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.
Judge Jody Kollapen is one of eight candidates who are being interviewed this week by the Judicial Service Commission to fill two vacancies on the Constitutional Court. In the course of his interview he is reported to have said that “in the transition to democracy, South Africans had perhaps focused too much on reconciliation and not enough on transformation.” He added that “reconciliation could not be achieved without transformation - without all South Africans accessing the economy.”
What did he mean by this? Reconciliation is a constitutionally mandated process that, according to the Preamble to the Constitution, is intended to “heal the divisions of the past”. It involves the difficult business of trying to resolve the painful historic divisions between black and white South Africans - a process that Nelson Mandela managed with such sensitivity. Its goal is the promotion of national unity on the basis of the rights and values in the Constitution.
Does Judge Kollapen think that we have now had enough reconciliation - that we should permit already frayed race relations to deteriorate further? And can he perhaps point to instances during the past fourteen years when the government of the day has actually continued with the process of reconciliation - when it has made South Africans from all our minorities feel at all welcome in the country of their birth?
He also seems to think that there is a contradiction between transformation and reconciliation - that South Africa cannot have both at the same time. That, of course, depends on what one understands by ‘transformation’. If transformation means the establishment of “a society based on democratic values, social justice and fundamental human rights” - as indicated in the Preamble - and the improvement of “the quality of life of all citizens and the freeing of the potential of every person” then everyone should enthusiastically support it. Transformation of this kind can and must be achieved without limiting anyone’s rights and freedoms and without violating the foundational values of non-racialism, equality and human dignity.
However, if ‘transformation’ means that the judiciary should support the ideological program of the ruling party then there is a very serious problem. The ANC has been calling for precisely such support since 8 January 2005 when it insisted that “the collective mind-set of the judiciary” should be transformed “to bring it into consonance with the vision and aspirations of the millions who engaged in struggle to liberate our country from white minority domination.”
The latest iteration of the ANC’s ideological program is Radical Economic Transformation which is 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, as defined by the governing party, which makes policy for the democratic government.” What the ANC envisages is a massive redistribution of property, jobs and land on the basis of demographic representivity - with far-reaching implications for the constitutional rights of minorities. Is this, perhaps, what Judge Kollapen means by “all South Africans accessing the economy…?”
The impression is also created that those who are the “beneficiaries” of reconciliation - to be blunt, white South Africans - are somehow also responsible for the unacceptable plight of many of their black compatriots? Is this really so?
Judge Kollapen was, perhaps, preaching to the choir during his interview since the JSC has long been an ardent champion of transformation based on a continuing black/white struggle. Although the courts have an admirable record on governance issues they have increasingly tended to be transformation-minded on issues involving language, culture and affirmative action - indeed on many of the provisions that were included in the Constitution at the insistence of non-ANC parties: Examples include the following:
- the language provisions in Section 6 are for all practical purposes simply being ignored;
- protection against unfair racial discrimination in Sections 9(3) and (5) has for the most part been rescinded in matters relating to the promotion of equality in terms of Section 9(2);
- the right to education in the language of choice in terms of Section 29(2) has been whittled away to such an extent that Afrikaans is unlikely to survive as a university language;
- the right to culture in Section 30 has been eroded to the point where two judges of the Constitutional Court felt it necessary to comment, in 2016, in City of Tshwane Metropolitan Municipality v AfriForum, that “the implication that may be drawn from the first judgment is that any reliance by white South Africans, particularly white Afrikaner people, on a cultural tradition founded in history, finds no recognition in the Constitution, because that history is inevitably rooted in oppression”;
- any notion that South Africa’s languages enjoy ‘parity of esteem’ was ended in December 2017 when the Constitutional Court, in its appeal hearing of University of the Free State v Afriforum and Solidarity, declared that Afrikaans would forever be blighted by its ”associations of discrimination, oppression and systematic humiliation of others” - (despite the fact that a majority of its speakers were also victims of apartheid); and
- last year the North Gauteng High Court ruled that the Department of Tourism could include BBBEE criteria in its allocation of tourism COVID-19 relief - thus effectively cutting off struggling white-owned companies from assistance regardless of the fact that most of their employees were not white.
