tag:theconversation.com,2011:/global/topics/public-protector-19659/articlesPublic Protector – The Conversation2023-09-14T18:02:01Ztag:theconversation.com,2011:article/2135862023-09-14T18:02:01Z2023-09-14T18:02:01ZSouth Africa’s court system has been abused by powerful people: five ways to stop it<p>After a battle of about four years to secure the removal of South Africa’s public protector, Advocate Busisiwe Mkhwebane, the country’s parliament finally delivered the coup de grace in early September. Parliamentarians voted <a href="https://www.parliament.gov.za/committee-section-194-enquiry">to impeach her</a> just a month before her term was due to end. President Cyril Ramaphosa subsequently <a href="https://www.thepresidency.gov.za/press-statements/president-ramaphosa-removes-advocate-mkhwebane-office">removed her from office</a>. </p>
<p>Some of the public protector’s troubles landed up <a href="http://www.saflii.org/za/cases/ZACC/2023/25media.pdf">in court</a>, with numerous <a href="http://www.saflii.org/za/cases/ZACC/2019/29.html">judgments</a> going against her.</p>
<p>But why did it take so long? And what lessons can be learnt from the drawn-out process that sapped resources (financial and other) and left a key institution, the <a href="https://www.pprotect.org/">Office of the Public Protector</a>, unable to thoroughly exercise its duties as a constitutionally established institution to protect democracy? The office has the power to investigate, report on and remedy improper conduct in all state affairs. </p>
<p>The reason it took so long is that Mkhwebane used a strategy that’s referred to as the <a href="https://definitions.uslegal.com/s/stalingrad-defense/">Stalingrad defence</a>. This involves wearing down the plaintiff by tenaciously fighting anything by whatever means possible and appealing every judgment made. The approach is named after the city in the then Soviet Union which was besieged by the Germans in the second world war. The Soviet forces held off the Germans for five months. Although this was achieved at great human cost, it bought Moscow time.</p>
<p>The public protector isn’t the first to have turned to this tactic to ward off the legal – or other – consequences of their actions. The other high profile example in South Africa is the former president Jacob Zuma’s <a href="https://www.dailymaverick.co.za/article/2023-06-10-zumas-stalingrad-defence-disintegrates-after-judges-quash-latest-legal-gambit-in-scathing-judgment/">19-year battle</a> to avoid a case being heard around allegations of bribery.</p>
<p>How can this strategy of <a href="https://bregmans.co.za/2022/03/25/dealing-with-a-vexatious-litigant/#:%7E:text=In%20such%20circumstances%2C%20the%20Vexatious,legal%20proceedings%20against%20another%20person.">vexatious litigation</a> be allowed to continue unabated? Who should be held accountable for this waste of money, resources and time? It is not only, in these instances, the former president and former public protector who are to blame. They were aided and abetted in their abuse of the law by contentious lawyers, over-cautious parliamentarians and judges lacking courage.</p>
<p>A public outcry ensued when a member of parliament claimed that the costs of all the hopeless or useless legal challenges by the advocate to prevent her removal amounted to R160 million (almost US$8.5 million) in total. How can things be allowed to escalate to this extent? </p>
<p>Drawing on my almost three decades of legal experience, I have identified five possible ways to reduce the chances of rich and powerful people abusing the court system and wasting precious resources.</p>
<h2>The players</h2>
<p>Former Constitutional Court Justice Edwin Cameron recently <a href="https://www.capetalk.co.za/articles/422425/justice-edwin-cameron-on-zuma-and-art-of-the-stalingrad-defence-tactic">identified</a> four parties who are to blame: unscrupulous clients and lawyers, the professional association now called the <a href="https://lpc.org.za/">Legal Practice Council</a>, and lastly judges themselves.</p>
<p>I agree that each of these groups has something to answer for. </p>
<p><strong>Unscrupulous clients:</strong> Powerful politicians show no concern about dipping into the public coffers to pay for the legal games they play. While the constitution protects the right to be defended in section 34, the principle and value of equality under and before the law is as important. But I would argue that those who have the backing of the state have a massive advantage over ordinary citizens.</p>
<p><strong>Unscrupulous lawyers:</strong> There have been numerous instances of lawyers using delaying tactics and flouting court procedures. </p>
<p><strong>The <a href="https://lpc.org.za/">Legal Practice Council</a>:</strong> Judge Cameron <a href="https://www.capetalk.co.za/articles/422425/justice-edwin-cameron-on-zuma-and-art-of-the-stalingrad-defence-tactic.">stated </a> that</p>
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<p>it has displayed lax oversight and is not asking for explanations as to why lawyers are adopting these delaying practices.</p>
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<p>No high profile action has been taken against lawyers who facilitate vexatious litigation.</p>
<p><strong>The judges:</strong> This is probably the most contentious claim. Yet there have been instances when a judge has appeared to be blind to the fact that <a href="https://www.politicsweb.co.za/opinion/when-judges-dont-understand-the-stalingrad-defence">certain tactics were being used cynically</a>. </p>
<p>In my view this could be because <a href="https://mg.co.za/politics/2021-02-17-malema-shores-up-zumas-attack-on-the-judiciary/">unprecedented attacks</a> on the judiciary in recent years are paying off. They are leading to over-cautious and overly deferent judgments that err on the side of the other branches of government in what is a clear misunderstanding of the principle of separation of powers.</p>
<h2>What needs to be done</h2>
<p>While protecting the rights of the litigants, it’s also necessary to rein in the abuse. </p>
<p>This can be done in several ways.</p>
<p>Firstly, the <a href="https://www.justice.gov.za/branches/stateattorney.html">State Attorney</a> should determine guidelines for what is – or is not – permissible and what the state will – and will not – fund. </p>
<p>Secondly, as part of these guidelines the State Attorney may refuse to fund any legal costs in a matter where the court has awarded costs against the public official who is litigating. Such a ruling by a court follows when the court has determined that the litigation was so obviously without sound basis in fact or in law that it must be characterised as “abuse of court process” and or even “vexatious”. </p>
<p>A cost order by a court generally requires the offending litigant to pay a relatively minor percentage of the costs. A more forceful measure would be for the State Attorney to refuse to pay all or part of the balance of the cost order where the offending litigant is a public official and has been found to have abused the court and its processes.</p>
<p>Thirdly, punitive cost orders could be used by the courts to make litigants feel the financial burden of their misuse of the legal system. If a court wants to show its displeasure about a defendant’s conduct during a trial, it may order the defendant to pay attorney and client costs, which are punitive. </p>
<p>Fourthly, measures could be taken to protect journalists and human rights defenders against <a href="https://www.schindlers.co.za/news/a-south-african-perspective-on-slapp-suits/">SLAPP</a> cases. SLAPP suits (strategic litigation against public participation) are used by wealthy litigants and their legal teams to financially and emotionally exhaust opponents, regardless of the merits of their cause. In July, the European Parliament <a href="https://www.europarl.europa.eu/news/en/press-room/20230904IPR04620/media-freedom-act-protecting-editorial-decisions-from-political-interference">adopted</a> a range of measures to protect journalists and human rights defenders against such cases.</p>
<p>Fifth, there’s the possibility of imposing personal cost orders against legal representatives to <a href="https://www.derebus.org.za/liability-for-refunds-of-legal-fees-disbursements-or-personal-costs-orders/">penalise their errant behaviour</a>. </p>
<p>Courts have awarded these orders for gross negligence or intentional misconduct on the part of legal practitioners including abuse of process and the dilatory and obstructive conduct of legal practitioners. Examples of intentional conduct that have been sanctioned includes conduct that results in an abuse of process, litigating recklessly, <a href="https://www.news24.com/news24/southafrica/news/just-in-court-finds-mpofu-sought-to-mislead-it-in-ramaphosa-private-prosecution-litigation-20230912">misleading the court</a>, dilatory tactics, pursuing a hopeless case, and frivolous and vexatious litigation.</p>
<p>Liability for punitive cost orders against vexatious litigants or costs out of legal practitioners’ pockets would surely make them think twice before using Stalingrad strategies and malicious SLAPP suits.</p>
<p><em><a href="https://www.linkedin.com/in/gary-pienaar-10275549/?originalSubdomain=za">Advocate Gary Pienaar</a>, senior research manager in the Developmental, Capable and Ethical State research division at the HSRC, contributed to this article.</em></p><img src="https://counter.theconversation.com/content/213586/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Narnia Bohler-Muller receives funding from government and independent funders for her research projects at the Human Sciences Research Council.
She was shortlisted for the position of Public Protector in the year that Adv Busi Mkhwebane was appointed.</span></em></p>Awarding punitive costs against legal practitioners would make them think twice about facilitating delaying tactics and malicious lawsuits.Narnia Bohler-Muller, Divisional Executive, Developmental, Capable and Ethical State research division, Human Sciences Research CouncilLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2092622023-07-16T09:58:13Z2023-07-16T09:58:13ZSouth Africa’s public protector has a vital watchdog role. Researcher offers tips on how the selection process can be improved<figure><img src="https://images.theconversation.com/files/536831/original/file-20230711-23-s0daqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Public protector Busisiwe Mkhwebane at her impeachment hearing in Cape Town.
