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
Showing posts with label Transformation. Show all posts
Showing posts with label Transformation. Show all posts
Wednesday, January 8, 2014
Wednesday, November 28, 2012
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
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
Thursday, November 1, 2012
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
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
Thursday, July 26, 2012
South Africa: The Unholy Trinity - the Roots of Corruption in Our Society
The scourge of corruption in South Africa has tightened its grip on our society over the past decade, threatening our democratic achievements, eroding the capacity of the state to advance serious socio-economic transformation, and often undermining the solidarity culture of our broad movement.
The SACP was amongst the first formations to actively launch a mass campaign against corruption - A Red Card Against Corruption. Tragically, there are already martyrs in the struggle against this corrosive evil - among them Mpumalanga SACP cadre, Radioman Ntshangase, and Rustenburg municipal councilor and former NUMSA shopsteward, Moss Phakoe. Both were gunned down for their courageous stands against corruption.
But what lies behind this terrible contagion?
Various explanations are advanced in the South African public debate.
Often it is reduced to bad individual behavior calling for moral condemnation - a "few bad apples", of whom "an example" must be made.
Clearly this is not entirely wrong - those involved in corruption must be dealt with, regardless of who they are, regardless of their political affiliations. In fact, we should expect and demand a higher level of conduct from those who are members of our broad democratic movement and especially from those in public service.
But, sadly, we are dealing with something much more systemic than simply a "few bad apples". In an attempt to find a more generalized explanation for corruption we sometimes encounter syndicalist left-wingers unwittingly echoing "free market" right-wingers in their exaggerated suspicion of the state (or at least the democratic state in a capitalist society) defining it as inherently and in its totality "corrupt". "Power corrupts", we are frequently told - often by an oligopolistic commercial media that likes to conceal its own massive market power.
The idea that politicians and the state are, more or less by definition, corrupt is liable to undermine our determination to use state power (along with social activism) to deal decisively with corruption. It also helps to obscure the fact that where corruption occurs in the public sector there is, invariably, a private sector corrupter, a Glenn Agliotti or a Brett Kebble. For every black property tycoon working in collusion with senior public servants to lease buildings at hugely inflated prices to government there is typically a big bank. The bank might well not literally be breaking the law, but its own senior staff involved in the lease will know exactly what is going on. They will quietly earn inflated bonuses for bringing in business, while the bank chairman publicly condemns the corruption of the new "extraordinary breed of politicians."
Other explanations for corruption in our society belong to the anti-majoritarian pseudo-liberal current of thought. Corruption is blamed on some supposed generalized tendencies within post-independence, Third World liberation movements, for instance. Other explanations border on racial stereotyping, on the supposed propensities of the "new elite" (as if the old elite were not often deeply complicit in past and present corruption).
As it happens, the "new elite" is the key focus of two recent thoughtful interventions by Professor Njabulo Ndebele and cde Joel Netshitenzhe.
Writing in the City Press ("A meditation on corruption", 22 January 2012), Ndebele argues that the "new elite", since being installed in power in the post-1994 reality, has been tugged between competing imperatives - individual redress versus substantial social development, redistribution versus systemic transformation. Although he doesn't quite say this, Ndebele correctly implies that the competing logics of these very different imperatives were often blurred in language as if they were one and the same thing. "Transformation", for instance, came to mean not the radical transformation of the systemic features of apartheid-colonialism, but a touch of racial representivity within essentially the same unchanged realities - the same boardrooms, the same wealthy suburbs, the same elite golf clubs.
Ndebele argues that the "new elite" was increasingly torn between its own "personal material needs...shaped by historical deprivation" on the one hand, and the "social commitment that once gave meaning to the struggle for liberation" on the other. In Ndebele's view, "access to state wealth" meant that relatively quickly individual redress became individual entitlement and these values then trumped social transformation, side-lining it into little more than a "niggling ethical burden".
Writing in ANC Today ("Competing identities of a national liberation movement and the challenges of incumbency", 15 June 2012) Cde Joel Netshitenzhe follows a similar trajectory to explain corruption. He invokes concepts like the "sins of incumbency" and the problem of "growing social distance" between the new political elite and its mass base. Like Ndebele, he analyses the roots of corruption in the psycho-sociological challenges confronting an "emerging middle class" without historical assets to support large extended families, leading it to take on excessive debt. "Having dipped their toes in that lifestyle, but with no historical assets as are available to the white middle and upper strata, some then try to acquire the resources by hook or crook."
There are certainly strong elements of readily recognizable truth in both Ndebele and Netshitenzhe's descriptions. But that is also part of the problem - they tend to remain descriptions, and somewhat one-sided descriptions at that. As a result they are also unable to offer serious anti-corruption programmatic interventions, beyond the very important but limited pedagogical appeal for a change in moral values.
In the public discussion in SA about corruption insufficient attention has been paid to class struggles within our movement, and between our movement and incumbent capital, over the direction of our post-1994 democracy. In particular, there is a failure to recognize that the established white bourgeoisie did not stand idly by in the face of the new, post-1994 political reality. They continued to pursue the agenda of late-apartheid, namely to build a relatively substantial "buffer" black middle strata. This was already the agenda of big capital in the early 1990s negotiations period, for instance. It was no longer a question of preventing the ANC coming to power, but rather to ensure that the ANC that came into power would be hegemonised by the "doves", the "sensible moderates" who would distance themselves from the dangerous "radical populists" and their volatile "mass base".
Much has been made in certain anti-alliance quarters about the woeful consequences of "cadre deployment" - as if (as ANC secretary general, cde Gwede Mantashe likes to point out) the corrupt promotion of someone ill-suited and unqualified for a position on the grounds that they happen to be a political associate was "cadre deployment". But in all of this debate very little has ever been said about the systematic "cadre development and deployment" that key circles of big capital (both domestic and international) implemented in the immediate pre- and post-1994 period. How many key ANC-aligned individuals, for instance, were quietly taken out for internships in arch neo-liberal corporations in the United States, like Goldman Sachs? (Goldman Sachs has recently been deeply discredited, by the way, for its role in provoking and in profiteering from the Greek debt crisis.) Those who "benefited" from this neo-liberal cadre development were then deployed back into strategic positions in government. If I am not mistaken, at least two recent Treasury DGs were graduates of the Goldman Sachs cadre school.
The "social" (and of course ideological and moral) "distance" that cde Netshitenzhe evokes might not have been a conspiracy, but it was certainly part of a deliberate strategy. It was not just an inevitable psycho-sociological syndrome related to historical deprivation, to large extended families, and to the newfound privileges of incumbency.
By the mid-1990s, a key strategy for engineering "social distance" and for consolidating a buffer black elite stratum was the policy of "black economic empowerment". This amounted to a social pact between elements within the new political elite and established big capital. From the side of established big capital it represented in many respects a re-run of how mining and banking capital had once accommodated itself to the 1948 Afrikaner nationalist political victory. But it was also a strategy that was embraced and actively developed by a dominant tendency within the ANC and government (what the SACP has described as the "1996 class project"). For this revisionist tendency within the ANC and government, the creation of a new BEE elite was seen as an active counter-balance to the influence of the SACP, COSATU and the ANC's own township and rural mass base. The strategy found active ideological expression in key ANC documents, including the vulgarization of the concept of "revolutionary motive forces" - with the argument being advanced that all forces that "stood to gain" from the national democratic revolution "were motive forces". This amounted to a local version of the free market "invisible hand" credo that the selfish pursuit of individual satisfaction inevitably leads to the greater good of all.
The first wave of BEE advancements were not necessarily all corrupt (although many questions still surround key early BEE-related moves - notably the arms deal). But the canonization of "BEE" as a central programme of government brought into play a dangerous nexus between political office, personal enrichment, and established capital. The narratives of Ndebele and Netshitenzhe tend to leave out the critical last component of this corrosive, unholy trinity. Let me underline that I am not evoking established capital in order to deflect attention from the culpabilities of the other two components - those who brazenly declared that they "hadn't struggled to be poor".
However, unless we grasp the triadic nexus, this unholy trinity, we will not begin to understand the systemic roots of corruption in our society.
Nor will we be able to develop an effective multi-pronged counter-strategy. For instance, the "social distance" that cde Netshitenzhe and others invoke is not just a metaphor - in South Africa, in which we have not transformed apartheid colonial spatial injustices, social distance is also a yawning geographical reality. For those familiar with the childrens' board-game, our untransformed social reality can easily pitch the new middle strata into a political game of snakes and ladders, in which the snakes and the ladders are exaggeratedly long. If you land on the right square, by securing a regional chairpersonship in the ANC for instance, you might suddenly find yourself on a heady upward ascension. But if you lose your footing, you are liable to fall rapidly down a very long snake, back to zero and abject poverty.
This heady, insecure world of rags-to-riches and riches-to-rags opens up enormous possibilities for strategic (including corrupting) leverage over the new democratic state and over our own alliance formations by those who are well-established and well-resourced. The struggle against corruption and the material conditions that foster it has, therefore, to be a struggle for a much more egalitarian society. We have literally to abolish, amongst many things, the social distance engraved in our persisting apartheid spatial patterns through the accelerated planning and implementation of mixed-used, mixed-income settlement patterns. But this means taking head-on the vested interests of the established capitalist class (the value of their residential properties, for instance), and the venal interests of a comprador elite that has been promoted as a buffer against serious transformation.
Asikhulume!
Jeremy Cronin is SACP 1st Deputy General Secretary.
Source: All Africa
The SACP was amongst the first formations to actively launch a mass campaign against corruption - A Red Card Against Corruption. Tragically, there are already martyrs in the struggle against this corrosive evil - among them Mpumalanga SACP cadre, Radioman Ntshangase, and Rustenburg municipal councilor and former NUMSA shopsteward, Moss Phakoe. Both were gunned down for their courageous stands against corruption.
But what lies behind this terrible contagion?
Various explanations are advanced in the South African public debate.
Often it is reduced to bad individual behavior calling for moral condemnation - a "few bad apples", of whom "an example" must be made.
Clearly this is not entirely wrong - those involved in corruption must be dealt with, regardless of who they are, regardless of their political affiliations. In fact, we should expect and demand a higher level of conduct from those who are members of our broad democratic movement and especially from those in public service.
But, sadly, we are dealing with something much more systemic than simply a "few bad apples". In an attempt to find a more generalized explanation for corruption we sometimes encounter syndicalist left-wingers unwittingly echoing "free market" right-wingers in their exaggerated suspicion of the state (or at least the democratic state in a capitalist society) defining it as inherently and in its totality "corrupt". "Power corrupts", we are frequently told - often by an oligopolistic commercial media that likes to conceal its own massive market power.
The idea that politicians and the state are, more or less by definition, corrupt is liable to undermine our determination to use state power (along with social activism) to deal decisively with corruption. It also helps to obscure the fact that where corruption occurs in the public sector there is, invariably, a private sector corrupter, a Glenn Agliotti or a Brett Kebble. For every black property tycoon working in collusion with senior public servants to lease buildings at hugely inflated prices to government there is typically a big bank. The bank might well not literally be breaking the law, but its own senior staff involved in the lease will know exactly what is going on. They will quietly earn inflated bonuses for bringing in business, while the bank chairman publicly condemns the corruption of the new "extraordinary breed of politicians."
Other explanations for corruption in our society belong to the anti-majoritarian pseudo-liberal current of thought. Corruption is blamed on some supposed generalized tendencies within post-independence, Third World liberation movements, for instance. Other explanations border on racial stereotyping, on the supposed propensities of the "new elite" (as if the old elite were not often deeply complicit in past and present corruption).
As it happens, the "new elite" is the key focus of two recent thoughtful interventions by Professor Njabulo Ndebele and cde Joel Netshitenzhe.
Writing in the City Press ("A meditation on corruption", 22 January 2012), Ndebele argues that the "new elite", since being installed in power in the post-1994 reality, has been tugged between competing imperatives - individual redress versus substantial social development, redistribution versus systemic transformation. Although he doesn't quite say this, Ndebele correctly implies that the competing logics of these very different imperatives were often blurred in language as if they were one and the same thing. "Transformation", for instance, came to mean not the radical transformation of the systemic features of apartheid-colonialism, but a touch of racial representivity within essentially the same unchanged realities - the same boardrooms, the same wealthy suburbs, the same elite golf clubs.
Ndebele argues that the "new elite" was increasingly torn between its own "personal material needs...shaped by historical deprivation" on the one hand, and the "social commitment that once gave meaning to the struggle for liberation" on the other. In Ndebele's view, "access to state wealth" meant that relatively quickly individual redress became individual entitlement and these values then trumped social transformation, side-lining it into little more than a "niggling ethical burden".
