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.
Recent statements made by a senior advocate, Tembeka Ngcukaitobi, who is currently serving in an acting capacity as a judge in the South African Land Claims Court, raise a number of considerations and serious questions about what constitutes South Africa’s constitutional project - particularly when considering the possibility of expropriation of property without compensation (EWC).
According to reports in Business Day1 and Legalbrief2 Ngcukaitobi recently stated that “it is an exaggeration to say that expropriation without compensation will collapse the banking sector” and that “banks seemed reluctant to play a role in correcting structural inequalities”.
The reports indicate that Ngcukaitobi made these and other statements during a webinar organised by the Wits School of Governance to discuss his new book, Land Matters: SA’s Failed Land Reforms and the Road Ahead.
It is reported that Ngcukaitobi said “banks must think seriously about their involvement in the constitutional project at the heart of which is reparation, the restoration and creation of an equitable society”.
Ngcukaitobi is the author of a book titled ‘The Land is Ours’ which was released in 2018 and also served on an advisory panel (appointed by President Cyril Ramaphosa in September 2018) on land reform in South Africa as part of South Africa’s ongoing land reform process.
According to the reports “banks have an estimated R1.6trn in property loans that include land‚ commercial property as well as home loans” and further that the “Banking Association of South Africa (BASA) has recently warned that expropriation without compensation (EWC) could spark an economic crisis in South Africa if implemented, much like the 2007/2008 global recession that started with the downturn in land-based property in the United States”.
The above refers to BASA’s submission to parliament on 30 January 2020 regarding the amendment of Section 25 of the Constitution in which it warned that land reform should take place in an orderly manner that does not dilute property rights.
According to BASA -
“A marked decrease in the value of land-based property, caused by either an amendment to legislation and/or market uncertainty, and the resultant reduced appetite from property buyer could destabilize the banking sector and have a negative impact on the credit rating of the sector and the country.”
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.”3
The reports further indicate that Ngcukaitobi stated “if you think of how they (banks) have been opposed to any model of justice and equity, not just expropriation without compensation, what it simply means is that the banks want to be excluded from the risk of addressing historical disadvantages”.
The reports indicate lastly that Ngcukaitobi stated “if you put all the numbers together - their own claims and the impact of expropriation without compensation - largely the claims are vastly exaggerated. It is not as if introducing expropriation without compensation on a targeted basis for specific classes of property will bring down the entire banking industry”.
Ngcukaitobi’s comments as reported raise a number of considerations and also serious questions about what constitutes South Africa’s ‘constitutional project’?
Firstly - South Africa’s ‘constitutional project’ and its’ goals are set out very clearly, and in unambiguous terms, in section 1 of the Constitution stating that South Africa is one, sovereign, democratic state founded on the values of human dignity, the achievement of equality, the advancement of human rights and freedoms, nonracialism and non-sexism as well as supremacy of the constitution and the rule of law.
As regards property rights the Constitution is also very clear: Section 25(1) states that no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. Further, property may be expropriated only in terms of law of general application for a public purpose or in the public interest; and subject to compensation. The amount of the compensation and the time and manner of payment must be just and equitable.
Land reform and the expansion of property rights to all South Africans to address our past, is of the utmost significance - it remains an emotive issue that most certainly forms part of South Africa’s constitutional project.
It is however, not the only building block of our constitutional project.
To want to introduce EWC as a ‘silver bullet’ to address land reform is ill-informed and South Africa can only learn from countries where similar, targeted policies were implemented - such as Venezuela, Syria and Zimbabwe.
Secondly - the present formulation of section 25 of the Constitution constitutes a proper legislative framework and should be used to speed up the land reform process and extend property rights to all. The failure of effective land reform in South Africa cannot be ascribed to the payment or not of compensation - instead it must be ascribed primarily to the incapability of the government departments involved in the administration of land reform as well as corruption - this was confirmed and reiterated by the 2017 High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change (the “High Level Panel Report”) which was chaired by former president Kgalema Mothlanthe.4
Indeed, Ngcukaitobi’s recent comments stand in sharp contrast to statements he made on EWC during 2018 when his book (‘The Land is Ours’) was launched when he conceded that the payment of compensation was not the problem facing effective land reform - in an interview at the time with Eyewitness News (EWN) Ngcukaitobi stated that “compensation is not the stumbling block to land reform, the lack of political commitment from government, corruption and weak institutions are”.5
The ongoing politicized narrative -driven by the ANC’s policy of radical economic transformation- that EWC is needed to speed up land reform to redress the wrongs of apartheid, is incorrect.