</span> <span class="attribution"><span class="source"> Lombard/Gallo Images via Getty Images</span></span></figcaption></figure><p>The end of apartheid in South Africa in 1994 made it necessary to establish several institutions to underpin the country’s new constitutional democracy.</p>
<p>The office of the public protector was one of them. It was established in 1995 to exercise oversight over governmental power. The constitution grants the public protector autonomy to <a href="https://www.oxford.co.za/book/9780195991376-south-african-constitutional-law-in-context">investigate</a> improper government conduct and maladministration. The aim is to enhance government accountability and responsibility, thus safeguarding the public interest. </p>
<p>The term of the third incumbent, Busisiwe Mkhwebane, who was appointed in 2016, has been mired in <a href="https://theconversation.com/a-public-protectors-job-is-to-make-sure-people-stick-to-the-law-not-to-change-it-79931">controversy</a>. She has faced serious criticism and calls for her removal amid allegations of <a href="https://www.dailymaverick.co.za/article/2019-07-23-now-that-the-concourt-has-found-the-public-protector-both-dishonest-and-incompetent-will-parliament-axe-her/">dishonesty and incompetence</a>. She was suspended on 9 June 2022 and is the subject of an <a href="https://pmg.org.za/committee-meeting/36572/">impeachment inquiry</a>. </p>
<p>It’s not the first time the office has been caught up in controversy. Lawrence Mushwana, the second public protector (2002-2009), was <a href="https://www.corruptionwatch.org.za/sas-public-protectors-the-legacies-part-two/">perceived</a> by some as biased towards the governing African National Congress. This raised doubts in some quarters about the institution’s independence and impartiality.</p>
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Read more:
<a href="https://theconversation.com/storm-around-south-africas-public-protector-shows-robustness-not-a-crisis-120902">Storm around South Africa's public protector shows robustness, not a crisis</a>
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<p>The controversies and their impacts show how important it is to make the right appointment to the position. </p>
<p>I have been teaching and <a href="https://journals.co.za/doi/abs/10.10520/EJC-1a7adf489e">conducting research</a> in organisational psychology and theory for the past decade. My diverse research interests in the areas of professional employee recruitment and selection have provided me with valuable insights into best practices.</p>
<p>In a joint <a href="https://sajhrm.co.za/index.php/sajhrm/article/view/1207">2021 study</a> we examined the recruitment and selection process of South Africa’s <a href="https://www.pprotect.org/">public protector</a>. In our view the <a href="https://www.parliament.gov.za/press-releases/media-statement-committee-nominate-next-public-protector-calls-nominations-or-applications">process</a> is deeply flawed. It needs an overhaul to ensure it is transparent, professional and free from political bias. </p>
<p>In particular, enlisting the expertise of professionals would make the recruitment and selection process more robust, transparent and fair. </p>
<p>Our analysis highlights the need for a comprehensive approach to the process. It must involve multiple stakeholders and expertise from fields such as law, human resources, and work or organisational psychology.</p>
<p>Fixing the flaws will improve competence and public trust in the public protector’s office.</p>
<h2>The public protector</h2>
<p>The public protector is one of six institutions created by <a href="https://openbooks.uct.ac.za/uct/catalog/download/25/32/1275?inline=1">Chapter 9</a> of the South African constitution. The office investigates improper conduct in state affairs and public administration.</p>
<p>It is <a href="https://constitutionallawofsouthafrica.co.za/wp-content/uploads/2018/10/Chap24A.pdf">entrusted</a> with monitoring state officials and agencies to promote an effective, ethical and accountable public service. The office plays a vital “<a href="https://constitutionallawofsouthafrica.co.za/wp-content/uploads/2018/10/Chap24A.pdf">government watchdog</a>” role in safeguarding the public interest.</p>
<p>Given the public protector’s crucial role in combating corruption and maladministration, the selection of a <a href="https://pmg.org.za/committee-meeting/22629/">“fit and proper”</a> candidate is paramount. Making the <a href="https://journals.co.za/doi/full/10.4102/sajhrm.v19i0.1207">right appointment is key</a> for the institution’s effectiveness and integrity.</p>
<h2>Flaws in the recruitment process</h2>
<p>The constitution <a href="https://journals.co.za/doi/pdf/10.4102/sajhrm.v19i0.1207">outlines</a> the appointment procedures for and functions of the public protector. But it lacks specific guidelines for the recruitment and selection of a suitable candidate. This raises concerns about the fairness of the process and potential political influence. </p>
<p>The <a href="https://journals.co.za/doi/pdf/10.4102/sajhrm.v19i0.1207">Public Protector Act, 1994</a> also outlines the requirements for appointment. But it too does not provide a clear definition of what constitutes a “fit and proper” person for the role. It lists qualifications such as legal expertise, administrative knowledge and cumulative experience of 10 years in the administration of justice, public administration or public finance.</p>
<p>It doesn’t explain why it emphasises 10 years of experience, or why these specific criteria are important. </p>
<p>The act does not promote transparency in the appointment process. Instead of following a professional recruitment and selection approach, it leaves this to a committee of the national assembly. The committee consists of representatives of various political parties. </p>
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Read more:
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<p>Filling the committee with politicians compromises the professional ethics of recruitment and selection. The committee lacks qualifications in human resources or recruitment. It has no training on the process. Yet, it recommends a candidate to be appointed by the president.</p>
<p>The committee has no clear guidelines or criteria for choosing a fit and proper person for the position. It relies on interviews and personal judgments, leaving room for bias and subjective decision making. The committee does not provide its rationale for the qualities considered during the shortlisting of candidates. </p>
<h2>What needs to happen</h2>
<p>Clear guidelines, competencies and expert input should be established so that a qualified and suitable candidate is appointed for this important role.</p>
<p>The recruitment process should adhere to best practices in human resources. It should use scientific methods to assess candidates’ knowledge, skills and abilities. </p>
<p>Human resources experts can provide insights and expertise in developing the selection criteria, based on job analysis and competency frameworks. They can help develop standardised methods of assessment, including competency-based behavioural assessments. These can be used to evaluate candidates’ qualifications, integrity, reliability, diligence and other required characteristics.</p>
<p>Work or organisational psychology experts would use structured interviews, comprehensive reference checks, and blind or anonymous assessments.</p>
<h2>Effectiveness and integrity</h2>
<p>The recruitment and selection process for a new public protector <a href="https://www.parliament.gov.za/press-releases/media-statement-committee-nominate-next-public-protector-calls-nominations-or-applications">started in May</a>. The current incumbent’s term expires in October. The public protector is appointed for a non-renewable seven-year term. </p>
<p>The appointment directly affects the country’s governance and accountability of public officials. </p>
<p>Selection of unsuitable candidates compromises the effectiveness and integrity of the office. </p>
<p>Our research highlights the urgency of addressing these procedural issues so that the public protector can fulfil its role of protecting the public interest, promoting transparency and upholding democratic principles.</p><img src="https://counter.theconversation.com/content/209262/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sandiso Bazana 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>Past controversies and their impacts show how important it is to make the right appointment to the position.Sandiso Bazana, PhD Candidate/Research & Teaching Assistant, Grenoble Ecole de Management/Lecturer in Organisational Psychology, Rhodes UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1839922022-06-15T13:22:06Z2022-06-15T13:22:06ZWhistleblowers in South Africa have some protection but gaps need fixing<figure><img src="https://images.theconversation.com/files/467717/original/file-20220608-219-zp6ve6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Anti-corruption protests are a regular feature in South Africa.</span> <span class="attribution"><span class="source">EFE-EPA/Kim Ludbrook</span></span></figcaption></figure><p>Every person in South Africa has the right to a functioning local government that can provide basic services such as clean water, electricity and sanitation. But corruption has left much of this sphere of government <a href="https://www.tandfonline.com/doi/pdf/10.1080/23792949.2018.1440971?casa_token=IQ_lNJBVOFAAAAAA:YAFk045JUgy0_dzukdk5M8waCivyzIr5iB5gsufD0SOYUdhgOf3NZylEzUgz3w53BvmoTzPhyTQ">unable to fulfil its role</a>.</p>
<p>The watchdog organisation <a href="https://www.corruptionwatch.org.za/">Corruption Watch</a>, which is the South African chapter of <a href="https://www.transparency.org/">Transparency International</a>, received 5,094 reports of corruption in local government <a href="https://www.corruptionwatch.org.za/wp-content/uploads/2021/08/CW-local-govt-sectoral-report-">from 2012 to 2020</a>.</p>
<p>Most of the disclosures were by whistleblowers in the offices of the municipal managers and the police departments. Whistleblowers are people who report actions that are illegal, fraudulent, criminal, or corrupt – often within their own organisations. They often find their lives at risk and irrevocably changed as a result. They sometimes lose their jobs or even get killed. </p>
<p>Moss Phakoe, a councillor in the <a href="https://bojanala.gov.za/">Bojanala Platinum District Municipality</a> in North West province, <a href="https://www.sowetanlive.co.za/news/2012-07-18-phakoe-killers-get-20-years-life/">was shot in 2009</a> after exposing corruption by councillors and officials.</p>
<p>Babita Deokaran, a key witness in the investigation of an allegedly corrupt <a href="https://www.dailymaverick.co.za/opinionista/2018-08-27-the-price-of-speaking-out-as-a-whistle-blower-%20in-south-africa-is-high-just-ask-moss-phakoes-family/">multi-million rand tender</a> in Gauteng province, was <a href="https://www.dailymaverick.co.za/article/2022-02-24-alleged-killers-of-whistle-blower-babita-deokaran-to-remain-behind-bars-until-mid-april-proceedings/">shot dead in August 2021</a>.</p>
<p>I recently concluded a <a href="https://repository.nwu.ac.za/bitstream/handle/10394/38862/Wright_JS.pdf?sequence=1&isAllowed=y">doctoral thesis</a> in which I critically explored, from the perspective of the law, how corruption in local government can be prevented. </p>
<p>A subsection of my thesis examined legal protections for whistleblowers in the country, and how they might be improved. This part of the study was limited to analysis of legal literature as well as international and national laws and policies.</p>
<p>The <a href="https://repository.nwu.ac.za/bitstream/handle/10394/38862/Wright_JS.pdf?sequence=1&isAllowed=y">findings</a> show that South Africa’s whistleblower protection regime is too restrictive. It protects certain disclosures only, leaving many whistleblowers unprotected.</p>
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Read more:
<a href="https://theconversation.com/whistleblowers-are-key-to-fighting-corruption-in-south-africa-it-shouldnt-be-at-their-peril-168134">Whistleblowers are key to fighting corruption in South Africa. It shouldn't be at their peril</a>
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<p>I also found that witness protection is only used in exceptional circumstances, leaving many whistleblowers exposed to danger. The research further showed that the country could benefit from amending certain pieces of legislation to improve protection. That might encourage more people to report public sector corruption, which <a href="https://theconversation.com/state-capture-in-south-africa-how-the-rot-set-in-and-how-the-project-was-rumbled-176481">is rampant</a>.</p>
<h2>Weighing whistleblower protection</h2>
<p>My <a href="https://repository.nwu.ac.za/handle/10394/38862">research</a> shows that whistleblower protection in South African law and policy has two main components. The first relates to witnesses in criminal offences. </p>
<p>South African <a href="https://www.researchgate.net/publication/292689589_The_Protected_Disclosures_Act_26_of_2000_the_Companies_Act_71_of_2008_and_the_Competition_Act_89_of_1998_with_regard_to_whistle-blowing_protection_Is_there_a_link">law</a> and policy boasts a good deal of protection for witnesses and the integrity of evidence relating to corruption as a statutory offence. Statutory corruption is the offering of or promising of benefit to a person, and receiving or accepting such a benefit to act in a manner which may be illegal, dishonest, unauthorised or biased. Such actions may also amount to the abuse of a position of authority, breach of trust or the violation of a legal duty, or a set of rules.</p>
<p>This excludes unilateral abuses of power, favouritism, diversion of public funds, and favours done for the benefit of an institution, rather than for personal gain. For example, a human resources officer may appoint an employee (regardless of the person’s ability to do the job) upon the instruction of his or her political leader to improve the political party’s influence in a municipality.</p>