Writing in ANC Today ("Competing identities of a national liberation movement and the challenges of incumbency", 15 June 2012) Cde Joel Netshitenzhe follows a similar trajectory to explain corruption. He invokes concepts like the "sins of incumbency" and the problem of "growing social distance" between the new political elite and its mass base. Like Ndebele, he analyses the roots of corruption in the psycho-sociological challenges confronting an "emerging middle class" without historical assets to support large extended families, leading it to take on excessive debt. "Having dipped their toes in that lifestyle, but with no historical assets as are available to the white middle and upper strata, some then try to acquire the resources by hook or crook."
There are certainly strong elements of readily recognizable truth in both Ndebele and Netshitenzhe's descriptions. But that is also part of the problem - they tend to remain descriptions, and somewhat one-sided descriptions at that. As a result they are also unable to offer serious anti-corruption programmatic interventions, beyond the very important but limited pedagogical appeal for a change in moral values.
In the public discussion in SA about corruption insufficient attention has been paid to class struggles within our movement, and between our movement and incumbent capital, over the direction of our post-1994 democracy. In particular, there is a failure to recognize that the established white bourgeoisie did not stand idly by in the face of the new, post-1994 political reality. They continued to pursue the agenda of late-apartheid, namely to build a relatively substantial "buffer" black middle strata. This was already the agenda of big capital in the early 1990s negotiations period, for instance. It was no longer a question of preventing the ANC coming to power, but rather to ensure that the ANC that came into power would be hegemonised by the "doves", the "sensible moderates" who would distance themselves from the dangerous "radical populists" and their volatile "mass base".
Much has been made in certain anti-alliance quarters about the woeful consequences of "cadre deployment" - as if (as ANC secretary general, cde Gwede Mantashe likes to point out) the corrupt promotion of someone ill-suited and unqualified for a position on the grounds that they happen to be a political associate was "cadre deployment". But in all of this debate very little has ever been said about the systematic "cadre development and deployment" that key circles of big capital (both domestic and international) implemented in the immediate pre- and post-1994 period. How many key ANC-aligned individuals, for instance, were quietly taken out for internships in arch neo-liberal corporations in the United States, like Goldman Sachs? (Goldman Sachs has recently been deeply discredited, by the way, for its role in provoking and in profiteering from the Greek debt crisis.) Those who "benefited" from this neo-liberal cadre development were then deployed back into strategic positions in government. If I am not mistaken, at least two recent Treasury DGs were graduates of the Goldman Sachs cadre school.
The "social" (and of course ideological and moral) "distance" that cde Netshitenzhe evokes might not have been a conspiracy, but it was certainly part of a deliberate strategy. It was not just an inevitable psycho-sociological syndrome related to historical deprivation, to large extended families, and to the newfound privileges of incumbency.
By the mid-1990s, a key strategy for engineering "social distance" and for consolidating a buffer black elite stratum was the policy of "black economic empowerment". This amounted to a social pact between elements within the new political elite and established big capital. From the side of established big capital it represented in many respects a re-run of how mining and banking capital had once accommodated itself to the 1948 Afrikaner nationalist political victory. But it was also a strategy that was embraced and actively developed by a dominant tendency within the ANC and government (what the SACP has described as the "1996 class project"). For this revisionist tendency within the ANC and government, the creation of a new BEE elite was seen as an active counter-balance to the influence of the SACP, COSATU and the ANC's own township and rural mass base. The strategy found active ideological expression in key ANC documents, including the vulgarization of the concept of "revolutionary motive forces" - with the argument being advanced that all forces that "stood to gain" from the national democratic revolution "were motive forces". This amounted to a local version of the free market "invisible hand" credo that the selfish pursuit of individual satisfaction inevitably leads to the greater good of all.
The first wave of BEE advancements were not necessarily all corrupt (although many questions still surround key early BEE-related moves - notably the arms deal). But the canonization of "BEE" as a central programme of government brought into play a dangerous nexus between political office, personal enrichment, and established capital. The narratives of Ndebele and Netshitenzhe tend to leave out the critical last component of this corrosive, unholy trinity. Let me underline that I am not evoking established capital in order to deflect attention from the culpabilities of the other two components - those who brazenly declared that they "hadn't struggled to be poor".
However, unless we grasp the triadic nexus, this unholy trinity, we will not begin to understand the systemic roots of corruption in our society.
Nor will we be able to develop an effective multi-pronged counter-strategy. For instance, the "social distance" that cde Netshitenzhe and others invoke is not just a metaphor - in South Africa, in which we have not transformed apartheid colonial spatial injustices, social distance is also a yawning geographical reality. For those familiar with the childrens' board-game, our untransformed social reality can easily pitch the new middle strata into a political game of snakes and ladders, in which the snakes and the ladders are exaggeratedly long. If you land on the right square, by securing a regional chairpersonship in the ANC for instance, you might suddenly find yourself on a heady upward ascension. But if you lose your footing, you are liable to fall rapidly down a very long snake, back to zero and abject poverty.
This heady, insecure world of rags-to-riches and riches-to-rags opens up enormous possibilities for strategic (including corrupting) leverage over the new democratic state and over our own alliance formations by those who are well-established and well-resourced. The struggle against corruption and the material conditions that foster it has, therefore, to be a struggle for a much more egalitarian society. We have literally to abolish, amongst many things, the social distance engraved in our persisting apartheid spatial patterns through the accelerated planning and implementation of mixed-used, mixed-income settlement patterns. But this means taking head-on the vested interests of the established capitalist class (the value of their residential properties, for instance), and the venal interests of a comprador elite that has been promoted as a buffer against serious transformation.
Asikhulume!
Jeremy Cronin is SACP 1st Deputy General Secretary.
Source: All Africa
Friday, July 20, 2012
Only a Transformed ANC can Lead South Africa to Prosperity
South Africa faces the pressing problems of unemployment, poverty, material inequality, failing education and health systems, and a sluggish economy. Consequently, there was some anticipation regarding the policy choices that would emerge from the recent African National Congress (ANC) 4th National Policy Conference, held from 26 to 29 June. Although ANC Secretary General Gwede Mantashe claimed that there were ‘robust’ and ‘candid’ discussions, it still remains unclear where the ANC is taking the country on key policy matters such as state intervention in the economy, fixing the education system and land reform. It is also questionable whether there were indeed open and frank discussions about the current ANC leadership. From proceedings at the policy conference it is clear that at this juncture the ANC is unable to provide the kind of inclusive and cohesive leadership urgently required to solve the country’s main challenges.
Scenario planning expert Clem Sunter, writing in his News24 online column of 7 June, says that the most economically successful countries have had periods of ‘inclusive leadership’ where the head of the country has managed to bring together disparate groups to work together towards the greater good. Unfortunately, the current ANC leadership continues to fail in this regard. The issue of nationalisation, which has for some time hindered foreign and domestic investment, is an example. Political analyst Steven Friedman, writing in the Business Day of 11 July, argues that the ‘ANC alliance includes both left-wingers who distrust business and racial nationalists who want to shift more assets from white to black hands’. Both sides ‘have an interest in restricting property rights’, he says. The ANC leadership is well aware of the various positions within the party concerning the issue of nationalisation and its task is to bring together opposing interest groups and work out a compromise that will address some of these concerns and build investor confidence. Improved confidence would give impetus to prospective and current investors to commit more to the South African economy and fuel economic growth.
To some extent it appears as though the policy conference resulted in some level of compromise between the different perspectives. In his closing address at the conference President Jacob Zuma said, ‘With regards to minerals, there was a broad consensus that minerals belong to the people as a whole and should be governed by the democratic developmental state in the interests of all South Africans. Mining should have a developmental impact and promote job creation. The state should also capture an equitable share of mineral resource rents and deploy them in the interests of long-term economic growth, development and transformation.’ This statement, however, seemed to be interpreted differently by different groups in the ANC. For example, the ANC Youth League, which has called for the wholesale nationalisation of mines without paying compensation, said in a statement, ‘We welcome … the resolution for the nationalisation of mines and other strategic sectors of the economy.’ However, this was disputed by National Executive member Enoch Godongwana, who said that the ANC had decided ‘not to pursue the nationalisation of mines’.
Interestingly, there seemed to be no consideration of the National Planning Commission’s (NPC) recommendations. Established by the Presidency, the NPC consists of 26 of some of the country’s brightest minds, who after a substantial period of consultation with people working in different sectors of society, diagnosed the causes of South Africa’s key problems and identified practical solutions. A key part of the problem facing the ANC appears to be that its top figures have failed to rise above their personal ambition for senior leadership positions. Consequently, the dynamics of the policy conference are framed by the leadership contest taking place in the run-up to the ANC National Conference in December. Seemingly, the key factor driving the contesting factions is the access it provides individuals and factions to state resources. Policy issues then become a proxy for leadership contestation. It therefore often matters more who supports certain policy positions than what the contents of those policies are.
The ANC should consider a system where members compete for positions in a transparent manner guided by a clear set of rules. This would enable delegates to select leaders based on their performance in the party and in government. Further, a political system based on the recommendations of the Frederik van Zyl Slabbert Commission on Electoral Reform, named after the late opposition politician, could be considered. The commission recommended a system geared towards the direct election of political leaders, which could ensure that the leaders are more responsible to the electorate than to factions in the party.
A step towards addressing some of the challenges the ANC faces would be for the party to urgently consider the recommendations of the 2010 National General Council, reiterated in the Organisational Renewal Discussion document. These state that:
The first recommendation is conceivable only if the current ANC leadership is able to look beyond narrow factional interests and realises the importance of acting in the interest of all South Africans, with a focus on the poor. Entrenched factionalism, as noted in the Organisational Renewal Discussion document, is detrimental to the greater good. Currently, it is clear that there are two factions: those who support the current President and status quo and those who seem to be clamouring for a new dispensation led by Deputy President Motlanthe. A courageous and decisive leadership would have opened up the debate on how to structure the issue of succession and initiated the development of a set of rules to guide the debate on the selection of the new leadership. Further, a principled and decisive leadership would have led the way in terms of concerns such as corruption. It would have stated publicly that those who are tainted by allegations of corruption cannot be allowed to lead the party and the country until such allegations are transparently and fairly investigated. Beyond the usual rhetoric, the present leadership has clearly been unsuccessful in decisively acting on corruption in the upper echelons of government.
The practice of cadre deployment has continued to have negative ramifications for government service delivery, as recently argued by the Human Sciences Research Council (HSRC). It is crucial that the ANC leadership leads the way in transforming the organisation into a modern political party that deploys people based on merit, skill and commitment to serving the country, rather than their allegiance to certain organisational factions.
The ruling party has to urgently grasp the fact that a robust civil society, a free media and independent judiciary are critical for an active and mobilised general population that can contribute to strengthening the country. It is therefore discouraging when leading ANC figures actively stifle crucial components of our democracy. Recently the Minister of Water and Environmental Affairs, Edna Molewa, made the absurd statement that there was a ‘war against the state’ because human rights organisations took the government to court for failing to provide adequate drinking water to poor communities. Nelson Mandela’s treason trial lawyer George Bizos warned on 17 July that our politicians do not accept the media’s role and rightly stated, ‘We cannot allow politicians to reduce us to praise singers.’ Instead of seeking to undermine the foundations of our democracy, the ruling party’s leadership has to actively engage all citizens of the country.
Bringing together the range of stakeholders in South Africa to solve the country’s challenges, such as those pertaining to the economy and to education, will provide a foundation that will drive the country into a new era in governance. In addition, such a path has the capability to ignite institutional transformation that will contribute to reviving the country’s sluggish economy. Indeed, all South Africans deserve the dignified and prosperous life aspired to in the constitution and the ANC leadership has a duty to facilitate this.
Source: ISS
Scenario planning expert Clem Sunter, writing in his News24 online column of 7 June, says that the most economically successful countries have had periods of ‘inclusive leadership’ where the head of the country has managed to bring together disparate groups to work together towards the greater good. Unfortunately, the current ANC leadership continues to fail in this regard. The issue of nationalisation, which has for some time hindered foreign and domestic investment, is an example. Political analyst Steven Friedman, writing in the Business Day of 11 July, argues that the ‘ANC alliance includes both left-wingers who distrust business and racial nationalists who want to shift more assets from white to black hands’. Both sides ‘have an interest in restricting property rights’, he says. The ANC leadership is well aware of the various positions within the party concerning the issue of nationalisation and its task is to bring together opposing interest groups and work out a compromise that will address some of these concerns and build investor confidence. Improved confidence would give impetus to prospective and current investors to commit more to the South African economy and fuel economic growth.
To some extent it appears as though the policy conference resulted in some level of compromise between the different perspectives. In his closing address at the conference President Jacob Zuma said, ‘With regards to minerals, there was a broad consensus that minerals belong to the people as a whole and should be governed by the democratic developmental state in the interests of all South Africans. Mining should have a developmental impact and promote job creation. The state should also capture an equitable share of mineral resource rents and deploy them in the interests of long-term economic growth, development and transformation.’ This statement, however, seemed to be interpreted differently by different groups in the ANC. For example, the ANC Youth League, which has called for the wholesale nationalisation of mines without paying compensation, said in a statement, ‘We welcome … the resolution for the nationalisation of mines and other strategic sectors of the economy.’ However, this was disputed by National Executive member Enoch Godongwana, who said that the ANC had decided ‘not to pursue the nationalisation of mines’.
