tag:theconversation.com,2011:/fr/topics/south-african-constitution-33428/articlesSouth African constitution – The Conversation2023-09-21T13:27:43Ztag:theconversation.com,2011:article/2113652023-09-21T13:27:43Z2023-09-21T13:27:43ZZulu land dispute: Ingonyama Trust furore highlights the problem of insecure land tenure for millions of South Africans in rural areas<p>The recent <a href="https://www.dailymaverick.co.za/article/2023-06-04-the-battle-between-the-zulu-king-and-his-prime-minister-over-the-ingonyama-trust-is-likely-to-divide-kzn-voters-in-2024/">fallout</a> between the Zulu king, Misuzulu, and his now late traditional prime minister, Mangosuthu Buthelezi, over the running of the Ingonyama Trust highlights a pervasive problem in South Africa: insecure land tenure in rural areas. </p>
<p>The Ingonyama Trust administers about a third of the land in KwaZulu-Natal province. Buthelezi insinuated that the king – or those around him – wanted to corruptly sell the land for profit. He also questioned the competence of the board chairperson appointed by the king. The king denied the charge, saying the board would <a href="https://www.dailymaverick.co.za/article/2023-06-04-the-battle-between-the-zulu-king-and-his-prime-minister-over-the-ingonyama-trust-is-likely-to-divide-kzn-voters-in-2024/">“never allow the sale of the land”</a>.</p>
<p>But the legally questionable practices of the Ingonyama Trust, such as charging people rent on land they own communally, and its unilateral decision-making about communally owned land, reflect the <a href="https://theconversation.com/why-south-african-communitys-win-against-mining-company-matters-107746">insecurity of land tenure</a> for millions of rural South Africans. </p>
<p>Land disputes arise when the principles at the core of <a href="https://ci.uct.ac.za/sites/default/files/content_migration/health_uct_ac_za/533/files/living%2520customary%2520law%2520and%2520families%2520in%2520South%2520Africa.pdf">customary law</a> are breached. The breach can be by the state or by the representatives appointed by the communities to manage or administer the land on their behalf and for their collective benefit.</p>
<p>Constitutional <a href="https://scholar.ufs.ac.za/xmlui/handle/11660/12130">land reform measures</a> are intended to provide security of land tenure to all land holders equally. All laws, including customary law, are subject to the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a>. Any law, rule or conduct found to be inconsistent with constitutional principles of human dignity, equality and freedom is invalid. </p>
<p>In areas run by traditional leaders, land is owned collectively, in line with <a href="https://ci.uct.ac.za/sites/default/files/content_migration/health_uct_ac_za/533/files/living%2520customary%2520law%2520and%2520families%2520in%2520South%2520Africa.pdf">customary law</a>. South African law <a href="http://www.saflii.org/za/cases/ZACC/2010/10.html">recognises</a> the application of living customary law, in accordance with the constitution.</p>
<p>Customary communal land tenure comes with inherent rights for land holders. They include collective ownership rights, equal benefit from the land and natural resources, and decision-making authority. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/customary-land-governance-holds-in-ghana-but-times-are-changing-and-not-for-the-better-205497">Customary land governance holds in Ghana. But times are changing and not for the better</a>
</strong>
</em>
</p>
<hr>
<p>My <a href="https://scholar.ufs.ac.za/xmlui/handle/11660/12130">research</a> areas include issues of rural land tenure, custodianship and property law. </p>
<p>In my view, the Ingonyama Trust has misconstrued <a href="http://www.saflii.org/za/journals/CCR/2011/4.pdf">customary communal land tenure</a>. Its dual application of both trust law and traditional customary law causes confusion. It’s not clear what the property rights of communal land holders are. Applying both sets of laws also blurs the limitations on the powers of the trust and traditional representatives. </p>
<p>Such misconstructions of customary law are often intertwined with corrupt practices and power mongering. These misconstructions preserve certain individuals’ powers and interests at the expense of the greater community. This occurs when understandings of individual private property ownership are applied to customary communal land tenure in a way that diminishes the need for communal consent and consultation.</p>
<p><a href="https://www.jstor.org/stable/24566755">Living customary law</a> – which is developed over time by the community, is specific to that community, and occurs through collective practice and decision-making in accordance with shared values and rules – is then supplanted by misapplications. These misconstructions can originate from various sources, such as statutory regulations, distorted common law beliefs, and patriarchal traditional leadership practices that masquerade as customary law. </p>
<p>The result is insecure tenure for rural land occupants. The Ingonyama Trust epitomises these problems.</p>
<h2>How customary communal land tenure works</h2>
<p>Customary <a href="https://www.academia.edu/37320502/Land_reform_political_instability_and_commercial%20_agriculture_in_South_Africa_An_assessment">communal land tenure</a> is found in communities that have a genealogical or ancestral connection to that land. Some are beneficiaries of the government’s <a href="http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000200004">land restitution programme</a>. They collectively hold all property rights to their land. </p>
<p>Living customary law gives them, collectively, the power to hold individual community members and leaders or representatives accountable for breaches of their fiduciary duties to the community.</p>
<p>Often a statutory entity is created, such as a trust or association, that regulates the way the land is managed. For example, some communities in the <a href="https://www.gov.za/issues/land-reform#:%7E:text=The%20Act%20makes%20provision%20for%20the%20restitution%20of%20rights%20in,and%20a%20Land%20Claims%20Court.">land restitution programme</a> are members of an association in terms of the <a href="https://www.gov.za/documents/communal-property-associations-act">Communal Property Associations Act</a>. </p>
<p>Such communities elect representatives who manage the administration of the association and have fiduciary responsibilities in terms of the act. Associations are governed by their constitution and the Communal Property Associations Act. Similarly, the Ingonyama Trust is governed by traditional customary law and the statutory trust framework. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/customary-and-religious-laws-are-impeding-progress-towards-womens-health-in-nigeria-154221">Customary and religious laws are impeding progress towards women's health in Nigeria</a>
</strong>
</em>
</p>
<hr>
<p>Both forms of communal land holding are distinguishable from private property ownership, which confers registered ownership rights on individuals. Private ownership is primarily governed by the common law. It gives the land owner autonomous decision-making powers with few limitations. The owner has extensive unilateral decision-making authority in respect of their privately owned land. They can, for example, transfer ownership, dispose of, or encumber their property (without consultation).</p>
<h2>The Ingonyama Trust and its tenure challenges</h2>
<p>The Ingonyama Trust was <a href="http://www.ingonyamatrust.org.za/">established in 1994</a> by the then KwaZulu Government to administer all land it held. It is a corporate entity and administers 2.8 million hectares of the land in KwaZulu-Natal. The territory was once administered by the erstwhile KwaZulu homeland. This followed <a href="https://www.tandfonline.com/doi/full/10.1080/02582473.2021.1909116">a deal hammered out earlier</a> to entice Buthelezi and his Inkatha Freedom Party to take part in the elections that ended apartheid. The province is a stronghold of the party.</p>
<p>The Zulu monarch is the sole trustee, even though the land is <a href="http://www.ingonyamatrust.org.za/wp-content/uploads/2015/10/Ingonyama-Trust-Act-as-amended.pdf">owned by the Zulu people</a>. The king represents the people and the land must be managed for their benefit and welfare. </p>
<p>The trust is plagued with disputes for not involving the community in its business transactions. There has been little evidence of collective benefit for the community. </p>
<p>The disputes expose unequal profit from trust assets, privileging a select few, instead of all the communal land holders equally. To sum up crisply: the trust has treated communal land like privately owned land.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-south-african-communitys-win-against-mining-company-matters-107746">Why South African community's win against mining company matters</a>
</strong>
</em>
</p>
<hr>
<p>In 2022, the Supreme Court of Appeal <a href="https://lrc.org.za/24-august-2022-supreme-court-of-appeal-dismisses-ingonyama-trust-board-application-for-leave-to-appeal/">directed</a> the Ingonyama Trust to cease letting trust land to the land beneficiaries to whom the land belonged. It was ordered to repay the rent.</p>
<p>In 2017, <a href="https://www.parliament.gov.za/storage/app/media/Pages/2017/october/High_Level_Panel/HLP_Report/HLP_report.pdf">a panel appointed by parliament to review post-apartheid legislation</a> recommended that the trust be amended or repealed. </p>
<p>However, such criticism is perceived by some as a slight against the king and is met with social and political resistance. The <a href="https://omalley.nelsonmandela.org/index.php/site/q/03lv02424/04lv02730/05lv02898.htm">Congress of Traditional Leaders of South Africa</a> contends that the Ingonyama Trust cannot be repealed, amended or dissolved without the king’s approval – in accordance with customary law. </p>
<h2>Traditional rule versus democracy</h2>
<p>The misapplication of tenure under the Ingonyama Trust exemplifies structural conflict between trust tenure and customary traditional rule. </p>
<p>The trust applies a form of traditional despotic rule that can be at odds with democratic principles enshrined in the constitution. Under traditional despotic rule or authoritarian rule, customary law is interpreted in a way that naturally limits the need for community consultation, consent and participation in all decision-making related to the land from the “subjects”. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/south-africas-courts-and-lawmakers-have-failed-the-ideal-of-cultural-diversity-91508">South Africa's courts and lawmakers have failed the ideal of cultural diversity</a>
</strong>
</em>
</p>
<hr>
<p>This despotic rule is also at odds with trust tenure and the communal landholding rights of rural communities. The extent to which the community is able to equally use and enjoy their land, and the economic benefits accruing from it for collective social and economic progress, should be the yardstick against which communal land tenure is measured, and land rights clarified and protected.</p><img src="https://counter.theconversation.com/content/211365/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthea-lee September-Van Huffel does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Land disputes arise when the fundamental principles of customary law are breached. The breach can be at the hands of the state or its representatives.Anthea-lee September-Van Huffel, Lecturer, University of the Free StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2071262023-06-21T12:17:43Z2023-06-21T12:17:43ZSign language is now official in South Africa - how this will help education in Deaf schools<figure><img src="https://images.theconversation.com/files/533170/original/file-20230621-15-eg40ue.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Universities have a role to play in equipping future teachers of the Deaf by teaching sign language.</span> <span class="attribution"><span class="source">Wits University</span></span></figcaption></figure><p><em>South African Sign Language is now <a href="https://www.thepresidency.gov.za/speeches/remarks-president-cyril-ramaphosa-signing-ceremony-south-african-sign-language-bill%2C-union-buildings%2C-tshwane">the country’s 12th official language</a>. Parliament approved a <a href="https://www.gov.za/documents/constitution/chapter-1-founding-provisions#5">constitutional</a> amendment in a bid to “promote the rights of persons who are deaf (sic) and hard of hearing”.</em> </p>
<p><em>Claudine Storbeck, founder and director of the Wits Centre for Deaf Studies at South Africa’s University of the Witwatersrand, explains what the move could – and should – mean for Deaf education in the country.</em></p>
<h2>What is the educational environment today for Deaf learners in South Africa?</h2>
<p>There are 43 schools for the Deaf <a href="https://uni24.co.za/list-deaf-schools-south-africa/?gclid=Cj0KCQjw7aqkBhDPARIsAKGa0oJnBcAkxxbXrVTXuKy-BKZJZK_zJ2hFSec6XTO-G8ehQMkWtlkpycAaAu8zEALw_wcB">across the country</a>. Of these, 38 use South African Sign Language (SASL) as the language of teaching and learning. The aim is to ensure that the complete academic curriculum is taught. However, the anecdotal feedback we get from teachers of the Deaf suggests that they are unable to fully complete the curriculum each year and this gap keeps growing. </p>
<p>There isn’t any data on hearing versus Deaf education nor on the number of qualified teachers of the Deaf. We at the Wits Centre for Deaf Studies plan to start such a database soon. We do know that the large majority of teachers in schools for the Deaf are hearing. They are not required to have any form of specialised training or qualification in Deaf education or in SASL before they are appointed. Their signing skills are not evaluated before they are appointed. </p>
<p>In fact, these teachers are not formally required to do SASL courses – only encouraged. In this situation the teachers pick up some SASL from learners as they go along. It’s totally unacceptable that pupils have to become teachers to try to facilitate communication, before they can truly be learners. Teachers’ signing skills are never re-assessed; there are no quality assurance mechanisms in Deaf education in South Africa and ultimately it is the Deaf learners who pay the price.</p>
<p>This situation makes it clear why Deaf learners’ education is sub-par and their literacy levels are low. As with the question of qualified teachers for the Deaf, there is a dearth of data on Deaf school leavers’ literacy levels: the most <a href="https://www.jstor.org/stable/j.ctv2rh298v?turn_away=true">recently available figures</a>, quoted in a <a href="https://www.researchgate.net/publication/239789213_Inclusive_education_for_Deaf_students_Literacy_practices_and_South_African_Sign_Language">2012 research article</a>, suggest that </p>
<blockquote>
<p>In South Africa as few as one in three Deaf adults who use South African Sign Language (SASL) is functionally literate and the average Deaf school leaver has a written language comprehension ability equal to that of a hearing child of eight.</p>
</blockquote>
<h2>Will the recognition of SASL as an official language help Deaf education?</h2>
<p>The poor quality of Deaf education has a <a href="https://limpingchicken.com/2020/03/09/liam-odell-how-to-stop-the-domino-effect/">domino effect</a> on post-school opportunities and employment. Previously, training entities – as well as employers – could decline access to SASL interpreting. They could say it wasn’t <a href="http://www.included.org.za/wp-content/uploads/2018/02/2546_IESA_EU-Factsheet-08_Reasonable-Accomodation-WEB-1.pdf">reasonably practical</a> or it caused <a href="https://www.dpsa.gov.za/dpsa2g/documents/ee/2015/289_1_2_3_20_08_2015_Policy.pdf">an undue burden</a>.</p>
<p>Now that SASL is an official language it must, by law, be properly integrated into the education and post school system.</p>
<p>The constitutional amendment can empower the national department of basic education to make it mandatory for teachers at schools for the Deaf to have specialist qualifications. The department must also strengthen SASL curriculum training and support. This can be done with the help of curriculum and subject specialists at the department as well as <a href="https://www.wits.ac.za/centre-for-deaf-studies/academic-programmes/pgce-south-african-sign-language/">at universities</a>. <a href="https://www.thutong.doe.gov.za/Default.aspx?alias=www.thutong.doe.gov.za/southafricansignlanguage">SASL resources</a> need to be expanded along with <a href="https://www.wits.ac.za/centre-for-deaf-studies/roots-resources/">Deaf education materials</a>, and Deaf learners need to see their own <a href="https://newafricabooks.com/products/mpumi-and-jabus-magical-day-1?variant=32244174553124">published literature</a>.</p>
<p>There are <a href="https://issuu.com/witsalumnirelations/docs/wits_review__april_2021_issuu/s/12025816">academic specialists</a> in Deaf education and SASL linguists. But very few are Deaf academics themselves: crucially, Deaf education <a href="https://www.dailymaverick.co.za/article/2022-05-11-much-needed-change-in-deaf-education-must-be-led-by-the-deaf/">must be led by the Deaf</a>. Hearing academics who wish to partner on this journey need to be fluent signers and experts within SASL and Deaf education in the South African context.</p>
<p>To reach this point, universities and the department of basic education must prioritise the training of Deaf teachers. This is an historical challenge: Deaf children come through a poor education system and don’t graduate with an equitable school leaving qualification or don’t qualify for university access to train as teachers – a vicious cycle. The proposals I’ve outlined here can help to break this cycle.</p>
<p>The recognition of SASL as an official language is a big step in the right direction. It’s an opportunity for the almost <a href="http://www.sanda.org.za/">4 million Deaf people</a> in South Africa (of whom <a href="https://www.facebook.com/profile.php?id=100064710339351">600,000 are SASL users</a>) to properly access their <a href="https://www.gov.za/documents/constitution/chapter-2-bill-rights">human rights</a> in a language they understand. That journey must begin in the classroom.</p>
<p><em><a href="https://www.thepresidency.gov.za/speeches/remarks-president-cyril-ramaphosa-signing-ceremony-south-african-sign-language-bill%2C-union-buildings%2C-tshwane">Updated to reflect South African Sign Language becoming an official language on 19 July 2003</a>.</em></p><img src="https://counter.theconversation.com/content/207126/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claudine Storbeck has received research funding from the UK-MRC (Medical Research Council) and the Global Challenges Research Fund (UK-MRC/AHRC). She is a visiting researcher at the University of Manchester, UK.
</span></em></p>This is an opportunity for Deaf people to finally be properly educated in a language they understand.Claudine Storbeck, Professor and Founder of the Wits Centre for Deaf Studies, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2055822023-05-23T13:37:18Z2023-05-23T13:37:18ZSign language is set to become South Africa’s 12th official language after a long fight for recognition<figure><img src="https://images.theconversation.com/files/527511/original/file-20230522-19-xyo5r1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Deaf students at the Khulani Special School learning sign language.</span> <span class="attribution"><span class="source">Leisa Tyler/LightRocket via Getty Images</span></span></figcaption></figure><p><em>Sign language is on its way to become the 12th official language in South Africa after parliament recently <a href="https://legalacademy.co.za/news/read/sign-language-bill-leaves-parliament-ready-to-be-enacted">agreed to amend the constitution</a> to this end. The move will bring to fruition three decades of a struggle to empower the country’s deaf community. An official language has legal status in a state and serves as the <a href="https://read.oecd-ilibrary.org/economics/oecd-glossary-of-statistical-terms_9789264055087-en#page378">language of administration</a> (conducting day-to-day state business). We asked Theo du Plessis, an emeritus professor of South African Sign Language and Deaf Studies, for his insights.</em></p>
<h2>What was the process leading to sign language becoming an official language?</h2>
<p>Numerous attempts have been made since the adoption of the interim post-apartheid <a href="https://www.gov.za/documents/constitution/constitution-republic-south-africa-act-200-1993">constitution in 1993</a> – in which <a href="https://www.bing.com/images/search?view=detailV2&ccid=Xqg8m9Ni&id=4D680A11EA41D8BD1F748B34FA5B0D8113C427A1&thid=OIP.Xqg8m9Ni5UEfWCxD5BjDEAAAAA&mediaurl=https%3a%2f%2fwww.realsasl.com%2fimages%2f2022_Alphabet%2fABC_Alphabet_South_African_Sign_Language_2022.jpg&cdnurl=https%3a%2f%2fth.bing.com%2fth%2fid%2fR.5ea83c9bd362e5411f582c43e418c310%3frik%3doSfEE4ENW%252fo0iw%26pid%3dImgRaw%26r%3d0&exph=335&expw=474&q=south+african+sign+language+-+one+language+or+many%3f&simid=608051667494007872&FORM=IRPRST&ck=54BCF7CD6DEF046473579F152C1151E1&selectedIndex=2&ajaxhist=0&ajaxserp=0">South African Sign Language</a> was not mentioned at all – to make it official. </p>
<p>These included a formal request by the South African National Deaf Association (<a href="http://www.sanda.org.za/">DeafSA</a>) to the Pan South African Language Board (<a href="https://www.pansalb.org/">PanSALB</a>) <a href="https://pmg.org.za/hansard/18063/">in 1996</a>. The board is constitutionally mandated to develop and promote the country’s current 11 official languages, and the <a href="https://www.archaeology.org.za/events/non-bantu-click-languages-versus-khoisan-linguistic-reality-and-ideological-aspirations">non-bantu indigenous click languages</a> – incorrectly referred to as “Khoisan” languages.</p>
<p>The board can’t give languages official status, so nothing came of the request. Eventually another submission was made to the Constitutional Review Committee <a href="https://pmg.org.za/committee-meeting/8091/">in February 2007</a>.
Two further submissions in <a href="https://pmg.org.za/committee-meeting/21459/">2013 and 2015</a> were made to parliament to recommend that South African Sign Language be made official. </p>
<p>In <a href="https://www.gov.za/speeches/president-cyril-ramaphosa-2020-state-nation-address-13-feb-2020-0000">February 2020</a>, the president announced the pending official recognition of sign language as the country’s 12th official language.</p>
<p>Two years earlier, the United Nations <a href="https://www.ohchr.org/en/documents/concluding-observations/crpdczafco1-concluding-observations-initial-report-south-africa">had expressed concern</a> about the slow pace of amending the constitution to recognise <a href="https://www.ufs.ac.za/humanities/departments-and-divisions/south-african-sign-language-home">South African Sign Language</a>.</p>
<p>Only on 25 May 2022 did cabinet approve the <a href="https://www.gov.za/speeches/statement-virtual-cabinet-meeting-25-may-2022-26-may-2022-0000">Constitutional Eighteenth Amendment Bill</a> for public comment.</p>
<p>After public hearings <a href="https://pmg.org.za/tabled-committee-report/5263/">in March 2023</a>, the committee recommended the bill for approval. The National Assembly gave its approval to make South African Sign Language official on <a href="https://www.parliament.gov.za/press-releases/na-approves-south-african-sign-language-12th-official-language">2 May 2023</a>. The <a href="https://www.parliament.gov.za/national-council-provinces">National Council of Provinces</a> has also approved and the president must <a href="https://legalacademy.co.za/news/read/sign-language-bill-leaves-parliament-ready-to-be-enacted">sign the amendment as law</a>.</p>
<h2>In what ways will this benefit users of sign language?</h2>
<p>To be honest, not in any meaningful way. The constitution obligates the government to use <a href="https://www.gov.za/documents/constitution/chapter-1-founding-provisions">at least two official languages</a> for the purposes of government administration. <a href="https://www.gov.za/documents/use-official-languages-act">The Use of Official Languages Act, 2012</a> later made this at least three languages. So, there is no legal requirement that all 11 languages must be used. The official languages therefore have only symbolic value at most.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/527508/original/file-20230522-27-5n2cn5.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/527508/original/file-20230522-27-5n2cn5.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=424&fit=crop&dpr=1 600w, https://images.theconversation.com/files/527508/original/file-20230522-27-5n2cn5.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=424&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/527508/original/file-20230522-27-5n2cn5.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=424&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/527508/original/file-20230522-27-5n2cn5.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=533&fit=crop&dpr=1 754w, https://images.theconversation.com/files/527508/original/file-20230522-27-5n2cn5.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=533&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/527508/original/file-20230522-27-5n2cn5.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=533&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">South African Sign Language alphabet.</span>
<span class="attribution"><span class="source">RealSasl.com</span></span>
</figcaption>
</figure>
<p>For all practical purposes, the current language regime is in fact dysfunctional. The state primarily uses only one language, English. </p>
<p>One consolation is that the <a href="https://www.gov.za/documents/use-official-languages-act">Use of Official Languages Act</a> requires state entities to accommodate people who choose South African Sign Language as their preferred language when communicating with the state. </p>
<p>Hearing people do not enjoy the same official language right to use their preferred language when communicating with the state.</p>
<h2>What constitutional rights do sign language users currently enjoy?</h2>
<p>First language users of South African Sign Language already enjoy all the same individual language rights that hearing South Africans enjoy – in fact even more – without sign language being an official language. So, making their language official is not giving them access to any new right. </p>
<p>Deaf people and persons with serious hearing loss already have the individual language rights that are guaranteed for all citizens – such as the right to access to information, to cultural association, to non-discrimination on the basis of language and to interpretation in courts. </p>
<p>A provision of the <a href="https://www.gov.za/sites/default/files/gcis_document/201409/act84of1996.pdf">South African Schools Act</a> declares South African Sign Language official in public schools for the purposes of education. </p>
<h2>How did the country decide which sign language to use?</h2>
<p>There’s a lot of <a href="https://scholar.sun.ac.za/handle/10019.1/124951">lexical variation</a> in South African Sign Language. One of the earliest <a href="https://spil.journals.ac.za/pub/article/view/55">publications</a> on the subject, from 1998, poses a similar question: South African Sign Language - one language or many?</p>
<p>The authors, Debra Aaron and Philemon Akach, argue that the variation found in sign language is at most geographical and that these “dialects” all contain the same grammatical structure.</p>
<p>It signifies the existence of one national sign language. The <a href="https://www.gov.za/documents/south-african-schools-act">Schools Act</a> partly answers the question. It stipulates that the sign language to be used for education purposes will be the one approved by PanSALB. Usually, the language variety used in education is considered the standard variety of the official language. </p>
<p>The board is also working towards the further standardisation of the sign language. In collaboration with DeafSA, the <a href="https://www.westerncape.gov.za/news/dcas-and-pansalb-partner-launch-new-online-sa-sign-language-dictionary#:%7E:text=The%20first-ever%20online%20South%20African%20Sign%20Language%20%28SASL%29,in%20Cape%20Town%20on%20Thursday%2C%2001%20September%202022">first comprehensive electronic dictionary</a> for South African Sign Language was made available last year. </p>
<p>The board has also set up a working group to further the standardisation initiative. The idea is not to create “one” sign language; rather to cultivate one standard for using South African Sign Language in higher functions – such as in parliament, government administration, universities and the courts. </p>
<p>In conclusion, making South African Sign Language official is more symbolic than useful.</p>
<p>The justice minister, <a href="https://www.justice.gov.za/legislation/notices/2022/20220719-gg47049gen1156-Const-S6-Comments.pdf">in his motivation</a> for making South African Sign Language official, echoes the claim made by DeafSA way back in 2007. It is that for the deaf (and hard of hearing persons) an official sign language will help this community to realise and enjoy their rights and human dignity, make them an integral part of South Africa and promote inclusivity. </p>
<p>However, the same people who have failed to realise existing rights will be responsible for trying to do so now, in the context of a largely dysfunctional and even more complex official language dispensation. I don’t envisage any significant changes in the lives of a very marginalised community who are being misled into expecting a better life for all.</p><img src="https://counter.theconversation.com/content/205582/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Theo du Plessis receives funding from National Research Foundation</span></em></p>Making South African Sign Language official is more symbolic than useful in the lives of a very marginalised community.Theo du Plessis, Professor Emeritus, University of the Free StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2023662023-03-28T15:28:33Z2023-03-28T15:28:33ZPaul Mashatile, South Africa’s new deputy president, has a critical task: to bring back a sense of stability<figure><img src="https://images.theconversation.com/files/517666/original/file-20230327-20-x9uext.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Paul Mashatile, the deputy president of South Africa.</span> <span class="attribution"><span class="source">Foto24/Gallo Images/Getty Images</span></span></figcaption></figure><p>In a recent <a href="https://www.thepresidency.gov.za/speeches/statement-president-cyril-ramaphosa-changes-national-executive">cabinet reshuffle</a> President Cyril Ramaphosa appointed Paul Mashatile, the deputy president of South Africa’s governing party, the African National Congress (ANC), as the country’s deputy president. The tradition in the ANC since democracy in 1994 has been for its elected deputy president to ascend first to the deputy presidency of the country, and eventually to become head of state. So Mashatile, an <a href="https://theconversation.com/south-africa-has-a-new-deputy-president-in-paul-mashatile-what-he-brings-to-the-table-200089">experienced politician</a>, may also be destined for top office.</p>
