The FW de Klerk Foundation writes regular articles on topical issues, supports language and cultural rights and participates in the national debate on racial and cultural issues. The Foundation also promotes communication by holding conferences and workshops.
Speech to the Paarl Rotarians - Expropriation without Compensation
Land reform and the proposed policy of expropriation without compensation (EWC) within the bigger framework of the ANC's National Democratic Revolution (NDR) and Radical Economic Transformation (RET) remains a pivotal concern for all South Africans. The Foundation's Chairman, Mr Dave Steward, recently delivered a speech touching on these and other issues on 7 September 2021 during an occasion at the Paarl Rotarians.
I would like to speak to you today about the threat that expropriation without compensation would pose to the future well-being of everyone in South Africa.
Firstly, it is important to understand why the ANC is so intent on amending the Constitution to make expropriation without compensation possible.
Its determination to do so flows directly from its National Democratic Revolution (NDR) ideology and its latest iteration - Radical Economic Transformation (RET).
The ANC has long believed that “a critical element of the programme for national emancipation” should be “the elimination of” what it calls “apartheid property relations”. In the ANC’s view this is a continuing struggle “which, as a matter of historical necessity, will loom ever larger as we proceed along the path of fundamental change.”
In March 2012 the ANC announced that the time had come for it to take this process to the “second phase” of the national transition. In June 2012, President Zuma told the ANC Policy Conference that the balance of forces had shifted sufficiently in South Africa and internationally for the ANC to abandon the compromises it made during the first - or “political” - transition. “We had to make certain compromises in the national interest... For example, we had to be cautious about restructuring the economy, in order to maintain economic stability and confidence at the time.”
The latest iteration of the second phase is “Radical Economic Transformation” (RET) - which President Zuma defined as a “fundamental change in the structure, systems, institutions and patterns of ownership, management and control of the economy in favour of all South Africans, especially the poor, the majority of whom are African and female…”
It is impossible to consider the EWC outside the context of the clear intentions that have regularly been expressed by the ruling Alliance - and more explicitly in its programme for RET.
The property guarantees in section 25 of the 1996 constitution remained a significant obstacle to the implementation of radical economic transformation - although they presented no obstacle to a comprehensive land reform programme.
To overcome this obstacle, the ANC adopted a resolution at its 54th National Conference at NASREC in December 2017 that it should “as a matter of policy, pursue expropriation of land without compensation.” At the insistence of more moderate elements, it added that “this should be pursued without destabilising the agricultural sector, without endangering food security in our country and without undermining economic growth and job creation.”
On 27 February 2018, the NASREC decision was endorsed in a parliamentary motion to amend section 25 of the Constitution to make provision for expropriation without compensation “in a manner that increases agricultural production and improves food security”.
On 25 July 2019 Parliament appointed an Ad-hoc Committee on Legislation to Amend Section 25 of the Constitution “to initiate and introduce legislation amending section 25 of the Constitution”.
This week the Ad-Hoc Committee decided to adopt proposals for a draft amendment to the constitution that would include the following provisions:
- Where land and any improvements thereon are expropriated for purposes of land reform … the amount of compensation may be nil.
- For the furtherance of land reform, national legislation must … set out circumstances where the amount of compensation is nil.
- The land is the common heritage of all citizens that the state must safeguard for future generations.
- The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable state custodianship of certain land in order for citizens to gain access to land on an equitable basis.
Because the ANC refused to accept the EFF’s demand that the state should be given custodianship of all the land in South Africa - which would amount to the nationalization of all land - it has made it clear that it will not support the Amendment Bill when it comes before parliament sometime after 1 November when it reconvenes after the municipal elections.
This means that - as matters now stand - the ANC will not be able to muster the two thirds majority that it will require to adopt the constitutional amendment.
However, there is no room for complacency - firstly, because it is still possible that the ANC and the EFF might resolve their differences; and secondly because there is no indication that the ANC intends to abandon its goal of redistributing property in accordance with Radical Economic Transformation’.
Indeed, ANC leaders evidently believe that the current COVID crisis has created an opportunity to restructure the economy in accordance with RET. On 25 April 2020 Minister Nkosozana Dlamini-Zuma said the Covid-19 crisis presented “an opportunity for South Africa to accelerate the implementation of some long agreed upon structural changes to enable reconstruction and growth". Ten days later, on 5 May 2020, President Ramaphosa echoed her views. He said that the COVID crisis has created “an opportunity to relook at our economic side of life to see how we South Africans reconstruct our economy after coronavirus…” and added that “Radical economic transformation must underpin the economic future…”
We should accordingly give careful consideration to the implications of EWC.
EWC would seriously aggravate the unprecedented economic crisis created by COVID.
A study conducted in 2018 by Prof Roelof Botha of the Gordon Institute of Business Science and Prof Ilse Botha of the University of Johannesburg warned that South Africa would experience an “imminent socio-economic disaster” if EWC is implemented. The study predicted that that GDP would decrease by R454,8 billion if capital formation in South Africa were to decline by 10%. This would result in a drop of R261 billion in fiscal revenues and the loss of more than 2 million jobs.
Although the economy is expected to rebound by more than 3% during 2021, this will be lower than expected global growth - and will be accompanied by mounting concern over unsustainable government debt. National debt is expected to reach R4,6 trillion (86% of GDP) this financial year - and 88,9% by 2025/26. Increasingly mired in a debt trap, South Africa’s credit ratings will slide deeper into junk status.
Sustained and inclusive economic growth is the only way out of this trap. President Ramaphosa emphasized this goal in his 2021 SONA address - and the former finance Minister Tito Mboweni spelled out his proposals for recovery in the national budget on 24 February. However, plans for economic recovery and for enhanced investment are irreconcilable with EWC.
This is because of the impact EWC will inevitably have on critically needed foreign investment.
