Monday, August 17, 1998

DULLAH OMAR: JOBS FOR PALS

LONG, LONG AGO MR DULLAH OMAR was a humble and serious lawyer who espoused the cause of non-racialism and liberation. He is known never to have sued a client for non-payment of fees, believing that if they did not pay, they probably could not afford to pay. Twenty years ago, he was the senior partner of a leading law firm on the Cape Flats, known first as AM Omar & Co. and then as Omar & Vassen.

In the early eighties, he turned down an invitation to join the board of the new – privately owned – Gatesville Hospital, rudely denouncing the owners as “a bunch of capitalists”. In the eighties, he went to the Bar and, as a struggle lawyer, often accompanied his clients into detention. Not that long ago when, somewhat misguidedly, corporate lawyers Sonnenbergs invited him, in his capacity as the new Minister of Justice, to open their luxurious new offices in Cape Town, he soured the occasion by observing in his speech: “The poor definitely can’t come in here.”

But now, established as Minister of Justice and a senior leader of the ANC in the Cape, things appear to have changed. The minister’s children are major beneficiaries of “empowerment” shares worth many millions, in a variety of companies. Today, the Omar family owns a R650 000 holiday house in Betty’s Bay (Dr Verwoerd’s favourite resort) and recently Omar’s wife, Hadji Farieda, was pictured at the auction of a Constantia mansion that belonged to Bulgarian mass murderer, Goran Bojovic. It was knocked down to her on a bid of R1.2m. (For advice on their big business dealings do they consult Sonnenbergs, or is it Herbsteins, where daughter Fazlan is doing her articles?) And then there is the rapidly expanding network of friends and associates of the minister who have recently acquired jobs in the Public Service. Large numbers of lawyers once connected to Omar & Co, appear to have recreated Omar & Co in a new guise – on the State’s payroll. We have compiled a list of some of them:

  • Enver Daniels, once a professional assistant in Omar’s firm, was appointed first as special adviser to the minister, and is now Chief Government Law Adviser.

  • Denzil Potgieter, another Omar PA, was appointed to the Truth and Reconciliation Commission. He has been elevated to the status of Senior Counsel at the Cape Town Bar, contrary to the Bar Council’s recommendation, and is tipped for judicial appointment.

  • Mr Omar’s old law partner, Ramesh Vassen, was struck off the roll of attorneys when he was caught with a “short-fall” on his trust account. His appeal to have himself reinstated – after he repaid all the money he had stolen – was turned down by the Appeal Court in Bloemfontein in June. But, in the meantime, Vassen has been helped out with a job in the “service “ – as a Parliamentary liaison officer.

  • Percy Sonn, once a professional assistant at Omars, is today Deputy Attorney General of the Cape.

  • Shenaaz Meer, one-time articled clerk at Omars – and daughter of friend Dr Fatima Meer – first got a job at the Legal Resources Centre, and now sits on the Land Claims Court.

  • David Mias, another attorney long associated with Mr Omar – he was also the escort of Dullah’s sister, Ragmat, for many years – was first appointed to run the Legal Reousrces Centre in Port Elizabeth. When it failed due to mismanagement, Mias was appointed State Attorney in Cape Town.

  • Mias’s former partner, Ms Marcel Luter, was recently appointed Deputy State Attorney in Pretoria.

  • Yusuf (Joey) Ebrahim, once a professional assistant in Dullah’s firm, never managed to get his law BA, but somehow UCT was persuaded to admit him to an affirmative MA course – which he never completed. In the meantime, Mr Ebrahim was made first an assessor to Judge President Friedman on the Cape Bench, and then, bless him, a judge in Bisho.

  • Another prominent “Indian” attorney from the Cape Flats, Dines Gihwala, was recently made an acting judge of the Cape High Court. You may be surprised that we include him in our list of those in favour with Mr Omar. Gihwala was, after all, his arch-opponent for many years; one of those men of colour who was happy to serve on the ethnic “management” committees set up by the previous regime; the sort of “coloured” lawyer who did not want to get involved with defending “politicals”. In fact, just the sort of attorney of colour who would, in the new era, have his firm amalgamate with the ultimate in Broederbond firms, Hofmeyr Van der Merwe. So why should Mr Gihwala now have received the nod from the minister and have been appointed an acting judge? Speculation in informed circles is that the minister’s pride has been satisfied by Gihwala’s acknowledgement of his leadership. Gihwala has not only made a donation of R50 000 to ANC funds, but earlier this year persuaded the Hindu Association of Rylands Estate, of which he is a leading member, to throw a festive bash in honour of the minister. Great stuff in an election year. Not that everyone is that thrilled with the new-found affection between the two old enemies – unnamed “elements” in the Thornhill Residents’ Association – ANC stronghold of the Omar clan – expressed their disapproval by distributing a scurrilous pamphlet about Gihwala in their neighbourhood.

  • Then there’s Omar’s political rival of the struggle years, Essa Moosa, who was first the UDF’s main attorney and then became ANC star Allan Boesak’s attorney. Sometimes described as a “dagga” lawyer from Athlone who made his first fortune out of International Defence and Aid Fund grants, Moose has rapidly ascended the social and Justice Department ladders from being appointed Co-ordinator of Lay Assessors. Early this year he was appointed an acting judge of the Free State High Court.

  • The star in Omar’s firmament has to be Judge Siraj Desai, whose experience and undoubted ability made him a fit appointment to the Cape Bench. Judge Desai, too, started his career as a professional assistant in Dullah’s firm. Not that long before his appointment he pleased Mr Omar greatly by abandoning the more radical Unity Movement to join the ANC.

  • Even old friends at the Mitchell’s Plain courts have not been forgotten. Nizaam Hendricks, long on the court staff and a frequent dinner guest of the Omars, was transferred to Pretoria as head of personnel in the department of Justice.
  • Since Hendrick’s attorney wife, Gadija Behardien, also needed a job on their transfer north, the department’s head of personnel (Hendricks) was fortunately able to assist with a local post – that of deputy State Attorney in Pretoria. Hold your breath. Who is next in line for a job? Will it be Ebie Mohamed, Nita Hanmer or Dullah’s charming and attractive old friend, Nicky van Driel?

Source: Nose Week: Issue # 24

Saturday, August 1, 1998

Office of the National Director of Public Prosecutions

Section 179 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), created a single National Prosecution Authority (NPA).

The Office of the National Director of Public Prosecutions, first headed by Mr Bulelani Thandabantu Ngcuka - and now headed by Advocate Vusumzi Patrick Pikoli, was established on 1 August 1998, in terms of section 179 (1) of the Constitution. The NPA comprises the National Director, who is the head of the Office and manages the Office; Directors of Public Prosecutions; Investigating Directors and Special Directors; other members of the prosecuting authority appointed at or assigned to the Office; and members of the administrative staff at the Office.

Legislation governing the prosecuting authority is the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998). The Constitution, read with the said Act, provides the prosecuting authority with the power to institute criminal proceedings on behalf of the State and to carry out any necessary functions incidental to instituting criminal proceedings.

Background

* The Bill of Rights and Section 179 of the 1996 Constitution of the Republic of South Africa create a single prosecuting authority.
* The National Prosecuting Authority Act 32 of 1998 brings the NPA into existence.
* In August 1998, the first National Director of Public Prosecution was appointed.
* Seven Core Business Units:
o National Prosecutions Service (NPS)
o The Office for Witness Protection (OWP)
o Asset Forfeiture Unit (AFU)
o Sexual Offences and Community Affairs (SOCA)
o Specialised Commercial Crime Unit (SCCU)
o Witness Protection Unit (WPU)
o Priority Crimes Litigation Unit (PCLU)
* All the Business Units are supported by Corporate Services.

Legislation

* The following are some of the important laws that have a direct bearing on NPA activities:
o NPA Act 32 of 1998
o Witness Protection Act 112 of 1998
o Domestic Violence Act 116 of 1998
o Prevention of Organised Crime Act 121 of 1998
o Prevention and Combating of Corruption Activity 12 of 2004

Office of the National Director of Public Prosecutions

Section 179 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), created a single National Prosecution Authority (NPA).

The Office of the National Director of Public Prosecutions was established on 1 August 1998, in terms of section 179 (1) of the Constitution. The NPA comprises the National Director, who is the head of the Office and manages the Office; Directors of Public Prosecutions; Investigating Directors and Special Directors; other members of the prosecuting authority appointed at or assigned to the Office; and members of the administrative staff at the Office.

Legislation governing the prosecuting authority is the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998). The Constitution, read with the said Act, provides the prosecuting authority with the power to institute criminal proceedings on behalf of the State and to carry out any necessary functions incidental to instituting criminal proceedings.

Background

* The Bill of Rights and Section 179 of the 1996 Constitution of the Republic of South Africa create a single prosecuting authority.
* The National Prosecuting Authority Act 32 of 1998 brings the NPA into existence.
* In August 1998, the first National Director of Public Prosecution was appointed.
* Seven Core Business Units:
o National Prosecutions Service (NPS)
o The Office for Witness Protection (OWP)
o Asset Forfeiture Unit (AFU)
o Sexual Offences and Community Affairs (SOCA)
o Specialised Commercial Crime Unit (SCCU)
o Witness Protection Unit (WPU)
o Priority Crimes Litigation Unit (PCLU)
* All the Business Units are supported by Corporate Services.

Legislation

* The following are some of the important laws that have a direct bearing on NPA activities:
o NPA Act 32 of 1998
o Witness Protection Act 112 of 1998
o Domestic Violence Act 116 of 1998
o Prevention of Organised Crime Act 121 of 1998
o Prevention and Combating of Corruption Activity 12 of 2004

Saturday, July 18, 1998

The Rome Statute of the International Criminal Court

The Rome Statute of the International Criminal Court (often referred to as the International Criminal Court Statute or the Rome Statute) is the treaty that established the International Criminal Court (ICC). It was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002. As of October 2009, 110 states are party to the statute,and a further 38 states have signed but not ratified the treaty. Among other things, the statute establishes the court's functions, jurisdiction and structure.

The treaty can be found here.

The jurisdiction of the Court shall be limited to the most serious crimes of concernto the international community as a whole. The Court has jurisdiction inaccordance with this Statute with respect to the following crimes:
(a)The crime of genocide;
(b)Crimes against humanity;
(c)War crimes;
(d)The crime of aggression.

The Court shall exercise jurisdiction over the crime of aggression once a provisionis adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of theCharter of the United Nations.

Source: Wikipedia; International Criminal Court (ICC)

Wednesday, July 1, 1998

Forced labour in Myanmar (Burma)

Conclusions on the substance of the case

There is abundant evidence before the Commission showing the pervasive use of forced labour imposed on the civilian population throughout Myanmar by the authorities and the military for portering, the construction, maintenance and servicing of military camps, other work in support of the military, work on agriculture, logging and other production projects undertaken by the authorities or the military, sometimes for the profit of private individuals, the construction and maintenance of roads, railways and bridges, other infrastructure work and a range of other tasks, none of which comes under any of the exceptions listed in Article 2(2) of the Convention.