<p>Witnesses to corruption are offered protection under the <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a112-98.pdf">Witness Protection Act of 1998</a>. This <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a112-98.pdf">includes</a> relocation, changing the witness’s identity and other related assistance. But this protection is limited to people who are to give evidence in court.</p>
<p>No protection is given to <a href="https://repository.nwu.ac.za/handle/10394/38862">their family</a>. Neither is any protection offered to those who report corruption that does not fall under the ambit of statutory corruption. Examples include favouritism and the diversion of public funds or resources. Nor is protection offered to those who report corruption but will not be witnesses in criminal proceedings. </p>
<p>The second part of whistleblower protection falls under the <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a26-000.pdf">Protected Disclosures Act of 2000</a>. It protects certain disclosures made by employees against their employers. A protected disclosure is any information which may show that a crime was committed. The act only affords protection for disclosures which relate to statutory corruption. </p>
<p>This protection extends to public officials who make a disclosure against political office bearers. The main objective for protected disclosures is to protect employees from being victimised for reporting corruption. </p>
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Read more:
<a href="https://theconversation.com/whistleblowers-and-tax-evasion-what-south-africa-needs-to-add-to-its-toolbox-178055">Whistleblowers and tax evasion: what South Africa needs to add to its toolbox</a>
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<p>Protection under the Protected Disclosures Act is afforded through remedies for any occupational detriment suffered as a result of such a disclosure. This may involve compensation, or other remedial action. </p>
<p>The application of the <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a26-000.pdf">Protected Disclosures Act</a> is limited to occupational detriment and employment relationships. It excludes commercial relationships such as parties to a procurement agreement. This is a serious flaw, given the <a href="https://theconversation.com/south-africas-state-capture-commission-nears-its-end-after-four-years-was-it-worth-it-182898">extent of procurement corruption</a> in the country.</p>
<p>Furthermore, these disclosures are only protected if made to the <a href="http://www.pprotect.org/">Public Protector</a> or the <a href="https://www.agsa.co.za/">Auditor General</a>. Other competent bodies that can investigate and prosecute corruption, such as the police or the <a href="https://www.npa.gov.za/">National Prosecuting Authority</a>, are excluded. </p>
<p>Both parts of witness protection focus on the physical safety of whistleblowers or protecting their current employment conditions. No provision is made for future job security, or financial, emotional, legal or other support for whistleblowers and their families.</p>
<h2>Suggestions for reform</h2>
<p>My <a href="https://repository.nwu.ac.za/handle/10394/38862">research</a> revealed that whistleblower protection must be improved to encourage people to report corruption. Parliament should amend the definition of protected disclosures to include those made by people who are not in an employment relationship with an accused. That would include protection for parties to a commercial relationship, such as a procurement contract or tender award.</p>
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<a href="https://theconversation.com/muckracking-journalists-who-shaped-southern-africa-over-three-centuries-106792">Muckracking journalists who shaped southern Africa over three centuries</a>
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<p>Witness protection must also be extended to include people who could potentially be in danger because they witnessed corruption as well as their families and close associates. This would encourage even more people to expose corruption. </p>
<p>Doing so would give anti-corruption authorities such as the <a href="https://www.npa.gov.za/">National Prosecuting Authority</a> and the <a href="http://www.pprotect.org/">Public Protector</a> greater access to the evidence needed to combat corruption.</p>
<p>South Africa could also benefit from having a dedicated institution to oversee whistleblower protection. Such an institution should further provide support services, such as legal representation and advice, to current and potential whistleblowers.</p>
<p>It should also provide psychological and social support services for whistleblowers and their connections. This will help ensure that witnesses are able to participate in the entire investigation and prosecution of corruption.</p><img src="https://counter.theconversation.com/content/183992/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Johandri Wright receives funding from the National Research Foundation of South Africa (Grant number 115581), the NWU and the Faculty of Law. All errors and viewpoints are the authors' own. The author is affiliated with the North-West University, Faculty of Law and is a Postdoctoral Fellow at the NRF SARChI Chair in Cities, Law and Environmental Sustainability.</span></em></p>South Africa could benefit from having a dedicated institution to oversee whistleblower protection.Johandri Wright, Postdoctoral Fellow, North-West UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1668392021-08-30T15:31:01Z2021-08-30T15:31:01ZSouth Africa is due to get a new chief justice: what it takes to do the job well<figure><img src="https://images.theconversation.com/files/418046/original/file-20210826-6126-rxn9as.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Chief Justice Mogoeng Mogoeng presiding at South Africa's Constitutional Court in 2017.</span> <span class="attribution"><span class="source">Gulshan Khan/AFP via Getty Images</span></span></figcaption></figure><p>South Africa’s Constitutional Court has been a beacon of light during a decade-long period of political uncertainty and turmoil. </p>
<p>Most recently, the highest court in the land handed down an eloquent, as well as ground-breaking, <a href="https://www.news24.com/news24/columnists/guestcolumn/full-judgement-why-jacob-zuma-is-going-to-prison-for-15-months-20210629">judgment</a> in defence of the rule of law and the constitutional order. The June ruling imposed a custodial sentence on former president Jacob Zuma for contempt of court, citing his refusal to heed the court’s order to appear before the Zondo Commission of inquiry into state capture.</p>
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Read more:
<a href="https://theconversation.com/historic-moment-as-constitutional-court-finds-zuma-guilty-and-sentences-him-to-jail-163612">Historic moment as Constitutional Court finds Zuma guilty and sentences him to jail</a>
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<p>There could be no clearer or stronger sign of the independence of the judiciary than Justice Sisi Khampepe’s judgment, written on behalf of the majority of the court.</p>
<p>Nevertheless question marks hang over the court due to some serious governance failures. Errors that were recently made in a judgment that resulted in the final order <a href="https://twitter.com/franstaar/status/1430254409439752195/photo/1">having to be amended</a> suggest that all is not as it should be in South Africa’s highest court. </p>
<p>The court’s response to the <a href="https://mg.co.za/news/2021-07-03-concourt-to-hear-zumas-rescission-application-on-12-july/">rescission application by Zuma</a> after he was found in contempt of court has raised eyebrows. A rescission request – in effect a request to amend or revoke a ruling – is essentially only appropriate for the correction of obvious errors in law or fact in the judgment. But instead of dealing with the matter swiftly and decisively, the court has created further uncertainty by asking for submissions on the international law position. This is curious because the international law dimension was not argued in the proceedings by any of the parties. </p>
<p>This encouraged other litigants, <a href="https://www.news24.com/news24/southafrica/news/mkhwebane-asks-concourt-for-rescission-not-as-an-attempted-appeal-but-to-correct-an-error-20210726">such as the public protector</a>, to make equally frivolous rescission applications. These are frivolous, and possibly vexatious, because they not only have almost no prospect of success but because they veer close to being an abuse of court process. They are attempts to achieve an appeal via the back door. </p>
<p>The strength of the rule of law depends on certainty. The prospect of endless rounds of rescission applications would undermine this pillar of justice. </p>
<p>A second area of governance failures revolves around poor management. The court is short on numbers. <a href="https://www.concourt.org.za/index.php/judges/current-judges/13-current-judges/71-justice-mogoeng-mogoeng">Chief Justice Mogoeng Mogoeng</a>, whose 10-year tenure officially ends in October, is on terminal leave and to all intents and purposes vacated the position. The deputy chief justice, Raymond Zondo, is the acting chief justice. But he has been focused on completing the work of the <a href="https://www.statecapture.org.za/">Commission of Inquiry into State Capture</a> that he chairs.</p>
<p>There were already two unfilled vacancies on the 11-person apex court and now two other judges – Justices Khampepe and Chris Jafta, in addition to Mogoeng – are also on long leave ahead of their imminent retirement.</p>
<p>Recent hearings have been held with only six permanent members of the court sitting – a highly unsatisfactory situation. Since the constitution permits a quorum of eight, acting appointments have been made to make up the number.</p>
<p>This has been a regular feature of Mogoeng’s time as chief justice. Vacancies have not been filled quickly, and absences through sabbatical and other forms of long leave have not been sequenced wisely, so the court has often had as many as four acting judges.</p>
<p>These developments reflect poorly on the chief justice and point to the very important managerial function wrapped into the position.</p>
<p>This raises the question: who should be the next chief justice and what qualities and attributes should be expected of the head of the judicial branch of government?</p>
<h2>The process</h2>
<p>Judicial appointments are made in most cases on the advice of the <a href="https://www.judiciary.org.za/index.php/judicial-service-commission/about-the-jsc">Judicial Service Commission</a>. But the chief justice chairs the commission and so has authority to ensure that it recruits and makes judicial appointments swiftly. </p>
<p>Moreover, the last hearings of the commission in April were contaminated by some <a href="https://www.news24.com/news24/southafrica/news/mogoeng-and-malema-row-as-hlophe-keeps-quiet-inside-the-interviews-for-the-wc-high-court-bench-20210424">unruly and unlawful conduct</a>, that was – in at least one case – aided and abetted by Chief Justice Mogoeng himself. Rather than fight litigation challenging the <a href="https://www.timeslive.co.za/news/south-africa/2021-06-03-jsc-commissioners-failed-dismally-during-concourt-interviews-casac-says-in-high-court-papers">process</a>, the Judicial Service Commission simply <a href="https://www.news24.com/news24/southafrica/news/concourt-nominees-to-be-re-interviewed-by-the-jsc-20210812">folded</a>. Fresh interviews will be conducted in October. </p>
<p>There is now debate about whether the Judicial Service Commission’s institutional design is the problem, or whether it is shortcomings of individuals who sit as commissioners.</p>
<p>Identifying the right nominee to be the next chief justice will not be easy. Not only does the person have to head the constitutional court, the person also leads the whole of the judicial branch of government. It is a very onerous role.</p>
<p>The role of the commission in the process of appointing the chief justice is very important. Yet the constitution is somewhat vague as to what is expected of the committee. It simply provides that the president makes the appointment “after consulting” the commissioners as well as the leaders of political parties represented in parliament.</p>
<p>This is a relatively thin form of consultation obligation. </p>
<p>However, as the account of former deputy chief justice Dikgang Moseneke, which appears in his excellent judicial memoir <a href="https://www.panmacmillan.co.za/authors/dikgang-moseneke/all-rise/9781770106666">All Rise</a> reveals:</p>
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<p>The JSC … convened for purpose of inquiry into the fitness of the chief justice nominate to assume office. </p>
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<p>And, as he adds, in 2011, Mogoeng’s interview commanded “high public interest” and lasted the best part of two days, both of which were televised.</p>
<p>So the Judicial Service Commission has, in fact, carved out an important role for itself. Although, in the end the president can choose to ignore whatever transpires at the interview. </p>
<p>In Mogoeng’s case, for example, the public interview exposed the weaknesses in his approach to adjudication, his lack of managerial and leadership experience (having come from the smallest high court division in the land), as well as confirming fears that his Christian faith would trump any commitment to <a href="https://constitutionallyspeaking.co.za/the-difficult-choices-facing-chief-justice-mogoeng/">constitutional values</a>.</p>
<p>Zuma, then president, appointed him anyway.</p>
