I’ve seen since last night that the media (both in the US and internationally) is unanimous in its jamboree celebration of Joe Biden’s pick for a presidential running mate – Hamala Harris.
“She would be the first black female Vice-President in US history”, they said, “this is victory for black Americans, they said.”
You’d swear elections had already taken place. On the contrary, I employ you my valued reader to wait until November 3rd when ordinary White Americans go to the polls and re-elect their beloved President Trump back into the White House and burst the bubble of happiness. I cannot stress it enough, the media (the Daily Show of Trevor Noah included) together with its moria of international followers do not vote in the US-elections.
So in short, what I’m trying to say is that Trump isn’t going anywhere!
I could be wrong, in fact I so much want to be wrong but my observation tells me otherwise. My first point of contestation is that, ordinary White Americans love Trump, the man has made substantial deliverables on quite a number of his 2016 elections promises. Chief amongst them: The construction of the Mexican Wall.
Before the unknown virus could strike, US unemployment was on a historic low (below 4%, now compare that with South Africa’s unemployment rate under the New Dawn promised in 2018). Moreover, against media consesus in October 2019, Trump withdrew well over 1000 US troops from the Syrian conflict as he had promised in 2016 to his supporters to: “bring our soldiers back home”. Very recently, Trump also passed yet another order to pull out over 4000 US troops from Germany before the November elections.
Just on Saturday, Trump told a news conference that he’ll sign another executive order to suspend the payroll taxes, repayments of students loans rental housing until 2021 if the talks on the coronavirus aid with the US Congress break.
With his: “Make America Great Again” slogan, Trump has domestic American Capitalism, ensuring that it serves the interests of the American people before the international community. Even worse, Trump has polarized America and pushed migrants to the margins but it does really matter migrants to him? I doubt! Remember, migrants and the international community do not determine the outcomes of the US elections.
The mistake the media and the international community continues to make is to think that their unanimous dislike of Trump does not have much bearing on the question of whether he will be re-elected or not. Trump has armed his supporters with the necessary tools of analysis, they perceive all negative and critical news report against their beloved President as “fake news”, so in the broader scheme of things, it doesn’t really matter what the media says about him.
Land reform remains one of the most emotive and contentious subject in the post-apartheid South Africa. After coming into power through a majority vote, the Africa National Congress (ANC) moved swiftly to introduce new land reform legislations that consisted mainly of three dimensions. That is: (1) redistribution – transferring white-owned commercial land to African users, (2) restitution – settling claims for land lost under apartheid measures by restoration of holding or compensation and (3) land tenure – to provide more secure access to land in the former Bantustans (Cliff, 2000). Of particular relevance in this opinion is the first programme of land reform project – land redistribution.
This programme was said to be directed at redistributing productive agricultural land from white people into the hands of the black majority (those who were historically deprived off their land through state-sponsored aggression and violence). With specific reference to the work of Nancy Fraser (2003), the general point of departure in this opinion and the hypothesis thereof is that government’s previous approach to land redistribution more specifically, the market based willing-seller-willing-buyer policy culminated into problems of misrecognition and mal-distribution as propounded by Fraser (2003).
Moreover, I will demonstrate from a socio-legal perspective that the new approach to land reform that is, expropriation without compensation (EWC) is unlikely to yield its desired outcomes more especially considering the fact that majority of black South Africans have over the years, chosen money over the land in cases of redistribution. This election to choose money over the land is particularly informed by the fact that money, unlike land in its physical form can easily be used to satisfy the most urgent and immediate basic needs. This is indeed not surprising in a country like ours plagued by a myriad of socio-economic issues such poverty and unemployment to mention but a few.
Research shows that at least 22% of the 30% productive agricultural farm land in South Africa remains in the hands of white commercial farmers (Land Audit Report, 2017). This however, is not part of the natural order of things. It is without any doubt due to years of a deliberate process of land dispossession carried out through colonial and apartheid conquest. Needless to mention, the failure by the apartheid government to recognise majority of black people as people of comparable moral worth and their subsequent recognition thereof as sub-humans is what broadly speaking, gave birth to the historical injustice of dispossession.
This misrecognition of black people will throughout the years of the white minority rule find expression in government policies such as the policy of separate development which in the main informed the establishment of the bantustans to which black people were confined. Much of this policy of separate development was more so informed by the belief that black people were in general culturally and racially inferior. Consequently, this problem of misrecognition will from 1948 until 1994 translate into the problem of mal-distribution wherein a disproportionate % of property ownership (land included) would be vested into the hands of the white minority to the exclusion of the black majority.
In order to redress this historical injustice of misrecognition, the post-apartheid Government of National Unity adopted the supreme law of the Republic that is to say, a Constitution that expressly gives recognition to the previously misrecognised black majority. The Preamble to this Constitution states as follows: “We, the people of South Africa, Recognise the injustices of our past; honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and believe that South Africa belongs to all who live in it, united in our diversity.”