The call-up of labour is provided for in very wide terms under sections 8(1)(g)(n) and (o), 11(d) and 12 of the Village Act and sections 9(b) and 9A of the Towns Act, which are incompatible with the Convention. The procedure used in practice often follows the pattern of those provisions, in relying on the village head or ward authorities for requisitioning the labour that any military or government officer may order them to supply; but the provisions of the Village Act and the Towns Act were never actually referred to in those orders for the call-up of forced labourers that were submitted to the Commission; it thus appears that unfettered powers of military and government officers to exact forced labour from the civilian population are taken for granted, without coordination among different demands made on the same population, and people are also frequently rounded up directly by the military for forced labour, bypassing the local authorities.

Failure to comply with a call-up for labour is punishable under the Village Act with a fine or imprisonment for a term not exceeding one month, or both, and under the Towns Act, with a fine. In actual practice, the manifold exactions of forced labour often give rise to the extortion of money in exchange for a temporary alleviation of the burden, but also to threats to the life and security and extrajudicial punishment of those unwilling, slow or unable to comply with a demand for forced labour; such punishment or reprisals range from money demands to physical abuse, beatings, torture, rape and murder.

Forced labour in Myanmar is widely performed by women, children and elderly persons as well as persons otherwise unfit for work.

Forced labour in Myanmar is almost never remunerated nor compensated, secret directives notwithstanding, but on the contrary often goes hand in hand with the exaction of money, food and other supplies as well from the civilian population.

Forced labour is a heavy burden on the general population in Myanmar, preventing farmers from tending to the needs of their holdings and children from attending school; it falls most heavily on landless labourers and the poorer sections of the population, which depend on hiring out their labour for subsistence and generally have no means to comply with various money demands made by the authorities in lieu of, or over and above, the exaction of forced labour. The impossibility of making a living because of the amount of forced labour exacted is a frequent reason for fleeing the country.

A State which supports, instigates, accepts or tolerates forced labour on its territory commits a wrongful act and engages its responsibility for the violation of a peremptory norm in international law. Whatever may be the position in national law with regard to the exaction of forced or compulsory labour and the punishment of those responsible for it, any person who violates the prohibition of recourse to forced labour under the Convention is guilty of an international crime that is also, if committed in a widespread or systematic manner, a crime against humanity.

Source: International Labour Organisation (ILO)

Monday, June 15, 1998

Rights Group Praises South Africa For Stand On International Court

Human Rights Watch today praised the speech of South African Justice Minister Dullah Omar at the opening day of a conference to establish an International Criminal Court (ICC).

At a speech before delegates from 156 countries in Rome, Dullah called for an ICC with the authority to make an independent decision of when to take up cases of genocide, crimes against humanity, war crimes, and aggression. He supported giving the prosecutor the powers to begin investigations on his or her own initiative.

South Africa has been a leader of the "like-minded group" of more than 50 states, which seeks to form an ICC with strong and independent powers.

Dullah spoke on behalf of the Southern Africa Development Community, which has 14 members. "The creation of the ICC will send a clear and unequivocal message that perpetrators of these crimes will not get away with impunity," he said.

"Dullah's speech was right on target," said Richard Dicker, who heads the ICC campaign for Human Rights Watch, a New York-based monitoring organization. "South Africa has been on the right side of this issue time and again."

But Dicker warned that as the conference gets underway, South Africa will likely come under heavy pressure from influential countries such as the United States to dilute the court's powers. Washington wants to curtail the authority of the prosecutor to begin investigating matters on his or her own initiative. Some countries of the Non-Aligned Movement want to have a veto power over the court's docket, enabling them to block cases that might embarrass them.

"The ICC could really make a difference in how the world punishes grave human rights abuses," said Dicker. "South Africa can play a historic role in that process - if it sticks to its principles."

Source: Human Rights Watch

Saturday, June 6, 1998

Human Rights Watch Condemns Killing Of Iranian Civilians

Human Rights Watch unequivocally condemns the bombing on June 3 of the Islamic Revolutionary Court in Tehran, which killed three persons and wounded dozen of others.

"We condemn this brutal attack, and the deliberate and arbitrary killing of innocent civilians which violates the most basic principles of humanity," said Hanny Megally executive director of the Middle East and North Africa Division of Human Rights Watch.

According to press reports, the People's Mojahedine Organization of Iran (PMOI), has claimed responsibility for the blast. Human Rights Watch calls on PMOI to immediately and unconditionally cease all such attacks on civilians. PMOI is an armed Iraq-based organization that has openly dedicated itself to overthrowing the Iranian government.

In response to similar attacks in the past, the Iranian government has clamped down on the civil liberties of Iranian citizens. Human Rights Watch urges the Iranian government not to take such steps in this instance.

Source: Human Rights Watch

Friday, June 5, 1998

PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL OCCUPATION OF LAND ACT

PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL OCCUPATION OF LAND ACT 19 OF 1998
Commencement Date of Act: 5 June 1998
Date Modified by Sabinet: 20080925
Category: Property, Land and Environment - Land
Note: Decided Cases updated
Description: To provide for the prohibition of unlawful eviction; to provide for procedures for the eviction of unlawful occupiers; and to repeal the Prevention of Illegal Squatting Act, 1951, and other obsolete laws; and to provide for matters incidental thereto.
Database: Netlaw: SA Legislation

A copy of the Act can be found here.

Source: Sabinet, info.gov.za

Thursday, May 21, 1998

A revealing British documentary on post-apartheid South Africa

In 1994 the Government of National Unity, consisting of the African National Congress, the National Party (a long-time pillar of apartheid) and the Inkatha Freedom Party replaced the South African apartheid regime. ANC leader Nelson Mandela took the place of F.W. De Clerk as president.

John Pilger, a respected investigative journalist, returned to South Africa 30 years after he was banned for his reports on apartheid to find out what changes have taken place since 1994. His findings were shown nationally in a documentary entitled, "Apartheid Did Not Die," aired on Britain's ITV station April 21.

Pilger says: "Yes, apartheid based on race is outlawed now, but the system always went far deeper than that. The cruelty and injustice were underwritten by an economic apartheid that regarded people as no more than cheap, dispensable labour. International corporations in South Africa, Britain, Europe and the United States backed it. And it was this apartheid, based on money and profits, which allowed a small minority to control most of the land, most of the industrial wealth and most of the economic power. Today the same system is called, without a trace of irony, the free market." This film, he adds "asks why apartheid continues by other means."

Pilger's insistence that "apartheid did not die" confuses the issue. Apartheid has ended, but capitalist oppression continues. The ANC, like bourgeois nationalist movements throughout the world, have proven incapable of putting an end to the legacy of poverty and exploitation in the oppressed nations. That is the task of the South African and international working class.

Source: World Socialist Web; International Committee of the Fourth International

Monday, April 6, 1998

SAF DEFENSE CHIEF: GEORGE MEIRING

SOUTH AFRICAN PRESIDENT NELSON MANDELA HAS ACCEPTED THE
RESIGNATION OF THE COUNTRY'S NATIONAL DEFENSE FORCE CHIEF, GEORGE
MEIRING. V-O-A'S DELIA ROBERTSON IN JOHANNESBURG REPORTS THE
RESIGNATION FOLLOWS A REPORT GENERAL MEIRING MADE OF A PLOT TO
OVERTHROW THE GOVERNMENT.

Source: Voice of America
.

Monday, March 30, 1998

Ivorian ex-premier to quit IMF for return to politics

Ivorian former prime minister Alassane Ouattara will return to political life in time for the presidential elections in the year 2000, Radio France Internationale reported. Ouattara served as prime minister from 1990 to 1993 under the late President Felix Houphouet-Boigny, but did not stand in the divisive 1995 presidential elections. He became deputy director of the International Monetary Fund, but announced in Abidjan on Sunday that he would leave the IMF in the second quarter of 1999, when his contract there ends. "I will return home to be at the disposal of my country, and also to contribute to its development.

This implies that, having held a political office, I cannot stay out of politics," he told reporters before returning to his job in Washington. The radio broadcast his remarks. He did not say whether he would run for president, but the radio said his return ought to reunite the Rally of the Republicans (RDR) party, which it said "is torn apart at present" .

The RDR was hit by the recent defection to the government of Adama Coulibaly, the party's erstwhile second-in-command, the radio said. The RDR considers Ouattara to be its tacit candidate for the 2000 poll, the radio said.

Source: BBC

Tuesday, March 17, 1998

Abdul-Rahman al-Iryani, dies at 89

Abdul-Rahman al-Iryani, President of northern Yemen from 1967 to 1974, died Saturday in exile in Syria. He was 89. Mr. Iryani died in the Syrian capital, Damascus, where he had lived since 1974. He gained widespread popularity and respect as one of the leaders of the al-Ahrar opposition group, which opposed Yemen's Mutawakilite kings.

Mr. Iryani was sentenced to death by beheading in 1955 for his activities with al-Ahrar, Arabic for ''the free.'' Minutes before his execution by sword, he was granted a reprieve by Imam Ahmad bin Yahya Hamidaddin.

Mr. Iryani spent more than 15 years in prison during the rule of the Mutawakilite, which ended in 1962. He served as minister of religious endowments under northern Yemen's first national government and is the only civilian to have led northern Yemen.

Source: New York Times

Friday, February 27, 1998

DEVELOPING A CULTURE OF GOOD GOVERNANCE

In this report the Commission has tried to re-think fundamentally the role and functions of the public service, and to set out a framework for transformation in which the cornerstones of social need, capacity and cost have been at the centre of our thinking. These are rigorous constraints in a country where resources are sorely stretched, social need is infinite and capacity severely constrained. It is with services in mind that we have approached the four central themes of this report: transforming the structures and functions of government; revitalising human resources management and development; stressing the central significance of Information Technology; and building effective systems for financial planning and budgeting. The latter in particular is essential for the full realisation of our priorities, if the democratic transformation of the public service and the equitable provision of services for all South Africans is to be achieved. Collectively the four themes create the parameters for change and the prerequisites for the development of a culture of good governance.

The task of transforming the public service from an institution of regulation and control to one that is people-centred, efficient, coherent and transparent is a daunting one for any government, least of all one without a democratic heritage. The desire to succeed in this respect, to surmount the over-arching impediments to change, both human and financial, and to subject the new democratic Government, so early in its life, to the independent and rigorous scrutiny of this Commission is a measure of the Government's determination to transform the country's institutions at the core "and to get it right" from the Office of the President down to every organ and agency of government at national, provincial and local levels. The challenge of our task and the immensity of our responsibilities were offset by our awareness of, and faith in, the commitment and capacity of the appointed and elected officials of the South African Government to give effect to our recommendations.

Source: Polity

Tuesday, February 17, 1998

Land and Spirituality in Africa

The colonizers acquired land in an insensitive manner, driven by greed, and the process was intended to vanquish and dehumanize the original owners. This was achieved through military subjugation. The Zulu-Anglo War of I879 and the Anglo-Boer War of the early I9th Century can be traced back to the struggles for land. A number of massacres of Black South Africans were nothing other than an insensitive, greedy and cruel method for dispossessing Blacks of the land. Land was acquired with total disregard of traditional beliefs and cultures underpining our spirituality as Black Africans. Indigenous communities were stripped of their dignity, many lost their identity, languages, cultures and spiritualities. In this sense, land was acquired and used as a political tool.