<p>In the event, Mogoeng provided strong leadership during a very testing time for the judiciary, manifested most obviously when he put his name on the seminal Nkandla judgment which found that both parliament and Zuma had <a href="http://www.saflii.org/za/cases/ZACC/2016/11.html">transgressed the constitution</a>.</p>
<h2>So who next?</h2>
<p>Former deputy chief justice Moseneke was overlooked three times as chief justice. In my view South Africa was deprived of a great jurist and very fine human being. And Zuma’s decisions to overlook him were motivated by bad faith and political considerations linked to Moseneke’s perceived denigration of the outcome of the ANC conference that saw Zuma ascend to the presidency. </p>
<p>That does not mean that ordinarily the deputy chief justice should be treated as being in pole position to assume the top job.</p>
<p>So, when President Cyril Ramaphosa considers who should be the next chief justice, he should indeed be looking for someone with Moseneke’s grace and composure, independence of mind and leadership skills, but not necessarily his jurisprudential accomplishment.</p>
<p>The chief justice is one of 11 justices. He or she needs to be able to command the respect of the other 10 members of the court – something that Mogoeng struggled with both initially, and at other times later in his tenure, as Moseneke records in All Rise.</p>
<p>But Moseneke also describes how resolute and steely a chief justice must be prepared to be in South Africa’s tough political backyard. The courts were attacked during Zuma’s time in office, and continue to be undermined by his supporters now that he is out of office. </p>
<p>Above all, the chief justice needs to have a single-minded and unflinching commitment to constitutional democracy and constitutional values, including social justice. This should be the starting point for an earnest public debate about the qualities and attributes of Mogoeng’s successor.</p><img src="https://counter.theconversation.com/content/166839/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 Chief Justice needs to have a single-minded and unyielding commitment to constitutional democracy and constitutional values, including social justice.Richard Calland, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1644542021-07-16T13:26:54Z2021-07-16T13:26:54ZSouth Africa’s Constitutional Court: the case for judicial dissent, and the caveats<figure><img src="https://images.theconversation.com/files/411423/original/file-20210715-13-adbwny.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's Constitutional Court in session in 2018.</span> <span class="attribution"><span class="source">Alaister Russell/Sowetan/Gallo Images/Getty Images</span></span></figcaption></figure><p>When constitutional democracy is under strain, how should we view disagreement among judges in a court of (supposed) last resort?</p>
<p>Two weeks ago, South Africa’s Constitutional Court handed down judgment in two cases with <a href="https://www.news24.com/news24/southafrica/news/zuma-to-jail-ramaphosa-vindicated-two-significant-judgments-ancs-nec-will-debate-this-weekend-20210702">high political stakes</a>.</p>
<p>First, it was Acting Deputy Chief Justice Khampepe who <a href="https://www.youtube.com/watch?v=v84VZM5M-88">read</a> <a href="http://www.saflii.org/za/cases/ZACC/2021/18.html">the court’s reasons</a> for its punitive order sentencing former president Jacob Zuma to 15 months’ imprisonment. This was for contempt of <a href="http://www.saflii.org/za/cases/ZACC/2021/2.html">its earlier order</a> directing him to comply with the summonses and directives issued by the Zondo Commission.</p>
<p>Then, two days later, Justice Jafta <a href="https://www.youtube.com/watch?v=XHk17Oe5V0g&t=1s">delivered</a> the court’s <a href="http://www.saflii.org/za/cases/ZACC/2021/19.html">withering critique</a> of Public Protector Busisiwe Mkhwebane’s disregard for both the facts and the law in her findings and remedial action against President Cyril Ramaphosa in relation to campaign donations.</p>
<p>The outcome of each case is of undeniable political consequence. They add to a string of legal losses that has landed the former president <a href="https://www.news24.com/news24/columnists/guestcolumn/songezo-zibi-how-zuma-ended-up-in-prison-and-why-no-one-can-be-allowed-to-disobey-the-law-20210712">in prison</a> and the incumbent public protector <a href="https://www.dailymaverick.co.za/article/2021-07-01-another-public-protectors-report-bites-the-dust-and-its-all-clear-for-an-impeachment-inquiry/">perilously close to impeachment</a>. </p>
<p>Taken together, the judgments shift the <a href="https://www.dailymaverick.co.za/article/2021-07-08-jacob-zumas-fate-is-but-a-symptom-of-a-deep-dramatic-power-shift-within-the-anc/">fault lines of power</a> in South Africa’s fragile democracy.</p>
<p>But the court was split in both decisions.</p>
<p>While the court was unanimous in finding Zuma in contempt of its orders, a partial dissent written by Justice Theron (with Justice Jafta concurring) parted ways with the majority on the question of sanction. And in the campaign donations case, Chief Justice Mogoeng found himself alone in finding merit in the public protector’s appeal.</p>
<p>These minority judgments are now being used to shore up support for spurious challenges to the finality of the court’s judgments. Zuma has <a href="https://collections.concourt.org.za/handle/20.500.12144/36786?show=full">applied</a> to the court for the rescission of its “erroneous” and “unconstitutional” judgment. And Mkhwebane has <a href="https://www.sowetanlive.co.za/news/south-africa/2021-07-04-concourt-got-it-wrong-says-public-protector-as-she-considers-asking-apex-court-to-rescind-cr17-judgment/">indicated</a> that she may follow suit with a rescission application of her own.</p>
<p>This calls into question the status of minority judgments in a court of last resort. The court’s answer to Zuma’s rescission application will influence the future practice of judicial dissent. But it will also have profound implications for the court’s authority and the rule of law in South Africa.</p>
<h2>Wielding dissents to undermine judicial authority</h2>
<p>Zuma has long <a href="https://mg.co.za/article/2012-02-17-no-sunset-clause-for-constitution/">questioned</a> the logic of dissents. He did so most memorably in an interview with The Star in February 2012:</p>
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<p>How could you say that judgment is absolutely correct when the judges themselves have different views about it? … There are dissenting judgments. You will find that the dissenting one has more logic than the one that enjoyed the majority. What do you do in that case?</p>
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<p>On this occasion, Zuma is using a minority judgment to mount a more fundamental challenge to the authority of the court’s ruling against him.</p>
<p>His rescission application claims that the key sting of the minority judgment was</p>
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<p>the unprecedented announcement that the Constitutional Court had acted unconstitutionally and therefore irrationally or has exceeded its judicial authority and mandate (para 95). </p>
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<p>This does not merely characterise the minority as having <em>disagreed</em> with the majority. It portrays the minority as having <em>pronounced</em> on the constitutionality of the majority judgment itself.</p>
<p>This is a legal sleight of hand. </p>
<p>Dissent often arises from disagreement between the judges about what the constitution requires in a particular case. But only the argument that garners majority support authoritatively answers that question. This simple but incontrovertible fact means that even the judges in the minority – notwithstanding their disagreement – would now have to recognise that the contempt case against Zuma was authoritatively and finally settled by the majority judgment.</p>
<p>But, in keeping with his strategy of <a href="https://www.dailymaverick.co.za/article/2021-04-15-in-response-to-mogoeng-zuma-returns-to-claims-of-concourt-judicial-bias-possibly-orchestrating-his-own-demise/">litigating by letters</a>, Zuma’s distortion of the court’s decision appears aimed at influencing the court of public opinion.</p>
<p>As the guardian of the constitution, the court’s legitimacy depends on public confidence that its rulings vindicate the constitution. By contending that the majority judgment is “unconstitutional”, Zuma casts the court as a threat to the constitution and, by implication, to his human rights as a “victim” of the court’s deviance.</p>
<p>This is why the rescission application constitutes a continuing – and indeed more radical – assault on the court’s authority and the rule of law. And here’s the rub: Zuma portrays the dissent as having split the court in an internecine power struggle that renders the authority and finality of <em>all its judgments</em> open to contestation.</p>
<h2>Questioning the value of dissenting judgments</h2>
<p>Should South Africans lament the fact that the court did not speak with one voice when sanctioning Zuma for his contempt of court?</p>
<p>A unanimous judgment can be a <a href="http://www.saflii.org/za/cases/ZACC/2002/15.html">powerful way</a> to deliver justice in politically divisive cases. But there are reasons to value dissent even when – and perhaps especially when – one agrees with the majority judgment.</p>
<p>Dissent is a vital sign that judicial independence is alive – and kicking.</p>
<p>A split judgment bears out the existence of disagreement that is only possible where there is independent-mindedness on the bench. </p>
<p>It could be argued, in fact, that applying the law “<a href="https://www.justice.gov.za/legislation/constitution/chp08.html">impartially and without fear, favour or prejudice</a>” requires that judges be allowed to dissent. This is not to diminish the value of judicial deliberation aimed at reaching consensus. Rather it is to make the point that forcing consensus would ignore the inextricable link between a judge’s freedom to dissent and their duty to apply the law impartially as a member of an independent judiciary.</p>
<p>The publication of dissenting judgments also makes judges answerable for their decisions.</p>
<p>The Constitutional Court, like other apex courts around the world, settles disagreement between judges through <a href="https://www.yalelawjournal.org/essay/five-to-four-why-do-bare-majorities-rule-on-courts">majority decision-making</a>. This is not simply a hand-raising exercise. Rather, judicial deliberation is a reason-giving practice. Judges are not only <em>entitled</em> – as an exercise of judicial independence – to voice their own opinion. They are also <em>obliged</em> to do so and to support their view with reasons.</p>
<p>The transparency of the court’s reasoned disagreement does not undermine its authority. On the contrary, dissent forces engagement with opposing views and, by inviting refutation, shows why one argument commanded the majority. </p>
<h2>Dissent as a counterpoint to political rhetoric</h2>
<p>But does all this hold true in troubled times, when majority decisions are denounced as “<a href="https://www.dailymaverick.co.za/article/2021-07-01-zuma-draws-from-the-patriarchs-playbook-as-he-insults-judge-sisi-khampepe/?utm_source=top_reads_widget">angry and emotional</a>” and dissents are distorted for political gain?</p>
<p>My answer is yes. Transparent and reasoned disagreement is the best antidote to the kind of noxious discourse that seeks to undermine public confidence in the court.</p>
<p>Nevertheless there is a caveat. Robust judicial debate should be welcomed. But any points of disagreement should be spelled out through reasoned argument that does not jeopardise collegiality or public confidence in the judiciary.</p>
<p>The court has, <a href="https://www.timeslive.co.za/news/south-africa/2017-12-30-how-mogoengs-fellow-judges-disagreed-with-him/">for the most part</a>, been beyond reproach on these scores. But the need for judicial discipline is heightened in politically divisive cases where the court’s own words may be used against it by a litigant on the losing side.</p>
<p>And this is the sting in the tail of this defence of dissents.</p>
<h2>Sting in the tail</h2>
<p>In the Zuma contempt case, the minority advanced strong reasoning but regrettably also resorted to rhetoric that provided a foothold for discrediting the court. Most troubling is the accusation that the majority created law that is “not just bad; it is unconstitutional” (para 191). Unsurprisingly, the minority’s valuable insights have been overshadowed by selective soundbites more likely to trend on Twitter than persuade in legal argument.</p>
<p>In the campaign donations case, Chief Justice Mogoeng invoked the <a href="https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-s02.pdf">judicial oath</a> in support of his sympathetic stance towards the public protector. But in doing so, he fed a <a href="https://www.timeslive.co.za/sunday-times/opinion-and-analysis/2021-07-04-justices-side-with-the-facts-not-the-faction/">political narrative</a> that judges are biased along factional lines – the very discourse he enjoined the majority to eschew.</p>
<p>Notwithstanding these slips in judicial voice, the court should offer no apology for its split judgments.</p>
<p>This is what hangs in the balance in Zuma’s rescission application: Will the court affirm both the value of the dissent and the finality of the majority decision? Or will the judges stubbornly rehash the debate that previously divided them and so fall prey to the attack on the court’s authority?</p>