Interestingly, there seemed to be no consideration of the National Planning Commission’s (NPC) recommendations. Established by the Presidency, the NPC consists of 26 of some of the country’s brightest minds, who after a substantial period of consultation with people working in different sectors of society, diagnosed the causes of South Africa’s key problems and identified practical solutions. A key part of the problem facing the ANC appears to be that its top figures have failed to rise above their personal ambition for senior leadership positions. Consequently, the dynamics of the policy conference are framed by the leadership contest taking place in the run-up to the ANC National Conference in December. Seemingly, the key factor driving the contesting factions is the access it provides individuals and factions to state resources. Policy issues then become a proxy for leadership contestation. It therefore often matters more who supports certain policy positions than what the contents of those policies are.
The ANC should consider a system where members compete for positions in a transparent manner guided by a clear set of rules. This would enable delegates to select leaders based on their performance in the party and in government. Further, a political system based on the recommendations of the Frederik van Zyl Slabbert Commission on Electoral Reform, named after the late opposition politician, could be considered. The commission recommended a system geared towards the direct election of political leaders, which could ensure that the leaders are more responsible to the electorate than to factions in the party.
A step towards addressing some of the challenges the ANC faces would be for the party to urgently consider the recommendations of the 2010 National General Council, reiterated in the Organisational Renewal Discussion document. These state that:
- It is critical for the party to have a resilient, courageous, principled and decisive leadership.
- The rejuvenation of the ANC will require a committed and conscious cadre.
- An active civil society and a mobilised population are essential for the renewal of the party.
The first recommendation is conceivable only if the current ANC leadership is able to look beyond narrow factional interests and realises the importance of acting in the interest of all South Africans, with a focus on the poor. Entrenched factionalism, as noted in the Organisational Renewal Discussion document, is detrimental to the greater good. Currently, it is clear that there are two factions: those who support the current President and status quo and those who seem to be clamouring for a new dispensation led by Deputy President Motlanthe. A courageous and decisive leadership would have opened up the debate on how to structure the issue of succession and initiated the development of a set of rules to guide the debate on the selection of the new leadership. Further, a principled and decisive leadership would have led the way in terms of concerns such as corruption. It would have stated publicly that those who are tainted by allegations of corruption cannot be allowed to lead the party and the country until such allegations are transparently and fairly investigated. Beyond the usual rhetoric, the present leadership has clearly been unsuccessful in decisively acting on corruption in the upper echelons of government.
The practice of cadre deployment has continued to have negative ramifications for government service delivery, as recently argued by the Human Sciences Research Council (HSRC). It is crucial that the ANC leadership leads the way in transforming the organisation into a modern political party that deploys people based on merit, skill and commitment to serving the country, rather than their allegiance to certain organisational factions.
The ruling party has to urgently grasp the fact that a robust civil society, a free media and independent judiciary are critical for an active and mobilised general population that can contribute to strengthening the country. It is therefore discouraging when leading ANC figures actively stifle crucial components of our democracy. Recently the Minister of Water and Environmental Affairs, Edna Molewa, made the absurd statement that there was a ‘war against the state’ because human rights organisations took the government to court for failing to provide adequate drinking water to poor communities. Nelson Mandela’s treason trial lawyer George Bizos warned on 17 July that our politicians do not accept the media’s role and rightly stated, ‘We cannot allow politicians to reduce us to praise singers.’ Instead of seeking to undermine the foundations of our democracy, the ruling party’s leadership has to actively engage all citizens of the country.
Bringing together the range of stakeholders in South Africa to solve the country’s challenges, such as those pertaining to the economy and to education, will provide a foundation that will drive the country into a new era in governance. In addition, such a path has the capability to ignite institutional transformation that will contribute to reviving the country’s sluggish economy. Indeed, all South Africans deserve the dignified and prosperous life aspired to in the constitution and the ANC leadership has a duty to facilitate this.
Source: ISS
Friday, March 23, 2012
Double Speak About Judicial Reform In South Africa Raises Alarm Bells
Should South Africans be worried about the double
speak from the ANC concerning transformation of the judiciary? Speaking to
journalists in parliament on 28 February 2012, the Minister of Justice and
Constitutional Development (DoJ), Jeff Radebe asserted that the government had
no interest in reducing the powers of the Constitutional Court. Radebe was
visibly irritated by this line of questioning at the press conference and took
umbrage with what he saw as unnecessary concerns each time the ANC debates the
transformation of the judiciary. Radebe stated that cabinet intended assessing
how “Constitutional Court rulings have impacted on the lives of ordinary South
Africans” and how “challenges” to the goals of transforming South African
society could be better addressed by the judiciary.
In the preface to the Discussion Document on the Transformation of the Judicial System and
the Role of the Judiciary in the Developmental South African State released
in February 2012 by the DoJ, Radebe argues that, “the transformation of the
judicial system is a constitutional imperative which is entrusted upon the government
as a branch of the state, assigned the responsibility of developing and
implementing national policy and of initiating legislation, among others.”
Radebe rightly states that the “judiciary has an
important role in safeguarding and protecting the Constitution and its values
and in ensuring the consolidation of democracy and the realisation of a better
life for all.” Further that, “it is important that the role of judicial
officers is properly understood by those whose fate and livelihood is dependent
on the judgments they give through the courts.”
In South Africa the rulings of various courts can be
the subject of vigorous and free public debate. Free speech is after all a
pivotal pillar of a constitutional democracy. The discussion document does
acknowledge that the three “branches of the state are co-equal” partners
entrusted with distinct powers in their quest to realise the ideals of a
democratic South Africa. However, the
talk of judicial review, especially at a time when a number of Constitutional Court
decisions have been against the government is being treated with suspicion,
specifically in light of ongoing comments by senior ANC officials that reflect
a profound misunderstanding of the role of the courts or reveal outright
hostility towards the judiciary. These include:
- In September 2011, Ngoako Ramthlodi, the
Deputy Minister of Correctional Services said, “In the past 17 years… we have
witnessed sustained and relentless efforts to immigrate the little power left
with the executive and the legislature to civil society and the judiciary.
Power (is) systematically taken out of the legislature and the executive to
curtail efforts and initiatives aimed at inducing fundamental changes.”
- ANC Secretary General, Gwede Mantashe in August
2011, posited that the judiciary was becoming a form of opposition and said,
“You can`t have a judiciary that seeks to arrest the functioning of
government.”
- President Jacob
Zuma, in an interview in early February 2012, stated that, "We don`t want
to review the Constitutional Court, we want to review its powers. It is after
experience that some of the decisions are not decisions that every other judge
in the Constitutional Court agrees with." Apart from demonstrating a lack
of understanding of where this court receives its powers, this statement is in
direct contrast to the statements made by Radebe who said that transformation
of the judiciary was not about the Constitutional Court specifically.
- ANC national spokesperson, Jackson Mthembu, stated on 20 March 2012 that, "It is
clear that democracy can be undermined by simply approaching courts to reverse
any decision arrived at by a qualified organ of state,” because according to
the ANC, the result is a "blanket permission to political parties to review
any state decisions using courts."
- ANC Chief Whip Mathole Motshekga said on 21 March 2012 that the ruling party would do everything in its power, “to prevent government`s attempts to deliver services to the people” being derailed by the courts.
The conflicting
statements from various senior ANC officials with what is written in policy
documents, raises legitimate concerns that the ruling party does not have a
coherent position as far as the transformation of the judiciary is concerned. The statements from ANC officials should be
seen in the light of various upper court judgments that have caused
embarrassment to the executive. Recent examples that highlight the poor
exercise of executive power include:
- In the Glenister judgment on 17 March 2011,
the Constitutional Court ruled that the legislation establishing Directorate of
Priority Crimes Investigation (DPCI), also known as the Hawks, failed to meet
both international and constitutional legal obligations to ensure that it was
sufficiently “independent from political interference.”
- During July 2011, the Constitutional Court
ruled that Zuma’s extension of former Chief Justice Sandile Ngcobo’s term was
unconstitutional and amounted to the executive usurping the power of
parliament.
- On 1 December 2011, the Supreme Court of
Appeal (SCA) ruled that Zuma’s appointment of Menzi Simelane, as head of the
NPA, was “irrational” given that he was clearly not a fit and proper person for
that office and therefore “inconsistent with the Constitution and invalid”.
- On 20 March 2012, the Supreme Court of Appeal ruled that the Democratic Alliance had the right to subject to judicial review, the controversial decision in 2009 by then acting director of public prosecutions Mokotedi Mpshe, to drop various criminal charges against Mr Zuma. Mpshe then stated that, “the decision was not based on the actual merits of the case” and “did not amount to an acquittal.”
The assessment of the Constitutional Court, the first
since 1994, is therefore an interesting proposition coming at this time from
the executive branch of government. Typically, criticism of the court from legal
scholars tends to focus on how it could have done more to promote
socio-economic rights, for instance by ruling on a minimum standard of
socio-economic rights (e.g. the minimum amount of housing, water, education, etc.)
that everyone is entitled to. However, it has resisted doing so, perhaps
rightly, arguing that this would be to stray into the executive policy making
arena and be more onerous on the state if it did. If anything, judgments such as the Grootboom and others versus the Republic of
South Africa, amongst many others, have shown that it is the executive
branch, not the judiciary, which is really failing the poor of South Africa. In
the Grootboom case the Constitutional Court determined that the State is
bound to provide citizens with a minimum
of socio-economic rights, including the
right to adequate housing.
The
DoJ document, in its title, refers to the “... role of the judiciary in the
developmental South African state,” yet there is very little articulation of
what the judiciary can possibly do to advance the ideals of development and to
ease the plight of the poor, beyond that which it currently does, which is to
compel the executive to act in accordance with the constitution and the laws
that flow from it.
On
the day that the discussion document was released, a TNS survey concerning
respondents’ perception of the judiciary was published. “Asked whether judges were biased towards
the government, 38% agreed while 27% disagreed - while the "don`t
know" response stood at 36%.” This
reveals that a large proportion of people differ from various senior ANC officials,
as they tend to believe that the judiciary works in favour of the executive.
Given that two thirds of those surveyed believe that judges are biased one way
or another demonstrates the fragility of the judiciary. By unfairly attacking
the courts, powerful politicians are thereby undermining the rule of law.
Until
there is a consistent message from all ANC officials, both in speeches and
documents, that reveal a clear understanding and respect for our Constitution
and the court that is tasked with upholding it, the media and other
stakeholders will raise alarm bells. Until then, citizens who value our
constitutional democracy have every right to be concerned.
Hamadziripi Tamukamoyo, Researcher, Crime and Justice Division, ISS Pretoria
Source: ISS
Sunday, January 29, 2012
Is the ANC in a decline it cannot reverse?
Songezo Zibi
Sunday Independent
29 January 2012
The
centennial celebrations of the African National Congress provide an
opportunity to reflect on what the future holds for the organisation. Of
course the emotion accompanying the invocation of history, both proud
and painful, raises the question of whether it is possible to offer a
dispassionate appraisal of the future meaning of the ANC. Yet it is
necessary that we do so in order that we may not fall into the folly of
overplaying the hand of historical credibility, or succumbing to the
cynicism that arises out of the ANC’s long incumbency in government.
While
millions of South Africans probably have hundreds of reasons why they
accepted wholeheartedly the ANC’s leadership during the struggle and
after 1994, there are a few on which there appears to be general
agreement. The most central is the extent to which the character and
ethos of the ANC was representative of the best aspirations of the broad
spectrum of South African society. Both in its policy enunciations and
in the exemplary behaviour of its leaders and members, South Africans
saw in the ANC a representation of their highest ideals. As part of our
reflection, we have to ponder whether this still holds true.
Character
relates to behaviour, effectively leading by example. Leadership by its
nature triggers both careful and casual observation of the behaviour of
leaders within and outside their official context. That is why it
matters a lot to church congregants whether their Pastor is also a hard
drinking, womaniser. Equally, it matters greatly to the general
community whether the behaviour of the said church’s congregants is
considered enough of a good example for the community to accept the
collective leadership of the church on relevant matters.
How has the ANC described the prevailing character of the organisation? The year 2000 discussion document titled ANC – People’s Movement and Agent for Change,
notes the development of a trend in which the ANC’s members see
leadership positions in the ANC as a pathway to accessing state power
and resources. The document states: “within
the ANC, the tendency is developing in which positions in government
(and the ANC itself) are seen as platforms for acquiring resources and
power, and divisions based on this perspective of self-enrichment can be
bitter”.