After acquiring land, the colonizers commercialized it and later inflated its price. That left us with no land we could call our own. We soon found ourselves in exile in our own country. It is painful to note that churches, especially those that own land, were involved in the process which left Africans with nothing except �ubuntu�, a confused culture and a hope that God and their ancestors were still with them in their pain and happiness.

Source: World Council of Churches

Thursday, January 22, 1998

Human Rights Watch Urges Government Of Zimbabwe To Respect Human Rights While Restoring Order

Human Rights Watch called upon the government of Zimbabwe to refrain from using excessive force against protesters in Harare.

On Tuesday January 20, President Mugabe announced that he had ordered army troops into Harare in order to quell the unrest which were initially sparked by rising food prices. Minister of Home Affairs Dumiso Dabenga was quoted on International Television News (ITN) as saying: "The deployed army personnel have not been trained to use batons like the police, and they will be carrying arms and live ammunition and will not hesitate to shoot any people who are likely trouble-causers." Other sources in Harare interviewed by Human Rights Watch stated that police and army had beaten people in the street as well as after taking them into custody.

Witnesses in Harare told Human Rights Watch that military helicopters were used to indiscriminately dispense teargas in black townships in an apparent effort to quell protests. Sources in Harare also claimed that the police had used live ammunition on protesters.

The current public unrest follows closely on the heels of similar major protests last month. On December 9, 1997, violence erupted in Harare during a labor demonstration attended by tens of thousands of protesters. According to media reports, military helicopters, tear gas, and police clubs were used to disperse the demonstrators. Zimbabwe Congress of Trade Unions (ZCTU) Secretary-General Morgan Tsvangirai, one of the main organizers of the labor protest, was reportedly beaten in his office two days after the protest by unknown assailants.

Source: Human Rights Watch

Friday, November 28, 1997

EXTENSION OF SECURITY OF TENURE ACT

EXTENSION OF SECURITY OF TENURE ACT 62 OF 1997
Commencement Date of Act: 28 November 1997
Date Modified by Sabinet: 20071023
Category: Property, Land and Environment - Land
Note: Decided Cases updated
Description: To provide for measures with State assistance to facilitate long-term security of land tenure; to regulate the conditions of residence on certain land; to regulate the conditions on and circumstances under which the right of persons to reside on land may be terminated; and to regulate the conditions and circumstances under which persons, whose right of residence has been terminated, may be evicted from land; and to provide for matters connected therewith
Database: Netlaw: SA Legislation

To provide for measures with State assistance to facilitate long-term security of land tenure; to regulate the conditions of residence on certain land; to regulate the conditions on and circumstances under which the right of persons to reside on land may be terminated; and to regulate the conditions and circumstances under which persons, whose right of residence has been terminated, may be evicted from land; and to provide for matters connected therewith.

WHEREAS many South Africans do not have secure tenure of their homes and the land which they use and are therefore vulnerable to unfair eviction;

WHEREAS unfair evictions lead to great hardship, conflict and social instability;

WHEREAS this situation is in part the result of past discriminatory laws and practices;

AND WHEREAS it is desirable - that the law should promote the achievement of long-term security of tenure for occupiers of land, where possible through the joint efforts of occupiers, land owners, and government bodies; that the law should extend the rights of occupiers, while giving due recognition to the rights, duties and legitimate interests of owners; that the law should regulate the eviction of vulnerable occupiers from land in a fair manner, while recognising the right of land owners to apply to court for an eviction order in appropriate circumstances; to ensure that occupiers are not further prejudiced;

A copy of the Act can be found here.

Sunday, September 21, 1997

Oliver Stone Doesn't Want to Start an Argument

Labor Day weekend couldn't have begun better for Oliver Stone. On the day of its premiere at the Telluride Film Festival in the Colorado mountains, ''U-Turn,'' his 13th film as a director, was reviewed glowingly by both Variety and The Hollywood Reporter. In Variety, Todd McCarthy wrote, ''Few, if any, directors with as many films under his belt as Stone has, are displaying this kind of stylistic urgency and restlessness, without the slightest speck of Hollywood complacency in evidence.''

The opening credits of ''U-Turn,'' which will be re-leased in early October, bill it as ''an Oliver Stone movie,'' as opposed to the weightier ''films'' of the last decade. After years of facing down attacks for his controversial subject matter, Stone has for once spun an old-fashioned yarn, entirely devoid of political or social agenda.

But few things ever go easily for Stone, and over the weekend, festivalgoers' responses to his vicious, star-studded, neo-noir black comedy set in the Arizona desert were decidedly mixed. Saturday afternoon, following a mostly deferential Q. and A. session between Stone and a group of college students, Salvador Litvak, a redheaded graduate of U.C.L.A.'s film program, approached the 50-year-old film maker privately.

''Did you all discuss the film among yourselves?'' Stone asked him. ''What did they think?''

''Well, to be frank,'' Litvak said, ''about half didn't like it. They're wondering: 'He's Oliver Stone. He can do anything he wants. And when he has that kind of opportunity, why does he do . . . this? Why isn't he making a righteous film?' '' After Litvak had gone, Stone sighed. ''I can't escape the image,'' he said. ''Because I'm 'Oliver Stone,' they expect a certain thing.''

Among the film directors who achieve fame enough for their names to register with the general public, Oliver Stone is the rarity who has escaped the bounds of his profession. A self-styled iconoclast, adventurer and revisionist historian, he has increasingly aspired over the years to the status of celebrity thinker, becoming a passionately contentious participant in public debate on the issues engaged by his films. But he has been so passionate, and so insistent, that the messenger has often overwhelmed the message, allowing his detractors to paint him as a crude, polemical celebrity ranter. Last winter, the initial critical acclaim that greeted ''The People vs. Larry Flynt'' -- which Stone produced but did not direct -- was quickly drowned out by vociferous denunciations from Gloria Steinem and others who objected to its sympathetic portrayal of the controversial Hustler publisher. The film subsequently sputtered at the box office, and its failure to earn an Oscar nomination for Best Picture was also seen as part of the backlash.

''The media make you into a god, and then they kill you,'' says Richard Rutowski, Stone's best friend and frequent collaborator. ''And Oliver has been experiencing a difficult death.''

In recognition of the easy target Stone has made of himself, mounted on a column in an open area of his offices is a large likeness of his face painted on a dartboard, a gift from an agent. ''They got me,'' Stone says. ''I feel like, as far as my career is concerned, I have to prove myself all over again. How do I show people that I'm not a cartoon?''

After the disappointing indifference of audiences to ''Nixon'' and ''Heaven and Earth,'' and the public-relations nightmare of ''Natural Born Killers,'' Stone, a three-time Academy Award winner who rarely seems to lack bluster or self-assurance, found himself at an uncertain crossroads. Studios were reluctant to bankroll politically volatile material like ''Memphis,'' a version of the Martin Luther King Jr. story that would question the guilt of James Earl Ray in King's assassination. When he chose to direct ''U-Turn,'' his co-producer, Dan Halsted, viewed it as a necessary move, explaining, ''I wanted Oliver to make a movie that wasn't going to be reviewed on the op-ed pages.''

Stone's work has always inspired strong responses. In 1991, when Pauline Kael retired as film critic for The New Yorker, she quipped, ''The prospect of having to sit through another Oliver Stone movie is too much.'' To this day, however, the film maker still clearly suffers most from the success of ''J.F.K.,'' whose enormous worldwide popularity served only to intensify the virulence of critics, pundits and historians who misconstrued or objected to his dramatic method, his heroic depiction of the New Orleans District Attorney Jim Garrison or the various paranoid solutions the film proposed to the Kennedy assassination. No film purporting to portray American history has been so much discussed, or reviled, since ''Birth of a Nation,'' D.W. Griffith's epic mash note to the Ku Klux Klan.

Stone's participation in the fray only made it worse. ''He didn't have to go everywhere screaming his head off that it was all true,'' notes Don Murphy, who produced ''Natural Born Killers.'' ''The film makes a really cogent argument that the official version of Kennedy's death is bull, and he should have just stopped there. But he wanted you to accept his version, which wasn't very cogent.'' A Hollywood executive who does not know Stone personally says: ''He's a genius director, but what's frustrating is, he's not a genius. His movies don't make arguments -- they spew. If he made half as many movies in the same amout of time, he would make great films for the ages.''

In one of the more striking coincidences of the art-life continuum, ''Nothing Sacred,'' a 1937 film written by Ben Hecht, features a bullheaded, hypersensitive newspaper editor named Oliver Stone. Asked to describe him, Fredric March, who plays his star reporter, says: ''He's like a cross between a Ferris wheel and a werewolf. But with a lovable streak -- if you care to blast for it.'' It is a characterization that until recently might just as easily have applied to the real Oliver Stone. Restlessly energetic, an inveterate partier and womanizer, capable of extraordinary charm and eloquence, Stone could also be unpleasantly confrontational, short-tempered and obstreperous. But the past year and a half has been a time of self-doubt and re-examination for Stone. His professional quandary and a mellower private life have led to an evident softening.

''The biggest internal movement I recognize,'' his friend Rutowski says, ''is humility. It's hard to see. He has a lot of crazy energy that comes from his imbalances. But he's tasted it.'' The birth of a daughter, Tara, by his Korean girlfriend, Chong Son Chong, while not pushing Stone to monogamy, has signaled a serious new personal commitment, as has his increasing involvement in Tibetan Buddhism. ''I'm readjusting the balances in my life,'' he says. ''I had a lot of demons, and they expressed themselves in the work. But there is a lightening of the load.''

Part of Stone's stock-taking includes the October publication, alongside the release of ''U-Turn,'' of ''A Child's Night Dream,'' a novel he wrote at age 19 between dropping out of Yale and enlisting to go to Vietnam. A stream-of-consciousness narrative that follows an alienated young man named ''Oliver'' from New York, across Asia and into Mexico, the book displays a rage and naive ambition that while disarmingly revealing will almost certainly expose the film maker to further derogation. Yet if Stone is frustrated by mainstream hostility to his desire to explore what he calls the ''dark side'' or ''shadow areas'' of life, he can usually count on a sympathetic reception from one group: in the absence of a meaningful contemporary counterculture, young people find his independent, antiestablishment stance uncommonly attractive.

At American University in Washington, undergraduates flock to a history course taught by Peter Kuznick titled ''Oliver Stone's America.'' (Garry Wills, who recently wrote an article in The Atlantic Monthly proclaiming Stone a 20th-century Dostoyevsky, offered a similar class at Northwestern.) Last fall, when Stone visited as a guest lecturer, he stood at the podium, black reading glasses pushed down on the bridge of his nose, projecting a relaxed, benevolent professorial authority. The lecture hall overflowed with excited students, including a cheerful sophomore named Kristen Young, who wore a tight, white T-shirt pulled up to expose her navel. The Vietnam War fascinates her, she said. Her father served in 1968 and came back a changed man. ''He can't really talk about it.''

Asked if she is swayed by any of the conspiratorial possibilities laid out in ''J.F.K.,'' she responded enthusiastically. ''Oh, yeah. It was L.B.J. L.B.J. didn't want to end the war. It was a power trip.''

When another student brought up the subject in the Q. and A. session, Stone made it clear that his film never claims that Johnson murdered Kennedy, reprising his litany on the artist's right to provocative ambiguity. ''You have a responsibility to read a book,'' he told the class. ''You're not going to sit through a three-hour movie and say, 'That's that.' I'm brainwashing the young? I don't have that agenda.''