<p>Ramaphosa’s cabinet reshuffle took place in a climate of growing <a href="https://theconversation.com/south-africa-has-been-warned-that-it-faces-an-arab-spring-so-what-are-the-chances-187634">restlessness</a> across the nation about the many failures of the state, high levels of corruption and <a href="https://theconversation.com/link-between-crime-and-politics-in-south-africa-raises-concerns-about-criminal-gangs-taking-over-198160">organised crime</a>. </p>
<p>As a political scientist and researcher on security governance matters, I have been considering the role Mashatile could play in responding to the security crisis. </p>
<p>He will serve on two cabinet structures that are crucial to safety and security in the country. Through this he could contribute to rebuilding <a href="https://theconversation.com/south-africans-have-low-trust-in-their-police-heres-why-178821">trust</a> that the public has lost in the law enforcement and criminal justice system. </p>
<h2>Justice, crime prevention and security</h2>
<p>One of Mashatile’s <a href="https://www.timeslive.co.za/politics/2023-03-14-ramaphosa-appoints-mashatile-to-chair-cabinet-security-cluster/">tasks</a> is to chair the <a href="https://www.saps.gov.za/resource_centre/publications/naidoo_makananisa_integrated_presentation.pdf">Justice, Crime Prevention and Security</a> cabinet committee. This committee coordinates the work of the ministers who are collectively charged with ensuring safety and stability in the country. During the devastating <a href="https://theconversation.com/south-africas-deadly-july-2021-riots-may-recur-if-theres-no-change-186397">July 2021 unrest</a>, the ministers contradicted each other. They also failed to show a united front against the violence that engulfed several provinces, particularly KwaZulu-Natal and Gauteng.</p>
<p>With deft leadership, Mashatile can assist Ramaphosa to address the legacy of poorly coordinated security services. The former minister in the presidency, <a href="https://www.news24.com/citypress/politics/security-cluster-needs-unity-gungubele-20220730">Mondli Gungubele</a>, acknowledged this problem on the anniversary of the deadly July 2021 riots. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/south-africa-has-a-new-deputy-president-in-paul-mashatile-what-he-brings-to-the-table-200089">South Africa has a new deputy president in Paul Mashatile: what he brings to the table</a>
</strong>
</em>
</p>
<hr>
<p>The Justice, Crime Prevention and Security cluster was among several cabinet “clusters” established during former president Thabo Mbeki’s tenure. This has cemented a tradition of intergovernmental cooperation ever since. It oversees the work of the following core ministries and departments:</p>
<ul>
<li><p>police</p></li>
<li><p>state security</p></li>
<li><p>justice and correctional services </p></li>
<li><p>home affairs</p></li>
<li><p>defence and military veterans</p></li>
<li><p>finance.</p></li>
</ul>
<p>Mashatile will have to contend with a labyrinth of structures responsible for safety. The operational work of the cluster is coordinated by the directors-general of these departments through the National Joint Operational and Intelligence Structure (<a href="https://www.gov.za/speeches/national-joint-operational-and-intelligence-structure-natjoints-0700-update-20-mar-2023">NATJOINTS</a>). </p>
<p>While the NATJOINTS operates at national level, its activities are decentralised to provincial structures (<a href="https://www.news24.com/news24/southafrica/news/all-hands-on-deck-w-cape-saps-sandf-metro-police-on-high-alert-amid-planned-national-shutdown-20230319">PROVJOINTs</a>). They coordinate security operations at a provincial level. They work with municipal law enforcement and emergency services, and advise the provincial governments on measures they are taking to keep the public safe. </p>
<h2>The National Security Council</h2>
<p>Mashatile will also serve on the <a href="https://www.justice.gov.za/legislation/notices/2020/20200310-gg42482proc13-COnstitution-NSC.pdf">National Security Council</a>, which is chaired by the president.</p>
<p>The entity is mandated to coordinate a <a href="https://www.dailymaverick.co.za/article/2022-03-01-sas-proposed-national-security-strategy-more-hot-air-or-a-potential-democratic-opening/">national security strategy</a>. It also oversees the annual formulation of a budget and priorities by the country’s <a href="https://www.dailymaverick.co.za/article/2022-01-27-the-ssa-can-improve-but-misconceptions-about-the-role-of-intelligence-services-need-to-be-cleared-up/">intelligence services</a>. It is responsible for coordinating the work of the security services, law enforcement agencies and relevant organs of state to ensure national security. In addition, it receives coordinated, integrated intelligence assessments from the national security structures, and mandates these structures to attend to matters of national security as required.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/south-africa-needs-strategic-leadership-to-weather-its-storms-its-presidents-have-not-been-up-to-the-task-194296">South Africa needs strategic leadership to weather its storms. Its presidents have not been up to the task</a>
</strong>
</em>
</p>
<hr>
<p>There is a significant <a href="https://www.justice.gov.za/legislation/notices/2020/20200310-gg42482proc13-COnstitution-NSC.pdf">overlap of the membership</a> of the Justice, Crime Prevention and Security cluster of ministers, and the National Security Council. Besides the president and deputy president, the council includes all the ministers who are part of the Police, State Security and Justice cabinet committee, as well as the ministers of home affairs, defence and military veterans, international relations, and cooperative governance and traditional affairs. </p>
<h2>How Mashatile could bring stability</h2>
<p>Ramaphosa has entrusted important functions to his deputy. This suggests a level of confidence and cooperation between the two men, rather than a <a href="https://sundayworld.co.za/news/politics/block-mashatile-ramaphosa-warned/">rivalry</a>. Neither can afford to let the ANC fail in government, as this would augur badly for its <a href="https://www.biznews.com/thought-leaders/2023/02/09/anc-crisis-polls-steep-loss-support-elections">prospects</a> in the 2024 general elections. </p>
<p>Mashatile should prioritise getting a few key systems in place. The visibility and effectiveness of the police in day-to-day policing must improve. He must oversee strategies to combat organised crime, which is strangling so many areas of public life. He must also work to secure the resources to implement the recommendations of the <a href="https://www.statecapture.org.za/">Zondo Commission on state capture</a>. </p>
<p>With confidence in the state <a href="https://www.afrobarometer.org/wp-content/uploads/migrated/files/publications/Dispatches/ad474-south_africans_trust_in_institutions_reaches_new_low-afrobarometer-20aug21.pdf">as low as it is</a>, and the public deeply traumatised by high levels of <a href="https://www.dailymaverick.co.za/article/2023-02-09-sona-2023-sas-soaring-murder-rate-underscores-need-for-ramaphosa-to-ensure-better-leadership-in-policing/">violent crime</a>, Mashatile must put in extra effort to boost public confidence in the justice, crime prevention and security sector. </p>
<p>He can do this by listening to what key stakeholders have to say about the security of the country. Young people bear the brunt of the epidemic of violence – physical and structural. Attending to their security and <a href="https://theconversation.com/idle-and-frustrated-young-south-africans-speak-about-the-need-for-recreational-facilities-176921">wellbeing</a> is crucial for the country’s future.</p>
<p>He also needs to be more strategically visible than his predecessor, David Mabuza, who <a href="https://www.news24.com/news24/politics/government/david-mabuza-the-man-from-mpumalanga-who-quit-as-deputy-president-before-some-argue-ever-starting-20230304">resigned</a> from the position. Mabuza’s job description was almost identical to that of Mashatile’s. Yet he <a href="https://www.sabcnews.com/sabcnews/ramaphosa-urged-to-appoint-a-competent-deputy-president/">left office with many questioning</a> if he had made any impact. </p>
<h2>New broom</h2>
<p>Mashatile could be the new broom that sweeps clean. Ramaphosa’s apparent confidence in him suggests that he has some latitude to do so. </p>
<p>It is said the job of a deputy president, in practically any country, is <a href="https://www.usnews.com/news/elections/articles/2021-01-20/what-does-the-vice-president-do">waiting</a> to replace the president. While Mashatile waits in the wings, he has the opportunity to make a difference and make South Africa a more secure place for the public.</p><img src="https://counter.theconversation.com/content/202366/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sandy Africa does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Mashatile could be the new broom that sweeps clean. Ramaphosa’s apparent confidence in him suggests that he has some latitude to do so.Sandy Africa, Associate Professor, Political Sciences, and Deputy Dean Teaching and Learning (Humanities), University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1992272023-03-05T14:24:56Z2023-03-05T14:24:56ZLGBTIQ+ migrants and asylum seekers in South Africa: major new study identifies a diverse, wide-spread community<figure><img src="https://images.theconversation.com/files/511138/original/file-20230220-20-mid27o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa is the only African nation to formally extend refugee protection to LGBTI+ people.</span> <span class="attribution"><span class="source">Luca Sola/AFP via Getty Images</span></span></figcaption></figure><p>Since 1998, South Africa has recognised persecution based on gender and sexuality as legitimate grounds for asylum. This makes it the only African country to formally extend refugee protection to lesbian, gay, bisexual, transgender and intersex (LGBTI+) persons. </p>
<p>However, <a href="https://theconversation.com/lgbt-migrants-in-south-africa-religion-can-be-a-blessing-and-a-curse-169758">as research shows</a>, the promise of freedom contained in its <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a130-980.pdf">Refugees Act</a> is yet to materialise for LGBTI+ people.</p>
<p><a href="https://almn.org.za/">Scholars</a>, <a href="https://www.mambaonline.com/2019/05/31/abusive-home-affairs-biggest-challenge-faced-by-lgbti-asylum-seekers/?fbclid=IwAR22tJdhcCJvqoYZzVv1WVsHn6jgJIKmtoHl1ireW7mds5kOrprt7Xse3sk">activists</a> and <a href="https://www.hrw.org/news/2021/07/06/human-rights-watch-submission-south-africa-department-justice">human rights bodies</a> continue to document worrying trends in the asylum system. A recent analysis of refugee status denials involving LGBTI+ applicants identifies <a href="https://lrc.org.za/wp-content/uploads/LGBTI-ASYLUM-REPORT-RFS.pdf">egregious misapplications of domestic and international law</a>. Other studies suggest that <a href="https://journals.sagepub.com/doi/10.1177/1363460718797258">homophobia</a>, <a href="https://www.academia.edu/40786838/Shifting_in_the_City_Being_and_Longing_in_Cape_Town">transphobia</a> and <a href="https://www.cambridge.org/core/books/abs/seeking-sanctuary/life-on-hold-lgbt-migration-and-the-false-promise-of-freedom/055A814B09C59950884B25ACC2469BBC">corruption</a> are common within the Department of Home Affairs, which is responsible for managing immigration and asylum.</p>
<p>These barriers to protection make it difficult for LGBTI+ asylum seekers to regularise their <a href="https://www.taylorfrancis.com/chapters/edit/10.4324/9780429465055-5/bordering-life-matthew-beetar">legal status, access services or find jobs</a>. This increases their vulnerability to <a href="https://www.tandfonline.com/doi/abs/10.1080/13557858.2020.1817342?journalCode=ceth20">discrimination, exploitation, poverty and homelessness</a>.</p>
<p><a href="https://journals.sagepub.com/doi/10.1177/1363460719893617">Earlier studies</a> show that LGBTI+ people who move to South Africa face unique challenges. But they do not say much about the size and constitution of this population or the degree to which certain social, legal and economic issues affect it.</p>
<p>There are two reasons for this. First, research to date has been qualitative, small in scale and focused on particular cities or subgroups. Second, South Africa, like many refugee-hosting countries, does not release disaggregated data on grounds for asylum.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/lgbt-migrants-in-south-africa-religion-can-be-a-blessing-and-a-curse-169758">LGBT migrants in South Africa: religion can be a blessing, and a curse</a>
</strong>
</em>
</p>
<hr>
<p>The absence of reliable quantitative data makes it difficult – if not impossible – to hold Home Affairs, the police and other state entities to account. When reports emerge of LGBTI+ migrants and asylum seekers being mistreated, the government can dismiss these incidents as isolated or anomalous. </p>
<p>To respond to this knowledge gap, <a href="https://almn.org.za/wp-content/uploads/2022/12/final-whatsapp-research-report.pdf">we developed a survey tool</a> that could be distributed using WhatsApp. This allowed us to collect data from people who might otherwise be unwilling or unable to participate in research. We sourced information from 381 respondents, making it the largest data set of its kind in South Africa. </p>
<p>Our data shows that South Africa hosts significant numbers of LGBTI+ migrants and asylum seekers – something long suspected but difficult to prove. It also shows that this population is more dispersed and diverse than previously thought. Where someone lives, how they identify and how long they have been in the country can affect their ability to apply for or renew documentation or to generate income. It can also increase their susceptibility to violence and harassment. </p>
<h2>The search for more data</h2>
<p>Our goal was to collect baseline data that could not only augment existing research but also guide and support future advocacy work. As well as capturing basic demographic information, the survey posed simple questions about respondents’ gender, sexuality, documentation status and reason for migrating.</p>
<p>We wanted the survey to reach as many people as possible so we partnered with three well-known activists: <a href="https://www.hrw.org/video-photos/audio/2021/04/01/where-heart">Thomars Shamuyarira</a>, <a href="https://www.youtube.com/watch?v=e2NSIKv38hE">Masi Zhakata</a> and <a href="https://www.mambaonline.com/2020/06/23/a-plea-for-lgbtq-lives-on-world-refugee-day/">Anold Mulaisho</a>. Each coordinates a network of LGBTI+ migrants and asylum seekers in a different part of the country. The community fieldworkers shared information about the project and enrolled anyone who wanted to take part.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-do-nigerian-gay-and-bisexual-men-cope-this-is-what-they-told-us-117121">How do Nigerian gay and bisexual men cope? This is what they told us</a>
</strong>
</em>
</p>
<hr>
<p>We opened the survey to all LGBTI+ people who have crossed an international border, regardless of their documentation status. We did this because the distinction between migrants and asylum seekers is blurred in South Africa. Failings in the asylum system push those who may be eligible for refugee protection into the migration system or force them to remain undocumented. Official legal categories can also differ from people’s experiences and self-identifications.</p>
<h2>Old issues, new insights</h2>
<p>The survey results provide further evidence that South Africa is failing to meet its legal obligations. It also offers surprising insights into respondents’ identities, locations, motivations and experiences. We limit our discussion here to five key findings:</p>
<p><strong>Geographic spread</strong></p>
<p>Our analysis shows that LGBTI+ migrants and asylum seekers are dispersed across the country far more widely than first thought. It is <a href="https://za.boell.org/en/2018/10/11/double-challenge-lgbti-refugees-and-asylum-seekers-south-africa">commonly believed</a> that LGBTI+ people move to major economic hubs, such as Johannesburg and <a href="https://www.routledge.com/Beyond-the-Mountain-Queer-Life-in-Africas-Gay-Capital/Camminga-Matebeni/p/book/9781032433875">Cape Town</a>, which are perceived to be more “gay friendly” than other locations. As a result, services targeting them are concentrated in these areas. </p>
<p>The number of survey respondents living outside metropolitan areas suggests a need to reconsider how resources and services are delivered.</p>
<p><strong>Diversity of language</strong></p>
<p>The survey responses show that LGBTI+ migrants and asylum seekers use a wide range of terms to describe their identities. Most remarkable was the use of terms commonly understood to indicate gender – such as “transgender” – to signal sexuality, and vice versa. Of equal interest was the widespread use of “non-binary”, a relatively new term in South Africa, and the limited use of “queer”, a much older term commonly used in advocacy circles. </p>
<p>This finding is of interest to researchers, activists, lawyers, service providers, state bureaucrats and other stakeholders who engage with this population.</p>
<p><strong>Gender-based claims</strong></p>
<p>South Africa extends protection from persecution based on both gender and sexuality. However, <a href="https://link.springer.com/book/10.1007/978-3-319-92669-8">previous research</a> indicates that transgender and gender-diverse people have had to claim asylum – or have been classified as claiming asylum – on the basis of sexual orientation. </p>
<p>Our data suggests a shift in this pattern. A number of respondents reported claims based on gender identity or expression. The long-term impacts of this remain to be seen, such as how these claims are treated by Home Affairs and whether they result in refugee status being conferred. It also raises questions about what kinds of <a href="https://doi.org/10.1080/0966369X.2022.2137473">advocacy</a> are necessary to ensure these outcomes. </p>
<p><strong>An inaccessible and confusing system</strong></p>
<p>Most respondents reported being undocumented, an anticipated result given the barriers obstructing LGBTI+ people from claiming protection in South Africa. More interesting was the number of answers that seem to indicate confusion over asylum-related terms, categories, systems and processes. This tells us that programmes intended to inform and support LGBTI+ asylum seekers are not reaching all segments of this community. </p>
<p><strong>Limited online access</strong></p>
<p>There were many people who wanted to participate in the project but could not. Sometimes this was due to language issues, but mostly it was because they had a SIM card but no cellphone. This is concerning given how much advocacy and outreach work is delivered via digital channels.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/desmond-tutus-long-history-of-fighting-for-lesbian-and-gay-rights-131598">Desmond Tutu's long history of fighting for lesbian and gay rights</a>
</strong>
</em>
</p>
<hr>
<h2>Where to from here?</h2>
<p>A survey such as this cannot tell us everything, but it does provide crucial data on an under-researched and largely invisible population. Our hope is that state agencies use these findings to develop sensitisation programmes and improve service delivery. At the very least, this means treating LGBTI+ migrants and asylum seekers with dignity, respect and compassion, and upholding the rights guaranteed in law. Only then will the dream of freedom be realised for LGBTI+ people who move to South Africa.</p><img src="https://counter.theconversation.com/content/199227/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>This project was made possible through research funding from the Williams Institute Global LGBTI Small Grants Program, the Open Society University Network Engaged Research Fund and the Other Foundation</span></em></p><p class="fine-print"><em><span>Thea de Gruchy receives funding from the National Institute for Health and Care Research (NIHR). </span></em></p>The absence of reliable quantitative data makes it difficult – if not impossible – to hold Home Affairs, the police and other state entities to account.John Marnell, Doctoral Researcher at the African Centre for Migration & Society (ACMS), University of the WitwatersrandB Camminga, Research associate, University of the WitwatersrandThea de Gruchy, Researcher, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1978512023-01-13T19:31:56Z2023-01-13T19:31:56ZFrene Ginwala remembered: trailblazing feminist and first speaker of South Africa’s democratic parliament<figure><img src="https://images.theconversation.com/files/504487/original/file-20230113-14-ka7h5w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Frene Ginwala addressing the media in 2017, tireless in her fight for justice.</span> <span class="attribution"><span class="source">Gulshan Khan/AFP via Getty Images</span></span></figcaption></figure><p>Frene Ginwala, feisty feminist, astute political tactician and committed cadre of South Africa’s governing party, the African National Congress (<a href="https://www.anc1912.org.za/">ANC</a>), has <a href="https://www.gov.za/speeches/president-cyril-ramaphosa-pays-tribute-%C2%A0dr-frene-ginwala-founding-speaker-parliament-13-jan">died at the age of 90</a>. In a country blessed with exceptional leaders, Ginwala must surely count among the best. Typically for her, but unusually for the ANC leadership, she will be laid to rest in a private ceremony. While she was modest about her achievements, she has left an indelible mark on South Africa’s constitution and democratic institutions.</p>
<p><a href="https://www.thepresidency.gov.za/national-orders/recipient/frene-noshir-ginwala-1932">Frene Noshir Ginwala</a> was born in 1932 in Johannesburg. Her <a href="https://www.sahistory.org.za/people/dr-frene-noshir-ginwala">Parsee grandparents</a> immigrated from Mumbai in India in the 1800s and made a life for the family in Johannesburg. Ginwala left South Africa after high school, to pursue an LLB degree <a href="https://www.mandela.ac.za/Leadership-and-Governance/Honorary-Doctorates/Frene-Ginwala-2003">at the University of London</a>. She qualified as a barrister at the Inner Temple. Around this time her parents moved to Lourenço Marques (now Maputo) in Mozambique. She returned to South Africa after graduating and moved to Durban where her sister, a medical doctor, had settled.</p>
<p>Although she supported the ANC, she was not politically active in any significant way until 1960, when the <a href="https://www.sahistory.org.za/article/sharpeville-massacre-21-march-1960">Sharpeville Massacre</a> set off a crisis for the ANC, and the <a href="https://pac.org.za/">Pan Africanist Congress of Azania</a>, both of which were banned and many of whose members went into exile. Ginwala’s family links to east Africa suddenly became a valuable resource, as did her political obscurity. </p>
<h2>Life in exile</h2>
<p>She was asked by ANC leader <a href="https://www.sahistory.org.za/people/walter-ulyate-sisulu">Walter Sisulu</a> to go to Mozambique to facilitate the exit of ANC members and supporters into exile. One of those exiles was <a href="https://www.sahistory.org.za/people/oliver-tambo">Oliver Tambo</a> president of the ANC. Ginwala helped him get across the border into Rhodesia (Zimbabwe) and into a safe house. It was the beginning of a long and important comradeship. Ginwala became assistant to Tambo, who went on to lead the exiled ANC <a href="https://theconversation.com/south-africas-anc-is-celebrating-the-year-of-or-tambo-who-was-he-85838">for 30 years</a>. She was instrumental in setting up the ANC office in Tanzania. </p>
<p>Ginwala’s work in creating a politically effective ANC in exile – arguably the most powerful exiled liberation movement in the world – was invaluable. She loved to point out the ANC had more missions abroad <a href="http://www.freedomcollection.org/interviews/frene_ginwala/">than the apartheid government had embassies</a>.</p>
<p>In the early 1960s, she created a newspaper, <a href="https://www.tambofoundation.org.za/trustees/frene-ginwala-acting-chairperson/">Spearhead</a>, wrote articles for a variety of international media outlets, wrote speeches for Tambo and gave speeches herself. Her time in Tanzania was interrupted when she was suddenly banned herself by the government of Tanzania for her critical commentary, and she left for the UK. President Julius Nyerere lifted her ban in 1967 and asked her to return to Dar es Salaam to establish a new national newspaper, <a href="https://www.tambofoundation.org.za/trustees/frene-ginwala-acting-chairperson/">The Standard</a>.</p>
<p>But her independent and forthright views – a hallmark for all of her life – got her into hot water and once again she was banned. This time she returned to the UK, where she registered for a <a href="https://www.wits.ac.za/news/latest-news/graduations/2022/dr-frene-ginwala-remembers-wits.html">PhD at Oxford University</a>. Her doctorate, awarded in 1976, was a sharp reading of the relationship between class, race and identity among Indian South Africans. She continued to build the ANC’s external profile. Her writing on the South African situation was prodigious, well-informed and hard to ignore. She was soon sought after by the United Nations to advise on peace-building globally. </p>
<h2>Return from exile</h2>
<p>When the ANC was unbanned <a href="https://www.cambridge.org/core/books/abs/place-of-thorns/unbanning-of-the-anc-political-violence-and-civic-politics-19901995/505D6A37A01673DFB67D2458D4A71A44">in 1990</a>, Ginwala returned after an absence of 31 years. She became the first speaker in the National Assembly in 1994, creating the office as a democratic institution and ruling parliament with a firm, authoritative and fair hand for a decade. Later, she was the prime mover behind the formation of the <a href="https://au.int/en/pap">Pan-African Parliament</a> and one of the most prominent supporters of the <a href="https://www.advocacyinternational.co.uk/featured-project/jubilee-2000">Jubilee 2000 Campaign</a>, which successfully lobbied for the scrapping of the onerous debt incurred by the world’s poorest countries. </p>
<p>Others will write about her many contributions to the ANC and to her status within the liberation movement. My generation of feminists will remember her, above all, for her remarkable championing of the struggle against patriarchy. This began when she was in exile, when she worked with ANC Women’s Section to ensure that ANC principles included non-sexism. It was a long and conflictual process, but by the mid-1980s all ANC documents carried the commitment to a <a href="https://repository.uwc.ac.za/bitstream/handle/10566/5829/Non%20racialism%20and%20the%20African%20National%20Congress%20views%20from%20the%20branch.pdf?sequence=1&isAllowed=y">“nonracial, nonsexist democracy”</a>. This was so much more than a linguistic shift; it enabled feminists within the ANC to demand that the commitment be followed through in programmes and policies.</p>
<p>Ginwala was always somewhat impatient and to the left of the <a href="https://www.anc1912.org.za/anc-womens-league/">ANC Women’s League</a>. She feared that there was a conservative streak in the league that caved in to the patriarchal assumptions of the movement’s leaders. She was worried this made it ineffective in pushing for gender equality. She worked from the side – cajoling comrades (ANC activists), and when that did not work badgering them, into action. </p>
<p>She set up the <a href="https://www.anc1912.org.za/49th-national-conference-commission-on-emancipation-of-women/">ANC’s Emancipation Commission</a> in 1991, dedicated to advancing gender equality and combatting sexism in the movement. Although not intended to compete with the Women’s League, it did have strategic status that was ensured by placing it under the authority of then-ANC president Tambo. It was a base from which Ginwala could drive the demand for gender equality unconstrained by the Women’s League.</p>
<p>During the <a href="https://www.sahistory.org.za/article/convention-democratic-south-africa-codesa">multiparty negotiations</a> to end apartheid in the 1990s, when it became apparent that gender concerns would sink to the bottom of the ANC’s list of priorities, she led the process of forming an independent women’s organisation – the <a href="https://www.jstor.org/stable/4066477">Women’s National Coalition</a> – that would unite women across political parties and ideological lines. She described it as a <a href="https://www.jstor.org/stable/pdf/40971570.pdf">“conspiracy of women”</a>. </p>
<p>It was a remarkable body that coalesced around two key demands: the inclusion of women in all decision-making about the shape of the post-apartheid state and constitution, and an end to violence against women.</p>
<h2>Impatience and integrity</h2>
<p>Ginwala understood power and politics better than most ANC leaders; her analysis of the balance of forces on any given issue was rapier-like. She knew that the transition process offered an opening to insert feminist principles into the new state, but understood that the window of time was fleeting. This made her impatient at times with other feminist leaders who wanted to build the Women’s National Coalition from the bottom up. </p>
<p>She was clear in her views and at times obstinate, but there was never any doubt about her integrity. Inevitably, there were bitter struggles over the pace of development of the flagship document of the Women’s National Coalition, the <a href="http://www.kznhealth.gov.za/womenscharter.pdf">Charter for Women’s Equality</a>. </p>
<p>Ginwala was concerned that the slow consultative processes preferred by the leaders of the charter process, <a href="https://www.pregsgovender.com/about">Pregs Govender</a> and <a href="https://www.apc.org/users/debbie">Debbie Budlender</a>, would mean the charter would not be ready to be included alongside the Bill of Rights in the constitution, and that the moment for greatest impact would lapse without any long-term gains.</p>
<p>Although the charter was only adopted after the main constitutional debates were concluded, the Women’s National Coalition ensured that gender equality was firmly embedded in the country’s final 1996 <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a>. </p>
<p>The contestations that took place in the drafting of the charter about the meaning of gender equality offer a rich and long-lasting archival resource for political activists as well as researchers.</p>
<p>Ginwala was passionately concerned about economic transformation and set up numerous study sessions on issues such as unpaid care. She wrote a <a href="https://core.ac.uk/download/pdf/8766832.pdf">hard-hitting challenge</a> to the 50 male economists who crafted the ANC’s key economic policies as it took power. In conversations and seminars among feminists, she was insistent that political representation was only a lever for feminism, not its end goal. </p>
<p>As Speaker of the National Assembly, she took responsibility for establishing training programmes for women parliamentarians, drawing on her vast global network for funding and educational materials.</p>
<p>Hamba kahle, lala ngoxolo Comrade Frene. (Go well, rest in peace.)</p>
<blockquote>
<p>When great souls die,
the air around us becomes
light, rare, sterile.
We breathe, briefly.
