South Africa: Farmworkers’ Dismal, Dangerous Lives

Workers in Western Cape province who help produce South Africa’s renowned wines and fruit are denied adequate housing, proper safety equipment, and basic labor rights, Human Rights Watch said in a report released today. The government of South Africa, along with the industries that employ these laborers, should take immediate steps to improve their working and housing conditions, Human Rights Watch said.

The 96-page report, “Ripe with Abuse: Human Rights Conditions in South Africa’s Fruit and Wine Industries,” documents conditions that include on-site housing that is unfit for living, exposure to pesticides without proper safety equipment, lack of access to toilets or drinking water while working, and efforts to block workers from forming unions. While the Western Cape’s fruit and wine industries contribute billions of rand to the country’s economy, support tourism, and are enjoyed by consumers around the world, their farmworkers earn among the lowest wages in South Africa. The report also describes insecure tenure rights and threats of eviction for longtime residents on farms.

“The wealth and well-being these workers produce shouldn’t be rooted in human misery,” said Daniel Bekele, Africa director at Human Rights Watch. “The government, and the industries and farmers themselves, need to do a lot more to protect people who live and work on farms.”

The report is based on more than 260 interviews with farmworkers, farm owners, civil society members, industry representatives, government officials, lawyers, union officials, and academic experts.

South Africa has laws guaranteeing wages, benefits, and safe working and housing conditions for workers and other farm dwellers. But the law affords workers much greater labor and housing protections than they receive because the government largely has failed to monitor conditions and enforce the laws, Human Rights Watch said.

Human Rights Watch found the housing for some workers uninhabitable. One farmworker showed Human Rights Watch the former pig stall without electricity, water, or protection from the elements where he has lived with his wife and children for 10 years. “It makes me very unhappy,” his wife said, “because I can’t guarantee [the] safety of [my] children and can’t provide for [my] children.”

Many farmworkers live on farms as part of their employment arrangement; they are joined by family members and former workers, including those who can no longer work because they are too old or injured. These farm dwellers’ land tenure rights are protected under the Extension of Security of Tenure Act, enacted in 1997. Yet, by civil society estimates, more than 930,000 people were evicted from South African farms between 1994 and 2004. The government does not keep statistics on numbers of evictions, but people interviewed described a steady pace of evictions, particularly when laborers are no longer able to work. Evicted workers who spoke with Human Rights Watch had not been given suitable alternative housing or adequate compensation to find new housing.

Farmers sometimes resort to illegal tactics to get farm dwellers to leave, including cutting electricity or water. In one case, farm managers severed electricity for more than a year for a family with two children. Security guards on the farm harassed families in the middle of the night with dogs.

Although it is a crime for owners to evict occupiers from land without following required procedures, the authorities rarely initiate criminal proceedings. And even when farmers follow legal procedures, evicted farm dwellers often have no place to go. Municipal governments are generally unprepared to assist them, and some end up homeless.

Occupational health and safety conditions on many farms endanger workers, Human Rights Watch found. The majority of the current and former farmworkers interviewed about these conditions said they had been exposed to pesticides without adequate safety equipment. In addition, many employers jeopardize workers’ health by not providing them with access to drinking water, hand washing facilities, or toilets, even though these are required by labor regulations. When farmworkers are ill or injured, as is fairly common in this line of dangerous work, they are almost always refused the paid sick leave required by law unless they provide a medical certificate.

“Given what we know about the effects of pesticide use, it is unconscionable that some of these workers are not provided appropriate safety equipment, even after they ask for it,” Bekele said.

Farmworkers are some of the most poorly organized workers in the country, with estimates of union “density” – the percentage of workers represented by trade unions – in the Western Cape agricultural sector as low as 3 percent, compared with 30 percent among those with formal employment in the country as a whole. Human Rights Watch found that some farmers try to prevent workers from forming unions, though the right to organize is protected under South Africa’s constitution and international law.

The problems that farmworkers and farm dwellers face are not unknown to the South African government, farmers, or retailers who purchase their products. Indeed, in 2003 and again in 2008, the South African Human Rights Commission documented similar abuses. But steps taken by the government and industry to improve conditions have not been sufficient to ensure that overall conditions on farms meet the basic standards required by South African law.

At the time Human Rights Watch conducted its research, in March 2011, the Western Cape had 107 labor inspectors, responsible for inspecting over 6,000 farms and all other workplaces in the province. Moreover, an agreement between the Department of Labour, Agri South Africa – the main farmers’ association ­– and other parties that requires labor inspectors to give farmers notice of inspections undermines the inspectors’ capacity to identify violations, Human Rights Watch said.

Conditions on farms vary, and not all farmworkers with whom Human Rights Watch spoke had encountered rights abuses. In a small number of cases, farmworkers and farm owners described full compliance with the law as well as a variety of positive practices by employers that went beyond the legally requirements. Some farmers give workers land to grow their own crops, pay the full cost of medical visits, provide free food to workers in the winter, or have set up trusts that benefit farmworkers. Farmers who provided these benefits to farmworkers noted that these efforts can be profitable.

South African fruit and wine is sold domestically and exported overseas. The United Kingdom and the Netherlands are the top destinations for Western Cape fruit, and the UK and Germany are the biggest importers of South African wine. Canada, the United States, and other European nations are also important markets for South African wine. On about one-half of the farms whose conditions Human Rights Watch studied, either farmers or workers said that the products were produced for the export market. The report did not trace the supply chain for the products and does not identify farms to reduce the risk of retaliation against workers.

Industry bodies, farmers’ associations, and ethical trade initiatives should ensure that workers’ rights are respected, Human Rights Watch said. They should work with the South African government to guarantee that the workers who help produce fruit and wine receive adequate housing, benefits, and health protections.

“The answer is not to boycott South African products, because that could be disastrous for farmworkers,” Bekele said. “But we are asking retailers to press their suppliers to ensure that there are decent conditions on the farms that produce the products they buy and sell to their customers.”

Source: Human Rights Watch

Malema charged with fraud in tender saga

The Hawks confirmed that they were investigating African National Congress Youth League president Julius Malema for fraud and corruption, eNews reported on Saturday. "From the information that we have, we have enough to tell us that we need to do a full investigation ... there's a lot that tells us that we have reason to worry," Hawks spokesperson McIntosh Polela said.

The Hawks would examine the flow of money through companies linked to Malema, including the Ratanang family trust. Polela said the Hawks would need time to work through large amounts of electronic data linked to Malema's financial dealings and therefore could not say when the investigation would be completed.

ENews also reported that the South African Revenue Service (Sars) initiated its own investigation into Malema's financial affairs and alleged failure to pay tax. This came a day after the dates of the disciplinary hearings for both Malema and party spokesperson Floyd Shivambu were announced. "The dates that have been established ... are the 30 and 31 August, which we believe gives them adequate opportunity to prepare themselves for the case," ANC national disciplinary committee chairperson Derek Hanekom told eNews on Friday. Malema and Shivambu would be "charged individually". "Both ... have been charged with various violations of the ANC constitution, including bringing the ANC into disrepute through his utterances and statements on Botswana and sowing divisions in the ranks of the African National Congress."

Malema recently said the league would send a team to Botswana to consolidate local opposition parties and help bring about regime change. It believed the government there was "in full cooperation with imperialists" and undermining the "African agenda". The ANC publicly rebuked the league and the league in turn said it did not believe it was in the wrong or going against ANC policy. It expressed disappointment at being publicly rebuked before the matter had been internally discussed.

Source: Mail & Guardian

More dodgy deals in department of public works

The department of public works has paid R68-million so far in rental for an empty building to the property group the Mail & Guardian revealed last week was represented in major deals by President Jacob Zuma's son-in-law. In addition to the dodgy lease, we now have evidence suggesting that the Billion Group channelled a payment of R1-million to the ANC or its senior office bearers.

As we reported, the company, controlled by little-known tycoon Sisa Ngebulana, is at the centre of a row over a proposed R1-billion tender to build new offices for the department of public service and administration. Lonwabo Sambudla, the husband of Zuma's daughter Duduzile, hosted officials central to driving the tender at their wedding and joined Ngebulana in a meeting with top public works officials. Both he and Ngebulana admitted that Billion had paid him a commission on at least one previous deal. South African businessmen and dodgy officials are making hundreds of millions of rands from leasing scams. But how does it work? Watch our dummy's guide. Now it appears that the Billion Group has benefitted from another dubious lease and that it is assiduous in courting political favour.

Justice Minister Jeff Radebe confirmed earlier this month in a written reply to a parliamentary question from the Democratic Alliance's Debbie Schafer that the department of public works had leased a building in Pretoria for use by his department at a rental of R3.6-million a month. He did not mention the name of the company benefiting from this extraordinary arrangement.

The M&G has now confirmed that the R612-million deal was awarded to Phomella Property Investments, a subsidiary of the Billion Group. Phomella Property Investment bought the Salu building in Pretoria for R163-million from AgriSA. Investec Bank gave Phomella a R270-million bond on the property. According to the lease agreement, Phomella committed to have the new offices ready by December 30 2009. Although the company did not finalise the upgrade on time, the public works department has been paying a monthly rental of R3.6-million since January 2010. The new office, Radebe said, would be ready only in November this year, meaning the department would have spent R84-million to lease a building that had been standing empty.

Justice department spokesperson Tlali Tlali said he did not know why the public works department started paying before the building was occupied by the justice department. Appearing to distance the justice department from the decision, he said: "It is standard practice in the property industry to have rent payable upon occupation of the building when all tenant installation has been completed and the building has been handed over to the lessee. The department of public works could be in a position to provide clarity on the matter."

Public Works spokesperson Thamsanqa Mchunu said the department was obliged to pay the rental in line with the lease agreement as the landlord was not responsible for the delay. He said both the department of justice and public works took too long to sign the necessary documentation relating to the building. Mchunu claimed that the two departments and Phomella Property Investments had agreed that the landlord would reimburse all rental paid between November 2010 and November 2011, but did not explain why such a curious arrangement had been reached. Meanwhile, it has emerged that Sambudla is not the only politically connected recipient of Billion's cash.