In large part, what students respond to and what grown-ups distrust is Stone's sheer pyrotechnical virtuosity. As a film maker, Stone has evolved a powerful, kaleidoscopic style, deploying the textures of disparate film formats and stocks, mixing black-and-white with color, interjecting associative, or dissociative, imagery within a scene to shift back and forth between perspectives or to suddenly dissolve the boundary between sober exposition and grotesque expressionism.

Stone is eager to discuss the effect of form on content. ''I've always appreciated the dream state,'' he explains, ''and to be honest, I've questioned reality. Especially when you get to people like Nixon, or the J.F.K. murder. I'm all for facts, but there's so much dispute about the facts that the Kennedy murder to me borders on dream, or nightmare. And the nightmare state that took over the country traumatized it. Whatever they say, something happened that day. His head was blown off at high noon, I believe, for specific reasons.

''Anyway, that nightmare leads somehow to Vietnam and to Watergate and up into the Reagan era, and it really is almost like the dream state possessed the country. So, what do film makers do? We inhabit the dream state. And movies that are good are vivid dreams, in a sense. I never remember plot points. I always remember the mood of a movie and the feeling of a movie. And I suppose that in approaching it, in approaching reality as dream, I have offended certain literal-minded people. Because they think history exists with predetermined borders. I'm not so sure it does.''

In Hollywood, anyone whose films provoke the intense reactions that Stone's do is a valuable commodity. For all the fire he has drawn, Stone remains an incontrovertible A-list director in the eyes of the studios, and his turn away from politics has only whetted their hope that he will forsake his edgy material for their own, more commercial projects. Prior to shooting ''U-Turn,'' his friend the producer and director Lili Zanuck reports, he ''literally read everything in town.'' Dreamworks SKG, the new studio owned by Steven Spielberg, Jeffrey Katzenberg and David Geffen, offered him their inaugural movie, ''The Peacemaker,'' a political thriller, but Stone's ambivalence prevailed, and he turned it down. Lisa Moiselle, a producer who once worked in Stone's office, remembers him repeatedly warning his script readers and interns, ''Don't go Hollywood on me!'' But among the films he is now considering are a drama about life in the N.F.L. and, at the behest of Tom Cruise, who has wanted to work with Stone again since ''Born on the Fourth of July,'' a sequel to ''Mission Impossible,'' the ultimate in big-screen Hollywood entertainment.

''The major thing he's doing,'' theorizes Variety's editor in chief, Peter Bart, ''is he has to re-establish his credentials as someone who can make a more conventional, accessible, popular picture. You can't be thought of as a guy who's a one-trick pony. Many of us would love to see him sustain his momentum, and it is some concern to us -- we're rooting for him.''

In Telluride, Stone complained that the college students who felt let down by the lack of substance in ''U-Turn'' don't understand the degree of hostility and resistance he currently faces. ''I can't live for students,'' he said. ''They're too high-minded.'' They may be cheered to know, however, that no matter what genre Stone chooses to work in, he's never far from his obsessions. Discussing his concept for ''Mission Impossible,'' he describes it as ''a vehicle to say something about the state of corporate culture and technology and global politics in the 21st century. It's a big commercial picture, and Tom Cruise is a movie star, and in a sense, that gives me some camouflage. I can't always be out there leading with my chin.''

Blockbusters aside, it would be a mistake to think that Stone was making more than a temporary withdrawal from the overtly political. Among the projects in his development pipeline are several that are certain to raise hackles, including not only the Martin Luther King Jr. film but also scripts about the Operation Rescue founder Randall Terry and the Palestinian-Israeli conflict. ''The important thing is to feel you're going forward,'' Stone says, ''instead of into obfuscation, drunkenness, druggedness. There are examples of film makers who have taken downturns. I don't feel I've taken a downturn in the last 11 years.''

Last December, when I visited the set of ''U-Turn'' in Arizona, Stone seemed unusually composed, even in the amped-up milieu in which he prefers to shoot. Without the pressure of making a high-profile movie, Stone had decided to return to the guerrilla-style conditions under which he made his first films, trying to complete ''U-Turn'' in six weeks for approximately $20 million, or less than half the time and expense of his previous films. An impressive cast, including Sean Penn, Nick Nolte, Jennifer Lopez, Jon Voight, Clare Danes, Joaquin Phoenix and Billy Bob Thornton, was signed up for the ride.

On the dusty main street of Superior, a sleepy town stuck in the 50's, Stone was an inspiring commander, engaged and accessible, taking suggestions from cast and crew alike. The smaller scale did not impinge on the numerous camera setups required by Stone's fragmented style: rarely venturing beyond six or seven takes per setup, he still shot more than 25 times as much film as he used, a ratio more appropriate to a film with a schedule two or three times as long. Between setups, rather than retire to his trailer, he would stay to confer about further details or head down the street with an assistant director to plan the next one. Over the course of several hours on a sunny afternoon, he managed to cover a conversation between Sean Penn and Jon Voight from some 20 different angles.

Later, for a short hallucinatory sequence meant to emanate from Penn's subconscious, Penn wandered into town while, from the opposite direction, the grips ran at top speed, pushing a dolly bearing Robert Richardson, the cinematographer -- who was wielding a silent-era hand-cranked camera -- down almost the entire length of the bumpy street, careening wildly from side to side and sliding to a final stop just in front of Penn, who stared unblinkingly into the lens. The shot was repeated several times, and on each take Stone ran alongside the camera, urging them on, all the way down the street.

''In Tibetan Buddhism,'' according to Stone, ''they allow for wrathful deities -- they protect you from forces of destruction.'' Smiling, he continued: ''I'm working on that. Because I have a lot of people who just don't like me, who have never met me, who don't know me. They just sort of have an image of me. You want to be liked -- we all do -- you want to be loved as a person, and it doesn't happen that way, because you make certain films that you think are honest, but they really tick people off. And you pay the price in your life. Sometimes I walk into a restaurant or something, and I just feel a lot of the vibes coming out.''

The following night on the set, a Saturday, thinking his job done for the weekend, Penn's makeup man went AWOL, causing a nearly two-hour delay, while the second cameraman inadvertently overexposed the brief scene that Stone and Richardson had delegated to him. The director, however, maintained his calm, continuing without public outburst or interruption.

While it was still daylight, walking toward the storefront where the next scene was to be shot, Richardson gently mocked the new, user-friendly Oliver Stone. ''It's an old story, isn't it?'' he asked. ''Monster goes Zen. No explosions on the set, no one has anything bad to say.'' His eyes grew wide, and with exaggerated urgency he wondered, ''Where did the monster go?''

As Richardson finished speaking, Richard Rutowski's Jeep appeared in the intersection before us, skidding to a halt in a cloud of dust. And in one of those moments that all of a sudden seem charged with significance, Rutowski leaned out the window, accidentally offering an answer to the cinematographer's rhetorical query.

''Bob,'' he said, ''Bob.''

Richardson looked over at him.

''Some things,'' Rutowski intoned, ''never change.''

Later, they shot an easy setup, Richardson holding the camera on his shoulder, following Penn from behind as he walked down a side street. After the first take, Penn turned around and called back to Stone, ''Oliver, I'm not going to do this shot again unless you skip toward the camera with me.'' Stone laughed, but Penn wasn't kidding. With some cajoling, the director walked over to the actor, joined hands with him and, after a signal from Penn for Richardson to roll film, together they swung their arms forward, and, for a moment, two of Hollywood's most famously surly, enormously talented, easily misunderstood figures went skipping along the asphalt, smiling, to the delighted disbelief of the assembled crew.

Source: New York Times

Friday, July 25, 1997

Winner Named in Liberia

Charles Taylor was declared the victor today in Liberia's elections, completing his conversion from rebel leader to President. The elections, held last Saturday, ended a civil war that Mr. Taylor set off in December 1989.

Mr. Taylor promised at party headquarters: ''I will not be a wicked President. But I have no intention of being a weak President.''

Mr. Taylor and his National Patriotic Party won 75 percent of valid votes tabulated up to today. The Unity Party, led by Ellen Johnson-Sirleaf, was second, with 9.6 percent.

Source: New York Times

Thursday, July 24, 1997

Liberia's Ambiguous Election

Liberia's American-influenced past and its Nigerian-influenced present were both evident in Sunday's presidential elections. The overwhelming winner, Charles Taylor, studied in Massachusetts and was later jailed there for embezzlement at the request of a former Liberian Government. His closest rival, Ellen Johnson-Sirleaf, graduated from Harvard and later worked as a Citibank executive.

That is the American connection. Real power, however, remains in the hands of Victor Malu, the Nigerian general in charge of the West African force that imposed enough stability on Liberia for these elections to take place. If General Malu means what he says about staying in charge for the foreseeable future, the elections will turn out to be a victory for order, not democracy. An abrupt withdrawal of the West Africans could set off renewed fighting. But preparations for their departure must begin promptly.

Mr. Taylor's landslide victory requires explaining, since tens of thousands of Liberian families lost relatives to his undisciplined rebel troops during an eight-year civil war that took 150,000 lives. Further, despite a professed conversion to peace and democracy, Mr. Taylor has a well-deserved reputation for violence and indifference to human rights. His candidacy benefited from a widespread belief that only a warlord could stop the anarchy. Even some who suffered personally at the hands of his troops voted for him. His campaign war chest was swelled with captured booty, while the underfinanced Johnson-Sirleaf effort was late in starting. Finally, many Liberians felt that Mr. Taylor's rivals represented the discredited old American-Liberian elite that ran the country at the expense of the indigenous majority for more than a century.

Given Mr. Taylor's history, his performance must be carefully monitored by the international community. American assistance, for now, should be limited to privately distributed humanitarian aid and independently run police training programs. For his part, General Malu has earned gratitude from Liberians for finally halting the murderous conflict. But his statements belittling Mr. Taylor's authority suggest that he considers the elections a minor detail and that he is in no hurry to end the Nigerian-led occupation.

That would be a mistake. Liberia's people will not accept prolonged Nigerian tutelage. They have elected Mr. Taylor President in a free and fair election. He should be accountable to them, not a foreign general.

Source: New York Times

Wednesday, July 9, 1997

CHURCHES WERE USED TO OPPRESS BLACKS, SAYS AMNESTY APPLICANT

Churches were used as instruments of oppression by the white minority, one of four men seeking amnesty for the 1993 St James Church massacre told the Truth Commission's amnesty committee on Wednesday.

Bassie Mkhumbuzi was a member of the Azanian People's Liberation Army unit that killed 11 people and wounded 58 others in a automatic rifle and handgrenade attack on the church's congregants in Cape Town on July 25, 1993. "Whites used churches to oppress blacks. They took our country using churches and bibles. We know and we have read from books they are the ones who have taken the land from us," Mkhumbuzi said. Truth Commission lawyer Robin Brink said Mkumbuzi and his comrades perpetrated a "mindless barbarity" on defenceless people praying in a house of worship. Was it a revenge attack?" he asked Mkhumbuzi. "No," Mkhumbuzi replied, "we just wanted our land to be brought back to us, not because we were revenging the actions of the church."