Furthermore, Section 1 – commonly known as the founding provision provides as follows: ‘The Republic of South Africa is one, sovereign, democratic state founded on the following values (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms, (b) Non-racialism and non-sexism (c) Supremacy of the constitution and the rule of law (d) Universal adult suffrage national common voter’s roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.ʼ
Despite this constitutional guarantee and other numerous legislative interventions and political pronouncements about the importance and urgency of land redistribution, the ANC government has of 2016 only managed to redistribute less than 10 per cent (%) of the productive agricultural farmland at an alarming cost of R 50 billion (Netshipale et al, 2017). This slow pace in land redistribution was/is in part due to the ANC government’s approach to land reform. At first, the ANC government adopted the market-led model of land redistribution that is – the willing seller-willing-buyer model.
When this model proved inherently ineffective after almost 3 decades, the ANC government adopted as its new land policy in 2018 the model of expropriation without compensation which was soon be translated into a Bill with the potential to become an Act of Parliament. The logic behind this new model of land redistribution is that the previous model endorsed the payment of compensation for stolen property.
For example, the long title to the Eighteenth Constitution Amendment Bill states the purpose of the amendment as follows: “To amend the Constitution of the Republic of South Africa, 1996, so as to provide that where land and any improvements thereon are expropriated for the purposes of land reform, the amount of compensation payable may be nil; and to provide for matters connected therewith.”
The Bill goes on to state that: “there is a need for urgent and accelerated land reform in order to address the injustices of the past that were inflicted on the majority of South Africans and especially as the hunger for land amongst the dispossessed is palpable and the dispossessed are of the view that very little is being done to redress the skewed land ownership pattern.” Those who favour this model laud it for being not only affirmative but also transformative in its outlook.
Notwithstanding all of the above, it seems to me that even this amendment will fall short in redistributing productive agricultural land to the majority of South Africans who happens to be black people who were dispossessed through state force. The amendment is itself not without inherent flaws.
First, it does not expressly mention productive agricultural farmland as one of the categories of land that is up for grabs. Instead, the amendment identifies the following 5 categories of land as land which may be expropriated without compensation: (a) abandoned property, (b) land owned by state owned enterprises (SOEs), (c) land held for speculative purpose, (d) land into which the state has already invested more than its own value, and (e) land occupied or used by a labour tenant.
Second, assuming for argument sake that the Amendment Bill did expressly make mention to productive agricultural land as a category of land that may be expropriated without compensation, the inherent flaws of the Bill itself would still not be cured. This is because the Bill and the process of public involvement into it arguably suffered from lack of participatory parity (Fraser, 2003).
Put slightly differently, it becomes apparent from just mere observation of the hearing that expropriation without compensation was already “a foregone process and that no number of dissenting views was going to sway the committee or Parliament away from what it had already committed itself to in the resolution. The hearings were especially chaotic, with Members of Parliament racially insulting presenters they disagreed with, and bussing in and choosing their own supporters to speak” (Evans & Van Staden: p2, 2020).
In Doctors for Life, the Constitutional Court per Ngcobo J said the following about the importance of public involvement in legislative processes as given effect to by section 72 (1) of the Constitution:
“Public involvement will also be of particular significance for members of groups that have been the victims of processes of historical silencing. It is constitutive of their dignity as citizens today that they not only have a chance to speak, but also enjoy the assurance they will be listened to. This would be of special relevance for those who may feel politically disadvantaged at present because they lack higher education, access to resources and strong political connections. Public involvement accordingly strengthens rather than undermines formal democracy, by responding to and negating some of its functional deficits (Doctors for Life paragraph 234).”
Notwithstanding all of the above, there was also a dangerous assumption made in the question posed to members of the public during the public hearings. To be more precise, the question was framed in this regard: “Do you support the Constitution Eighteenth Amendment on Expropriation?”
This question is very narrow and limiting. One had to either say yes or no and substantiate thereafter. It made no room for those who do not want get caught in this binary that is to say, those who were previously dispossessed but would go for the money instead of the land. In fact, a 2014 report by the Department of Rural Development and Land Reform shows that in 92% of the cases of land reform dealt with since 1995 until 2014, people chose money over land.
This fact alone shows that this conversation of land expropriation without compensation may so well be a conversation shaped and agitated by academics and politicians in order to advance their own careers. Yes, it cannot be denied that there is a particular immediate need for land for purposes of housing but that does detract away for the objection raised above. Moreover, the market-led model to land redistribution (willing seller-willing buyer) tends to lead to land privatisation while the state-led model (expropriation without compensation) tends to entrench bureaucracy which therefore only benefits the politically connected few.