South Africa’s failure to attract sufficient foreign direct investment is glaringly evident when compared with other mineral-rich economies: between 2015 and 2019 South Africa received only US$ 16 billion in foreign investment - compared with $58 billion for Chile and $ 238 billion for Australia. This is despite the fact that that South Africa possesses the world’s greatest mineral reserves - valued at US$ 2,5 trillion.
According to the government’s assessment, the Banking Association of South Africa (BASA) supports the Expropriation Bill - including presumably its provision for zero compensation. However, in its submission to parliament on 30 January 2020 regarding the amendment of Section 25 of the Constitution, BASA warned that land reform should take place in an orderly manner that does not dilute property rights.
BASA added that its exposure to land-based property was R1,613 trillion - and cautioned that “many banking crises around the world have their starting point in the decline in land-based property and the impact that this has on market confidence.”
EWC could also harm South Africa’s trade relations. In particular, it might be in conflict with the requirements of the United States African Growth and Opportunity Act (AGOA) in terms of which most South African exports to the US currently enjoy tariff-free status. It might also create legal difficulties in South Africa’s relations with foreign investor countries.
When the ANC adopted its EWC decision at NASREC in December 2017 it added that this goal should be pursued “without destabilising the agricultural sector, without endangering food security in our country and without undermining economic growth and job creation.”
However, EWC would, in fact, pose a deadly threat to both agriculture and the economy.
South Africa is not a rich agricultural country - with only 13% of its territory being suitable for arable production. The sector is changing rapidly: the average age of commercial farmers in 2017 was 62; the number of commercial farmers dropped from 57 357 to 35 250 in just three years between 2013 and 2106 - and was expected by government to fall to fewer than 25 000 after 2020. The number of farms for sale increased from 13 254 in February 2015 to 19 280 in May 2016.
Despite the smaller number of farms, income produced by the sector increased to R 332,8 billion - 2,6% of GDP - in 2017. Most of this was produced by large farms. 100 very large farms produced 25% of agricultural production. Some 2 200+ large farms (including the top 100 farms) - with a turnover of over R22,5 million - contributed 64,5% of the sector’s income in 2017. Medium-size farms contributed 7,7% and small and micro farms contributed 27,8%.
Collectively, commercial farmers produce 95% of South Africa’s locally grown food. According to a 2015 WWF Report “although accurate data is slim, this suggests that the remaining 5% of food is produced by 220 000 emerging farmers and the 2 million subsistence farmers in the country”
South Africa’s commercial farmers - aging and rapidly diminishing in number - are widely regarded as among the best in the world. The imposition of demographic representivity on the agricultural sector would, over time, force them from the land. They would, in all likelihood, be replaced by hundreds of thousands of emerging tenant farmers on 10 - 20-hectare plots.
The government’s land reform model flies in the face of all current experience. Absence of property rights has been one of the main obstacles to the revival of agriculture in Zimbabwe. According to Patrick Imam of the IMF, the fundamental problem was that “the title system is broken.” Accordingly, land in Zimbabwe was “dead capital, as it cannot be collateralised”. “The first best solution to revive the sector would be to tackle the most binding constraint, which is property rights”.
Successful agriculture requires capital, expertise, entrepreneurial skills, increasingly large-scale farming, a great deal of luck - and above all, secure property rights. There is no reason to suppose that the government’s new tenant-based land reform approach would be any more successful than its previous schemes - at least 70% of which have failed.
The expropriation of the first farms with compensation paid at levels substantially below market value would inevitably have a negative impact on land values. Many farmers might soon find that the value of their farms would be little more - or even less - than their outstanding mortgages. This could spell personal ruin for them and raise deep concerns among commercial banks over the viability of their R125 billion exposure to the sector.
All of this could have a catastrophic impact on the agricultural sector; on its contribution to the economy; on the 808 000 people (5,5% of total jobs) it employs; - and on food security.
South Africa has thus far been regarded as one of the few food secure countries in Africa and has made good progress in improving food availability. The number of people who were vulnerable to hunger declined from 29,3% in 2002 to (a still unacceptable) 11,1% in 2019. Tragically, the percentage of vulnerable people would rise rapidly in the wake of the agricultural crisis that would be generated by the Bill, EWC and the government’s RET policies.
None of this detracts from the pressing need for an equitable and effective process of land reform - which is both a constitutional imperative and a political and social necessity.
The core problem is that there is no clarity about what land reform is supposed to achieve - or of the national interest that is supposed to promote.
Land reform could enhance the property rights and freedom of millions of South Africans - or it could deprive them of their property and reduce them to the status of dependent tenants.
We must also understand where the demand for land reform is greatest. According to recent opinion surveys only 1% of black South Africans are interested in agricultural land reform. There is, however, enormous demand for urban land for housing. This should be the priority for any land reform initiative - and it should end in beneficiaries possessing title deeds to their properties.
One of our most positive economic and social realities is that almost 8 million black South African households already own their own homes. However, the vast majority do not have proper titles deeds. This means they cannot leverage their properties to raise loans to develop businesses or to pursue other economic interests. It has been calculated that the value of these properties may exceed R1,3 trillion. To put things in perspective, this is three times the value of all the agricultural land in South Africa.
There are already more than 1 million black households that own the land on which they produce food. Another 560 000 households farm land in the traditional homelands. According to AgriSA’s recent land audit, black South Africans occupy 45% of all the high potential agricultural land in the country – much of it in the traditional homelands. A central priority of land reform should be to transfer legal ownership of this land to the people who actually farm it. This could greatly increase the productivity of some of the best agricultural land in South Africa.
Land reform that results beneficiaries owning land and in the provision of title deeds to black South African home owners could dramatically, quickly, and effectively enrich and empower over 60% of South Africa’s black households. Such an approach would require:
- legislation to fast-track the registration of title deeds;
- a massive programme to inform property owners of the economic potential of their properties;
- cooperation with the banking sector in unlocking the enormous wealth currently tied up in black property; and
- close cooperation with the organized agriculture to ensure that emerging farmers are prosperous and successful.