Mkhumbuzi, who was 17 years old at the time of the incident, said he had not been told beforehand by unit leader Sichumiso Nonxuba that a church was the target. Nevertheless, "I felt that whites were using churches to oppress blacks". There was confusion at the start of Wednesday's amnesty hearing in Cape Town when it emerged that one of the amnesty applicants - former Apla operations director Letlapa Mphahele - had failed to turn up. The whereabouts of Mphahlele were not known, lawyer Norman Arendse told the amnesty committee chaired by Judge Hassen Mall. Arendse said he represented Mphahlele's co-applicants Mkhumbuzi, Thobela Mlambisa and Gcinikhaya Makoma. Makoma was found guilty on 11 counts of murder and 58 counts of attempted murder in March 1995 and sentenced to 23 years' imprisonment.

Mkhumbuzi, a member of the SA National Defence Force, and Mlambisa are on trial facing similar charges relating to the attack. "We don't know where he (Mphahlele) is," Arendse said. "He has not given us any instructions. We can't understand and we don't have any reasons why he is not here. We ask that his application be withdrawn at this stage." Ian Bremridge, the lawyer for two of the victims opposing the amnesty applications, said Mphahlele's absence could be problematic as the other applicants intended testifying that he ordered the attack. The applications are being opposed by Dawie Ackermann, whose wife was killed, Lorenzo Smith and Ukranian sailor Dmitry Makogon, who lost both legs and an arm in the incident. Mkhumbuzi said while he sought forgiveness from the victims, "we could not stop what was happening at the time". "We were fighting for our country and for democracy. It was difficult at the time to stop such incidents. The purpose of Apla at that time was to fight until the land was brought back to its owners." Bremridge: "Do you thing the attack achieved anything?" Mkhumbusi: "Yes. Today We are in this country. We are living together. We are not fighting together."

On the day of the attack he had remained in the getaway vehicle while Nonxuba - who was killed in a car accident last Novemmber - and Makoma entered the church armed with R4 rifles and M26 handgrenades, which he had fetched earlier from Apla high command in Umtata. "I was told that I would be the security, Mlambisa the driver. Nonxuba and Makoma were going inside. After they came out of the building, I was to use the petrol bombs to throw them inside. "I heard a grenade and gunshots and then saw a red car stopping in front of us, apparently to block us. "I got out of the car and threw a petrol bomb at the car and Mlambisa shot at the car causing it to speed away." He said it was only later that night, while watching a television broadcast by CNN, that he saw for the first time what had happened inside the church. Mlambisa testified later that he was an Apla unit commissar based in Transkei when he was ordered to travel to Cape Town to take part in the operation. He only realised the target was a church when the team drove up to the target in Kenilworth, Cape Town. "I deeply regret the loss of lives and causing so many people to be injured," he said.

Source: South African Press Association

Saturday, May 17, 1997

MOBUTU GIVES UP, LEAVING KINSHASA AND CEDING POWER

Ending nearly 32 years of rule in Africa's third-largest country, President Mobutu Sese Seko yielded power on Friday. He quietly slipped out of this besieged capital aboard a flight to his northern hometown, which diplomats described as a brief stopover en route to permanent exile. By early evening, there were unconfirmed reports here that Mr. Mobutu, 66, had already left his hometown, Gbadolite, presumably for Morocco, where the President maintains one of many luxurious palaces. Moroccan officials acknowledged that Mr. Mobutu's plane had been given landing rights, but would not confirm whether Mr. Mobutu was on his way there.

Mr. Mobutu's departure came as rebels who have fought a stunningly successful seven-month war against the Government drew within five miles of Kinshasa's international airport at the city's edge, Western diplomats said, and readied themselves to take over control of the capital. Mr. Mobutu, who had resisted entreaties to hand over power, finally did so after his top generals warned him in a series of nighttime meetings that they could neither defend him or the city of Kinshasa any longer.

Diplomats said on Friday that Zaire's generals were trying to make contact with leaders of the rebellion to arrange their peaceful entry into the city so as to avoid destructive fighting or a repeat of the devastating pillaging the capital has already seen twice this decade. Late Friday, however, reports reached here from the de facto rebel capital, Lubumbashi, that the rebel foreign minister, Bizima Karaha, had demanded the unconditional surrender of Zaire's military before hostilities are called off. In the first possible sign of an unraveling of the remnants of Zaire's Army, Zairian security officials reported Friday night that Gen. Mahele Lioko, the Deputy Prime Minister and Chief of Staff, had been killed by officers opposed to talks with the rebels. Diplomats said they could only confirm that General Mahele had been detained at a military camp at the edge of town, where gunfire was heard Friday evening.

Zairian security officers said that on hearing the news, the Prime Minister, Gen. Likulia Bolongo, took refuge in the French Embassy. Late Friday evening, General Likulia's family was seen arriving at the Inter-Continental Hotel. Early this morning, a Western military analyst said that a rebel company traveling along the railroad tracks had entered central Kinshasa. ''Things are coming to a climax very quickly,'' he said. ''The situation is very dangerous now, but I expect it will all be over shortly.'' Mr. Mobutu delivered no message to a nation he has dominated almost since independence from Belgium in 1960. Instead, the first word that people here heard of the news came in foreign radio broadcasts.

Reading a Government statement before a hastily gathered assembly of journalists in Kinshasa on Friday afternoon, the Information Minister, Kin Kiey Mulumba, said that Mr. Mobutu acknowledged that negotiations with the rebels had failed. As a result, he said, the President had ''ceased to intervene in the conduct of the affairs of state.'' Mr. Mulumba said that Mr. Mobutu had not formally resigned from office and could not directly hand over power to the rebel leader, Laurent Kabila, because the country's laws forbade such a transition. People close to Mr. Mobutu said that the deliberate ambiguity allowed a famously vainglorious leader to depart believing that he had fulfilled an oft-repeated vow that he would never be known as the former President, but only as the late President. Given the advanced prostate cancer that has visibly weakened him in recent weeks, many foreign diplomats say that they expect Mr. Mobutu's health will soon fail him.

Mr. Mulumba added that the Government would continue discussions with the rebels over new political arrangements for the country, and said that the Constitution empowered the newly elected head of the National Assembly, Archbishop Laurent Monsengwo, to lead future negotiations. Even as Mr. Mobutu sought to put a good face on his departure, his army commanders made it clear Friday that they had no intention of fighting the rebels any longer. 'It is not military means that we lack,'' said a Defense Ministry official. ''But General Mahele does not want to sacrifice a whole people because of a battle for the power of a single man. That's finished.'' Besides being Chief of Staff and Deputy Prime Minister, General Mahele also served as Defense Minister. He was one of three top officers, including the Prime Minister, General Likulia , who visited Mr. Mobutu on Thursday evening to inform him that they could no longer defend the city or protect him. Western diplomats said the officers, also including Gen. Nzimbi Ngbale, the commander of Mr. Mobutu's feared Presidential Guard, then urged the President to leave the country. Zairian security sources said Friday night that General Nzimbi had crossed the Congo River to the Republic of Congo.

A member of Mr. Mobutu's entourage said the President sent the three generals away in fury when they first approached him about ending the war effort and leaving the country. A second meeting was held at midnight, this associate of the President said. Mr. Mobutu then said he needed time to reflect. At 4 A.M. Friday, Mr. Mobutu again summoned his generals and told them of his decision to leave the country. ''He left Kinshasa a very angry man,'' the presidential associate said. ''A man who could still not believe it was all over, and felt abandoned.'' On Friday, Western diplomats said that Zaire's top generals had already begun to make contact with the rebellion and were preparing ''to open the city'' to Mr. Kabila's forces.

News of Mr. Mobutu's departure spread slowly in Kinshasa on Friday, and for the most part life in the capital was virtually normal through most of the day. By late afternoon, however, there were isolated reports of soldiers firing off their weapons, intimidating people and stealing vehicles. In many districts of this city of five million people, neighborhood welcoming committees freely rehearsed songs and put the finishing touches on banners to greet the rebels. Meanwhile, the elite that had sprouted around Mr. Mobutu made haste to the exits. All day, private speedboats carrying the rich and until now powerful jetted across the Congo River to Brazzaville, the capital of Congo. Many carried with them whatever precious possessions they could, anticipating they may never return.

The end of Mr. Mobutu's rule opened a period of deep uncertainty for Zaire, first in a transition period that will now begin, and eventually, it is almost universally assumed here, under the rule of Mr. Kabila. Mr. Kabila has proved himself a deft political operator who succeeded in riding a localized ethnic rebellion in the country's eastern border region all the way to national power, but little is known of his intentions or abilities as a head of state. Diplomats who have met him recently say that the 56-year-old rebel leader, who has fought against Mr. Mobutu intermittently since the country's early independence period, speaks almost nostalgically of the kind of collectivized agricultural ventures and huge state projects that were in vogue in his Marxist youth.

More troubling, Western diplomats say, has been Mr. Kabila's human-rights record at the head of rebel forces that massacred Rwandan Hutu refugees. Similarly, Mr. Kabila has made a long string of contradictory public statements about the future of democracy in Zaire, ranging from warnings that opposition parties will be suspended to pledges that a consensus government will be formed with other anti-Mobutu parties. ''Kabila is like a jack-in-the-box on the question of democracy and elections,'' said a senior Western diplomat here. ''Now that he has arrived, we are all waiting to see which Kabila is going to pop out.'' The form that future negotiations with the rebels will take is equally in doubt. Mr. Kabila has repeatedly said that he will not accord any role to Archbishop Monsengwo, the head of the National Assembly, and will refuse to work with any politicians who have been allies of Mr. Mobutu.

Before the South African-led talks between Mr. Mobutu and Mr. Kabila broke down, diplomats had hoped to get both sides to accept a South African proposal for the formation of a new Government, led by Mr. Kabila, but allowing for broad representation of other political parties. Mr. Mobutu's quiet departure reflected the pain of a man who since early adulthood has known little but undisputed rule. Some diplomats and members of the President's entourage said that in recent weeks the Zairian leader had been angling for a ''dignified way'' out of power that would avoid the humiliation Mr. Kabila has publicly thirsted to give his enemy of three decades. The idea of an exit with dignity was tarnished by the news on Friday that a Swiss court had already placed a lien on one of the President's mansions, in Savigny, after a request by the public prosecutor of the rebel-held city of Lubumbashi.

Mr. Mobutu escaped Zaire with his family intact -- his wife, her twin sister, who is also his concubine, and their children -- but for the remainder of his life he will almost certainly be hounded by efforts by Zaire and private creditors to reclaim whatever is left of the estimated $5 billion fortune that he once accumulated. With help from neighboring countries, the insurgency of Laurent Kabila took only seven months to seize control of virtually the entire country and oust the longtime Zairian dictator, Mobutu Sese Seko.

Timeline

Dec. 4, 1996 A month after the town of Goma became the rebels' first significant conquest, the area of rebel control has spread to other towns along Zaire's eastern border.

March 15, 1997 Kisangani, a key city at the head of navigation on the Congo River, falls to the rebels. Tens of thousands of Rwandan Hutu refugees are captured by the rebels, many of whom have scores to settle with the refugees. April 9, 1997 The rebels capture Lubumbashi, the country's second city, consolidating their control over Zaire's diamond, cobalt and copper mines. The Mobutu Government is deprived of its major source of income.

