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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.

John Hlophe

The FW de Klerk Foundation is shocked - but not surprised - by recent comments about South Africa’s judiciary made by Western Cape High Court Judge President, John Hlophe.

According to news reports Hlophe accused the judiciary “of being soaked in politics, battling to deal with transformation, and allowing apartheid-era judges to dominate the narrative”. In a lecture to the University of South Africa’s Department of Public, Constitutional and International Law (UNISA), which he delivered last week - after he had been found guilty of gross misconduct by the Judicial Conduct Tribunal - Hlophe described South Africa’s law “as a white man’s law imposed by colonialists and an infusion of English heritage and the Roman-Dutch law, which rendered it incapable of delivering justice for the common man”.

Hlophe continued that “race is very important given our (apartheid) past. So any judiciary which is still white male-dominated can never be construed as legitimate”.

One wonders where Judge Hlophe obtains his information? In fact, only 78 - or 34% - of South Africa’s 255 judges are white and very few hold top judicial positions. Only six of the 20 judges of the Supreme Court of Appeal and none of the nine judges now on the Constitutional Court are white - although this might change when two Constitutional Court vacancies are filled later this year. There is only one white judge among the 16 top judicial office bearers in the country - Judge Denis Davis, the judge President of the Competition Appeals Court. The Chief Justice, the Deputy Chief Justice, the President of the Supreme Court of Appeal are black - and there is not a single white judge among the nine provincial judge presidents.

Judge Hlophe is also wrong about the “white man’s law”. South Africa’s foundational law, the Constitution, was adopted by feely elected representatives of the South African people - who were overwhelmingly black. Since 1994 all the country’s laws that have been adopted by a parliament that is also overwhelmingly black. Surely, if Judge Hlophe had had such serious problems with the country’s system of law he should not have sworn the oath to uphold it or accepted appointment as a judge to administer it?

One suspects that his disenchantment with South Africa’s system of law arises, instead, from the fact that after 14 years of serious complaints the legal system has finally found him guilty of gross misconduct. Recently the Judicial Conduct Tribunal found that Hlophe had attempted to “improperly influence” Justice Bess Nkabinde and Justice Chris Jafta in a pending case before the Court at the time, regarding Jacob Zuma. The tribunal ruled that Hlophe (in a classic example of a judge “soaked in politics”?) had “breached Section 165 of the Constitution” in that he attempted to “improperly influence” the two justices of the Constitutional Court to violate their oaths of office”.

The truly remarkable aspect of Judge Hlophe’s case is that despite the Tribunal’s finding, the Judicial Services Commission - supposedly the guardian of the integrity of South Africa’s judicial system - permitted him to participate in its deliberations on the appointment of judges to the Western Cape High Court. One also wonders why UNISA evidently had no problem with a judge, convicted of gross misconduct - and teetering on the brink of impeachment - delivering a lecture to its Department of Public, Constitutional and International Law?

Issued by the FW de Klerk Foundation

4 May 2021

 

Photo: https://iono.fm/e/1023875


Ace Magashule

The FW de Klerk Foundation welcomes the immediate suspension of the ruling party’s secretary general, Ace Magashule, as well as other ANC members facing criminal charges - particularly corruption or other serious crimes.

The announcement by the ANC’s National Working Committee (NWC) was made on Tuesday and key people affected by the NWC’s decision, aside from Magashule, includes former eThekwini mayor Zandile Gumede and KwaZulu-Natal deputy chairperson Mike Mabuyakhulu.

According to ANC national spokesperson, Pule Mabe, the National Working Committee has “reaffirmed the decision of the NEC held from 26 - 29 March 2021 that all members who have been charged with corruption or other serious crimes must step aside within 30 days, failing which they should be suspended in terms of Rule 25.70 of the ANC Constitution.”

In terms of the rule the ANC’s constitution provides that “where a public representative, office-bearer or member has been indicted to appear in a court of law on any charge, the Secretary General or Provincial Secretary, acting on the authority of the NEC, the NWC, the PEC or the PWC, if satisfied that the temporary suspension of such public representative, office-bearer or member would be in the best interest of the organisation, may suspend such public representative, elected office-bearer or member and impose terms and conditions to regulate their participation and conduct during the suspension.”