These developments have very serious implications for our “multiparty system of democratic government” that is a foundational requirement in Section 1 of the Constitution. Democracy depends absolutely on the recognition by the majority and by the courts of the rights of minorities - including their right to equal protection and benefit of the law. The courts have a special duty to protect the rights of minorities because minorities - by definition - are excluded from legislative and executive power. The courts are, indeed, the only guarantor of their rights - but what happens if the courts choose not to play - or to dilute - this role?
The only factor that the JSC should consider when it comes to the mindset of candidate judges is the clear injunction in Section 165(2) of the Constitution that: “The courts are independent and subject only to the Constitution and the law which they must apply impartially without fear, favour or prejudice.” This means that judges cannot adhere to any extraneous ideology when playing their crucially important role in upholding the rights of all South Africans from all our communities. They must leave their personal political preferences and ideologies at the courtroom door - particularly ideologies based on the false, manufactured and dangerous premise of a continuing struggle between black and white South Africans.
Strict adherence to the rule of law and the rights and values in the Constitution would also be one of the best ways to promote both reconciliation and genuine transformation.
FW de Klerk Foundation Editorial
Reports that students have been prohibited from speaking Afrikaans - even in private conversations - at the University of Stellenbosch - are deeply disturbing. They are the latest development in the sorry decline of the language at South Africa’s oldest (and once-upon-a-time) Afrikaans university.
According to an article in Rapport on 14 March
- female students allege that they have been threatened with punishment if they speak with one another in Afrikaans in their residences;
- 17 out of 18 students surveyed at the University’s Tygerberg Campus reported that they had been “spoken to” because they had used Afrikaans in their residence;
- students at the Minerva residence said they had been warned that they would be excluded from the residence’s welcoming programme if they used Afrikaans in informal spaces;
- some students had been threatened when they had asked for Afrikaans to be used in dual language classes; and
- students said that they had reported these problems to the university authorities without much reaction.
In a statement on 10 March the University appeared to dismiss these charges as “misconceptions and untruths”. However, it did not deny that they had occurred. It simply said that they were “still being investigated” - but that if they had occurred “it would be due to an incorrect application of the (University’s English-dominant) 2016 Language policy - and would not be “condoned” by the University (emphasis added).
The University went on to insist that it would “continue ensuring that a welcoming atmosphere is created for all students to thrive as they make Stellenbosch their academic home.” Well, if there is any truth in the allegations in the Rapport article, the students involved have definitely not experienced “a welcoming atmosphere”.
If the University wishes to be true to the spirit of inclusivity it must investigate the latest allegations with all the rigor with which it has, in recent years, investigated - and responded to - complaints of exclusion from other sections of the student body.
- In 2015 it reacted quickly, comprehensively and sympathetically to the systemic complaints lodged by the Open Stellenbosch movement;
- In September 2015, the Executive Committee of the University Council, castigated one of the Council’s Members, Piet le Roux, for an “anti-transformational statement” that he had posted on Twitter - and called for “possible sanctions” against him. Le Roux’s tweet, posted in his personal capacity and directed at the existential problems facing Afrikaans as a university language throughout the country, stated that “Blade Nzimande and ‘transformania’ won’t win. Support the Afrikaanse Alumni Association”. Le Roux was, no doubt responding to a statement that Higher Education Minister, Blade Nzimande, had made on 13 May, that “there remains an urgent need to radically change the demographics of our professoriate; transform the curriculums and research agendas; cultivate greater awareness of Africa; eliminate racism, sexism and all other forms of unjust discrimination; improve academic success rates and expand student support.”
- In February 2016, the University took rapid and draconian action against two female students who had been accused of “black-facing” (it later transpired that the young women, who were traumatized by their treatment, had actually dressed up as aliens - with purple faces - for a fancy-dress party).