May 7, 1997 Driving toward Kinshasa, the rebel offensive takes Kenge, 120 miles from the capital. Thoughout the campaign, Government forces put up little resistance, fleeing rather than fighting.

May 16, 1997 With rebel forces in control of the entire country except for Kinshasa and Mobutu's hometown, Gbadolite, Mobutu flees the capital and gives up power.

Source: New York Times

Tuesday, February 4, 1997

CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA

The Constitutional Court was established in 1994 by South Africa's first democratic constitution - the interim constitution of 1993. The Court, the key institution of our constitutional democracy, continues to function under the final Constitution of 1996.

There have been sixteen amendments to the Constitution of 1996. A copy can be found here.

Source: Constitutional Court of South Africa

CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996

The purpose of the CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA ACT is to introduce a new Constitution for the Republic of South Africa and to provide for matters incidental thereto.

Preamble

We, the people of South Africa,
  • Recognise the injustices of our past;
  • Honour those who suffered for justice and freedom in our land;
  • Respect those who have worked to build and develop our country; and
  • Believe that South Africa belongs to all who live in it, united in our diversity.

We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to -
  • Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
  • Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
  • Improve the quality of life of all citizens and free the potential of each person; and
  • Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.

May God protect our people.
Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.

Source: SABINET

Wednesday, November 20, 1996

SPECIAL INVESTIGATING UNITS AND SPECIAL TRIBUNALS

SPECIAL INVESTIGATING UNITS AND SPECIAL TRIBUNALS ACT 74 OF 1996
Commencement Date of Act: 20 November 1996
Date Modified by Sabinet: 20060111
Category: Procedures - Courts
Note: Act amended by Judicial Matters Amendment Act 22 of 2005 with effect from 11 January 2006
Description: To provide for the establishment of Special Investigating Units for the purpose of investigating serious malpractices or maladministration in connection with the administration of State institutions, State assets and public money as well as any conduct which may seriously harm the interests of the public, and for the establishment of Special Tribunals so as to adjudicate upon civil matters emanating from investigations by Special Investigating Units; and to provide for matters incidental thereto.
Database: Netlaw: SA Legislation

A copy of the legislation can be found here, on the SIU website, but this excludes amendments after 28 April 2004. The copy on the SIU website has been amended by the Judicial Matters Amendment Act 22 of 2005, with effect from 11 January 2006.

Source: Sabinet, SIU, www.info.gov.za

Tuesday, October 29, 1996

DE KOCK TRIAL TO CONCLUDE ON WEDNESDAY

The 19-month trial of former Vlakplaas security police base commander Colonel Eugene de Kock will draw to a conclusion on Wednesday when sentence will finally be passed. De Kock has been convicted on 89 charges, including six of murder, two of conspiracy to commit murder and several of fraud and the illegal possession of arms and ammunition

The murder charges relate to the deaths of five would-be robbers in an ambush outside Nelspruit in 1992 and the murder of askari Goodwill Sikhakhane, who was killed near Greytown in 1991 on de Kock's orders to prevent him from revealing police involvement in the disappearance of ANC members who were part of Operation Vula.

De Kock was also convicted of conspiring to murder Vlakplaas colleague Brian Ngqulunga and Krugersdorp security guard Japie Maponya, as well as attempting to murder self-confessed police hitsquad leader Dirk Coetzee and the culpable homicide of ANC attorney Bheki Mhlangeni, who was killed by a parcel bomb meant for Coetzee.

De Kock, who has said he will ask the Truth and Reconciliation Commission for amnesty after the conclusion of his trial, in mitigating evidence named several high-ranking politicians and policemen as the men who gave him orders to kill. He also said police spy Craig Williamson was involved in the assassination of Swedish prime minister Olof Palme, and that former president P W Botha knew about the bombing of Cosatu House as well as 1985 cross-border raids into Lesotho and Botswana.

The State asked Mr Justice Willie van der Merwe to send de Kock to jail for longer than 100 years, saying he had no remorse and that even if he suffered from post traumatic stress, it played no role whatsoever in his crimes. The State also argued that politics had nothing to do with the trial, which it said was all about common criminal deeds.

De Kock's defence attempted to place his actions against a background of an all-out fight against what he believed were his enemies, namely the SACP, ANC and PAC. It was argued that the impression could easily be created that de Kock was being used as an example, and that the State was making a scapegoat of him while other former security policemen, "who were just as guilty as him", were going free, and were even being given high posts with huge salaries within the police service.

Source: SAPA

Sunday, October 13, 1996

Jerusalem: a symbol of peace: a point of light

Jerusalem, the old holy city, is above sovereignty. It belongs to all the descendants of the Children of AbrahamMuslims, Jews and Christians. It must become a symbol of peace, the essence of peace, between all of us. A point of light for the whole world. This does not make it possible for any one side to unilaterally disturb the status quo until there is agreement all around.

Hussein bin Talal

Source: The Royal Hashemite Court

Thursday, September 12, 1996

Islamic Rebels Capture A Strategic Afghan City

Islamic rebels known as the Taliban captured the eastern city of Jalalabad today, gaining virtual control of nearly two-thirds of Afghanistan and sending Government troops retreating to Kabul, the capital.

At least 70 people were reported killed in the attack, but that figure could not be confirmed.

The capture of Jalalabad gives the Taliban control over a major ground route for supplies to Kabul from Pakistan and puts increased pressure on the ruling coalition of President Burhanuddin Rabbani, who has accused Pakistan of aiding the rebels.

The Taliban are the most conservative of the Islamic factions that have fought for control here since the communists lost power in 1992, and they have imposed strict religious rule in areas they control.

Source: New York Times

Thursday, June 20, 1996

Forced labour in Myanmar (Burma)

By a letter dated 20 June 1996 addressed to the Director-General of the ILO, 25 Workers' delegates to the 83rd Session of the International Labour Conference (June 1996) presented a complaint under article 26 of the Constitution against the Government of Myanmar for non-observance of the Forced Labour Convention, 1930 (No. 29), which it ratified on 4 March 1955 and which came into force for Myanmar on 4 March 1956. The complaint stated, in particular, that:

Myanmar's gross violations of the Convention [No. 29] have been criticized by the ILO's supervisory bodies for 30 years. In 1995, and again in 1996, they have been the subject of special paragraphs in the reports of the Committee on the Application of Conventions and Recommendations, and this year, the Government has also been singled out by the Committee for its "continued failure to implement" the Convention.

In addition, in November 1994, the Governing Body adopted the report of the Committee it had established to examine the representation made by the International Confederation of Free Trade Unions [ICFTU] against the Government of Myanmar for its failure to ensure effective observance of Convention No. 29.

The Government has demonstrated its unwillingness to act upon the repeated calls addressed to it by the ILO's supervisory bodies to abolish and cancel legislation which allows for the use of forced labour and to ensure that forced labour is eliminated in practice. In these circumstances, the Committee on Applications has again expressed deep concern at the systematic recourse to forced labour in Myanmar.

Despite its protestations that the powers available under the offending legislation, the Village Act (1908) and the Towns Act (1907), have fallen into disuse since 1967 and that these laws are currently under review with a view to their repeal, the Government has failed conspicuously to provide the information requested of it concerning concrete action for legislative change.

Indeed, it is clear that the practice of forced labour is becoming more widespread and that the authorities in Myanmar are directly responsible for its increasing use, and actively involved in its exploitation.

The ICFTU representation presented under article 24 of the Constitution in January 1993 addressed the particular case of the forced recruitment and abuse of porters by the military which was, at that time, the primary cause of concern.

Since then, however, forced labour is being used systematically, on an ever larger scale, and in an increasing number of areas of activity. Large numbers of forced labourers are now working on railway, road, construction, and other infrastructure projects, many of which are related to the Government's efforts to promote tourism in Myanmar. In addition the military is engaged in the confiscation of land from villagers who are then forced to cultivate it to the benefit of the military appropriators.

The current situation is that the Government of Myanmar, far from acting to end the practice of forced labour, is engaged actively in its promotion, so that it is today an endemic abuse affecting hundreds of thousands of workers who are subjected to the most extreme forms of exploitation, which all too frequently leads to loss of life.

Source: International Labour Organisation (ILO)

Saturday, May 11, 1996

Ivory Coast Bars Ship With 4,000 Liberians

Ivory Coast officials ordered a ship carrying 4,000 Liberian refugees back to open waters today despite concerns that the ship might not be seaworthy, a spokeswoman for the United Nations High Commissioner for Refugees said.

She added that Ivory Coast officials forced most of the women and children who had been taken from the ship for medical care and food to get back on board. Government officials in the Ivory Coast, which officials of aid organizations say has been flooded with 350,000 Liberian refugees, have repeatedly declined to comment on the decision regarding the ship.

On Sunday panicky Liberians fleeing a month of fighting in their capital, Monrovia, packed the ship, the Bulk Challenge, a Ghana-bound freighter. Port officials said no more than 1,000 people should have been on board, although the ship's owner, who was aboard, has not been reached to confirm that assessment. The Bulk Challenge limped into San Pedro in western Ivory Coast on Monday. Some repairs were made on Thursday, but it was unclear whether the vessel was seaworthy when it set sail later that day.

Source: New York Times

Friday, May 3, 1996

Militia Leader Leaves Liberia Under Siege

The leader of a powerful militia was airlifted out of Monrovia today to attend peace talks next week in Ghana aimed at ending Liberia's six-year civil war, diplomatic and military officials said. A United States diplomat, speaking on condition of anonymity, said the militia leader, Roosevelt Johnson, left Monrovia today.

A high-ranking official with the West African peacekeepers here said the troops had slipped Mr. Johnson out of a besieged army barracks, the Barclay Training Center, in a convoy of tanks and armored vehicles and put him on a helicopter to Freetown, Sierra Leone, en route to Ghana.

The United States bolstered its forces at the Embassy to 290 marines, from 230, and three United States warships carrying 2,000 more marines moved within three miles of the coast for the third straight day. The United States Ambassador, William Milam; a United Nations envoy, Anthony Nyakyi, and leaders of the West African peacekeepers said Mr. Johnson had agreed to a cease-fire late Thursday. But by this morning, negotiators had not been able to reach his rival, Charles Taylor, who had insisted that Mr. Johnson surrender before fighting stops.

The standoff between Mr. Taylor and Mr. Johnson ignited the latest fighting, which began April 6.

Source: New York Times

Wednesday, May 1, 1996

RAGS OF MORTALITY: ORIGINAL SIN AND HUMAN NATURE

by Archpriest Alexander Golubov, Ph.D.

Behold, I am now captive to death because of unlawful counsel.
And I who was for a time robed with the glory of immortality
have become like one dead, wrapped pitifully in the rags of mortality
--Matins of Meatfare Sunday, Einos, Tone 5

Our annual spiritual journey into Great Lent, and especially into Passion Week, when we commemorate the betrayal, crucifixion, death and burial of our Lord and Saviour, Jesus Christ, followed by the celebration of His glorious Resurrection on the third day, offers us, again and again, the opportunity to ponder the mysteries of the Incarnation of the Son of God and His Redemption of the fallen human race. Inextricably tied in with this, of course, is the mystery of human life lived in the context of the terrible realities of sin, suffering and death, which none of us are capable of escaping except for what the Lord has accomplished for us, through His Cross and Resurrection.