If handled correctly land reform could be one of the most positive developments since 1994. However, if handled badly on the basis of EWC, it would be a catastrophe for all South Africans.
What can we do to counteract the threat of EWC and the other problems confronting South Africa?
Firstly, we must be informed. We must understand the ANC’s National Democratic Revolution, its origins and its goals.
Secondly, we should not underestimate the substantial power that the constitution gives to all citizens.
The Constitution gives us important powers:
- We have the right to freedom of expression: we must use it to warn our fellow South Africans of the catastrophic implications of EWC;
- We have the right to assemble, to demonstrate, to picket and to present petitions. We should make use of these powers to give visible and audible expression to our concerns;
- We have the right to strike to defend our interests.
- We have the right to free political activity. We should use it to join the political parties of our choice and to support NGOs that promote the causes that we support.
- We have the right to access the courts. We should fight unconstitutional legislation in the courts at every step of the way. This task should not be left to a few dedicated NGOs. We should all become involved in supporting litigation in defence of our rights and of the constitution.
Finally, it is important for us to understand that the great majority of South Africans do not support the radical goals of the NDR.
According to a field survey conducted by the IRR in 2018 South Africans from all our communities want much the same things: 26% listed more jobs as the top priority; 14% chose the fight against corruption; 11% wanted better education; 10% saw crime and poor housing as the main problems; 9% identified the fight against drug abuse; 7% were worried about illegal immigration; 4% listed better health care and 3% wanted better service delivery. Only 2% saw racism and land reform as the main problems; and just 1% wanted to speed up affirmative action. 80% believed that people should be appointed to jobs on the basis of merit alone – or on the basis of merit – with special training for the disadvantaged. 83% believed that sports teams should be chosen on merit and not on quotas.
The survey reveals the degree to which a great majority of South Africans from all our communities support the same goals.
We should reach out to them to build a better future for all our people on the basis of the values that we all accepted in section 1 of our Constitution. These values include
The human dignity; the achievement of equality; and the advancement of human rights and freedoms; non-racialism and non-sexism; the supremacy of the Constitution and the rule of law; and a system of genuine multiparty democracy that is based on accountability, responsiveness and openness.
Our great constitutional accord did not include the NDR, Radical Economic Transformation and Expropriation Without Compensation. We did not sign on for them – and we do not accept them.
8 September 2021
STATEMENT: THE RELEASE OF FORMER PRESIDENT JACOB ZUMA ON MEDICAL PAROLE
On Sunday 5 September 2021 the Department of Correctional Services (DCS) granted medical parole to jailed former president Jacob Zuma, who is currently serving a 15-month custodial jail sentence for contempt of court because of his refusal to abide by subpoenas to appear before the Zondo Commission.
Mr Zuma’s medical parole comes a mere two months after being jailed. His ongoing corruption trial has also been adjourned to 9 September 2021 because of his claimed ill health. Reports indicate that the DCS, in reaching this decision, is relying on section 75(7)(a) of the Correctional Services Act 111 of 1998 which affords the National Commissioner of Correctional Services the power to grant parole or medical parole - or place under correctional supervision or day parole - a sentenced offender serving a custodial prison sentence of 24 months or less.
The circumstances under which Mr Zuma has now been granted medical parole are not only deeply suspect - but also do not conform procedurally with additional provisions regarding the granting of medical parole as set out in the Correctional Matters Amendment Act 5 of 2011.
This act makes it very clear that the Minister must establish a medical advisory board to provide an independent medical report to the National Commissioner, Correctional Supervision and Parole Board or the Minister, as the case may be in addition to the medical report on which the petitioner for medical parole bases his/her application. This has seemingly not been done in Zuma’s case. Furthermore - Zuma has persistently refused to be examined by an independent medical professional (or any medical advisory board).
Most seriously, Mr Zuma’s parole was approved by National Commissioner of Correctional Services, Arthur Fraser, who is well known to have close ties with Mr Zuma and who himself was alleged to have been involved in state capture at the South African State Security Agency (SSA).
The granting of medical parole to Mr Zuma also shows strong similarities to the case of one of Zuma’s other convicted associates - Shabir Schaik. In 2005 Shaik was sentenced to 15 years imprisonment for his involvement in the arms deal corruption. Subsequently, after only two years and two months, he was released on medical parole on the grounds of “terminal illness”. He was shortly thereafter reportedly frequently spotted in public and, according to various articles, seen shopping‚ dining at fancy restaurants, and playing golf on various different occasions.
Section 1(c) of the Constitution establishes the supremacy of the Constitution and rule of law as foundational values of our country. The abuse of political influence to undermine criminal justice processes negates these core constitutional values and sets a dangerous precedent. It is also unacceptable that, despite the constitutional provision of equality before the law, some prisoners are apparently given preferential treatment because of their political status and connections.
Unfortunately, this development seriously undermines President Ramaphosa’s efforts to re-establish the integrity of state institutions and processes.
Issued by the FW de Klerk Foundation
6 September 2021
ARTICLE: THE ANC’S DANGEROUS CENTRALISATION AND SOCIALISATION DRIVE… INCLUDING NATIONALISATION BY STEALTH
Under our very noses, with our sensory organs blunted by Covid‐19 and other big events, the governing ANC has steadily been accelerating the further implementation and advancement of its National Democratic Revolution (NDR) under cover of the coronavirus pandemic and 18 months (so far) of a national state of disaster lockdown.
Indeed, ANC leaders evidently believe that the Covid‐19 crisis has created an opportunity to restructure the economy in accordance with Radical Economic Transformation. On 25 April 2020 Minister Nkosozana Dlamini‐Zuma said the Covid‐19 crisis presented “an opportunity for South Africa to accelerate the implementation of some long agreed upon structural changes to enable reconstruction and growth". Ten days later, on 5 May 2020, President Ramaphosa echoed her views. He said that the Covid crisis has created “an opportunity to relook at our economic side of life to see how we South Africans reconstruct our economy after coronavirus…” and added that “Radical economic transformation must underpin the economic future…”
As the pandemic distracts and ‘justifies’, and as the state of disaster facilitates, the ANC government has imposed or advanced elements of its strategy directly and indirectly in support of its two key drives towards centralisation of power and nationalisation of assets. More centralised political control will render the by‐product of nationalisation by stealth or other means.