<p>Somewhat paradoxically, if the virtues of dissent are to be vindicated, the court must now affirm in <em>unanimous</em> voice that it has settled the law – and settled it finally.</p><img src="https://counter.theconversation.com/content/164454/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Helen Taylor clerked at the Constitutional Court of South Africa and previously worked as a legal researcher at the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector, Including Organs of State.</span></em></p>South Africa’s Constitutional Court should offer no apology for its split judgments.Helen Taylor, Post-Doctoral Researcher, South African Institute For Advanced Constitutional, Human Rights, Public and International Law (SAIFAC), University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1222092019-08-22T09:36:33Z2019-08-22T09:36:33ZCritics of South Africa’s judges are raising the temperature: legitimate, or dangerous?<figure><img src="https://images.theconversation.com/files/288903/original/file-20190821-170946-1ika9zz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's Chief Justice Mogoeng Mogoeng has had to intervene to protect judges from unfair criticism.</span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p>The South African judiciary is once more centre stage in the political drama unfolding around the <a href="https://www.moneyweb.co.za/news-fast-news/south-african-corruption-fighter-seen-amplifying-anc-battles/">battle for supremacy</a> within the governing African National Congress (ANC). </p>
<p>In any constitutional democracy worth the name, the judiciary will be the ultimate guarantor of the rule of law and the supremacy of the Constitution.</p>
<p>If the judges act independently and impartially (as prescribed in <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-08.pdf">section 165</a> of South Africa’s Constitution), their judgments will inevitably, on occasion, displease party politicians and members of the Executive.</p>
<p>And when the political process increasingly frustrates the enforcement and implementation of the Constitution, politicians and civil society will turn to the courts to seek endorsement of their concerns. </p>
<p>These actions, now known in South Africa as a form of <a href="http://www.jonathanball.co.za/component/virtuemart/new-releases-1/2019-releases/lawfare-judging-politics-in-south-africa-detail?Itemid=6">“lawfare”</a>, frequently place the courts in an awkward position. That’s because they have to rule on emotive political questions. But, provided that they resist the temptation to exceed their assigned constitutional role, the judges must engage with the issues and attempt to resolve the disputes presented to them.</p>
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Read more:
<a href="https://theconversation.com/storm-around-south-africas-public-protector-shows-robustness-not-a-crisis-120902">Storm around South Africa's public protector shows robustness, not a crisis</a>
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<p>Judges thus function on the political plane, not in a party political sense, but because they exercise public authority.</p>
<h2>Judicial accountability</h2>
<p>As a branch of government, the courts must naturally be accountable for the exercise of their power. The means of achieving their accountability must be balanced against their necessary independence. </p>
<p>Accountability is achieved by judges sitting in open court and through their work being critically analysed through the media and the legal profession. Judges are also held in check by the necessity that they justify their decisions with reasoned judgments, which can be appealed to higher courts.</p>
<p>The right to free expression encourages critical engagement with court judgments. This is lawful, provided that it doesn’t incite violence, amount to propaganda for war, or advocate hatred accompanied by incitement to harm <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-02.pdf">section 16(2) of the Constitution</a>.</p>
<p>There have been times in the past when the courts have come under attack from politicians. For example, this happened when the <a href="https://oup-arc.com/static/5c0e79ef50eddf00160f35ad/casebook_24.htm">appeal court stopped the apartheid regime</a> in its early attempts to remove coloured men from the voters’ roll in the 1950s.</p>
<p>In the early 2000s, the then Minister of Health Manto Tshabalala-Msimang resented the Constitutional Court judgments <a href="http://www.saflii.org/za/cases/ZACC/2002/15.html">compelling the state</a> to provide life-saving HIV medication.</p>
<p>These disputes pitted the elected government of the day against the top court.</p>
<p>More recent cases have involved contestation between factions within the governing party. For example, some in the ANC have complained that the courts were <a href="https://mg.co.za/article/2008-07-04-anc-boss-accuses-judges-of-conspiracy-against-zuma">exceeding their authority</a> when they declared the conduct by former President Jacob Zuma and some of his close associates unlawful. </p>
<p>These criticisms didn’t seem to threaten the courts’ constitutional role, or the judges themselves.</p>
<p>But over the past few months the mood has shifted palpably and become more menacing.</p>
<p>The volatile political atmosphere in the country, and the litany of judgments handed down <a href="https://mg.co.za/article/2019-07-29-high-court-suspends-public-protectors-remedial-action-on-sars-rogue-unit">against the current Public Protector</a> as well as <a href="https://mg.co.za/article/2019-06-06-eff-suffers-second-court-defeat-in-a-week">against the opposition Economic Freedom Fighters</a> (EFF), have escalated the temperature to dangerous levels.</p>
<p>This holds potential harm for the judiciary.</p>
<h2>Attacks on judges</h2>
<p>The most vindictive and undermining attacks – including the use of threatening and populist rhetoric – have come from the leader of the EFF, Julius Malema. He has characterised the courts and individual judges who have found against the Public Protector or the EFF in <a href="https://www.sowetanlive.co.za/news/south-africa/2019-08-16-general-council-of-the-bar-criticises-malemas-veiled-attacks-on-judges/">denigrating terms</a>. </p>
<p>For example, he referred to the race of one judge who ruled against the Public Protector, and demeaned the standing of another black female judge in another such case. Most threateningly, in one attack he said that if the courts continued to find in the manner in which they had, the EFF might have to return “<a href="https://www.news24.com/SouthAfrica/News/advocates-body-slams-effs-julius-malema-for-his-attack-on-sas-judges-20190816">to the bush</a>”.</p>
<p>Malema is one of the six Members of the National Assembly representing Parliament on the <a href="https://www.judiciary.org.za/index.php/judicial-service-commission/members-of-the-jsc">Judicial Service Commission</a>, which is responsible for appointing judges. At the very least he should resign or recuse himself from such a role given his recent outbursts.</p>
<p>But are there no limits to being critical of the judiciary? </p>
<h2>Protections</h2>
<p>Judges can’t get involved in popular political exchanges, particularly when the charges levelled at them are irresponsible, sinister and increasingly personal. </p>
<p>So, what can be done to preserve their integrity and fearless pursuit of constitutional governance?</p>
<p>Firstly, the Chief Justice as head of the judiciary has a responsibility to speak out in its defence. Chief Justice Mogoeng Mogoeng <a href="https://www.politicsweb.co.za/politics/general-gratuitous-criticism-of-judiciary-unaccept">did so</a> when criticism from the Zuma administration became irresponsible. </p>
<p>Secondly, the legal profession and public commentators can come to the courts’ support. The General Council of the Bar has <a href="https://www.timeslive.co.za/news/south-africa/2019-08-16-general-council-of-the-bar-criticises-malemas-veiled-attacks-on-judges/">just done so</a>. </p>
<p>Thirdly, South African law recognises a form of the crime of contempt of court, known as “scandalising the court”. In a 2001 case, the Constitutional Court <a href="http://www.saflii.org/za/cases/ZACC/2001/17.html">found that</a> freedom of expression should not be granted the exalted status in South Africa which it enjoyed in the US. It also said that a balance needed to be achieved between “the commitment to open and accountable government” and speech which was “likely to damage the administration of justice”.</p>
<p>In other words, those who recklessly criticise judges run the risk of being prosecuted for criminal conduct. This is particularly the case when statements lead to an unwarranted erosion of public confidence in the courts as a legitimate governmental institution. </p>
<p>As <a href="http://www.justice.gov.za/sca/judgments/sca_2007/sca07-056.pdf">stated by Appeal Justice Nugent in 2007</a>:</p>
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<p>…If the rule of law is itself eroded through compromising the integrity of the judicial process then all constitutional rights and freedoms … are also compromised.</p>
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<h2>Need for caution</h2>
<p>Those who value the rights and processes enshrined in the South African Constitution should be alarmed by the threatening disregard for them displayed by critics like Malema. And they should speak out in support of the lawful exercise of judicial authority. </p>
<p>I would further argue that the critics should pause, and ask themselves to which constitutional institution they will turn for protection in the future, their intemperate outbursts having undermined the courts.</p><img src="https://counter.theconversation.com/content/122209/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Corder is a director of Freedom under Law and a member of the Advisory Council for the Advancement of the South African Constitution (CASAC). He writes in his personal capacity.</span></em></p>As a branch of government, the courts must naturally be accountable for the exercise of their power. The means of achieving their accountability must be balanced against their necessary independence.Hugh Corder, Professor of Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1218192019-08-15T07:45:08Z2019-08-15T07:45:08ZThe battles of South Africa’s Public Protector: why the law must win<figure><img src="https://images.theconversation.com/files/288026/original/file-20190814-136203-cl097h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South African Public Protector Busisiwe Mkhwebane listens to public complaints in Cape Town.</span> <span class="attribution"><span class="source">EPA-EFE</span></span></figcaption></figure><p>In the <a href="https://www.biblestudytools.com/esther/">book of Esther</a>, the Bible tells a story from the 5th century BCE, when the Jews were in exile in Persia. The Persian king, Ahasuerus, had installed a Jewish woman, Esther, as his queen at the time that one of the king’s ministers started a genocidal programme against the Jews. Esther’s uncle, Mordecai, appealed to her to intervene. She pointed out to him that the law did not allow her to approach the king without invitation, and that the penalty for disobedience of this law was death. But when he insisted, she agreed to risk her life to protect her people.</p>
<p>South Africa’s Public Protector <a href="https://www.politicsweb.co.za/documents/profile-of-advocate-busisiwe-mkhwebane">Advocate Busisiwe Mkhwebane</a> invoked Esther at a press conference in early July 2019 when she <a href="https://www.news24.com/SouthAfrica/News/live-public-protector-releases-high-profile-reports-20190705">quoted</a> the queen’s words to Mordecai.</p>
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<p>The book of Esther, Chapter 4, reads thus: ‘And so I will go to the King, which is against the law; and if I perish, I perish!’ </p>
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<p>Mkhwebane and her supporters have long depicted her as a courageous warrior against corrupt incumbents in powerful positions. So it is not surprising that she drew on her Christian religion to strengthen her claim to be fighting evil. </p>
<p>But Mkhwebane’s choice of role model is intriguing, as Esther’s heroism required her to break the law. Indeed, the quotation from the Bible read out at the press conference makes that point expressly.</p>
<p>It was morally right of Queen Esther to defy the law, as the law itself was brutal and dictatorial. In addition it was, in this case, facilitating genocide. But what law does Mkhwebane intend to break? And why does she consider it heroic to do so? South Africa does not have a king, and it is not unlawful to approach anyone in power. </p>
<p>Indeed, Mkhwebane herself occupies an office which is meant to ensure that power is not abused to the detriment of the poor and the marginalised. </p>
<p>But the Public Protector’s Office became embroiled in political scandals soon after she took office in October 2016. In particular, she has been accused of using her considerable power to benefit a particular political faction; a claim that has now been included in the court papers of one of the many <a href="https://mg.co.za/article/2019-07-24-mkhwebane-has-done-more-damage-than-any-other-pp-gordhan-argues">legal challenges to her reports</a>.</p>
<h2>The law and the Public Protector</h2>
<p>The <a href="https://nationalgovernment.co.za/units/view/59/Public-Protector">Office of the Public Protector</a> was created by South Africa’s <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf">Constitution</a>. </p>
<p>It is buttressed by a detailed legal framework of constitutional, statutory and common law principles. Together, these principles ensure that the office achieves the very goal she claims to pursue: protecting the poor and marginalised against corruption. They do so by, among other measures, requiring a fair procedure and requiring a “rational connection” between her findings and her decision-making process.</p>
<p>Unless it operates under the law, the Office of the Public Protector becomes an instrument of unconstrained power and can be used to fight factional battles. It can destroy the livelihoods or careers of innocent parties who were not granted hearings. Or, it can protect those who are guilty of corruption by not investigating them properly. </p>
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Read more:
<a href="https://theconversation.com/storm-around-south-africas-public-protector-shows-robustness-not-a-crisis-120902">Storm around South Africa's public protector shows robustness, not a crisis</a>
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<p>Even without any intention to benefit political factions, a Public Protector operating outside the law will not be effective in creating remedies for those disadvantaged by corruption. Like any public office, therefore, the Public Protector is subject to review by the courts.</p>
<p>South Africa’s courts have in fact <a href="https://www.dailymaverick.co.za/article/2019-07-26-call-to-remove-busisiwe-mkhwebane-from-the-office-of-the-public-protector/">overturned a number of her reports</a>. The reasons have varied.</p>
<p>On several occasions, courts have <a href="https://www.news24.com/SouthAfrica/News/live-public-protector-releases-high-profile-reports-20190705">ruled</a> that she <a href="https://www.dailymaverick.co.za/article/2019-08-02-inside-the-latest-findings-of-public-protector-busisiwe-mkhwebane-to-be-set-aside-by-the-courts/">had not granted</a> a hearing to implicated parties. In another case a court found against her for excluding relevant factors, such as the evidence of the supposed beneficiaries in a corruption case involving a <a href="https://www.enca.com/news/estina-dairy-farm-approval-fast-tracked">dairy farm project</a>. </p>
<p>In a separate case she was found to have acted outside of her statutory powers by instructing Parliament to <a href="http://saflii.org/za/cases/ZAGPPHC/2018/2.html">amend the Constitution</a>. And in yet another it was found that she omitted remedies which would have recovered <a href="http://saflii.org/za/cases/ZAGPPHC/2019/132.html">money lost to corruption</a>. </p>
<p>The Public Protector and her supporters claim to be aware of the value of the law. She has frequently claimed merely to be fulfilling her constitutional duty of investigating corruption “without fear or favour”. </p>
<p>One of her biggest supports, Economic Freedom Fighters (EFF) leader Julius Malema, stated that he merely <a href="https://www.enca.com/news/malema-believes-public-protectors-office-being-destroyed">wants all to be equal before the law</a>. This was his reason for rejecting the High Court’s finding that President Cyril Ramaphosa could delay disciplinary action against Public Enterprises Minister Pravin Gordhan until the Public Protector’s report against Gordhan had been reviewed. </p>
<p>But, if they were seeking compliance with the law, they would argue in terms of the law. They would engage with courts’ reasoning and produce evidence for their assertions. </p>
<p>Instead, the Public Protector has made unsubstantiated claims of <a href="https://ewn.co.za/2019/06/09/mkhwebane-lays-formal-complaint-against-those-who-ve-insulted-her">personal victimisation</a>, or simply restated arguments that had already been rejected, with full reasoning, <a href="https://mg.co.za/article/2019-05-21-mkhwebane-astonished-by-vrede-report-ruling-may-fight-back">by the court</a>. </p>
<p>Similarly, <a href="https://www.pa.org.za/person/mbuyiseni-quintin-ndlozi/">Mbuyiseni Ndlozi</a>, the EFF’s national spokesperson, ridiculed a judge holding against the party as <a href="https://www.timeslive.co.za/politics/2019-08-08-she-couldnt-even-read-her-own-judgment-eff-slams-judges-mkhwebane-finding/">illiterate</a> and Malema threatened to <a href="https://www.news24.com/SouthAfrica/News/malema-hits-out-at-sas-old-and-traumatized-judges-in-womens-day-speech-20190809">resort to arms</a> if the courts continue to produce judgments of which he disapproves. </p>
<p>This is the very opposite of upholding the rule of law, not just because it undermines the institution that protects the law and keeps public power within its constraints – the courts – but because it refuses even to reason with law. It speaks another language completely: the rule of persons and not of law, of violence and raw power.</p>
<p>In her argument before the North Gauteng High Court, Advocate Mkhwebane insisted that the President should implement her remedial action immediately because his loyalty should lie with her office and not with one of his ministers. </p>
<p>She seems to have missed the point that both her own, and the President’s, loyalty must lie with the Constitution. She and her supporters will not perish if they are unable or unwilling to serve the Constitution and the law. But they should not be holding offices under it.</p><img src="https://counter.theconversation.com/content/121819/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cathleen Powell 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 Public Protector’s Office has become embroiled in political scandals under the current incumbent, Advocate Busisiwe Mkhwebane.Cathleen Powell, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1209022019-07-24T11:28:33Z2019-07-24T11:28:33ZStorm around South Africa’s public protector shows robustness, not a crisis<figure><img src="https://images.theconversation.com/files/285494/original/file-20190724-110158-1j5zi8m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's Public Protector, Busisiwe Mkhwebane.</span> <span class="attribution"><span class="source">EPA-EFE/Nic Bothma</span></span></figcaption></figure><p>Seemingly effective constitutional institutions can be quickly undermined by the actions of the people who serve in them. If we didn’t know that already, the South African Constitutional Court’s recent <a href="http://www.saflii.org/za/cases/ZACC/2019/29media.pdf">decision</a> in the Reserve Bank case makes the point crystal clear. </p>
<p>In her response to the Bank’s application to set aside certain remedial action, the Court found that the Public Protector, <a href="https://www.gov.za/about-government/contact-directory/chapter-9/chapter-9/public-protector-office">Busisiwe Mkhwebane</a>, acted in such bad faith as to justify the imposition of a <a href="https://www.timeslive.co.za/news/south-africa/2019-07-22-public-protector-busisiwe-mkhwebane-must-pay-after-falsehoods-over-bankorp/">personal costs order</a>.</p>
<p>The Public Protector’s office, previously lauded for its investigation into the illegal use of public money on former President Jacob Zuma’s private <a href="https://cdn.24.co.za/files/Cms/General/d/2718/00b91b2841d64510b9c99ef9b9faa597.pdf">Nkandla homestead</a>, is consequently now the subject of anxious public debate.</p>
<h2>The big worries</h2>
<p>Two concerns, in particular, have been raised. </p>
<p>The first has to do with whether the Constitutional Court’s decision reveals any flaws in the design of the country’s <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf">1996 Constitution</a>. </p>
<p>Should such significant powers have been invested in the <a href="https://nationalgovernment.co.za/units/view/59/Public-Protector">Public Protector’s office</a> when, as we can now see, they are vulnerable to abuse?</p>
<p>The second concern relates to the <a href="https://www.iol.co.za/news/politics/3-times-the-courts-set-aside-publicprotector-busisiwe-mkhwebanes-reports-29684337">raft of litigation</a> in which the Public Protector is <a href="https://citizen.co.za/news/south-africa/courts/2158516/judgment-reserved-in-gordhan-vs-mkhwebane-rogue-unit-report-matter/">involved</a>, and Mkhwebane’s own recent threat to go to court to oppose any attempt by Parliament to remove her. </p>
<p>Is this yet more evidence of the descent of the country’s constitutional democracy into so-called “lawfare”?</p>
<h2>Constitutional design flaws?</h2>
<p>The Public Protector’s powers are set out in <a href="http://www.justice.gov.za/legislation/constitution/saconstitution-web-eng-09.pdf">Section 182(1)(a)</a> of the Constitution. It states the office is there</p>
<blockquote>
<p>to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice.</p>
</blockquote>
<p>These are indeed significant powers that both the previous and present incumbents of the office have used to telling effect. But they are no broader than they need to be to give the office the requisite teeth.</p>
<p>The more important section perhaps is <a href="https://www.gov.za/documents/constitution-republic-south-africa-1996-chapter-9-state-institutions-supporting#194">section 194</a>, on the removal of the Public Protector. It provides that this may occur “on the ground of misconduct, incapacity or incompetence”, following a committee hearing and then a two-thirds majority vote by the National Assembly.</p>
<p>Again, there is nothing obviously wrong with this provision. Design the removal procedure in a way that makes it too easy to activate and you weaken the institution. Make it too hard to use and you licence an individual to become a loose cannon. Section 194 seems to get this balance right.</p>
<p>Beyond this, the proper functioning of the Public Protector’s office depends on two things: the courts’ preparedness to use their review powers to overturn any unwarranted findings and informed public scrutiny of the Public Protector’s actions. No constitutional-design features, however prescient, can make up for the absence of those two factors.</p>
<p>Fortunately, South Africans know the value of judicial independence. And the example set by the previous Public Protector, <a href="https://theconversation.com/how-south-africas-public-protector-has-set-a-high-bar-for-her-successor-63891">Thuli Madonsela</a>, has made them care enough about the institution to defend it when threatened.</p>
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Read more:
<a href="https://theconversation.com/how-south-africas-public-protector-has-set-a-high-bar-for-her-successor-63891">How South Africa’s public protector has set a high bar for her successor</a>
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<p>Thus, as broad as the Public Protector’s powers are, they are tempered by powerful and independent courts and by an active and engaged civil society.</p>
<p>What about the second concern? </p>
<h2>Is litigation replacing politics?</h2>
<p>Is the <a href="https://citizen.co.za/news/south-africa/courts/2158516/judgment-reserved-in-gordhan-vs-mkhwebane-rogue-unit-report-matter/">current round of litigation</a> involving the Public Protector another worrisome example of the phenomenon of lawfare? </p>
<p>Or does it in fact indicate something fundamental about how constitutional democracies work?</p>
<p>The term <a href="https://projects.iq.harvard.edu/johncomaroff/john-comaroff-explains-lawfare">“lawfare”</a> was coined by expatriate South African anthropologists Jean and John Comaroff. In its original form, it describes a situation in which the law is used to pursue political ends, both by the politically powerful and the politically weak.</p>
<p>The term has been popularised in South Africa by Judge Dennis Davis and lawyer Michelle Le Roux, whose recently published <a href="http://www.jonathanball.co.za/component/virtuemart/new-releases-1/2019-releases/lawfare-judging-politics-in-south-africa-detail?Itemid=6">book</a> deploys it as a central concept. In their usage, lawfare connotes the worrisome tendency in post-apartheid South Africa for disputes that previously would have been settled politically to be resolved legally.</p>
<p>The Public Protector example shows there is some empirical basis for this concern. In addition to all the <a href="https://theconversation.com/dramatic-night-in-south-africa-leaves-president-hanging-on-by-a-thread-57180">litigation surrounding Nkandla</a> and the <a href="http://www.saflii.org/za/cases/ZACC/2019/29media.pdf">Reserve Bank case</a>, there are now two more judicial review applications. One involves <a href="http://www.thepresidency.gov.za/speeches/statement-president-cyril-ramaphosa-report-public-protector">President Cyril Ramaphosa</a>; the other, <a href="https://www.timeslive.co.za/politics/2019-07-23-pravin-gordhans-court-battle-with-busisiwe-mkhwebane-kicks-off/">Public Enterprises Minister Pravin Gordhan</a>. </p>
<p>All of this suing and countersuing indeed looks like the waging of political battles through law. But is lawfare in this form the worrisome phenomenon it is made out to be?</p>
<p>The institution of constitutional review, by definition, exposes legislative and executive conduct to judicial scrutiny. It follows that the mere fact that political disputes are being waged through the courts and other constitutional institutions is not necessarily a cause for concern.</p>
<p>It doesn’t mean that any single instance of recourse to the courts is legally inappropriate, since such a conclusion depends on an assessment of the legal merits of the claim in each case. It also doesn’t mean that the courts are being politicised because that in the end depends on how they respond and what the public makes of their response.</p>
<p>On its own, therefore, the concept of lawfare has no analytic traction. It refers to a real phenomenon, but it offers no normative standard by which to assess alleged instances of the abuse of the judicial process.</p>
<h2>Finding comfort</h2>
<p>In the absence of a general standard, each instance of lawfare has to be assessed on its own terms. In this case, the appropriate conclusion about the Constitutional Court’s finding against the Public Protector is that there’s much to be comforted by.</p>
<p>The judgment – and before that, the North Gauteng High Court’s <a href="https://mg.co.za/article/2018-02-16-public-protectors-absa-bailout-report-set-aside">decision</a> – shows that the judiciary is playing its appropriate role. By extending the existing provision for personal costs orders to this kind of case they have developed a midway accountability mechanism between the setting aside of the Public Protector’s remedial orders and the more drastic step, which may yet still come, of her removal from office.</p>
<p>If there is a concern, it is that the courts have once again been forced to act as a last line of defence. At just the time that it appeared that the Public Protector was emerging as a strong institution supporting democracy, it has been undermined by the actions of its current head.</p>