The M&G has obtained bank and cellphone records confirming a dubious R1-million payment which Ngebulana told colleagues was a donation to the ANC. Asked via SMS whether to proceed with the payment of R1-million to "KZN energy solutions" that was being queried by First National Bank, Ngebulana answered: "Yep, it's all in order, why do they [the bank] want to know if they should as its FNB to FNB! Its ANC Luthuli House for Durban last weekend event donation! Will let you know when I'm back."

The ANC national general council was held in Durban from September 20 to 24 last year. It is not clear whether Ngebulana was suggesting that the payment was a donation toward the event or a payment arranged while party leaders were in Durban attending it. Unaware that the M&G was in possession of the SMS, Ngebulana first denied ever making any donation to the ANC event in Durban. "We as a company have never donated any money to the ANC towards any event held in Durban. As a business, we do from time to time agree to requests for donations from all political parties. Should we donate in a private capacity, this is a private and confidential matter. As an organisation, we have agreed to donate to all political parties equally in proportion to their national representation. KZN Energy Solutions is a consultancy business that we work with from time to time. We duly pay them for their services," said Ngebulana.

Confronted with the SMS on Thursday, Ngebulana initially denied sending it. He then said that KZN Energy Solutions performed "very serious work" for his companies, including forensic audits. He then added: "As a successful black business person, you are under pressure when asked for donations and things. You need to give or there is a lot of jealousy." Asked for corroborating information, Ngebulana referred the M&G to Myesh Pillay, who he said was a director of the company, but who is not listed as such in company records. Although Pillay confirmed that she worked at the company and said she knew Ngebulana and the Billion Group, she was unable to provide details of services provided to the Billion Group. Asked why there was nothing about a forensic audit on the company's website, Pillay claimed the website was under construction and that other services including the forensic services would be added to it at a later stage. KZN Energy Solutions is affiliated to other companies, including an entity that styles itself as a corporate consultant.

The payment is recorded in Billion's bank statement simply as "fees". ANC treasurer general Matthews Phosa said the party had never received a cent from Ngebulana. "I never asked for money from him [Ngebulana]. The ANC NGC was funded by a few people and I know all of them. He [Ngebulana] is not on that list. [If he claims he paid], then the money went to individuals not the ANC. People are abusing the name of the ANC for their own selfish reasons," said Phosa. Sources within the ANC familiar with its financial arrangements told the M&G Ngebulana had previously made payments to some senior ANC leaders, whose names are known to the M&G. Ngebulana this week dismissed the allegation of payment to senior ANC leaders as untrue.

Billion Group founder Sisa Ngebulana has kept a low profile, despite being one of the wealthiest black entrepreneurs of the post-1994 era. His name has not featured in the list that includes noted plutocrats such as like Patrice Motsepe, Cyril Ramaphosa and Tokyo Sexwale. But with assets estimated in the billions, the 45-year-old from the Eastern Cape is definitely up there.

A former Eskom employee, Ngebulana started a construction company, Afcon, in 1996, specialising in the construction of upmarket homes. In 1997, he consolidated all Afcon's activities into the Billion Group. Since then, he has made his mark in property development. Ngebulana is said to be close to politically connected individuals within both the ANC and government. His company has won several government tenders, including lease deals with the South African National Defence Force, the justice department, the National Prosecuting Authority and the City of Johannesburg.

Ngebulana has also built up as a R3.6-billion office and retail portfolio through acquisitions and development. Billion Group chief operating officer Mike Rodel said: "This is a remarkable achievement in a sector that has been difficult for black entrepreneurs to break into. Sisa has strengthened the team by introducing people with listed property credentials." One of Ngebulana's companies, the Rebosis Property Fund, was listed on the JSE in May this year. Ngebulana owns a R55-million house in Chartwell, which boasts a nine-hole golf course. Other assets include private jets, a helicopter, a Bentley, a Porsche and a Lamborghini.

Source: Mail & Guardian

Dikgang Moseneke: It's not about what the ANC want

Zuma overlooking Moseneke has interesting implications. They belonged to different liberation movements, separated by ideology but united by the goal to defeat apartheid and to establish a democratic order in which the oppressed African majority would enjoy human rights. Jacob Zuma of the ANC and Dikgang Moseneke of the PAC - a 1959 breakaway of the ANC - were jailed on Robben Island by the apartheid regime for their political activities.

On his release Moseneke, who had studied law and politics through Unisa while in prison, pursued a career in law. He practised as an advocate in the Pretoria Bar before he joined the private sector, where he held high-profile positions. For his part Zuma, who informally taught himself to read and write, became a career politician and government MEC. Both had taken part in the drafting of the new democratic constitution they would later be expected to uphold in their different capacities.

Zuma was central in delivering the violence-prone IFP to the transitional negotiation table that led to the adoption of the Constitution. While practising law, Moseneke took part in the technical drafting committee. Once the interim constitution was adopted and Moseneke had left the Bar, then-president Nelson Mandela persuaded him to leave his lucrative plum business career for the high court as a judge. Moseneke was among a few black judges expected to uproot the apartheid era jurisprudence and build a new one based on the new Constitution.

The Constitution of which the drafting had united Moseneke and Zuma, had also become a source of the necessary separation as part of the division of powers between the judiciary, executive and parliament. Enter then-president Thabo Mbeki, who appointed Zuma as his deputy and Moseneke as deputy to Chief Justice Pius Langa. This meant Zuma and Moseneke held similarly powerful positions respectively in the executive and judiciary.

Zuma later became head of the executive with the power to appoint a chief justice. When Justice Langa retired, he appointed Justice Sandile Ngcobo, who was due to retire from the court, overlooking Moseneke. Ngcobo delivered his last judgment on Thursday last week after his own court had earlier dismissed as unconstitutional Zuma's attempts to extend his term of office. Zuma was very comfortable with Ngcobo. Ngcobo had ruled favourably in cases crucial to Zuma's political life.

When the Constitutional Court found valid Scorpions search-and-seizure warrants on Zuma's lawyers, Ngcobo was the only dissenting voice. When the court found that the government was duty-bound to establish an independent anti-corruption unit, Ngcobo dissented. Now that Ngcobo has retired, the legal fraternity has been anxious about whether Zuma would appoint Moseneke, with whom he appears to disagree in his judgments and political thought.

Yesterday, Zuma nominated for the chief justice post Judge Mogoeng Mogoeng, a lay preacher, who joined the Constitutional Court in 2009. At the heart of Zuma's decision to overlook Moseneke are the remarks he made a few years ago shortly after Zuma's Polokwane victory, that he would spend his tenure in the judiciary serving the people of South Africa - "it's not about what the ANC want".

Zuma reacted angrily to the comments, as he believed, quite wrongly, they were oppositionist to the ANC. The political furore the statement caused was followed by a meeting between ANC Deputy President Kgalema Montlanthe, Moseneke and Langa, who was still in office. After the meeting, preceded by claims that judges were "counter-revolutionary", the ANC issued a statement, saying it was satisfied with Moseneke's explanation. According to Motlanthe the meeting concluded that Moseneke's statement was misunderstood as he sought merely to stress judicial independence from all political parties. Motlanthe later told a gathering in Cape Town the ANC accepted Moseneke's explanation.

Zuma's overlooking of Moseneke - which in itself is not legally wrong but politically naive - will have interesting implications. Firstly, if Zuma's problem lies in Moseneke's judicial philosophy of non-deference to the executive, then tough luck to him. Judging by his recent comments about judges who overturn legis-lation passed by Parliament, it makes sense that he liked Ngcobo's executive deference approach. But appointing Mogoeng is unlikely to change the court's philosophical posture. The present political context, in which unconstitutional laws are being proposed and corruption runs rampant, obviously has a psychological effect on the judiciary, who could feel constitutionally obliged to stop the malaise. Zuma's gripe will remain personal and petty rather than substantive. It won't swing the court's activism stance. Not now. The edifice of jurisprudence will take decades to undo.

Secondly, appointing anyone less experienced than Moseneke in Constitutional Court matters and in running of the court itself, means Moseneke remains a towering figure in that court.

Thirdly, avoiding Moseneke means despite his claims that he follows in the footsteps of Madiba, Zuma is unable to be reconciliatory. He is unable to rise above personal petty political bitterness triggered by a misunderstanding which was explained to the satisfaction of his own party.

Fourthly, it means Zuma places high premium not on who is well qualified for the top job, but on who he is politically comfortable with. This also places an unfair burden on Mogoeng because public perception would have a certain narrow political expectation of him. He will have to continue to defer to the executive. It has paid dividends, unless he works to prove a point.

Fifthly, it means Zuma has forgotten the bigger political contribution Moseneke made in the struggle against apartheid simply because Moseneke appears to be too independent for his liking.

Finally, it also means that Zuma would rather work with the Freedom Front and National Party ministers, sharing cabinet secrets with them, than trust a well-qualified freedom fighter with whom he once shared the prison for a noble cause.

Mkhabela - editor of Sowetan
Source: Sowetan

Deadly dangerous Judgment Day

Many South Africans were stunned this week by President Jacob Zuma's nomination of Constitutional Court Justice Mogoeng Mogoeng to succeed Sandile Ngcobo as chief justice.

It would appear a wholly inadequate appointment and from informal settlements in Durban to law offices in Johannesburg, the initial stupefaction gave way to conversation. Talk was not merely about the number of years Mogoeng has spent in judicial robes, as the presidency would have us believe judging by a spurious statement it released on Wednesday which set out to address the "disappointing inaccuracies and distortions in the responses and commentary on [Zuma's] nomination". South Africans are more sophisticated than that.

From shack dwellers who have successfully approached the court to fend off legislation allowing arbitrary eviction from their homes to middle-class human rights activists buoyed by the prospect of a more humane society after the repeal of the death sentence, we have been analysing the probity, jurisprudence, independent-mindedness and integrity of the man Zuma has chosen to lead the highest court in the land.