It was St. Paul who first connected the events surrounding the temptation and fall of Adam in Paradise, as recounted in Genesis 3, to the events surrounding the Crucifixion and Resurrection of Christ in Jerusalem, and established between them a logical and direct inner relationship. To his mind, Adam's transgression in Paradise became the doorway through which sin and death entered into the world: "sin came into the world through one man, and death through sin, and so death spread to all men for all have sinned" (Rom. 5:12).

Commenting on this and related passages, St. John Chrysostom explains: "But what does it mean, 'for all have sinned' (Rom. 5.12) This: he having once fallen, yet they that had not eaten of the tree inherited mortality ... From this it is clear that it was not Adam's sin, his transgression — that is of the Law — but by the virtue of his disobedience that all have been marred. What is the proof of this? The fact that even before the Law all died: 'for death reigned,' St. Paul says, 'from Adam to Moses, even over them who had not sinned' (Rom 5:14). How did it 'reign'? After the manner of Adam's transgression, he who is 'the type of Him that was to come.' Thus, when the Jews ask, how was it possible for one Person to have saved the world? you will be able to reply, in the same way that the disobedience of one person, Adam, brought its condemnation" (Commentary on Romans, X).

Explaining Christ's redemptive role, St. Paul recapitulated this thought in his first Epistle to the Corinthians, where he proclaimed: "For since by man came death, by man came also the resurrection from the dead. For as in Adam all die, even so in Christ shall all be made alive" (1 Cor. 15:21-22).

Following St. Paul, the Holy Fathers teach that the state of general sinfulness and death is not man's original state of being, that man was not created by God to naturally live like this. Rather, this miserable condition in which we now find ourselves is the natural result of the moral disaster that occurred in Paradise with our ancient forefathers, Adam and Eve. The human race, writes St. Justin Martyr, "from the time of Adam had been subject to death and deceit of the serpent, each of us having committed sins of our own" (Dialogue with Trypho, 88). "When [Adam] transgressed the Commandment of God," teaches St. Methodius of Olympus, "he suffered the terrible and destructive fall. He was reduced to a state of death" (Banquet of the Virgins, III).

Before their fall in Paradise, however, writes St. Athanasius of Alexandria, our forefathers "did not die and did not decay, escaped death and corruption. The presence of the Word with them shielded them from natural corruption, as also the Book of Wisdom says, God created man for incorruption and as an image of His own eternity; but by the envy of the devil death entered into the world (Wis. 2:23f.) When this happened, men began to die, and corruption spread unchecked among them and held sway over men to more than a natural degree, because it was the penalty concerning which God had forewarned would be the reward of transgressing the commandment" (On the Incarnation of the Word).

Thus, according to the Fathers, our present condition is the result of a freely-willed choice, the natural consequences of the disobedience of Adam and Eve, the penalty for failure to heed God's warning that death, indeed, will be the catastrophic outcome of eating the fruit of the tree of knowledge of good and evil. It might occur to some, however, that it is exceedingly cruel of God to condemn the entire human race for the sin of two individuals. Why, indeed, should we, who were not around at the time of Adam's transgression, have to pay the rather stiff penalty for something that we did not, of ourselves, do? Isn't this guilt by association?

The source of this moral problem is not God, of course, as the author of evil and death, for God is not such. "We must understand," writes St. Gregory Palamas, "that God 'did not make death' (Wisdom 1:13), whether of the body or of the soul. For when He first gave the command, He did not say, 'On the day you eat of it, die,' but 'In the day you eat of it, you will surely die' (Gen. 2:17). He did not say afterwards, 'return now to the earth,' but 'you shall return' (Gen. 3:19), foretelling in this way what would come to pass" (One Hundred Fifty Chapters). Neither is the source, explains St. Theophilos of Antioch, the tree of knowledge of good and evil. For it is not, he writes, "as if any evil existed in the tree of knowledge, but from the fact of his disobedience did man draw, as from a fountain, labor, grief and, at last, fell prey to death" (To Autolycus, II, 25).

The problem, rather, has to do with the nature of Divinely-mandated freedom and the autonomous functioning of the natural law of creation, directly pertaining to issues of heredity and genetics, being analogous to something which contemporary medicine would define as "fetal addiction syndrome" or "fetal AIDS syndrome." In such a case, a mother who carries a gene for hemophilia, for instance, will transmit it to her offspring by the biological laws of heredity, though the processes of meiosis and mitosis, by means of which cell division naturally occurs. Or, in a similar way, a mother addicted to either drugs or alcohol, or who is HIV-positive, by virtue of the fact that from the moment of conception she shares with the child in her womb both blood and other bodily fluids, will naturally transmit to her child what she herself carries in her own blood. We easily understand that in this case, the child that is in the womb of the mother, will, of course, without any movement of the will, without agreement or disagreement with the particular moral choices of the mother, and, importantly, without any guilt on his part, participate in the affliction of the mother ("Behold, I was brought forth in iniquity, and in sin did my mother conceive me," Ps. 50[51].5). It is in this vein, indeed, that the Fathers explain the concept of what has become known in theology as "original sin."

St. Cyril of Alexandria, for instance, observes: "Since [Adam] produced children after falling into this state, we, his descendants, are corruptible as the issue of a corruptible source. It is in this sense that we are heirs of Adam's curse. Not that we are punished for having disobeyed God's commandment along with him, but that he became mortal and the curse of mortality was transmitted to his seed after him, offspring born of a mortal source ... So corruption and death are the universal inheritance of Adam's transgression" (Doctrinal questions and answers, 6). Elsewhere, commenting on St. Paul's teaching, he explains: "Human nature became sick with sin. Because of the disobedience of one (that is, of Adam), the many became sinners; not because they transgressed together with Adam (for they were not there) but because they are of his nature, which entered under the dominion of sin ... Human nature became ill and subject to corruption through the transgression of Adam, thus penetrating man's very passions" (On Romans 5.18).

Summarizing this patristic teaching, the Greek theologian John Karmiris writes that "the sin of the first man, together with all of its consequences and penalties, is transferred by means of natural heredity to the entire human race. Since every human being is a descendant of the first man, 'no one of us is free from the spot of sin, even if he should manage to live a completely sinless day.' ... Original Sin not only constitutes 'an accident' of the soul; but its results, together with its penalties, are transplanted by natural heredity to the generations to come ... And thus, from the one historical event of the first sin of the first-born man, came the present situation of sin being imparted, together with all of the consequences thereof, to all natural descendants of Adam."[1]

Held, in general, as Orthodox teaching by both Eastern and Western Fathers, the theological concept, or doctrine, of "original sin," as the Russian theologian Fr. Michael Pomazansky points out, "has great significance in the Christian world-view, because upon it rests a whole series of other dogmas."[2] As a distinct concept of Christian theology, however, it was first defined and introduced in the fifth century by Blessed Augustine, Bishop of Hippo Regius in Northern Africa.

Blessed Augustine developed his doctrine in the context of a rather hot polemical confrontation with the heretic Pelagius, who, fleeing Rome after its sack in 410 by Alaric, chieftain of the Western Goths, had the misfortune, together with some of his followers, to settle in Africa, where his preaching came under the intense scrutiny of the bishop of Hippo. Pelagius, who was not a theologian, but essentially an itinerant ascetic preacher and moralist, whose chief interest was in correcting the moral laxity of contemporary Christians, had the further misfortune of permitting a local lawyer named Coelestius, who was seeking ordination to the priesthood, to become his disciple and interpreter of his views. In the view of the Pelagians, the low level of morality and rampant moral laxity had its source not only in what they saw as the denial of individual moral responsibility in the teaching about the consequences of Adam's sin, but also in the definition of the clergy as an elite group in the church, which in their eyes permitted the laity to abjure their moral responsibilities and adopt unacceptably low standards of Christian living. Some time later, after Pelagius had already left for Palestine (where he had yet the further misfortune of running afoul of the hot-tempered Blessed Jerome, translator of the Bible into Latin), Coelestius and his followers began preaching and explicating the views of their teacher, and in the process questioned the practice of infant baptism, the efficacy of the Incarnation and redemptive death of Christ on the cross, and denied the inheritance of Adam's sin. While man does indeed follow Adam into death, they taught, man sins only by example, through imitation of Adam, not through an endemic, hereditary defect of his nature. Despite the facts of sin and death, man's nature nonetheless remains as he was originally created, innocent and pure, as was first-created Adam himself. Disease and death are thus not consequences of original sin, but are characteristic of human nature from creation.

Blessed Augustine very correctly noted the dangerous implications of this argument for Orthodox theology. The total dismissal of the concept of an original, systemic sin inherited from Adam and present in human nature by virtue of genetic heritage results not only in an overly high valuation of man's physical and spiritual capabilities apart from God, but more importantly, perhaps, places in doubt the entire economy of our salvation by Christ, by obviating such essential Christian doctrines as the Incarnation and Redemption.

It should be remembered that the Pelagian controversy, which originally sparked the theological debate, was essentially a Western, more specifically, a Northern African controversy, which only incidentally involved Palestine and the East.[3] While Pelagius himself died in obscurity some years after his condemnation by the Council of Carthage in 416 and the Local African Council of 418, and before the Council of Ephesus in 431, the theological controversy to which he involuntarily lent his name was to involve quite a few Latin Fathers, and was to have far-reaching effects on the formulation of doctrines of sin and grace, free will and predestination. Thus, the theological debate that arose out of these issues eventually was to involve, directly or indirectly, not only Blessed Augustine and Blessed Jerome, but also Augustine's disciples Caesarius of Arles and Prosper of Aquitaine, as well as John Cassian, Vincent of Lerins, Gennadius of Marseilles, Faustus of Riez, and Arnobius the Younger, not to mention the later "augustinians"[4] and scholastics, and eventually the Protestant Reformers as well.

Technically speaking, in their writings the Eastern Fathers and Orthodox theologians do not use the Latin term introduced by Blessed Augustine in his treatise "De Peccato originali," but instead translate this concept by means of two cognate terms in both Greek and Russian, namely, progoniki amartia (= pervorodnyi grekh in Russian) and to propatorikon amartima (= praroditel'skii grekh), which is properly translated "ancestral sin." These terms allow for a more careful nuancing of the various implications contained in the one Latin term.

In the East, then, the concept of original sin has come to mean, as Fr. Michael Pomazansky very succinctly defines it, "the sin of Adam, which was transmitted to his descendants and weighs upon them."[5] Or, as John Karmiris puts it in an expanded definition, original sin is "'sin-sickness,' the sinful situation of human nature which deprived man of Divine Grace, and subjected him to death, to departure from the Divine life, [and] has been transmitted by means of natural heredity to all of the descendants of the first-born, along with the stigma, the consequences, the fruits of that Original Sin."[6] Indeed, Karmiris reminds us, "it was for this reason that the ancient Church instituted the Baptism of infants, specifically that they might be freed from the stigma of sin of their ancestors, although the infants possessed no guilt of 'actual sin.'"[7]

In the West, however, the concept of original sin is tied up with and all too often even confused with an equally Western concept of "original guilt." The misconceptions resulting from this Western theological ambivalence are daunting, obscuring, as they do, the divine potential in man. It is, in fact, the particular assumptions about guilt and punishment, about human nature in general, as well as the specific mode of transmission of original sin from generation to generation[8] that constitute the historical and theological differences in interpretations of the doctrine of original sin. We can see two different, perhaps even opposing, trends develop with respect to these assumptions.