Our eyes, briefly,
see with a hurtful clarity. (<a href="https://poems.com/poem/when-great-trees-fall-reprise/">Maya Angelou</a>)</p>
</blockquote><img src="https://counter.theconversation.com/content/197851/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shireen Hassim receives funding from the Social Science and Humanities Research Council (SSHRC) of Canada.</span></em></p>A younger generation of feminists will remember her, above all, for her remarkable championing of the struggle against patriarchy.Shireen Hassim, Canada150 Research Chair in Gender and African Politics and Visiting Professor, WiSER Wits University, Carleton UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1966732022-12-15T14:46:13Z2022-12-15T14:46:13ZIs South Africa better off with or without Cyril Ramaphosa?<figure><img src="https://images.theconversation.com/files/501305/original/file-20221215-17-13xluz.jpg?ixlib=rb-1.1.0&rect=10%2C57%2C974%2C621&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Cyril Ramaphosa.</span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p>President Cyril Ramaphosa came to the helm of South Africa’s governing party, the African National Congress (ANC) <a href="https://theconversation.com/who-is-cyril-ramaphosa-a-profile-of-the-new-leader-of-south-africa-89456">in 2017</a> on an anti-corruption, or anti-state capture, platform. The ANC’s 54th elective conference gave him a mandate of renewing the party, and simultaneously reversing the <a href="https://pari.org.za/betrayal-promise-report/">state capture</a> phenomenon that had characterised much of the country 10 years under his predecessor Jacob Zuma. </p>
<p>But, now, he himself has been caught up in controversy over the theft of thousands of American dollars allegedly kept in contravention of foreign exchange rules at his <a href="https://theconversation.com/ramaphosa-scandal-looks-set-to-intensify-the-ancs-slide-ushering-in-a-new-era-of-politics-185719">Phala Phala farm</a> in Limpopo in 2020. He also allegedly failed to properly report the theft to the police.</p>
<p>This sparked an attempt to have him impeached for allegedly violating the country’s constitution. But, the ANC’s overwhelming majority in parliament saw the impeachment motion being <a href="https://www.news24.com/citypress/politics/drama-defiance-retraction-mps-back-ramaphosa-against-impeachment-20221213">defeated</a>.</p>
<p>This has led to many to ask whether the country would be better off with or without Ramaphosa. </p>
<p>This is not an easy question. But it is one that has been on the minds of many in the country since the eruption <a href="https://www.timeslive.co.za/news/south-africa/2022-06-01-arthur-fraser-lays-criminal-charges-against-ramaphosa-says-he-stole-4m/">in June</a> of the Phala Phala scandal.</p>
<p>Given that South Africa runs a party political system at a national level, Ramaphosa emerges through the organisational culture of the governing ANC. The party, specifically its successive leadership after the <a href="https://mg.co.za/article/2007-12-18-zuma-is-new-anc-president/">2007 Polokwane conference</a>, has presided over the weakening of state institutions and a <a href="https://theconversation.com/state-capture-in-south-africa-how-the-rot-set-in-and-how-the-project-was-rumbled-176481">general collapse of state capacity</a>.</p>
<p>These have had eroded social cohesion in South African society as seen by accelerated levels of <a href="https://theconversation.com/pandemic-underscores-gross-inequalities-in-south-africa-and-the-need-to-fix-them-135070">inequality</a>, <a href="https://theconversation.com/xenophobia-is-on-the-rise-in-south-africa-scholars-weigh-in-on-the-migrant-question-181288">xenophobia</a> and ethnic chauvinism. To ask, therefore, whether South Africa would better off with or without Ramaphosa is to also ask whether the country would be better off without the ANC.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/anc-in-crisis-south-africas-governing-party-is-fighting-to-stay-relevant-5-essential-reads-196580">ANC in crisis: South Africa's governing party is fighting to stay relevant - 5 essential reads</a>
</strong>
</em>
</p>
<hr>
<p>For a period the ANC <a href="https://www.eisa.org/wep/sou1994results1.htm">represented</a> the aspirations of many black people in reversing the political and economic design of colonialism and apartheid. To this extent, it can be said to have encompassed the South African nation. But it has become too inward-looking, at the expense of the development aspirations of the nation <a href="https://theconversation.com/the-anc-insists-its-still-a-political-vanguard-this-is-what-ails-democracy-in-south-africa-141938">it claims to lead</a>. </p>
<p>Interestingly Ramaphosa straddles these transitions of the ANC. At the beginning of the democratic dispensation in 1994, as a trade unionist, he was an important architect of the country’s constitutional framework. But, now as president of both the party and the republic, he’s embroiled in a scandal over his private business interests. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-anc-insists-its-still-a-political-vanguard-this-is-what-ails-democracy-in-south-africa-141938">The ANC insists it's still a political vanguard: this is what ails democracy in South Africa</a>
</strong>
</em>
</p>
<hr>
<p>Its an untenable position to be in given the anti-corruption ticket that catapulted him to the helm of the party. </p>
<p>I’ve been researching and observing the ANC and its governance performance over 15 years. My view on these questions is that given the organisational culture that comes with the ANC, and its impact on both government and on South African society, the country would indeed be better off without Ramaphosa. This is regardless of his <a href="https://ewn.co.za/2022/12/02/ramaphosa-s-ability-to-fight-corruption-now-questionable-corruption-watch">anti-corruption campaign</a> which has, in any case, been <a href="https://theconversation.com/south-african-president-cyril-ramaphosas-credibility-has-been-dented-putting-his-reform-agenda-in-jeopardy-189802">weakened by Phala Phala</a>. </p>
<h2>Of Phala Phala and the ANC</h2>
<p>Given that the Phala Phala matter weakens his anti-corruption campaign, the party can either save the president, as it did when it <a href="https://www.reuters.com/world/africa/south-africas-parliament-debate-ramaphosa-farmgate-report-2022-12-13/">voted this week against tabling</a> the report of the parliamentary panel on Phala Phala for discussion. Or, it can hang him out to dry, thus beginning a series of events that weakens the electoral fortunes of the party altogether. </p>
<p>The decision to save him is, of course, premised on the idea that the South African “nation” is inseparable from the ANC. And that equally, the ANC is inseparable from the state. These assumptions increasingly don’t hold true in the country. Voters, especially in urban South Africa, are <a href="https://www.timeslive.co.za/politics/2022-07-29-if-the-anc-becomes-a-rural-party-it-will-be-the-end-of-the-anc-makwetla/">diversifying their votes</a>.</p>
<p>I agree with the Director of the New South Institute, Ivor Chipkin when <a href="https://www.dailymaverick.co.za/opinionista/2022-12-04-phala-phala-is-not-a-crisis-for-south-africa-it-is-a-crisis-for-cyril-ramaphosa-and-the-anc/">he says:</a>.</p>
<blockquote>
<p>the ANC is not the nation…the party is not the state {and} institution matter more than individuals.</p>
</blockquote>
<p>It has become increasingly clear that the country needs to start thinking of life without the ANC in charge. And that coalitions, albeit unstable in the immediate run, might be desirable to avoid the cliff edge that South Africa stands on.</p>
<h2>Looking forward</h2>
<p>I think that the ANC will continue to be a strong political force in the foreseeable future, even though it has <a href="https://www.nytimes.com/2019/05/10/world/africa/south-africa-election.html">weakened in successive election</a> at local, provincial and national level. </p>
<p>There are now real prospects that the party will poll just above 50% needed to form a national government in 2024. This puts the prospect of a <a href="https://theconversation.com/a-stable-national-coalition-government-in-south-africa-possible-but-only-if-elites-put-countrys-interests-first-193828">national coalition government</a> within view. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/can-the-anc-survive-the-end-of-south-africas-heroic-epoch-57256">Can the ANC survive the end of South Africa's heroic epoch?</a>
</strong>
</em>
</p>
<hr>
<p>The ANC should now show leadership by providing the necessary architecture – including new laws and regulations – to manage coalitions so that they can serve the country well. </p>
<p>This would complement the recent amendment of the Electoral Act enabling independent candidates to run for elections at national and <a href="https://www.iol.co.za/news/politics/cabinet-approves-law-to-allow-independent-candidates-to-contest-as-mps-and-mpls-f8f496d7-39c0-4733-8f71-dfaea11c2a8f">provincial level</a>.</p>
<p>Of course, this possibility is not without its weakness: legislative access or easier entry for independent candidates to contest elections is a zero-sum game for the ANC. But the development of South Africa requires, not the renewal of the ANC, but the enablement of coalitions. </p>
<p>Coalitions are a necessary part of diversifying South Africa’s political culture. This is not about bringing contestation for its own sake, but to find a party political culture that aligns with the country’s constitutional framework. </p>
<p>The future of South Africa hangs in the balance. The country can either continue on its current downward spiral, with a <a href="https://businesstech.co.za/news/lifestyle/598212/young-people-plan-to-leave-south-africa-as-brain-drain-concerns-grow/">growing brain drain</a>, or it can change direction to upward development trajectory. </p>
<p>Either way, this is about much more than the ANC. </p>
<p>Too much time has been spent discussing the societal spill overs from the party’s organisational and <a href="https://theconversation.com/vacuum-of-ideas-at-anc-policy-conference-bodes-ill-for-south-africas-governing-party-188259">intellectual problems</a>.</p><img src="https://counter.theconversation.com/content/196673/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thapelo Tselapedi does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It has become increasingly clear that the country needs to start thinking of life without Ramaphosa - and the ANC - in charge.Thapelo Tselapedi, Politics lecturer, Rhodes UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1964562022-12-15T14:32:09Z2022-12-15T14:32:09ZDear Comrade President: book highlights ANC leader Oliver Tambo’s role in preparing South Africa for democracy<figure><img src="https://images.theconversation.com/files/501088/original/file-20221214-10567-5pwq8e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">African National Congress leader Oliver Tambo during his exile in Botswana. </span> <span class="attribution"><span class="source">William Campbell/Sygma via Getty Images</span></span></figcaption></figure><p>More than three decades have passed since the apartheid government in South Africa unbanned the African National Congress (ANC), the country’s leading liberation movement, and released its leader, Nelson Mandela, from prison. This launched four fraught <a href="https://link.springer.com/chapter/10.1057/9780230617278_7">years of negotiations</a> and <a href="https://theconversation.com/why-political-killings-have-taken-hold-again-in-south-africas-kwazulu-natal-143908">violence</a> that led to South Africa’s first-ever democratic elections.</p>
<p>The <a href="https://www.penguinrandomhouse.co.za/book/dear-comrade-president/9781776096688">book</a> Dear Comrade President: Oliver Tambo and the Foundations of South Africa’s Constitution, by South African historian Andre Odendaal, focuses on a dimension ignored in previous histories and memoirs of this period: the ANC’s constitution-framing process, which would help to shape the future democratic South Africa.</p>
<p>In the mid-1980s conditions for negotiations to end apartheid did not seem promising. President PW Botha’s government had shifted control away from the white parliament towards the military. A wave of assassinations, proxy terror killings and regular <a href="https://www.sahistory.org.za/article/list-sadf-raids-neigbouring-countries">raids on neighbouring states</a> was launched.</p>
<p>On the ANC side, most felt the route to power was armed revolution. Its main sources of support were the then Soviet Union, German Democratic Republic and Cuba. Much of its leadership was beholden to Marxism-Leninism. </p>
<p>Odendaal quotes former South African Communist Party
leader <a href="https://www.sahistory.org.za/people/joe-slovo">Joe Slovo</a> saying (in 1994) that the political content of the ANC was “moulded” in these three countries – content Slovo calls “very mechanical Stalinist concepts”. Slovo adds:</p>
<blockquote>
<p>Thinking back on it now it horrifies me to remember the kind of things they were taught.</p>
</blockquote>
<p>This 442-page book unpicks the process of adopting constitutional principles that included support for multiparty democracy and a bill of rights. This process was launched by the ANC leader Oliver Tambo in 1985. It involved a seven-person constitution committee which eventually came up with a document that proved hugely influential in negotiations with the apartheid government. </p>
<h2>Making of democratic South Africa’s constitution</h2>
<p>The committee set up by <a href="https://theconversation.com/south-africas-anc-is-celebrating-the-year-of-or-tambo-who-was-he-85838">Tambo</a> drew up 14 drafts after many delays and much frustration. But it finally produced a document that was endorsed in 1988, and became the basis for the <a href="https://www.sahistory.org.za/article/organisation-african-unity-oau">Organisation of African Unity</a> and <a href="https://www.un.org/en/our-work">United Nations</a> approach to South Africa. </p>
<p>This document guided the ANC’s stand in the negotiations under the umbrella of the <a href="https://www.sahistory.org.za/article/convention-democratic-south-africa-codesa">Convention for a Democratic South Africa (Codesa)</a>. Odendaal writes: </p>
<blockquote>
<p>A feature of the negotiating process was the way in which the ANC, with its more than four years of focused pre-planning, outmanoeuvred opponents determined to block democracy.</p>
</blockquote>
<p>The most compelling bits of the book include profiles of the main players – Tambo and those on the committee, including <a href="https://ourconstitution.constitutionhill.org.za/harold-jack-simons/">Jack Simon</a>, <a href="https://www.thepresidency.gov.za/national-orders/recipient/kader-asmal-1934">Kader Asmal</a>, <a href="https://www.gov.za/about-government/contact-directory/zola-sidney-themba-skweyiya-dr">Zola Skweyiya</a>, <a href="https://www.concourt.org.za/index.php/11-former-judges/65-justice-albie-sachs">Albie Sachs</a> and the man whose 1985 intervention set it in motion, <a href="https://www.sahistory.org.za/people/zweledinga-pallo-jordan">Pallo Jordan</a>. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/500750/original/file-20221213-16533-lciae2.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/500750/original/file-20221213-16533-lciae2.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/500750/original/file-20221213-16533-lciae2.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=923&fit=crop&dpr=1 600w, https://images.theconversation.com/files/500750/original/file-20221213-16533-lciae2.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=923&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/500750/original/file-20221213-16533-lciae2.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=923&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/500750/original/file-20221213-16533-lciae2.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1160&fit=crop&dpr=1 754w, https://images.theconversation.com/files/500750/original/file-20221213-16533-lciae2.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1160&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/500750/original/file-20221213-16533-lciae2.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1160&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">Penguin Random House</span></span>
</figcaption>
</figure>
<p>Jordan’s paper , The New Face of Counter-Revolution, went against prevailing revolutionary wisdom. It argued that the ANC should take the initiative through backing multiparty democracy with a bill of rights guaranteeing individual freedom. It should also win the support of the black middle class.</p>
<p>Some within the ANC had severe doubts, worried this was getting in the way of revolution.</p>
<h2>Challenging orthodoxy</h2>
<p>Odendaal counters <a href="https://www.bbc.com/news/world-europe-50013048">the view</a> that it was the collapse of the Berlin Wall in November 1989 – marking the unravelling of the Soviet Union, the main backer of the ANC’s armed struggle – that nudged the ANC towards multiparty democracy. He shows it had already endorsed these principles more than three years earlier. </p>
<p>The collapse of the Soviet Union had “little impact on the ANC’s immediate thinking and strategy in relation to negotiations”, Odendaal adds. (In my view, it certainly had a longer-term impact, helping open the way for one-time Marxists to become multi-millionaires.) </p>
<p>Odendaal’s account also challenges the claim by some analysts, including <a href="https://military-history.fandom.com/wiki/Niel_Barnard">Niel Barnard</a>, the former head of the apartheid government’s National Intelligence Service, that the fall of communism allowed the government to negotiate. Odendaal acknowledges the collapse of the communist bloc made it easier for the government to unban the ANC. It also meant the government</p>
<blockquote>
<p>could no longer rely on support from Western countries as a bastion against the supposed spread of communism.</p>
</blockquote>
<p>But the process leading to negotiations was already unstoppable by then. The secret “Consgold talks”, aimed at easing the way towards negotiations, started in 1986. They were between the ANC and Afrikaner academics led by the Stellenbosch University philosophy professor Willie Esterhuyse, and backed by the National Intelligence Service.</p>
<p>Adding to the momentum were the talks <a href="https://www.thepresidency.gov.za/national-orders/recipient/nelson-rolihlahla-mandela">Nelson Mandela</a> held with apartheid justice minister Kobie Coetsee <a href="https://www.pbs.org/wgbh/pages/frontline/shows/mandela/interviews/coetsee.html">in 1986</a>, and the government’s invitation to Soviet leader Mikhael Gorbachev to engage in discussions. </p>
<p>It’s often forgotten that it was the hardliner PW Botha, who preceded FW de Klerk as president, who met with Mandela and released Walter Sisulu and other political prisoners on 15 October 1989. The Berlin Wall came down <a href="https://www.bbc.com/news/world-europe-50013048">on 9 November 1989</a>.</p>
<p>Odendaal highlights the role played by the regular “safaris” that saw more than a thousand South African notables and activists meeting with the ANC between 1985 and 1990. This counters the view promoted by Barnard and Esterhuyse that these were irrelevant. </p>
<p>Instead, he suggests, they helped set the climate for negotiations by softening white South African attitudes to the ANC and widening ANC perspectives on conditions within the country. He quotes Barnard’s admission that these visits to the ANC in exile</p>
<blockquote>
<p>were threatening to take over from the government so we had to act quickly.</p>
</blockquote>
<h2>Weaknesses and strengths</h2>
<p>The book stresses that mass resistance and international sanctions pushed the apartheid government to the point where it had to negotiate. But its laser focus on the ANC’s constitutional process means that sometimes detail gets in the way of perspective, leading to too much listing of names and not quite enough contextual information.</p>
<p>For instance, Odendaal notes that the ANC was in “organisational disarray” by 1990. He also hints at the depth of the problems faced by the ANC’s army, <a href="https://www.sahistory.org.za/article/umkhonto-wesizwe-mk">Umkhonto we Sizwe</a> (MK), referring to a meeting between Tambo and MK’s Ugandan camp commander <a href="https://www.sahistory.org.za/people/thenjiwe-mtintso">Thenjiwe Mtintso</a>, where she explains the dire conditions faced by recruits.</p>
<p>More could be said here. MK was decimated through being pushed out of its “forward areas” (its southern African bases), deeply infiltrated by apartheid agents and overwhelmed by internal problems under its compromised leader <a href="https://www.timeslive.co.za/politics/2014-09-02-joe-modise-benefited-from-arms-deal-former-scopa-chair/">Joe Modise</a>. Its other strand, <a href="https://www.sahistory.org.za/dated-event/members-anc-and-sacp-are-detained-due-operation-vula">Operation Vula</a> (which involved
establishing command structures within the country), was more successful but arrived too late to make a substantial difference to the balance of power between the ANC and the apartheid government. </p>
<p>These issues could have been explored in more depth even if it meant sacrificing some of the blow-by-blow detail.</p>
<p>Dear Comrade President might be hard going for the casual reader, but it makes a valuable contribution to the South African “struggle” library, revealing the importance of the constitutional process within the ANC for setting the trajectory of a democratic South Africa.</p><img src="https://counter.theconversation.com/content/196456/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gavin Evans does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A historian counters the popular view that the 1989 collapse of the Berlin Wall set in motion talks to end apartheid. The process was unstoppable by then.Gavin Evans, Lecturer, Culture and Media department, Birkbeck, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1954032022-11-30T15:57:58Z2022-11-30T15:57:58ZJanusz Walus and parole for prisoners serving life sentences in South Africa: the weaknesses of the court’s decision<figure><img src="https://images.theconversation.com/files/497963/original/file-20221129-14-aex9ak.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Protesters demonstrate outside the high court in Cape Town against parole for Janusz Walus.</span> <span class="attribution"><span class="source">Brenton Geach/Gallo Images via Getty Images</span></span></figcaption></figure><p><em>The murder of <a href="https://www.sahistory.org.za/people/chris-hani">Chris Hani</a>, a South African liberation struggle hero, by Janusz Walus <a href="https://omalley.nelsonmandela.org/index.php/site/q/03lv02424/04lv03370/05lv03422.htm">on 10 April 1993</a> almost derailed the country’s transition from apartheid to democracy. Now, almost 30 years later, the constitutional court has ruled that Walus (69) must be released on parole. The move has been met with anger by many in the country, including some in the governing African National Congress alliance. Law professor Jamil Mujuzi explains the country’s parole system for prisoners on life sentence, and what he considers to be the weaknesses and strengths of the court’s decision.</em></p>
<h2>Parole in South Africa</h2>
<p>South Africa has one of the highest prison populations <a href="https://www.prisonstudies.org/highest-to-lowest/prison-population-total/trackback?field_region_taxonomy_tid=All">in the world</a>. As at 1 April 2022, there were 143,223 inmates in the country’s correctional centres, of whom <a href="https://www.gov.za/sites/default/files/gcis_document/202210/2022-09-22-dcs-ar-202122.pdf">96,079 had been sentenced</a>. </p>
<p>Section 73(1) of the <a href="http://www.dcs.gov.za/wp-content/uploads/2018/05/CORRECTIONAL-SERVICES-ACT-111-of-1998.pdf">Correctional Services Act (the Act)</a> (1998) provides that</p>
<blockquote>
<p>(a) a sentenced offender remains in a correctional centre for the full period of sentence; and (b) an offender sentenced to life incarceration remains in a correctional centre for the rest of his or her life.</p>
</blockquote>
<p>However, the Act also provides for circumstances in which offenders may be placed on parole. This explains why there are also <a href="https://www.gov.za/sites/default/files/gcis_document/202210/2022-09-22-dcs-ar-202122.pdf">thousands of parolees</a> in South Africa. </p>
<p>In some countries, such as the US, an offender sentenced to life imprisonment (lifer) spends the <a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674980662">rest of his or her life in prison</a>. In South Africa, section 73(6)(b)(iv) of the Correctional Services Act provides that a lifer</p>
<blockquote>
<p>may not be placed on day parole or parole until he or she has served at least 25 years of the sentence.</p>
</blockquote>
<p>In terms of section 73(5)(a)(ii) of the Act, it’s the minister responsible for correctional services who has the power to determine the date on which a lifer is to be placed on parole. Thus, section 78 of the Act provides for the “powers of the minister in respect of offenders serving life sentences”. These powers include refusing or granting parole to a lifer. </p>
<p>However, when the minister refuses an application for parole, he or she is empowered to make</p>
<blockquote>
<p>recommendations in respect of treatment, care, development and support of the sentenced offender which may contribute to improving the likelihood of future placement on parole or day parole.</p>
</blockquote>
<h2>The case of Janusz Walus</h2>
<p>There were lifers in South Africa before the commencement of the Correctional Services Act in 1998, and their placement on parole is <a href="https://journals.co.za/doi/10.10520/EJC52960">governed by section 136 of the Act</a>.</p>
<p>Under sections 78 and 136 of the Act, it is only the minister who has the power to grant parole to a lifer. However, in the case of <a href="http://www.saflii.org/za/cases/ZACC/2022/39.html">Walus v Minister of Justice and Correctional Services</a>, the constitutional court has ordered the minister</p>
<blockquote>
<p>to place the applicant (a lifer) on parole on such terms and conditions as he may deem appropriate and to take all such steps as may need to be taken to ensure that the applicant is released on parole within ten calendar days from the date of this order.</p>
</blockquote>
<p>The court made that order after finding that the minister’s decision to reject Walus’ parole application was irrational. This was so because, among other things, the applicant had served the minimum period he had to serve – 13 years and four months before being considered for parole. His 1993 death sentence was commuted to life in prison <a href="https://www.concourt.org.za/index.php/judgement/492-janusz-jakub-walus-v-minister-of-justice-and-correctional-services-cct221-21">in 2000</a>.</p>
<p>The court also observed that Walus could do nothing to change the two grounds on which his parole application was rejected – the comments made by the sentencing court and the seriousness of the offence. </p>
<p>In justifying its order, the constitutional court referred to, among others, sections 78 and 136 of the Correctional Services Act (CSA) and held that it</p>
<blockquote>
<p>is quite clear that under the CSA a court has the power to grant parole to prisoners who are sentenced to life imprisonment. </p>
</blockquote>
<p>The court reached that conclusion because it relied on the 2004 version of section 78. Between October 2004 and September 2009, section 78 of the Act empowered a court to grant parole to lifers. </p>
<figure class="align-left ">
<img alt="A man wearing a shirt, tie and jackets displays a serious look." src="https://images.theconversation.com/files/498220/original/file-20221130-14-8w1kao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/498220/original/file-20221130-14-8w1kao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1005&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498220/original/file-20221130-14-8w1kao.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1005&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498220/original/file-20221130-14-8w1kao.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1005&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498220/original/file-20221130-14-8w1kao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1264&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498220/original/file-20221130-14-8w1kao.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1264&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498220/original/file-20221130-14-8w1kao.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1264&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A younger Janusz Walus.</span>
<span class="attribution"><span class="source">Raymond Preston/Sunday Times</span></span>
</figcaption>
</figure>
<p>In my view, however, the court erred in holding that the Act gives it power to grant parole to lifers. With the commencement of the Correctional Services Act 25 of 2008 on 1 October 2009, it is only the minister who has the power to grant parole to lifers. It can only make an order if it finds that the minister’s decision was irrational – as it did – but only under the <a href="https://www.gov.za/documents/promotion-administrative-justice-act">Promotion of Administrative Justice Act, 2000</a>.</p>
<p>The court held that Walus’ sentence is governed by the 1959 Correctional Services Act. But, both in the 1959 Act and in the 1998 Act, the court does not have the power to release a lifer on parole. </p>
<p>Since Walus was not sentenced between 2004 and 2008, the court does not have power to grant him parole under section 78 of the 1998 Act. His death sentence was commuted to life in 2000, and not 2004 when section 78 came into force. </p>
<p>Section 136 is a transition provision. It does not change the law that governs the release of Walus on parole (and that is what the court recognises). </p>
<p>The second weakness of the judgement is that it equates a non-parole order to a remark at sentencing. A non-parole period is an order which the Department of Correctional Services must comply with. It is not a mere remark. It is part of the sentence. That is why in the 2016 case <a href="http://www.saflii.org/za/cases/ZACC/2016/27.html">Jimmale and Another v S</a>, the constitutional court held that a non-parole order must be made in exceptional circumstances “because the imposition of that kind of an order has a drastic impact on the sentence to be served”.</p>
<h2>Rehabilitation</h2>
<p>The court also held that the minister (and by implication the parole board) should not make parole decisions based on the remarks of a sentencing court, and the seriousness of the offence. This is because these are conditions over which the offender has no control. Any future parole decisions should be made based on conditions over which an offender has control.</p>
<p>The decision also shows that the offender’s rehabilitation is the most important factor that should be considered in deciding whether or not he or she should be granted parole. Therefore, any offender who is not rehabilitated is likely to have his or her parole application rejected. This then imposes a duty on the Department of Correctional Services to ensure that effective rehabilitation programmes are available in every correctional facility.</p>
<h2>Looking forward</h2>
<p>This decision is likely to be relied on by courts to order the Department of Correctional Services to grant offenders parole. However, an inmate has to remember he or she does not have a right to parole. As the supreme court has <a href="https://lawlibrary.org.za/akn/za/judgment/zasca/2022/159/eng@2022-11-21">reiterated</a>, inmates have </p>
<blockquote>
<p>the privilege to be released on parole if they so qualify.</p>
</blockquote>
<p>If an inmate breaches the parole conditions, his or her parole will be cancelled. It has to be emphasised that a sentence of life imprisonment means that an offender has to be in prison for life. </p>
<p>Granting him parole means that he or she serves part of the sentence outside the correctional facility. This means that an offender sentenced to life imprisonment has to be on parole for the rest of his life unless he or she is pardoned, or the sentence is commuted by the president under section 84 of the <a href="https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf">constitution</a>. </p>
<p>In the case of foreign offenders, there may be a need for South Africa to enact prisoner transfer legislation, or to ratify prisoner transfer treaties such as the <a href="https://rm.coe.int/1680079529">Convention on the Transfer of Sentenced Persons</a> (1983), or the Southern African Development Community Protocol on the Inter-State Transfer of Sentenced Offenders (2019) so that these offenders are transferred to serve their sentence in their countries of nationality.</p><img src="https://counter.theconversation.com/content/195403/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jamil Mujuzi does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The decision is likely to be relied on by courts to order the Department of Correctional Services to grant offenders parole.Jamil Mujuzi, Professor of Law, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1953902022-11-25T21:26:17Z2022-11-25T21:26:17ZHow to impeach a president: Ramaphosa case puts new rules to the test in South Africa<figure><img src="https://images.theconversation.com/files/497400/original/file-20221125-14071-mujdhp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Cyril Ramaphosa</span> <span class="attribution"><span class="source">Photo by Xabiso Mkhabela/Xinhua via Getty Images</span></span></figcaption></figure><p><em>South Africa’s President Cyril Ramaphosa <a href="https://www.iol.co.za/the-star/news/atm-welcomes-impeachment-process-against-ramaphosa-98e69a75-5a82-4f79-9063-9b98cdf5fd1f">faces possible impeachment</a> in the country’s parliament over the illegal stashing of thousands of US dollars at his farm <a href="https://theconversation.com/ramaphosa-scandal-looks-set-to-intensify-the-ancs-slide-ushering-in-a-new-era-of-politics-185719">in 2020</a>. This is not the first time there’s been a threat of impeachment of a president in post-democratic South Africa. His scandal-prone predecessor, Jacob Zuma, <a href="https://www.ndtv.com/world-news/south-african-president-jacob-zuma-defeats-impeachment-vote-1339127">survived an impeachment vote in 2017</a> over the illegal use of public money to renovate his private residence. There is, however, a difference in the process being followed this time. It is the first since parliament adopted rules to guide the process for the impeachment of a president in 2018, following a Constitutional Court <a href="http://www.saflii.org/za/cases/ZACC/2017/47.html">judgment</a>. Richard Calland explains.</em></p>
<h2>First steps</h2>
<p>This is the first time a process of a motion being tabled and an independent panel being established has been used. That alone makes it a very significant moment. How the panel interprets and then applies “the law” will set an important precedent. It may be subject to judicial review, especially if the panel finds that there is insufficient evidence for the impeachment process to proceed to a full parliamentary inquiry. </p>
<p>The process is triggered when a party with parliamentary representation tables a motion in the National Assembly requesting impeachment.</p>
<p>In this instance, this was done by a small party with <a href="https://www.parliament.gov.za/national-assembly">only two seats</a>, the African Transformation Movement (<a href="https://www.pa.org.za/organisation/atm/">ATM</a>), in terms of section 89 of the <a href="https://www.gov.za/documents/constitution-republic-south-africa-1996">constitution</a>. </p>
<p>Section 89 is one of two parliamentary routes by which a sitting president (or their government) can be removed from office. The other is in terms of section 102 of the constitution, which is a vote of no confidence – a purely political, and, therefore, subjective matter. Several such motions of no confidence were tabled against Jacob Zuma, but he survived them all, as the ruling <a href="https://www.britannica.com/topic/African-National-Congress">African National Congress</a> whip held the line. </p>
<p>Section 89 contains three specific grounds for “impeachment” (although the section does not use the word). The National Assembly may remove the president from office (with a supporting vote of at least two thirds of its members), only when the president: </p>
<ul>
<li><p>has committed a serious violation of the constitution or law </p></li>
<li><p>has committed serious misconduct </p></li>
<li><p>or suffers from an inability to perform the functions of office. </p></li>
</ul>
<p>The fact that this is a parliamentary process, triggered by a particular section 89 motion, and that it requires an objective test to be met, is of very great significance because it requires that an evidence-based finding be made in relation to one or other of the three grounds. </p>
<p>The <a href="https://www.dailymaverick.co.za/article/2018-11-22-house-approves-rules-on-impeaching-a-president/">new rules</a> now provide for a two-stage process to establish whether such evidence exists to justify the removal of the president from office. </p>
<p>The first step is that after the motion has been tabled in parliament, the National Assembly must set up a panel to conduct a “preliminary enquiry relating to a motion proposing a section 89 enquiry.”</p>
<p>The underlying purpose of the panel is to prevent spurious or vexatious impeachment attempts to proceed without any proper evidential basis. </p>
<p>Accordingly, the panel must be composed of “three fit and proper, competent, experienced and respected South Africans, which may include a judge, and who collectively possess the necessary legal competence and experience.” </p>
<p>Parties represented in parliament can nominate people to serve on the panel, whereafter the Speaker of the National Assembly makes the appointment. In this case, the Speaker has appointed former Chief Justice Sandile Ngcobo as the chair.</p>
<p>The motion tabled by the African Transformation Movement seeking Ramaphosa’s impeachment, as leading law reporter Franny Rabkin <a href="https://www.timeslive.co.za/sunday-times/opinion-and-analysis/insight/2022-11-20-an-impeachment-case-to-answer-for-phala-phala-saga/">has pointed out</a>, provides tramlines within which the panel must stay when performing its mandate. This limits the evidence and the allegations that the panel is authorised to consider. </p>
<p>The motion is relatively limited in its target area. It confines itself to the specifics of the mysterious theft of money at Ramaphosa’s Phala Phala farm, and his immediate response to the theft. </p>
<p>Hence, <a href="https://www.concourt.org.za/index.php/judges/former-judges/11-former-judges/66-chief-justice-sandile-ngcobo">Ngcobo</a> is likely to be fastidious with regard to confining the panel’s deliberations. Any evidence or allegation relating to a matter not rooted in the original motion is likely to be disregarded. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/ramaphosa-scandal-looks-set-to-intensify-the-ancs-slide-ushering-in-a-new-era-of-politics-185719">Ramaphosa scandal looks set to intensify the ANC's slide, ushering in a new era of politics</a>
</strong>
</em>
</p>
<hr>
<p>The panel’s overriding legal responsibility is <em>not</em> to determine whether there is a “prima facie” case – meaning that “at face value” there would appear to be a case to answer. Rather, it is whether there is “sufficient evidence” of one or other of the three grounds for removal from office set out in section 89. </p>
<p>In this case, the third ground – incapacity – does not arise. Instead, the question for the panel is whether there is sufficient evidence of serious misconduct or a serious violation of the law. </p>
<p>The word “serious” here is very significant. If Ramaphosa has broken the law or behaved inappropriately or unwisely in his response to the theft, that will not be enough to meet the test, unless it is “serious”. </p>
<h2>A high bar</h2>
<p>It seems to me that the test of “sufficient evidence” is a subtle but qualitatively higher one than “prima facie”, because the panel is required to consider the evidence presented by the African Transformation Movement and then the president’s response, and to make a finding. </p>
<p>In turn, this means that the chair of the panel and his two colleagues face a rather tricky task because the rules place severe limits on the scope of their investigation. </p>
<p>What the rules say is “in considering the matter” <a href="https://pmg.org.za/tabled-committee-report/3467/">the panel</a> </p>
<blockquote>
<p>may, in its sole discretion, afford any member an opportunity to place relevant written or recorded information before it within a specific timeframe.</p>
</blockquote>
<p>It is clear that the panel has done this, and that the African Transformation Movement, at least, has responded by placing what they claim is <a href="https://www.iol.co.za/the-star/news/atm-to-supplement-its-impeachment-motion-4c57ac76-3f6e-41f0-9419-700c7d0b31a2">further evidence</a> before the panel. But unless it is relevant to the motion, and falls within the tramlines that it set, the other, extraneous evidence will and should be disregarded by the panel. </p>
<p>Having sought evidence from members of parliament – this being a parliamentary process – the panel has also been required to give the president an opportunity to respond. This may explain the delay in the panel concluding its work and the need for a two week extension to <a href="https://www.citizen.co.za/news/phala-phala-deadline-extended-november-2022/">30 November</a>. </p>
<p>After that date, parliament has rightly <a href="https://www.parliament.gov.za/press-releases/national-assembly-consider-independent-panel-report-6-december">postponed rising for the year</a> so that the panel’s report can be debated in early December. </p>
<p>The report is required to make findings and provide reasons for its conclusion, but it can only do so based on the written evidence adduced before it. </p>
<h2>Implications</h2>
<p>Given the threshold test that the rules establish for the performance of its mandate, it is more likely than not that the panel will determine that there is not sufficient evidence. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/south-african-president-cyril-ramaphosas-credibility-has-been-dented-putting-his-reform-agenda-in-jeopardy-189802">South African president Cyril Ramaphosa’s credibility has been dented, putting his reform agenda in jeopardy</a>
</strong>
</em>
</p>
<hr>
<p>Even then, the words the panel uses will be weighed heavily in the balance politically. At the very least, a lot more information is going to be in the public domain about the curious events of that February night in 2020 at the president’s farm, and how he handled the matter.</p>
<p>It could have enormous implications, not just for Ramaphosa’s immediate political future and as well as his long-term legacy, but for constitutional accountability in South Africa.</p><img src="https://counter.theconversation.com/content/195390/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Calland is employed by the University of Cape Town, is a member of the Advisory Council for the Council for the Advancement of the South African Constitution, and is a partner in political risk consultancy The Paternoster Group. </span></em></p>The new process of impeachment requires an objective test to be met.Richard Calland, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1928892022-10-24T08:38:33Z2022-10-24T08:38:33ZSouth Africa’s parliament fails to hold the executive to account: history shows what can happen<figure><img src="https://images.theconversation.com/files/491018/original/file-20221021-22-3ulusp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Cyril Ramaphosa addresses a parliamentary session.