A decade later, the NGC discussion document Tasks of organisation-building and renewal describes the “current situation” in the ANC, which on the face of it, and considering what was outlined in the earlier Through the eye of the needle,
appears to indicate progressive degeneration. “And yet, lack of
discipline and blatant ill-discipline is becoming a distinct feature of
the current situation. Inconsistency in application of rules and
reluctance to act against ill-disciplined elements is rife. The
leadership is often afraid to take action if this will threaten the
prospects of re-election. The culture of our movement is being eroded at a frightening pace.”
In Leadership renewal, discipline and organisational culture,
there is a longer list of behaviours considered rife and an antithesis
of what the ANC historically stood for. In part the document says:
“Since Polokwane (2007, when President Zuma took over), a number of these tendencies have become embedded
(my emphasis) and in fact worsened especially as part of the lobbying
process.” It goes on to list among others an inability to conduct ANC
meetings in an orderly manner, abuse of methods and symbols of the
struggle and indecisive leadership. It further states that these and
many other stated practices have become a “shadow culture which coexists
alongside what the ANC has always stood for”, and that old and new
members and leaders are involved.
Given
these self-assessments, and the seeming degenerative trend they
project, is it still credible to insist that the ANC’s ideals are a
reflection of its current character? Does an aspirational goal
constitute present reality? Does this not suggest that the character of
organisations is separate from the vices of the men who populate and
lead them? These questions are critical towards assessing not only the
true character of the ANC as it currently exists, but its possibility to
lead society in the future.
The
question that arises as a result of this is whether the ANC as
characterised by the example set by its members and leaders represents
the best aspirations of the South African people. We know that in
successive elections, the people have voted the ANC overwhelmingly into
power. But does this mean the character of the current ANC is reflective
of the aspirations of the South African people?
Some have claimed that the ANC is in decline,
including its own leaders. Gauteng provincial secretary, David Makhura
recently stated that “the ANC is a patient, and it is very sick” in an
assessment of the state of the party. COSATU leader Zwelinzima Vavi has
used even more startling language, describing an organisation populated
by proverbial hyenas and greedy elites. Others like political scientist,
Dr Mzukisi Qobo have stated that it is already dead.
But
what do scholars and experts tell us about organisational decline and
eventual descent into oblivion? Jim Collins in his lesser celebrated but
profound book, How the mighty fall, describes the typical steps
into oblivion which are: arrogance born of success, undisciplined
pursuit of more, denial of risk or peril, grasping for salvation and
succumbing to irrelevance or death. Of these, the ANC, even with its
receding intellectual depth, cannot be accused of absolute denial of
risk. It has repeatedly announced bold initiatives to turn the decline
around. A more pertinent question is whether the measures it purported
to put in place have been successful. The increasingly desperate tone of
these assessments appears to suggest decisive failure.
But why is it not succeeding? It could be because it has chosen a path of organisational involution. Xiaobo Lu in Cadres and Corruption describes
involution thus: “Organisational involution takes place when a ruling
party, in dealing with change of environment, opts to retain existing
modes and ethos rather than adopt new ones.” He further goes on to
explain why symptoms of organisational sickness become difficult to cure
under involutionary conditions: “new rules and procedures are often turned into something familiar that bears the imprint of yesteryear.”
What
Xiaobo Lu describes can be seen in the ANC. For instance it continues
to believe, naively, in the inherent integrity of its members and
leaders on the basis of what they swore to when they joined the
organisation. This has led to its complete ill-preparedness for the
dangers of unchecked ambition and lust for power. The other is the
insistence on allowing anyone, no matter how ill-prepared, to run for
high office on the basis of making the biggest hollow promises to
branches. In a world of crises caused by high finance and complicated
economics, any election without minimum qualification standards is
outright foolish.
We
must therefore ask whether the current state of the ANC as described by
itself makes it ready to lead for the next 100 years. We must also
question the assertion common among some in its ranks that because it
has faced numerous challenges in the past and managed to overcome them,
this necessarily suggests it shall again prevail.
Dispassionate
examination should show us that the ANC’s ability to overcome serious
debilitation was anchored in the intellectual and ethical strength of
the leaders it had the consciousness to elect. In addition, in all those
instances the ANC did not have to grapple with the challenges of
holding state power and having access to vast fiscal and institutional
resources. Renewal does not somehow occur. It is the outcome of hard
work founded on ethical and moral ethical application and standards of
leaders and members of an organisation.
Is
the ANC in decline? In addition to the challenges it has already
identified, there are others it appears paralysed to talk or do anything
which relate to questionable personal behaviour some of its senior
leaders because decisive action could cause further divisions. It is
simply mind-boggling that the custodian of the finances of the Northern
Cape, MEC John Block, retains his job while facing criminal charges of
swindling the very State he swore to protect. In KwaZulu Natal, House
Speaker Peggy Nkonyeni and MEC Mike Mabuyakhulu will go on trial in
October for corruption against the State, yet they retain their
positions as if nothing is wrong.
Suggestions
seen so far have included the “screening” of new members, but this is
fatally flawed. Many wonder how high up this screening would go and how
thoroughly it would be applied. Would it for instance include senior
leaders whose family members and friends appear to suddenly have found
entrepreneurial flair they didn’t have before these leaders occupied
high offices in government? Clearly Block, Nkonyeni and Mabuyakhulu
among others would fall foul of this screening if found guilty by the
courts.
Jim Collins in How the mighty fall
says “the path out of darkness begins with those exasperatingly
persistent individuals who are constitutionally incapable of
capitulation…. Be willing to kill failed ideas (sic), even to shutter
big operations you’ve been in for a long time. Be willing to evolve into
an entirely different portfolio of activities, even to the point of
zero overlap with what you do today, but never give up on the principles
that define your culture.” It takes no rocket scientist to realise that
any solutions would have to work around the ethical and moral
“sensitivities” surrounding some leaders, literally making the whole
effort an abortion from the start. Rank and file members would wonder
why the new rules apply to some and not others.
Unless
it notches up some notable successes with its efforts at renewal, it
cannot hope to lead for another 100 years while in perpetual decline. If
the erosion of the ANC’s essence continues at this “frightening pace”, a
tipping point might be near, which would almost certainly lead to the
death of an organisation clearly hobbled by problems it is incapable of
solving. That decline means its character increasingly bears little
connection with the highest aspirations of South Africans. If that
connection reaches its weakest, the ANC will be effectively dead, for no
society wants leaders it cannot identify with.
Source: Midrand Group
Friday, November 11, 2011
Dysfunctional record-keeping keeps watchdog groups and the media in the dark.
Chaotic record-keeping in the North and South Gauteng High Courts -- the country's busiest -- seriously impede the public's access to information.
Court files go missing, apparently owing to theft in some instances and carelessness in others.
Incorrect numbering and insufficient labelling of names in some cases muddle the system.
And, in sensitive cases, files appear to have been removed from their folders and therefore withheld from members of the public and the media.
The number of cases in the country's busiest court, South Gauteng, has nearly doubled over the past three years -- from 35 000 in 2007 to about 65 000 in 2010 -- but the number of administrative staff has not kept pace.
In an interview for a position at the South Gauteng High Court in April this year, then senior counsel, now Judge Sharise Weiner, told the Judicial Services Commission that conditions at the court were "uninhabitable". She pointed to missing court files as a serious problem.
"When I acted on the last occasion, there was a roll of 90 matters in the unopposed motion court and I think there were about 20 files that had gone missing,” she reportedly told the panel.
Judge complained
A year ago, Judge Kathy Satchwell mentioned the issue of missing court files in a Business Day article describing the appalling conditions at the court, including "archives where records lie in no particular order on shelves and sometimes on the floor; a registrar's office where we are daily advised that court files containing pleadings are 'missing'".
She also complained that there was "inadequate and outdated computer technology".
A plan to digitise court files is being implemented, according to justice and constitutional department spokesperson Tlali Tlali, but it is in its infancy at both courts. The project for both courts is worth R42-million.
A scanning system has begun with the emailing of bulk documents -- but only to attorneys. A senior member of the South Gauteng High Court registrar's office told the Mail & Guardian: "Please bear with us while we try and get this scanning process to work properly."
In response to questions about the chaotic filing system and missing documents, Tlali said the workload of the South Gauteng High Court had increased substantially: "In 2007, the turnover was about 35 000 files, in 2010, the turnover was at least 58 000 files.”
A member of the South Gauteng High Court's administrative staff who has to fetch files for court cases told the M&G: "Files just go missing mysteriously. Motion court rolls are supposed to be numerical. My understanding of a numerical roll is that when it starts at one, then the next number is two, then three, and so on till the end. Not here [at this court].
'Any number'
"Here, you start at any number then end at any other number. Parties are incorrectly cited and case numbers are more often than not wrongly typed on the roll. It's usually better to totally ignore the roll and type and number your own roll. Dockets and files go missing and no one says a word."
To fulfil their watchdog role in society, researchers, nongovernmental organisations, members of the public and journalists need access to court records, such as civil and criminal documents, or title deeds, bonds and antenuptial contracts as recorded by the deeds office.
The Promotion of Access to Information Act of 2000 gives the public the right to access public information.
Public records are available to different degrees in different democracies. In the United States, court documents are online, ensuring easier access for the public.
Pacer
The Public Access to Court Electronic Records (Pacer) is an electronic public access service that allows the American public to obtain case and docket information from federal appellate, district and bankruptcy courts.
A public access fee is charged at US8c a page.
There are about one million Pacer users, including attorneys, government agencies, researchers, financial institutions, the media and the general public.
In South Africa, as the justice department plods towards an electronic access system, investigative reporters continue their uphill battle to access documents.
Amabhungane investigative reporter Heidi Swart (see sidebar) has been trying to access documents regarding the application by the public works department to cancel the Pretoria police lease with property developer Roux Shabangu for the past two months.
She visited the North Gauteng High Court on three separate occasions -- September 22, and 28 and October 18 -- and left empty-handed.
Registrar responds
Senior registrar at the North Gauteng High Court Dave Pietersen responded to her story, saying the file in question was not available to the public at that time as the matter had not yet appeared in court.
"The fact that the file was empty might have been [as a result of the fact] that one of the parties had lifted the contents of the court file for various reasons, which they are entitled to do," he said.
Locating a sensitive file is a case in futility
I arrive at the North Gauteng High Court in Pretoria just before the court archives close for the day at 1pm. About 10 people queue at the counter.
I fill in a form with case particulars: case number 52530/2011, an application by the department of public works to cancel a lease with Roux Shabangu. I reach the front after about 20 minutes. A friendly woman takes the form, disappears and returns. It isn't there. There's no file with that number.
I had tried calling the court earlier to make sure that the papers would be there. But archive staff told me that I had to come there in person if I wanted the file. They could not tell me if it was there.
I try again about a week later. This time, I'm sure that the state attorney's office has filed the papers as I phoned them to check. At the archives, about 30 people are queuing. I fill in another form. A friendly staff member comes to me in the queue and takes my form. He promptly returns with the file. I’m delighted. But then I realise it’s empty. He says he does not know where the papers are and refers me to the help desk.
It's illegal to leave the court building with court papers. But I have to go outside to reach the help desk. That's just the way the building is set up. However, the file is empty, so it should be fine.
I exit the building with the file. I am neither stopped nor searched. I enter the building again and go through all the security checks. The file remains undiscovered.
The woman at the help desk looks blankly at the empty file and asks me whether the case has appeared in court yet. "I don't know," I say.
No number
Well, in that case, she cannot help me, she says. There is no way for her to find out where these papers are. I ask her whether there is a number I can phone in future to prevent futile trips. She informs me that there is not.
I dump the empty file on a stack of other files lying unguarded on the counter at the archives.
Take three. This time, my boss, [Amabhungane managing partner] Sam Sole, has phoned Judge President Bernard Ngoepe. Ngoepe has sent an email to the senior court registrar, Dave Pietersen, to fix the problem, lest the public gain the impression that the court is sitting on information that should be available to all.
I make sure I phone Pietersen before I go to court once again. I am hoping that he will agree to keep the file at his office.
Pietersen tells me in no uncertain terms that he has seen the judge president's email but that the folder I am looking for is not a priority for him. I realise that he will not assist me.
Desperate
This does not bode well. However, I am desperate to get the file, so I head back to court, hoping to find it in the archives.
Again, I grab a form and fall into line at the archive. A man calls some of us to the back into the archive room. Amid swearing and sweating, the man scratches through rows of files. There is a rough numerical order to the files but it is not an exact science. He sends me back outside. When he resurfaces he hands me my form, along with a similar form.
"Your file is not here. Call these people. They took it last."
I look at the second form. I don't know who “Jolandi” is, but I am relieved to have a name and a number.
Then I realise that Jolandi may have returned the file by now. Which would mean it could be anywhere in the twilight zone between her office and the court archives.