During the past 20 years the university’s language policy has moved from Afrikaans as the unquestioned primary medium of tuition; to a situation where it was the default position; to parity with English; and, since 2016, to the primacy of English - and now, to allegations that even the private use of Afrikaans is being informally discouraged. How has this happened - in a province where Afrikaans is the primary language and where there are already three other universities that provide tuition in English?
These developments have been driven, overwhelmingly, by the University’s own predominantly Afrikaans-speaking leadership. Most of those involved are decent, intelligent and honourable people. However:
- some see themselves, in the first place, as academics committed to promoting world-class standards. They reject the idea that universities have any special role in promoting this or that language. They sincerely believe that academic excellence can be better achieved by adopting the world language, English, as the sole language of tuition;
- others have bought into the ANC’s argument that Afrikaans is a language of exclusion - and that it is indelibly tainted by its association with the past. They are ashamed of the role of Afrikaans universities under apartheid and are determined to jettison any associations with their pre-1994 Afrikaans identity as fast as they can;
- others believe that they will inevitably have to bow to the demands of the ANC Government and protesting students to transform in the direction of demographic representivity. They imagine that the more they co-operate, the better they will be able to ring-fence core academic interests;
- many Afrikaans commentators, students and parents have - for purely practical reasons - little problem in accepting the switch to English. They think that emersion in English will assist them in a country where it has become virtually the sole language of business and government. It will also be better for their children to study in English should they decide one day to emigrate.
The University will be reviewing its language policy this year. This will be an excellent opportunity for it to investigate in depth, the degree to which its 2016 policy is achieving its stated objectives. It should conduct a rigorous assessment of the actual language situation at the university based on independent monitoring and confidential opinion surveys, to establish:
- to what extent it is actually giving effect to section 29(2) of the Constitution that states that “everyone (and in particular, Afrikaans-speaking students in the Western Cape - most of whom are Coloured) has the right to receive education in the official language or languages of their choice in public educational institutions…”
- how, exactly, does the progressive erosion of Afrikaans at the university “advance multilingualism”?; and
- is there any basis to the concerns expressed by Afrikaans-speaking and other sections of the student body that they feel linguistically and culturally excluded? Is the principle of inclusivity being applied equitably to all sections of the university community and student body?
South Africa’s future as a multicultural and multilingual society might be at stake.
By Dave Steward, Chairman of the FW de Klerk Foundation
The following open-ed by former President FW de Klerk was published by The Guardian on 10 March 2021.
TO PROTECT WOMEN FROM VIOLENCE TODAY, WE MUST SECURE JUSTICE FOR VICTIMS IN THE PAST
South Africa’s former president during apartheid calls for the pandemic to be a turning point in strengthening the rule of law and empowering survivors.
Violence and sexual assault have surged across the globe since the onset of Covid-19, in what the UN has called a “shadow pandemic”. Even before the pandemic, one in three women experienced physical or sexual assault globally, the World Health Organization reported this week.
In Africa, the impact has been particularly acute. In the first half of 2020, a rise in reported cases prompted Liberia’s President Weah to declare rape and all forms of gender-based violence a national emergency.
The UN’s mission in Central African Republic reported a 27% increase in instances of rape, and in Kenya 4,000 schoolgirls reportedly became pregnant during school closures, many at the hands of relatives and state officials.
The same has happened in my country, South Africa. Gender-based violence (GBV) has been exacerbated by lockdown measures, making girls and women more vulnerable to attack and reducing their ability to access support systems.
Support centres recorded a 65% increase in calls from women and children confined to their homes. Last year, President Cyril Ramaphosa announced the establishment of a GBV national council - but rape and femicide continue unabated.
The rule of law, access to justice and due process are core components of gender equality, and remain the foundation through which people’s rights can be upheld and enforced. However, courts have closed, trials have been suspended and victims have fewer legal services available at a time when they need them the most. As noted by the UN Office on Drugs and Crime, “resources are being diverted away from the criminal justice system towards more immediate public health measures to deal with Covid-19”.
Problems persisted well before the pandemic. Deep societal divisions, political strife and underfunded institutions have tested the rule of law in many countries, leading to civil unrest, and often war. In these situations, limited state authority and lawlessness favour the prevalence of sexual violence and enable a culture of impunity.