One shouldn’t be fooled by government supposedly opting for expanded partial privatisation relating to state‐owned assets like Eskom and SAA. These were both embarrassing basket cases the ANC government failed to fix, and it was now forced, as a last resort, to engage private expertise and funds to try and rescue them. State‐owned and managed enterprises otherwise remain key instruments in the ANC‐controlled state’s socialist developmental plans and are not for sale.
After the onset of the coronavirus pandemic and the introduction of extraordinary governing powers to combat it, the ANC’s ambitions for centralised power quickly revealed themselves. It wanted full central control over everything from handing out food parcels to the poor, to unilaterally imposing draconian restrictions on the public and businesses, accelerating and advancing key aspects of Radical Economic Transformation (RET), and reserving exclusive government control of the national coronavirus vaccination programme, among others.
The national state of disaster with its lockdowns and highly restrictive social, political and economic controls continued to be reimposed month after month, without any accountability. In this shrouded political environment, the ANC avoided transparency, and altered processes and mandates to advance together with the Economic Freedom Fighters (EFF) the expropriation of property – not just land ‐ without compensation (EWC). That is, until their cooperation broke down (probably temporarily only) over the key question of how nationalisation of land should be accommodated, or rather, worded.
Other areas of focus where significant steps have been introduced in this period are centralised national control of local government, tourism, the National Health Insurance scheme, social security, and more.
State of disaster context
Although centralisation of power and nationalisation of property have always been key elements of the ANC’s SACP‐inspired National Democratic Revolution (NDR) strategy, the current coronavirus pandemic and accompanying restrictions have provided ample cover and substantial facilitation for the unobtrusive acceleration of key aspects of this strategy.
The varying levels of lockdown restrictions may be important for the public and businesses as it affects their personal, social and economic freedoms and activities differently. But for the government, regardless of the lockdown level applicable, the state of disaster declared in terms of the Disaster Management Act, 2002 provides it with ample scope for an alternative governing mechanism to the constitutionally mandated parliament, presidency and cabinet. In this case the National Coronavirus Command Council (NCCC) and its secretive appendage, the National Joint Operational and Intelligence Structure (Najoints). Much can conveniently be hidden behind this curtain of legal secrecy.
It is a mechanism that can impose draconian restrictions on freedoms and activities, is not subjected to parliamentary or other oversight, is not accountable to anyone but the president and the cabinet (or the ANC) and then only without public scrutiny. It can make and enforce far‐reaching decisions by decree, is not effectively subjected to any time limits, and can simply be extended month after month. As court cases last year showed, not even the judiciary can intervene, and its hands are tied – it has to interpret and enforce the existing law(s) and cannot write or rewrite them.
The current Disaster Management Act is a poorly defined, broad‐sweeping piece of legislation with hardly any checks and balances that provides government with almost limitless powers. Only after a year of ongoing lockdowns, did some in the opposition start questioning it. This resulted in the Freedom Front Plus (FF+) introducing proposed amendments to the Act on 19 February this year that would make major changes and curtail the powers and introduce strict time frames. In July, public comment was invited, and it now has to pass through the portfolio committee, National Assembly, select committees, and the National Council of Provinces (NCOP), before being sent to President Cyril Ramaphosa for approval, but won’t pass without ANC support.
Apart from the context and facilitation provided by the state of disaster and the NCCC, a number of other developments relating to the NDR and centralised control by the ANC are of grave concern.
National Health Insurance
The impacts of Covid‐19 have been used by the ANC to correctly highlight inequality and poverty, but also to mischievously “justify” the accelerated rollout of the National Health Insurance scheme. This controversial and unaffordable scheme will in effect nationalise South Africa’s healthcare sector and give the health minister and his department extraordinary, centralised powers and control.
Medical Certificate of Need
In the Government Gazette No. 44714 of 15 June 2021, the government has proposed the introduction of a Certificate of Need that every medical professional will need in order to practice. It will empower the state to determine where and under what conditions medical professionals may practice ‐ further centralised control. It also paves the way, if implemented, for expropriation or nationalisation of private practices, especially if the broad definition of expropriation of any property is upheld as is currently the case relating to the ongoing EWC saga.
District Development Model
Just a few weeks into the national lockdown last year, COGTA minister largely in charge of the NCCC, Dlamini‐Zuma, quickly used the cover it provided to not only accelerate implementation of the District Development Model (DDM), but also to surreptitiously duplicate the NCCC at provincial level. The DDM is disguised as another municipal turnaround strategy, and thus escaped much public attention. But in effect it will centralise control of local government and give the national government control of municipal funding and planning.
National Policy on Data and Cloud
The Draft Policy published by the Minister of Communications and Digital Technologies on 1 April 2021 in effect proposes data nationalisation and tighter centralised control by government. If passed, it will empower government to take ownership of all data generated in South Africa and could lead to expropriation (nationalisation) of intellectual property.
The recently published Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill (PEPUDA), if passed, will institute a draconian set of new restrictions on personal and political freedoms and freedom of expression and association, while allowing greater state intrusion. It also seeks to allow for hate speech and racial discrimination to be crimes that can be committed even without intent. The Bill could pave the way for more centralised totalitarianism, censorship and curtailed freedom of expression in defiance of the current constitutional framework.
Public service and cadre deployment
Deployment of ANC cadres to the public sector for maximum control and the advancement of the NDR, continues. Despite President Ramaphosa repeatedly promising a capable, professional public service, he simultaneously recently reaffirmed that cadre deployment remains ANC policy. With the selection of ANC candidates for the upcoming municipal elections, there have been efforts to weed out the corrupt and raise the qualifications bar – but this will strengthen and not dilute ANC cadre control over the state, providing the ANC fares well in the elections.