Looking for the registrar's office, I get lost. I knock on an open door. The man at the desk seems annoyed. I explain. He says there are two other offices that may have the file. "Would you just come and have a look at this?" he asks, pointing at his computer screen. I fix his MS Word table.
Be persistent
Delighted, he finally makes eye contact. He advises me that I should be persistent when I go to those two offices because sometimes they just don't feel like helping.
Just then I notice that the man at the archives was mistaken. Jolandi doesn’t have my file after all. The file she requested has a different case number. I give up. There's always tomorrow. And the next day. And the next. -- Heidi Swart
Source: Mail & Guardian
Court files go missing, apparently owing to theft in some instances and carelessness in others.
Incorrect numbering and insufficient labelling of names in some cases muddle the system.
And, in sensitive cases, files appear to have been removed from their folders and therefore withheld from members of the public and the media.
The number of cases in the country's busiest court, South Gauteng, has nearly doubled over the past three years -- from 35 000 in 2007 to about 65 000 in 2010 -- but the number of administrative staff has not kept pace.
In an interview for a position at the South Gauteng High Court in April this year, then senior counsel, now Judge Sharise Weiner, told the Judicial Services Commission that conditions at the court were "uninhabitable". She pointed to missing court files as a serious problem.
"When I acted on the last occasion, there was a roll of 90 matters in the unopposed motion court and I think there were about 20 files that had gone missing,” she reportedly told the panel.
Judge complained
A year ago, Judge Kathy Satchwell mentioned the issue of missing court files in a Business Day article describing the appalling conditions at the court, including "archives where records lie in no particular order on shelves and sometimes on the floor; a registrar's office where we are daily advised that court files containing pleadings are 'missing'".
She also complained that there was "inadequate and outdated computer technology".
A plan to digitise court files is being implemented, according to justice and constitutional department spokesperson Tlali Tlali, but it is in its infancy at both courts. The project for both courts is worth R42-million.
A scanning system has begun with the emailing of bulk documents -- but only to attorneys. A senior member of the South Gauteng High Court registrar's office told the Mail & Guardian: "Please bear with us while we try and get this scanning process to work properly."
In response to questions about the chaotic filing system and missing documents, Tlali said the workload of the South Gauteng High Court had increased substantially: "In 2007, the turnover was about 35 000 files, in 2010, the turnover was at least 58 000 files.”
A member of the South Gauteng High Court's administrative staff who has to fetch files for court cases told the M&G: "Files just go missing mysteriously. Motion court rolls are supposed to be numerical. My understanding of a numerical roll is that when it starts at one, then the next number is two, then three, and so on till the end. Not here [at this court].
'Any number'
"Here, you start at any number then end at any other number. Parties are incorrectly cited and case numbers are more often than not wrongly typed on the roll. It's usually better to totally ignore the roll and type and number your own roll. Dockets and files go missing and no one says a word."
To fulfil their watchdog role in society, researchers, nongovernmental organisations, members of the public and journalists need access to court records, such as civil and criminal documents, or title deeds, bonds and antenuptial contracts as recorded by the deeds office.
The Promotion of Access to Information Act of 2000 gives the public the right to access public information.
Public records are available to different degrees in different democracies. In the United States, court documents are online, ensuring easier access for the public.
Pacer
The Public Access to Court Electronic Records (Pacer) is an electronic public access service that allows the American public to obtain case and docket information from federal appellate, district and bankruptcy courts.
A public access fee is charged at US8c a page.
There are about one million Pacer users, including attorneys, government agencies, researchers, financial institutions, the media and the general public.
In South Africa, as the justice department plods towards an electronic access system, investigative reporters continue their uphill battle to access documents.
Amabhungane investigative reporter Heidi Swart (see sidebar) has been trying to access documents regarding the application by the public works department to cancel the Pretoria police lease with property developer Roux Shabangu for the past two months.
She visited the North Gauteng High Court on three separate occasions -- September 22, and 28 and October 18 -- and left empty-handed.
Registrar responds
Senior registrar at the North Gauteng High Court Dave Pietersen responded to her story, saying the file in question was not available to the public at that time as the matter had not yet appeared in court.
"The fact that the file was empty might have been [as a result of the fact] that one of the parties had lifted the contents of the court file for various reasons, which they are entitled to do," he said.
Locating a sensitive file is a case in futility
I arrive at the North Gauteng High Court in Pretoria just before the court archives close for the day at 1pm. About 10 people queue at the counter.
I fill in a form with case particulars: case number 52530/2011, an application by the department of public works to cancel a lease with Roux Shabangu. I reach the front after about 20 minutes. A friendly woman takes the form, disappears and returns. It isn't there. There's no file with that number.
I had tried calling the court earlier to make sure that the papers would be there. But archive staff told me that I had to come there in person if I wanted the file. They could not tell me if it was there.
I try again about a week later. This time, I'm sure that the state attorney's office has filed the papers as I phoned them to check. At the archives, about 30 people are queuing. I fill in another form. A friendly staff member comes to me in the queue and takes my form. He promptly returns with the file. I’m delighted. But then I realise it’s empty. He says he does not know where the papers are and refers me to the help desk.
It's illegal to leave the court building with court papers. But I have to go outside to reach the help desk. That's just the way the building is set up. However, the file is empty, so it should be fine.
I exit the building with the file. I am neither stopped nor searched. I enter the building again and go through all the security checks. The file remains undiscovered.
The woman at the help desk looks blankly at the empty file and asks me whether the case has appeared in court yet. "I don't know," I say.
No number
Well, in that case, she cannot help me, she says. There is no way for her to find out where these papers are. I ask her whether there is a number I can phone in future to prevent futile trips. She informs me that there is not.
I dump the empty file on a stack of other files lying unguarded on the counter at the archives.
Take three. This time, my boss, [Amabhungane managing partner] Sam Sole, has phoned Judge President Bernard Ngoepe. Ngoepe has sent an email to the senior court registrar, Dave Pietersen, to fix the problem, lest the public gain the impression that the court is sitting on information that should be available to all.
I make sure I phone Pietersen before I go to court once again. I am hoping that he will agree to keep the file at his office.
Pietersen tells me in no uncertain terms that he has seen the judge president's email but that the folder I am looking for is not a priority for him. I realise that he will not assist me.
Desperate
This does not bode well. However, I am desperate to get the file, so I head back to court, hoping to find it in the archives.
Again, I grab a form and fall into line at the archive. A man calls some of us to the back into the archive room. Amid swearing and sweating, the man scratches through rows of files. There is a rough numerical order to the files but it is not an exact science. He sends me back outside. When he resurfaces he hands me my form, along with a similar form.
"Your file is not here. Call these people. They took it last."
I look at the second form. I don't know who “Jolandi” is, but I am relieved to have a name and a number.
Then I realise that Jolandi may have returned the file by now. Which would mean it could be anywhere in the twilight zone between her office and the court archives.
Looking for the registrar's office, I get lost. I knock on an open door. The man at the desk seems annoyed. I explain. He says there are two other offices that may have the file. "Would you just come and have a look at this?" he asks, pointing at his computer screen. I fix his MS Word table.
Be persistent
Delighted, he finally makes eye contact. He advises me that I should be persistent when I go to those two offices because sometimes they just don't feel like helping.
Just then I notice that the man at the archives was mistaken. Jolandi doesn’t have my file after all. The file she requested has a different case number. I give up. There's always tomorrow. And the next day. And the next. -- Heidi Swart
Source: Mail & Guardian
Monday, January 17, 2011
The Silence of the Lawyers
Speech by Adv Jeremy Gauntlett, SC, to the Conference of the Society of Law Teachers, Stellenbosch, January 17 2011
Thank you for the honour this invitation constitutes. It stirred many feelings in me. The first was doubt as to how your Society took that decision. I say this because I know the way my own profession takes decisions. This is best exemplified by the decision of the Johannesburg Bar Council some 40 years ago.
A well-regarded but cantankerous judge was hospitalised. A delegation was despatched by the Bar Council to his hospital bedside. The leader cleared his throat and told the judge that the Johannesburg Bar Council had mandated him to convey two messages. The first was that he was asked to wish the judge on behalf of the Johannesburg Bar a speedy recovery. The second was to tell the judge that this was on a vote of six to five.
My second feeling was one of nostalgia: nostalgia for those who taught me here, and who either as teachers or as fellow students became my friends for life; and those who taught me, or with whom I worked, in my own postgraduate life. Allow me to mention JC de Wet, Willem Joubert and Tony Honoré - now in his 62nd year of teaching at Oxford.
I and many of my colleagues in practice owe an inexpressible debt to you and to your predecessors. It concerns me that often law teachers seem to doubt the worth of what they do. Their task is ancient and vital. As CP Snow writes of Cambridge in his elegaic novel about university ambition, The Masters, it "[i]s hard not to think of other men walking as we did, of the chain of lives going back so long a time, of others walking those same narrow streets in the rain".
That is not to say that law teachers at times lack brutality. I remember Sir Rupert Cross, great writer and teacher on the law of evidence, handing back collections (essays) at Oxford and saying: "I know you can't help your laziness, but you should really try to do something about your stupidity".
When you invite a practitioner to speak, you should know that his own scholarship will not have been sustained by the bits of writing and lecturing which only earlier years at the Bar readily allowed. So I do not venture a scholarly theme.
On the other hand, if you expect me to speak about things that matter to the profession, I shall do so, but only in part. For what I want to talk about today is a common malaise: a lack of critical faculty not merely in the Faculty, but across the face of legal life in South Africa. My thesis is that, for all lawyers, there are disturbing developments about which we are insufficiently articulate and active.
I have often thought that the trouble with political revolution, velvet or otherwise, is that it gives rise to the same illusions as university graduation. There is the sense of attainment and finality, of a status achieved and no more to be learnt or done. I believe the converse is true. It is just a beginning. That is true of the commencement of constitutionalism in 1994.
Let me illustrate my point with scattered examples from three different areas of our shared complacency. The first concerns adjudication. The second concerns legal practice. And the third concerns you, law teachers, what you do in legal education and what we, the legal profession, do or should ourselves do in legal education.
Time does not permit today to speak in detail of the many challenges with which I believe courts in Southern Africa are confronted. I would however like to say two things in this respect. The first is that it is time to end an approach which is insufficiently rigorous in its scrutiny of the judgments of courts, and how they function.
I do not mean by this that there should be anything less than professional respect for judges, and least of all that there should be the kind of attacks on courts, chiefly by political figures, which from time to time have been manifested.
But other than the writing of David Dyzenhaus, Stu Woolman and Jonathan Lewis, in the tradition of John Dugard, Tony Mathews and Barend van Niekerk, and later Fink Haysom, Clive Plasket and Etienne Mureinik, what probing critique has there been in the last five years of the work of the Constitutional Court?
Those of you who are public lawyers may not agree with it all. You may or may not agree with Jonathan Lewis when he describes the output of the Constitution Court in recent years as "evidenced by an atavistic sentimentality", "outcome-based" and "mock-Solomonic".[1] But then we would all benefit if you said so.
Do you have nothing to say when the Constitutional Court, in the New Clicks case,[2] produced 446 pages of judgments (deciding the matter, like the Johannesburg Bar Council, "by six to five").
Why have you not criticised the refusal by Justice Sachs in the Sidumo case[3] to join Justice Ngcobo and others in determining whether the right in issue was a labour right or an administrative justice right, he urging a "move away from unduly rigid compartmentalisation so as to allow judicial reasoning to embrace fluid concepts of hybridity and permeability"? Do you share my inability to understand language like that, and the concern that it is inexact because the reasoning is not rigorous?
This is not a matter of words, although as lawyers we know that there can scarcely be expressed thought without them. As Lord Hoffmann has written,[4] our legal lives are, as TS Eliot suggested, essentially an "intolerable wrestle with words and meanings".
No, what we are concerned with is the lack of legal clarity. And as Lord Bingham has recently written in his wonderful book on the rule of law,[5] which I commend to all of you, one of the first requisites for the rule of law is clarity in the law.
The consequence, we have seen too often in recent years, has been decisions in which one battles to find a ratio, when there is a self-indulgent multiplicity of voices, and when, as Nugent JA stated in Makambi v Member of Executive Council,[6] various Constitutional Court decisions on the same issue require the courts to go "in diametrically opposed directions".
Beyond this, there are other institutional issues relating to the courts. One is the gross disparity in funding. The Constitutional Court draws on R8 million in funding for its library. The Supreme Court of Appeal, having to cover all fields in the law, submitted a budget for R1,2 million this year. It has received just R100 000. That includes acquisitions for the chambers of the 22 judges. Obviously no text books can be bought, or subscriptions to law journals sustained.
The Johannesburg High Court is in a similar crisis. Yet in recent months we found R71 million to subvent a gathering of world youth on the not-new topic of imperialism. It was Heine who said (with deadly prescience) that the nation that begins by burning books ends by burning people. Perhaps we can say that the nation that begins by disparaging legal scholarship risks renouncing law itself.