In fact, at a recent webinar to mark the 25th anniversary of the Institute for Poverty, Land and Agrarian Studies (Plaas) , its founder, emeritus professor Ben Cousins, and its lead researcher on land reform, Farai Mtero, indicated that: “land reform has become the preserve of the well-off, with 44% of beneficiaries being urban-based “business individuals, taxi or transport operators, former state bureaucrats and local politicians with access to material resources, knowledge and information”. Their economic and political influence has enabled them to diversify into farming. And most of them, more than 80%, have been men” (https://www.newframe.com/land-redistribution-has-become-elite-capture/).
So instead of the above stated government favoured model to land redistribution, I propose the following model as echoed from Borras & Mckinley (2006, p1-3). This model is characterised by four (4) pillars as follows: (1) rural people should organise themselves into community-based organisations which will remain independent from the state but still representative of the rural population (consisting of the landless, peasants, farm workers, small farmers, indigenous peasants and rural women.
This group must therefore exert pressure from below and demand land reform as was the case in Mexico in the 1930s, India in the 1960s and Chile in the early 1970s. (2) There should be a coalition between community-based organisations and broad-based pro-land reform political organisations and that this coalition has to be able to uphold the interests of the landless in the face of the rapidly growing political influence of large export-oriented agricultural private entities. (3) This pillar calls “for a substantial, public investment, state loans and technical assistance” (Borras & Mckinley, 2006, p2-3).
This is necessary for creating conditions of productivity of the labour, land and capital in the agricultural sector. The provisions of these things should remain the primary objective of the national state without which land reform can hardly result in poverty reduction as seen in the Bolivian state. (4) This pillar insists that a microeconomic or regional intervention must be part of part of a growth-oriented development in order to increase agricultural productivity otherwise land reform will not succeed no matter how broad it is. Moreover, economic policies according to this pillar need to be geared to promoting pro-poor growth (Borras & Mckinley, 2006).
Despite its contentious nature, land reform in South Africa more specifically, the redistribution of productive agricultural land into the hands of the historically marginalised will be difficult to realize if government continues to pursue policies and legislations that are not only pretentious, vague and narrow but also assume that everyone wants the land as a remedy to the historical injustice of dispossession.
Instead of addressing the historical questions of misrecognition and mal-distribution, the proposed model of land redistribution that is to expropriation without compensation might lead to more misrecognition if not wrecking further injustices. In the alternative, I have argued that that in order for countries like South Africa to redress historical injustices, land can be expropriated without compensation but through the “Redistributive Alternative” model as proposed by Borras & Mckinley (2006).
The Constitution of the Republic of South Africa, 1996. The Eighteenth Constitution Amendment Bill, 2018. Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05)  ZACC 11. Borras, S. & Mckinley. (2006). The Unresolved Land Reform Debate: Beyond State-Led or Market-Led Models. Research Gate, 1-3. Cliffe, L. (2000). Land Reform in South Africa. Review of African Political Economy 27; 84, 273-286. Evans J & Van Staden M. (2020). ‘Security of Property Rights in South Africa’ A response to expropriation without compensation. Free Market Foundation. https://www.newframe.com/land-redistribution-has-become-elite-capture/ Fraser N. (2003). ‘Social Justice in the Age of Identity Politics; Redistribution, Recognition and Participation’ in N Fraser & A, Honneth Redistribution or Recognition 1-26, 36-7 (on recognition, redistribution and participation). State Land Audit Report. (2017) Private Land Ownership by race, gender and nationality. Department of Rural Development and Land Reform.
By now you should at least have come across this phrase at some stage in your life. It is the catch all phrase used by almost everyone to explain away the madness that’s been happening since the virus outbreak. Wikipedia defines it as: “a state to which an economy, society, etc. settles following a crisis, when this differs from the situation that prevailed prior to the start of the crisis. The term has been used following the financial crisis of 2007-2008, the aftermath of the 2008–2012 global recession, and the COVID-19 pandemic.”
The Oxford dictionary on the other hand defines it as: “A previously unfamiliar or atypical situation that has become standard, usual, or expected.” People have been paid to write academic papers, newspapers columns and op-eds to not only talk about this “new normal” but to also make people buy into it. I call it an absurdity and I will tell you why if you give me a chance to explain myself.
To begin off with, I have been personally dismayed since the lockdown started (with its twists and turns) to see scores of pundits, public intellectuals and thought leaders from all walks of life, organizing online talks-shows and webinars to talk about the “new normal”.
Among other questions I’ve had to ask myself is the question is to whether people hate their freedom so much that they have even found comfort in abnormality? How do you get locked inside your room, have your movements restricted and have yourself barred from visiting your family and friends and still call your reality “the new normal”?
Maybe that’s another way of copying with reality, maybe I am placing too much importance on semetics and word-choice. Be that as it may, I am of the deepest conviction that at some point we’ll have to rise up to the occasion and call our reality exactly what it is: an absurdity! Because as the adage goes: a lie told most often eventually becomes the truth!