It matters to us. Our fundamental human rights, as enshrined in the Constitution, are essential, as is the attainment of a more egalitarian society. The judicial guardians of the Constitution are vital to these rights and aspirations. Yet, instead of selecting a stellar defender of the Constitution Zuma appears to have made a political appointment, choosing someone with a lack of constitutional experience, who, by virtue of his unlikely appointment over the heads of more suitable colleagues, is indebted to the executive.

A jurist who, considering the paucity of reported judgments and an inability to rouse himself in court to engage with legal arguments, appears patently wanting. There is also the no-small matter of his lack of judgment: Mogoeng has failed on more than one occasion to recuse himself from hearing matters in which his wife has acted as prosecutor.

He will be a chief justice cast very much in the image of the president: someone with dubious judgment, a social conservative, a traditionalist, with apparently homophobic tendencies and religious to boot -- they are both ordained pastors. This, while the message sent out to the judiciary is that subservience to the executive, not independent-mindedness, will get you promoted.

Mogoeng, if confirmed, may go on to prove his numerous detractors wrong. But there is a frightening lack of sophistication in both the president's and the ruling ANC's understanding of the expected tension among the three arms of government in a constitutional democracy.

In statements made this week ANC secretary general Gwede Mantashe suggested that, because of some of its rulings, the Constitutional Court was hostile to Parliament and the executive and that the judiciary as a whole sought to "arrest the functioning of government". What is, actually, the normal modus operandi of a constitutional democracy -- the constitutional testing of legislation -- appears to be a "problem" for Mantashe.

Mantashe's problem with the judiciary appears to be that it is unelected, unlike the ANC, which purports to represent the will of the masses. Zuma's gripes appear much more personal. Following various Constitutional Court judgments against him, including his most recent attempt to extend Ngcobo's term, the president seems driven by malice when engaging with that court. There is a profound lack of understanding by two of the most powerful men in the land about the role of the judiciary in a constitutional democracy. It is deadly dangerous.


 Source: Mail & Guardian

State's advisers may not interfere, says public protector

Public protector Thuli Madonsela's findings are subject to the Constitution and the law, and state legal advisers have no authority to tell government what to implement, she said on Wednesday. Madonsela said state attorneys have been advising the government against implementing remedial action she recommended. "In the event organs of state are unhappy with our findings and the accompanying remedial action, they should take us to court on review." She said courts were the only institutions that had a final say on whether her findings and the need for remedial action were rational or not.

Madonsela was speaking at a meeting with stakeholders, which included provincial government leaders, local government authorities and civil society in Polokwane. Her spokesperson, Kgalalelo Masibi, said delegates including Limpopo's provincial minister of agriculture, Dipuo Letsatsi-Duba, and Polokwane mayor Freddy Greaver agreed with Madonsela. "[They said] failure to implement the public protector's remedial action was defeating the institution's purpose of supporting and strengthening constitutional democracy," she said in a statement. "They added that leaders in government had a responsibility to act promptly upon receipt of the public protector's report with a view to ensure administrative justice and accountability."

The meeting formed part of a nationwide road show dubbed The Public Protector Dialogues with the Nation. The road show aimed at soliciting feedback regarding Madonsela's work and highlighting the importance of implementing her suggestions for remedial action.

Source: Mail & Guardian

South Africa: Unions Reach a Deal

Unions representing more than one million South African state workers said Tuesday that they had reached a wage increase deal with the government, averting a strike that could have slowed Africa’s largest economy. But as midyear negotiations, known locally as strike season, were winding down, striking municipal workers in Cape Town set fire to trash heaps on the streets and looted roadside stands. Work stoppages in the mining and fuel sectors have caused more than $200 million in lost output.

Source: New York Times

Zuma picks Mogoeng as chief justice

President Jacob Zuma on Wednesday said Justice Mogoeng Mogoeng was his preferred candidate for the new chief justice. Zuma said in a statement that Mogoeng had demonstrated his "expertise and keen interest" in the transformation of the judiciary and played a leading role in programmes designed to promote court efficiency and transformation. The statement said the position had become vacant at midnight on August 14 "as a result of the discharge from active service of former chief justice Sandile Ngcobo".

In June, Zuma extended Ngcobo's 12-year term under Section 8(a) of the Judge's Remuneration and Conditions of Employment Act, which was met by a Constitutional Court challenge by civil society organisations who argued that it was unconstitutional for the president to extend the chief justice's term of office. Only an Act of Parliament may do so, they said. According to the presidency's statement Mogoeng was part of a five-member committee, led by former chief justice Pius Langa, which investigated allegations of racism and gender discrimination within the judiciary. He also organised workshops for judges and magistrates on leadership and sensitivity training as well as workshops for magistrates on judgment writing and trial administration.

Professor Steven Friedman, director of the Centre of the Study of Democracy at the University of Johannesburg, told the Mail & Guardian on Tuesday that the choice of Mogoeng was a "missed opportunity". "On the one hand you could have had continuity as well as the message that our government is comfortable with a chief justice with clear political independence in the appointment of Deputy Chief Justice Dikgang Moseneke instead of Mogoeng. "Additionally, it could have been a great coup for the empowerment of women if either Justice Sisi Khampepe or Bess Nkabinde were appointed," said Friedman. Nonetheless, Friedman said he had no reason to believe Mogoeng's appointment was not in the best interests of the Constitution.

Mogoeng started his professional career as a supreme court (now high court) prosecutor in Mafikeng, holding this position between March 1986 and February 1990, when he resigned to undertake pupillage at the Johannesburg Bar. He then practised as an advocate in Johannesburg until the end of 1991. He then terminated his membership of the Johannesburg Bar and became a member of the Mafikeng Bar Association (now known as North West Bar Association) until May 1997. While at the Mafikeng Bar, Mogoeng served as the deputy chairperson of the Bar Council and as the chairperson of the Bophuthatswana chapter of Lawyers for Human Rights. He was also a part-time senior lecturer in criminal law and criminal procedure at the University of the North West's Mafikeng Campus from 1992 to 1993. He was a member of the Industrial Court from 1989 until it ceased to exist. In 1994 he served in the legal section of the Independent Electoral Commission in the North West province. In June 1997 he was appointed a judge of the North West High Court in Mafikeng. He was appointed as a judge of the Labour Appeal Court in April 2000. In October 2002 he was appointed judge president of the North West High Court.

Mogoeng was born in Goo-Mokgatha, north-east of Zeerust on January 14 1961. He graduated from the University of Zululand with a B Juris in 1983. In 1985 he completed his LLB at the University of Natal in Durban. In 1989, he completed his studies at the University of South Africa, where he studied towards a LLM concentrating on labour law, the law of property, the law of insurance, the law of evidence and the law of criminal procedure.

Mogoeng is also an ordained pastor. Prior to joining the judiciary in 1997, Mogoeng also served as chairperson of the North West Parks Board and as chairperson of Golden Leopards Resorts. He was also a member of the Black Lawyers Association. He has since resigned from these positions.

Source: Mail & Guardian

A cellular licence to print money

The proverbial licence to print money is not the chain of casinos or bottle stores of a generation ago. It’s the telecommunications company, exploiting the now universal desire for people to be online and electronically in touch. This is a sector that generates massive revenues. Vodacom, South Africa’s biggest network provider with 26.6-million customers, in the past year turned over R54bn and almost doubled its net profits to R8bn. International player MTN, with 18.8m local subscribers, increased profits by 20% and had SA revenues of around R37bn.

This is also the sector that draws the most consumer complaints, along with the pharmaceutical/healthcare industries, retail and banking. It is then logical that the new National Consumer Commissioner, Mamodupi Mohlala, targeted telecommunication providers as a priority in implementing the recently passed Consumer Protection Act (CPA).

One of Mohlala’s first acts was to force SA’s four cellular network operators and two fixed-line providers to bring their customer contracts in line with the CPA. Despite knowing the intentions of the Act for five years, not a single one was compliant and, in most cases, 75% of their cellphone contracts were in breach.

Basically these companies were quite happy to take advantage of consumers – many illiterate and poor, and for whom a cellphone is a necessity that comes at a disproportionately large monthly cost – for as long as they could get away with. Since then Vodacom has come under further pressure from the commissioner, who ruled that it should compensate those of its subscribers who suffered financial loss when the Vodacom network collapsed a few months back. Vodacom has point-blank refused to comply. As an aside, Vodacom’s media liaison division failed to respond to repeated calls from this writer. Ironically, this is the company that sponsors an annual series of journalism awards.

Given the greed and arrogance that prevails, it should then come as no surprise that the cellular providers have since lobbied to be exempted from the CPA, on the grounds that they are already regulated by the Independent Communication Authority (Icasa). Fat lot of good Icasa would be. Writing in Business Report a few months ago, economic empowerment strategist Thabo Masombuko outlined a stinging assessment of ICASA’s consumer policing abilities, which have made the sector “a haven for tariff looting, exorbitant charges and ridiculous costs … While costs have ballooned, cellular and landline services have become an out-of-reach pie in the sky for millions of users.”

There is an established pattern to this. When cellular licences were first issued to Vodacom and MTN, part of their obligation was the rolling out of rural coverage as a development of national infrastructural that it was hoped would improve the countryside’s potential to create jobs. Unfortunately, it was an obligation only scrappily met, given the lure of lucrative urban rollouts — and the lovely tax from the resultantly dazzling profits — with the result two decades later of unreliable, low-speed rural coverage.

Nor has state entity Telkom, met its statutory obligation to provide countrywide communication systems. Faced with endemic cable theft, the Telkom’s outrageous solution has been simply to cut off both telephone and landline broadband services in rural areas, in favour of a wireless voice service that verges on the useless, in the view of its critics. By the Telkom example, this week’s theft of cabling serving the Gautrain would be dealt with by mothballing the service and suggesting that passengers use taxis instead.