Recognising that a weakened rule of law facilitates the conditions that enable sexual violence, the international community has in recent years taken steps to strengthen governments’ ability to deliver justice for survivors.
In 2009, the UN security council established a team of experts to support national legal systems to address impunity, enhance criminal accountability and encourage an holistic approach to address sexual violence in conflict.
The team of experts has since led impactful engagements in some of the world’s most challenging contexts, including Central African Republic, Mali and Sudan. Furthermore, the momentous creation of two ad hoc international criminal tribunals for the former Yugoslavia and Rwanda saw firm resolutions from the international community that incidents of sexual violence should be punished, and perpetrators should bear criminal responsibility. Successful prosecutions have followed, providing hope for many.
However, if we are to root out the issue of sexual violence in its entirety, our efforts to ensure that legal protection and remedies are afforded to present-day victims must be accompanied by a concerted effort to secure justice for victims of historic war crimes.
For many survivors, justice remains unobtainable. The Lai Dai Han are the dual-heritage children of Vietnamese women raped by South Korean soldiers during the Vietnam war. They have been waiting for justice for many decades, during which they have faced stigma, shame and prejudice. Despite their plight, the government of South Korea has never acknowledged the Lai Dai Han, nor investigated the allegations. Without securing justice for disenfranchised groups, the international community is not doing everything possible to tackle sexual violence and hold all perpetrators accountable.
We are living at a pivotal moment in history when we have the opportunity to craft a more equal, just and peaceful world.
Safeguarding women is contingent on rectifying the past. Holding perpetrators accountable, irrespective of how long ago the crime was committed, is essential to stamping out impunity and preventing future atrocities. As noted last year by Pramila Patten, the UN special representative of the secretary general on violence in conflict: “There are countless stories that are shrouded in silence and left off the historical record … in this climate of intersecting crises … it is time to amplify and unmute the voices of women.”
However, as we in South Africa have learned, the struggle against gender-based violence will require more than legislation and pious political speeches. It will require fundamental changes in deep-seated patriarchal relationships and in chauvinistic male mindsets that fail to respect the essential equality, humanity and inviolability of half the population of the world.
We are living at a pivotal moment in history, where we have the opportunity to craft a more equal, just and peaceful world.
Let us use the crisis as an opportunity to apply lessons learned, rectify previous misgivings, and support our neighbouring states to strengthen the rule of law and empower survivors of injustice.
The FW de Klerk Foundation has taken note of the differing manner in which the Judicial Services Commission of South Africa (JSC) appears to investigate complaints against members of the judiciary.
The JSC is a constitutional body in terms of section 178 of the Constitution (read with the Judicial Service Commission Act 9 of 1994). The primary functions of the Commission are to interview candidates, and make recommendations, for appointment to the bench as well as dealing with complaints brought against the Judges.
The JSC’s judicial conduct committee recently rebuked Chief Justice Mogoeng Mogoeng for comments he made during 2020 on the Israeli-Palestinian conflict – in which he criticised SA’s foreign policy – as well as his continued defiance after the comments drew a major response. Chief Justice Mogoeng defended himself by saying his comments were made as a Christian. However, Judge Phineas Mojapelo, a member of the JSC’s Judicial Conduct Committee tasked with probing three complaints laid against Mogoeng, emphasised that the complaint was not about freedom of religion or freedom of expression but “merely about whether the code of conduct for judges was breached”.
Mojapelo found that comments about the Israeli-Palestinian conflict made by Mogoeng in a webinar hosted by The Jerusalem Post amounted to “a breach of the code of conduct for judges and that Mogoeng had got himself involved in a political controversy”. According to Mojapelo “judges are to stay out of politics and are only permitted to pronounce on the legal and constitutional boundaries that may apply to those politics. When called upon to pronounce, they do so on the basis of the Constitution and the law and not on the basis of any preconceived notions – not even religion – however committed to those notions. That is what the Constitution and their oaths or affirmation bind them to”.
