Join us for a breakfast discussion hosted by the Centre for Constitutional Rights (CFCR) and the South African Institute of Race Relations (IRR), supported by the Konrad Adenauer Foundation (KAS).
Lieutenant-General Khomotso Phahlane has been removed from his acting position as National South African Police Commissioner. This, against the backdrop of the erstwhile National Police Commissioner, Riah Phiyega, still serving her suspension from the position due to her role in the Marikana killings of striking mine workers. Dare one remind the nation that there is yet to be an individual to complete their term of the helm of the South African Police Service (SAPS)? South Africans are weary of daily revelations of corruption, ineptitude and a State that is seemingly determined to veer the nation off its path of constitutional democracy.
25 May is the annual commemoration of the founding in 1963 of the Organisation of African Unity (OAU). The OAU was established to “promote unity and solidarity amongst African states” and “to rid the continent of the remaining vestiges of colonisation and apartheid”. This was at the beginning of liberation for many African countries from colonialism, and the collaboration was one of the most visible expressions of pan-Africanism and the intention to cement bonds between African countries. In 2001, the OAU was renamed the African Union (AU). This year, it celebrates its 54th year – over five decades of existence and yet, there seems to be very little to celebrate.
Did he or did he not resign, or was it retirement – and was his brief stint in Parliament some form of unpaid leave? If Brian Molefe and Eskom could at the very least, decide on a story and stick with it, that would be very least of their problems. At the moment, however, the entire saga has breached several constitutional principles.
First, in terms of section 47 of the Constitution, Members of Parliament, excluding Cabinet Members, their deputies, as well as the President, may not be appointed, or be in service and receive remuneration for that service. Brian Molefe’s claim that he was on unpaid leave as Eskom Chief Executive Officer (CEO) in the time he sat as a parliamentary backbencher violates this particular provision. This means that he was, according to his own version, the de facto Eskom CEO the same time as he was a member of the National Assembly. In any event, some newspapers carried an advertisement for the Eskom CEO position, issued by the Eskom Board. This suggests then, that his initial departure from Eskom was meant to be permanent and was anything but unpaid leave.
This is the second article in a series of four analysing the recent Supreme Court of Appeal judgment in the matter of University of the Free State v Afriforum and Another (SCA judgment).
A crucial finding made in the SCA judgment related to the reviewability of the University of the Free State’s decision (UFS decision) to replace its dual-medium language policy with a single-medium language policy. The SCA held that the UFS’s decision was not “administrative action” as defined in the Promotion of Administrative Justice Act of 2000 (PAJA) and therefore only the rationality of the decision could be reviewed by the Court. The aforesaid finding, given the provisions of section 29(2) of the Constitution, is the key issue to be decided in Afriforum’s appeal to the Constitutional Court.
Please join the Centre for Constitutional Rights (CFCR) and the Africa Criminal Justice Reform (ACJR), a programme of the Dullah Omar Institute (University of the Western Cape), for a Roundtable Discussion on the importance and work of the National Prosecuting Authority (NPA). Some of our speakers will reflect on the appointment, performance and dismissal of the Head of the NPA and its Directors in terms of the National Prosecuting Authority Act (NPA Act). In light of serious concerns around the politicisation of the institution, it is hoped that this Roundtable Discussion will lead to considerations on possible amendments to the NPA Act or the Constitution, to ensure the accountability of the NPA and upholding of its constitutional mandate.
Section 27(1) and (2) of the Constitution guarantee every citizen the right to sufficient food, whereby the state must take reasonable measures to ensure the realisation of this right. To ensure fulfilment of this constitutional imperative, Cabinet approved the National Policy on Food and Nutrition Security (the Policy) in 2013. The Policy seeks to improve food production and distribution and promotes smallholder production, which is interchangeably used with “subsistence farming”, “community-based farming”, or “peasant farming”. While smallholder farmers have limited resources, they play an integral role in creating livelihoods and ensuring food production amongst the poor-rural population. The Policy envisaged a framework to safeguard the right to sufficient food, however food insecurity remains pervasive.
In 2016, the Department of Agriculture, Forestry, and Fisheries (DAFF) Annual Report 2016 stated that although the country can meet food requirements under normal weather conditions, 14 million South Africans are vulnerable to hunger and have insufficient access to food. Additionally, the Statistics South Africa (StatsSA) Community Survey 2016 showed that 2.2 million households reported skipping a meal in the past year, and 3.3 million households reported they had run out of money to buy food in the last 12 months.
Is it realistic in South Africa’s multicultural society to expect to receive mother tongue education at a public educational institution? If one only focuses on section 29(2) of the Constitution, the answer should be legally determinable in any factual context. Section 29(2) of the Constitution (section 29(2) right) was crafted to ensure a balancing of rights, by guaranteeing everyone the right to education in the language of their choice at a public education institution, provided the same is “reasonably practicable”. The State is furthermore obliged to consider “all reasonable educational alternatives” to give effect to this right, taking into account the listed factors of “equity, practicability and the need to redress the results of past discriminatory laws and practices”.
Therefore a constitutionally-framed balancing test exists in terms of which any language request can be tested against. However, how does one test section 29(2) in the context where an ideological factor such as a “commitment to transformation” – which is difficult to test – plays a dominant role? A case in point is the recent Supreme Court of Appeal (SCA) judgment of the University of the Free State v Afriforum and Another (SCA judgment). The SCA judgment questions the future of section 29(2) and whether mother tongue instruction at public educational institutions, as many experts believe, will boil down to political arm wrestling.
Friday 7 April was a momentous day across most of South Africa’s larger cities. In response to current events, including the downgrading of South Africa’s economic prospects by international ratings agencies, thousands of South Africans took to the streets to demand firmer, ethical and more decisive political leadership. While the protests were largely peaceful it is worth noting that Luthuli House was surrounded by men in camouflage, ostensibly uMkhonto weSizwe Military Veterans Association (MKMVA) seeking to “defend” the headquarters of the governing party.
Move, a month later, to 7 May, this time to Vuwani, in Limpopo province. The area has been the site of violent protests, which have seen the destruction of over 20 schools. The Vuwani residents oppose their incorporation into a new municipality and have been protesting for close to two years. As such, the 7 May gathering – which President Zuma was meant to address – was intended to reassure the community of an attentive Executive, willing to listen, at the very least, to the demands its citizens. Only, President Zuma did not attend the event as scheduled, reportedly, due to security concerns. Nevertheless, MKMVA members were present, clad yet again in army fatigues.