The opportunity costs of these failures are enormous. The World Bank estimates that a 10% increase in broadband penetration delivers a 1.3% rise in economic growth. Is is however an unpalatable fact that in SA, just a dozen or so kilometres outside of the major cities and towns, broadband access is virtually unobtainable. And when available, SA’s mobile broadband remains prohibitively expensive, among the dearest in the world. This inertia and indifference by both the private sector and the state, impacts directly on government’s objective of providing the infrastructural backbone that will allow local communities to grow local jobs, instead of encouraging a growing flow of job seekers to the cities.

When Roy Padayachie took over the long-neglected Communications portfolio he set as his ministerial goal to partner with the private sector to harness telecommunications technology to economic growth. It’s a laudable but unrealisable dream, unless he can get the cellular providers to take their developmental responsibilities a little more seriously.

Source: Mail & Guardian Thought Leader: William Sauderson-Meyer

A.N.C.’s Youth League Issues Apology

The Youth League of the governing party in South Africa apologized Saturday to the bloc’s leadership for comments in which it called for the ouster of Botswana’s democratically elected government.

The governing party, the African National Congress, publicly criticized the Youth League and its leader, Julius Malema, this month for the remarks. A party spokesman, Jackson Mthembu, told eNews Channel that its leaders would discuss the matter but would not say whether Mr. Malema would be disciplined.

The Youth League said in a statement that it “has never, and will never, define itself outside the policy confines and directives of the A.N.C., and will whenever expected be available to listen to political and organizational guidance from the leadership.”

Mr. Malema has already been a thorn in the side for the party over his racially divisive comments and repeated calls for the nationalization of mines in South Africa, a major supplier of platinum, gold and diamonds. But he also holds a significant populist appeal for much of South Africa’s black population, and senior party leadership has often turned to courting him publicly.

Source: New York Times

According to Transparency International, Botswana is the least corrupt country in Africa and ranks similarly close to Portugal and South Korea.

‘Outrageous’ handshake for Ithala boss

Sipho Shabalala, the man police say facilitated a R1 million “donation” for the ANC from a businessman who got a huge state tender, has been given an almost R2 million golden handshake to leave his government job.

The Sunday Independent this week saw documents which show that Shabalala, who headed state-funded development entity Ithala, was given the severance package on the eve of his court appearance on money laundering, corruption and racketeering charges.

Opposition political parties in the provincial legislature have expressed outrage at Ithala’s payment to Shabalala of R1 900 041, in cash, on July 31.

According to a 10-page document titled Settlement Agreement and Mutual Release, the payment represents R696 572 in respect of his salary that would have been paid during the unexpired period of employment. Then there is payment of R374 650 for leave that would have accrued, plus an R870 715 ex gratia payment.

Shabalala is key among the 25 accused in the Intaka case, along with the Speaker of Parliament Peggy Nkonyeni, Economic Development MEC Mike Mabuyakhulu and Gaston Savoi, owner of Intaka, a company that won a R42 million tender from the government and in the same month paid a R1m “donation” to the ANC in KZN, via Shabalala.

Shabalala’s contract with Ithala was due to end on October 31.

Last August he was suspended when he was charged, almost a year after our sister paper, the Sunday Tribune, exposed how he solicited the R1m from Savoi and allegedly had it paid into the trust account of Durban lawyer Sandile Khuboni, also charged.

IFP MPL and the party’s KZN shadow minister of finance, Roman Liptak, said: “The real test for those politicians who have shielded Shabalala for so long and smoothed his way from one plush government job to the next is whether he will be allowed to walk into another top management position within our civil service.”

The DA’s Johann Krog said the move was aimed at buying Shabalala’s silence. He said Shabalala had been rapped over the knuckles by co-accused Mabuyakhulu for a questionable R280m school project, which merited more serious sanction.

“The DA has consistently called on Scopa and the finance committee for disciplinary action on advice of all the law-enforcing agencies. The province could have saved his salary of more than R100 000 a month for the past year, and the R2m payout,” he said.

Krog insisted that had Ithala waited for his contract to expire in October, the cost to taxpayers to end the relationship would have been much less than a “shocking” R2 million.

ACDP MPL Jo-Anne Downs said: “It’s outrageous. If they wanted to get rid of him they could have instituted internal disciplinary action, but no, they had to pay him to leave,” said Downs.

Shabalala was this week furious that details of his package were leaked to the media.

He said, “I will not be surprised to learn that the intention of those who leaked this agreement to you is to vilify me in the court of public opinion as a greedy fat cat who ‘blackmailed’ the government to give me one final ride on the proverbial gravy train before setting off to enjoy his ‘ill-gotten gains’.”

He said he had signed a two-year contract with the Ithala board in October 2009 (this was after he had hastily been moved from Treasury to Ithala in January 2009). He said there was an understanding that he would have to apply for a full-term contract when the Ithala leadership position was eventually advertised, which happened two weeks ago and for which he was asked not to apply.

“Then came the suspension by the Ithala board in August 2010 with (MEC) Mabuyakhulu an- nouncing an intention to set up a task team that would monitor the developments relating to the criminal investigations and advise the board on the impact, if any, this had on his employment relationship with Ithala,” he said.

Shabalala said he hadn’t heard anything from Ithala or Mabuyakhulu about this matter until just a few weeks before we reported that Mabuyakhulu himself was set to join Shabalala as an accused in the Intaka matter.

He said the message from Ithala, at that time, was that the company wanted to summarily terminate his employment contract, pay him out for the remainder of his contract and obtain an assurance from him that he would not apply for the job of Ithala boss.

The Sunday Independent can reveal that Ithala agreed terms with Shabalala that they “fully and forever release each other from, and agree not to sue concerning any and all claims relating or arising from Shabalala’s employment relationship with Ithala and the termination of that relationship”.

Shabalala said he told them to “go fly a kite”.

“Then came the ‘sweetened’ offer of the agreement that has now been leaked to you. My initial decision was still that I would see out the rest of my contract and retain my right to apply for a job for which I received an excellent performance review at the time of my last employment assessment.”

Asked why he had acceded and accepted the board’s offer, Shabalala said his back was against the wall and he gave an array of reasons for this. He said following the attachment and freezing of all his assets it became impossible to successfully run his businesses.

By last week, he said, the bank had frozen his personal account with his Ithala salary in and was preparing to foreclose on his entire business portfolio to recover monies owed by his RJ’s restaurant in Hillcrest that went under at the beginning of this year.

He said his children were being threatened with expulsion from school because of unpaid fees.

Shabalala said the Ithala offer that he had so disdainfully spurned happened to be exactly what his bank was demanding to hold off from auctioning all of his assets, including his home.

“I decided to accept the revised offer,” he said.

Ithala board chairman Mandla Gantsho said an amicable agreement had been reached with Shabalala. - Nathi Olifant

Source: IoL

Chief justice appointment to be delayed

President Jacob Zuma said he will delay the appointment of a new chief justice as "it was a crucial decision impacting on the lives of South Africans". Zuma was addressing high-level media owners at a summit in Irene, Pretoria, on Friday morning. He explained that delaying the appointment of the new chief justice would allow him to "give greater effect to the provisions of section 174(3) of the Constitution". He would also need more time for "meaningful consultation with leaders of political parties and the Judicial Service Commission".

Chief Justice Sandile Ncgobo steps down on the August 14 when his 12-year term as a constitutional court judge expires. The presidency had previously said a new chief justice would be appointed by August 15. Zuma assured South Africans that the delay "would not adversely affect the actions of the judiciary". Zuma slammed the media for "misrepresenting" his decision to extend Ngcobo's term, which last week was found to be unconstitutional. The media made out that a "crime had been committed" and the constitution "undermined" when he enacted Section 8(a) of the Judges Remuneration Act of 2001 to extend Ngcobo's term. Zuma defended his decision by arguing that he had granted the extension in terms of an existing law that was "passed by Parliament, unanimously, 10 years ago".

Zuma finally broke the government's silence on the Public Protector's report into the controversial police leases that were found to be improper and invalid. He welcomed Public Protector Thuli Madonsela's findings and said he had written today to Max Sisulu, the Speaker of Parliament to outline his response. Madonsela's report showed the actions of Public Works Minister Gwen Mahlangu-Nkabinde and National Police Commissioner Bheki Cele amounted to maladministration when the department of public works awarded businessman Roux Shabangu leases to house the South African Police Service (SAPS) in the Sanlam-Middestad building in Pretoria and the Transnet Towers in Durban. He used the opportunity to promise South Africans that the government was taking corruption seriously and was "making steady progress in taking forward this fight". Zuma said the Special Investigations Unit was investigating problems with the awarding of government tenders to the value of R10-billion and tender conflicts of interest worth R5-billion. "The SIU was also working closely to investigate procurement irregularities in 33 police stations worth R330-million".

Zuma emphasised that the government did respect media freedom saying "media, government and society had a responsibility to strive to develop free and independent media", adding that "diversity and transformation" in the media also needed to be promoted.

Source: Mail & Guardian

Telkom in violation of Consumer Act

Telecommunications group Telkom’s insistence on bundling its ADSL data service with a compulsory voice service could mean contravention of SA’s new Consumer Protection Act (CPA), the Internet Service Providers’ Association (ISPA) said on Monday.

ISPA general manager, Ant Brooks said that the CPA had clear prescriptions against bundling goods and services in a manner that forced consumers to enter into agreements or transactions they did not require as a condition of buying a certain product or service. ISPA said that the Act saw such practices as a limitation on the consumer’s right to choose suppliers for each service. According to the Act, compulsory bundling of services was forbidden unless the supplier could prove that it offered economic benefits and convenience to the consumer that outweighed the drawbacks of limiting choice.