</span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p>In South Africa’s <a href="https://www.sahistory.org.za/article/history-apartheid-south-africa">apartheid era</a> from 1948 to 1994, the executive arm of government dominated over parliament. In any system, this allows a small group of politicians to dominate the larger body of elected representatives from which they are drawn, with no effective limitations. Corruption and abuse of power almost always follow directly. </p>
<p>At the start of the new democratic era, the drafters of the <a href="https://www.gov.za/sites/default/files/images/a108-96.pdf">1996 constitution</a> changed this. The constitution gives the legislature the authority and the obligation to oversee the exercise of public power, and hold the executive accountable. </p>
<p>The constitution contains nearly 40 provisions to do this. Chief among these provisions is <a href="https://myconstitution.co.za/en/04.html#powers-of-national-assembly">section 55 (2)</a>: </p>
<blockquote>
<p>The National Assembly must provide for mechanisms – (a) to ensure that all executive organs of state in the national sphere of government are accountable to it; and (b) to maintain oversight of (i) the exercise of national executive authority, including the implementation of legislation; and (ii) any organ of state.</p>
</blockquote>
<p>The foundational values of “<a href="https://myconstitution.co.za/en/01.html#republic-of-south-africa">accountability, responsiveness and openness</a>” in section 1(d) of the constitution demanded a radical change in parliament’s relationship with the executive.</p>
<p>In 1994, the Speaker of Parliament began a range of initiatives to get the change under way. I undertook three projects at her request between 1996 and 1999: </p>
<ul>
<li><p>a system of mandatory disclosure of financial interests by every MP and their immediate family members </p></li>
<li><p>a system of parliament scrutinising every piece of subordinate legislation made by the executive to test it for constitutional compliance</p></li>
<li><p>setting out parliament’s obligations under section 55 of the constitution. This is now known as the <a href="https://pmg.org.za/committee-meeting/268/">“Corder Report”</a>. I wrote this report with two colleagues. </p></li>
</ul>
<p>The report recommended legislation to set standards of accountability and institutional independence. It proposed new rules about how the two houses of parliament should report to parliamentary committees. And it suggested there should be a Standing Committee on Constitutional Institutions, essentially what the constitution calls the State Institutions supporting Constitutional Democracy, <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng-09.pdf">or the Chapter 9 bodies</a>. These include the Public Protector, the Human Rights Commission and the Auditor-general.</p>
<p>Parliament responded only partially and ineffectively. It referred the matter to the Rules Committee, which changed some portfolio committee processes. But the changes did not embrace the spirit of the constitutional obligations.</p>
<p>Parliament failed to live up to its constitutional mandate. This failure was noted by the <a href="https://www.gov.za/sites/default/files/gcis_document/202206/electronic-state-capture-commission-report-part-vi-vol-ii.pdf">State Capture Commission</a> as having contributed to the relative ease with which the administration of former president Jacob Zuma, and its fellow travellers, could <a href="https://theconversation.com/south-africas-state-capture-commission-nears-its-end-after-four-years-was-it-worth-it-182898">corrupt state behaviour</a>. </p>
<p>The absence of standards of accountability and the fact that portfolio committees are not independent, are the reasons parliament is failing in its constitutional mandate to hold the executive accountable. </p>
<p>This matters because the lack of parliamentary vigilance has a number of consequences. The first is that the executive and public administration will succumb to the temptations that their power gives them. The second is that the electorate is failed by its direct representatives. Thirdly, that the organs of state which must secure integrity (the courts and <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng-09.pdf">Chapter 9 institutions</a>) are placed under undue stress. And finally, it falls to civil society and public-spirited individuals to take on the burden of challenging the abuse of power.</p>
<h2>History of accountability</h2>
<p>A condition of the exercise of power in a constitutional democracy is that the administration or executive is checked by being held accountable to an organ of government distinct from it.</p>
<p>Accountability means explaining decisions or actions, making amends for any fault and taking steps to prevent a recurrence. </p>
<p>The <a href="https://www.ncsl.org/research/about-state-legislatures/separation-of-powers-an-overview.aspx">separation of powers</a> has been the foundation stone of democratic government since the 17th century. Public power was divided among the executive, judicial, and legislative branches of government. Methods of mutual checking and balancing were established. </p>
<p>During the 20th century, executive power expanded so as to meet the needs of growing populations in a changing world. </p>
<p>The executive branch thus came to dominate the legislature. The judicial authority rose in prominence after 1945. This, as bills of fundamental rights and an increasing emphasis on the lawful exercise of public power made their way into national constitutions. </p>
<h2>African experience</h2>
<p>Almost all African countries experienced these developments in their formal liberation from European imperialism in the <a href="https://www.britannica.com/place/central-Africa/The-end-of-the-colonial-period">second half of the 1900s</a>. </p>
<p>The pattern of allocating power began to shift in the early 1990s, with freedom coming finally to <a href="https://www.sahistory.org.za/dated-event/namibia-gains-independence">Namibia</a> and <a href="https://www.britannica.com/question/How-did-apartheid-end">South Africa </a>. This coincided with the collapse of the <a href="https://theconversation.com/how-the-fall-of-the-berlin-wall-30-years-ago-resonated-across-africa-126521">Soviet empire</a>, and a rash of constitution-making in central and eastern Europe. This soon followed in mainly Anglophone Africa.</p>
<p>These new constitutions typically gave pride of place to bills of rights. They gave the superior courts the authority to test whether rights had been infringed and whether government decisions and actions were lawful and constitutional. The judicial branch of government rose in political prominence. This, in turn, focused attention on judges’ independence and accountability. </p>
<p>Given the experience in the developed world, the drafters of these new constitutions recognised that politicians would put pressure on the courts. So the inclusion of what the <a href="https://www.gov.za/sites/default/files/images/a108-96.pdf">South African constitution</a> calls <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng-09.pdf">state institutions supporting constitutional democracy</a> took hold. </p>
<p>Most modern constitutions in Africa followed suit. They established bodies such as the <a href="https://www.jstor.org/stable/759228#metadata_info_tab_contents">ombudsman</a> or <a href="https://www.jstor.org/stable/23644677#metadata_info_tab_contents">public protectors</a> and <a href="https://www.hrw.org/reports/2001/africa/overview/factors.html">human rights</a> and <a href="https://cge.org.za/">gender commissions</a>. </p>
<p><a href="https://www.loc.gov/item/lcwaN0027328/">Independent electoral commissions</a>, <a href="https://www.oagkenya.go.ke/">auditors-general</a>, and <a href="https://www.acc.gov.zm/">anti-corruption commissions</a> also came into being. These bodies, collectively known as the integrity branch of government, complement the review powers of the courts in holding the executive to account.</p>
<p>How have these arrangements translated into practice?</p>
<p>The general picture across Africa is patchy. There are only isolated examples of the legislature demanding answers from the president and cabinet. This results in the denial of constitutional rights. It puts even more pressure on the courts to come to the rescue and exposes the judiciary to <a href="https://theconversation.com/rule-of-law-in-south-africa-protects-even-those-who-scorn-it-175533">unwarranted attack</a>.</p>
<p>The South African legislature is no exception.</p>
<h2>Failure of accountability</h2>
<p>There are many reasons why the South African parliament has failed to hold the executive accountable. </p>
<p>Foremost is the control that political party bosses exercise over members of parliament. This is due to the country’s <a href="https://www.elections.org.za/content/Elections/Election-types/">party-list proportional representation</a> electoral system.</p>
<p>The majority party in parliament (the African National Congress) has held that position since 1994. It chairs all but one of the portfolio and standing committees, which are the chief mechanisms for accountability.</p>
<p>Where the party whip demands unquestioning obedience, <a href="http://www.channelafrica.co.za/sabc/home/channelafrica/news/details?id=82e4a0ee-0d92-471e-bb17-67ed587a816d&title=Ramaphosa%20defends%20ANC%20MPs%E2%80%99%20need%20to%20toe%20the%20party%20line">as has been the case</a>, parliamentary committees ask few questions and fail to hold the executive to account. This, despite the best intentions of opposition (and even some governing) MPs. </p>
<p>It forces people to use <a href="https://www.gov.za/documents/promotion-access-information-act">access to information routes</a> or other less open means of exposing the abuse of power or maladministration.</p>
<p>For this reason, the <a href="https://www.statecapture.org.za/">State Capture Commission</a> has advised that the <a href="https://theconversation.com/constitutional-court-ruling-heralds-changes-to-south-africas-electoral-system-140668">electoral system</a> and some aspects of the committee functions should be reviewed. This would weaken the grip of the party on its MPs. </p>
<p>Given the <a href="https://theconversation.com/factionalism-and-corruption-could-kill-the-anc-unless-it-kills-both-first-116924">divisions within its ranks</a>, the ANC is unlikely to promote any steps that undermine the influence of its leadership cohort.</p>
<p>All those who value the responsible exercise of public power in a constitutional democracy will support such a recommendation. But few will be holding their breath.</p><img src="https://counter.theconversation.com/content/192889/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Corder has in the past received funding from the NRF of South Africa. He is affiliated with the Council for the Advancement of the South African Constitution and Freedom under Law. </span></em></p>Parliament’s failure to live up to its constitutional mandate was noted by the State Capture Commission as having enabled former president Zuma’s regime to corrupt state behaviour with ease.Hugh Corder, Professor Emeritus of Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1909382022-09-22T18:28:04Z2022-09-22T18:28:04ZSouth Africa has a new traditional courts bill. But it doesn’t protect indigenous practices<figure><img src="https://images.theconversation.com/files/485635/original/file-20220920-18-z3pl8t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Traditional courts don't reflect indigenous ways of dispute resolution.</span> <span class="attribution"><span class="source">Photo by Per-Anders Pettersson/Getty Images</span></span></figcaption></figure><p>After 14 years of highly controversial amendments, South Africa’s parliament has finally approved <a href="https://www.gov.za/sites/default/files/gcis_document/201409/b15-08.pdf">the Traditional Courts Bill</a>. The Bill now awaits the signature of the President to become law. </p>
<p>The Bill seeks to regulate the structure and functioning of traditional courts in a uniform way. It also sets out to transform the traditional justice system to conform with constitutional values.</p>
<p>The early controversy that trailed the Bill concerned its alignment with the Constitution’s <a href="https://www.gov.za/documents/constitution/chapter-2-bill-rights">Bill of Rights</a>, particularly the rights to human dignity, equality and freedom from discrimination. </p>
<p>Later, controversy converged on its lack of an opt-out clause – that is permission for anyone who disputed the legitimacy of a traditional court (or its presiding judge) to refuse to submit to the court’s jurisdiction. </p>
<p>To be clear, the controversy is justified. Traditional courts are supposed to be informal, based on African customary laws, and as independent from State authority as possible. </p>
<p>Under the Bill, all levels of the traditional court system must be explored before a litigant may appeal to a magistrate’s court, which is a formal State court. This requirement practically commits people living in rural areas to the authority of traditional courts in their neighbourhood. </p>
<p>The problem is that the Bill recognised the much-maligned Bantustan boundaries contained in the <a href="https://www.gov.za/documents/traditional-leadership-and-governance-framework-act">Traditional Leadership and Governance Framework Act of 2003</a>, where millions of poor, historically disadvantaged South Africans live. </p>
<p>Moreover, traditional courts are presided over by mostly male traditional leaders, many with questionable legitimacy. Some are direct descendants of apartheid-imposed rulers. Others are accused of being appointed without adherence to indigenous laws. An editorial in the South African weekly newspaper the Mail and Guardian <a href="https://mg.co.za/editorial/2022-09-15-traditional-courts-bill-sidelines-women/">declared that </a> the Bill was based</p>
<blockquote>
<p>on bigotry and patriarchy and possibly exists only to appease traditional leaders and to guarantee votes for the ruling party in the general elections in 2024. </p>
</blockquote>
<p>In sum, supporters of the approved Bill claim that an opt-out clause would undermine the authority of traditional courts. For their part, opponents argue that people’s rights to fair trial supersedes the need to protect the authority of traditional courts. </p>
<p>But no one is asking a simple but profoundly weighty question: given their heavy State regulation, would traditional courts reflect indigenous ways of dispute resolution? </p>
<h2>How traditional is the Bill?</h2>
<p>Based on <a href="https://www.academia.edu/62788757/LEGAL_PLURALISM_AND_THE_FUTURE_OF_PERSONAL_FAMILY_LAWS_IN_AFRICA">my research</a> of indigenous laws, the answer is a simple no. In my view, criticism of the contents of the approved Bill obscure an important issue: South African legislators are steadily moulding indigenous laws into the image of western laws. </p>
<p>This is inappropriate. South Africans have a right to practice their culture without suffocating regulation by the State. South Africa is supposed to respect deep legal pluralism – that is the autonomous co-existence of legal orders. </p>
<p>Section 211(1) of the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">Constitution</a> recognises the institution, status and role of traditional leadership, according to customary law. </p>
<p>For its part section 211(3) asks the courts to </p>
<blockquote>
<p>apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.</p>
</blockquote>
<p>Section 211 thus implies that customary laws should operate independently. </p>
<p>Even though article 2 of the Bill seeks to “affirm the values of customary law and customs in the resolution of disputes, based on restorative justice and reconciliation,” it does so in order “to align them with the Constitution.” </p>
<p>In any case, indigenous laws predate the Constitution. The approved Bill is too controlling of indigenous behaviour – just like most laws that regulate customary laws. These include the Recognition of Customary Marriages Act of 1998, the Reform of Customary Law of Succession and Regulation of Related Matters Act of 2009, the Communal Land Rights Act of 2004, and the Traditional Leadership and Governance Framework Act. </p>
<p>All these laws impose Eurocentric values of individualism, non-discrimination, and binary notions of gender equality on indigenous African laws. They reflect little regard for the compatibility of these values with the <a href="http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602019000100012">communal character</a> of indigenous laws. These laws emerged in agrarian settings with complementary gender relations, welfare-oriented rights and obligations, and scant regard for individual property rights. </p>
<p>Another major issue I have with the Bill is that its prescriptive nature differs from the informal procedures of indigenous dispute resolution.</p>
<p>In addition, the structure of traditional courts ensures that they are simply extensions of the State. It’s true that they are to be presided over by headmen or headwomen, senior traditional leaders, and kings or queens. Nevertheless, appointments, salaries, training and adjudicatory principles are controlled by the State. </p>
<p>Lest we forget, the State is a colonial clone, since it retained colonial socioeconomic systems. It imposes European culture on Africans.</p>
<p>This is evident, once again, in the new Bill. Its judicial procedure gives little room for indigenous laws to thrive. Every significant aspect of the Bill is subjected to “constitutional values.” </p>
<p>Obviously, these regulatory values are <a href="https://theconversation.com/understanding-the-relevance-of-african-customary-law-in-modern-times-150762">successors</a> of the colonial era requirement that customary laws must not be <a href="https://www.ahrlj.up.ac.za/diala-ac-2018-1">repugnant</a> to natural justice, equity and good conscience.</p>
<h2>What is South Africa’s legal identity?</h2>
<p>The Bill demonstrates the successful cultural onslaught that European colonisers unleashed on Africans. It will be followed by the Single Marriage Statute and other laws. The wave of normative change is clearly here to stay. But Africans have the power to determine its direction.</p><img src="https://counter.theconversation.com/content/190938/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony Diala receives funding from the National Research Foundation of South Africa and is on the Advisory Committee on Matrimonial Property of the SA Law Reform Commission. The views he expresses here are personal. In no way do they represent the views of the NRF or the Commission.</span></em></p>South African legislators are steadily moulding indigenous laws into the image of western laws.Anthony Diala, Director, Centre for Legal Integration in Africa, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1864052022-07-20T13:57:07Z2022-07-20T13:57:07ZReligion and state need to be in balance to protect democracy in South Africa<figure><img src="https://images.theconversation.com/files/474114/original/file-20220714-32641-7p7h1u.JPG?ixlib=rb-1.1.0&rect=216%2C7%2C807%2C355&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The image of Nelson Mandela, South Africa's first black president, on a window at Regina Mundi Cathedral in Soweto.</span> <span class="attribution"><span class="source">Willem van Valkenburg/Flickr</span></span></figcaption></figure><p>The relationship between religion and the law is often complicated. It is sometimes even conflicted. At the heart of the matter lies the <a href="https://www.counterpointknowledge.org/preserving-religious-freedom-when-some-churches-abuse-their-members/">tension</a> between freedom of belief and association, and protection from abuse. </p>
<p>For example, the state has a responsibility to intervene when the beliefs or practices of religious individuals or communities are <a href="https://www.news24.com/news24/southafrica/news/exodus-what-is-a-cult-or-sect-and-what-are-the-worrying-signs-20200919">harmful or unlawful</a>.</p>
<p>The “state”, in this instance, refers to all <a href="https://www.researchgate.net/publication/259842489_Between_Capital_and_Cathedral_Essays_on_Church-State_relationships">three branches of government</a>: the executive, legislature and judiciary. The “church” refers to religious groupings in general (not only Christianity). A good, functional, relationship between the state and religious groupings is important for democracy.</p>
<p>In South Africa, <a href="https://www.researchgate.net/publication/341193183_Freedom_of_Religion_at_Stake_Competing_claims_among_Faith_Traditions_Sates_and_Persons">freedom of religion</a> is protected by the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a>. But there are times when the judiciary has to adjudicate on matters involving the church and its members, and in conflicts between religious communities and the state.</p>
<p>A good example is the 2013 court case of <a href="https://ewn.co.za/2013/05/20/Ex-minister-takes-church-to-court">Ecclesia de Lange against the Methodist Church</a>. Reverend De Lange was dismissed by the church after she married her same-sex partner. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/lgbt-migrants-in-south-africa-religion-can-be-a-blessing-and-a-curse-169758">LGBT migrants in South Africa: religion can be a blessing, and a curse</a>
</strong>
</em>
</p>
<hr>
<p>The South African constitution protects the rights and freedoms of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ+) people, and also the right to associate with religious communities. Which right must be protected: those of the religious community, or those of the individual? The court found in favour of the church on procedural grounds.</p>
<p>There are other cases where courts had to protect citizens from harm by religious leaders. For example, a pastor was <a href="https://www.bbc.com/news/world-africa-43002701">found guilty of assault</a> after spraying congregants with an insecticide, claiming it cured cancer and HIV.</p>
<p>Most religious communities function as a <a href="https://www.lexisnexis.co.za/lexis-digest/legal/understanding-a-voluntary-association-of-persons">voluntary association</a> under common law. Members submit to the <a href="https://methodist.org.za/wp-content/uploads/2017/08/Methodist-Book-of-Order.pdf">rules</a> when they join. Yet, if they <a href="https://twitter.com/SCA_ZA/status/1538818637003358208/photo/1">dispute</a> how the church rules are applied, they often turn to the secular courts to protect their constitutional rights.</p>
<p>This seems reasonable. So why would this cause tension, and even conflict, between religious communities and the state?</p>
<p>I have spent years <a href="https://www.researchgate.net/profile/Dion_Forster/">researching</a> the relationship between the state and the church in South Africa. I am also a member of a religious community and I am committed to democracy. I have seen how both the state and the church have abused their positions of trust and responsibility in the past, resulting in injustice.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/atheist-group-in-kenya-tests-boundaries-of-religious-tolerance-59847">Atheist group in Kenya tests boundaries of religious tolerance</a>
</strong>
</em>
</p>
<hr>
<p>I feel that it is important for the sake of democracy, and the common good, that South Africa maintain a healthy and critical relationship between religious freedom and the responsibility of the state.</p>
<h2>Church and state – then and now</h2>
<p>For <a href="https://amzn.to/3yDdCc8">many centuries</a> religion ruled over nation states. That’s because of its transnational reach. Religious movements and leaders played a role in the appointment (and deposing) of kings and rulers. </p>
<p>Scholars suggest that political power was accorded to religions then because humans lived in an <a href="https://amzn.to/3yDdCc8">“enchanted”</a> world, where it was believed that God had a direct influence on human affairs. God was regarded as the ultimate authority in all spheres of life. </p>
<p>As the world became increasingly secular and <a href="https://www.counterpointknowledge.org/knowing-what-is-true-between-science-and-belief/">“disenchanted”</a>, the state grew in power and independence from religious control. For some time, there was a sort of partnership between religion and the state. This was because many people in powerful secular positions – such as kings, political leaders, leading intellectuals – still believed in God.</p>
<p>Today, the state seems to have much more social power than religious communities. This is in part because fewer people – politicians, judges – openly allow their faith to direct their public roles. It is also because religion is largely viewed as something private.</p>
<p>But there isn’t really such a thing as <a href="https://amzn.to/3O0SLUB">“private” religion</a>. All beliefs have public implications. They influence what some people believe to be right and good in society, and how they relate to others.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/watershed-judgment-clarifies-limits-of-religion-in-south-africas-public-schools-80424">Watershed judgment clarifies limits of religion in South Africa's public schools</a>
</strong>
</em>
</p>
<hr>
<p>This can lead to concerns over the curtailing of <a href="https://doi.org/10.25159/2412-4265/8166">religious freedoms</a>, and even result in conflict between religion and the state. At the same time, religious beliefs and practices cannot operate unchecked, because they may harm individuals or society.</p>