Yes, the virus is still a scientific, medical and political enigma. Medical science appears to be on the march to the abyss. And because of the level of uncertainty on the part of medical science about the virus, conspiracy theorists have now join the battle to shape public narrative.
They have been competing with medical and scientific experts to capture public imagination. Thus, we can no longer tell with absolute certainty who between the conspiracy theorists and medical experts is right or wrong. It seems both camps are immersed in drunken speculations and warranted extrapolations.
Deplorably, instead of directing more efforts and funds towards the development of a vaccine, medical experts, government officials and corporations are now more focused on increasing the supply of personal protective equipments and improving the technology behind the tracking devices. What was initially thought of as humanity’s far most existential threat is quickly becoming a lucrative business opportunity.
It is tempting to conclude at this stage that even if a vaccine is finally developed, somebody will find a way to keep it from the public in order to continue making money. Before you can raise your objection, remember that we have still, for some weird reasons still not yet found the treatment to the HIV/AIDS pandemic, notwithstanding our modern scientific knowledge and sophisticated information technology.
In case you didn’t know, the African National Congress (ANC) has an Integrity Committee/Commission whose purpose according to Rule 24 of the party’s Constitution, is to adjudicate and make findings on the conduct of individual members which may or have the potential to bring the organization into disrepute.
This committee, to my dismay is currently chaired by one mysterious old man called George Mashamba who in 2019 unveiled his own tombstone at his late wife’s funeral and said the following to his family: “I bought my own tombstone because I do not want you to fight over raising money for a coffin when I die. I pay for it myself while I am still alive and you will just buy meat for the funeral because you are the ones who will eat it.”
But I digress.
In its recent report to the ANC’s top brass, the Integrity made very far reaching and damning findings against the Deputy Minister of Finance – David Masondo. Precisely speaking, the Integrity Committee found that Masondo abused state resources to resolve a domestic dispute with his ex-girlfriend. And subsequently asked him to step down.
This finding begs the question:
Who in the ANC has the integrity to pass integrity standards and moral judgments on other cadres?
I personally don’t take the ANC’s integrity committee seriously, perhaps because I’m not an ANC member.
But the is still not lost, if the ANC understood even the simple dictionary definition of the word “integrity” and what it means, we would not have any ANC as we speak. Would the ANC mind explaning to the entire country, why that guy of Boy Mamabolo for example, hasn’t been through the Integrity Committee?
Why Zuma with all the rape and corruption allegations leveled against him served the party and by extention, the country as president for almost two full 5 years terms?
What criteria does the ANC’s Integrity Committee use in its assessment of what constitutes integrity?
We may not have all the answers but one thing for sure is that we must protect the word “integrity” from the ANC.
At its 54th national elective conference in 2017, the African National Congress (ANC) was at pains but still honest enough to acknowledge that chief among the challenges faced by the centenary party were:
“A loss of confidence in the ANC because of social distance, corruption, nepotism, arrogance, elitism, factionalism, manipulating organisational processes, abusing state power, putting self interest above the people. Even the strongest ANC supporters agree the “sins of incumbency” are deeply entrenched.”
Conference further noted that:
“Many organisations and thought leaders have become critics of the ANC and its leadership and we are losing much of our influence and appeal among students, young intellectuals and the black middle class. While we know that much of the ANC and government are not affected by this cancer, the movement as a whole is judged as being part of the problem.”
Notwithstanding this, recent events have proved once more that it’s one thing to acknowledge the challenges you are facing and a different matter altogether to take reasonably practicable steps to resolve them. When scores of South Africans from all walks of life took to social media this week to record their disapproval of rampant corruption by the ANC’s senior leadership, the party’s loyal membership responded by flying the ANC flag high. In a sense, cementing the adage: “no one is bigger than the ANC!.”
Some even went to extraordinary lengths insisting that the party should be separated from its corrupt leadership and thus, elevating it well above society and beyond the reach of the sum total of its individual voters where it will be immune from criticism. This was painful to watch even for those of us outside party politics, it was as though the ANC had taken a resolution at its elective conference that all its members must, at all materials defend the party even at the altar of compromising the fight against corruption.
While it is true that the ANC has its own separate legal personality, using the party’s separate legal personality to excuse senior leaders from being held to account is a disgrace of the highest order! Even worse, raising the ANC flag in response to charges of rampant corruption from dismayed ordinary electorates, truly is a strawman!
In fact, it undermines the collective wisdom of the South African people and the sum total of the ANC individual voters. It carries with it the potential to erode the very values and principles of a party that has existed for well over a century and outlived its founding fathers. More importantly, it hallows the party’s anti-corruption message.