According to the industry body, Telkom’s ADSL lines were not available in ‘naked’ DSL options, though one could purchase a voice service without DSL. ISPA said it believed that forcing a client to take a voice product and pay a rental fee for a voice line when he or she simply wanted a data line was a form of product bundling that was contrary to the CPA. Telkom would be hard pressed to prove that the bundling of a voice service and ADSL line offered economic benefits or convenience to the subscriber, as many subscribers either wanted the option of using an alternative voice service provider or did not want a voice service at all, said Brooks. "Many users regard the voice line rental fee as a ‘Telkom tax’. In many cases, the voice service is not wanted yet consumers are forced to pay for it if they want an ADSL line," said Brooks. "Telkom is constraining consumer choice with this practice."

Source: Business Day

Zuma acted unconstitutionally, says ConCourt

The Constitutional Court said on Friday that President Jacob Zuma's decision to extend outgoing Chief Justice Sandile Ngcobo's term was unconstitutional. The judgment was unanimous. The court declared Section 8a of the Judges Remuneration and Conditions of Employment Act -- in terms of which Zuma extended Ngcobo's term -- unconstitutional.

The court found that the section allowed the president to "usurp" the power of Parliament and held that Parliament alone had the power to extend a Constitutional Court judge's term of office. Zuma and the justice minister were ordered to pay the costs. Earlier in July, the court, without Ngcobo at the helm, heard a mass application against the way Zuma had offered Ngcobo an extended term.

Ngcobo's integrity was not in question, but the Council for the Advancement of the South African Constitution, Freedom Under Law, the Justice Alliance of South Africa and the Centre for Applied Legal Studies (Cals) at the University of the Witwatersrand said that according to the Constitution, Zuma needed to first consult with the Judicial Service Commission (JSC) and political parties before granting an extension.

Ngcobo's integrity was not in question, but the Council for the Advancement of the SA Constitution, Freedom Under Law, the Justice Alliance of SA and the Centre for Applied Legal Studies at the University of the Witwatersrand said that according to the Constitution, Zuma needed to first consult with the Judicial Service Commission (JSC) and political parties before granting an extension. Zuma did it the other way around -- he granted the extension and then informed political parties and the JSC.

They further argued that the section of the Judges Remuneration and Conditions of Employment Act that allowed Zuma to extend Ngcobo's term was unconstitutional because, according to the Constitution, a Constitutional Court judge's term of office could only be extended by an act of Parliament.

Professor Ralene Keightley, Cals director, told the Mail & Guardian on Friday she felt "vindicated" by the decision and was extremely pleased with the unanimous verdict. She said the president had been poorly advised. Keightley said Zuma's legal advisors should have known the Act "was unconstitutional and would be challenged". She said the advisors had known when Ngcobo was appointed that he only had 18 months still to serve.

ANC chief whip Mathole Motshekga denied that Zuma should "feel embarrassed about his decision" and that the president could not be blamed for the unconstitutional nature of 10-year-old law. He said the "only regret the ruling party has is the loss of the chief justice".

Zuma must now appoint a new chief justice by August 15th.

Source: Mail & Guardian

Ngcobo case: What were Zuma and Radebe thinking?

The section of the Judges' Remuneration and Conditions of Employment Act, on which President Jacob Zuma relied to extend Chief Justice Sandile Ngcobo's term of office, was "almost certainly unconstitutional", constitutional expert Pierre de Vos said on Thursday. De Vos said on his blog site Constitutionally Speaking that Ngcobo had "unwisely" accepted Zuma's offer to extend his term of office.

Zuma recently extended Ngcobo's term for five years after being told it would expire at midnight on August 14. De Vos said Zuma had merely informed political parties and the Judicial Service Commission (JSC) about this decision. This was followed by a Constitutional Court challenge brought by the Justice Alliance of SA (Jasa), Freedom Under Law (FUL), the Centre for Applied Legal Studies (Cals), and Council for the Advancement of the SA Constitution (Casac). Despite an urgent remedying Bill having been tabled in Parliament, the case was heard on July 18 but the court had yet to pronounce on the matter. The applicants contended that Section 8(a) of the Act was inconsistent with the Constitution because Section 176(1) of the Constitution provided for an Act of Parliament -- and only an Act of Parliament -- to extend the terms of office of any Constitutional Court judge.

The second reason was that the delegation of power by Parliament to the president was too wide and provided no guidelines for the exercise of the power. It was also submitted that Section 176(1) precluded the extension of the term of office of a particular Constitutional Court judge, including the chief justice, as distinct from extending the terms of all Constitutional Court judges. The fourth argument was that, even if the president had the power to extend the term of office of the chief justice, the Constitution placed an obligation on that office to consult with the JSC and political parties before making any extension.

De Vos said the inevitable controversy that resulted threatened the integrity of both the office of the chief justice and the incumbent.

Playing party politics
"The government made things worse by refusing to admit that the section on which the president had relied might be constitutionally problematic, and by then trying to play party politics with the extension by suggesting that those who were challenging the constitutionality of Section 8(a) were motivated by a hatred for the chief justice."

With the issue having been politicised and personalised, Ngcobo was placed in an almost impossible situation, De Vos said.

On Wednesday, Justice and Constitutional Development Minister Jeff Radebe announced that Ngcobo had withdrawn his decision to accept the extension of his term of office, and Zuma had accepted this. Ngcobo had taken the decision to protect the integrity of the office of the chief justice and the esteem of the judiciary. "Chief Justice Ngcobo said he found it undesirable for a chief justice to be a party in litigation involving the question of whether or not he or she should continue to hold office, as this detracts from the integrity of the office of the chief justice and the esteem with which it is held," Radebe said.

De Vos said government's original intransigent stance had threatened to destroy the integrity of a judge who had served South Africa with distinction. "By then -- belatedly -- proposing an amendment to the Act that would only extend the term of office of the chief justice and the president of the Supreme Court of Appeal (SCA) ... Radebe further complicated matters as it was far from clear that this new proposal would pass constitutional muster."

Vos questioned why the justice minister and the president had not thought -- a year or two ago -- whether Section 8(a) was constitutional, and what other legal mechanism could be used to extend the term of the chief justice. "How can one govern a country when one does things at the last minute in the hope that one can bluster one's way through by denigrating those who insist on upholding the Constitution? By resigning, Chief Justice Ngcobo is displaying the kind of integrity and respect for his office and for that of the Constitutional Court that those of us who have always admired him, came to expect from him."

Vos said the big question now was who Zuma would appoint to the position. Also on Thursday, Casac said Ngcobo had served the Constitutional Court, the judiciary, and the people of South Africa with great skill, ability, and dignity. "We are aware that this would have been a very difficult decision for the chief justice to take."

It was unfortunate that government's failure to deal with the proposed extension in a constitutionally compliant manner had created the conditions for Ngcobo to take this decision. In the legal challenge, Casac had made it clear it was not taking issue with the person of the chief justice. It was the use of Section 8(a) that was the focus of the challenge. The court's decision would provide clarity on the process to be followed in any extension of a term of office of a chief justice in future. "We trust that the president will now follow the provisions of the Constitution in properly consulting with the JSC and the political parties represented in the National Assembly before appointing a new chief justice," Casac said.

Source: Mail & Guardian

South Africa: Survey on Schools Details Corruption and Worries

A major survey of teachers, students and principals in South Africa’s public schools by Transparency International found that a third of principals believed the highest corruption risk was embezzlement at the provincial level, in textbook procurement and school construction. The report also found that a quarter of students said schools were unsafe, with rape and violence major problems, while half the students said they did not always have a desk.

Source: New York Times

Foreclosure Fraud Victims Lose Their Shirt and Their Homes

He was their last hope—about 250 Southern California homeowners facing foreclosure and eviction believed him when he said he could save their homes. But in reality, he was their worst nightmare—he ended up fleecing the homeowners for approximately $1 million…and not a single home was saved in the process.

Last week, Jeff McGrue, owner of a Los Angeles-area foreclosure relief business, was sentenced to 25 years in prison for defrauding people who were at the end of their rope. Even the federal judge who sentenced him called him “heartless.”

It all started in late 2007, when McGrue—and several other conspirators who have pled guilty—orchestrated the scheme primarily through his company Gateway International. He paid unwitting real estate agents and others to serve as “consultants” to recruit customers who were facing foreclosure or were “upside-down” on their mortgages—meaning they owed more than their homes were worth. Many of the customers didn’t understand English or the contracts they were signing.

How the scam worked. McGrue and associates told the homeowners that “bonded promissory notes” drawn on a U.S. Treasury Department account would be sent to lenders to pay off mortgage loans and stop foreclosure proceedings; that lenders were required by law to accept the notes; and that homeowners could buy their homes back from Gateway and receive $25,000, regardless of whether they decided to re-purchase.

The payback for McGrue? The homeowners had to fork over an upfront fee ranging from $1,500 to $2,000…sign over the titles of their homes to Gateway…and pay Gateway half of their previous mortgage amount as rent for as long as they lived in the house.

Of course, nothing that McGrue told his victims was true: he didn’t own any bonds or have a U.S. Treasury account, plus the Treasury doesn’t even maintain accounts that can be used to make third-party payments. Lenders weren’t legally obligated to accept bonded promissory notes, which were worthless anyway. And Gateway International had no intention of selling back the properties to the homeowners. Evidence shown at McGrue’s trial revealed that it was his intent to re-sell the homes, once they were titled in Gateway’s name, to unsuspecting buyers.

The FBI began its investigation in 2008, after receiving a complaint from one of the victims.

During these uncertain economic times, there are many unscrupulous people looking to line their pockets at the expense of others’ misfortunes. One of the most effective ways to defend yourself against foreclosure fraud is awareness. According to the Federal Trade Commission, if you or someone you know is looking for a loan modification or other help to save a home, avoid any business that:

• Offers a guarantee to get you a loan modification or stop the foreclosure process;
• Tells you not to contact your lender, lawyer, or a housing counselor;
• Requests upfront fees before providing you with any services;
• Encourages you to transfer your property deed to title to them;
• Accepts payment only by cashier’s check or wire transfer; or
• Pressures you to sign papers you haven’t had the chance to read thoroughly or that you don’t understand.