The committee also found Mogoeng breached a number of other articles in the code, including one that precludes judges from using the prestige of their judicial office to advance their private interests.
The Chief Justice has been ordered to apologize for his comments.
However, the expeditious manner in which the JSC investigated and concluded this matter stands in sharp contrast to the manner in which it has conducted itself when investigating complaints against other members of the judiciary – most notably judge John Hlope, who is the Judge President of the Western Cape High Court.
Complaints against Hlope –as well as his fitness to be a judge - go back as far as 2005 when he reportedly called an attorney, Mr Josua Greeff, “a piece of white sh*t”. In 2006 the JSC received complaints that Hlope had been receiving a monthly retainer from the Oasis Group and that he had failed to declare this interest – as is required from judges - when ruling in a matter concerning the same group. In 2008 Hlope’s fitness for office was again called into question when all the then judges of the Constitutional Court made a complaint to the Judicial Service Commission (JSC) that Hlophe had sought to influence Constitutional Court Justices Jess Nkabinde and Chris Jaftha in the outcome of cases pending before that court and connected to the corruption prosecution of former president, Jacob Zuma. After a 12 year delay the JSC reserved its judgment on the case in 2020.
Concerns were again raised during 2019 when Hlople personally intervened in a judgment made against his personal attorney, Barnabas Xulu. The most recent storm involving Hlope is his acquittal of Bongani Bongo, a former Minister in Jacob Zuma’s Cabinet, and a senior member of the so-called radical economic transformation faction in the ANC. The acquittal and the manner in which the case was handled by Hlope, have been widely criticised.
The JSC has a constitutional mandate to determine whether any judge against whom a complaint has been lodged is guilty of gross misconduct. Laws and procedures for doing so have been carefully formulated and these should be applied “diligently and without delay”.’ If the code of judicial conduct is enforced against one judge, it must be applied equally to another.
In terms of section 177(3) of the Constitution, the President, may, on the advice of the JSC, suspend a judge who is the subject of a (disciplinary) procedure.
The question arises in why this measure has not been invoked with regard to Judge Hlope - in the light of the fact that he has been accused of gross misconduct on numerous occasions -including the complaint against him by all the then justices of the Constitutional Court. The question may also be asked why the JSC has claimed that “it has no say in the matter’ and why Hlope has indeed not been suspended?
The numerous allegations against Judge Hlope must be properly investigated in accordance with the JSC’s Code of Conduct. It is essential that, as the guardian of the integrity and independence of the judiciary, the JSC’s own conduct should be beyond reproach and should be exercised in a manner that is fair, impartial and consistent with the Constitution.
Issued by the FW de Klerk Foundation
5 March 2021
Graeme Williams, MediaClubSouthAfrica.com
There have been extensive media reports that Mr De Klerk’s health “is rapidly deteriorating”. This is not so. There has been no discernible deterioration in his health since he was diagnosed in March with mesothelioma - a cancer that affects the lining of the lungs. He is now considering the continuation of the course of immunotherapy that he has been following for the past two months.
Mr De Klerk attended a meeting of the FW de Klerk Foundation Board yesterday - and comes into his office three or four times a week. He and his wife, Elita, hope to travel to Greece for a holiday as soon as COVID regulations permit.
Issued by the FW de Klerk Foundation
8 June 2021
In the uncertain circumstances created by the ongoing Covid-19 pandemic, it is often hard for all of us to find courage, inspiration and - perhaps most importantly - hope.
The above is perhaps even more acute for those in the medical field who find themselves on the frontline of the pandemic - Doctors. Nurses. Carers. Researchers. Hospital staff and other medical practitioners.
On Friday 12 February 2021 former president FW de Klerk together with his wife, Mrs Elita de Klerk, and the Foundation’s chief executive officer, Adv Jacques du Preez, met with a small, dedicated group of people: Staff of the Panorama Mediclinic in the Western Cape. Mrs de Klerk, on behalf of the FW de Klerk Foundation, presented to the Mediclinic staff a large consignment of chocolates as a small token of sincere thanks for their continuous and selfless service to so many during these challenging times.