The decision can be seen as a consolidation of President Cyril Ramaphosa’s power within the ANC in the ongoing factional battles between President Ramaphosa on the one side and former president Jacob Zuma and Ace Magashule at the other. It should also be welcomed as an important - and long-overdue - step to tackle corruption and take stern action against top ANC officials who stand accused of serious offences. The ANC’s factional battles have been negatively impacting governance and effective service delivery for far too long.

 

Issued by the FW de Klerk Foundation
5 May 2021

 

 Photo: https://www.sabcnews.com/sabcnews/magashule-adamant-that-no-one-can-remove-him-from-the-anc/

 


President Cyril Ramaphosa

The FW de Klerk Foundation agrees with President Ramaphosa’s recent statement that South Africa’s democratic transition presents an example for the resolution of intractable problems everywhere - including the current conflict between the Israelis and the Palestinians. As he observes: “As Citizens of a country that was able to turn its back on race-hatred and bloodshed and build a society rooted in human rights for all, it is our collective hope that the people of Israel and Palestine will follow a similar path: that they will find each other, and that they will find peace.”

South Africa’s transition to constitutional democracy is one of the most notable examples in recent - or perhaps any - history of how “intractable conflicts can only be solved through peaceful negotiations”. It was based on the idealistic premise that conflicting parties could put their trust in solemn agreements and constitutions for the long-term assurance of their fundamental rights - rather than having to descend again and again into the uncertainty, irrationality, and brutality of armed force.

Our entirely home-grown process developed approaches and mechanisms that could assist other conflicted societies - particularly in its inclusivity; its apparent ability to reconcile bitterly opposed parties; its opening Declaration of Intent; the various working groups at CODESA and the involvement of technical experts in the constitution drafting process. Finally, in December 1993, we emerged with an interim constitution that opened the way to our first fully democratic election and laid the foundations for our present constitution - that includes a universally admired and justiciable Bill of Rights.

Unfortunately, many of the rights and freedoms in the 1996 constitution have since then been eroded, diluted - or have simply evaporated - possibly as part of a 25-year gradualist programme. The cultural and language rights that minority parties insisted on in the 1996 constitution have not been honored; the crucial prohibition of unfair racial discrimination has been swept aside by legislation and by the courts; the history and culture of our minorities are being progressively excised from the national identity; and the courts imply that some minorities do not have a right to culture rooted in their histories and traditions.

At the same time, the economic sphere in which minorities are permitted to operate is being progressively constricted to the declining percentage of the population that they represent - and they are now confronted by the very real threat that their land and property might be expropriated with little or no compensation. Their President tells them that they “are not the rightful owners of land” to which they hold title; that they are “the bearers of the original sin” of their ancestors and that they are not really part of “our” people. Their government no longer makes them feel welcome in the country of their birth - and the land of their ancestors.

President Ramaphosa’s statement on Palestine is, alas, filled as much with invective arising from South Africa’s conflicted past - as it is with invective against the Israelis over their conflicted present. 10 of its 26 paragraphs revert to the ANC’s passionately nurtured - and incessantly repeated - grievances arising from its struggle against white governments of the past. They call into question the degree to which we have actually “found each other” and are building “a society rooted in human rights for all”.

The greatest contribution that South Africans can make to international peace would be to show the world that the solemn agreements on which our democratic transition was based are being faithfully honored in letter and spirit by all the parties involved. Unfortunately, when the Israelis look at South Africa’s experience, they are unlikely to be convinced that our unraveling national accord is the best model to follow.

This is tragic - because, in the final analysis their problems can be solved only by credible agreements that assure justice for all - just as our own mounting crisis can be resolved only by reverting to the faithful implementation of our constitutional accord and by honoring the values on which it was founded.