Tightening BEE and EE control and restrictions
The ANC recently introduced the Employment Equity Amendment Bill to expand its application and give more arbitrary powers to the relevant minister. At the same time similar changes and more restrictions are being applied in respect of Black Economic Empowerment. Both serve to create pools of privilege and influence for the ANC in the private sector and expand ANC control – another form of cadre deployment.
These are just some of the recent developments that underpin the ANC’s quest for centralised power and control, and for nationalisation. There are more, like a shrinking and emigrating middle class, the role of Natjoints and the security cluster, or the proposed National Social Security Fund and Basic Income Grant. Concentrating more power at the centre is not only the ANC’s answer to its own failures and lack of implementation, but it’s also a central requirement of the National Democratic Revolution and facilitates nationalisation in various applications.
By Stef Terblanche, independent political risk analyst and member of the FW de Klerk Foundation
Panel of Contributors
31 August 2021
STATEMENT: WOMEN’S DAY 2021 - SOUTH AFRICA
65 years ago in South Africa, a group of 20 000 women marched to the Union Buildings in Pretoria on 9 August 1956. It was a historic moment - the women were protesting against a proposed amendment to what was known as the Urban Areas Act which endorsed legislation that required black South Africans to carry an identity book known as the 'pass.'
After handing over a petition to South African government representatives the women broke into song and since then the phrase 'wathint' abafazi, wathint' imbokodo' (You Strike a Woman, You Strike a Rock) has come to universally represent the courage and strength of South African women.
South Africa has come a long way since 9 August 1956. We have progressed from having oppressive laws that severely limited women’s rights, to the situation today where women occupy powerful positions in government, business and their communities. The rights of women are also recognized in a number of key legal documents, including -
- the South African Constitution and Bill of Rights;
- the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol); and
- the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
However, while we celebrate these and other achievements advancing women’s social, political and economic status, we must frankly recognize South Africa’s continued problem with unacceptably high rates of femicide, gender-based violence (GBV) and other violent crimes committed against women and children.
World Health Organisation statistics show South Africa’s femicide rate to be at 12.1 per 100,000 women - this is five times higher than the global average of 2.6 women per 100,000. Statistics South Africa has also reported that 138 women per 100,000 were raped in the country during 2018 - the highest rate in the world.
In 2020 - during the height of national lockdown - president Cyril Ramaphosa remarked that GBV had become South Africa’s second pandemic. He said that “he was appalled at what is no less than a war being waged against the women and children of our country - the killing of women and children by the men of our country”. The president added that “at a time when the Covid-19 pandemic has left us all feeling vulnerable and uncertain, violence is being unleashed on women and children with a brutality that defies comprehension”.
In response, the government has commissioned and published the Emergency Response Action Plan on Gender-Based Violence and Femicide (ERAP, 2020) to “address the systemic failure to respond to Gender-Based Violence and Femicide (GBVF) firstly by the state and then more broadly by society. The plan seeks to urgently address the GBVF crisis with agility, responsiveness and capability to fast-track, monitor and assess potential and actual impact of all action taken during its implementation”.
It further states that “ERAP initiatives are leveraged to promote more equitable and representative multi-stakeholder processes; resulting in outcomes that take into account the genuine and pressing concerns of all partners - which means greater and more effective positive impacts on the lives of their beneficiaries, their households and communities, and ultimately for the nation”.
Further to the above, government reprioritized R1.6 billion in funding to support the implementation of the ERAP. Flowing from this the president also reported that a number of further steps have been taken:
- During the lockdown period survivors of gender-based violence had access to support and services, including the GBV hotline, shelters, and centres providing support to victims of sexual violence;
- Since December 2019, 10 government-owned buildings have been handed over to the Department of Social Development to be used as shelters, addressing one of the biggest challenges facing survivors who want to leave abusive relationships;
- Thirteen regional courts have been upgraded into specialized sexual offences courts;
- To support the work of law-enforcement, 7,000 evidence collection kits have been distributed regularly to every police station in the country and there are now over 1,000 survivor friendly rooms at police stations;
- Many police, prosecutors, magistrates and policymakers have undergone sensitivity and awareness training, and over 3,000 government employees who work with children and mentally disabled persons have been checked against the National Register of Sex Offenders; and
- Legislative amendments have been prepared around, among other things, minimum sentencing in cases of gender-based violence, bail conditions for suspects, and greater protection for women who are victims of intimate partner violence.
Despite the above, Police Minister Beki Cele announced during September 2020 that “only 130 of the 4058 people arrested for alleged gender-based violence (GBV) since the announcement of the lockdown in March 2020, had been convicted”. In August 2020 Cele said that since April 2020, 21 203 cases of domestic violence had been reported and 14 779 suspects had been charged.
These figures indicate that South Africa still has a long way to go in addressing and eradicating this serious societal problem. However, it is not only the government that is responsible for addressing the problem. All South Africans should make a contribution in their daily lives by treating women with respect they deserve; by acknowledging the full spectrum of their rights and by shifting patriarchal attitudes.
On Women’s Day 2021 all South Africans should honour the memory of those who have sacrificed so much in advancing women’s social, political and economic status in South Africa. In doing so we should all support the ERAP and President Ramaphosa’s efforts to combat the scourge of GBV.
However, combating GBV will be greatly facilitated if we can, at the same time, address the social and economic crises that lie at the root of so many of our national problems: poor education; unsustainable unemployment; inadequate policing; endemic corruption; failing service delivery; and the absence of high levels of sustainable economic growth.
Only in this way will we ultimately be able to achieve - not only the goal of gender equality - but also all the other goals that are set out in the Constitution and the Bill of Rights.
By Adv Jacques du Preez, CEO of the FW de Klerk Foundation
7 August 2021
STATEMENT: Firearms Control Amendment Bill of 2021 Submission
The FW de Klerk Foundation recently shared the alarm of many South Africans regarding certain proposals in the recent Firearms Control Act Amendment Bill. Among other things one of the most concerning proposals contained in the Bill is the proposed removal of self-defence as a reason to own a firearm in South Africa.