Section 25, in its current format, deals specifically with land reform and places a positive obligation on the government to indeed take positive action in expanding and entrenching property rights for all South Africans - including previously disadvantaged South Africans.
The narrative that has been created which inaccurately advocates that section 25 in its current form serves as an impediment to accelerated land reform in South Africa, and for this reason EWC is needed as encapsulated in the Expropriation Bill, is fallacious - ultimately, blaming the Constitution (specifically section 25 in its current format) and seeking to introduce EWC through the Expropriation Bill as redress for the failures of government, is inappropriate as success with land reform, as part of South Africa’s constitutional project, depends on not only compliance, but also adherence, by government.
* Want to know more? Listen to the FW de Klerk Foundation’s recent Podcast on EWC and the Expropriation Bill here.
- Expropriation without compensation will not collapse banks, says Ngcukaitobi (businesslive.co.za)
- Legalbrief Today Home Page
- PUBLIC SUBMISSION TO THE AD HOC COMMITTEE ON THE AMENDMENT OF SECTION 25 OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996 (CONSTITUTION EIGHTEENTH AMENDMENT BILL); Banking Association of South Africa, 30 January 2020.
- HLP report.pdf (parliament.gov.za)
- Ngcukaitobi: ANC-led govt has failed on land reform, not best suited to lead it (ewn.co.za)
In his recent article on “The Crucifixion of FW de Klerk” News24 journalist Pieter du Toit writes, with very little sympathy, of the growing rejection of the former president’s legacy. De Klerk, who announced on his 85th birthday on 18 March that he is suffering from mesothelioma - a cancer that affects the tissue lining of the lungs - and has just begun a course of immunotherapy.
Du Toit compares De Klerk with Mikhail Gorbachev who was described by Barack Obama as “…a strangely tragic figure…who was a largely disdained…in his own country.” He is right: there are elements of tragedy in De Klerk’s present situation. King Lear came to mind on 13 February last year as he and his wife Elita sat with quiet dignity in the gallery of the parliament that he helped to create, while he was howled at for over an hour by rampaging red-clad EFF MPs.
De Klerk is disdained by some in his own country - by woke journalists and commentators; by the ANC who insist that they forced him to end apartheid - and by the right - that excoriates him as a sell-out. There are also those in the centre who agree that transformation was necessary - but believe that they could have managed it so much better…
That is where the similarity between De Klerk and Gorbachev ends. Gorbachev wanted to reform - and not dismantle - communism. It was never his intention to abolish communism or to break up the Soviet Union. He completely lost control of his reform process and was swept aside by the forces that he unleashed.
De Klerk - by contrast - set out from the beginning of his presidency to abolish apartheid and to negotiate a new non-racial constitutional democracy. As Niccolò Machiavelli observed six hundred years ago “There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things.”
So it proved with South Africa’s transformation - and yet De Klerk held the process together for four tumultuous years. His unique contributions were his realisation, after the fall of the Berlin Wall, that the time would never again be so favourable for successful negotiations; the speed and decisiveness with which he took all the steps necessary to launch the process; and the skill and perseverance with which he kept the negotiation roller-coaster on the tracks - despite numerous crises, bitter criticism, faceless violence, and walk-outs by the ANC and the IFP. Remarkably, he succeeded in keeping his support base together despite all the crises that it was experiencing. He won 69% of the support of the white electorate in the referendum of March 1992. There were no defections from his cabinet or caucus - and in the 1994 election he won the support of a majority of all South Africa’s minorities - as well as the votes of more than 500 000 black South Africans.
Other leaders would either have withdrawn into a grim and ultimately suicidal lager - or would have fallen into the Ian Smith trap of making piecemeal concessions and negotiating a final deal only after the balance of forces had swung decisively against them.
De Klerk’s leadership led to the adoption of an interim constitution in December 1993 that that achieved nearly all the goals that he had set on 2 February 1990. It involved painful compromises by all sides - including the ANC - and provided the foundation for our present battered - but still functioning - constitutional democracy. De Klerk could have withdrawn into comfortable and well-earned retirement but has instead spent the past 27 years trying to defend the constitution that he helped to negotiate against erosion by the National Democratic Revolution.
Du Toit claims that “De Klerk has never shown signs that the… dismantling of apartheid… was borne from any moralistic or ethical consideration”. This is simply untrue. De Klerk has repeatedly stated that his prime motive in initiating the transformation process and in abolishing apartheid was his deep conviction that it was morally unacceptable. Equally untrue is Du Toit’s accusation that De Klerk never apologised unreservedly or unconditionally for apartheid.