<p>Maintaining healthy tension between freedom of religion and legal protection against abuse by religious communities is important in South Africa. </p>
<p>First, this is important because South Africans are deeply religious. A survey by <a href="https://www.statssa.gov.za/publications/P0318/P03182013.pdf">Statistics South Africa</a> showed that 92.3% of South Africans claimed to adhere to some form of religion, with 84.2% identifying as <a href="http://hts.org.za/index.php/HTS/article/view/3837">Christian</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-nigerias-religious-leaders-should-learn-more-about-climate-change-153983">Why Nigeria's religious leaders should learn more about climate change</a>
</strong>
</em>
</p>
<hr>
<p>The 2014-2017 <a href="https://www.worldvaluessurvey.org/WVSOnline.jsp">World Values Survey</a> showed that 74% of South Africans placed higher levels of trust in religious leaders and religious communities than in the state or political leaders. They take their <a href="https://www.researchgate.net/publication/341193183_Freedom_of_Religion_at_Stake_Competing_claims_among_Faith_Traditions_Sates_and_Persons">moral lead</a> from religious leaders and religious beliefs.</p>
<p>Second, religion plays an important role in South African democracy. Religious groupings form a sizeable and powerful constituency to hold powerful people and institutions <a href="https://www.news24.com/News24/anc-leaders-wrestling-over-calls-for-zuma-to-resign-sacc-20160408">to account</a>. The South African Council of Churches, for example, has a long history of <a href="https://sacc.org.za/history/">“speaking truth to power”</a>.</p>
<p>Third, South Africa has a <a href="http://www.scielo.org.za/scielo.php?pid=S1017-04992008000100005&script=sci_arttext&tlng=en">painful history</a> of the state curtailing freedom of speech and association, to protect itself from challenge and critique during apartheid. </p>
<p>Many religious leaders – including <a href="https://theconversation.com/archbishop-desmond-tutu-father-of-south-africas-rainbow-nation-97619">Archbishop Desmond Tutu</a> and <a href="https://www.sahistory.org.za/people/imam-abdullah-haron">Imam Haron</a> – were <a href="https://www.washingtonpost.com/archive/politics/1988/03/01/tutu-religious-leaders-arrested-in-protest-march/ea7b42ce-d930-4ff9-9ec0-ca06526cf2a8/">arrested</a> for allegedly <a href="https://www.researchgate.net/publication/341193183_Freedom_of_Religion_at_Stake_Competing_claims_among_Faith_Traditions_Sates_and_Persons">“planning a revolution”</a> when they sided with the struggle for freedom. </p>
<p>More recently, the government attempted to <a href="https://ewn.co.za/2012/12/13/OPINION-ANCs-conflict-with-the-SACC-The-Origin">silence criticism</a> by religious leaders who spoke out against corruption and political abuse.</p>
<h2>Striking a balance</h2>
<p>So, what’s to be done to maintain the balance between allowing responsible religious freedom and the right of the state to protect its citizens from possible religious abuse and harm? </p>
<p>First, the rights that are contained in the <a href="https://www.gov.za/sites/default/files/images/a108-96.pdf">constitution</a> must be upheld. </p>
<p>Second, South Africans should view both the state and religious communities with critical regard. Neither is without its faults. </p>
<p>Third, both institutions should operate responsibly within their mandates – the state as the impartial protector of citizens’ rights, and the church as responsible servant of the common good.</p>
<p>Finally, religion should not be allowed to unduly influence laws in order to curtail common freedoms – such as reproductive rights, sexual freedoms and, of course, religious freedom. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/unpacking-the-role-of-religious-counselling-services-in-ghana-127934">Unpacking the role of religious counselling services in Ghana</a>
</strong>
</em>
</p>
<hr>
<p>Similarly, the state should remain secular, and not adopt theological positions, such as blasphemy laws, doctrinal positions, or narrow, religiously informed moral positions.</p><img src="https://counter.theconversation.com/content/186405/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dion Forster receives funding from National Research Foundation (NRF). He is affiliated with the Methodist Church of Southern Africa. </span></em></p>There is no such thing as ‘private’ religion. Beliefs have public implications. Yet, they cannot go unchecked when they cause harm.Dion Forster, Full Professor of Ethics and Head of Department, Systematic Theology and Ecclesiology, Director of the Beyers Naudé Centre for Public Theology, Stellenbosch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1864782022-07-11T14:32:27Z2022-07-11T14:32:27ZA referendum on electoral reform in South Africa might stir up trouble<figure><img src="https://images.theconversation.com/files/472956/original/file-20220707-16-psr2t9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Voters in Johannesburg queue to vote in South Africa's May 2019 national elections. </span> <span class="attribution"><span class="source">EFE-EPA/Kim Ludbrook</span></span></figcaption></figure><p>After 28 years of democracy, South Africa is having to reform its political party-based electoral system to make it fairer and in line with the constitution, by allowing independent candidates to <a href="https://perjournal.co.za/article/view/12746">contest national and provincial parliaments</a>. A <a href="https://www.parliament.gov.za/bill/2300397">bill</a> to amend the country’s electoral law accordingly is before parliament.</p>
<p>The present electoral system has underpinned the governing African National Congresses’ (<a href="https://www.anc1912.org.za/">ANC</a>’s) <a href="https://theconversation.com/south-african-voters-are-disillusioned-but-they-havent-found-an-alternative-to-the-anc-171239">dominance of the political system since 1994</a>, not least by making individual MPs accountable to party bosses rather than the voters. This lack of accountability has facilitated the <a href="https://www.thepresidency.gov.za/speeches/statement-president-cyril-ramaphosa-handover-final-part-state-capture-commission-report%2C-union-buildings%2C-pretoria">stunning level of corruption</a> in the country.</p>
<p>Now there are calls for a <a href="https://www.news24.com/citypress/voices/standing-up-to-defend-our-democracy-is-the-only-option-20220702">national referendum</a> on the electoral system to define the way forward, and liberate it from the clutches of party barons. The intention seems to be to give the decision to “the people” rather than to parliament, which is the ordinary way for legislative change to be enacted.</p>
<p>But, this proposal would need to be handled carefully. </p>
<p>Referendums can be easily abused. Politicians often resort to them to avoid responsibility for making a difficult political decision, or to secure backing for a controversial policy and thus beat an opponent.</p>
<p>Examples abound.</p>
<p>British Labour prime minister Harold Wilson’s <a href="https://www.historyextra.com/period/20th-century/britain-decides-the-first-european-referendum/">1975
referendum</a> on whether Britain should stay in the European common market was an example of the first. South African president FW de Klerk’s <a href="https://www.sahistory.org.za/article/1992-whites-only-referendum-or-against-negotiated-constitution">1992 referendum</a> among whites to secure backing for entering negotiations with the ANC to end apartheid – thereby scuppering the opposition <a href="https://www.britannica.com/topic/Conservative-Party-political-party-South-Africa">Conservative Party</a> – was an example of the second.</p>
<p>Both Wilson and De Klerk received the answer they wanted and
expected. But politicians can also miscalculate badly. The most obvious example is British Conservative <a href="https://www.britannica.com/biography/David-Cameron">prime minister David Cameron</a>’s decision to call a referendum <a href="https://theconversation.com/brexit-five-years-after-the-referendum-here-are-five-things-weve-learned-162974">in 2016</a> on whether the UK should stay in the European Union.</p>
<p>He fully expected to win, but in the face of a scurrilous campaign by populist politicians like <a href="https://www.reuters.com/breakingviews/boris-johnson-exit-is-beginning-end-brexit-2022-07-07/">Boris Johnson</a> and <a href="https://www.theguardian.com/commentisfree/2022/mar/13/nigel-farage-hard-right-faction-brexit-net-zero-tory">Nigel Farage</a>, he lost. Today Britain is having to live with the consequences of Brexit: increased costs of imports from Europe, lower exports to Europe, constant supply chain problems, labour shortages and huge difficulties around Northern Ireland.</p>
<h2>Lessons to be drawn</h2>
<p>Britain’s history with referendums is worth noting. South Africa does not want to go the same way. Lessons need to be drawn from these and other examples around the world. </p>
<p>Care and rules are needed for how any referendum, on any question,
would be conducted. </p>
<ul>
<li><p>Who would devise the question put to the electorate? Are they independent, or are they subordinated to the interests of particular politicians?</p></li>
<li><p>Are the questions posed neutrally phrased, or do they deliberately or otherwise point their respondents in a particular direction?</p></li>
<li><p>Would the government of the day be bound by the result of a referendum, or would it be advisory?</p></li>
<li><p>Would a government accept a result endorsed by a 50.1% majority,
or would it require a “special majority”, of say 55%, to pass?</p></li>
<li><p>What rules would have to be followed during a campaign, and how would the media be required to conduct themselves? </p></li>
<li><p>What sanctions would be imposed to limit the subversion of the campaign by lies by both sides of the electoral debate? </p></li>
<li><p>Would there be any rule outlawing a repeat of the referendum within any given period of time?</p></li>
</ul>
<p>Without careful regulation, a referendum can be predisposed to securing a particular answer. Yet it is ostensibly designed to deepen democracy, not to subvert it.</p>
<h2>Proportionality</h2>
<p>Electoral systems can be highly complex. The great virtue of South Africa’s proportional representation <a href="https://hsf.org.za/publications/hsf-briefs/the-south-african-electoral-system">electoral system</a> is that it is simple. The voter has two votes, one for national level, one for provincial level. These votes contribute to the proportionate vote of the chosen party.</p>
<p>It is rather more difficult to explain to voters how <a href="https://www.researchgate.net/publication/272466990_The_Case_of_Lesotho's_Mixed_Member_Proportional_System">mixed member systems</a> ensure proportionality of party representation. These systems combine <a href="https://www.telegraph.co.uk/politics/0/first-past-the-post-voting-explained/">first-past-the-post</a> constituency elections with proportional representation. </p>
<p>This poses the issue of how members of parliament who are elected by constituencies would be balanced by those elected by <a href="https://www.eisa.org/wep/sou3.htm">proportional representation</a> to ensure an election result which, as the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a> requires, is overall, proportional. In other words, what proportion of MPs would be elected by constituencies as against those elected by proportional representation?</p>
<p>These complexities and other considerations suggest a way forward if much-needed electoral reform, beyond that presently ordered by the Constitutional Court, is to be achieved in South Africa.</p>
<p>The first step must be for the ANC to be pushed well below 50% in the <a href="https://www.eisa.org/wep/southafrica.htm">2024 election</a>. Turkeys do not vote for Christmas. The ANC is unlikely to hold a referendum which might lead to far-reaching electoral reform.</p>
<p>It is unlikely that the ANC will vote for radical electoral reform unless it is hard pushed to do so. It is at present working hard to <a href="https://theconversation.com/south-africa-is-in-search-of-a-fairer-electoral-system-but-whats-been-tabled-is-flawed-184277">minimise the impact</a> of allowing independent candidates to stand in elections, as required by a ruling of the <a href="https://theconversation.com/constitutional-court-ruling-heralds-changes-to-south-africas-electoral-system-140668">Constitutional Court</a>.</p>
<p>Second, there needs to be a binding commitment by opposition parties to electoral reform and how to bring it about. Presuming that the ANC receives <a href="https://ewn.co.za/2022/05/20/jeff-radebe-warns-anc-could-get-below-50-of-votes-at-2024-national-elections">well below 50%</a> in the 2024 election, this commitment must be a condition of any coalition agreement formed between political parties forming a government.</p>
<p>Third, there should be a repeat of the 2003 <a href="https://static.pmg.org.za/docs/Van-Zyl-Slabbert-Commission-on-Electoral-Reform-Report-2003.pdf">Van Zyl Slabbert Commission</a> to consider electoral alternatives. Such a commission should be composed in such a way to earn the trust of both politicians and voters.</p>
<p>Its deliberations need not take much time, as the commission has already discussed the fundamental principles involved. It also ran a survey which – rather than asking respondents directly what electoral system they favoured – asked them what values they wanted an electoral system to express, values like fairness, equality and accountability.</p>
<p>Fourth, the recommendations of such a commission would need to be
accepted and implemented by parliament. This is where any coalition
agreement should kick in. Perhaps such a coalition agreement might
require that, in the event of a serious disagreement about electoral reform, the matter should be referred to the Constitutional Court.</p>
<h2>What issues should the people decide?</h2>
<p>This leaves open the issue of whether, following the approval or
defeat of a bill to implement electoral reform, the outcome should be
referred to the electorate in a referendum.</p>
<p>It needs to be clear as to why, if parliament has made a decision, the
matter should be referred to a referendum. Perhaps it should. Perhaps this would be a way of making South Africa’s democracy more direct, and its politicians more accountable.</p>
<p>But if the form of an electoral system can be referred to the electorate in a referendum, why not capital punishment? And why not abortion? Or LGBTIQ rights? </p>
<p>Care is needed. A referendum may well have a place in the country’s
democracy, but beware – it may release a host of problems.</p><img src="https://counter.theconversation.com/content/186478/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Roger Southall does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Referenda may well have a place in the country’s democracy, but if the form of an electoral system can be referred to a referendum, why not capital punishment, abortion or LGBT rights?Roger Southall, Professor of Sociology, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1862262022-07-05T13:48:59Z2022-07-05T13:48:59ZJustice Maya’s support for African languages in South Africa’s courts is a positive sign<figure><img src="https://images.theconversation.com/files/472337/original/file-20220704-14-wz0f2q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Judge President of South Africa's Supreme Court of Appeal, Mandisa Maya.</span> <span class="attribution"><span class="source">Simphiwe Nkwali (Photo by Gallo Images / The Times via GettyImages)</span></span></figcaption></figure><p>South Africa’s <a href="https://ewn.co.za/2022/07/25/ramaphosa-appoints-maya-as-deputy-chief-justice">new Deputy Chief Justice</a>, <a href="https://www.supremecourtofappeal.org.za/index.php/judges/judges-of-the-supreme-court-of-appeal/9-judges/maya-mandisa-muriel-lindelwa">Justice Mandisa Maya</a>, has once again put the spotlight on indigenous languages and the justice system.</p>
<p>South Africa’s post-apartheid legal profession, through legislation and policy, adopted an English-only approach. English was further elevated when the heads of the courts adopted it as the only official language of record <a href="http://vital.seals.ac.za:8080/vital/access/manager/Repository/vital:37968?site_name=GlobalView&query=zakeera+docrat+&sort=ss_dateNormalized+desc%2Csort_ss_title+asc&queryType=vitalDismax">in 2017</a>. But the country has <a href="https://www.justice.gov.za/legislation/constitution/chp01.html#:%7E:text=(1)%20The%20official%20languages%20of,%2C%20isiNdebele%2C%20isiXhosa%20and%20isiZulu.">11 official languages</a>, and the majority of citizens speak an African language as mother tongue. <a href="http://vital.seals.ac.za:8080/vital/access/manager/Repository/vital:37968?site_name=GlobalView&query=zakeera+docrat+&sort=ss_dateNormalized+desc%2Csort_ss_title+asc&queryType=vitalDismax">Only 9.6%</a> of the population speak English as a mother tongue.</p>
<p>The other official languages <a href="https://www.justice.gov.za/legislation/constitution/chp01.html#:%7E:text=(1)%20The%20official%20languages%20of,%2C%20isiNdebele%2C%20isiXhosa%20and%20isiZulu">are</a> Afrikaans, isiNdebele, isiXhosa, Sesotho, Setswana, Sepedi, siSwati, Tshivenda, Xitsonga and isiZulu. They all have equal status.</p>
<p>The decision to use English only is a missed opportunity for promoting multilingualism. Giving African languages intellectual status would ensure that legal practitioners became proficient in them. Using and developing all the nation’s languages is vital for their growth and survival. </p>
<p>It is often wrongly thought that language is associated with “race”. That is not the case. Language acquisition is linked to a person’s <a href="https://www.routledge.com/Languages-Identities-and-Intercultural-Communication-in-South-Africa-and/Kaschula/p/book/9780367364359">environment</a>. This is true for the two of us. We grew up in an isiXhosa environment and learnt the language at school and at university. It is not our mother tongue.</p>
<p>According to <a href="https://www.gov.za/documents/constitution-republic-south-africa-1996-chapter-8-courts-and-administration-justice#174">Section 174 of the constitution</a>, “race” and gender must be taken into account when “appropriately qualified” judges are appointed. The primary purpose is to ensure the judiciary is transformed from the past era of racial discrimination to one that’s part of an inclusive, equal society. </p>
<p>Judges’ competence in official languages other than English is not considered.</p>
<h2>Language and the judiciary</h2>
<p>To our minds, the exclusion of proficiency in African languages runs counter to the country’s transformation agenda. No language should be seen as superior or inferior to any other. They should be seen as a rich resource which can ensure social justice.</p>
<p>Similar to the constitution, the <a href="https://www.justice.gov.za/legislation/acts/1994-009.pdf">Judicial Service Commission Act</a> makes no mention of the language abilities of judicial officers. Yet they work in multilingual courtrooms.</p>
<p>The <a href="https://www.judiciary.org.za/index.php/judicial-service-commission/about-the-jsc">Judicial Service Commission</a> advises the government on matters concerning the judiciary and the administration of justice. It interviews candidate judges and <a href="https://www.judiciary.org.za/index.php/judicial-service-commission/members-of-the-jsc">handles complaints against judges</a>. </p>
<p>Some commissioners and candidates have recently highlighted the importance of accepting African languages for <a href="https://www.news24.com/news24/southafrica/news/jsc-interviews-money-cant-buy-experience-judge-candidate-65-when-asked-about-age-20211007">court proceedings and records</a>.</p>
<h2>Justice Maya shows the way</h2>
<p>In her <a href="https://www.youtube.com/watch?v=frzrvsLA08Y">first interview for the position of Chief Justice</a> in February 2022, Justice Maya was commended for writing judgments bilingually (in isiXhosa and English). This was described as “extraordinary”.</p>
<p><a href="https://www.supremecourtofappeal.org.za/index.php/judges/judges-of-the-supreme-court-of-appeal/9-judges/maya-mandisa-muriel-lindelwa">Maya</a> reiterated the need to develop African languages <a href="https://www.youtube.com/watch?v=medfs6HuxMY">for use in courtrooms</a>. She suggested reviewing the law degree curriculum and enabling judges to write judgments in African languages. Maya noted that a new language policy for courts would require resources and commitment. She said she would encourage all judges to write judgments in their mother tongue.</p>
<p>In her most recent interview for <a href="https://www.youtube.com/watch?v=frzrvsLA08Y">the position of Deputy Chief Justice</a>, Maya was grilled on the fact that she wrote a bilingual judgment in the case <a href="http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZASCA/2020/79.html&query=UNISA">Afriforum v Unisa</a>. It appeared as though commissioners were taking issue with the fact that the case, dealing with language rights of Afrikaans-speaking students, was written in isiXhosa (Maya’s mother tongue). One would expect commissioners to ask questions about Maya’s views on using African languages. </p>
<p>Maya said she needed the assistance of a legal translator when writing the judgment. This opens the possibility of employment for forensic linguistics and legal translation students and graduates. But the theme of transformation was not pursued at the interview.</p>
<p>Maya’s bold step of using isiXhosa as a language of record may chart a new course, one where African languages are finally recognised as being “official” in practice. </p>
<h2>Writing judgments in African languages</h2>
<p>Maya’s example was not the first in South Africa. It has happened in the past, primarily in the magistrates’ courts. This dates back to 1998 in the case of <a href="http://vital.seals.ac.za:8080/vital/access/manager/Repository/vital:37968?site_name=GlobalView&query=zakeera+docrat+&sort=ss_dateNormalized+desc%2Csort_ss_title+asc&queryType=vitalDismax">State v Matomela</a>. The case was heard in isiXhosa and the magistrate wrote the judgment in isiXhosa. The magistrate argued that it was practical to proceed in isiXhosa, where all parties were proficient in the language. </p>
<p>But when a high court reviewed the judgement, the judge said the most practical and efficient way to proceed in future was to have one language of record: English.<br>
In the 2004 case of <a href="http://vital.seals.ac.za:8080/vital/access/manager/Repository/vital:37968?site_name=GlobalView&query=zakeera+docrat+&sort=ss_dateNormalized+desc%2Csort_ss_title+asc&queryType=vitalDismax">State v Damoyi</a> no interpreter was available for the accused, so the magistrate heard the case in isiXhosa. On review, the judge questioned this. The magistrate responded that isiXhosa was an official language, and that it was practical to proceed in the language to safeguard the accused’s right to a fair trial.</p>
<p>In the case of <a href="https://www.saflii.org/za/cases/ZAWCHC/2018/106.html">State v Gordon</a> in 2018, the use of languages as part of transformation of the legal system was undermined and criticised. English was said to be the most beneficial and practical option. </p>
<h2>Language in pursuit of justice</h2>
<p>When forensic and legal linguists have argued for judgments to be written in African languages, and for cases to be conducted in African languages, they have been accused of <a href="http://vital.seals.ac.za:8080/vital/access/manager/Repository/vital:37968?site_name=GlobalView&query=zakeera+docrat+&sort=ss_dateNormalized+desc%2Csort_ss_title+asc&queryType=vitalDismax">shopping for judges on the basis of “race”</a>. But, as we have argued, the link between “race” and language is not a given. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-using-just-one-language-in-south-africas-courts-is-a-problem-134911">Why using just one language in South Africa's courts is a problem</a>
</strong>
</em>
</p>
<hr>
<p>Judges should be allowed to play to their own linguistic strengths, thereby entrenching language and multilingualism in line with the constitution. The discussion should centre on how language can be used in courts of law in the pursuit of justice, rather than fixating on a particular language of record.</p>
<p><em>The article was updated following Justice Maya’s <a href="https://ewn.co.za/2022/07/25/ramaphosa-appoints-maya-as-deputy-chief-justice">appointment</a> as Deputy Chief Justice</em>.</p><img src="https://counter.theconversation.com/content/186226/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Zakeera Docrat receives funding from the National Institute for the Humanities and Social Sciences (NIHSS). </span></em></p><p class="fine-print"><em><span>Russell H. Kaschula receives funding from the University of the Western Cape and the National Research Foundation.</span></em></p>It is important to embrace all the nation’s languages in a multilingual and multicultural society. This will ensure they are used, developed and mainstreamed.Zakeera Docrat, Postdoctoral research fellow (Forensic Linguistics/ Language and Law), University of the Western CapeRussell H. Kaschula, Professor of African Language Studies, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1859222022-06-30T09:22:45Z2022-06-30T09:22:45ZDigital migration: court delay upholds information rights of poor South Africans<figure><img src="https://images.theconversation.com/files/471658/original/file-20220629-12-5zcy3b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The government had many years to ensure a smooth transition from analogue to digital television but failed.