Another continuing concern is how we choose our judges. It is probably unnecessary for me in this regard to disclose the interest I have: that in the past my own nominations both to the Constitutional Court and to the High Court have, to the undisguised relief of my creditors, been rejected. I do not speak with rancour on the matter, but equally I cannot avoid speaking. There are matters we need to consider.
I would hope that all of us are committed to the fundamental transformation of our legal system. By that I mean the betterment of the system, in all its attributes, so that it is both closely congruent with and an effective vehicle for the new constitutional dispensation introduced in 1993.
I stress "betterment", because as Justice Michael Kirby of the High Court of Australia has reminded us, transformation does not just mean change, it means change for the better. Other than the Bar, who contributes to researching candidacies for the Bench? Should your Society not have a review committee to do just that, to offer an objective assessment of their academic worth, judgments or other legal writing, and to offer informed criticism of candidates to the JSC?
Countries differ widely, and I accept readily that we have imperatives of our own. I am not a believer that addressing the makeup of the Bench could await the slow evolution of passing years. But that does not prevent us from asking questions regarding the contrast for example between the House of Lords where the 12 Lords of Appeal in Ordinary on the last figures I saw[7] had on average 14 years of judicial experience before being appointed to that court; in Canada, 12 years; while in South Africa, fully six of the 11 members of the Constitutional Court had no judicial experience before joining the court with the remaining five averaging four years judicial experience each.
Can it be said that certain of last year's appointments reflect a continuing disregard for discernible judicial excellence?
Another concern is the output of our top court. In 2008, the Constitutional Court heard 22 cases. The Supreme Court of Canada heard 82, the House of Lords 102 appeals in 2005 and 94 in 2006. In each of 2006 and 2007 one member of the Constitutional Court wrote only two judgments, another produced only three in each of 2005, 2006 and 2007.[8]
The reason why these questions are important is that, as you know, it seems set that the Constitutional Court is to become the apex court in South Africa, for all matters. I have never understood how 11 judges, sitting en banc, could perform this task physically. Eleven may be the optimal number for Man United, but it is not for a court. And if they cease to sit en banc, one faces the prospect of inconsistent precedents, already a serious concern in the Supreme Court of Appeal in recent years as its numbers has grown. Nor do I understand the rationale.
A very deliberate policy choice was made in 1993 not to have complete integration of the courts, placing the Constitutional Court at the top but exclusively concerned with constitutional law. Some of us at the time believed, and wrote, that this was a wrong turn, and that we should have followed the examples of Botswana, Canada, India, Lesotho, Namibia, Swaziland and Zimbabwe, to quote just a few ready examples.
We needed, we said (and the late Chief Justice Corbett was one), to recognise the fact that the law is indivisible. But the turn was taken in the road, and consequences follow. These include the selection of judges over the past 17 years on the basis that they would only adjudicate constitutional matters, and therefore their lack of involvement in prior professional life in wide areas of private law until now mattered less than it otherwise might. Now all must change for the highest court - except those selected on the contrary premise.
The full debate in this regard is a considerable one, and we cannot have it today. But I use it to illustrate an area of deafening silence, where one sees and hears very little, in the legal profession, in the ranks of the judiciary (although obvious constraints apply there) and above all, amongst those of you who write and teach in the field.
There is a yet worse silence regarding adjudication. This is far more concrete than the institutional issues I have just raised regarding South African courts. It concerns the suspension of a vital institution created in international law by solemn treaty obligation between the members of the South African Development Community (SADC).
The Treaty itself contemplates the creation of a regional Tribunal, its role being to adjudicate disputes rooted in international law arising in the region. The Treaty itself makes important provision for international human rights and the rule of law. It was to be expected that at some stage a dispute would arise, and so it did.
Let me give you three examples of the kind of work the Tribunal has done in the short period of three years that it has effectively been functioning.
The first concerns a man called Luke Tembani, the first black Zimbabwean (if one must use the description) ever to obtain freehold title to agricultural land in that country. He did that in 1980. He built up a considerable and successful farming enterprise, employing many, and with enough of a sense of community as to build a school on his farm providing education for over 300 children in the district. He borrowed some money from Zimbabwe's Land Bank.
He was troubled, but not unduly so, when the onset of hyperinflation from 2000 saw monthly statements in which the interest on his debt achieved absurd proportions. Shortly the interest exceeded the (considerable) market capital value of his thriving farm. He tried to negotiate, but the Land Bank's calculator was inexorable. (Behind the calculator, it seems, there was a roving eye which had fallen on his farm.)
What was invoked against him was a statutory provision very similar to the one which was struck down in this country in the Chief Lesapo case[9] in the Constitutional Court. The offensive provision was that an entity like the Land Bank would be permitted to adjudicate in its back rooms an amount said to be owing, and have this certified as a judgment debt.
Under such measures, the courts are completely bypassed. Invoking the right to access to courts protected under the SADC Treaty, and quoting the very useful Constitutional Court decision in Chief Lesapo, we succeeded in obtaining an order from the Tribunal that that provision was inconsistent with Zimbabwe's treaty obligations.
A second case concerned a Zimbabwean human rights NGO, which painstakingly assembled over 40 litigants who had succeeded in obtaining final judgments for damages from Zimbabwean courts, but whose judgments were simply ignored by the Government of Zimbabwe. The claims arose from assaults and even torture by members of the security forces of Zimbabwe.
The government sought to justify its failure to honour the judgments by invoking before the Tribunal the contention that it lacked the means. The Tribunal would have no truck with this. It granted an order holding the Government of Zimbabwe in this respect too to be in breach of its obligations under the Treaty to provide access to justice for its citizens. The Tribunal has ordered the Government not only to honour its own judgments; it has set in place a mechanism to have the awards revalorised so as to address the delay and the ravages of inflation.
It is the third instance you would have heard most about. It concerned first one, then ultimately 78, commercial farmers. They were Zimbabwean citizens, nearly all having obtained their farms on the open market after independence in 1980, many of them doing so on "certificates of no interest" by the Zimbabwean government. But in 2005 Amendment 17 to the Constitution of Zimbabwe was adopted.
It effected a radical change to the property clause in the Bill of Rights, authorising the government of Zimbabwe by ministerial decree to gazette such land as it wished to pass by that simple act from the private owner to the State for further distribution as it wished. It contained an ouster clause: any challenge to the provision, or any act of execution under it, was ousted from adjudication by any court.
The case takes its name from the lead farmer, Michael Campbell.[10] Halfway through the rather drawn out proceedings, he and his wife - both in their late 70s - and his son-in-law were abducted from their farm. They were beaten to such an extent that the son-in-law nearly lost his eye while Michael Campbell himself sustained head injuries from which he has not fully recovered.
Into the mouth of his wife was placed a burning ember and she was required to sign a waiver of the claim then proceeding before the Tribunal. Whether she did so is uncertain, because at some stage of her beatings she lapsed into unconsciousness.
Their reaction was to proceed with the case. We appeared again before the Tribunal, they in wheelchairs and with their heads bandaged, and reached the merit stage of the argument. The government of Zimbabwe's legal team, which had procured a number of postponements, tried for one more.
The next senior judge, Dr Alberto Luis Mondlane - scion of a famous Mozambican revolutionary family - said, very quietly, in response: "We are trying to build a house of justice in this region". The Tribunal (presided over by the Chief Justice of Mauritius) directed that the case continue. The Zimbabwean High Commissioner in Windhoek ordered the legal team to withdraw. We sat in silence as they did, and completed the argument.
A month or two later the Tribunal delivered an award which I would invite you to read on the SADC Tribunal's website.[11] It sustained the attack on the land seizure measures on all three bases argued. It held that the measures were arbitrary and affronted the rule of law, in the purported ouster of access to the courts.
It held secondly that the measures were arbitrary in providing for a mere seizure, with no justiciable measure of compensation at all. And thirdly, it held that the measures constituted discrimination in conflict with the requirements of the Treaty. This was because, although the race of those affected was never mentioned, the seizure was only from people who happened to be white (and not because they were absentee or bad farmers, or because their land holdings were by some measure or the other excessive), and concomitantly that the measures benefitted only a class of political chefs, as they are known in Central Africa: the well-connected, the Wabenzi as East Africans express it in Swahili. And so it happened that a courtroom with predominantly White farmers who had told me that they had learnt not to expect justice in Africa, found it at the dispassionate and adept hands of a team of senior black judges.[12]
The government of Zimbabwe at first ignored the Tribunal's award. Then successively the Minister of Justice and President attacked it. They were followed, unusually, by the Deputy Chief Justice of Zimbabwe, who took the occasion of the official opening of the courts in 2009 to deny the jurisdiction of the Tribunal. I should note that every member of Zimbabwe's Supreme Court, bar one, has accepted at least one confiscated farm from the Government - and continues to sit in land cases.
Now the Protocol on the Tribunal provides for the registration of its awards by domestic courts, so as to make them executable under local law. We proceeded with such an application. The allocated High Court judge happened to be a former Attorney-General and thus (in Zimbabwe) member of Cabinet. He disallowed the application for our ad hoc recognition as counsel for the purposes of the case - although such applications in my instance had been granted a dozen times before.
Suspecting that this might happen, we had able Zimbabwean counsel ready and briefed, who thereupon delivered the argument which had been prepared. Interestingly, Patel J rejected the contention by the Zimbabwean government that no jurisdiction of the Tribunal over it existed. But less surprisingly he dismissed the application for registration.
He contrived to do so on the grounds that to do so would be "contrary to public policy" - because it would contradict what the domestic law and courts had authorised.[13] That, of course, is Kafkaesque: the whole point of going to the international Tribunal was that the laws and court orders of the country had authorised that which was in conflict with Zimbabwe's international law obligation.
We pressed on. To the consternation of the Government of Zimbabwe we applied for registration in Pretoria. Again, the Government resorted to withdrawal. But we said that was too late, because it had entered opposition and by that act, consented to jurisdiction.
In any event, we showed that jurisdiction existed to obtain such an order against a member State of SADC in South Africa. We proceeded to attach Zimbabwean government property in South Africa. Regrettably, the one executable asset for which we had hoped, an aircraft registered in the name of the Government of Zimbabwe and pressed into service for the indispensable objective of a state visit to the Jimmy Choo shop in Sandton, has not yet eventuated.
What has now happened is that the government of Zimbabwe has resorted, not unexpectedly, to extra-legal means. It did so on 17 August 2010 by enlisting the support of other SADC members for an effective suspension of the Tribunal while various spurious questions concerning its jurisdiction and the extent of its powers are being investigated. The terms of office of the first appointed judges are being allowed to expire. In more ways than one, the lights have been turned off.
Of all this there has been far too little scrutiny, let alone the protest to which I believe proper scrutiny should give rise. It is patently, I believe, in violation of the Treaty and Protocol.
I turn from issues concerning the courts and what I have suggested has been a shared silence, to one in respect of which far more might be expected from the organised legal profession. You will find on the Law Society's website the text of a Legal Practice Bill presented to Cabinet on the morning of 5 May 2010, approved by it and announced by the Minister of Justice as being tabled in Parliament that afternoon.
It provides for the disestablishment of all law societies and bars, and the compulsory vesting of their assets in and transfer of their staff to a statutory national council. Its members will be appointed in the discretion of the Minister. I invite you to read the Bill, and to watch the course of events in the next few months.
Consider that there is no constitutional democracy without independent courts, and independent courts cannot be staffed and cannot themselves function unless there is an independent legal profession. I have spoken and written about this elsewhere; if it interests you, you will find it on the Siberink website.[14] It is an area which does not only concern the practitioners, or the judges, but those of you who see part of your own freedom in teaching law derived from the free and independent legal system in which you need to function.
A last area of silence is the one which binds us all together. It is the proper relationship, and respective responsibilities, as between the judiciary, the organised profession and you, the teachers of law. It is of course legal education. We cannot look to the law teachers, practitioners and judges of the future unless their education prepares them for it. And in this regard, I have to cross swords with the director of legal education in the Law Society of South Africa, Nick Swart, for whom I have great respect.
Writing in the Mail & Guardian of 23 December 2010 to 6 January 2011, he commented on the research findings on the LLB curriculum by the Council on Higher Education. Quite rightly he conveyed the concern "that a substantial number of our law graduates lack essential skills such as research, computer work, literacy and numeracy". He says further that these graduates "place a great burden on the attorneys' profession, which must provide training in these skills, which takes up the time and funding that could have been used to strengthen the legal transactional skills required in the attorneys' profession".
He raises the need for a core curriculum, comments on the disparity between faculties, and asserts that, while the attorneys' profession "respects the fact that law faculties are training their students for other vocations too", since attorneys are the largest group of lawyers dealing with the public "the requirements of the attorneys' profession must be high on the lists of their priorities". The point of his piece is ultimately that "the profession cannot devote more time to basic and remedial training to law graduates. They need to be trained also in legal practice skills. We will continue to engage law faculties and CHE on this issue.