Contact your local authorities or your state’s attorney general if you think you’ve been a victim of foreclosure fraud.

Source: FBI

Cellphone companies still selling hot air

The cellphone networks, which do rather well out of our collective obsession with staying connected via our ever-more-clever handsets, have been disappointingly slow to embrace aspects of the Consumer Protection Act which don’t suit them. Chief among these is the stipulation that all pre-paid vouchers must be honoured for up to three years. That means that any goods or services you pay for in advance – from a bus coupon to a facial to cellphone airtime – must be redeemed within three years of the date of purchase, and companies no longer have the right to tell you one or three months down the line “sorry, it’s expired, you forfeit”.

The cellphone companies appear to be carrying on regardless, in this and other respects, while promising the National Consumer Commission that they’ll get their act together within three months. Jerry Buirski told Consumer watch as he approached the Cape by sea last week that he noticed he had Vodacom’s 3G signal, so he powered up his laptop and prepared to send a month’s worth of e-mails. “However, I found I’d lost all my unused data on June 30. This does not seem right at all.”

National Consumer Commissioner Mamodupi Mohlala has recently publicly repeated the commission’s stance that all pre-paid airtime and data must be redeemable for up to three years in terms of the CPA. Asked to respond to Buirski’s experience, Vodacom’s chief officer of corporate affairs, Portia Maurice, said: “The commissioner has requested us to investigate this aspect of the act and present further submissions in support of our current business practices. We are currently reviewing this and will provide a response to the commissioner.”

Last month, when questioned on the premature expiry of pre-paid data, Vodacom told Consumer Watch: “When customers purchase data bundles, funds are deducted from their airtime in return for access to data bundles. So they are deemed to have exchanged the value of their prepaid airtime for access to data bundles. “There’s a difference between a voucher and a product bought by that voucher. The three-year expiry rule refers to vouchers and not to products purchased by vouchers.”

But Mohlala doesn’t agree with this interpretation, insisting that pre-paid data may not “expire” within three years of purchase. “We’ve had long discussions with the industry and I’ve made it clear that if they are not willing to come to the party on this and other issues of compliance with the act, we have the power to issue a compliance notice,” Mohlala said.

The ultimate sanction, in terms of the CPA, is a fine of R1 million or 10 percent of annual turnover. But subscribers continue to be deprived of cell products they’ve paid for a few months previously. Gary Cousins told Consumer Watch that he bought R300 of airtime for his teenage son in early March which was loaded on to his (son’s) number. But by early June, three months later, despite having used only about half that amount, his son was unable to send SMSes. “I suspected that the remaining airtime had been ‘removed’, so I sent him another R50 on July 10, and his phone immediately started sending SMSes,” Cousins said. “A balance enquiry showed R50 airtime remaining.”

So I asked Cell C: “Is it true that by early June the unused portion of that R300 airtime ‘expired’? “If so, how is this justified?” This was the response I got: “Icasa (the Independent Communications Authority of SA) is in the process of applying to the National Consumer Commission for an exemption with regards to this aspect of the act. Until the process is complete, Cell C cannot comment on the matter.”

Interestingly, Icasa’s concern about the CPA’s provision that pre-paid vouchers be redeemable by consumers for up to three years has to do with the recycling of numbers. But Icasa is not in favour of consumers losing out on pre-paid airtime and data. Icasa councillor Fungai Sibanda told Consumer Watch: “Icasa is of the view that consumers must be protected with respect to unused credit, whilst at the same time allowing inactive numbers to be recycled.” But right now pre-paid cellphone users are continuing to be “robbed” of their unused airtime and data – almost four months after the CPA came into effect.

Source: IoL

Cellphone operators told to amend contracts

South Africa's four primary cellular network operators and two fixed-line providers will have new customer contracts that are compliant with the Consumer Protection Act in place within the next three months.This came as national consumer commissioner Mamodupi Mohlala prepared to sign consent order agreements this week with each of the companies, Business Report reported on Monday. These agreements were legally binding and a fine of R1 million or 10 percent of annual turnover could be imposed if they were breached.

Mohlala said that over the past two weeks the commission had reviewed all contracts provided by the individual companies and none of the contracts were compliant with the act. This, despite the fact that it had been in the pipeline for the past five years and its implementation was postponed from September last year to April this year. She said that in most cases about 75 percent of the cellphone contract terms and conditions would have to change.

Companies would have to change their billing systems, marketing approach and their staff would have to be educated and more skilled, which would require more spending on human resources, she said. "There is nothing untoward… we are aligning South Africa with international best practice."

Mohlala said Cell C, Telkom and 8.ta would have their contracts amended by the end of September, Neotel by next month and MTN and Vodacom both expected to have amended their contracts by the end of October.

Source: Times Live

Why ANC's eThekwini secretary Sibusiso Sibiya was killed

TENDERPRENEURS are suspected of being behind the murder of top and respected ANC leader Sbusiso Sibiya, who was a champion of anti-corruption.

Speaking on condition of anonymity, senior party officials on Saturday said Sibiya's strong views on the renewal of the multi-million rand Durban transport bus service contract could have led to his death. "There is a lot happening in the city and Sibiya as secretary had to put his foot down on many issues to give direction to save the ANC from the previous embarrassing tender issues," an insider said. "He had to ensure that the needs of commuters came before those who will get the bus service contract."

Sibiya's funeral service was held at KwaMashu's Princess Magogo Stadium on Saturday. He was buried in the hero's acre at Wiggins Road Cemetery. He was shot four times in his driveway at Congo informal settlement in Inanda, north of Durban. His close friend and ANC official, Wiseman Mshibe, was gunned down in March this year. Mshibe's killers are still at large. "The two officials were seen as an obstruction to those plundering and looting taxpayer's money by acquiring illegal tenders," said a source.

Divisions within the party in the region have been pronounced since it became obvious that Sibiya was going to be re-elected. "Some people were unhappy because he had stopped them from getting tenders while striking out corruption," another official said.

Some senior leaders at the funeral were also concerned that more people would be killed if police did not arrest those behind these murders. Others hope Sibiya's killers are not members of the ANC. Sibiya was also a bishop of the Jerusalem Apostolic Church of Zion in South Africa. "As regional leadership, we planned everything around him and never once did he agree on something he believed to be wrong," another official said.

Home Affairs Minister Nkosazana Dlamini-Zuma said it saddened her that Sibiya was killed in a place that he had fought hard to develop. "In the past we knew the enemy that killed our comrades. It was the apartheid government. But today I do not know who the enemy is," Dlamini-Zuma said. Cosatu provincial secretary Zet Luzipho called for the party leadership to cooperate with the investigators in Sibiya's murder case. "The one who pulled the trigger is not the one who planned the act.

"We want to know who knew that comrade S'bu would be arriving home from the meeting at that time," said Luzipho.

Source: The Sowetan

Telecoms firms told to amend contracts

Mamodupi Mohlala

SA’s four cellular network operators and two fixed-line providers will have new customer contracts that are compliant with the Consumer Protection Act in place within the next three months, according to Business Report on Monday.

This came as national consumer commissioner Mamodupi Mohlala prepared to sign consent order agreements this week with each of the companies. These agreements were legally binding and a fine of R1m or 10% of annual turnover could be imposed if they were breached.

Mohlala said that over the past two weeks the commission had reviewed all contracts provided by the individual companies and none of the contracts were compliant with the act. This, despite the fact that it had been in the pipeline for the past five years and its implementation was postponed from September last year to April this year. She said that in most cases about 75% of the cellphone contract terms and conditions would have to change.

Companies would have to change their billing systems, marketing approach and their staff would have to be educated and more skilled, which would require more spending on human resources, she said. “There is nothing untoward. We are aligning SA with international best practice.”

Mohlala said Cell C, Telkom and 8ta would have their contracts amended by the end of September, Neotel by next month and MTN and Vodacom both expected to have amended their contracts by the end of October.

Source: Techcentral

Protector's challenge to the president

Thuli Madonsela has thrown down the gauntlet to President Jacob Zuma, demanding that he confront her awkward findings and recommendations on two police lease deals worth a total of R1.78-billion. On Thursday the public protector released the second of her devastating reports on the leases, calling on Zuma and his Cabinet to take action against Minister of Public Works Gwen Mahlangu-Nkabinde, national police commissioner Bheki Cele and senior officials.

Madonsela's latest report found that a lease agreement between the public works department and businessman Roux Shabangu, for a headquarters building for the provincial South African Police Service in Durban, is invalid. In her previous report, released in February, she made similar findings about another police lease in Pretoria, also between public works and Shabangu.

Zuma has delayed acting on the Pretoria report, sending Justice Minister Jeff Radebe to negotiate for action to be taken only after the release of the latest report. Now it is time for the president to show to his backbone on the issue. Will he accept the findings and act decisively, or will he delay again?

The political ramifications of both options are significant. Madonsela's recommendations are stronger now, as they are bolstered by new evidence, and the political atmosphere has become charged by the furore that followed last week's media leak of the protector's "imminent arrest".

But if Zuma acts on her recommendations there could be unpleasant political consequences -- particularly if his role in the Shabangu leases was not benign. It is still not clear, for example, why Zuma sacked former public works minister Geoff Doidge, who was investigating the Shabangu deals.

And it is suspicious that Mahlangu-Nkabinde, Doidge's replacement, promptly suspended director general Siviwe Dongwana -- who was also investigating the deals -- and pushed the Pretoria lease through against senior legal opinion and despite her department's decision to suspend the lease.

Commenting on such suspicions, Madonsela said: "We could not find evidence of criminality. We could not explain why people behaved the way they did. The conduct of the police and the public works department was quite strange in trying to move regardless of the circumstances. But I can't make findings on the basis of a hunch. Their behaviour was strange." She said: "I am not prescribing what should be done, but I expect the president to do the right thing."