On 15 May 1996 he gave a full and unconditional apology before the TRC. He has apologised for apartheid on many, many occasions since then - but never frequently enough for his critics. On 1 October last year he reaffirmed, once again, the need to apologise for the harm inflicted by apartheid - “as I have done, with genuine sincerity, on numerous occasions. My apology is not just words and lip service. It is grounded in a deep and growing understanding of the pain, humiliation and damage that apartheid has caused for a majority of all South Africans.”
But much more important than verbal apologies was the action that De Klerk and his colleagues took to end apartheid for once and for all by repealing the last apartheid laws and by opening the way to a non-racial constitutional democracy. They did so despite the enormous risks involved; despite their overwhelming military power and despite the fact that, even with sanctions, the economy was still growing by 2,7%.
Their action in contributing to the transformation of South Africa is now being airbrushed out of history by the commentariat and the ANC - which has declared its intention of depicting pre-1994 leaders as “folk devils”. However, without De Klerk’s contribution the lives of everyone who has lived in South Africa during the past 31 years (including Mr Du Toit’s?) might have been very different - and in all likelihood - very much more problematical. As President Mandela observed, at De Klerk’s 70th birthday in 2006:
“There is almost unchallenged recognition and appreciation that without the courageous foresight of FW de Klerk we might well have descended into the destructive racial conflagration that all were predicting… What more can I add but to repeat what I have said so often over the last 16 years? You have shown courage as few have done in similar circumstances.”
15 years later, in the age of critical race theory and pervasive “white guilt”, De Klerk’s legacy is no longer unchallenged - or much appreciated. The man who dedicated his presidency to the abolition of apartheid and who succeeded in the difficult, perilous and uncertain task of introducing “a new order of things” - is usually labelled as “the last apartheid president”.
It is a bit like calling Abe Lincoln “the last slavery president.”
By Dave Steward, Chairman of the FW de Klerk Foundation
South Africans continue watching with mixed feelings ranging from anxiety to amusement the power struggle for control of the ruling ANC playing out between two factions - one aligned with President Cyril Ramaphosa, the other with former president Jacob Zuma and ANC Secretary-General (SG) Ace Magashule. Whatever one’s views are, these battles are negatively impacting governance to the detriment of the country.
By the end of April, or possibly even sooner, we will know whether Magashule will have either stepped aside voluntarily from his position as SG or will have been suspended by the ANC, as per a decision of the National Executive Committee (NEC). Either option might end Magashule’s political career, or it could trigger an escalation and continuation of the current battles in any one of various possible permutations. We may also soon have a clearer idea of what Zuma’s fate and his next move will be. But it’s not in the nature of either man to go quietly.
The simplest view of the current factional conflict is that both the main protagonists of the one faction, Zuma and Magashule, are facing corruption trials, while the main protagonist of the other faction, Ramaphosa, is pursuing an agenda of cleaning up corruption and bringing the culprits to book.
However, to understand the current battle and what may yet follow, it is important to know that this is not merely a fight for dominance between those who previously had power - the corrupt - and those who replaced them - the corruption busters. While the superficial manifestation of the current struggle may lend itself to such views, it is much more complex and rooted much deeper and farther back.
The real problem
The current factions are not the real problem. It is the ANC itself with its ‘broad church’ character; its strong penchant for centralised control via its destructive policy of cadre deployment together with racially defined economic regulation for so-called transformation, all of which facilitate corruption; and the ideologically driven strategic interventions of the SA Communist Party (SACP) in the affairs of the ANC.
Unless these issues are fully and properly addressed - which is unlikely - factions, divisions and turf battles will continue emerging long after the current ones have been forgotten.
Factional divisions in the ANC are nothing new. After moving away from its original African nationalist orientation decades ago due to the machinations of the communists (mostly whites, Indians and coloureds), the ANC adopted its ‘broad church’ character which endures to this day. It has been, at various times, both its strength and its weakness.
Through this it has sought to accommodate the broadest, most diverse or heterogenous collection of interest groups, factions, tendencies, ideological strands and more. Over the ANC’s history this has frequently led to factional divisions, competing interest-based groups, and splinter or breakaway groups.
Strategic and ideological direction
In previous years, however, differences and factional divisions were always more easily resolved or settled - through agreement, expulsion or breakaways. This was because back then the ANC enjoyed greater moral integrity, while it also always had ideological and strategic perspective and direction. Outwardly the latter was broadly driven by a consensual and unified focus on a common enemy - apartheid.