<p>This shows South Africa is still struggling to broaden the institutional base of its constitutional democracy so that it has multiple veto points at which to check the abuse of power. </p>
<p>To function effectively, constitutional institutions also need to be infused with values and traditions so that they are less dependent on the whims of particular office bearers.</p>
<p>This is not a uniquely South African problem. The US’s travails under President Donald Trump after 240 years of constitutional democracy are a powerful reminder that the fight for effective institutions and lived constitutional values never really ends.</p>
<p>Constitutionalism is an aspirational ideal in this sense, rather than a finite goal that can be achieved once and for all. Nevertheless, if the vigour of the public debate surrounding the Public Protector is anything to go by, it is an ideal that appears to be very much alive and kicking in South Africa.</p><img src="https://counter.theconversation.com/content/120902/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Theunis Roux 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>In this case, the appropriate conclusion about the Constitutional Court’s finding against the Public Protector is that there’s much to be comforted by.Theunis Roux, Professor of Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1179232019-05-28T15:21:19Z2019-05-28T15:21:19ZWhy Ramaphosa had to delay appointing South Africa’s next cabinet<figure><img src="https://images.theconversation.com/files/276796/original/file-20190528-42560-1g0m3nm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Cyril Ramaphosa takes the oath of office at his inauguation by Chief Justice Mogoeng Mogoeng. </span> <span class="attribution"><span class="source"> EPA-EFE/Stringer</span></span></figcaption></figure><p>The delay in the appointment of South Africa’s new Cabinet after the inauguration of President Cyril Ramaphosa on <a href="https://www.iol.co.za/news/politics/president-ramaphosas-inauguration-in-30-fantastic-pictures-24026343">25 May 2019</a> reflects the impact of two institutions: first, the governing African National Congress’s (ANC) integrity commission, and secondly, the <a href="http://www.pprotect.org/">Public Protector</a>. </p>
<p>The ANC’s integrity commission’s job is to root out unethical conduct in the party. The Public Protector’s responsibility provides oversight over the government. It’s empowered to “investigate, report on and remedy improper conduct” by <a href="http://www.pprotect.org/">all state organs</a>.</p>
<p>Ramaphosa needs both if he is to succeed in cleaning South Africa’s body politic of corruption. He therefore can’t afford to run roughshod over either. </p>
<p>All the incoming presidents since democracy in 1994 have announced their deputy presidents, cabinets and deputy ministers on the day after their inaugurations. Ramaphosa is the first who has not done so. </p>
<p>Since the inauguration, and until the members of a new cabinet are sworn in, South Africa is without a cabinet. For this period, Ramaphosa is the only member of the Executive. Not even the Deputy President is available.</p>
<p>The <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf">Constitution</a> is clear about the fact that the President must assume office within five days after his election by Parliament. And that the first sitting of the National Assembly after an election must take place not later than 14 days after the election results are announced. </p>
<p>But it’s silent on the Cabinet. Theoretically, at least, this means that the President can continue without a cabinet for an unspecified period. </p>
<p>The main reason Ramaphosa hasn’t been able to act with haste is because the <a href="https://www.businesslive.co.za/bd/politics/2019-04-14-anc-top-six-will-discuss-integrity-commission-report-amid-list-furore/">integrity commission</a> has made unfavourable pronouncements against some prospective Cabinet members. One of them is his deputy David Mabuza. And, the <a href="http://www.pprotect.org/">Public Protector</a> has recommended he take disciplinary action against Pravin Gordhan, his trusted former Public Enterprises Minister. </p>
<p>Ramaphosa couldn’t appoint people with a cloud over their heads, especially given his stated commitment to a <a href="https://www.news24.com/SouthAfrica/News/ramaphosa-promises-corruption-crackdown-at-maiden-sona-20180216">clean and effective government</a>.</p>
<h2>ANC integrity commission</h2>
<p>The ANC’s integrity commission was established under the party’s <a href="https://www.anc1912.org.za/constitution-anc">constitution</a>. Any member accused of unethical or immoral conduct that can <a href="https://www.anc1912.org.za/constitution-anc">bring the ANC into disrepute</a> can be referred to the commission by the party’s top six officials as well as its <a href="https://www.anc1912.org.za/national-executive-committee">national executive committee (NEC)</a>. This is its highest decision making body in between its national conferences. </p>
<p>The integrity committee is made up of nine ANC veterans chaired by former Robben Island prisoner George Mashamba. </p>
<p>The ANC’s NEC flagged <a href="https://www.timeslive.co.za/politics/2019-05-28-anc-integrity-commission-finalising-report-this-morning/">22 people</a> on the party’s 2019 parliamentary candidates’ list as potentially being improper. This included Mabuza and the Minerals and Energy Minister Gwede Mantashe. Both are also part of the <a href="https://www.news24.com/SouthAfrica/News/meet-the-ancs-new-top-6-20171218">ANC’s top six leaders</a>. They are respectively the party’s deputy president and national chairman. </p>
<p>The integrity commission could potentially develop into a powerful organisational instrument in Ramaphosa’s drive against corruption, and to <a href="https://mg.co.za/article/2019-05-05-read-it-in-full-cyril-ramaphosas-address-at-siyanqoba-rally">renew the ANC</a>. </p>
<h2>Public Protector</h2>
<p>The Public Protector is one of the institutions established by the Constitution to support and <a href="https://omalley.nelsonmandela.org/omalley/index.php/site/q/03lv02167/04lv02184/05lv02193/06lv02204.htm">protect South Africa’s constitutional democracy</a>. </p>
<p>The Public Protector, Busisiwe Mkhwebane, has recommended that Ramaphosa take <a href="http://www.capetalk.co.za/articles/349753/judge-kriegler-public-protector-has-made-a-number-of-strategicmistakes">disciplinary action</a> against Gordhan, a trusted ANC colleague who has served as public enterprises minister, the country’s finance minister on two occasions, as well as head of the South African Revenue Service. </p>
<p>Mkhwebane has accused Gordhan of behaving illegally by approving an early retirement agreement with the deputy head of the South African Revenue Service, Ivan Pillay. Gordhan disputes the accusation and is <a href="https://ewn.co.za/2019/05/28/gordhan-s-lawyers-ask-court-to-set-aside-busisiwe-mkhwebane-s-report">challenging the public protector’s report</a> in court. </p>
<p>It would be indefensible for Ramaphosa to ignore Mkhwebane’s report and to appoint Gordhan. Only a court judgment <a href="https://www.news24.com/SouthAfrica/News/full-text-constitutional-court-rules-on-nkandla-public-protector-%2020160331">could set aside</a> the public protector’s report. </p>
<p>The office of the Public Protector has the potential to be another indispensable instrument in Ramaphosa’s anti-corruption arsenal. He cannot, therefore, undermine it by ignoring a decision it has taken.</p>
<p>On the other hand, he will be loath to sacrifice Gordhan. </p>
<h2>Uncertainty</h2>
<p>The seriousness of these considerations – and their dire impact on the executive – shows how respectful Ramaphosa is of these anti-corruption institutions. </p>
<p>The fact that he stood aside and allowed Mabuza, who was key to his election as president of the ANC in <a href="https://www.timeslive.co.za/sunday-times/news/2017-12-22-how-david-mabuza-outplayed-the-ndz-camp/">December 2017</a>, to be put through the integrity commission’s processes even though this meant not pulling off a speedy appointment of the cabinet, is testimony to his determination to respect due process. Ramaphosa has also <a href="https://www.timeslive.co.za/politics/2019-05-28-pravin-gordhan-files-application-to-set-aside-public-protectors-report/">left Gordhan</a> to deal with the Public Protector’s report.</p>
<p>After being cleared the integrity commission, Mabuza was due, belatedly, to be <a href="https://www.iol.co.za/news/politics/mabuza-to-be-sworn-in-as-mp-24244580">sworn in as an MP</a>.</p>
<p>This has removed uncertainty about his future as Deputy President. But it’s given him ammunition for the future because he can point to the fact that he’s been exonerated of any wrongdoing by his own party. </p>
<p>Ramaphosa is inching closer to being able to make his vital cabinet appointments. He will want to do so as soon as possible. Constitutionally, the country’s executive power is vested in the President – but he exercises most of his power in concert with Cabinet members. </p>
<p>That’s not to say that this lacuna has left government departments entirely in limbo. They are still managed by directors-general, and the laws they have to implement are not affected by <a href="https://www.gov.za/about-government/government-system/structure-and-functions-south-african-government">this situation</a>.</p><img src="https://counter.theconversation.com/content/117923/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>Ramaphosa couldn’t appoint people with a cloud over their heads, especially given his stated commitment to a clean and effective government.Dirk Kotze, Professor in Political Science, University of South AfricaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/921262018-03-11T09:02:35Z2018-03-11T09:02:35ZSurvey shows Zuma and ANC’s mutual dance to the bottom<figure><img src="https://images.theconversation.com/files/207126/original/file-20180220-116365-livi1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former South African President Jacob Zuma sings at the ANC National Conference in December. </span> <span class="attribution"><span class="source">Reuters/Siphiwe Sibeko</span></span></figcaption></figure><p>Opinion polls in South Africa have clearly shown the sharp decline in citizens’ approval of Jacob Zuma’s performance as president over the past three years. What has been less clear is the impact on the governing African National Congress (ANC). He was also the president of the ANC, until his term ended in December and he was <a href="https://theconversation.com/the-anc-has-a-new-leader-but-south-africa-remains-on-a-political-precipice-89248">replaced by Cyril Ramaphosa</a>. </p>
<p>For many years, Zuma was considered a <a href="https://www.dailymaverick.co.za/article/2015-03-18-parliament-diary-jacob-zuma-the-teflon-president/#.Wowjk4NubIU">“Teflon” president</a>. He seemed to maintain public support even in the face of controversial decisions and scandals because of his personal appeal as an affable populist. Several surveys placed his <a href="http://afrobarometer.org/publications/ad66-south-africans-have-lost-confidence-zuma-believe-he-ignores-parliament-and-law">approval ratings in the 60%</a> <a href="https://upjournals.co.za/index.php/Politeia/article/view/3247">to 70%</a>
range throughout his first term in office. Once that image was finally pierced, one might have logically expected his downfall to be equally personal, and not take the party down with him.</p>
<p>But new results from the <a href="http://citizensurveys.com/sa-citizens-survey/">December 2017 South African Citizen Survey</a> demonstrate just the opposite. Asking a widely used measure of party support called partisan identification, a strong predictor of both voter turnout and vote choice, only 32% of those surveyed said they “felt close” to the ANC. This is the worst result recorded in the past 17 years, and statistically tied as the lowest level since 1994.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/209885/original/file-20180312-30975-7u4l97.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/209885/original/file-20180312-30975-7u4l97.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=310&fit=crop&dpr=1 600w, https://images.theconversation.com/files/209885/original/file-20180312-30975-7u4l97.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=310&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/209885/original/file-20180312-30975-7u4l97.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=310&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/209885/original/file-20180312-30975-7u4l97.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=390&fit=crop&dpr=1 754w, https://images.theconversation.com/files/209885/original/file-20180312-30975-7u4l97.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=390&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/209885/original/file-20180312-30975-7u4l97.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=390&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">ANC Identification.</span>
</figcaption>
</figure>
<p>Zuma, it seems, pulled the ANC down with him. But this question is not asked very frequently by South African polling organisations. Fortunately, it’s possible to turn to an alternative indicator to get a more fine grained take on recent trends in ANC support. </p>
<p>The South African Citizen Survey also asks respondents to rate how much they “like or dislike” each major political party on a scale of 0 to 10. In mid-2015, 61% of South Africans held a positive view of the ANC. Two and a half years later, only 43% feel this way. More importantly, the proportion who give the ANC a higher score than any other party has shrunk from over one half of the electorate in mid-2015 (55%), to just over one third (37%) in the most recent survey as shown below.</p>
<h2>Presiding over electoral decline</h2>