</span> <span class="attribution"><span class="source">Flickr</span></span></figcaption></figure><p>South Africa’s Constitutional Court <a href="https://www.concourt.org.za/index.php/judgement/474-e-tv-pty-limited-and-others-v-minister-of-communication-and-digital-technologies-and-11-others-cct89-22-cct92-22">has decided</a> to strike down the government’s plans to end old-style analogue television broadcasting at the end of June. The decision upholds the right to information, which poor South Africans would have been denied as government has been slow to roll out the devices they need to access the new digital signal. </p>
<p>But the decision further delays migration to digital broadcasting and will leave South Africa struggling longer with a lack of urgently needed bandwidth. The migration would free up space on the frequency spectrum for mobile data and other uses.</p>
<p>The government had many years to ensure a smooth transition and ensure that poor households would continue to have access to television services. But it failed to do so. A last minute rush and hasty deadlines could not obscure the fact that perhaps a third of South Africans would have been left without access.</p>
<p>The court’s <a href="https://www.concourt.org.za/index.php/judgement/474-e-tv-pty-limited-and-others-v-minister-of-communication-and-digital-technologies-and-11-others-cct89-22-cct92-22">ruling</a>, handed down just two days before the deadline, said the government neglected to establish how many people would be left without access to television when the analogue signal was switched off. The decision was, therefore, unconstitutional and was set aside. </p>
<p>The court challenge to the 30 June date for analogue switch-off came from free-to-air private broadcaster <a href="https://www.etv.co.za/">e.tv</a>, supported by civil society groups <a href="https://soscoalition.org.za/">SOS Support Public Broadcasting</a> and <a href="https://mediamonitoringafrica.org/">Media Monitoring Africa</a>. They argued that the date was too early, as there were still too many people who wouldn’t have access to the new digital signal. </p>
<p>The process of digital migration has dragged on for many years: South Africa first planned to switch off analogue in 2011, well ahead of a deadline set by the <a href="https://www.itu.int/en/Pages/default.aspx">International Telecommunications Union</a> for 2015. But these and further deadlines and ministers came and went, while the process was dogged by claims of corruption, operational delays and accusations that South African satellite TV giant <a href="https://www.multichoice.com/">Multichoice</a> <a href="https://www.itweb.co.za/content/GxwQDq1ZKlnvlPVo">tried to shape the process to its own agenda</a>. </p>
<p>The administration of <a href="https://www.itweb.co.za/content/mQwkoq6P4yA73r9A">President Cyril Ramaphosa</a> has identified the reshaping of the digital landscape as a policy priority. The government is pushing hard to finalise digital migration – moving analogue television broadcasts to a new digital platform, “digital terrestrial television”. </p>
<p>The current minister of communications, Khumbudzo Ntshavheni, recently <a href="https://www.itweb.co.za/content/kLgB1Mez4OGq59N4">railed against opponents of digital migration</a>, saying the country needed to</p>
<blockquote>
<p>bridge the digital divide, especially on a continent where the majority of our people remain unconnected and without access to technology. We cannot afford to be left behind, irrespective of any other agendas. Our people are going to be connected.</p>
</blockquote>
<h2>Need for change</h2>
<p>After so many years of delay, however, the landscape has changed dramatically. Digital terrestrial television has largely been overtaken by internet-based services like Netflix and satellite services like DSTV, at least for the middle classes. Poorer South Africans still rely heavily on the analogue system.</p>
<p>Around 36% of the country’s population might have been left in “<a href="https://www.publicmediaalliance.org/will-south-africas-long-awaited-analogue-switch-off-still-go-ahead/">television darkness</a>” at the end of June if the switch-off had gone ahead, according to submissions to the Constitutional Court. </p>
<p>According to <a href="https://www.dailymaverick.co.za/article/2022-03-13-the-big-analogue-tv-switch-off-is-over-hasty-and-will-be-a-disaster/">Justine Limpitlaw and Azola Dayile of the SOS Support Public Broadcast Coalition</a>: </p>
<blockquote>
<p>That the 36% are the most marginalised and have least access should be of particular concern to the government.</p>
</blockquote>
<p>At the heart of the problem is the fact that the frequency spectrum has limited space for the radio, television, cellphone and other signals it carries. Newer digital technologies dramatically increase carrying capacity, and the ballooning demand for digital services has created massive demand for additional spectrum to be released. The lack of bandwidth <a href="https://www.itweb.co.za/content/5yONP7EgeL6qXWrb">has been identified</a> as a major obstacle to lowering data costs and hence promoting economic growth.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/471661/original/file-20220629-14-m0gw9a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/471661/original/file-20220629-14-m0gw9a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/471661/original/file-20220629-14-m0gw9a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/471661/original/file-20220629-14-m0gw9a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/471661/original/file-20220629-14-m0gw9a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/471661/original/file-20220629-14-m0gw9a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/471661/original/file-20220629-14-m0gw9a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Khumbudzo Ntshavheni, South Africa’s communications minister.</span>
<span class="attribution"><span class="source">National Assembly</span></span>
</figcaption>
</figure>
<p>However, the traditional broadcasters are in the way. They are <a href="https://www.gov.za/speeches/communications-and-digital-technologies-high-court-judgement-final-date-analogue-switch">occupying the frequency bands</a> between 700 MHz and 800 MHz and need to be migrated to digital to free up those bands for mobile data.</p>
<p>The government has had some success on the other end of the digital migration problem. After long and complex court battles, the Independent Communications Authority of South Africa successfully held an <a href="https://www.reuters.com/world/africa/safrica-completes-spectrum-auction-collects-nearly-billion-dollars-2022-03-18/">auction of frequency space</a> in March this year, realising R14.4 billion (about US$900 million) from six mobile companies.</p>
<p>The amount far exceeded expectations and reflects how valuable frequency space is. Treasury will be glad of the tidy windfall, too.</p>
<h2>The hurdle</h2>
<p>The problem is that the real estate has been sold while its old occupants are still in possession and fighting attempts to move them off.</p>
<p>Some transmitters in five provinces have <a href="https://www.gov.za/speeches/media-statement-minister-communications-and-digital-technologies-ms-khumbudzo-ntshavheni-mp">already been switched off</a>, but switch-offs in the most populous areas of the country still lie ahead. </p>
<p>The government has been rolling out the free set-top boxes that will allow people with old television sets to receive the new digital signal. But the process is far behind schedule.</p>
<p>By late last year, just over 500,000 households had been issued with set-top boxes, according to <a href="https://collections.concourt.org.za/handle/20.500.12144/37863?show=full">government figures submitted in court</a>, out of a qualifying total of 3.75 million.</p>
<p>The <a href="https://collections.concourt.org.za/bitstream/handle/20.500.12144/37863/CCT%2089-22%20-%20First%20Respondent%27s%20Answering%20Affidavit.pdf?sequence=2&isAllowed=y">ministry argued</a> that most of those left out had not registered for support. The government could only take responsibility for those who had, the minister said in court papers. But the Constitutional Court said this was not good enough, and that the 31 October 2021 deadline to register was irrational. </p>
<p>Though e.tv has emphasised the loss of information rights of millions for purposes of its application to the court, the broadcaster also <a href="https://www.itweb.co.za/content/LPp6V7rDZoLqDKQz">fears a massive loss of business</a>. With such a huge drop in audience numbers, advertisers will simply go elsewhere.</p>
<p>The South African Broadcasting Corporation (SABC), the national public broadcaster, too, would lose money and initially <a href="https://www.sabc.co.za/sabc/media-statement-on-analogue-switch-off/">expressed concern</a> about switching off analogue too quickly. It later apologised to the minister for an alleged breach of protocol, after apparent pressure from the ministry. But, the statement has not been retracted and remains on the corporation’s website.</p>
<h2>A question of timing and rights</h2>
<p>All sides agree that the analogue switch-off needs to happen – it is only the timing that is at issue. Though the process has been running for many years, progress has been painfully slow while pressure for more bandwidth has grown exponentially.</p>
<p>It seems less than fair to expect millions of the most disadvantaged to do without television as a result of the state’s difficulties with delivery – in this case, of set-top boxes. After all, information is a basic right and necessity.</p>
<p>The Constitutional Court ruling means that until the government can roll out set-top boxes to those who need them, mobile data will remain scarce and expensive.</p><img src="https://counter.theconversation.com/content/185922/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Franz Krüger does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The decision further delays migration to digital broadcasting and places strain on the urgently needed bandwidth for mobile data.Franz Krüger, Adjunct Professor of Journalism, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1857882022-06-29T14:36:01Z2022-06-29T14:36:01ZThe right to die: unpacking an ethical dilemma in South Africa<figure><img src="https://images.theconversation.com/files/471410/original/file-20220628-20-uu3f6k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Right to die activist Sean Davison (left) speaks to the press after three years of house arrest.</span> <span class="attribution"><span class="source">Brenton Geach/Gallo Images via Getty Images</span></span></figcaption></figure><p>Sean Davison, the euthanasia activist and co-founder of <a href="https://dignitysouthafrica.org/">DignitySA</a>, recently <a href="https://ewn.co.za/2022/06/23/i-didn-t-murder-them-i-helped-them-shares-euthanasia-activist-sean-davison">completed a sentence</a> of house arrest in South Africa for his role in the deaths of three people. He said he had not committed a crime or murder, but had helped these people because they were <a href="https://www.capetalk.co.za/articles/448020/i-didn-t-murder-them-i-helped-them-shares-euthanasia-activist-sean-davison">desperate</a> to die. Anrich Burger, Justin Varian and Richard Holland were suffering unbearably with no hope of recovery and unable to end their own lives. </p>
<p>The late South African emeritus Archbishop Desmond Tutu, in whose <a href="https://www.dailymaverick.co.za/article/2022-06-20-right-to-die-activist-sean-davison-vows-to-carry-on-fight-in-tutus-honour/">honour</a> Davison wants to fight to change the laws around assisted suicide, once <a href="https://theconversation.com/we-have-a-right-to-die-with-dignity-the-medical-profession-has-a-duty-to-assist-67574">wrote</a> that he would want the option of an assisted death. Tutu argued that dying people should have the right to decide how and when they wanted to leave this life.</p>
<p>Legislation in Canada, and a number of US states and European countries, for example, allows assisted suicide. But there are still billions of people around the world, as in South Africa, who do not have this right. </p>
<p>The question of whether this is a right is a debate that has been raging for years in medical ethics and within religious groups. </p>
<p>This article is not about the religious or strictly legal aspects of the debate. It grapples with the ethical tension between arguments against and for active forms of euthanasia – one of the most contested ethical subjects in the world. </p>
<h2>Arguments against active euthanasia</h2>
<p>There are broadly three arguments <a href="https://www.loot.co.za/product/k-moodley-medical-ethics-law-and-human-rights/kknf-4887-ga80?referrer=googlemerchant&gclid=EAIaIQobChMIuPLBqNbD-AIVTtPtCh2kTgIUEAQYASABEgKqrfD_BwE&gclsrc=aw.ds">against</a> active forms of euthanasia:</p>
<ul>
<li><p>only God has the authority to dispose over life and death</p></li>
<li><p>it is the role of medical doctors to preserve life and not to cause death</p></li>
<li><p>a doctor could abuse his or her position to take the lives of vulnerable patients, or patients might be killed against their wishes.</p></li>
</ul>
<p>Although these arguments must be considered, I prefer to put forward the arguments in support of the active forms of euthanasia.</p>
<p>But let’s first look for the sake of clarity at two forms of active euthanasia.</p>
<h2>Two kinds of active euthanasia</h2>
<p>One is known as voluntary active euthanasia. This is when death is intentionally brought about in the life of a patient who is competent to make such a decision, and where death is reasonably believed to be in the interest of and based on an informed request by the patient. The doctor’s act is the proximate cause of death. </p>
<p>The second form of active euthanasia is where a doctor assists a patient in suicide, called “physician-assisted suicide”. The doctor intentionally provides the means to a competent individual who then takes his or her own life. </p>
<p>In South Africa, both these forms of euthanasia are illegal. </p>
<h2>Constitutional and other supportive perspectives</h2>
<p>In a constitutional democracy, active euthanasia should not be dealt with primarily as a theological issue. Of course, people of faith may express their beliefs about it, but they should not expect to dictate the law. There are many citizens who do not share religious values.</p>
<p>Although legislation in South Africa prohibits active forms of euthanasia, I believe that it is not against the <a href="https://www.gov.za/documents/constitution/chapter-2-bill-rights">constitution</a>. The bill of rights includes three relevant rights:</p>
<ul>
<li><p>human dignity (article 10)</p></li>
<li><p>freedom and security of the person, including the right not to be treated or punished in a cruel, inhuman or degrading way (article 12(1))</p></li>
<li><p>bodily and psychological integrity, including the right to security in and control over one’s body (article 12(2)).</p></li>
</ul>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/we-have-a-right-to-die-with-dignity-the-medical-profession-has-a-duty-to-assist-67574">We have a right to die with dignity. The medical profession has a duty to assist</a>
</strong>
</em>
</p>
<hr>
<p>There is another point in favour of active euthanasia. The development of medical science means that people have more control over death and life than ever before. Although life has high value, it is not absolute.</p>
<p>People make decisions throughout their lives about their health. But when they are terminally ill, often in unbearable pain and suffering – and sometimes even losing their dignity – they are not allowed to decide when they want to die.</p>
<p>If someone is terminally ill and suffers badly, can a strong moral case not be made that such a person – within <a href="https://www.justice.gov.za/salrc/reports/r_prj86_euthen_1998nov.pdf">prescribed medical-ethical parameters</a>, evaluating the patient’s suffering, prognosis, mental competence, informed decision-making and clear communication – be assisted with the dying process? </p>
<h2>In support of active euthanasia</h2>
<p>Three arguments have been put forward in <a href="https://www.loot.co.za/product/k-moodley-medical-ethics-law-and-human-rights/kknf-4887-ga80?referrer=googlemerchant&gclid=EAIaIQobChMIuPLBqNbD-AIVTtPtCh2kTgIUEAQYASABEgKqrfD_BwE&gclsrc=aw.ds">support</a> of active euthanasia.</p>
<p><strong>Personal autonomy should be respected.</strong> This implies that a competent person has a moral right to make his or her own choice.</p>
<p><strong>Unbearable suffering should be prevented.</strong> Nobody should be forced to endure suffering – often at high medical cost.</p>
<p>When life is no longer good, and death is no longer bad, and when death is therefore preferred to continuing life, the role of medicine could change from healing and preserving life to helping someone die in a way that is compassionate, kind, gentle and respectful.</p>
<p>I believe everyone should be allowed to choose his or her “moment”. For me, active forms of euthanasia are not so much the termination of life, but rather the shortening of suffering and the dying process.</p>
<p><strong>Moral equivalence.</strong> Physician assisted suicide is like other practices that are already morally acceptable – such as passive euthanasia. </p>
<p>To withhold treatment is viewed as an omission while physician assisted suicide and voluntary active euthanasia are regarded as acts. But people are morally and legally <a href="https://www.loot.co.za/product/k-moodley-medical-ethics-law-and-human-rights/kknf-4887-ga80?referrer=googlemerchant&gclid=EAIaIQobChMIuPLBqNbD-AIVTtPtCh2kTgIUEAQYASABEgKqrfD_BwE&gclsrc=aw.ds">responsible</a> for both acts and omissions.</p>
<p>South Africa is a country where people hold different opinions. This diversity of opinions must always be considered, according to the constitution. South Africans did it with the termination of pregnancy (which was legalised) and the death penalty (which was scrapped).</p><img src="https://counter.theconversation.com/content/185788/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chris Jones does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>People make decisions throughout their lives about their health. But when they are terminally ill they are not allowed to decide when they want to die.Chris Jones, Chief researcher, Department of Systematic Theology and Ecclesiology, head of Unit for Moral Leadership, Stellenbosch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1850732022-06-15T13:20:45Z2022-06-15T13:20:45ZSouth Africa’s epochal 1976 uprisings shouldn’t be reduced to a symbolic ritual<figure><img src="https://images.theconversation.com/files/468960/original/file-20220615-15-hmszgt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A memorial in Orlando West, Soweto, honouring the victims of the massacre of school children by apartheid police.</span> <span class="attribution"><span class="source"> AFP/Mujahid Safodien/via Getty Images</span></span></figcaption></figure><p>On the morning of Wednesday, 16 June 1976, young students from schools across Soweto <a href="https://www.sahistory.org.za/article/june-16-soweto-youth-uprising">set out on a march </a> through the sprawling <a href="https://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/townships">black township</a> outside Johannesburg. The march was to amplify their opposition to the apartheid government’s new school-language policy that would see Afrikaans replace English as their <a href="https://michiganintheworld.history.lsa.umich.edu/antiapartheid/exhibits/show/exhibit/origins/soweto_uprising">main medium of instruction</a> in several key subjects. </p>
<p>Before the march began, they were confident. They knew the risks that they faced – <a href="http://www.julian-brown.net/roadtosoweto">“we decided that there should be no placard inciting the police as such</a>, one activist put it afterwards, because "we wanted a peaceful demonstration – it had to be disciplined”. Even so, they were excited, believing that the march would be a carnivalesque event, “a <a href="https://www.britannica.com/topic/Guy-Fawkes-Day">Guy Fawkes</a> thing,” as one put it – an event in which the world would be turned upside down.</p>
<p>Their excitement buoyed them in the early hours of the morning, as thousands of students joined in the march. But this atmosphere did not last.</p>
<p>A few hours into the march, heavily-armed members of the South African Police confronted a crowd of students near the Orlando West High School. They fired tear-gas at the students, and then, moments later, fired live ammunition. In the moments that followed, they shot and killed <a href="https://www.sahistory.org.za/people/hector-pieterson">Hector Pieterson</a> an eleven-year old child. As if energised by this death, the police continued to assault and kill students.</p>
<p>In the hours that followed, another 10 people died at the hands of the police. Over the next three days, at least 138 people died. And the deaths did not stop. Throughout the rest of the year, the police and military would patrol Soweto and many other sites of popular resistance, and use whatever force they deemed necessary to suppress dissent, quash protest, and establish order.</p>
<p>These protests reignited the public flame of resistance, and helped <a href="https://www.sahistory.org.za/article/june-16-soweto-youth-uprising">re-make the opposition to apartheid</a>. They provided a model and an example for activists to follow into the 1980s.</p>
<h2>June 16 in perspective</h2>
<p>Today, 46 years later, South Africa commemorates June 16th as <a href="https://www.gov.za/YouthDay2022">National Youth Day</a>.</p>
<p>It is no doubt important to do this, and to remember the sacrifices and struggles of the past. But in commemorating this day, South Africa runs the risk of sacralising these events – of lifting them out of their historical context, stripping them of their political complexities, and remaking them into a mere symbol, something that only needs to be remembered once a year and then forgotten the rest of the time.</p>
<p>In my book, published on the eve of the 40th anniversary of June 16th, <a href="http://www.julian-brown.net/roadtosoweto">The Road to Soweto</a>, I argued that the sacralisation of this singular day has distorted understandings of South Africa’s post-apartheid democracy.</p>
<p>It is now almost trite to suggest that the political order of post-apartheid South Africa was forged in conference rooms and around negotiating tables <a href="https://omalley.nelsonmandela.org/omalley/index.php/site/q/03lv02424/04lv03370/05lv03405.htm">in the 1990s</a>; that the conversations, debates, and arguments between the representatives of the negotiating parties are what shaped the terms of the country’s political institutions and laws; and that the country constitution is best understood <a href="https://journals.co.za/doi/abs/10.1080/02587203.2018.1550939">as the product of an elite idealism</a>. All of this is at least partially true.</p>
<p>What is wrong with this vision is that it leaves out the role of ordinary people taking to the streets –- the role of protest, of marches, of popular organisation, dissent, discordance, creativity, and struggle –- in making the post-apartheid democratic order.</p>
<p>It presumes that the state is the beginning and the end of the political order; that democracy is only achievable through representation; and it presumes that “the people” are a political resource to be deployed by elite actors (whether these be politicians or intellectuals, revolutionaries or revanchists) and not a source of political ideas in themselves.</p>
<p>But this is not true.</p>
<h2>Making democracy</h2>
<p>While democracy may be encouraged and entrenched through institutions and ideas, it is first made through action. The students who marched on 16 June 1976 did more than simply register a political opinion. </p>
<p>They enacted an alternate form of politics. By gathering and marching together, and by acting together they constituted themselves as political agents – as people who already possessed the kind of agency that the apartheid state denied they could ever claim. And by marching side-by-side – regardless of their age and gender, status and authority – they constituted themselves as a democratic force, as a community of equals.</p>
<p>As I’ve <a href="http://www.julian-brown.net/insurgentcitizens">argued before</a>, this form of politics is not merely a product of the past, not merely a product of the anti-apartheid struggle. Instead, it has marked – and still marks – popular dissent and democratic organising in South Africa since the end of apartheid. </p>
<p>Over the past two decades, such forms of popular democracy have marked the struggles of <a href="http://abahlali.org">Abahlali baseMjondolo</a>, a shack-dwellers movement that organises in informal settlements across South Africa. It has driven the activism of the <a href="https://www.tac.org.za">Treatment Action Campaign</a>, and its grassroots work to force the state to provide anti-retroviral medication. And it has led to labour activists, unions, and other communities achieving significant changes in the <a href="https://witspress.co.za/catalogue/the-spirit-of-marikana/">platinum mining industry</a>.</p>
<p>The roots of democracy lie in these actions, in these claims to agency and equality. These acts are themselves rooted in a complex pattern of joy and anger – in the desire to turn the world upside-down, and emerge out of specific historical and social contexts. But they can transcend these moments. They can open up a channel, create a model, and instigate a revolution.</p>
<p>In other words: if the events of 16 June 1976 are seen as an ongoing part of the process of constituting democracy in South Africa, then we can see it as part of contemporary political struggles – and not just as an historical event, safely sealed away in the past.</p>
<p>The marches, protests, and pickets that mark contemporary South Africa are the source of a continually-renewing (and, perhaps, continually-mutating) democracy. The institutions of the state may shape the ways in which this democracy develops, but they do not create it. “The people” make politics.</p>
<p>At this moment, as South Africa’s political elites continue to be <a href="https://www.dailymaverick.co.za/article/2022-05-29-everyone-but-the-guptas-feels-the-heat-as-sa-ups-the-ante-on-state-capture-prosecutions/">mired in scandal</a>, as <a href="https://www.dailymaverick.co.za/article/2022-06-13-sassa-ramaphosa-say-social-relief-of-distress-payments-will-be-made-within-the-week/">the state bureaucracy struggles to fulfil its functions</a>, and as scholars and activists question <a href="https://journals.co.za/doi/abs/10.1080/02587203.2018.1550939">the legitimacy of the constitutional settlement</a>, the anniversary of the uprising of 16 June 1976 in an opportunity to think about what post-apartheid democracy can mean.</p>
<p>It does not only mean the forms and institutions that define the democratic state. It must also mean the ongoing acts of ordinary people, the acts that assert and imagine democracy on the streets over and again.</p><img src="https://counter.theconversation.com/content/185073/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Julian Brown does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The students who marched on 16 June 1976 did more than simply register a political opinion.Julian Brown, Associate Professor of Political Studies, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1842772022-06-08T13:56:49Z2022-06-08T13:56:49ZSouth Africa is in search of a fairer electoral system. But what’s been tabled is flawed<figure><img src="https://images.theconversation.com/files/466954/original/file-20220603-15-ajvadi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A woman votes in South Africa's November 2021 local elections. </span> <span class="attribution"><span class="source">EFE-EPA/Kim Ludbrook</span></span></figcaption></figure><p>South Africa is amending its electoral law to make it fairer by enabling citizens to contest provincial and national elections without being forced to join political parties. </p>
<p>The follows a 2020 Constitutional Court <a href="http://www.saflii.org/za/cases/ZACC/2020/11.html">judgment</a> that found that excluding citizens from being elected as independent individuals was unconstitutional. The court gave parliament 24 months to amend the <a href="https://www.gov.za/sites/default/files/gcis_document/201409/act73of1998.pdf">1998 Electoral Act</a> accordingly.</p>
<p>South Africa’s <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a> prescribes an electoral system “that results, in general, in proportional representation”. The country has used this system for national and provincial elections since 1994.</p>
<p>But, in 2020, the New Nation Movement, a civil society body, <a href="https://theconversation.com/constitutional-court-ruling-heralds-changes-to-south-africas-electoral-system-140668">challenged the electoral system</a> for unfairly excluding independent candidates. In their view, the act made it impossible for voters to have a direct link to national and provincial representatives who can be directly accountable to them. </p>
<p>A new <a href="https://www.parliament.gov.za/bill/2300397">Electoral Amendment Bill</a> has been tabled before parliament. It allows for two categories of individual candidates: those who run purely as independents as well as those nominated by political parties. </p>
<p>The proposed new system is similar to the country’s local government electoral system. Under this system an equal number of proportional party representatives and individual ward councillors are elected. It is also similar to Lesotho’s <a href="https://www.ajol.info/index.php/ai/article/view/51012">mixed member proportional system</a>. This combines individually elected parliamentarians with proportionally elected party members.</p>
<p>In my view this arrangement would undermine the intention of the court judgement.</p>
<p>Firstly, they won’t meet the requirements of making the electoral system more responsive to local voters because party nominated candidates, who will still be able to run, will have an unfair advantage over independents. And, as the current system clearly shows, candidates who are part of party lists aren’t directly accountable to the electorate.</p>
<h2>Flaws</h2>
<p>There are flaws in the bill related to broader rights as set out in the constitution.</p>
<p>One relates to the right to belong to a political party. </p>
<p>The constitution guarantees every citizen the right to be a member of a party. But clause 31B(3)(f) in the <a href="https://www.parliament.gov.za/bill/2300397">bill</a> determines that one of the requirements for an independent candidate is that they should not have been a member of a political party for at least three months before their nomination date. This seemingly violates section 19(1)(b) of the constitution, which guarantees the right for everyone</p>
<blockquote>
<p>to participate in the activities of … a political party. </p>
</blockquote>
<p>The right to be a member of a party can’t be denied, even temporarily.</p>
<p>The phrasing of this clause in the bill seems to be missing the point. From the public’s point of view, the emphasis is very much on seeking alternatives to candidates who are the products of internal party nomination processes. The minimum requirements for such an independent should, therefore, be that a candidate is not nominated by a party, and their nomination and campaign are not funded by a party. </p>
<p>Membership of a party – or any other organisation – cannot be restricted by legislation.</p>
<p>Another area of concern is what impact independent representatives will have on the proportional representation in the National Assembly and provincial legislatures. </p>
<p>Section 19 of the constitution has to be read together with section 46(1)(d), which states that the electoral system must “result, in general, in proportional representation”. It implies that the overall effect of the electoral system (allocation of seats) has to be proportional in terms of the votes received by all the parties. </p>
<p>The question, therefore, is what the impact of independent representatives on this proportionality is. </p>
<p>The proposed electoral system will meet this constitutional requirement only if the number of independent representatives among the 200 regional seat representatives is as low as possible, and the number of party-nominated individual representatives as high as possible. The table below shows how the level or percentage of proportionality declines in direct correlation to an increase in the number of independents. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/466771/original/file-20220602-14-5fljzj.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/466771/original/file-20220602-14-5fljzj.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=119&fit=crop&dpr=1 600w, https://images.theconversation.com/files/466771/original/file-20220602-14-5fljzj.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=119&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/466771/original/file-20220602-14-5fljzj.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=119&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/466771/original/file-20220602-14-5fljzj.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=149&fit=crop&dpr=1 754w, https://images.theconversation.com/files/466771/original/file-20220602-14-5fljzj.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=149&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/466771/original/file-20220602-14-5fljzj.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=149&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">Dirk Kotze</span></span>
</figcaption>
</figure>
<p>It means that if all 200 regional seat representatives are independents, then the level of proportionality in the National Assembly will only be 50%. </p>
<p>The bill allows for what it calls compensatory seat representatives. These are designed to compensate for the difference that might exist between the number of individual seats a party gets and its proportion of the total votes in the election. </p>
<p>But the concept only has limited use. Only the PR compensatory seats plus each party’s regional seats will contribute to the proportionality of parties. It does not include the independents amongst the regional seats.</p>
<p>This will certainly not meet the minimum constitutional requirement of proportionality. </p>
<p>It is inconceivable that such a constitutional threshold could be lower than 75%, and therefore more than 100 independents. The implication is that allocating 50% of the National Assembly seats to the regional seats category is too high. </p>
<p>There is a solution: The 50/50% allocation should be reconsidered in favour of the proportional representation “compensatory” seats to meet the general PR requirement. </p>
<p>Another flaw in the bill is the system proposed when it comes to provincial lists. As currently set out, this has a built-in bias in favour of party-nominated individual candidates who can rely on their party’s financing and campaign infrastructure. </p>
<p>Here’s why.</p>
<p>The National Assembly is currently made up of 400 members – 200 from national lists and the other 200 from provincial proportional representation lists. The bill proposes replacing current provincial lists with regional seat members.</p>
<p>The implication of this approach is that South Africa will be demarcated into nine huge National Assembly constituencies (which are identical to the provinces). In contrast, most of the proposals made recently to the <a href="https://www.gov.za/speeches/ministerial-advisory-committee-electoral-system-hosts-first-consultative-meeting-24-mar">Ministerial Advisory Panel on the Electoral System</a>, and by the <a href="https://static.pmg.org.za/docs/Van-Zyl-Slabbert-Commission-on-Electoral-Reform-Report-2003.pdf">Van Zyl Slabbert Task Team</a> on electoral reform in 2003, included more constituencies. </p>
<p>Using such large constituencies will make it very difficult for both categories of regional seat candidates to campaign effectively. They’re unlikely to have enough financial and other resources. </p>
<p>There’s another argument to be made against large constituencies – or, as the bill envisages, multi-member constituencies. </p>
<p>The whole idea behind independent candidates is the hope that their inclusion might improve the accountability of parliamentarians to the voters. And make them more accessible to the public.</p>
<p>But large constituencies cannot meet these expectations. If that was indeed possible, then the current provincial legislatures would have done it already. </p>
<p>A second implication of the envisaged multi-member constituencies is that their representatives will come from different parties and some may be independents. If a voter wants to approach a public representative with a problem, to whom will they go? Who’ll take responsibility for that issue and who’ll accountable for it?</p>
<h2>Radical changes, but not enough</h2>