St. Anastasius of Sinai, for example, argues: "you must examine how the first-born, our father, transposed upon us his transgression. He heard that 'dust thou art and unto dust shalt thou return'; and his incorruption was changed into corruption, he became subject to the bondage of death. Since Adam fathered children only after his Fall, we become heirs of his corruption. We are not punished for his disobedience to the Divine Law. Rather, Adam being mortal, sin entered into his very seed. We receive mortality from him ... The general punishment of Adam for his transgression is corruption and death" (Questions and Answers on Various Chapters, 143). Likewise, defending the issue of infant baptisms, St. Cyprian of Carthage also maintains that since "no one is precluded from baptism and grace, ... [so] ought not an infant be forbidden, who, being newly born, has in no way sinned, but only having contracted the contagion of death" (Letter to Fidus, LVIII, 2). Blessed Augustine, on the other hand, writing of those predestined by God, as he believed, to eternal death, holds that "they are punished not on account of the sins which they add by the indulgence of their own will, but on account of the original sin, even if, as in the case of infants, they had added nothing to that original sin" (On the Soul and its Origin, IV, 16).

The Western temptation to define the doctrine of original sin too precisely has historically led to overstatements and exaggerations on both sides of the issue, of both definition and reaction. Because they framed their arguments in the context of and in response to the Pelagian position, Blessed Augustine and his disciples tended to exaggerate the sinfulness and depravity of human nature, and their teaching thus tends to emphasize the "punitive aspect" of the consequences of the fall, leading also to exaggeration and overstatement on the question of free will. Interestingly enough, both extreme tendencies in Western interpretation can be seen to be rooted in the writings of Bl. Augustine: first, that man suffers death because he is guilty for the sin of Adam, and second, that the nature of man is so corrupt as to render man incapable of exercising free will in the work of salvation (the doctrine of predestination).

Historically, these two extreme Western tendencies have themselves developed in two variants: Roman Catholic and Protestant. The Roman Catholic position, as defined by augustinian scholastics, sees original sin essentially in terms of the wrath of God directed at man for his guilt in disobedient submission of the spiritual principle to the fleshly principle. This is an offense against God which results in the loss of "supernatural" grace and demands expiation, or "satisfaction," by the shedding of blood, in accordance with the medieval chivalry code of feudal knights. This position tends to reject the efficacy of free will on the part of man in choosing and working for his own salvation, and obscures the fact that within original sin are contained also sins of the spiritual order, not only those of the flesh.[9]

The Protestant reformation, in reaction to the extremes of Roman Catholic interpretation, has itself engendered two opposing views. On the one hand, in varying degrees, it amplifies the teaching of Bl. Augustine on predestination, postulating a complete perversion of human nature and corruption to its very foundations (Calvin is more severe in this regard, Luther less so). On the other hand, in certain contemporary Protestant sects we see, once again, a complete denial of original, inherited sin, that is to say, a return to Pelagianism.

In juxtaposition with the view that is prevalent in the Western Christian tradition, Orthodox fathers and theologians are perhaps more circumspect in not "dotting the i's," as it were, in relation to things that we cannot possibly know about the specific nature of Adam's sin. Thus, instead of discussing or stressing the many possible secondary and fleshly aspects of original sin, the Orthodox prefer to see it primarily in spiritual terms, as being rooted in spiritual pride and disobedience. "The Original Sin," writes Karmiris, "was a free transgression of our First Parents which grew out of egoism and boasting. Thus, through the envy and influence of Satan, directed against our First Parents, 'the sin and transgression entered,' and our First Parents transgressed the Law of God, motivated by a desire to be equal with God, or, as Chrysostom says, the 'anticipation to become God'; man wanted to become independent from God, finding, by means of sin, divine knowledge, blessedness, and perfection."[10]

In a similar vein, Fr. Michael Pomazansky observes:

The eating of the fruit was only the beginning of moral deviation, the first push; but it was so poisonous and ruinous that it was already impossible to return to the previous sanctity and righteousness; on the contrary, there was revealed an inclination to travel farther on the path of apostasy from God. Blessed Augustine says: 'Here was pride, because man desired to be more under his own authority than under God's; and a mockery of what is holy, because he did not believe God; and murder, because he subjected himself to death; and spiritual adultery, because the immaculateness of the human soul was defiled through the persuasion of the serpent; and theft, because they made use of the forbidden tree; and the love of acquisition, because he desired more than was necessary to satisfy himself.' Thus, with the first transgression of the commandment, the principle of sin immediately entered into man — 'the law of sin' (monos tis amartias). It struck the very nature of man and quickly began to root itself in him and develop. ... The sinful inclinations in man have taken the reigning position; man has become the servant of sin (Rom. 6:7) ... With sin, death entered into the human race. Man was created immortal in his soul, and he could have remained immortal also in body if he had not fallen away from God. ... Man's body, as was well expressed by Blessed Augustine, does not possess 'the impossibility of dying,' but it did possess 'the possibility of not dying,' which it has now lost.[11]

It can be said that while we have not inherited the guilt of Adam's personal sin, because his sin is also of a generic nature, and because the entire human race is possessed of an essential, ontological unity,[12] we participate in it by virtue of our participation in the human race. "The imparting of Original Sin by means of natural heredity should be understood in terms of the unity of the entire human nature, and of the homoousiotitos [13] of all men, who, connected by nature, constitute one mystic whole. Inasmuch as human nature is indeed unique and unbreakable, the imparting of sin from the first-born to the entire human race descended from him is rendered explicable: 'Explicitly, as from the root, the sickness proceeded to the rest of the tree, Adam being the root who had suffered corruption'" [St. Cyril of Alexandria].[14]

The Orthodox view of fallen human nature is remarkably sober and balanced, gravitating neither to the unwarranted optimism of the Pelagian view, which sees human nature as having remained essentially in its pristine innocence and goodness, nor to the equally unwarranted pessimism of the predestinatarian view, which sees human nature as hopelessly perverted and corrupt. "Man fell unconsciously, unintentionally; he was deceived and seduced," writes the 19th-century Russian bishop and ascete, St. Ignatius Brianchaninov. "For this reason his natural goodness was not destroyed, but was mixed with the evil of the fallen angels. But this natural goodness, being mixed with evil, poisoned with evil, became worthless, inadequate, unworthy of God who is perfect, purest goodness. Man for the most part does evil, meaning to do good, not seeing the evil wrapped in a mask of goodness on account of the darkening of his mind and conscience."[15]

The Orthodox view of original sin is profoundly related to the Orthodox concept of theosis, deification, which is almost totally lost in the Western understanding. Thus, Pomazansky observes, while the physical, mental, and emotional faculties have become corrupted in man, the greatest loss to man was deprivation of the blessedness of Paradise and life eternal. "Both the mind and the feelings have become darkened in him, and therefore his moral freedom often does not incline towards the good, but towards evil ... The physical consequences of the fall are diseases, hard labor and death. These were the natural result of the moral fall, the falling away from communion with God, man's departure from God. Man became subject to the corrupt elements of the world, in which dissolution and death are active. Nourishment from the Source of Life and from the constant renewal of all of one's powers became weak in men ... However, the final and most important consequence of sin was not illness and physical death, but the loss of Paradise ... In Adam all mankind was deprived of the future blessedness which stood before it, the blessedness which Adam and Eve had partially tasted in Paradise. In place of the prospect of life eternal, mankind beheld death, and behind it hell, darkness, rejection by God."[16].

Theosis, or, as St. Seraphim of Sarov defines it, "the acquisition of the Holy Spirit," is both the possibility and the reality, the goal and the gift, of overcoming the stain of original sin and repossession of what has been lost through it, the sole dominant purpose of Christian life. Despite the "rags of mortality" in which the human race has clothed itself through the fall of the first Adam in Paradise, Christians live in the hope of once again "ascending to their former beauty" by virtue of their redemption by the suffering, death, and resurrection on the third day of the second Adam. Walking between hope and despair, repenting of our sins, and living a life of Christian struggle, we await the fulfillment of the promise of St. Paul, so that together with redeemed first Adam we can sing the song of victory: "So when this corruptible shall have put on incorruption, and this mortal shall have put on immortality, then shall be brought to pass the saying that is written, Death is swallowed up in victory. O death, where is thy sting? O grave, where is thy victory?" (1 Cor. 15: 55-56).

Notes

1. John Karmiris, A Synopsis of the Dogmatic Theology of the Orthodox Catholic Church, trans. from the Greek by the Reverend George Dimopoulos (Scranton, Pa.: Christian Orthodox Edition, 1973), pp. 35-36.

2. Protopresbyter Michael Pomazansky, Orthodox Dogmatic Theology: A Concise Exposition, trans. Hieromonk Seraphim Rose (Platina, Calif.: St. Herman of Alaska Brotherhood, 1994).

3. The East was at this time itself embroiled in a theological controversy surrounding the teachings of Appolinarius and Nestorius concerning the divine and human natures of Christ. Blessed Augustine had been invited by Emperor Theodosius the Younger to the Council which was to assemble at Ephesus, but died approximately a year before. The Third Ecumenical Council in 431 ruled on both controversies, condemning not only Nestorianism, but also Pelagianism. In this context it should be noted that despite the lately-fashionable "bashing" of certain writings of Blessed Augustine by certain "ultra-correct" "neo-Orthodox" writers, both he and his writings remain uncondemned by any Ecumenical or Local Council, thus relegating his more controversial theological opinions to the status of theologoumena of a Western Father of the Orthodox Church.

4. As it sometimes happens when the writings of a teacher are interpreted by several generations of disciples and commentators, the end product may not be something that was originally intended by the teacher himself. So with Moses and the Talmudists, so with Cyril of Alexandria and the monophysites, so with Bl. Augustine and the augustinians.

5. Pomazansky, p. 160.

6. Karmiris, p. 38.

7. Ibid.

8. In particular, the peculiarly Western tendency to see and define original sin almost exclusively in terms of human sexuality, replete with Freudian interpretation of the metaphors of religious language. On this, especially see: Elaine Pagels, Adam, Eve, and the Serpent (New York: Random House, 1988).

9. And dismisses as "semi-pelagianism" the balanced Orthodox position, formulated by St. John Cassian, which postulates the cooperation, or "synergy," of Divine grace and free will of man in working out the task of human salvation.

10. Karmiris, p. 33.

11. Pomazansky, pp. 156-159.

12. See, for instance, John 15:1-9 and 17:11-23; 1 Cor. 12:12-13; Ephes. 2:15 and 4:13-16. Also St. Gregory of Nyssa to Aulalius that there are not three gods but one God, etc., and St. Basil the Great, in the 18th chapter of his monastic regulations.

13. = "same-essence-ness," i.e. coessentiality or consubstantiality.

14. Karmiris, p. 36.

15. The Arena: An Offering to Contemporary Monasticism, trans. Archimandrite Lazarus (Jordanville: Holy Trinity Monastery, 1991), p. 186.

16. Pomazansky, pp. 158-159.

From Alive in Christ
1996:1 (Spring 1996)