The Constitution guarantees the right to life and the right to freedom and security of the person - which includes the right to be free from all forms of violence whether they are of a public or private nature. Indeed, the right to life may be regarded as the most fundamental right of all - because, axiomatically, without it none of the other constitutional rights can be enjoyed.
The right to freedom and security of the person – for example not to be subject to violence or rape - is crucial for the enjoyment of the capstone right to human dignity. For this reason, the protection of the lives and persons of citizens is generally regarded as the most fundamental function and duty of any state.
Unfortunately this is a duty that the state in South Africa has lamentably failed to carry out.
South Africa’s murder rate of 35,9 per 100 000 people (2019) is the second highest of any country in the world with a population over 4 million. The highest is Venezuela with 36,69/100K in 2018 - but with only about half South Africa’s number of murders. And the situation is deteriorating. The Minister of Police, Mr Bheki Cele recently released the latest SAPS crime statistics for the first quarter of 2021 - indicating an increase in murder and attempted murder of 8,45% and 8.7% respectively.
The shocking reality is that more than 500 000 people have been murdered in South Africa since 1994 - that is about 100 000 more than the number of US servicemen who died in World War II.
South Africa also has the highest rape rate in the world with 132,4 rapes per 100 000 people. The second highest - Botswana - lags behind South Africa with 92,8/100K. (The EU average is 10,19/100K and that of the USA is 27,3/100K.)
The above figures unfortunately confirm that South Africa is one of the most violent countries in the world.
Whether the state (and by implication South Africa’s security cluster) is capable of carrying out its primary duty of protecting the lives and persons of its citizens has been increasingly questionable over the last years and it was also -sadly- confirmed in light of the recent serious outbreaks of violence, looting and killing in Gauteng and Kwazulu-Natal
The Foundation has, in its’ submission, made a number of suggestions and proposals regarding the proposed Bill particularly in light of the recent violence in Gauteng and Kwazulu-Natal – most notably that a holistic approach should be adopted by the Police Minister to overall strengthen state and police institutional capacity to combat crime, of which one example could include an increased role for Community Policing Forums in South Africa.
Issued by the FW de Klerk Foundation
2 August 2021
ARTICLE: IN THE AFTERMATH OF THE WEEK OF MAYHEM
Now that the dust has begun to settle after the mayhem that convulsed much of KwaZulu-Natal – and parts of Gauteng - last week, we can start to pick our way through the debris and try to assess what actually happened.
Perhaps the main conclusion centres not so much on the rioting and looting - but on the degree to which the rioting and the looting exposed the woeful incapacity of the ANC to carry the basic functions of government. The state’s security services were not able to foresee or make contingency plans for unrest on this scale; the SAPS were simply incapable of carrying out their basic duty to maintain law and order and to protect the lives and property of citizens. TV coverage often showed them standing helplessly by, while looters casually ransacked shops and walked away with TV, sets, fridges and cases of beer.
Behind all this was the government’s underlying incapacity to address the causes of poverty, unemployment and hopelessness that provided the tinder for the mayhem. Even before COVID, the South African economy had been in the doldrums, with negative per capita growth since 2011 and real unemployment levels that exceed 40%. This was compounded by a failed education system which, despite massive state expenditure, has produced education outcomes that are amongst the poorest in the world.
The spark that ignited the looting was political. It was set off by supporters of former President Jacob Zuma who were infuriated by his recent imprisonment for defying orders of the Constitutional Court to appear before the Zondo Commission. Those responsible for the unrest were, in effect, pushing back against President Ramaphosa’s efforts to combat the unrestrained corruption and that had characterized Jacob Zuma’s presidency – and as we saw in the recent COVID procurement scandal – continue to permeate state contracts.
President Ramaphosa has acknowledged the problems of state incapacity and corruption in statement after statement and in the government’s newest economic programme, the “Economic Reconstruction and Recovery Plan” (ERRP). It is the latest of the nostrums that policy makers have cobbled together to achieve rapid economic growth. However, the document simply rehashes the wish-lists of previous plans – including the 2012 National Development Plan. They have all called for an end to corruption, for the appointment of people on merit and for the removal of cumbersome regulations. But nothing has happened.
South Africans should support the President’s efforts to combat corruption and to build a capable state. He remains the best option within the ANC leadership to steer the movement back to the course it was on between 1996 and 2007 when its pragmatic GEAR policies achieved 5%+ growth rates and started to create jobs. However, his ANC government will not succeed in turning the economy around and in assuring sustained growth and effective service delivery while it continues to cling to its National Democratic Revolution ideology:
- The government will not attract the investment that the country desperately needs while, at the same time, it eviscerates property rights by amending the constitution to make expropriation without compensation possible.
- Small and medium size companies cannot grow, prosper and create jobs while they are being throttled by the progressive imposition of race quotas inherent in the Employment Equity Amendment Act – or while they are subject to unachievable requirements of the PEPUDA Amendment Act – in terms of which they must, among other things, achieve equality of outcomes for all their employees.
- The government will not be able to conclude the social compacts called for in the ERRP while it continues to limit the economic space within which minorities are forced to operate because of the progressive imposition of demographic representivity – and while it continues to excise minority cultures from the national identity.
- It cannot create jobs for millions of South Africans who are prepared to work – while it continues to lock them out of employment by the imposition of high minimum wages and by the restrictions of its rigid labour policies.
- It will not be able to address its looming debt crisis while it continues to bail out failing state owned enterprises and while it rushes headlong toward the implementation of its catastrophically unaffordable NHI scheme.
- Neither will it make progress in addressing South Africa’s skills deficit while its racial and economic policies increasingly alarm skilled people from all our communities and drive them overseas to pursue their careers.
