaders. It’s not good enough to tick off the neat box of social corporate responsibility or say “I pay my taxes and this is not my job.”

Lonmin was more intent in the early stages on accusing workers of an illegal strike. When the massacre left 34 workers dead and 78 injured, its executives vanished, refused to meet the workers and then started issuing ultimatums for workers to return or face disciplinary action. Callous mine management, in their plush boardrooms in luxury London headquarters, are the face of rapacious capitalism. Their only preoccupation is the all-important production target of 750,000 saleable ounces of platinum that will be missed due to the closure of the Marikana mine. It is an attitude that will only stoke the anger in our communities.

And to us, horrified citizens, will we ever know the names of the dead workers and police officers? Who are they, what were their aspirations, how many children and dependents do they leave behind? Have we become so inured to endemic violence that it does not matter anymore?

They are statistics. Alongside the 15-million South Africans who are only saved from starvation because of social grant. Do we care that almost half our population lives in poverty or that that single mineworker probably supports eight people on a take-home minimum wage? According to Labour Force Survey figures, 60% of all workers earn less than R2,500 a month. Many of these workers are the sole income earners in their households.

These are statistics those of us living in the cosy bubbles of walled security suburbs like Sandton ignore at our peril.

The problems at Marikana were further compounded by the fact today many of these workers are sub-contracted. It has all the features of the heinous migrant labour system. Workers families are as invisible as they were in the Bantustan labour reservoirs of the past.

We had a foretaste of this dispute at Impala Platinum last year. The pay hikes granted to rock drill operators there sparked a similar demand at Lonmin. What did it teach us? There has to be a change of heart and business strategy in the mining sector.

I have often heard notable analysts complain of the high cost of labour. I don’t know which universe they live in. But how can you justify company executives and directors earn up to 250 times as much a rock driller? (Bloomberg Businessweek reported that Lonmin’s CEO, Ian Farmer was paid R15 million in 2011.)

Just as Marikana is a wake-up call for Cosatu, so it is for business and the ANC. Our democracy needs a strong union movement independent of political parties and business interests. But too much of Cosatu’s time is occupied debating the upcoming ANC leadership contest. The coming Cosatu Congress will be a watershed, where political divisions in the movement may herald the death knell of an independent labour movement that can represent the interests of the poor and marginalised.

Cosatu need to return to its founding principles of serving its members or Marikana will become the start of a downward spiral.

The Northwest province is ruled by the ANC, which also controls the bulk of the seats in the Rustenburg municipality. The platinum miners are the bedrock of the ANC support. The broken promises and the brazen corruption affect them directly. Criminal tenderpreneurs are flourishing in their midst. Most local authorities are dysfunctional. There is a deep-seated anger growing in the Northwest. There is a deep-seated anger growing in the country. And yet the leaders are not at the coal face. People feel robbed of their voices and powerless.

In the absence of strong, legitimate political organisation in the communities, they see violence as the only language their leaders will listen to. It’s is a vicious cycle that sees our people burning down any institution representing the state, whether a school, a library or a public building.

My hope is that the president will take us into his confidence. I know it hurts you deeply that the blood of our fellow citizens has been needlessly spilled. My desire is that the road to Mangaung should be shaped by the lessons of the road from Marikana. Our people, Mr President, are exhausted by the excuses given by our leaders. They want solutions and not more task teams, policy statements and conferences. They want action that improves the day-to-day lives, that delivers water and textbooks to schools, ARVs and medicines to our clinics.

I, like the majority of South Africans, have more questions than answers. But we must engage in a healthy open and frank debate. The alternative is too ghastly to contemplate.

Source: Daily Maverick