Issued by the FW de Klerk Foundation
20 May 2021

Photo: www.foter.com

 


FW de Klerk

By the end of this week the ANC’s wayward secretary-general, Ace Magashule, either has to step aside from his official top-6 position or face immediate suspension. But already there are signs of soft-pedalling should the ANC not follow through, with Treasurer-General Paul Mashatile saying last week that the ANC does not regard the deadline as being D-Day.

That immediately opened up new space for a chorus of dubious voices going up in the ANC for Magashule to be given more time or for the ANC’s step-aside rule to be put on hold until the National Conference next year. These voices ranged from convicted fraudster Tony Yengeni to controversial ANC chair in Ekurhuleni Mzwandile Masina, and the suspended former North West leader, Supra Mahumapelo.

Others in the ANC, however, are adamant that the deadline should be enforced. Magashule himself and his close supporters have said he is going nowhere. As has become the norm, these contradictory opinions are attributed respectively to the two main factions tearing the ANC apart.

What could happen?

Either way, this deadline - delayed or enforced - holds serious implications for the governing ANC and for the country as a whole. If Magashule does not step aside or is not suspended, the following could happen, among others:

  • President Cyril Ramaphosa’s authority and the anti-corruption drive are challenged and face a serious knock, while it will strengthen the position of those associated with corruption and other crimes in the ANC;
  • It will bolster the so-called ‘radical economic transformation’ or RET faction and others who follow/support Magashule and former president Jacob Zuma;
  • The recent significant shift in the balance of power inside the ANC in Ramaphosa’s favour could slip back to the previous stalemate / lame duck situation between two equally balanced factions;
  • The factional battles will be further drawn out and continue to adversely impact good governance, sensible policies and effective service delivery while the power struggle will take precedence over all else;
  • It will bolster the populist drive for implementation of ‘radical economic transformation’ policies and resolutions;
  • The factional power struggles will intensify, leading to critical threats to Ramaphosa at the ANC’s forthcoming National General Council (NGC) and its elective National Conference next year; and
  • The continuing factional battles and public perceptions around corruption could impact the ANC negatively in the October municipal elections, which would be bad news, in the internal ANC power-balance context, for Ramaphosa and those who support him.

If Magashule fails to step aside but is suspended, the following is possible:

  • His supporters may still carry out their earlier unfulfilled threat of widespread protests and disruptions, while there may be legal challenges;
  • It could finally drive the anti-Ramaphosa elements like Magashule and Zuma out of the ANC, and they may launch a new political party;
  • After some initial instability or disruptions, the ANC may finally be rid of its factionalism scourge and get on with the job of governing;
  • The anti-corruption drive can be confidently stepped up with more arrests and prosecutions to follow;
  • The anti-Ramaphosa faction may still try to move against him at the NGC and next year at the National Conference, but their position may have been fatally weakened;
  • The ANC could focus on preparing for the October elections in the hope of recovering support it lost due to more than a decade of corruption, state-capture and mismanagement; or
  • If Magashule changes his mind and leaves quietly, much of the aggression, confrontation, divisions and potential instability could simply go away.

The background perspective

Whatever the outcome by the end of this week might be, the background perspective that built up over the last few months, is undeniably that the odds of survival have steadily been stacking up against Magashule and Zuma. There was a very decisive shift in the balance of forces in Ramaphosa’s favour. It is now clear that Magashule and Zuma are fighting a last, desperate battle while rapidly losing ground.

Last year Ramaphosa’s ‘strategic patience’ to reunite the factions ran out. He opted for delivering on his 2018 promise of rooting out corruption instead. Which has brought us to the current situation.

Even so, it is unlikely that the fight will soon be over. ANC branches are starting to prepare for their branch general meetings (BGMs) that will precede the usually hotly contested regional and provincial conferences. The outcomes are critical for Ramaphosa as from these lower structures voting delegates are selected to attend the later elective national conference. For Magashule and company to influence this however, it would be crucial for them to hold onto the office of secretary-general.