The other factor that emerged from last week’s mayhem was the resilience of civil society and the private sector. The manner in which South Africans from all our communities banded together to defend their neighbourhoods; the determination with which they began to clean up the detritus left by the looters and to repair the damage done to shops and malls – provides a beacon of hope for the future.
IRR polls have repeatedly shown that the great majority of South Africans from all our communities want the same things: 26% want more jobs; 14% want to fight corruption; 11% want better education; 10% see crime and poor housing as the main problems; 9% want to fight drug abuse; 7% are worried about illegal immigration; 4% want better health care and 3% want better service delivery; only 2% see racism and land reform as problems; and just 1% want to speed up affirmative action. The survey reveals the degree to which a great majority of South Africans from all our communities support the central goals of the ANC’s own National Development Plan – and how very few are interested in the its NDR agenda.
Perhaps the starkest conclusion that emerges from last week’s traumatic events is that the government has gone AWOL. South Africans can no longer rely on it to carry out its basic tasks of defending their lives and property; of providing proper municipal services and decent education; of creating an environment in which economic growth can take place and jobs can become created. Perhaps the time has come for these South Africans to come together to coordinate their activities – possibly through the convening of a national convention, possibly by resuscitating something like the National Peace Accord that did so much between 1991 and 1994 to bring communities throughout South Africa together.
By the FW de Klerk Foundation
ARTICLE: WITHOUT EFFICIENCY AND ETHICS, WE UNRAVEL
When one regularly follows the events at the Zondo Commission, the extent and depth of corruption and inefficiency in the government is almost unreal, and you have to remind yourself that what is unfolding before your eyes is reality and not fiction. Many reasons for the tragedy can be cited: a feeling of untouchability, power without accountability, excessive claims and greed, inflated egos, and the Dunning Kruger effect, where people overestimate their own abilities to do a task successfully. The root cause of the national tragedy can be traced to the blatant absence of both performance and moral character at all levels. Our President is well aware of the lack of competence (performance character) and ethics (moral character) in the civil service, because in March this year he wrote: “Dear Fellow South Africans: Only a capable, efficient, ethical and development-oriented state can deliver on the commitment to improve the lives of the people of this country.” He also wants to institute a reconstruction and recovery plan that seeks to create an effective and ethical civil service. However, he will have to start with the value system and character of the people employed in the civil service and government, otherwise the initiative will not be accomplished, like numerous previous plans, programs and projects.
Performance character enables people to achieve personal goals. David Brooks describes performance character as a person's "resume" character traits, those character traits that enables you to get and keep a job. These include values such as self-discipline, hard work, resilience, initiative and endurance.
Moral character enables people to get along well with others. It involves values such as respect, humility, empathy, and caring. Brooks refers to these values as “eulogy” values, it includes the character traits that are often used in memorial services when talking about the deceased. Responsibility can fall under both performance character and moral character.
Performance character and moral character form the warp and weft of healthy individuals and societies. Without it, communities will fall apart and trust will be lost. According to the Edelman Trust Barometer, which measures trust as a function of competence and ethics, trust depends directly on the presence of both performance character and moral character. Confidence in our government stood at 20% in 2020, the lowest of all participating countries, with Spain outperforming us by 10%, in second last place. The reason for the mistrust is the lack of both performance character and moral character at all levels. South Africa is characterized and plagued by a lack of both efficiency and ethics.
We have largely lost our integrity, because even though we have a value-based constitution, there are too few value-driven individuals, institutions, and communities in our country. Our constitution has become a moral fig leaf behind which we try to hide our moral flaws. We still have the vocabulary of character and values and it is often used by politicians in speeches. But when moral language is abused as window dressing by politicians and other leaders who do not themselves live core values, it makes people angry and cynical.
The constitutional values on which our democracy rests remain beautiful, abstract ideals and we have not yet succeeded in establishing a tradition of performance character and moral character in our country on which future generations can build. In a country where there is real respect for all people, there will not be nearly 4,000 pit toilets at schools that are both dangerous and degrading to learners. Where equality is lived as a constitutional value, there will not be many schools where learners receive inferior quality education. Equality between people is not achieved through the distribution of grants, but through economic growth and quality education to all learners through which they can optimally develop their potential. According to a report by the World Economic Forum less than 30% of our workforce completed high school. In a country where human dignity is taken seriously, old people will not have to fetch buckets of water in rivers and blood will not harden on hospital floors. If non-sexism is really a core value, we will not have the highest rape rate in the world and if non-racism as a constitutional value really becomes practice, no one in our country will be favoured or harmed based on their race.
There are legions of examples that demonstrate the indispensability of both competence and ethics in our country. Parents trust that the teachers who stand in front of their children have the necessary subject and didactic knowledge to successfully convey learning contents, as well as the necessary work ethic and discipline to work through the curriculum successfully, i.e., that they are competent to do their job. But parents also trust that teachers will act with justice and empathy and do the right thing, thus also possessing moral character. Residents hope that the municipal manager and municipal officials of their town have the necessary knowledge, competence and diligence to be able to do their job well, but also that they will have the necessary integrity and respect so that sewage does not run down streets and water is not undrinkable. The performance and moral character of every member of the police is indispensable for the efficient functioning of our police service and the security of our country. An incompetent and unethical, corruptible police service makes us vulnerable to crime. The large-scale corruption and deterioration at State owned enterprises such as Eskom could have taken place due to the total absence of expertise and competence, as well as the total lack of integrity and accountability.
Both corruption and cadre deployment are symptoms of and thrive in the absence of competence and ethics. Cadres without performance and moral character are easily corruptible pawns in the chess game around power and state resources. There can be no economic growth, prosperity and stability if corruption and bribery are considered normal business practice. Responsibility and accountability will have to be added as constitutional values so that the current culture of no consequences for incompetence and unethical conduct can be reversed.
Suspending Ace Magashule from the ANC is a symbolic gesture that should show that the ANC is serious about getting rid of corruption, but hopefully this is only the beginning of the great clean up. Everywhere, from Parliament to schools, competent people with the necessary expertise, skills and work ethic as well as a strong ethical backbone will have to be appointed to positions. We will also have to purposefully, in our homes and schools, take seriously the character development of our children and our learners, so that one day they will be able to do their job well and will also be able to do the right thing.