<p>This amendment proposes radical changes in the electoral system, but whether it meets the main expectations of the Constitutional Court, is unlikely. The public will still not gain direct access to public representatives, who can individually be accountable for parliamentary decisions.</p><img src="https://counter.theconversation.com/content/184277/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dirk Kotze does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The whole idea behind independent candidates is the hope that their inclusion might improve the accountability of parliamentarians to the voters. The bill doesn’t do that.Dirk Kotze, Professor in Political Science, University of South AfricaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1793152022-03-15T14:24:18Z2022-03-15T14:24:18ZSouth Africa has a new Chief Justice: an introduction to Raymond Zondo<figure><img src="https://images.theconversation.com/files/452152/original/file-20220315-23-1g5csd2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Raymond Zondo, South Africa's new chief justice.</span> <span class="attribution"><span class="source"> Photo by Phill Magakoe/AFP via Getty Images</span></span></figcaption></figure><p>South African president Cyril Ramaphosa recently <a href="https://www.thepresidency.gov.za/press-statements/president-ramaphosa-appoints-justice-zondo-chief-justice">announced</a> the appointment of Deputy Chief Justice Raymond Zondo as the next chief justice of the country’s Constitutional Court. </p>
<p>Zondo is best known for his role as the head of the judicial commission of inquiry into allegations of rampant corruption, fraud and <a href="https://www.statecapture.org.za/">state capture</a> during former President Jacob Zuma’s tenure (<a href="https://www.thepresidency.gov.za/profiles/president-jacob-zuma-0">May 2009-February 2018</a>. Zuma grudgingly established the commission <a href="https://www.thepresidency.gov.za/press-statements/statement-president-jacob-zuma-establishment-commission-inquiry-state-capture">in January 2018</a>).</p>
<p>The commmission’s work will go down in the annals of history as having defined Zondo’s tenacity as a fearless judicial leader. Presiding over the politically charged inquiry saw him lock horns with the former president, who bizarrely questioned his suitability to <a href="https://theconversation.com/south-african-judge-has-refused-to-step-down-from-corruption-probe-this-was-the-right-call-150484">lead the commission</a> – after he had elected him to the position. </p>
<p>The commission tested Zondo’s mettle. It sat over more than 400 days of hearings, featuring more than 300 witnesses. According to the commission, about 1,438 people and entities were implicated by evidence <a href="https://www.gov.za/sites/default/files/gcis_document/202201/judicial-commission-inquiry-state-capture-reportpart-1.pdf">before the commission</a>. </p>
<p>The outcome, in a <a href="https://www.thepresidency.gov.za/documents">three-part report</a>, made far-reaching recommendations in ridding the country of corruption, and setting up an effective anti-corruption framework. </p>
<p>Also notable is Zondo’s handling of Zuma’s <a href="https://collections.concourt.org.za/handle/20.500.12144/36746">contempt of court case</a> before the Constitutional Court. It resulted in the ruling that let to the imprisonment of the former president. </p>
<p>So, who is Justice Raymond Zondo?</p>
<h2>The early years</h2>
<p><a href="https://www.concourt.org.za/index.php/13-current-judges/72-deputy-chief-justice-ray-zondo">Raymond Mnyamezeli Mlungisi Zondo</a> was born on 4 March 1960 in <a href="https://southafrica.co.za/ixopo.html">Ixopo</a>, a small town on a tributary of the Mkhomazi River in the midlands of KwaZulu-Natal Province. Ixopo is most famous as the setting for the 1995 South African-American film, <a href="https://www.rogerebert.com/reviews/cry-the-beloved-country-1995">Cry the Beloved Country</a>, based on <a href="https://www.britannica.com/topic/Cry-the-Beloved-Country-novel-by-Paton">Alan Paton’s novel</a> of the same name. </p>
<p>The young Zondo’s father worked as a labourer in Johannesburg and his mother was a nurse aid. He is the third of nine children. He and his wife Sithembile Zondo have four children. One of them is a cricketer <a href="https://www.cricbuzz.com/profiles/9724/khaya-zondo">Khayelihle (Khaya) Zondo</a>.</p>
<p>Zondo matriculated (finished high school) at St Mary’s Seminary in Ixopo. He went on to study law at the University of Zululand and today’s University of Kwa-Zulu Natal, earning an LLB. He went on to complete three Master of Law degrees (cum laude) in labour law, commercial law, and patent law at the University of South Africa.</p>
<p>During his training as a lawyer he met with a great loss. His articles of clerkship in Durban under <a href="https://www.sahistory.org.za/people/victoria-nonyamezelo-mxenge">Victoria Mxenge</a>, a human rights lawyers who fought fearlessly against apartheid, had to be ceded after she was assassinated by apartheid government agents in 1985.</p>
<p>He was appointed as a judge to the Labour Court in 1997. He then became a judge in the then Transvaal Provincial Division of the High Court, now the Gauteng High Court (1999). He was elevated to judge president of the Labour Court in 2000. The judge president’s role is to provide leadership to ensure that judges in the division perform their judicial responsibilities diligently and effectively. Zondo saw another upward movement when he joined the Constitutional Court in 2012, later becoming deputy chief justice in 2017.</p>
<h2>Career highlights</h2>
<p>Zondo’s illustrious career is a tapestry of highlights: from a lawyer to one of the senior judges in the South African judiciary. He has written more than 200 judgments. </p>
<p>In 1991 and 1992 he served in two committees of the Commission of Inquiry Regarding the Prevention of Public Violence and Intimidation, <a href="http://globetrotter.berkeley.edu/people/Goldstone/gold-con3.html">chaired by Justice Richard J. Goldstone</a>. Its mandate was to investigate the causes of political violence and intimidation in which some 20,000 people had died in the decade before the release of Nelson Mandela from prison, and the unbanning of the liberation organisations, paving the way for <a href="https://www.sahistory.org.za/article/convention-democratic-south-africa-codesa">negotiations to end aparthied</a>. </p>
<p>Also notable is that he was the first chairperson of the governing body of the <a href="https://nationalgovernment.co.za/units/view/83/commission-for-conciliation-mediation-and-arbitration-ccma#:%7E:text=The%20CCMA%3A%20conciliates%20workplace%20disputes,for%20accreditation%20and%20subsidy%20from">Commission for the Conciliation, Mediation and Arbitration</a>, whose mandate is to resolve labour disputes speedily and cost-effectively.</p>
<p>In 1994, Zondo was appointed as a member of the ministerial task team tasked with producing <a href="https://journals.co.za/doi/pdf/10.10520/AJA0259188X_1535">a draft labour relations bill</a> for post-apartheid South Africa. It culminated in the <a href="https://www.gov.za/documents/labour-relations-act">Labour Relations Act of 1995</a>. </p>
<p>The <a href="https://gcbsa.co.za/jscdocs/comments/zondo.pdf">General Bar Council</a> has credited him with playing a major part in developing South Africa’s employment law into a respected, coherent and fair system of law.</p>
<p>One of Zondo’s significant judgments was in the case <a href="http://www.saflii.org/za/cases/ZALAC/2000/1.html">Modise v Steve’s Spar Blackheath</a>. In this case, the trade union SACCAWU demanded that the store and other Spar stores agree to bargain collectively with the union. The store declined.</p>
<p>The majority of the employees who went on strike in November 1994 were found by the Supreme Court to have embarked on an illegal strike. It granted an interim interdict forbidding the strike. The workers were subsequently dismissed. </p>
<p>They appealed their dismissal to the Labour Appeal Court. Zondo, with acting appeal judge <a href="https://www.concourt.org.za/index.php/judges/current-judges/13-current-judges/71-justice-mogoeng-mogoeng">Mogoeng Mogoeng</a> – ironically Zondo’s predecessor as chief justice – concurring, held that the employer was obliged to afford the strikers a hearing in order to decide whether to dismiss them. Also, that the right to be heard should be done prior to the issuing of an ultimatum to return to work or face dismissal, rather than afterwards.</p>
<p>Zondo set a precedence by finding that the principles of <em>audi alteram partem</em> (“let the other side be heard as well”) applied in labour law, and must be observed even in cases of dismissals in strikes. </p>
<p>Ultimately, this was the confirmation of the right to procedural fairness of unprotected striking workers. </p>
<p>It is clear from his many other judgments that Justice Zondo believes in upholding the rights and values enshrined in the country’s <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a>.</p>
<p>Another example was in <a href="http://www.saflii.org/za/cases/ZACC/2012/16.html">Minister of Home Affairs v Tsebe</a>. Zondo would not allow the government to extradite a murder accused to Botswana without receiving an assurance that the death penalty would not be implemented, as that would have been contrary to South Africa’s abolitionist approach.</p>
<h2>Chief Justice role</h2>
<p>When announcing Zondo’s appointment as chief justice, Ramaphosa <a href="https://www.thepresidency.gov.za/press-statements/president-ramaphosa-appoints-justice-zondo-chief-justice">noted</a>:</p>
<blockquote>
<p>The position of chief justice carries a great responsibility in our democracy. As the head of the judiciary, the chief justice is a guardian of our constitution and the laws adopted by the freely elected representatives of the people. The chief justice stand as the champion of the rights of all South Africans and bears responsibility for ensuring equal access to justice. I have every confidence that Justice Zondo will acquit himself with distinction in this position.</p>
</blockquote>
<p>The statement is a clear indication of the mammoth task awaiting Zondo in his new role. </p>
<p>He is one of the longest serving justices on the Constitutional Court, with the institutional memory required to lead the judiciary. But he comes in with the acknowledgement that there is still a lot of work to be done at the Constitutional Court and the judiciary in general. </p>
<p>His new role will include having to deal with what he identified during his interview for the job to be myriad problems affecting the country’s courts, including the delayed handing down of judgments. During the interview <a href="https://ewn.co.za/2022/02/04/a-chief-justice-should-be-someone-of-integrity-zondo-tells-jsc#:%7E:text=%22I%20think%20that%20a%20Chief,the%20judiciary%2C%22%20Zondo%20explained">he had this to say</a>:</p>
<blockquote>
<p>I think that a chief justice in a country such as ours should be somebody of integrity, who can provide intellectual leadership, who has a demonstrable track record as a judge, somebody who is able to work with people and is able to appreciate the contribution of other leaders of the judiciary.</p>
</blockquote><img src="https://counter.theconversation.com/content/179315/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Omphemetse Sibanda does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Zondo’s career is made up of a tapestry of highlights, from lawyer to senior judge. He has written more than 200 judgments.Omphemetse Sibanda, Executive Dean and Full Professor, University of Limpopo Faculty of Management and Law, University of LimpopoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1787862022-03-09T14:28:02Z2022-03-09T14:28:02ZWhat the Zulu kingship judgment tells us about the future of South African customary law<figure><img src="https://images.theconversation.com/files/450639/original/file-20220308-19-tf7odp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Prince Misuzulu, second from the left, attends the provincial memorial service for his mother, the late Mantfombi Dlamini, at the Khangelakamankegane Royal Palace in Nongoma, in May 2021. </span> <span class="attribution"><span class="source">AFP via Getty Images</span></span></figcaption></figure><p>Following the death of AmaZulu King Goodwill Zwelithini on <a href="https://www.news24.com/news24/southafrica/news/zulu-king-goodwill-zwelithini-has-died-20210312">12 March 2021</a> in South Africa, the royal family convened on 24 March 2021 and <a href="https://www.timeslive.co.za/news/south-africa/2021-03-24-queen-mantfombi-appointed-regent-of-zulu-nation-3-months-of-mourning-declared/">appointed Queen Mantfombi Dlamini Zulu</a> as regent. Although the king’s third wife, she was his great wife – a royal consort who, by Zulu law, births the king’s successor. The king had five other wives. </p>
<p>Before her regency was gazetted by the premier of the KwaZulu-Natal province, as required by <a href="https://www.cogta.gov.za/cgta_2016/wp-content/uploads/2016/06/TLGFA-Traditional-Leadership-and-Governance-Framework-Act-2003-Act-No-41-of-2003.pdf">South African statutory law</a>, the queen <a href="https://www.news24.com/witness/news/just-in-zulu-queen-has-died-20210429">died on 29 April 2021</a>. On 14 May 2021, the royal family unanimously <a href="https://www.bbc.com/news/world-africa-57035157">nominated her firstborn son, Prince Misuzulu</a>, as the successor to the Zulu throne. Later that month, various members of the royal family, notably Queen Sibongile Dlamini, the late king’s first wife, <a href="https://www.sabcnews.com/amazulu-nation-does-not-have-a-king-prince-thokozani-zulu/">challenged</a> his will, and the validity of Prince Misuzulu’s nomination as his successor. </p>
<p>On 2 March 2022, the High Court in Pietermaritzburg <a href="https://www.saflii.org/za/cases/ZAKZPHC/2022/6.html">found</a> that Prince Misuzulu was appropriately identified and nominated as the undisputed successor to the Zulu throne. By dismissing objections to his nomination, the court paved the way for his coronation as the king – if the matter is not successfully appealed. </p>
<p>There are 10,7 million isiZulu speakers in South Africa, about 22% of the population, according to the <a href="https://www.statssa.gov.za/publications/SAStatistics/SAStatistics2012.pdf#page=38">2012 census</a>.</p>
<p>Obviously, this dispute has <a href="https://www.dailymaverick.co.za/article/2022-03-03-the-court-has-spoken-all-hail-king-misuzulu-ka-zwelithini/">political undertones</a>. I will, however, not discuss them. Rather, I focus on the significance of two questions concerning the royal family’s resort to the courts and the subsequent ruling.</p>
<p>Why was this dispute adjudicated with “the white man’s law”, thereby questioning the authority of the AmaZulu Royal Council, whose dispute resolution mechanisms ought to be respected by all Zulus? What is the significance of the ruling for matrimonial property rights under customary law?</p>
<p>Customary law, or indigenous law, is recognised by the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf#page=113">constitution</a> and put on an <a href="https://theconversation.com/south-africas-courts-and-lawmakers-have-failed-the-ideal-of-cultural-diversity-91508">equal footing with common law</a>. This implies that its development ought to be undertaken by its adherents in a bottom-up manner, rather than by the courts. </p>
<h2>An uncomfortable truth</h2>
<p>Firstly, the royal family’s resort to the courts confirms an uncomfortable truth: African customs and traditions are subject to state courts. Importantly, these courts – both procedurally and content-wise – are replicas of the colonial justice system <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3511914">bequeathed by the Dutch and the British</a>.</p>
<p>Lest we forget, although European colonialists allowed Africans to continue observing their indigenous customs, they smartly subjected the validity of these customs to European standards and procedures.</p>
<p>Moreover, colonial schools, churches, and work systems were configured to reflect European culture. So, in essence, African elites, especially judges, are <a href="https://www.academia.edu/62788757/LEGAL_PLURALISM_AND_THE_FUTURE_OF_PERSONAL_FAMILY_LAWS_IN_AFRICA">philosophical clones of Europeans</a> because they carried on from where their colonial masters left off.</p>
<p>Secondly, the High Court ruling recognised that the late king’s first wife married him in community of property. A <a href="https://www.news24.com/truelove/archive/in-or-out-of-community-of-property-20200414">marriage in community of property</a> is one of profit and loss. The property is divided equally in the event of marriage dissolution, unless the parties opted otherwise through a pre-marital agreement.</p>
<p>Specifically, paragraph 28 of the ruling relied on the 2021 Constitutional Court judgment in <a href="https://collections.concourt.org.za/bitstream/handle/20.500.12144/36642/Judgment%20-CCT%2023-20%20Sithole%20and%20Another%20v%20Sithole%20and%20Another.pdf?sequence=20&isAllowed=y">Sithole vs Sithole</a>. This case declared that all marriages of black people under section 22(6) of the colonial era <a href="https://www.gov.za/documents/black-administration-act-5-jul-1927-0000">Black Administration Act of 1927</a> are in community of property. This is irrespective of whether they occurred before the commencement of the <a href="https://www.justice.gov.za/legislation/acts/1984-088.pdf">Matrimonial Property Act</a> of 1984, the <a href="https://www.gov.za/documents/marriage-act-21-apr-1961-0000">Marriage Act</a> of 1961, the <a href="https://www.gov.za/documents/civil-union-act">Civil Union Act</a> of 2006, and the <a href="https://justice.gov.za/legislation/acts/1998-120.pdf">Recognition of Customary Marriages Act</a> of 1998. </p>
<p>But parliament is yet to reflect the Sithole judgment in legislation. This raises an interesting question: when the Constitutional Court declares a law retrospectively invalid, does it constitute enforceable law even before it reflects in legislation? The ruling says yes. Traditional communities may say differently.</p>
<p>The Sithole declaration is radical because indigenous African laws lacked binary notions of equality in <a href="https://www.saflii.org/za/journals/SPECJU/2018/14.pdf">marital property division</a>. Due to the agrarian nature of precolonial societies, income was generated by the family as a group through farming, hunting, and artwork. Individual rights were muted, while group welfare was paramount. </p>
<p>Thus, women’s property rights were confined to items of adornment. In rare cases of divorce, they were reabsorbed into the welfare system of their parents. Thus, their matrimonial property rights were unproblematic. This is no longer the case with urbanisation, independent income, and modern notions of equality.</p>
<h2>Loss of identity</h2>
<p>Finally, the Zulu kingship ruling shows how the courts mould indigenous conduct into the image of state values. A cursory glance at the ruling gives the impression that tradition guides the resolution of succession disputes. This is because the High Court <a href="https://www.saflii.org/za/cases/ZAKZPHC/2022/6.html">acknowledged that</a> </p>
<blockquote>
<p>the Royal Family is the fabric of traditional leadership (and) is responsible for the identification of traditional leaders.</p>
</blockquote>
<p>Accordingly, the Queen Regent’s nomination of Prince Misuzulu was not binding on the royal family. But the court added that the family’s nomination was still subject to approval by the premier or the president. Thus, although the state recognises that a monarch is identified and nominated in terms of customary law, it regulates the process tightly, specifically through section 8(1) and (3) of the <a href="https://www.gov.za/documents/traditional-leadership-and-governance-framework-act">Traditional Leadership and Governance Framework Act</a> of 2003 and section 17(3) of the <a href="https://www.greengazette.co.za/notices/kwazulu-natal-traditional-leadership-and-governance-act-2005-act-no-5-of-2005-setting-a-date-for-the-election-of-traditional-councils-in-kwazulu-natal_20191003-KZN-02125-00136">KwaZulu-Natal Traditional Leadership and Governance Act of 2005</a>. </p>
<p>Informed by South Africa’s <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a>, these laws and others like them infuse European ideas of equality, dignity, and non-discrimination into indigenous African laws. If state laws continue to regulate indigenous conduct and disputes in this manner, indigenous laws will eventually be eradicated.</p>
<p><a href="https://scholar.google.co.za/citations?user=JgVz0yUAAAAJ&hl=en">My research</a> on the interaction of legal orders in Africa uses the theory of <a href="https://www.academia.edu/62788757/LEGAL_PLURALISM_AND_THE_FUTURE_OF_PERSONAL_FAMILY_LAWS_IN_AFRICA">adaptive legal pluralism</a> to explain the status and destination of indigenous laws. This theory regards the interaction of legal orders in sub-Saharan Africa as coercively imitative. </p>
<p>This is because state laws compel indigenous laws to become like them. The judges and the legislators who compel these adaptations in indigenous laws rarely address the dissonance between the communal nature of indigenous norms and the individualistic nature of state laws. Why is this neglect significant?</p>
<p>When judges, legislators, and policymakers like the <a href="https://www.justice.gov.za/salrc/">South African Law Reform Commission</a> neglect the foundational dynamics of indigenous customs, they worsen conflict between indigenous laws and state laws. Judgments such as the Zulu kingship dispute, therefore, show how colonised people lose their cultural identity.</p><img src="https://counter.theconversation.com/content/178786/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony Diala is leading field research on indigenous African values in Limpopo and the Eastern Cape with funding from the National Research Foundation of South Africa. He is a member of the Advisory Committee on Matrimonial Property (Project 100E) of the South African Law Reform Commission.</span></em></p>When judges, legislators, and policymakers neglect the foundational dynamics of indigenous customs, they worsen conflict between indigenous laws and state laws.Anthony Diala, Director, Centre for Legal Integration in Africa, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1740102022-02-22T13:42:25Z2022-02-22T13:42:25ZBurying the past and building the future in post-apartheid South Africa<figure><img src="https://images.theconversation.com/files/443185/original/file-20220128-13-16ara10.jpg?ixlib=rb-1.1.0&rect=429%2C82%2C1615%2C1278&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former South African president Nelson Mandela on his 91st birthday in 2009.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-south-african-president-nelson-mandela-and-other-news-photo/91120942?adppopup=true"> Media24/Gallo Images/Getty Images</a></span></figcaption></figure><p>With the recent deaths in 2021 of South African Anglican Bishop <a href="https://www.nytimes.com/2021/12/26/world/africa/desmond-tutu-dead.html">Desmond Tutu on Dec. 26</a> and <a href="https://www.nytimes.com/2021/11/11/world/africa/fw-de-klerk-dead.html">Frederik Willem (F.W.) de Klerk on Nov. 11</a>, three of the men that laid the foundation to transform South African society are no longer able to see the result of their work – and the growing disillusionment over the lack of progress.</p>
<p>The deaths of Tutu and de Klerk evoked the dark days after <a href="https://thepeninsulaqatar.com/article/08/12/2013/at-least-53-world-leaders-to-attend-mandela-funeral">Nelson Mandela died in 2013</a>, when hundreds of thousands of South Africans traveled from across the country, spending hours and sometimes days <a href="https://www.theguardian.com/world/2013/dec/11/nelson-mandela-lying-in-state-thousands-say-goodbye">in long queues</a> to pay their final respects.</p>
<p>As a 32-year-old, native South African, I once believed that giants like Mandela and Tutu – de Klerk’s role was always questionable – had entrusted us with a new South Africa. <a href="https://www.law.nyu.edu/llmjsd/jsdprogram/jsdcommunity/jsdstudentsandcandidates/AlmaDiamond">As a legal theorist</a>, I now see instead that they left us merely with an invitation to make that dream into reality.</p>
<p>Their lasting legacy is a deep and abiding commitment to the rule of law that belongs to all South Africans equally. I wonder how long that legacy can survive alongside extreme inequality.</p>
<h2>Past Injustices</h2>
<p>Back in the early 1980s, <a href="https://www.foreignaffairs.com/reviews/capsule-review/1985-09-01/us-anti-apartheid-movement-local-activism-global-politics">a grassroots movement</a> took hold throughout the United States. It was part of an international effort, energized by <a href="https://www.latimes.com/archives/la-xpm-1985-04-25-mn-12143-story.html">unrest on college campuses</a>, to end one of the most racist regimes in modern-day history.</p>
<p>Much like the United States, South Africa was shaped by more than three centuries of colonialism, slavery, violent racial conflicts and racial segregation. Started in 1948 and <a href="https://www.britannica.com/topic/apartheid">known as apartheid</a>, the violent system of legal segregation finally ended in the early ‘90s in part because of the <a href="https://doi.org/10.2307/2151931">anti-Apartheid movement</a>in the United States and across the world. The system was brutal, and it was enforced with all the coercive machinery of the state, including government-sanctioned death squads that <a href="https://www.pbs.org/newshour/world/south-africa-frees-notorious-apartheid-era-killer-prime-evil">tortured and killed scores of anti-apartheid activists</a>.</p>
<p>Among those killed was <a href="https://www.britannica.com/biography/Steve-Biko">Stephen Biko</a>. <a href="http://www.worldcat.org/oclc/872549501">The founder</a> of <a href="http://www.worldcat.org/oclc/716396998">the Black Consciousness Movement</a>, Biko was found dead after being tortured while in police custody. His murder in 1977 sparked an international outcry.</p>
<p>The moment of racial reckoning hit its zenith in 1990 when the South African government released Mandela, the leader of the African National Congress, from prison after serving 27 years. <a href="https://www.nelsonmandela.org/content/page/trials-and-prison-chronology">Convicted of acts of sabotage</a> against the South African government, Mandela was punished for his unrelenting efforts to gain full citizenship rights for nonwhite South Africans then ruled over by the white minority.</p>
<figure class="align-center ">
<img alt="A Black man is marching with a crowd of protestors during an anti-apartheid demonstration." src="https://images.theconversation.com/files/443550/original/file-20220131-118117-h9vhm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/443550/original/file-20220131-118117-h9vhm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=388&fit=crop&dpr=1 600w, https://images.theconversation.com/files/443550/original/file-20220131-118117-h9vhm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=388&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/443550/original/file-20220131-118117-h9vhm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=388&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/443550/original/file-20220131-118117-h9vhm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=488&fit=crop&dpr=1 754w, https://images.theconversation.com/files/443550/original/file-20220131-118117-h9vhm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=488&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/443550/original/file-20220131-118117-h9vhm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=488&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In this 1985 photograph, civil rights leader Jesse Jackson marches in an anti-apartheid rally in London.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/democrat-and-civil-rights-campaigner-jesse-jackson-who-news-photo/830863576?adppopup=true">Photo by PA Images via Getty Images</a></span>
</figcaption>
</figure>
<p>But apartheid’s prominent place in racial justice history is not only because of its status as a <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.10_International%20Convention%20on%20the%20Suppression%20and%20Punishment%20of%20the%20Crime%20of%20Apartheid.pdf">crime against humanity</a>, but also how it came to an end. Apartheid wasn’t eliminated after a <a href="https://2001-2009.state.gov/r/pa/ho/time/pcw/98678.htm">widely predicted violent civil war</a>, but rather in a legally negotiated, largely peaceful, constitutional transition. Ultimately, the dismantling of apartheid came by the hands of South Africans.</p>
<p>With the transition came international acclaim and three Nobel Peace Prizes. The first was awarded in 1984 to the Anglican Archbishop of Cape Town, Tutu, “for his role as a <a href="https://www.nobelprize.org/prizes/peace/1984/summary/">unifying leader figure in the non-violent</a> campaign to resolve the problem of apartheid in South Africa.” </p>
<p>The other two went to Mandela and de Klerk, the last president under apartheid, <a href="https://www.nobelprize.org/prizes/peace/1993/summary/">both in 1993, “for their work</a> for the peaceful termination of the apartheid regime, and for laying the foundations for a new democratic South Africa.” </p>
<figure class="align-center ">
<img alt="A Black man and a white man stand in front of a group of other men while answering questions from reporters." src="https://images.theconversation.com/files/443190/original/file-20220128-15-1kufgm6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/443190/original/file-20220128-15-1kufgm6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=404&fit=crop&dpr=1 600w, https://images.theconversation.com/files/443190/original/file-20220128-15-1kufgm6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=404&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/443190/original/file-20220128-15-1kufgm6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=404&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/443190/original/file-20220128-15-1kufgm6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=507&fit=crop&dpr=1 754w, https://images.theconversation.com/files/443190/original/file-20220128-15-1kufgm6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=507&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/443190/original/file-20220128-15-1kufgm6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=507&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Nelson Mandela and South African President F.W. de Klerk give remarks during negotiations in 1990 to end apartheid.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/nelson-mandela-and-president-f-w-de-klerk-make-opening-news-photo/585858540?adppopup=true">Louise Gubb/SABA/Corbis via Getty Images</a></span>
</figcaption>
</figure>
<p>Unlike <a href="https://time.com/6116963/nelson-mandela-fw-de-klerk/">Mandela</a> and <a href="https://guardian.ng/news/world/tutu-de-klerk-historic-but-difficult-for-south-africa/">Tutu</a>, de Klerk remains a divisive figure. Indeed, both Mandela and Tutu were critical of him. During negotiations to end apartheid, <a href="https://books.google.com/books?id=0RN1AQAAQBAJ&pg=PT272&lpg=PT272&dq=we+are+the+liquidators+of+this+firm+de+klerk&source=bl&ots=uF4q5kn7g4&sig=ACfU3U1idtz9luRiNZLabehs6zcaEe9bTA&hl=en&sa=X&ved=2ahUKEwiFg9_xsIL2AhXroHIEHYWAC_MQ6AF6BAgNEAM#v=onepage&q=we%20are%20the%20liquidators%20of%20this%20firm%20de%20klerk&f=false">de Klerk infamously told</a> one of his cabinet members that “We are basically the liquidators of this firm.” It wasn’t until 2020 and while he was on <a href="https://www.youtube.com/watch?v=6dj_rgmKhTo">his death bed</a> that de Klerk unequivocally renounced apartheid – <a href="https://www.theguardian.com/world/2021/nov/11/fw-de-klerk-the-last-president-of-apartheid-south-africa-dies-aged-85">for the first time</a>. </p>
<h2>Reckoning</h2>
<p>Tutu and Mandela recognized the need to deal – explicitly and purposefully – with the injustices of the past. To that end, the transitional South African Constitution included a section of “National Unity and Reconciliation.” The <a href="https://www.gov.za/documents/constitution/constitution-republic-south-africa-1996-1#:%7E:text=The%20Constitution%20of%20the%20Republic%20of%20South%20Africa%2C%201996%2C%20was,the%20provisions%20of%20the%20Constitution.">final constitution</a>, one of the most progressive in the world, explicitly states that South Africans “recognize the injustices of the past” and commit the government to “establish a society based on democratic values, social justice and fundamental human rights.” </p>
<figure class="align-center ">
<img alt="A Black man poses in front of a mirror." src="https://images.theconversation.com/files/443192/original/file-20220128-27-nd1xa7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/443192/original/file-20220128-27-nd1xa7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/443192/original/file-20220128-27-nd1xa7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/443192/original/file-20220128-27-nd1xa7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/443192/original/file-20220128-27-nd1xa7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/443192/original/file-20220128-27-nd1xa7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/443192/original/file-20220128-27-nd1xa7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In this March 2004 photograph, Desmond Tutu, head of the Truth and Reconciliation Commission, talks with reporters.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/desmond-tutu-poses-during-a-photo-call-held-on-march-12-news-photo/51479047?adppopup=true">Photo by Cambridge Jones/Getty Images</a></span>
</figcaption>
</figure>
<p>The South African Truth and Reconciliation Commission, known as the <a href="https://www.justice.gov.za/trc/">TRC</a>, represented a concerted institutional effort at such healing. It was established by <a href="http://www.saflii.org/za/legis/num_act/ponuara1995477/">legislation in 1995</a> to “establish the truth in relation to past events … in order to prevent repetition of such acts in the future.”</p>
<p>Over the course of four years of public hearings, perpetrators came forward and confessed, victims told their stories and reports were made public. </p>
<p>Acknowledging the past has its merits. Legal scholars such as New York University Law Professor <a href="https://comparativejurist.org/2021/03/17/historical-memory-and-transitional-justice/">Peggy Cooper Davis suggests</a> that the United States is in need of a similar process of collectively facing the truth in its own reconciliation about “group-based cruelties.” </p>
<p>But in the end, South African reconciliation was never merely about burying the past, it was about building a future. As South African historian <a href="https://history.princeton.edu/people/jacob-s-t-dlamini">Jacob Dlamini</a> has argued in his book, <a href="https://history.princeton.edu/about/publications/native-nostalgia">“Native Nostalgia”</a>, we remember the past so that we can imagine alternative futures.</p>
<p>That future remains elusive.</p>
<h2>Present inequality</h2>
<p>The wealth gap in South Africa is one of the <a href="https://www.economist.com/middle-east-and-africa/2021/09/23/unpicking-inequality-in-south-africa">highest</a> in the world and remains <a href="https://time.com/6087699/south-africa-wealth-gap-unchanged-since-apartheid/#:%7E:text=South%20Africa%20Wealth%20Gap%20Unchanged%20Since%20Apartheid%2C%20Says%20World%20Inequality%20Lab,-Residential%20housing%20stands&text=%E2%80%9CThere%20is%20no%20evidence%20that,continue%20to%20shape%20wealth%20inequality.%E2%80%9D">largely unchanged</a> since the end of apartheid. </p>
<p>For most Black South Africans, the reality of life remains on the margins of an economy set up to serve a class of privileged few. White <a href="https://www.statista.com/statistics/1129481/unemployment-rate-by-population-group-in-south-africa/">unemployment</a> is around 9%, Black unemployment is 36.5%. Income in the country <a href="https://www.timeslive.co.za/news/south-africa/2019-11-18-whites-earn-three-times-more-than-black-people-stats-sa/">remains</a> “heavily racialized”: White South Africans earn, on average, three times more than Black South Africans. </p>
<figure class="align-center ">
<img alt="A Black man and a white man raise their arms together and hold hands." src="https://images.theconversation.com/files/441849/original/file-20220120-8679-11nz25a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/441849/original/file-20220120-8679-11nz25a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=816&fit=crop&dpr=1 600w, https://images.theconversation.com/files/441849/original/file-20220120-8679-11nz25a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=816&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/441849/original/file-20220120-8679-11nz25a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=816&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/441849/original/file-20220120-8679-11nz25a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1026&fit=crop&dpr=1 754w, https://images.theconversation.com/files/441849/original/file-20220120-8679-11nz25a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1026&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/441849/original/file-20220120-8679-11nz25a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1026&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In this 1994 photograph, newly elected South African President Nelson Mandela holds hands with former president F.W. de Klerk in Cape Town.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/newly-election-south-african-president-nelson-mandela-held-news-photo/1156574985?adppopup=true">Jerry Holt/Star Tribune via Getty Images</a></span>
</figcaption>
</figure>
<h2>An uncertain future</h2>