The biggest problem Madonsela has handed to Zuma is Mahlangu-Nkabinde, who refused to answer certain questions during the public protector's investigation. Madonsela said Mahlangu-Nkabinde's behaviour was improper and unlawful and the minister had "failed to meet the requisite of statesmanship expected from her". She urged Zuma to consider taking action against Mahlangu-Nkabinde. The minister should, within 60 days, "report to the Cabinet on her actions in relation to the procurement of the leases … and her failure to fully co-operate with the public protector".

Zuma will then have to deal with the Cele problem -- or publicly duck it. The commissioner once provided muscle for Zuma's rise to the presidency and is now rumoured to be part of a faction aiming to unseat him. Madonsela found Cele to be guilty of improper and unlawful conduct and maladministration. "The minister of police [Nathi Mthethwa] should, with the assistance of the national treasury, take urgent steps to ensure that the appropriate action is instituted against all the relevant officials of the SAPS," Madonsela said. These included Cele.

She also recommended that Mahlangu-Nkabinde take action against her errant officials, with the assistance of the treasury and the public service department. And while these steps were followed, Madonsela recommended that the police review their needs analysis for the accommodation of their provincial offices and the family violence, child protection and sexual offences units in Durban, which were to be housed in Shabangu's building.

The public works department should then follow proper procedures to help the police find suitable, cost-effective accommodation, as they are mandated to do. "The department of public works and the SAPS must ensure that appropriate measures are implemented to prevent a recurrence of contraventions of the relevant procurement legislation and prescripts," she said.

In both Durban and Pretoria Madonsela found that the lease agreements were invalid because their procurement had not complied with constitutional requirements and other regulations. In both cases she said the police -- Cele in particular, although he denies this -- had identified the buildings before involving the public works department, which is what they should have done. Public works then chose, irregularly, to deviate from open tender procedures, negotiating directly with Shabangu and settling on higher than market-value leases, which compromised the police's stretched operations budget. Shabangu contacted police and public works officials "and is alleged to have put pressure on them in regard to the finalisation of the procurement process".

Madonsela emphasised that there was no evidence of criminality in her investigation of Shabangu's role. "The argument presented by the department of finance was that since we could not conclude that Roux Property Fund [Shabangu's company] had got the leases because of fraud or through other illegal processes, we could not use the law to red-card him," she said. Little has changed in the protector's report compared with the draft that was leaked before she received the responses of those implicated. Looking at those responses -- now dealt with in the final report -- it is easy to understand why.

Commissioner Cele was at pains to point out that he did not invent the SAPS's need for a new lease. "On the contrary, there was a need to either relocate to a new building or construct one long before I came into this department in August 2009," he told the protector.

One of the main aspects of the provisional report disputed by Cele is that it was he who identified the Transnet building as alternative accommodation for police in Durban. But Madonsela says two of his subordinates -- Generals Hlela and Terblanche -- confirmed, independently of each other, that Cele had indeed instructed them to procure the lease of the Transnet building. She also points to an information note signed by Cele, dated June 28 last year, that apparently confirmed that the Transnet building was identified for leasing.

Cele points a finger at public works as the department responsible for managing the procurement process correctly. "The DPW is solely responsible for the unlawful conclusion of the lease agreement," he says.

Mahlangu-Nkabinde's version is contradicted by almost every other player in the leasing saga. According to Madonsela's report, the minister explained a mysterious increase in floor space needed by police -- which ended up being exactly what was on offer at Shabangu's building -- as being added "to accommodate for non-assignable areas, such as partitions, passages, toilets and common areas". "This explanation of the minister is, however, not in line with the needs analysis that was resubmitted by the SAPS," the protector noted.

The minister claimed that Doidge and his director general, Siviwe Dongwana, did not brief her properly. She denies instructing Dongwana to inform Shabangu's bankers that the transaction was proceeding. She refused to answer questions from the public protector, she claimed, because the report on the Pretoria lease showed that Madonsela had already made up her mind.

Shabangu denied applying undue pressure on public works officials, including the director general, or improperly influencing them in the procurement process relating to the Pretoria and Durban leases. He further denied ever meeting the minister outside her office. Asked to explain how he became aware of the SAPS's need for alternative accommodation in Durban, Shabangu indicated that he was informed that the office lease of the provincial police was due to expire and was provided with a "needs analysis" indicating the extent of the required alternative accommodation. It was because he was aware of the extent of the need for alternative accommodation in Durban that his company decided to buy the Transnet building.

But Madonsela noted: "Shabangu's above explanation is inconsistent with the documentary evidence obtained during the investigation, in terms of which it was found that the first needs analysis, reflecting the extent of the SAPS's need for alternative accommodation, was only submitted to the DPW on 23 June 2010. "However, the sale agreement for the Transnet building was concluded with Shabangu on behalf of [Roux Shabangu] on 19 March 2010, three months earlier." Ten days after Independent Newspapers claimed Thuli Madonsela faced imminent arrest for fraud and corruption there is no clarity on who was pushing the "investigation" and who leaked it. As the public backlash mounted, Justice Minister Jeff Radebe and Police Minister Nathi Mthethwa claimed the public protector was not being investigated.

Radebe cleared Madonsela of wrongdoing relating to work her company did for the justice department while she was a full-time South African Law Reform Commission member. President Jacob Zuma rushed to send out a statement of support. The newspaper group then produced "irrefutable proof" of its claims — an "information note" showing only that police were given insight, presumably by someone in the justice department, into a justice department file containing a September 2009 state law opinion on Madonsela's business interests. Police also apparently gave details of departmental payments to her company.

But, significantly, the note was directed to the Hawks's commercial crime head, Hans Meiring, which suggests senior police interest. The matter is also understood to have been drawn to Hawks boss Anwa Dramat's attention. "High-level sources" then leaked the document to a journalist, couched in claims of "imminent arrest" on "fraud and corruption charges" -- which the document did not prove.

Was there ever a police probe of Madonsela? Who was behind it? Was Independent Newspapers manipulated? By whom and why? In seeking to deny that there had been an investigation Hawks spokesperson Macintosh Polela made much of an apparent error in the case number refered to in the information note. It was all an "unfortunate mix-up", he said. The case number refered to a totally separate case ergo the note did not prove Madonsela had been investigated.

In fact the case number proves nothing of the kind. Independent Newspapers originally wrote: "The police stumbled upon information on Madonsela while investigating a separate case registered at the Pretoria Central Police Station." But investigating officer James Hills wrote in the information note: "During the investigation of Pretoria-Central CAS 515/01/2008 at the department of justice and constitutional development, the following came to my attention." Clearly this case number is associated with the "separate case". It was never intended either by the Independent Group or by Hill to refer to the Madonsela probe.

Polela used this confusion to cover the fact that Cabinet had made it politically difficult for police to come clean on the investigation and the leak. He said: "There was a mix-up when someone read a file for that case. It appears there was a piece of paper which mentioned Madonsela, but I don't know what that piece of paper was about … As far as I know [the leak] is not being investigated from our side."

The previous week police headquarters said the South African Police Service would launch a full investigation into the circumstances that led to "media reports …that the public protector is about to be arrested" and would announce the outcome.

Why the arrest claim was leaked days before the release of Madonsela’s second SAPS lease report -- and why ministers then smothered the matter -- remain smouldering questions.

Source: Mail & Guardian

Thuli Madonsela: A timeline

News reports about attacks on the Public Protector can be confusing. Why was she accused of fraud and who are her enemies? Use our timeline to make sense of the story.

October 2009
Advocate Thuli Madonsela is announced as South Africa's new Public Protector -- South Africa's third since 1994. She replaces Lawrence Mushwana, who had a dubious record in connection with the Oilgate scandal.

M&G analysis: Madonsela's challenge to Zuma

M&G editor in chief Nic Dawes tells you everything you need to know about Public Protector Thuli Madonsela's report into police leasing deals. Will the president take action? What's next for Madonsela? Watch our video analysis and find out.

More videos

2 August 2010
Complaints are lodged by Paul Hoffman of the Institute for Accountability in Southern Africa and Pieter Groenewald of the Freedom Front Plus with the Public Protector in connection with a Sunday Times report alleging improper procurement in the leasing of office accommodation for the South African Police Services (SAPS) in the Sanlam Middestad building in Pretoria and the Transnet Building in Durban. These complaints originated from a newspaper article published on August 1 2010 alleging improper conduct and maladministration by police National Commissioner Bheki Cele and the Department of Public Works (DPW). The combined value of the leases amounts to over R1.7bn and is entered into between the South African Police Service and controversial property vendor Roux Shabangu.

August 3 2010
Madonsela requests Cele and officials at DPW to cease with implementation of the said leases until an investigation into the matter is completed. It is confirmed the investigation would be undertaken in conjunction with Willie Hofmeyr's Special Investigation Unit (SIU).

4 August 2010
Journalist Mzilikazi wa Afrika is arrested for allegedly being in possession of a fake letter of resignation from Mpumalanga Premier David Mabuza. His arrest is widely seen as an attempt at intimidation relating to the original report appearing in the Sunday Times. He is held in Nelspruit for several days -- even after his case is thrown out of court.

October 11 2010
Director general at DPW, Siviwe Dongwana, informs Cele a new procurement process for the leasing of accommodation for the SAPS headquarters in Pretoria and Durban will be affected after an internal enquiry and independent legal advice deems the lease acquisitions to be invalid.

October 25 2010
Madonsela issues a preliminary report on the investigation, confirming her support for the new procurement process initiation.

October 31 2010
Gwen Mahlangu-Nkabinde replaces the former minister of public works, Geoff Doidge, in a Cabinet reshuffle by President Jacob Zuma.

November 11 2010
Mahlangu-Nkabinde announces, upon obtaining legal advice from the Office of the State Attorney on the lease agreement with regards to the Middestad building, that the lease is enforceable.

December 8 2010
DPW announces the suspension of Dongwana on charges in relation to insubordination, dereliction of duty, failure to discharge official duties and bringing the department into disrepute.

February 22 2011
Madonsela releases an initial report into the matter entitled: Against the Rules -- with specific reference to the Sanlam Middestad building in Pretoria. The report lists a number of irregularities in the leasing process.