Such blind loyalty, more than anything, undermines the impact and magnitude of corruption in our society as well as the integrity of the ANC as a leader of society. It bears testimony to the fact that while no one is above the ANC, corruption is without any doubt above the ANC. And if the ANC is going to convince anyone that it’s anti-corruption message is anything to be taken seriously, it will also have to teach its loyal members to recite and rehearse the same message every night before they sleep.
Their recent response to condemnation of corruption within the party’s rank and file from ordinary South Africans was at best clumsy, and at worse ignorant! Be that as it may, we cannot entirely fault them alone. Their attitude and response is indeed a reflection of the attitude of the party’s senior leadership which has so far shown a lack of willingness to tackle corruption within the party save for providing lipservice. The blame must accordingly be apportioned between members and their leaders.
No body knows or can explain the ANC’s strategy to curbing rampant corruption within the party in clear and concise terms, save to say that the strategy is reactionary and woeful. You would have hoped that the party of over 100 years would by now have developed a risk-averse and precautionary approach to curbing corruption within the party but you would be disappointed once you realize that the ANC always waits for the perfect moment and perfect evidence to address corruption.
It came to pass that one day as the country was still entangled in discussions about the far reaching impact of the novel coranavirus, a group of comrades otherwise known as, parliamentarians convened a historic sitting, which amongst other things led to the revocation of section 6 of the Civil Unions Act of 2006.
This victory for the LGBTQI community came 14 years after the 2006 seminal case of Minister of Home Affairs v Fourie 2006 1 SA 542 (CC) in which the apex in the land ruled that it was unconstitutional for the State to provide the benefits of marriage to opposite-sex couples whilst denying them to same-sex couples. This according to the Constitutional Court, infringed the right to equality before the law and the right not to be discriminated against by the State on grounds of sexual orientation.
Notwithstanding the above, it is worth stating that the decision by Parliament to repeal section 6 of the Civil Unions Act was not unanimous. Much to my anticipation, a caucus of the Economic Freedom Fighters (EFF) that like the sheep in George Orwell’s novel, Animal Farm who were only taught that “four legs good, two legs bad”, voted against the said amendment bill.
This, was apparently due to their erroneous belief that whatever Bill proposed by the ANC in Parliament is bad( save for the Expropriation of Land without Compensation Bill) and should as a matter of principle, be voted against without studying its content.
Needless to mention, these “four legs good, two legs bad” EFF parliamentarians are now facing disciplinary hearings, which as history shows, have only two outcomes- suspension without a salary or in a worse case scenario, expulsion from the party. So from where I’m writing, their fate is already decided.
But I digress.
The now repealed s 6 of the Civil Unions Act of 2006 stated that: ‘‘A marriage offıcer, other than a marriage offıcer referred to in section 5, may in writing inform the Minister that he or she objects on the ground of conscience, religion, and belief to solemnising a civil union between persons of the same sex, whereupon that marriage offıcer shall not be compelled tos olemnise such civil union.’’
This section was not only in contravention of the equality clause in the Constitution (section 9) but was also contrary to section 2 of the Marriages of 1961 which essentially, provides that a marriage officer must solemnise all marriages placed before him or her and is not allowed to refuse to solemnise a marriage on the grounds of conscience, religion or belief.
So now that s 6 of the Civil Unions Act has been repealed, will the Chief Justice (CJ) Mogoeng Mogoeng in his capacity as a pastor and by default, a marriage officer be compelled to solemnise same-sex civil unions? It is now a matter of public knowledge that the CJ is a Christian pastor who has held very dearly to his religious beliefs.
In fact, in his recent reply to a complaint lodged by the Africa4Palestine to the Judicial Service Commission, the CJ confirmed that he is “a South Africa citizen, a Christian who believes the Bible in its totality.” Believing the Bible in its totality means that the CJ will presumably object to solemnising same-sex marriages on the ground of religious belief.
For the Bible in 1 Timothy 1:8-11 says that:
“We know that the law is good if one uses it properly. We also know that the law is made not for the righteous but for lawbreakers and rebels, the ungodly and sinful, the unholy and irreligious, for those who kill their fathers or mothers, for murderers, 10 for the sexually immoral, for those practicing homosexuality, for slave traders and liars and perjurers—and for whatever else is contrary to the sound doctrine that conforms to the gospel concerning the glory of the blessed God, which he entrusted to me.”
NB!! I have only used Mogoeng ( a public figure who has recently found in himself in entanglements because of his religious beliefs) as an example, the revocation of section 6 of the Civil Unions Act presents serious difficulties for Christians pastors or Christian Marriage officers from all walks of life…Let’s discuss this further in my next piece, bye bye for now!!
The much public fanfare about the governmentʼs decision to close public schools for yet another 4 weeks begs the question: What is the position of the Representative Council of Learners (RCL) on the entire fiasco? Legally framed: was the national RCL as the major stakeholder in the basic education sector consulted when the decision to close public schools was taken?