The emotional occasion reminded everyone present that even the smallest gesture, kind word or message of gratitude at any time, but especially during this pandemic, can have a tremendously positive ripple effect. And this, gives hope.
The FW de Klerk Foundation wishes to thank all South Africa’s medical frontline defenders - and so many others - who remain involved in the fight against the pandemic and, in doing so, provide the rest of us with so much hope.
‘N KLEIN GEBAAR VAN HOOP
In die onsekere omstandighede wat teweeg gebring word deur die voortdurende Covid-19 pandemie is dit soms moeilik vir ons almal om moed te vind, inspirasie en ook - dalk die belangrikste - hoop.
Hierdie is dalk selfs meer akuut vir diegene in die mediese veld wat hulself bevind op die voorste linie van die pandemie - Dokters. Verpleegsters. Versorgers. Navorsers. Hospitaal personeel en ander mediese praktisyns.
Op Vrydag 12 Februarie 2021 het voormalige president FW de Klerk saam met sy vrou, Mev Elita de Klerk en die Stigting se hoof uitvoerende beampte, Adv Jacques du Preez, ‘n klein toegewyde groep mense ontmoet: Personeel van die Panorama Medikliniek in die Wes-Kaap. Mev de Klerk het namens die FW de Klerk Stigting ‘n groot besending sjokolade aan die personeel oorhandig as ‘n klein gebaar van opregte dank vir hul volgehoue en onbaatsugtige diens aan soveel ander gedurende hierdie uitdagende tye.
Die emosionele geleentheid het almal teenwoordig daaraan herinner dat selfs die kleinste gebaar, gawe woord of boodskap van dankbaarheid te enige tyd, maar spesifiek gedurende die pandemie, ‘n geweldige positiewe rimpel effek kan he. En dit, gee hoop.
Die FW de Klerk Stigting bedank al Suid-Afrika se voorste linie mediese verdedigers - asook soveel ander - wat betrokke bly in die stryd teen die pandemie en sodoende soveel hoop aan die res van ons gee.
Issued by the FW de Klerk Foundation
16 February 2021
ZUMA’S REFUSAL TO COMPLY WITH THE CONSTITUTION AND TO OBEY THE CONSTITUTIONAL COURT
The FW de Klerk Foundation welcomes the strong reaction of the Zondo-Commission in responding to Jacob Zuma's statements that he will not obey a summons to appear before the State Capture Inquiry. The Commission (the State Capture Inquiry) is on record as having stated that such an act by the former President showed that he considered himself to be ‘above the law and the Constitution’.
The order of the Constitutional Court compels Mr. Zuma to comply with a summons by appearing before it and answering questions that may be put to him. In terms of the summons Mr Zuma is due to appear before the Commission between 15 and 19 February 2021.
The Commission went further to note that “while Mr Zuma refuses to comply with the Constitution and to obey the order of the Constitutional Court, on the one hand, he continues to enjoy the benefits that the Constitution grants to all former Presidents in terms of his pension and other benefits paid for by the taxpayers’.
Zuma, has in the meantime, made it clear he will not comply with the Constitutional Court order and the summons to appear before the Commission and would rather face jail time.
The secretary of the Commission has been instructed to lay a criminal complaint against Zuma for not appearing on 18 to 22 January 2021.
One of the founding values of the South African Constitution is ‘supremacy of the Constitution and the rule of law’ and section 9(1) of the Bill of Rights determines that ‘everyone is equal before the law’.
Mr Zuma’s conduct not only amounts to blatant contempt of the Commission but also shows a clear disregard for the rule of law, the Courts and the Constitution. If Mr Zuma wants to call on the protection of the law in defence of his rights, he must also act in accordance with the law, as other law-abiding citizens must do.
It is imperative that Mr Zuma is dealt with decisively by the Commission, the relevant authorities and the courts. Failure to do so would set a dangerous precedent: it would undermine both the rule of law and President Ramaphosa’s efforts to restore integrity in government.
Issued by the FW de Klerk Foundation
3 February 2021