Magashule & Zuma’s last desperate battle

The odds have steadily and overwhelmingly been stacking up against Magashule and Zuma. Firstly, at the time of writing, the Constitutional Court still had not ruled on Zuma’s contempt-of-court charge. If found guilty and sentenced, it could be an additional blow to the Zuma/Magashule-led RET faction. Meanwhile, other recent setbacks for the faction included:

  • Ramaphosa’s NEC triumph and the 30-day ultimatum to Magashule.
  • A Supreme Court of Appeal decision ending state funding for Zuma’s legal battles and leaving him with a R25 million bill.
  • An NEC decision effectively barring ANC members from being involved with the Zuma/Magashule-supporting ‘RET faction’.
  • Absa cutting ties with Iqbal Survé’s Sekunjalo Investment Holdings, which controls Independent Media, a major mouthpiece for the RET faction.
  • The NEC expressing its explicit support for the Zondo Commission as well as for the ANC’s parliamentary caucus which ignored Magashule’s instructions and voted for an impeachment inquiry against the Public Protector.
  • The NEC proposing possible disciplinary steps against alleged RET faction kingpin Carl Niehaus.
  • A call gaining traction in the NEC for the merging of two currently competing ANC military veterans’ groups into one, which could disband the Zuma/Magashule supporting MKMVA.
  • A court decision disbanding the Magashule-supporting Free State ANC leadership structure and the ANC leadership now imposing a “political solution”.
  • It’s unlikely Magashule’s ‘consultations’ with ANC leaders will stop the process against him.
  • Of the threatened mass disruptions by the RET faction nothing has come so far.
  • And the most recent efforts by Magashule and his allies to mobilise a revolt against the party leadership, have been thwarted by the NEC’s smaller but powerful National Working Committee (NWC).

What comes next?

If the Zuma/Magashule faction could somehow hold on to the powerful SG’s office, they could arguably use it to influence the composition of branch- and regional-level delegations to the NGC and the National Conference, or to mobilise a grassroots movement against Ramaphosa at these two events. However, their hold on this office seems to be slipping fast.

It is possible but unlikely that Magashule and Zuma may finally admit defeat and the whole thing fizzles out. More likely is that they will continue agitating for Ramaphosa’s fall - and their evasion of justice - even if ousted from the ANC, with attempts to use branch structures and events like the NGC to achieve Ramaphosa’s recall or an early elective conference. Or they could break away and form a new radical populist party - perhaps even merging with the EFF to become the new official opposition.

Time will tell. But for now, we are seeing the last desperate final struggle of a disruptive force, with Magashule, Zuma and the RET faction rapidly losing ground. But it could still get messy.

By Stef Terblanche, independent political risk analyst and member of the FW de Klerk Foundation Panel of Contributors

Photo: https://www.sabcnews.com/sabcnews/magashule-adamant-that-no-one-can-remove-him-from-the-anc/

 

Freedom Day hands waving flags south africa

The trouble with political slogans is that they are meaningless. We have seen it with the communist and socialist policies, enacted in the name of the proletariat; the working class, and those who are exploited by the “capitalists”. In each case the principal beneficiaries are those who enact the laws; the victims are those in whose name the laws are enacted. The rationale for the extravagant privilege of the law maker is that the responsibility of statecraft is said to deserve a proper reward. And so Vladimir Ulyanov Lenin, Josef Stalin and even Nancy Pelosi sail by on the unearned benefits that properly belong to the creators of society’s prosperity.

Capitalism itself has been corrupted by those who claim to be its principal beneficiaries. In the Land of the Free, the free market has come to mean the licentiousness of the commercial and political elite to extract rent from the society at large by means of controlled and manipulated central banking; monopolistic practices and political patronage (writ large by the phenomenon of political lobbyists): the result is that in America the proverbial 1% owns 90% of the nation’s wealth. This is corrupted capitalism or a fascist economy; it is not the free market.