To be clear from the onset, this question is not about whether or not the decision to close public schools was right or wrong. That question has already received its fair share of public comments in mainstream media outlets and social media in particular. My question in this piece hinges on procedural fairness, a legal consideration, if you will.
It is an established principle of our Constitutional dispensation that in any matter concerning the child, the Child’s best interests are of paramount importance (section 28 (2) of the Constitution). This principle also finds expression in the 1989 United Nations Convention on the Rights of the Child (here after, the Convention) as well as in the 1990 African Charter on the Rights and Welfare of the Child (the Charter) both of which South Africa has ratified.
More precisely, Article 3 (1) of the Convention provides that: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
This is also complemented by Article 4 (1)of the Charter which states that: “In all judicial or administrative proceedings affecting a child who is capable of communicating his [or] her own views, an opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings, and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate law.”
In essence, both the Charter and the Convention recognize four principles as being foundational for the interpretation and application of children’s. They are: 1. Non-discrimination/equality; 2. The best interests of the child; 3. The right to life, survival and development; and 4. The right to be heard.
Central to our discussion in this piece is the 4th principle: the right to be heard. This is also dubbed as the “participation principle” which essentially “includes the right of the child to freely express views and have those views respected and considered in any matter affecting him or her. Determining what is in the child’s best interests would be incomplete without at least hearing from the child. But participation doesn’t mean an automatic endorsement of the child’s views. It gives due weight to the child’s age, maturity and capacity” (https://theconversation.com/how-a-south-african-court-case-reminded-adults-of-the-rights-of-children-142834).
The Constitutional Court recently fleshed out this principle in the case of AB and Another v Pridwin Preparatory School and Others. The Constitutional Court in this case was called upon to consider amongst other things whether a clause in a private school’s contract with parents that allowed the school, at any time, to terminate the contract between the school and the parents of the pupils was Constitutional. This clause provided thus:
“The School also has the right to cancel this Contract at any time, for any reason, provided that it gives you a full term’s notice, in writing, of its decision to terminate this Contract. At the end of the term in question, you will be required to withdraw the Child from the School, and the School will refund to you the amount of any fees pre-paid for a period after the end of the term less anything owing to the School by you.”
The private school in question in this matter had terminated the contract due to the misconduct of the two children’s parents particularly during sporting events. This decision would ultimately result in the expulsion of the children from the school.
In declaring the clause unconstitutional, the majority of the Constitutional Court per Theron J concluded that the views of the children ought to have been heard and their best interests should have been considered before a decision was made that would have the effect of limiting their right to education. The children should have been allowed to make representations to the school (and to the courts) about the decision to have them expelled and about the impact the expulsion would have on them.
That said, It is now common cause that before reopening and closing public schools, the government through the department of basic education was engaged in thorough consultations with representatives of the national School Governing Bodies (SGBs), and Teachers Union among others.
What remains unknown is whether the learners themselves through the national RCL as a major stakeholder formed part of this consultative process as provided for in the South African Schools Act?
Research indicates otherwise. In fact, having served in the RCL in 2015 as president of the Molototsi circuit representing 13 schools (time to brag), I can say with absolute certainty that the national RCL was neither represented nor made any contribution to the government’s decision to close public schools. It was clear even back then that the RCL unlike its equivalent in the higher education sector, the SRC, exist only on paper and is only used to rubberstamp the decisions of the school management.
To be clear, the RCL president and the Secretary General both have a seat in the SGB at a school level, however, the same is not true at a national level.
Needless to say, the SGB is not the LRC, neither is the RCL the SGB. In conclusion, to the extent that the national RCL played no participatory role in the process leading to the decision by the government to close public schools, the decision itself suffered from procedural defects. In fact, it was procedurally unfair.
The Economic Freedom Fighters turns 7 today (26 July) and it is common cause that since its inception, the party of Julius Malema has not long shifted the balance of power but has also significantly influenced the political atmosphere of the country. Be that as it may, I leave it to the party’s senior leadership, loyal members and sympathizers to reflect on the success of the party.
Of particular concern and relevance to me in this piece is the trajectory our country is likely to take in the next 10 with the EFF at the healm of our body politics. More precisely, my question is: How Long Will South Africa Survive Before The EFFʼs Fascist Tendencies Capture Public Imagination?
Academic writers, mainstream political analysts and commentators have already spilled an ocean of ink in an attempt to answer this question. In the 1970s, British born Journalist, political scientist and Historian, R. W Johnson asked almost the same question in the context of the apartheid government. He would later on ask the same question in the context of the ANC government in the post apartheid South Africa.
Today I ask the same question in light of the EFF’s fascist tendencies which appear to me to be gaining traction in the public eye. Historically, fascism has been notoriously associated with the German Nazi leader Adolf Hitler or the Italian leader Benito Mussolini.