But clumsy incompetence and unethical actions are such a part of the ANC's DNA that one wonders whether the ANC would be able to survive if President Ramaphosa really succeeded in realizing the transformation to an effective and ethical government at all levels. The question is: Does our President have the necessary character for this comprehensive and crucial challenge?
Source: Brooks David, The Road to Character 2015.
By Jeanette De Klerk-Luttig, Board member of the FW de Klerk Foundation
18 July 2021
* This article first appeared in Die Burger and is republished with the kind permission of Media24
ARTICLE: THE NPA’S DECISION TO PROSECUTE ‘APARTHEID ERA’ CRIMES
On 27 June the NPA welcomed the judgement of the Supreme Court of Appeal to dismiss the stay of prosecution application of 82-year-old Joao Rodrigues. Rodrigues had been charged with the murder of Ahmed Timol, an SACP activist, in October 1971. It added that the judgement aligned with its commitment - and the commitment of the Hawks - to prosecute perpetrators of apartheid era crimes - where there was sufficient evidence.
The NPA announced that it was expanding its capacity to deal with the 53 cases that it had already identified. It was setting up a specialist unit to deal exclusively with apartheid era prosecutions and would be appointing former prosecutors and 34 detectives for this purpose.
All of this ignores entirely the fact that amnesty was, from the outset, a sine qua non for the negotiations between the ANC and the National Party government. The NP government originally proposed that the Norgaard principles should be used to determine who should reasonably be granted indemnity or amnesty. The principles had been successfully applied in Namibia and allowed amnesty for all those who had committed offences in the pursuit of political objectives - unless they had made use of egregious or disproportionate violence. However, the NP government was forced to abandon the Norgaard principles as the ANC’s price for returning to negotiations after 26 September 1992. The ANC demanded the release of all its cadres who were still in prison and insisted that political motive should be the only requirement.
The NP government adopted the Further Indemnity Act in November 1992 in terms of which the only substantive requirement for indemnity was political motive. 1 477 people were subsequently released from prison - the vast majority of whom were members of the ANC and allied organisations - and many of whom had been convicted for “necklace murders” and other egregious crimes.
One of the greatest failures of the NP’s negotiators was their inability to conclude a comprehensive amnesty agreement before the 1994 elections. However, the final paragraphs of the 1993 Constitution stated peremptorily that “amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past’ (emphasis added).
Nevertheless, the 1995 Promotion of National Unity and Reconciliation Act circumvented the clear intention of the interim Constitution and set conditions for amnesty that were far more onerous than those that the ANC had insisted on with regard to the release of its own supporters in terms of the Further Indemnity Act of 1992. The Act set a much higher standard for amnesty than political motive by requiring applicants to “make full disclosure of all the relevant facts relating to acts associated with a political objective” and to “comply with additional requirements set out in the Act.” It was then up to the TRC’s Amnesty Committee to decide whether or not the applicants had made a full disclosure. It was on this basis that the Committee refused amnesty to Janus Walusz and Clive Derby-Lewis for the assassination of Chris Hani - which, although reprehensible, had indisputably been a political act.
Because of an informal agreement between the ANC leadership and former operatives of the pre-1994 government, the NPA suspended its prosecutions of apartheid era crimes. However, in June 2019, in another matter affecting Rodrigues, the Gauteng High Court instructed the National Director of Public Prosecutions, Adv Shamila Batoyhi, to enquire whether improper influence had been brought to bear on the NPA in suspending apartheid era prosecutions.
The result would appear to be the NPA’s recently announced decision to proceed with the prosecutions. However, when it embarks on this course the NPA should give very careful consideration to the constitutional requirement that “everyone is equal before the law and has the right to equal protection and benefit of the law.”
It would accordingly be unacceptable to apply one standard to “apartheid era crimes’ and another to crimes perpetrated by anti-government organisations. And yet there is not the slightest indication in the NPA’s statement that it has any intention whatsoever to prosecute the latter. This is despite the fact is that the vast majority of the approximately 22 000 people who were killed in political violence between 1984 and 1994 died in the conflict between the ANC and the IFP or as a result of the actions of other anti-government organisations.
The struggle has been meticulously documented in Anthea Jeffery’s “People’s War” - in which she exposes the ANC’s campaign to eliminate its revolutionary competitors. Crimes committed by the ANC and other anti-government organisations included the assassinations of more than 400 IFP leaders and the necklace killings of more than 560 people. They also included the killing of 53 IFP protesters outside the ANC’s headquarters at Shell House on 28 March 1994. Little or nothing has been done to investigate these killings or to bring those responsible to account. Yet each of these deaths also left grieving families searching for closure.
The NPA should also recall that amnesty was not granted to 27 senior ANC leaders - many who are still alive - who had applied unsuccessfully to the TRC for collective amnesty and who were in overall command of the ANC’s revolutionary activities.
If the NPA chooses to prosecute only those from the anti-revolutionary side it will be in clear breach of its constitutional obligation to exercise its functions ‘without fear, favour or prejudice.’ If it does not act in a scrupulously even-handed manner, it will be difficult to avoid the perception that the trials that would ensue would be political trials.
The question arises why the NPA is so intent on pursuing a course of action that is likely to polarize even further our deeply divide society? Why is it committing so many of its limited resources to raking over crimes that occurred more than 27 years ago - instead of the prosecuting the rampant corruption that is tearing the country apart - or trying to bring to justice the killers of the 21 325 people who were murdered last year (i.e., almost the same number as those who were killed in the political struggle between 1984 - 1994)?
One-sided prosecutions would be irreconcilable with the 1993 Constitution’s call for ‘understanding but not for vengeance’; reparation but not for retaliation;’ and ‘ubuntu but not victimisation’.
FW de Klerk Foundation Editorial