March 2 2011
The offices of the Public Protector are visited by members of the SAPS crime intelligence unit, allegedly regarding Madonsela's investigations into Cele. Police later deny it was a raid.

March 10 2011
Madonsela announces she will not revisit findings in her report, despite being asked to do so by Mahlangu-Nkabinde.

June 10 2011
Mahlangu-Nkabinde announces a moratorium on all DPW tenders to "root out corruption". The move is slammed by the media and opposition parties and labeled as political opportunism.

June 17 2011
Shabangu calls a press briefing in Pretoria to "set the record straight" and defends the leasing deals, accusing "white capitalists" of accusing him of shady deals because he is a successful black businessman.

June 18 2011
Dongwana tells the media he feared for his safety and that of his family as he felt he was pressured into approving two lease deals.

June 21 2011
Mahlangu-Nkabinde announces her intention to take the matter regarding the leases to court to pronounce legality.

July 6 2011
A shock report is published by the Star newspaper about Madonsela’s imminent arrest on charges of alleged corruption during her tenure many years before as commissioner at the South African Law Reform Commission.

July 6 2011
The Star report is published the same day as a scheduled press briefing by Madonsela about the police leases and other matters. The report is criticised as a political ploy related to Madonsela's investigations into the leases. The protector vows to continue in her investigations into the leases.

July 7 2011
Justice and Constitutional Development Minister Jeff Radebe throws his weight behind Madonsela, announcing that she did not break any laws when her company offered services to the justice department while she worked for the South Africa Law Reform Commission. Police Minister Nathi Mthethwa also announces that he has no knowledge of an imminent arrest, after consulting with Cele, and the Zuma makes his support clear as well.

July 11 2011
It is confirmed that the head of the SIU, Willie Hofmeyr, is being investigated by the Serious Economic Offences Unit for reportedly flouting supply-chain and procurement procedures in the awarding of a tender to refurbish SIU offices in Pretoria

July 14 2011
Madonsela releases a second report into the leasing scandal -- with specific reference to the Transnet building in Durban -- entitled: Against the rules too. The report finds serious fault with Mahlangu-Nkabinde and Cele during the acquisition and implementation of the leases and calls for serious remedial action. The pair are slammed for their lack of cooperation during the investigation.

July 15 to 17 2011
The weekend media announce the report as a watershed moment for Zuma, which will test his earlier support and possibly force him to take action.

July 18 2011
Cele announces a press briefing for July 19 to respond to findings by the Public Protector that his actions in connection with the two controversial building leases were unlawful, improper and constituted maladministration. The briefing is then postponed to July 21.

July 20 2011
Cele again cancels the press briefing, scheduled for the following day.

Source: Mail & Guardian

Ngoepe: Powers of executive and judiciary are equal

The powers of the three organs of government -- the executive, the judiciary, and the legislature -- are all equal, Judge President of the North and South Gauteng High Courts, Bernard Ngoepe, said on Sunday. "None can be higher than the other. They are all equal," he told the South African Press Association in an interview at the closing of the Access to Justice conference in Johannesburg.

Ngoepe was referring to comments made by President Jacob Zuma that although the separation of powers was important, courts should not be more powerful than the government. "In as much as we seek to respect the powers and role conferred by our Constitution on the legislature and the judiciary, we expect the same from these very important institutions," Zuma said on Friday. "The powers conferred on the courts cannot be superior to the powers resulting from the political and consequently administrative mandate resulting from popular democratic elections."

Zuma stressed the need to distinguish the areas of responsibility between the judiciary and the branches of government, particularly with regards to government policy formulation. "The executive, as elected officials, have the sole discretion to decide policies for government. "This means that once government has decided on appropriate policies, the judiciary cannot, when striking down legislation or parts thereof on the basis of illegality, raise that as an opportunity to change the policies," he said.

Ngoepe believed Zuma meant that all three institutions were bound by the Constitution. "As far as I am concerned, what he [Zuma] means is that the Constitution demarcates the areas of authority of the judiciary, the executive and Parliament, and that each of the three institutions is bound by the Constitution to remain within the parameter of its constitutional authority and not encroach on the authority of the other two." This was a valued principle, said Ngoepe.

Some political analysts told the Saturday Star they interpreted the president's comments as a reference to the Constitutional Court's ruling earlier this year in which a narrow majority of justices found legislation that controversially killed off the Scorpions unit -- and established the Hawks -- as being unconstitutional. Political analyst, advocate Paul Hoffman, director of the Institute for Accountability in Southern Africa, told the publication it was the duty of the courts to uphold the Constitution. "The executive cannot do as it pleases on matters of policy," he said. "Any law or any conduct produced as a matter of policy which is inconsistent with the Constitution, such as dissolving the Scorpions or denying treatment to Aids patients, is invalid."

Delegates heard at the three-day conference that the independence of the judiciary was crucial for a democratic and just system. Zuma said the Constitution had adequate checks and balances to protect and safeguard the independence of the judiciary. Some politicians had undermined this, Ngoebe said. "In the past, there have been a few remarks by some individual politicians which could be understood as undermining the independence of the judiciary. However, there has been nothing serious in this regard."

He said there had been times when judges believed their lives were in danger. "There have been instances when judges who were doing certain cases felt threatened and were afforded police protection."

Source: Mail & Guardian

Vodacom cuts off about a million users

Vodacom, South Africa's biggest wireless phones operator, cut off about a million users on Friday for failing to register their SIM cards under a new law in the country. Under the new Regulation of Interception of Communication Act, mobile phone SIM cards must have been registered by 10pm GMT on Thursday to avoid being cut off from the network.

Vodacom, a unit of Britain's Vodafone, said under a million subscribers were disconnected from its network but spokesman Richard Boorman said the impact on revenue would be minimal. "Overall, I can say we're not expecting a major revenue impact," Boorman said, adding only a portion of those disconnected, frequently used their lines.

Vodacom's rival MTN declined to disclose how customers were locked out of the network but said initial indications showed that the numbers were not significant. "MTN is not in a position to disclose the figures of ... subscribers who have been cut off because MTN is in a closed period," Eddie Moyce, customer relationship executive at the operator's South African unit, said in an emailed response to Reuters questions.

MTN is finalising its half-year results and companies typically refrain from making comments on their balance sheets before the results are published. MTN has about 19-million subscribers in South Africa while Vodacom boasts about 26 million users in the country.

Source: Mail & Guardian

'Spooks are everywhere'

The latest African Media Barometer (AMB): South Africa 2010 report presents a mixed picture on the state of the media and media freedom in the country. It says there is widespread belief that "spooks are everywhere".

South Africa's overall rating for its media environment has decreased, according to the report published by Friedrich-Ebert-Stiftung (FES) and the Media Institute of Southern Africa. FES is a private German political, non-profit, public-interest institution committed to social democracy. In 2006, the overall score for freedom of expression for the country was 3.2 out of 5, in 2008 it was 3.5 and in 2010 it decreased to 3.

Categories taken into account include: freedom of the media, the media landscape including diversity, independence and sustainability, broadcasting regulation and professional standards. Scoring in a range of subcategories were conducted by a 10-person panel of South Africans, including a trade unionist, a media academic, a journalist, a human rights activist, a broadcasting consultant, a social movement activist, a gender activist and an IT specialist.

The barometer says that although the right to freedom of expression, including media freedom and the right to access information, is guaranteed in the Constitution, in "recent years, though, these protections are being increasingly challenged in practice, or by proposals for new legislation". "The tone of the political discourse is becoming sharper", with "harsh criticism of corruption and greed in government circles from a broad spectrum of society". Government, as well as sections of the ANC, the report says, reacts defensively and critics are labelled as "unpatriotic", "enemies" or "counter-revolutionaries". And police, "overreact" against people with critical views whereas whistle-blowers feel increasingly insecure. "There are reports of people who had revealed instances of corruption to the press being threatened or even killed … and there is the suspicion that spooks are everywhere" the report says, quoting Congress of South African Trade Union's Zwelinzima Vavi's statement that many believe that people are listening in to phone conversations.

However, South Africa scored top marks for the fact that entry into and the practice of journalism was legally unrestricted and that websites and blogs were not required to register or get permission from state authorities. The scores dropped in the category: "the right to freedom of expression is practised and citizens, including journalists, are asserting their rights without fear". In 2008 it was 3.2 and in 2010 it was 2.9. The advertising market, according to the survey, was not large enough to support a diversity of media outlets: in 2008 this score was 3.9 and in 2010, it dropped to 2.7 There was a significant decrease in adequate competition legislation/regulation to prevent media concentration and monopolies. In 2008 it was 4.7 and in 2010 it was 2.6. In the same vein, the indictment on broadcasting regulation and its levels of transparency and independence was severe: the 2006 score was 4.6, the 2008 score was 5 and the 2010 score was 3.3. The scores for "public information is easily accessible, guaranteed by law, to all citizens" was generally low for the three years. In 2006, it was 2.7, in 2008 it was 2.3, and in 2010 2.7.

Regarding the provision that there were "no laws restricting freedom of expression such as excessive official secrets or libel acts, or laws that unreasonably interfere with the responsibilities of media", the country scores a good 4, but the report says if the Protection of Information Bill is enacted and if a media appeals tribunal is instituted, it would change the picture.

Applying for information in terms of the Promotion of Access to Information Act of 2002 (Paia) is "cumbersome" and "often requests for information are ignored. Further, many departments did not appoint information officers as required under the act, the report says. Mention is made of the Mail & Guardian winning a High Court order in June 2010, which obliged the government to release a report on the 2002 elections in Zimbabwe. The judge agreed that the release of the report was in the public interest, but government appealed to the Supreme Court of Appeal, lost that appeal in December 2010, and then applied to the Constitutional Court this year. Judgment is pending.

The Secrecy Bill, if enacted, would threaten the gains envisaged in Paia, according to the report.

Source: Mail & Guardian