Put slightly differently, fascists like Hitler and Mussolini have been notorious for denuding the meaning of democracy, trampling upon liberal and democratic values, promoting the “Us vs Them” gospel, exploiting national sentiments, dissatisfaction and prejudices to advance their own narrow agendas. Thus rallying the nation behind the national flag.
On the contrary, and to be fair, the EFF has not styled let alone, presented itself as a outright full blown fascist political party. Itʼs leaders have indeed hitherto embraced some of the democratic and liberal values. In some instances, championing for the independence of Chapter 9 institutions, particularly the Public Protectorʼs office, the Human Rights and Electoral Commission to list but a few.
Moreover, the EFF has on some occasions also lauded judicial rulings like the seminal Nkandla judgement (which by far helped to advance its political profile), as well as embracing regional and international solidarity.
Notwithstanding all of the above, majority of the EFF seniors leaders like Julius Malema, Mbuyiseni Ndlozi and Floyd Shivambu have in more ways than one, nevertheless exhibited fascist tendencies that could lead one to the reasonable conclusion that the EFF is not far from degenerating into a fascist political party or worse, transforming South Africa into one!
In her groundbreaking book titled Fascism: A Warning, the first female US Secretary of State, professor Madeleine Albright gives a credible account of fascism that we can borrow from to help us elaborate on our claim.
First, she defines a fascist as “someone who identifies strongly with and claims to speak for a whole nation or group, is unconcerned with the rights of others, and is willing to use whatever means are necessary—including violence—to achieve his or her goals.” Moreover, unlike a monarchy or a military dictatorship imposed on society from above, argues professor Albright:
“Fascism draws energy from men and women who are upset because of a lost war, a lost job, a memory of humiliation, or a sense that their country is in steep decline. The more painful the grounds for resentment, the easier it is for a Fascist leader to gain followers by dangling the prospect of renewal or by vowing to take back what has been stolen.”
Deplorably, this has been the political strategy of the EFF since its inception in 2013. To absolve itself of the responsibility to support its arguments with facts, the EFF has labeled anyone it disagrees with, resorted to naming calling, calling almost every white person a racist and every black person with a sense of self-ownership and responsibility a “better black with a slave mentality”.
More disturbingly, the party and its senior leaders, have since employed buzzwords and catch-phrases like expropriation without compensation, “nationalization of mines, banks and all the strategic sectors of the economy”, and Import Substitution Industrialisation as policy solutions to complex economic problems but still without any clear elaboration.
Very recently, the EFF has also launched a Book Club where economics is substituted with social theory, chief amongst them, Marxism-Leninism which as history demonstrates has plunged economies into tatters and led to murderous regimes wherever in the world it was tried and tested. One needs to look no farther than China which rose to the status of a global economic powerhouse after abandoning the said ideology and clandestinely embracing free market policies.
In the face of overwhelmingly historical examples and data on the social and economic failures of Socialist and Communist regimes, the EFF continues to insist that socialist is not only the future but the vehicle to the land of bees and honey! What else can explain this if not the love of power for its own sake?
One thing is for certain, it’s only a matter before the EFFʼs fascist tendencies gain traction, capture public imagination and spread to every corner of our country like the global pandemic – the Coronavirus. More so especially, in the absence of critical academic scrutiny and sufficient political opposition as is the case today.”
In yet another sad day in the Republic of South Africa (a country that prides itself as a Constitutional democracy), Julius Malema, the firebrand leader of the Economic Freedom Fighters (EFF) challenged “the best of South Africa’s journalists” into a friendly game, what he dubbed as a “public interrogation .”
This challenge came a few days after the Hawks (South Africa’s Directorate for Priority Crime Investigation Unit) had started carrying out the arrests of the perpetrators alleged to have contributed to the looting and ultimate collapse of the VBS Mutual Bank. As it were, the “best SA journalists accepted the challenge & grabbed the opportunity to ask Julius “any question, about anything”.
Before we proceed, there are two points in limine that I would to make:
The journalists who accepted Julius challenge into a friendly game are neither trained or skilled in criminal prosecution, at the very best, they are merely reporters. Even if investigative journalists like the famous Pauli Van Vyk was in attendance, she would still not ask the right questions. Mainly because, she doesn’t have access to the database state prosecutors have access to when preparing for criminal prosecution.
More importantly, there’s a reason why state prosecutors must go to Law School for 5 and do another 2 two years of practical training. Do not undermine the process!! For some weird reasons, the journalists in attendance appreciated their inadequacies but still accepted the challenge. But we can forgive the poor journalists, they wanted to make a name for themselves. In any event, their bosses would have sent them there.