<p>Widespread student <a href="https://journals.co.za/doi/abs/10.17159/207710.17159/2077-4907/2020/ldd.v24.16">protests in 2015 have been characterized</a> by some as the first sign of a profound disillusionment with the new South Africa. Similar disillusionment was visible in <a href="https://www.washingtonpost.com/world/2021/07/17/south-africa-unrest/">widespread riots</a> in 2021.</p>
<p>It is in this crucial moment of disillusionment that South Africans are left to fend on their own without the leadership of our founding fathers. </p>
<p>They did not, we see now, leave behind a transformed South Africa.</p>
<p>As <a href="https://www.justice.gov.za/trc/report/finalreport/Volume%201.pdf">Tutu said in his foreword</a> to the TRC report in 1998: “The past, it has been said, is another country. The way its stories are told and the way they are heard change as the years go by. The spotlight gyrates, exposing old lies and illuminating new truths.” </p>
<p>He then explained: “The future, too, is another country. And we can do no more than lay at its feet the small wisdoms we have been able to garner out of our present experience.”</p>
<p>Tutu’s lesson to South Africans was that by accounting for the past, we are also becoming accountable to the future. Ultimately, reconciliation lies in the much harder work of committing to a just future – a task that remains unfinished.</p>
<p>[<em>Understand key political developments, each week.</em> <a href="https://memberservices.theconversation.com/newsletters/?nl=politics&source=inline-politics-understand">Subscribe to The Conversation’s politics newsletter</a>.]</p><img src="https://counter.theconversation.com/content/174010/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alma Diamond does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The death of Anglican Archbishop Desmond Tutu in 2021 has triggered renewed frustrations over the elusiveness of a “new” South Africa.Alma Diamond, Candidate, Doctor of Juridical Science, New York UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1766072022-02-07T15:23:06Z2022-02-07T15:23:06ZRamaphosa left with tricky choices as South Africa bungles Chief Justice appointment<figure><img src="https://images.theconversation.com/files/444801/original/file-20220207-21-1vc17to.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President of South Africa's Supreme Court of Appeal Mandisa Maya has been recommended as the country's next Chief Justice.</span> <span class="attribution"><span class="source">Photo by Felix Dlangamandla/Daily Maverick/Gallo Images via Getty Images</span></span></figcaption></figure><p>After a <a href="https://www.timeslive.co.za/multimedia/2022-02-05-watch--shouting-match-between-malema-and-lamola-at-jsc-hearing-as-body-interviews-zondo/">fraught and fractious week of public interviews</a> that shed heat but little light on the four candidates eligible to become the next Chief Justice, South Africa’s <a href="https://nationalgovernment.co.za/units/view/64/judicial-service-commission-jsc">Judicial Service Commission</a> has <a href="https://www.sanews.gov.za/south-africa/jsc-recommends-maya-new-chief-justice">recommended</a> that President Cyril Ramaphosa appoint Mandisa Maya, who is currently the head of the Supreme Court of Appeal.</p>
<p>Legally, the President should ignore the recommendation. But politically, he probably can’t. </p>
<p>He should ignore the recommendation because the <a href="https://www.judiciary.org.za/index.php/judicial-service-commission/about-the-jsc">Judicial Service Commission</a> made a number of very serious procedural mistakes that severely undermine the legitimacy and credibility of the appointment process. The commission is a constitutional body responsible for judicial appointments and accountability. It’s composed of a delicate balance of lawyers and politicians.</p>
<p>But, politically, he can’t ignore the recommendation on two grounds. Firstly, it would delay even further a process that’s been extended due to Ramaphosa opting for a wide-ranging consultation and shortlisting process. Secondly, he’d be refusing to accept a recommendation that would result in the appointment of South Africa’s first ever woman Chief Justice. </p>
<p>Ramaphosa is now caught between a rock and hard place. </p>
<h2>The mistakes that were made</h2>
<p>First of all, the Judicial Service Commission appears to have fundamentally misunderstood its role in the constitutional scheme set out in section 174(3) of the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">Constitution</a>. It behaved as if it had the power to make the appointment: at one point, Julius Malema prefaced a question to one candidate with the words “if we appoint you…”. He should have been corrected immediately. </p>
<p>In the case of most judges, the President appoints “on the advice” of the Judicial Service Commission. But in the case of the judicial leadership, which includes the Chief Justice and Deputy Chief Justice, the President makes an appointment “after consultation” with the Judicial Service Commission, as well as the leaders of the political parties represented in the National Assembly. </p>
<p>Legally, “after consultation” is a relatively low level of consultation. In essence, the President can simply inform the consultee of his intention and then if they offer a view in response, he should consider the view. </p>
<p>But he is under no obligation to heed it. In the case of the appointment of the Chief Justice the President has a lot of leeway to choose his or her preferred individual. </p>
<p>In any case, the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">Constitution</a> is silent on how precisely the consultation should happen. But the practice was established in 2011, with the appointment of <a href="https://www.concourt.org.za/index.php/judges/current-judges/13-current-judges/71-justice-mogoeng-mogoeng">Chief Justice Mogeong Mogoeng</a>, who was the <a href="https://www.bbc.com/news/world-africa-14839406">sole nominee</a> of then President Jacob Zuma, when the commission conducted a testy two day interview of Mogoeng.</p>
<p>This time round the commission was presented with a short list of four candidates by an indecisive President in November last year. It conducted the interviews last week.</p>
<p>But – and this is the second procedural weakness – it did so without any publication or statement about the basis on which it was assessing the candidates. No set of criteria were referred to, because there are none. </p>
<p>This is serious abrogation of responsibility. It is impossible to see how such a body can conduct serious interviews without having a clear view of the qualities that they are looking to assess and test.</p>
<p>It may go some way to explain why the interviews were so <a href="https://www.dailymaverick.co.za/article/2022-02-05-jsc-ends-shocking-week-of-chief-justice-interviews-with-marathon-zondo-grilling/">erratic and inconsistent</a>. Different candidates were asked very different questions, introducing itself, an element of unfairness.</p>
<p>Thirdly, however, the real injustice of the process was the scandalous questions that were put especially to Maya and <a href="https://www.news24.com/news24/southafrica/news/its-an-insult-new-low-for-jsc-as-mlambo-asked-about-sexual-harassment-rumours-in-cj-interview-20220204">Dunstan Mlambo</a> (the Judge President of the Gauteng High Court), and to some extent the current deputy chief justice, Raymond Zondo.</p>
<p>In Maya’s case, she was subjected to a series of thoroughly sexist questions, at least one of which – from <a href="https://www.news24.com/news24/columnists/adriaanbasson/adriaan-basson-dali-mpofu-a-legal-nincompoop-and-scoundrel-20220207">Advocate Dali Mpofu</a> – was an example of sexual harassment in plain sight, while most of the others patronisingly failed to fully test her judicial qualities or, for example, her jurisprudential record or judicial philosophy.</p>
<p>The chair of the Judicial Service Commission – deputy president of the Supreme Court of Appeal, Xola Petse – failed to intervene.</p>
<p>Then, in the case of Mlambo, Mpofu was allowed to get away with an even graver breach of process by putting an entirely unsubstantiated “rumour” of sexual harassment to the candidate.</p>
<p>This offended a cardinal principle of law – fair due process, whereby any implicated person gets prior notice of any allegation against them – as well as the established practice of the Judicial Service Commission to not ambush candidates.</p>
<p>It should also be asked whether, and in what circumstances, it is proper for questions relating to alleged misconduct to be put in the absence of an actual complaint. </p>
<p>Again, Petse failed to step in, as he should have. Mpofu must have known that he was breaching Judicial Service Commission practice. As a senior counsel, he should in any case honour the principle of fair due process.</p>
<p>By failing to do so, his intention was apparently to destroy the prospects of the candidate by weaponising sexual harassment – an absolutely scandalous disregard for due process.</p>
<p>It must not go unchallenged. Mpofu must be held to account and disciplined by the relevant professional standards body, which selected him to sit on the Judicial Service Commission. He is not a fit and proper person to do so.</p>
<h2>Not the first time</h2>
<p>Last year, the Judicial Service Commission was required to repeat an interview process after it bungled a first set of interviews for two vacant positions on the constitutional court. </p>
<p>Now, it – and the country – faces the same possibility. The <a href="https://hsf.org.za/">Helen Suzman Foundation</a>, a think tank, <a href="https://www.citizen.co.za/news/south-africa/3008181/legal-action-mulled-interview-process-chief-justice-post/">is weighing up its litigation options</a>.</p>
<p>The bottom line is that the Judicial Service Commission’s behaviour can no longer be tolerated. It needs to be challenged, and the courts given the opportunity to provide legal and constitutional guidance.</p>
<p>The composition of the commission is well-conceived. It is a careful blend of legal expertise and interest groups on the one side, with elected representatives on the other. This provides an additional layer of legitimacy to the appointment of judges, who in a constitutional democracy hold significant power and authority.</p>
<p>The constitutional design is not the problem, it is the way in which members of the commission are conducting themselves.</p>
<h2>Between a rock and a hard place</h2>
<p>A delay of the appointment is far from ideal.</p>
<p>Inexplicably, the President dawdled in making his nomination for the new Chief Justice. This was despite the fact that it has been known for several years that Mogoeng Mogoeng’s term was coming to an end in October last year.</p>
<p>Ramaphosa could have given careful prior thought to the matter and in, say, July published his nomination. The Judicial Service Commission would have had plenty of time to conduct the public interview process.</p>
<p>Typically, when faced by a difficult or delicate decision Ramaphosa opted for an elaborate and elongated process of long-listing, wider consultation, and then short-listing. This played straight into the hands of those on the Judicial Service Commission who wanted to torpedo the candidates that they consider as either politically favourable to the President – although there is no evidence of any such bias – or to mess with the process so as to delegitimise the appointment, which is precisely what has now transpired.</p>
<p>The egregious failures in process by the Judicial Service Commission have muddied the water, obscured the substantive issues relating to the merits of the respective candidates, and complicated Ramaphosa’s decision-making.</p>
<p>Constitutionally, he should reject the approach taken by the Judicial Service Commission and its recommendation – not because of anything to do with the individual, Judge Maya, but because simply to accept its recommendation would be to acquiesce to the procedural unlawfulness perpetrated.</p>
<p>And, given the procedural flaws, the public cannot be confident of the relative strengths and weaknesses of the different candidates were properly explored. At the very least, the Judicial Service Commission should now publish a report that explains the basis of its reasoning and conclusion. </p>
<p>Yet, for Ramaphosa to appoint one of the other three candidates will create enormous political controversy, not least because his critics will be quick to accuse him of rejecting the one woman candidate and thereby missing the opportunity to appoint the first female Chief Justice in South African history.</p>
<p>A legal challenge may well have merit – substantively, given the grave flaws in process as well the injustices caused to the candidates. But politically, the Judicial Service Commission has put Ramaphosa in a very difficult position and he now faces an even more awkward decision in which he will be damned if he does and damned if he doesn’t.</p><img src="https://counter.theconversation.com/content/176607/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Calland is a founding partner of political risk consultancy, The Paternoster Group, and a member of the advisory council of the Council for the Advancement of the South African Constitution. </span></em></p>The egregious failures in the Judicial Service Commission’s process have muddied the water and complicated the President’s decision-making.Richard Calland, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1753402022-01-26T15:13:47Z2022-01-26T15:13:47ZHuman rights and COVID restrictions: what South Africans are willing to give up<figure><img src="https://images.theconversation.com/files/441951/original/file-20220121-15-583thg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A man gets vaccinated at the recent launch by President Cyril Ramaphosa of a vaccination campaign
in Katlehong, Gauteng Province.</span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p>South Africa’s <a href="https://www.parliament.gov.za/storage/app/media/EducationPubs/how-our-democracy-works.pdf">constitutional democracy</a> guarantees citizens certain basic human rights. But the regulations that attended South Africa’s response to the COVID-19 pandemic severely limited some of those rights. These include the right to freedom of movement and assembly, and the right to work or trade.</p>
<p>President Cyril Ramaphosa declared a <a href="https://www.gov.za/speeches/statement-president-cyril-ramaphosa-measures-combat-covid-19-epidemic-15-mar-2020-0000">State of Disaster</a> in March 2020, and placed the country under lockdown, in a bid to combat the pandemic. The lockdown regulations (or “levels”) changed from time to time, becoming more or less restrictive. These included the controversial “ban” on alcohol and cigarettes during the <a href="https://www.gov.za/documents/disaster-management-act-regulations-address-prevent-and-combat-spread-coronavirus-covid-19">level 5 lockdown</a>, restrictions on leisure and social activities, the closure of schools and universities, restricted attendance of funerals and other gatherings and a curfew.</p>
<p>Because the need for the state to limit freedoms for the common good is likely to recur, it is crucial to understand how supportive the public has been of the suspension of their human rights and freedoms. </p>
<p>To find some answers, we (researchers from the Human Sciences Research Council and the University of Johannesburg) conducted a <a href="https://www.tandfonline.com/doi/abs/10.1080/02587203.2021.2009740">series of surveys</a> between April 2020 and November 2021. The online surveys set out to find out how South Africans viewed the national lockdown, including their willingness to sacrifice some rights in the fight against the virus. </p>
<p>We found that most adults were prepared to sacrifice their rights to ensure the safety and health of all during the pandemic, averaging 74% across all five survey rounds. Cleavages emerged among the public over time, leading to polarisation in attitudes, but the lasting impression is of broad support for rights sacrifice as part of an ethic of care for others.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-human-rights-should-guide-responses-to-the-global-pandemic-147225">Why human rights should guide responses to the global pandemic</a>
</strong>
</em>
</p>
<hr>
<p>These findings matter mainly because pro-sacrifice attitudes affect health protection behaviours. The survey shows that those favouring sacrifice are more inclined to be vaccinated, always wear masks in public, and are less likely to believe that lockdown regulations are too harsh. This is the kind of evidence that policymakers have required, using citizen voices to inform COVID responses. </p>
<h2>The research</h2>
<p>The research collected data from respondents aged 18 and over, using the #datafree <a href="https://moya.app/">Moya Messenger App</a> developed by <a href="https://datafr.ee/">Datafree</a>. </p>
<p>Five rounds of the survey were undertaken with different size samples, amounting to a total 45,418 respondents. The data are weighted to align with Stats SA’s demographic <a href="http://www.statssa.gov.za/publications/P0302/P03022021.pdf">estimates</a> based on age, population group and education. This allows the survey results to be broadly indicative of the attitudes and behaviour of the population. </p>
<p>Round 1 was conducted between 13 April and 11 May 2020 during stringent lockdown restrictions (<a href="https://www.gov.za/documents/disaster-management-act-regulations-address-prevent-and-combat-spread-coronavirus-covid-19">level five</a> and the early stages of <a href="https://www.cogta.gov.za/index.php/2020/04/24/south-africa-to-move-from-level-5-lockdown-to-level-4/">level four</a>). </p>
<p>Rounds 2 to 4 covered the periods of the different waves, during which the restrictions were either eased or tightened. Round 5 was completed between 22 October 2021 and 17 November 2021, during the least strident <a href="https://www.gov.za/covid-19/about/coronavirus-covid-19-alert-level-1">level 1</a>. </p>
<p>In each round, respondents were asked about their agreement with the statement “I am willing to sacrifice some of my human rights if it helps prevent the spread of the coronavirus”. </p>
<h2>Key findings</h2>
<p>We found that the majority of South Africans were willing to sacrifice their rights in support of government efforts to fight the pandemic. </p>
<p>Data from our first round of surveying showed that 78% of people were willing to sacrifice some human rights if it helped reduce the spread of COVID-19 (Figure 1). As the country moved to lower lockdown levels, a decline in support occurred, falling to 72% over the July to September 2020 survey round.</p>
<p>However, following the beginning of the <a href="https://sacoronavirus.co.za/2020/12/09/sa-enters-covid-19-second-wave/">third COVID-19 wave</a>, support returned to 78% in the third survey wave (December 2020 - January 2021). Similar willingness to sacrifice rights (75%) was observed during Round 4 (June - July 2021), coinciding with the emergence of the Delta variant and the move to higher alert levels.</p>
<p>In the latest survey round (October - November 2021), conducted after the third wave and during the least severe lockdown <a href="https://www.gov.za/covid-19/about/coronavirus-covid-19-alert-level-1">level 1</a>, support for sacrificing rights was the lowest since the pandemic began at 64%.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/441941/original/file-20220121-23-443mhp.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/441941/original/file-20220121-23-443mhp.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/441941/original/file-20220121-23-443mhp.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=368&fit=crop&dpr=1 600w, https://images.theconversation.com/files/441941/original/file-20220121-23-443mhp.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=368&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/441941/original/file-20220121-23-443mhp.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=368&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/441941/original/file-20220121-23-443mhp.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=463&fit=crop&dpr=1 754w, https://images.theconversation.com/files/441941/original/file-20220121-23-443mhp.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=463&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/441941/original/file-20220121-23-443mhp.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=463&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>Beginning in Round 2, respondents were provided with a list of six freedoms they might be willing to forgo to stop the spread of the pandemic. Our results suggest that individuals differed on which human rights they would sacrifice (Figure 2). </p>
<p>In Round 2, 57% said that they would surrender their right to religious assembly, with a similar share (54%) willing to allow restrictions on their freedom to travel. 41% were willing to suspend the right to attend school and 33% the right to protest. About a quarter (27%) were willing to forgo their right to work, while 19% felt that their right to privacy could be limited. </p>
<p>It was only in Round 5 in late 2021 that we witnessed a decline in the willingness to sacrifice the rights to religious assembly and freedom to travel, by about 10 percentage points. Support for sacrificing the other rights scarcely changed. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/441942/original/file-20220121-25-150impl.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/441942/original/file-20220121-25-150impl.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/441942/original/file-20220121-25-150impl.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=329&fit=crop&dpr=1 600w, https://images.theconversation.com/files/441942/original/file-20220121-25-150impl.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=329&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/441942/original/file-20220121-25-150impl.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=329&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/441942/original/file-20220121-25-150impl.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=414&fit=crop&dpr=1 754w, https://images.theconversation.com/files/441942/original/file-20220121-25-150impl.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=414&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/441942/original/file-20220121-25-150impl.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=414&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>A hierarchy of preferences, and a significant class divide was evident.</p>
<p>The largest declines in willingness to sacrifice rights were most evident among white adults, suburbanites, and those with tertiary education. </p>
<p>Better-off and better-educated people were more likely to sacrifice their freedom to gather for worship, travel and protest than their poorer counterparts. This speaks to differences in opinion on the nature and meaning of rights. Individual liberties appear to be most important to the wealthy. The poor tend to see rights within the context of social solidarity and the greater good. </p>
<p>Despite these societal differences, the message is one of social solidarity and willingness to accept short-term limitations of rights for the good of society.</p>
<p>Our research shows that political trust, and specifically confidence in President Ramaphosa, was one of the most important factors behind support for the restrictions.</p>
<h2>Conclusion and recommendations</h2>
<p>There can be a dark side to the otherwise positive findings of our study. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/head-of-unaids-unpacks-the-knock-on-effects-of-covid-19-and-what-needs-to-be-done-168909">Head of UNAIDS unpacks the knock-on effects of COVID-19. And what needs to be done</a>
</strong>
</em>
</p>
<hr>
<p>Such public health emergencies place immense power in the hands of executive leadership. Thus, there is a risk of leaders using them as an <a href="https://theconversation.com/covid-19-could-nudge-minds-and-societies-towards-authoritarianism-168540">excuse for despotism</a>. Thus, we make three policy recommendations to address the risks:</p>
<p>First, if the government wants people to trust it and comply with regulations, it must clearly communicate why they are necessary and allow participation in decision-making; to debate views on the laws and regulations that govern their lives.</p>
<p>Second, restrictive regulations must be evidence-based. They must also be temporary, subject to review and not discriminate unfairly, in keeping with <a href="https://www.icj.org/wp-content/uploads/1984/07/Siracusa-principles-ICCPR-legal-submission-1985-eng.pdf">United Nations principles</a> on limiting rights. Blanket bans – such as that on tobacco – lead to lack of trust in leadership.</p>
<p>Third, civil society must actively keep an independent watch on what government does. It’s important to use accountability mechanisms such as <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng-09.pdf">Chapter 9 institutions</a>, which defend the constitution, and strong, independent courts.</p><img src="https://counter.theconversation.com/content/175340/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Narnia Bohler-Muller receives funding from various sources for projects conducted by the Human Sciences Research Council. </span></em></p><p class="fine-print"><em><span>Benjamin Roberts receives funding from various government and non-governmental sources to conduct the annual round of the South African Social Attitudes Survey (SASAS). </span></em></p><p class="fine-print"><em><span>Steven Gordon has received funding from the University of Witwatersrand. He is a Research Associate at the University of Johannesburg and a Senior Research Specialist at the Human Sciences Research Council. </span></em></p><p class="fine-print"><em><span>Yul Derek Davids is a Research Director at the HSRC and receives funding from various government departments funding institutions for research at the HSRC.</span></em></p>Most adults were prepared to sacrifice their rights to ensure the safety and health of all during the pandemic, averaging 74%.Narnia Bohler-Muller, Divisional Executive, Developmental, Capable and Ethical State research division, Human Sciences Research CouncilBenjamin Roberts, Acting Strategic Lead: Developmental, Capable and Ethical State (DCES) research division, and Coordinator of the South African Social Attitudes Survey (SASAS), Human Sciences Research CouncilSteven Gordon, Senior Research Specialist., Human Sciences Research CouncilYul Derek Davids, Research Director, Development Capable and Ethical State, Human Sciences Research CouncilLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1701172021-10-19T12:54:58Z2021-10-19T12:54:58ZCritical role lies ahead for South Africa’s new chief justice in light of predecessor’s mixed legacy<figure><img src="https://images.theconversation.com/files/426995/original/file-20211018-57123-676l1c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former South African Chief Justice Mogoeng Mogoeng.</span> <span class="attribution"><span class="source">GovernmentZA/Flickr</span></span></figcaption></figure><p>Most African constitutions of the past 30 years, led by an independent Namibia <a href="https://www.sahistory.org.za/dated-event/namibia-gains-independence">in 1990 </a> and strongly endorsed by South Africa <a href="https://www.tandfonline.com/doi/abs/10.1080/04597239308460952?journalCode=tssu20">in 1994</a>, have authorised the apex court to determine the limits of “government under law”. This is naturally consistent with both the <a href="https://worldjusticeproject.org/about-us/overview/what-rule-law">rule of law</a> and the <a href="http://www.saflii.org/za/journals/DEREBUS/2014/118.pdf">separation of powers doctrine</a>.</p>
<p>However, the inevitable tensions created with the legislature and executive have to be wisely navigated. And outbursts of politicians’ polemics, mostly unjustified, have been common.</p>
<p>This raises the question: is this push back beginning to have an effect?</p>
<p>The extent of the fightback by the executive is most commonly seen in attempts to influence judicial appointments. And there is none more so than appointments to the office of Chief Justice. This is where there is appropriately some measure of discretion given to the head of state.</p>
<p>South Africa finds itself at a critical juncture. <a href="https://www.concourt.org.za/index.php/judges/current-judges/13-current-judges/71-justice-mogoeng-mogoeng">Chief Justice Mogoeng Mogoeng</a>’s 10-year term has just ended. President Cyril Ramaphosa has belatedly initiated the <a href="http://www.thepresidency.gov.za/press-statements/president-ramaphosa-invites-public-participation-selection-chief-justice">search for his successor</a>. </p>
<p>Ultimately, the decision is for the President to make. As a <a href="http://www.thepresidency.gov.za/profiles/president-cyril-ramaphosa%3A-profile">qualified lawyer</a>, Ramaphosa will know how important the appointment is, particularly as the courts face an unprecedented level of animosity from those who seek to rule by abuse of power and corrupt practice. And because the criminal justice system is tottering due to ineffective policing, a hollowed-out prosecuting authority, and a climate of impunity in many quarters. </p>
<h2>Highs and lows</h2>
<p>The tenure of Chief Justice Mogoeng was good in parts. </p>
<p>His appointment initially <a href="https://www.bbc.com/news/world-africa-14839406">generated great controversy</a>, given his relative inexperience as a judge and leader, and because President Jacob Zuma selected him. His <a href="https://www.youtube.com/watch?v=R1nu9VK2FHY">interview by the Judicial Service Commission</a> made matters worse, confirming fears that he would not be up to the task. </p>
<p>The sceptics were initially proved wrong. The Constitutional Court justices seemed to close ranks in support of him. The jurisprudence emanating from what was then a strong bench appeared to be holding true to the patterns established by the courts led by his predecessors, Chief Justices <a href="https://www.concourt.org.za/index.php/judges/former-judges/11-former-judges/60-justice-arthur-chaskalson-1931-2012">Arthur Chaskalson</a>,<a href="https://www.concourt.org.za/index.php/judges/former-judges/11-former-judges/62-former-chief-justice-pius-langa-1938-2013"> Pius Langa</a> and <a href="https://www.concourt.org.za/index.php/judges/former-judges/11-former-judges/66-chief-justice-sandile-ngcobo">Sandile Ngcobo</a>.</p>
<p>Some disquiet was, however, expressed about the wayward behaviour of the Judicial Service Commission in 2011-2014, when the interviews for judicial appointments became a forum for party politics. There was also disquiet about the imperious managerial style in which Mogoeng ran the Office of the Chief Justice, and his enthusiastic embrace of the trappings of office.</p>
<p>However, the unanimous decision in the <a href="http://www.saflii.org/za/cases/ZACC/2016/11.html">Nkandla case</a> in early 2016, holding President Zuma to account for unauthorised expenditure on his private homestead, tended justifiably to mask many doubts that may have been in place. </p>
<p>It was certainly the jurisprudential high point of Chief Justice Mogoeng’s tenure. This was especially important given the rampant pace at which <a href="https://www.litnet.co.za/reader-impression-lawfare-judging-politics-in-south-africa-by-michelle-le-roux-and-dennis-davis/">‘lawfare’</a> – the frequent resort to the courts to settle political disputes – developed in the last few years of Zuma’s presidency. This placed great pressure on the judiciary. </p>
<p>The Chief Justice’s <a href="https://theconversation.com/are-judges-in-south-africa-under-threat-or-do-they-complain-too-much-45459">2015 request</a> to meet with the President, senior judges and ministers to address the executive’s (and the governing ANC leaders’) public attacks on the courts was a timely intervention.</p>
<p>Regrettably, the last few years of Mogoeng’s tenure have been marked by much less positive features. These have influenced attitudes about his whole term. The following aspects detract from his performance:</p>
<ul>
<li><p>His ill-tempered dissent in the Economic Freedom Fighters’ case at the end of 2017, when he publicly accused the overwhelming majority of his colleagues of embarking on <a href="http://www.saflii.org/za/cases/ZACC/2017/47.pdf">“a textbook case of judicial overreach”</a>;</p></li>
<li><p>His increasing <a href="https://mg.co.za/news/2018-11-16-00-mogoeng-absent-for-more-than-half-of-concourt-judgments/">absence from the Bench</a> on grounds of having to attend to his many other functions as Chief Justice;</p></li>
<li><p>His failure to move swiftly to fill vacancies on the Constitutional Court. The court now has five vacancies out of eleven;</p></li>
<li><p>His serious failure of leadership as chair of the Judicial Service Commission. He failed to maintain an even-handed level of respect and decorum among its members, leading to an improper level of questioning during the <a href="https://www.news24.com/citypress/news/constitutional-court-interviews-to-be-rerun-after-successful-casac-challenge-20210812">appointments-interview process</a></p></li>
<li><p>The appalling inability of the Judicial Service Commission to ensure a firm commitment to judicial accountability. This is exemplified by serial evasiveness by those allegedly guilty of misconduct; and</p></li>
<li><p>His <a href="https://www.heraldlive.co.za/news/politics/2021-03-14-chief-justice-mogoeng-to-appeal-against-jcc-ruling-that-he-should-apologise-for-pro-israel-comments/">pronouncements</a> on the Israel-Palestine conflict and on the <a href="https://www.enca.com/news/chief-justice-mogoeng-prays-against-vaccines-devil">necessity of COVID-19 vaccinations</a>. He attempted to evade responsibility for both by pleading religious freedom. </p></li>
</ul>
<p>Few would deny his oft-stated right to subscribe to a faith. Nevertheless he seemed oblivious to the devastating public impact of his actions, which cannot be divorced from the high office which he holds. </p>
<p>Indeed, these incidents would cause many to wonder at the rationality of his legal judgments.</p>
<p>Justice Mogoeng’s legacy will ultimately be assessed with the benefit of the passage of time. For now, his successor faces great challenges to reestablish respect for the office of Chief Justice. </p>
<h2>Choosing a new chief justice</h2>
<p>The <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a> (section 174(3)) authorises the president to appoint a Chief Justice, after consulting the judicial commission and the leaders of all political parties in the National Assembly. This means he must consult in good faith, but is not bound by the advice given.</p>
<p>Ramaphosa <a href="http://www.thepresidency.gov.za/press-statements/inaugural-meeting-panel-appointment-chief-justice">set up a panel</a>, chaired by a former Judge, to facilitate public participation in his final decision. The panel is mandated to produce a shortlist of between three and five candidates. The president will choose as many as he sees fit for interview by the commission (probably not more than two).</p>
<p>While this is laudable, in terms of openness and participation, the process yielded a <a href="http://www.thepresidency.gov.za/press-statements/panel-names-8-nominees-position-chief-justice">long list of eight</a>, who formally qualified with the basic criteria for judicial appointment. Four are patently not qualified to be Chief Justice, and owe their nominations to broader political posturing. The remaining four would have been on the short list of almost every knowledgeable observer. </p>
<p>The panel’s terms of reference specify that it will assess the candidates against the following criteria: </p>
<ul>
<li><p>fitness and propriety to hold the office of Chief Justice; </p></li>
<li><p>age and citizenship; </p></li>
<li><p>suitability for appointment, including unblemished integrity, moral leadership, defence of the constitution and its transformative character, independence of spirit, strong work ethic, and so on;</p></li>
<li><p>judicial competence; and </p></li>
<li><p>sensitivity and objectivity towards vulnerable groups. </p></li>
</ul>
<p>The formulation of these criteria must be applauded, particularly in the light of the systemic failure of the Judicial Service Commission clearly to outline the criteria it uses for judicial appointment.</p>
<h2>Looking to the future</h2>
<p>A strong, courageous and dedicated Chief Justice will provide the leadership desperately needed to turn the administration of justice around. The appointment of anyone who does not have those qualities in abundance is likely further to erode the rule of law as a fundamental cornerstone of South African democracy. </p>
<p>Given the regional balance of power, the negative impact on the southern African community will be palpable.</p><img src="https://counter.theconversation.com/content/170117/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Corder has previously received funding from the National Research Foundation.. He serves on the executive committee of the Council for the Advancement of the South African Constitution and on the board of Freedom under Law. </span></em></p>A strong, courageous and dedicated Chief Justice will provide the leadership desperately needed to turn the administration of justice around.Hugh Corder, Professor Emeritus of Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.