Political mendacity is not confined to the third world, and certainly not only to South Africa. But it is the South African situation that engages our attention. Freedom Day, celebrated as a public holiday is a celebration of…what? Freedom from oppression is not sufficient reason for ongoing celebration if one form of oppression is replaced by another. It is not the purpose of this contemplation to repeat the litany of spectacular failures that has accompanied 27 years of misrule. Policies that have failed elsewhere have been implemented with alacrity and when failure was, once again, the result, they have been pursued with increased vigour. The will of the people has been all but ignored: the land issue, now the centrepiece of ANC government policy has been demonstrated by innumerable reputable surveys, including one commissioned by the government itself, to be an issue that has little appeal to the broad citizenry; what is shown, on each occasion to be the principal concern (unemployment) is the issue most shamefully neglected and even ignored in a mindless pursuit of ideology. All the while the laws that make it harder for employers to employ and harder for the seekers of employment to find it, are relentlessly tightened in a policy that appears actively to pursue the outcome of unemployment. 

At its most elemental level, freedom means a freedom from want. The government has answered this by instituting a basic income grant and a related child support grant. There are now over 17 million such beneficiaries; meanwhile on account of government’s destructive and extractive policies hundreds of thousands of taxpayers have escaped these shores and the tax base has consequently shrunk to a mere 3 million. Soon the bill will become unpayable. The 17 million, it must be said, are a critical component of the government’s ongoing support at the polls.

The best antidote to the want of unemployment is a sound education system. The failures of government in this regard are legion. At great national cost, poorly qualified educators provide poor education. The poor education then results in poor outcomes. The government’s solution to this predicament has been to systematically lower the standards of educational achievement. Many matriculants (even those who qualify for university education) are functionally illiterate and innumerate. Failure, if not at university then in life, is assured. All the while private educators, who provide quality education, are harassed by an encroaching barrage of vexatious regulation, ostensibly designed to protect the vulnerable. Meanwhile an obsession with numbers and quotas, as opposed to competence and excellence, is another guarantee of failure.

At the heart of all these failures is a government obsession, derived from the Marxist ideology to which it is committed, of centralised control. The ANC has no interest in individual liberty; it is the enemy of freedom.

Once the freedom from want is catered for, which it has been demonstrated, innumerable times, is the result of free individuals interacting freely with one another, the quality-of-life index comes into play. Abstractions, such as freedom of expression, of conscience, of religion, of association and freedoms from arbitrary and unreasonable detention, persecution and the like can be categorised as incidents of the rule of law: the barrier that the law sets against tyranny.  How free we South Africans are of the tyranny of the state is a question that requires an urgent answer.

The propensity of the government to act in tyrannical mode has been abundantly demonstrated by the heavy-handed response to the coronavirus crisis. The government promptly, and almost surreptitiously, set up an instrument with dictatorial authority, known by the telling moniker, the Coronavirus Command Council. And command it did: on freedom of movement, freedom of association, freedom of religion, freedom of commerce, and this last one, with devastating consequences for the already appalling unemployment statistics. Massive, and avoidable business failure was the inevitable result. It is, of course, true that many other countries followed a similar course, but few, if any, did so with the same destructive enthusiasm as that adopted by the ANC government. The future outcome, we were authoritatively told, would be a radical economic transformation.

And now, in the face of all the destruction that has been wrought, there is the asinine determination to pursue the project of expropriation of property without compensation. This includes the sinister phenomenon of regulatory expropriation, whereby ownership of commercial rights may be expropriated by executive fiat. As elsewhere, in Zimbabwe, Venezuela and (dare one say it) The Soviet Union, the consequences are altogether predictable, but the ship of state ploughs on, heedless of all the considered and well-meaning opinions that have warned of catastrophe.   

The government has seemingly no understanding of what is meant by the rule of law, and certainly no respect for its application. Individual freedom, of every category, becomes the inevitable victim.

* Judge Rex van Schalkwyk is a guest contributor.  His views are not necessarily those of the Foundation.

Photo: https://www.freepik.com/free-photo/hands-waving-flags-south-africa_2979554.htm

FW de Klerk

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 loansand 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.

 

  1. Expropriation without compensation will not collapse banks, says Ngcukaitobi (businesslive.co.za)
  2. Legalbrief Today Home Page
  3. 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.
  4. HLP report.pdf (parliament.gov.za)
  5. Ngcukaitobi: ANC-led govt has failed on land reform, not best suited to lead it (ewn.co.za)

FW de Klerk

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

 

 

FW de Klerk

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

 

 

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