I speak of course as a person with very limited experience in teaching law, and most of that about 30 years ago. But I have followed legal education with close interest. I served with Nick and others on liaison bodies, including one for the creation of a judicial education institute - 17 years after our democratic transition still not in existence. I do think that he is right in many of his judgments. But I do believe, strongly, that the predicament of those who train young legal practitioners as regards their educational deficiencies is not to be addressed by expecting universities to remedy basic educational deficiencies.
The deficiencies to which Nick Swart refers, which haunt and cripple young practitioners, are the responsibility not of tertiary institutions but of basic education in this country. The function of universities is the induction of the intellectually qualified in the rigors of rational discourse. It is not to remedy the deficiencies of primary and then secondary education. It also is the duty of the organised legal profession, not universities, to teach professional skills and the adjectival law relevant to these.
I thus do not believe, as Nick propounds, either that universities should teach professional ethics and related subjects, or that their function is to be remedial educationalists.
I sense that the reality is that given two shadows - the long shadow of discriminatory education, and that of the failure since 1994 to have succeeded in remedying it - all of us to a degree must deal with reality and the less than perfect. That this will entail some degree of doing what we would not ideally wish to do, is inherent. But we need to be clear what in principle our respective responsibilities are.
As one who is not a teacher of law, but who cares deeply that teachers of law should be free to teach law, I would ask you not to fall victim to mere pressure and political correctness in your curriculum-setting. I believe you unfortunately did so once before, when you agreed to the introduction of the four-year LLB. I know of no law firm, other legal employer or Bar in the country which considers that to have been a wise step.
Social pressures and good faith gave rise to the decision, but in my view it should not now be repeated. Your calling is clear: more than intubating students with a stock of knowledge, you teach principled and reasoned thinking, and a sense that the intellect and human spirit each only flourish in conditions of freedom. And you teach, or need to teach, discourse: that we all need, in our writing and our speaking to convey things simply, but not more simply than they are.
It was a very great Afrikaans poet who, to the fury of Dr Verwoerd wrote the play, Die Pluimsaad Waai Ver, which premiered more than forty years ago in the theatre where I address you now. He said that dissent is just as essential in a nation as adherence; that it is not dangerous that dissent fails; what is dangerous, he said, is that a whole generation passes without protest.[15]
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[1] 2009 Law Quarterly Review 440 at 442-3.
[2] Minister of Health v New Clicks South Africa (Pty) Limited 2006 (2) SA 311 (CC).
[3] Sidumo v Rustenburg Platinum Mines 2008 (2) SA 24 (CC).
[4] (1997) 114 SALJ 656.
[5] Bingham The Rule of Law (Allen Lane, 2010).
[6] 2008 (5) SA 449 (SCA) at para 21.
[7] Lewis op cit 465.
[8] Ibid.
[9] Chief Lesapo v North West Agricultural Bank 2000 (1) SA 409 (CC).
[10] An award-winning Channel 4 documentary, Mugabe and the White African, has been made about the Campbell family and the SADC litigation.
[11] http://sadc-tribunal.org/. See too http://www.chr.up.ac.za/index.php/documents/african-human-rights-case-law-database.html.
[12] The panel comprised Justices Pillay (Mauritius), Mtambo (Zambia), Mondlane (Mozambique), Kambovo (Angola) and Tshosa (Botswana).
[13] Gramara (Private) Limited and Colin Bailie Cloete v Government of the Republic of Zimbabwe and Attorney-General of Zimbabwe Case No HC33/2009 (heard on 24 November 2009).
[14] www.siberink.co.za.
[15] JC Steyn NP van Wyk Louw vol 2 p 879, quoting Van Wyk Louw's Lojale Verset (my translation).
Source: Politicsweb
Thank you for the honour this invitation constitutes. It stirred many feelings in me. The first was doubt as to how your Society took that decision. I say this because I know the way my own profession takes decisions. This is best exemplified by the decision of the Johannesburg Bar Council some 40 years ago.
A well-regarded but cantankerous judge was hospitalised. A delegation was despatched by the Bar Council to his hospital bedside. The leader cleared his throat and told the judge that the Johannesburg Bar Council had mandated him to convey two messages. The first was that he was asked to wish the judge on behalf of the Johannesburg Bar a speedy recovery. The second was to tell the judge that this was on a vote of six to five.
My second feeling was one of nostalgia: nostalgia for those who taught me here, and who either as teachers or as fellow students became my friends for life; and those who taught me, or with whom I worked, in my own postgraduate life. Allow me to mention JC de Wet, Willem Joubert and Tony Honoré - now in his 62nd year of teaching at Oxford.
I and many of my colleagues in practice owe an inexpressible debt to you and to your predecessors. It concerns me that often law teachers seem to doubt the worth of what they do. Their task is ancient and vital. As CP Snow writes of Cambridge in his elegaic novel about university ambition, The Masters, it "[i]s hard not to think of other men walking as we did, of the chain of lives going back so long a time, of others walking those same narrow streets in the rain".
That is not to say that law teachers at times lack brutality. I remember Sir Rupert Cross, great writer and teacher on the law of evidence, handing back collections (essays) at Oxford and saying: "I know you can't help your laziness, but you should really try to do something about your stupidity".
When you invite a practitioner to speak, you should know that his own scholarship will not have been sustained by the bits of writing and lecturing which only earlier years at the Bar readily allowed. So I do not venture a scholarly theme.
On the other hand, if you expect me to speak about things that matter to the profession, I shall do so, but only in part. For what I want to talk about today is a common malaise: a lack of critical faculty not merely in the Faculty, but across the face of legal life in South Africa. My thesis is that, for all lawyers, there are disturbing developments about which we are insufficiently articulate and active.
I have often thought that the trouble with political revolution, velvet or otherwise, is that it gives rise to the same illusions as university graduation. There is the sense of attainment and finality, of a status achieved and no more to be learnt or done. I believe the converse is true. It is just a beginning. That is true of the commencement of constitutionalism in 1994.
Let me illustrate my point with scattered examples from three different areas of our shared complacency. The first concerns adjudication. The second concerns legal practice. And the third concerns you, law teachers, what you do in legal education and what we, the legal profession, do or should ourselves do in legal education.
Time does not permit today to speak in detail of the many challenges with which I believe courts in Southern Africa are confronted. I would however like to say two things in this respect. The first is that it is time to end an approach which is insufficiently rigorous in its scrutiny of the judgments of courts, and how they function.
I do not mean by this that there should be anything less than professional respect for judges, and least of all that there should be the kind of attacks on courts, chiefly by political figures, which from time to time have been manifested.
But other than the writing of David Dyzenhaus, Stu Woolman and Jonathan Lewis, in the tradition of John Dugard, Tony Mathews and Barend van Niekerk, and later Fink Haysom, Clive Plasket and Etienne Mureinik, what probing critique has there been in the last five years of the work of the Constitutional Court?
Those of you who are public lawyers may not agree with it all. You may or may not agree with Jonathan Lewis when he describes the output of the Constitution Court in recent years as "evidenced by an atavistic sentimentality", "outcome-based" and "mock-Solomonic".[1] But then we would all benefit if you said so.
Do you have nothing to say when the Constitutional Court, in the New Clicks case,[2] produced 446 pages of judgments (deciding the matter, like the Johannesburg Bar Council, "by six to five").
Why have you not criticised the refusal by Justice Sachs in the Sidumo case[3] to join Justice Ngcobo and others in determining whether the right in issue was a labour right or an administrative justice right, he urging a "move away from unduly rigid compartmentalisation so as to allow judicial reasoning to embrace fluid concepts of hybridity and permeability"? Do you share my inability to understand language like that, and the concern that it is inexact because the reasoning is not rigorous?
This is not a matter of words, although as lawyers we know that there can scarcely be expressed thought without them. As Lord Hoffmann has written,[4] our legal lives are, as TS Eliot suggested, essentially an "intolerable wrestle with words and meanings".
No, what we are concerned with is the lack of legal clarity. And as Lord Bingham has recently written in his wonderful book on the rule of law,[5] which I commend to all of you, one of the first requisites for the rule of law is clarity in the law.
The consequence, we have seen too often in recent years, has been decisions in which one battles to find a ratio, when there is a self-indulgent multiplicity of voices, and when, as Nugent JA stated in Makambi v Member of Executive Council,[6] various Constitutional Court decisions on the same issue require the courts to go "in diametrically opposed directions".
Beyond this, there are other institutional issues relating to the courts. One is the gross disparity in funding. The Constitutional Court draws on R8 million in funding for its library. The Supreme Court of Appeal, having to cover all fields in the law, submitted a budget for R1,2 million this year. It has received just R100 000. That includes acquisitions for the chambers of the 22 judges. Obviously no text books can be bought, or subscriptions to law journals sustained.
The Johannesburg High Court is in a similar crisis. Yet in recent months we found R71 million to subvent a gathering of world youth on the not-new topic of imperialism. It was Heine who said (with deadly prescience) that the nation that begins by burning books ends by burning people. Perhaps we can say that the nation that begins by disparaging legal scholarship risks renouncing law itself.
Another continuing concern is how we choose our judges. It is probably unnecessary for me in this regard to disclose the interest I have: that in the past my own nominations both to the Constitutional Court and to the High Court have, to the undisguised relief of my creditors, been rejected. I do not speak with rancour on the matter, but equally I cannot avoid speaking. There are matters we need to consider.
I would hope that all of us are committed to the fundamental transformation of our legal system. By that I mean the betterment of the system, in all its attributes, so that it is both closely congruent with and an effective vehicle for the new constitutional dispensation introduced in 1993.
I stress "betterment", because as Justice Michael Kirby of the High Court of Australia has reminded us, transformation does not just mean change, it means change for the better. Other than the Bar, who contributes to researching candidacies for the Bench? Should your Society not have a review committee to do just that, to offer an objective assessment of their academic worth, judgments or other legal writing, and to offer informed criticism of candidates to the JSC?
Countries differ widely, and I accept readily that we have imperatives of our own. I am not a believer that addressing the makeup of the Bench could await the slow evolution of passing years. But that does not prevent us from asking questions regarding the contrast for example between the House of Lords where the 12 Lords of Appeal in Ordinary on the last figures I saw[7] had on average 14 years of judicial experience before being appointed to that court; in Canada, 12 years; while in South Africa, fully six of the 11 members of the Constitutional Court had no judicial experience before joining the court with the remaining five averaging four years judicial experience each.
Can it be said that certain of last year's appointments reflect a continuing disregard for discernible judicial excellence?
Another concern is the output of our top court. In 2008, the Constitutional Court heard 22 cases. The Supreme Court of Canada heard 82, the House of Lords 102 appeals in 2005 and 94 in 2006. In each of 2006 and 2007 one member of the Constitutional Court wrote only two judgments, another produced only three in each of 2005, 2006 and 2007.[8]
The reason why these questions are important is that, as you know, it seems set that the Constitutional Court is to become the apex court in South Africa, for all matters. I have never understood how 11 judges, sitting en banc, could perform this task physically. Eleven may be the optimal number for Man United, but it is not for a court. And if they cease to sit en banc, one faces the prospect of inconsistent precedents, already a serious concern in the Supreme Court of Appeal in recent years as its numbers has grown. Nor do I understand the rationale.
A very deliberate policy choice was made in 1993 not to have complete integration of the courts, placing the Constitutional Court at the top but exclusively concerned with constitutional law. Some of us at the time believed, and wrote, that this was a wrong turn, and that we should have followed the examples of Botswana, Canada, India, Lesotho, Namibia, Swaziland and Zimbabwe, to quote just a few ready examples.
We needed, we said (and the late Chief Justice Corbett was one), to recognise the fact that the law is indivisible. But the turn was taken in the road, and consequences follow. These include the selection of judges over the past 17 years on the basis that they would only adjudicate constitutional matters, and therefore their lack of involvement in prior professional life in wide areas of private law until now mattered less than it otherwise might. Now all must change for the highest court - except those selected on the contrary premise.
The full debate in this regard is a considerable one, and we cannot have it today. But I use it to illustrate an area of deafening silence, where one sees and hears very little, in the legal profession, in the ranks of the judiciary (although obvious constraints apply there) and above all, amongst those of you who write and teach in the field.
There is a yet worse silence regarding adjudication. This is far more concrete than the institutional issues I have just raised regarding South African courts. It concerns the suspension of a vital institution created in international law by solemn treaty obligation between the members of the South African Development Community (SADC).
The Treaty itself contemplates the creation of a regional Tribunal, its role being to adjudicate disputes rooted in international law arising in the region. The Treaty itself makes important provision for international human rights and the rule of law. It was to be expected that at some stage a dispute would arise, and so it did.
Let me give you three examples of the kind of work the Tribunal has done in the short period of three years that it has effectively been functioning.