The journalists who accepted the challenge and their bosses, committed an an unpardonable mistake of history. The same mistake we are all making today that is, undermining Julius’s political wisdom! By accepting the the challenge, the Journalists played Julius’s game by his rules. It is now common cause that no can out compete Julius before cameras. It seems the man from the North possesses the same performance and “organizational skills” that Mcebo “admired” and “loved” Hitler for.
But what exactly did Julius seek to achieve with his friendly game with the journalists?
Answering this question was one herculean task, more so because one was not part of the EFF’s Central Command Team meeting that decided Julius should have a friendly game with Journalists (remember, every action Julius takes, every remark he makes (controversial or not) feeds into a bigger EFF political campaign. That, after all is the primary duty of every brand ambassador…
To answer answer the above question, I proceed from a premise that says, Julius may be anything but he’s no fool, at least politically speaking. He understands the power the media has in shaping public narrative. And more so, the stigma attached to him after the collapse of Limpopo’s fiscus under the auspices of then Premier, Cassel Mathale and the recent collapsed of the VBS Mutual Bank.
You would be surprised to know that Julius’s friendly game with the media was not an exercise in futility. It did achieve its intended purpose. In my own estimation, Julius used the opportunity to dispel all casted public aspersions in his person. His alleged involvement in the looting and ultimate collapse of the VBS Mutual Bank is now a thing of the past.
More importantly, he also dealt a mortal blow to the credibility of all media reports which suggested that I might have being involved in the collapse of VBS. From now onwards, anyone who puts Julius Malema’s name and the abbreviation VBS in the same sentence would simply look stupid. At least, to EFF members and Julius’s sympathizers, if not to everyone.
And from where I’m writing, his strategy has worked pretty well, at least from a political standpoint. He has won the hearts and minds of his supporters. More than anything, the “public interrogation”, established Julius as a skilled politician who knows how to exploit national sentiments and prejudices to advance his agenda and that of his personal fiefdom (the EFF).
Asked about why he spoke strongly against the liquidation of the VBS Mutual Bank, Julius did not waste time to invoke a racial category as part of the explanation, arguing: “VBS is a black bank that was founded by the Vha Venda King, we say we’re a democracy but we can’t protect a black bank.” (I’ve paraphrased him). By invoking a racial category, Julius deliberately polarized the matter, inviting his supporters to see the entire debacle in “black & white”.
Immediately after this, his supporters and sympathizers took to social media platforms to ask:
“Who has ever subjected himself to such public scrutiny?”…
Well, the short answer to that question now that we have an opportunity to reply is, NO ONE!!
And for obvious reasons, alleged criminal perpetrators do not exonerate themselves before the courts of public opinion, neither do they pre-empt criminal prosecutions. They wait until charges are leveled against them and go to court to get aquitted by properly trained judicial officers after due process. And for the record, Julius’s friendly game with the media has no bearing on the legal question of whether he looted the VBS Mutual Bank or not.
He might have shaped public narrative and captured public imagination but as the Constitution Court per the late Chief Justice Chaskalson held in the landmark case of S v Makwenyane that overruled the death penalty:
“Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour.”
Be that as it may be, for now, as Mngxitama would say: it’s Julius 1: journalists 0.
We’ve heard on a reliable hearsay that Mcebo Dlamini has finally completed his LLB degree at Wits University… Well, it’s safe to say no more on this matter at this stage, lest we spoil the moment. So congratulations to him and his family!!
We shall remember Mcebo as the only man who defied all historical accounts and stood firm to defend the taited legacy of the Nazi leader, the principal architecture of the WWII (Second World War) & the instigator of the German Holocaust – Adolf Hitler.
“I love Adolf Hitler”, remarked Mcebo in a Facebook post in 2015 as the Wits SRC President.
In his defense of the Nazi German leader in 2015, Mcebo noted: “ I admire the man’s organizational skills”, Hitler, Mcebo went further to argue: “uplifted the spirit of the German people”… “Was Hitler so bad that there was nothing good about him?”, asked Mcebo.
According to Mcebo, “every white person has an element of Hitler in them.”
These remarks would later culminate into a furore and provoke the outgoing Wits VC Adam Habib to conclude as follows: “To allow this to happen would be a violation of the principles of justice. As someone who claims to love this institution, I believe Mr Dlamini has single-handedly wrought more damage on its reputation than any other person who I can think of in at least the past two decades.”
In an official statement, the university was at pain to note at the time: “Mr Dlamini has brought our institution into disrepute. His remarks have provoked multiple complaints from people of all racial, political and religious persuasions, including a petition demanding his immediate expulsion from the university.”
With a law degree in his possession, it would not be hysterical to conclude that Mcebo can turn black into white. He’s the kind of lawyer you can trust to defend an accused who shot a person on live television and use the meticulous skill with which the trigger was pulled as a ground of defense.
Good well Cadre, you have served to the best of your ability and defended the indefensible!!