Internally and more narrowly, this ideological and strategic perspective was devised and driven by the SACP in its piggyback alliance with the ANC, and through its parasitic dual membership of both organisations. The SACP acted as the ANC’s brain trust and its perspective went well beyond the end of apartheid to the eventual creation of a socialist state.
Inadvertently the SACP itself, however, would play a big role in bringing about the current instability in the ANC and the state and thereby undermining the role of moral integrity and ideological and strategic perspective and direction. It did so when, in 2007, it went after then President Thabo Mbeki for ideological reasons and played a key role in his removal. This allowed Zuma to enter through the backdoor and start his destructive reign and the build-up to the current factional war.
The SACP has featured as a common denominator, directly or indirectly, in all previous major factional divisions and splits or breakaways of the ANC - from the PAC in 1959, to the Gang of 8 in 1975, the UDM in 1997 (but more particularly in 2008 after the fall of Mbeki), the Congress of the People in 2008, and the EFF in 2013. And now again in the current factional war, which many believe to be a consequence of the period of state capture under Zuma.
Who really captured the state?
However, it wasn’t Zuma and his friends, the infamous Gupta brothers, who first captured the state. The state had long before been captured by the ANC through its implementation of the largely SACP-devised doctrine of a National Democratic Revolution (NDR). For this it employed the destructive policy of ‘cadre deployment’ to ‘seize control of all levers of state power’, as instructed in successive versions of the ANC’s Strategy & Tactics.
The SACP viewed the NDR as the first stage of its two-phased revolution, the second part being South Africa’s transition to socialism, or radical economic transformation (RET) as it is now referred to. In the SACP context, this is an ideological power construct. In the context of the Zuma/Magashule faction, or RET faction as they are now known, RET is a populist mobilisation tool and a means to a political end. In neither context does it have much to do with economic transformation for the betterment of all.
Until now South Africa’s 1996 Constitution has formed a bulwark of protection against the SACP’s aims. But along the way another problem arose - Mbeki. During his presidency, the ANC and SACP grew increasingly apart, the SACP’s ideological aspirations were being frustrated, and the previous Alliance-based relationship faced imminent termination.
From Mbeki to Ramaphosa
Referring derisively to Mbeki’s ‘neo-liberal’ policies (his Growth, Employment and Redistribution macro-economic strategy) and the so-called “class project of 1996” (a reference to the constitutional settlement), the SACP mobilised COSATU - in which it has always had a controlling stake - together with various ANC formations and factions to replace Mbeki with Zuma at the ANC’s Polokwane National Conference in 2007. Two years later Zuma replaced him as national president.
But instead of Zuma restoring the Alliance relationship and the SACP’s role and influence, his administration allowed unfettered access to his friends, the Guptas, to share in the spoils of a state already captured by the ANC. This once again alienated the SACP. Under Zuma a select group of individuals including the infamous ‘premier league’ to which Magashule belonged as Free State premier, became immensely powerful and influential, and some of them immensely wealthy.
These developments depleted state coffers and severely weakened the state that the ANC and SACP had come to view as their property. And it threatened the ANC’s political hegemony as mounting public protests and the 2016 municipal elections showed. So, in 2017, at the ANC’s elective National Conference at NASREC, Johannesburg, the SACP was once again instrumental in replacing Zuma. This was done with the help of COSATU, various ANC formations, a huge financial war chest and the help of then Mpumalanga premier David Mabuza, now deputy president, who defected to the Ramaphosa camp together with his province’s voting delegates.
Ramaphosa defeated Nkosazana Dlamini-Zuma, the Zuma camp’s candidate, with the narrowest of margins, an outcome that divided the ANC into the current two warring factions, with neither having the upper hand for a long time thereafter. However, the Zuma camp was successful in having the conference adopt a number of radical economic resolutions, all under the umbrella of RET. This would soon become its mobilising battle cry and an instrument it may yet seek to use in an attempt to have Ramaphosa recalled as it accuses him of not having implemented these policy resolutions.
Ramaphosa now appears to have the upper hand in his struggle against the RET faction. The real questions are - if Ramaphosa emerges triumphant - what will his approach be to the ongoing implementation of the NDR and its next phase - Radical Economic Transformation - and what will the role of a resurgent SACP be?
By Stef Terblanche, independent political risk analyst and member of the FW de Klerk Foundation Panel of Contributors
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