The first concerns a man called Luke Tembani, the first black Zimbabwean (if one must use the description) ever to obtain freehold title to agricultural land in that country. He did that in 1980. He built up a considerable and successful farming enterprise, employing many, and with enough of a sense of community as to build a school on his farm providing education for over 300 children in the district. He borrowed some money from Zimbabwe's Land Bank.
He was troubled, but not unduly so, when the onset of hyperinflation from 2000 saw monthly statements in which the interest on his debt achieved absurd proportions. Shortly the interest exceeded the (considerable) market capital value of his thriving farm. He tried to negotiate, but the Land Bank's calculator was inexorable. (Behind the calculator, it seems, there was a roving eye which had fallen on his farm.)
What was invoked against him was a statutory provision very similar to the one which was struck down in this country in the Chief Lesapo case[9] in the Constitutional Court. The offensive provision was that an entity like the Land Bank would be permitted to adjudicate in its back rooms an amount said to be owing, and have this certified as a judgment debt.
Under such measures, the courts are completely bypassed. Invoking the right to access to courts protected under the SADC Treaty, and quoting the very useful Constitutional Court decision in Chief Lesapo, we succeeded in obtaining an order from the Tribunal that that provision was inconsistent with Zimbabwe's treaty obligations.
A second case concerned a Zimbabwean human rights NGO, which painstakingly assembled over 40 litigants who had succeeded in obtaining final judgments for damages from Zimbabwean courts, but whose judgments were simply ignored by the Government of Zimbabwe. The claims arose from assaults and even torture by members of the security forces of Zimbabwe.
The government sought to justify its failure to honour the judgments by invoking before the Tribunal the contention that it lacked the means. The Tribunal would have no truck with this. It granted an order holding the Government of Zimbabwe in this respect too to be in breach of its obligations under the Treaty to provide access to justice for its citizens. The Tribunal has ordered the Government not only to honour its own judgments; it has set in place a mechanism to have the awards revalorised so as to address the delay and the ravages of inflation.
It is the third instance you would have heard most about. It concerned first one, then ultimately 78, commercial farmers. They were Zimbabwean citizens, nearly all having obtained their farms on the open market after independence in 1980, many of them doing so on "certificates of no interest" by the Zimbabwean government. But in 2005 Amendment 17 to the Constitution of Zimbabwe was adopted.
It effected a radical change to the property clause in the Bill of Rights, authorising the government of Zimbabwe by ministerial decree to gazette such land as it wished to pass by that simple act from the private owner to the State for further distribution as it wished. It contained an ouster clause: any challenge to the provision, or any act of execution under it, was ousted from adjudication by any court.
The case takes its name from the lead farmer, Michael Campbell.[10] Halfway through the rather drawn out proceedings, he and his wife - both in their late 70s - and his son-in-law were abducted from their farm. They were beaten to such an extent that the son-in-law nearly lost his eye while Michael Campbell himself sustained head injuries from which he has not fully recovered.
Into the mouth of his wife was placed a burning ember and she was required to sign a waiver of the claim then proceeding before the Tribunal. Whether she did so is uncertain, because at some stage of her beatings she lapsed into unconsciousness.
Their reaction was to proceed with the case. We appeared again before the Tribunal, they in wheelchairs and with their heads bandaged, and reached the merit stage of the argument. The government of Zimbabwe's legal team, which had procured a number of postponements, tried for one more.
The next senior judge, Dr Alberto Luis Mondlane - scion of a famous Mozambican revolutionary family - said, very quietly, in response: "We are trying to build a house of justice in this region". The Tribunal (presided over by the Chief Justice of Mauritius) directed that the case continue. The Zimbabwean High Commissioner in Windhoek ordered the legal team to withdraw. We sat in silence as they did, and completed the argument.
A month or two later the Tribunal delivered an award which I would invite you to read on the SADC Tribunal's website.[11] It sustained the attack on the land seizure measures on all three bases argued. It held that the measures were arbitrary and affronted the rule of law, in the purported ouster of access to the courts.
It held secondly that the measures were arbitrary in providing for a mere seizure, with no justiciable measure of compensation at all. And thirdly, it held that the measures constituted discrimination in conflict with the requirements of the Treaty. This was because, although the race of those affected was never mentioned, the seizure was only from people who happened to be white (and not because they were absentee or bad farmers, or because their land holdings were by some measure or the other excessive), and concomitantly that the measures benefitted only a class of political chefs, as they are known in Central Africa: the well-connected, the Wabenzi as East Africans express it in Swahili. And so it happened that a courtroom with predominantly White farmers who had told me that they had learnt not to expect justice in Africa, found it at the dispassionate and adept hands of a team of senior black judges.[12]
The government of Zimbabwe at first ignored the Tribunal's award. Then successively the Minister of Justice and President attacked it. They were followed, unusually, by the Deputy Chief Justice of Zimbabwe, who took the occasion of the official opening of the courts in 2009 to deny the jurisdiction of the Tribunal. I should note that every member of Zimbabwe's Supreme Court, bar one, has accepted at least one confiscated farm from the Government - and continues to sit in land cases.
Now the Protocol on the Tribunal provides for the registration of its awards by domestic courts, so as to make them executable under local law. We proceeded with such an application. The allocated High Court judge happened to be a former Attorney-General and thus (in Zimbabwe) member of Cabinet. He disallowed the application for our ad hoc recognition as counsel for the purposes of the case - although such applications in my instance had been granted a dozen times before.
Suspecting that this might happen, we had able Zimbabwean counsel ready and briefed, who thereupon delivered the argument which had been prepared. Interestingly, Patel J rejected the contention by the Zimbabwean government that no jurisdiction of the Tribunal over it existed. But less surprisingly he dismissed the application for registration.
He contrived to do so on the grounds that to do so would be "contrary to public policy" - because it would contradict what the domestic law and courts had authorised.[13] That, of course, is Kafkaesque: the whole point of going to the international Tribunal was that the laws and court orders of the country had authorised that which was in conflict with Zimbabwe's international law obligation.
We pressed on. To the consternation of the Government of Zimbabwe we applied for registration in Pretoria. Again, the Government resorted to withdrawal. But we said that was too late, because it had entered opposition and by that act, consented to jurisdiction.
In any event, we showed that jurisdiction existed to obtain such an order against a member State of SADC in South Africa. We proceeded to attach Zimbabwean government property in South Africa. Regrettably, the one executable asset for which we had hoped, an aircraft registered in the name of the Government of Zimbabwe and pressed into service for the indispensable objective of a state visit to the Jimmy Choo shop in Sandton, has not yet eventuated.
What has now happened is that the government of Zimbabwe has resorted, not unexpectedly, to extra-legal means. It did so on 17 August 2010 by enlisting the support of other SADC members for an effective suspension of the Tribunal while various spurious questions concerning its jurisdiction and the extent of its powers are being investigated. The terms of office of the first appointed judges are being allowed to expire. In more ways than one, the lights have been turned off.
Of all this there has been far too little scrutiny, let alone the protest to which I believe proper scrutiny should give rise. It is patently, I believe, in violation of the Treaty and Protocol.
I turn from issues concerning the courts and what I have suggested has been a shared silence, to one in respect of which far more might be expected from the organised legal profession. You will find on the Law Society's website the text of a Legal Practice Bill presented to Cabinet on the morning of 5 May 2010, approved by it and announced by the Minister of Justice as being tabled in Parliament that afternoon.
It provides for the disestablishment of all law societies and bars, and the compulsory vesting of their assets in and transfer of their staff to a statutory national council. Its members will be appointed in the discretion of the Minister. I invite you to read the Bill, and to watch the course of events in the next few months.
Consider that there is no constitutional democracy without independent courts, and independent courts cannot be staffed and cannot themselves function unless there is an independent legal profession. I have spoken and written about this elsewhere; if it interests you, you will find it on the Siberink website.[14] It is an area which does not only concern the practitioners, or the judges, but those of you who see part of your own freedom in teaching law derived from the free and independent legal system in which you need to function.
A last area of silence is the one which binds us all together. It is the proper relationship, and respective responsibilities, as between the judiciary, the organised profession and you, the teachers of law. It is of course legal education. We cannot look to the law teachers, practitioners and judges of the future unless their education prepares them for it. And in this regard, I have to cross swords with the director of legal education in the Law Society of South Africa, Nick Swart, for whom I have great respect.
Writing in the Mail & Guardian of 23 December 2010 to 6 January 2011, he commented on the research findings on the LLB curriculum by the Council on Higher Education. Quite rightly he conveyed the concern "that a substantial number of our law graduates lack essential skills such as research, computer work, literacy and numeracy". He says further that these graduates "place a great burden on the attorneys' profession, which must provide training in these skills, which takes up the time and funding that could have been used to strengthen the legal transactional skills required in the attorneys' profession".
He raises the need for a core curriculum, comments on the disparity between faculties, and asserts that, while the attorneys' profession "respects the fact that law faculties are training their students for other vocations too", since attorneys are the largest group of lawyers dealing with the public "the requirements of the attorneys' profession must be high on the lists of their priorities". The point of his piece is ultimately that "the profession cannot devote more time to basic and remedial training to law graduates. They need to be trained also in legal practice skills. We will continue to engage law faculties and CHE on this issue.
I speak of course as a person with very limited experience in teaching law, and most of that about 30 years ago. But I have followed legal education with close interest. I served with Nick and others on liaison bodies, including one for the creation of a judicial education institute - 17 years after our democratic transition still not in existence. I do think that he is right in many of his judgments. But I do believe, strongly, that the predicament of those who train young legal practitioners as regards their educational deficiencies is not to be addressed by expecting universities to remedy basic educational deficiencies.
The deficiencies to which Nick Swart refers, which haunt and cripple young practitioners, are the responsibility not of tertiary institutions but of basic education in this country. The function of universities is the induction of the intellectually qualified in the rigors of rational discourse. It is not to remedy the deficiencies of primary and then secondary education. It also is the duty of the organised legal profession, not universities, to teach professional skills and the adjectival law relevant to these.
I thus do not believe, as Nick propounds, either that universities should teach professional ethics and related subjects, or that their function is to be remedial educationalists.
I sense that the reality is that given two shadows - the long shadow of discriminatory education, and that of the failure since 1994 to have succeeded in remedying it - all of us to a degree must deal with reality and the less than perfect. That this will entail some degree of doing what we would not ideally wish to do, is inherent. But we need to be clear what in principle our respective responsibilities are.
As one who is not a teacher of law, but who cares deeply that teachers of law should be free to teach law, I would ask you not to fall victim to mere pressure and political correctness in your curriculum-setting. I believe you unfortunately did so once before, when you agreed to the introduction of the four-year LLB. I know of no law firm, other legal employer or Bar in the country which considers that to have been a wise step.
Social pressures and good faith gave rise to the decision, but in my view it should not now be repeated. Your calling is clear: more than intubating students with a stock of knowledge, you teach principled and reasoned thinking, and a sense that the intellect and human spirit each only flourish in conditions of freedom. And you teach, or need to teach, discourse: that we all need, in our writing and our speaking to convey things simply, but not more simply than they are.
It was a very great Afrikaans poet who, to the fury of Dr Verwoerd wrote the play, Die Pluimsaad Waai Ver, which premiered more than forty years ago in the theatre where I address you now. He said that dissent is just as essential in a nation as adherence; that it is not dangerous that dissent fails; what is dangerous, he said, is that a whole generation passes without protest.[15]
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[1] 2009 Law Quarterly Review 440 at 442-3.
[2] Minister of Health v New Clicks South Africa (Pty) Limited 2006 (2) SA 311 (CC).
[3] Sidumo v Rustenburg Platinum Mines 2008 (2) SA 24 (CC).
[4] (1997) 114 SALJ 656.
[5] Bingham The Rule of Law (Allen Lane, 2010).
[6] 2008 (5) SA 449 (SCA) at para 21.
[7] Lewis op cit 465.
[8] Ibid.
[9] Chief Lesapo v North West Agricultural Bank 2000 (1) SA 409 (CC).
[10] An award-winning Channel 4 documentary, Mugabe and the White African, has been made about the Campbell family and the SADC litigation.
[11] http://sadc-tribunal.org/. See too http://www.chr.up.ac.za/index.php/documents/african-human-rights-case-law-database.html.
[12] The panel comprised Justices Pillay (Mauritius), Mtambo (Zambia), Mondlane (Mozambique), Kambovo (Angola) and Tshosa (Botswana).
[13] Gramara (Private) Limited and Colin Bailie Cloete v Government of the Republic of Zimbabwe and Attorney-General of Zimbabwe Case No HC33/2009 (heard on 24 November 2009).
[14] www.siberink.co.za.
[15] JC Steyn NP van Wyk Louw vol 2 p 879, quoting Van Wyk Louw's Lojale Verset (my translation).
Source: Politicsweb
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