<p>To be sure, it was already clear from the ANC’s loss of seats in the National Assembly and provincial legislatures in the <a href="https://mg.co.za/article/2014-05-11-the-partys-over-anc-sees-decline-in-support">2009 and 2014 national elections</a> that Zuma was presiding over an electoral decline, however small. This should have become even clearer in 2016, when large numbers of ANC members lost their seats as municipal councillors, positions in executive councils, and mayorships of major metropolitan councils.</p>
<p>Yet many of these losses could have been pinned to the poor performance of the post-2008 economy. Indeed, ever since 1994, the degree of economic optimism (as measured by the proportion of South Africans who expect the economy to improve in the next year) has been a strong predictor of popular support for the ANC.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/209886/original/file-20180312-30983-13v78gv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/209886/original/file-20180312-30983-13v78gv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=316&fit=crop&dpr=1 600w, https://images.theconversation.com/files/209886/original/file-20180312-30983-13v78gv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=316&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/209886/original/file-20180312-30983-13v78gv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=316&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/209886/original/file-20180312-30983-13v78gv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=397&fit=crop&dpr=1 754w, https://images.theconversation.com/files/209886/original/file-20180312-30983-13v78gv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=397&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/209886/original/file-20180312-30983-13v78gv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=397&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>But the evidence suggests that over the past year, voter support for the ANC became tied to their views of Jacob Zuma, rather than the economy. While Zuma’s popularity has fallen steadily since at least the end of 2015, the biggest single drop took place in April 2017 when his support levels plummeted by 12 percentage points on the heels of the public firestorm that followed the <a href="http://ewn.co.za/2017/03/31/zuma-says-reshuffled-cabinet-to-improve-efficiency-and-effectiveness">March cabinet re-shuffle</a> and sacking of Finance Minister Pravin Gordhan. </p>
<p>Yet, even with the resultant damage to the <a href="https://www.bloomberg.com/news/articles/2017-03-30/south-africa-s-rand-extends-slump-as-zuma-fires-finance-minister">currency and the markets</a>, South Africans began to sense an economic turnaround. By year’s end, 48% expected the economy to get better in the next 12 months, and 59% expected their household living conditions to improve. But peoples’ evaluations of Zuma’s job performance continued to plummet (to just 22%), and the public image of the ANC remained at historically low levels.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/209887/original/file-20180312-30969-1w1vujz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/209887/original/file-20180312-30969-1w1vujz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=336&fit=crop&dpr=1 600w, https://images.theconversation.com/files/209887/original/file-20180312-30969-1w1vujz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=336&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/209887/original/file-20180312-30969-1w1vujz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=336&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/209887/original/file-20180312-30969-1w1vujz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=422&fit=crop&dpr=1 754w, https://images.theconversation.com/files/209887/original/file-20180312-30969-1w1vujz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=422&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/209887/original/file-20180312-30969-1w1vujz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=422&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">ANC Zuma.</span>
</figcaption>
</figure>
<p>Thus, voters finally turned on Zuma, but only after a long string of <a href="http://ewn.co.za/2018/02/15/south-africa-s-divisive-president-zuma-s-many-scandals">personal scandals</a>, <a href="https://theconversation.com/ramaphosa-must-fuse-fixing-broken-institutions-and-economic-policy-92017">bad political decisions</a>, and public outrage over the use of public money on his private homestead <a href="https://www.gov.za/sites/www.gov.za/files/Public%20Protector's%20Report%20on%20Nkandla_a.pdf">Nkandla</a>, the <a href="https://www.news24.com/SouthAfrica/News/FULL-TEXT-Statement-by-Public-Protector-on-Nkandla-Report-20140319">“capture”</a> of key state institutions by Gupta-friendly ministers and directors, and cabinet reshuffles. </p>
<p>Yet the ANC continued to shield him from the courts, the <a href="https://www.enca.com/south-africa/motshekga-calls-madonselas-powers-be-amended">Public Protector</a>, and from successive <a href="https://theconversation.com/no-confidence-vote-a-victory-for-zuma-but-a-defeat-for-the-anc-82244">votes of no confidence</a> in parliament. Indeed, the party came very close to electing his <a href="https://www.enca.com/south-africa/president-publicly-endorses-nkosazana-dlamini-zuma-for-anc-leader">hand-chosen successor</a>, Nkosazana Dlamini-Zuma, as its <a href="https://www.businesslive.co.za/bd/markets/2017-12-19-ramaphosa-rally-stumbles-on-narrow-victory/">new leader</a> and presumptive national president.</p>
<p>But at some point in the past few months, a sufficient number of party members finally seemed to grasp the fact that Zuma’s continued presence threatened the electoral interests of the party as well as their own political futures, particularly those who appeared downwind on the party list. But it took them a very long time to reach this conclusion, and the party has paid dearly in terms of its connection with the electorate.</p>
<p>Zuma dragged the ANC down with him. Yet many might justifiably argue that it has been a mutual waltz to the bottom: while his behaviour and decisions damaged his own image, the ANC’s tolerance of his sins of governance has tarnished theirs.</p>
<p>President Cyril Ramaphosa therefore faces a double challenge. Not only must he reestablish a positive connection between the presidency and the people, but he must also transform the battered image of the ANC.</p>
<p><strong>Tables updated 12 March 2018</strong></p>
<p><em>The South African Citizens Survey is based on face-to-face interviews with a nationally representative sample of 1,300 respondents a month. Results are reported quarterly on a total of 3,900 respondents, which produces results with a margin of error margin of error of ±1.5 percentage points at the 95% confidence level. Sampling sites are chosen at random across all provinces, and metro, urban and rural areas, with probability proportionate to population size, based on the latest StatsSA estimates of the population aged 18 and older. Interviews are conducted in English, isiZulu, isiXhosa, Afrikaans, Sesotho, Sepedi, and Setswana. Weights are applied to ensure the sample represents the most recent national population with respect to province, race, gender, age and area type.</em></p><img src="https://counter.theconversation.com/content/92126/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Mattes is Professor of Government and Public Policy at the University of Strathclyde, Honorary Professor at the Institute for Democracy, Citizenship and Public Policy in Africa at the University of Cape Town, co-founder and Senior Adviser to Afrobarometer, and has previously worked as a consultant to Citizen Surveys. He receives funding from the South African National Research Foundation, </span></em></p>Former South African President Jacob Zuma’s bad behaviour damaged his image and the ANC’s.Robert Mattes, Professor in the Department of Political Studies, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/903952018-01-21T06:39:26Z2018-01-21T06:39:26ZIs the net about to close on Zuma and his Gupta patronage network?<figure><img src="https://images.theconversation.com/files/202574/original/file-20180119-80171-70vnck.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Cyril Ramaphosa, the deputy president of South Africa and new president of the governing ANC, faces a dilemma in rooting out corruption. </span> <span class="attribution"><span class="source">Reuters/Siphiwe Sibeko</span></span></figcaption></figure><p>It all started with a wedding. A 200 plus entourage of friends and family landed their private aircraft at the <a href="http://www.telegraph.co.uk/news/worldnews/africaandindianocean/southafrica/10030626/200-Indian-wedding-guests-allowed-to-land-at-South-Africas-main-military-air-base.html">Waterkloof Air Force Base</a> in April 2013. </p>
<p>What South Africans didn’t know was that the country had already entered a new era of corruption that was to have a myriad negative consequences. Now, after years of legal obfuscation, political manipulation of ‘captured’ state institutions and prosecutorial agencies, Cyril Ramaphosa’s victory to succeed Jacob Zuma as president of the ruling African National Congress has opened up the possibility that an age of impunity <a href="https://www.timeslive.co.za/politics/2018-01-18-ramaphosa-piles-pressure-on-zuma-with-anti-corruption-call/">will be replaced</a> with a new era of public accountability.</p>
<p>Since the <a href="http://www.bbc.com/news/world-africa-22513410">Gupta’s</a> extravagant family wedding at Sun City a slew of revelations have come out. These range from the <a href="https://citizen.co.za/news/south-africa/1333758/10-key-findings-explosive-state-capture-report/">“State of Capture report”</a> of the former Public Protector Thuli Madonsela, to the damning <a href="http://www.gupta-leaks.com/">Gupta-leaks</a> uncovered by investigative journalists AmaBhungane. All helped South Africans come to understand the shocking extent of the systemic corruption inextricably linked to the Gupta name.</p>
<p>Despite all these revelations, the country’s prosecutorial bodies have remained silent. So when the Asset Forfeiture Unit of the National Prosecuting Authority (NPA) confirmed its <a href="https://protect-za.mimecast.com/s/itfIC1jp84SE0XYOiO4_KT">intention to serve summons</a> on members of the Gupta family and their cronies on January 15 this year ordering them to preserve assets to the tune of R1.6 billion, the first question that sprung to mind was “why now”?</p>
<p>The answer lies with Ramaphosa’s election on a <a href="https://www.biznews.com/thought-leaders/2017/11/14/ramaphosa-new-deal-for-sa/">“change” and “reform” ticket</a>. His victory in December has shifted the balance of power against the Zuma faction. </p>
<p>A second factor is that the ANC is concerned about its electoral future, with the 2019 national election on the horizon. Zuma has cost the ANC <a href="https://www.news24.com/elections/news/election-wrap-a-bruised-anc-a-galvanised-da-20160807">almost 16% of its electoral</a> majority – some 3 million votes. With opposition parties scrambling to <a href="https://www.sapeople.com/2017/12/06/sas-future-coalition-anc-2019-say-opposition-leaders/">form coalitions</a>, and voting trends suggesting a further decline in the ANC’s share of the vote, there is now a very real prospect of the ANC being voted out of power in 2019. An ANC majority is no longer a foregone conclusion – unthinkable until recently.</p>
<p>It seems denial in the ANC has been replaced by a sense of fear. The party is trying to show the voting public that it can clear up the mess that it has made.</p>
<h2>Chickens come home to roost</h2>
<p>The NPA’s announcement suggests that the chickens seem finally to be on their way home to roost on the <a href="https://www.iol.co.za/business-report/swift-sale-of-gupta-family-empire-in-south-africa-raises-eyebrows-10955847">Gupta empire</a>. The NPA’s Asset Forfeiture Unit has applied to the High Court for an order that the Gupta’s must “preserve” R1.6 billion worth of assets. This power is granted under Section 38 of the <a href="https://www.gov.za/sites/www.gov.za/files/a121-98.pdf">Prevention of Organised Crime Act</a>. The provision empowers the NPA to make an ex parte application to the High Court to</p>
<blockquote>
<p>prohibit any person… from dealing in any manner with any property.</p>
</blockquote>
<p>The court must grant the order if there are reasonable grounds to believe that property is the “instrumentality of an offence” or “is the proceeds of unlawful activities”. This must be read in light of the rest of the Act which allows the state to confiscate property that is the proceeds of unlawful activities. </p>
<p>The rationale of the preservation order is, therefore, to prevent such a person or suspect from disposing of assets that are proceeds from unlawful activities which would render a confiscation order fruitless. </p>
<p>An analysis of the act makes it clear that, if a preservation order is requested, the intention of the NPA must be to arrest and charge the Guptas and their associates. A preservation order could only be made if a confiscation order is ultimately envisaged. In turn, a confiscation order can only be made after a criminal conviction. </p>
<p>The logical conclusion is that the NPA, assuming that they are acting in good faith, are intent on arresting and prosecuting the Guptas.</p>
<h2>Dilemma facing Ramaphosa and the ANC</h2>
<p>The problem for the ANC is this: if its intention is to make the Guptas the sole-scapegoats in the state-capture saga, they will be in a good deal of trouble. Of the published Gupta scandals, the evidence strongly suggests that they were not acting alone. The Guptas themselves may represent only the tip of the iceberg.</p>
<p>Top government officials are reported to have been involved in almost all instances. </p>
<p>For example, Mining Minister Mosebenzi Zwane, is heavily implicated in the <a href="https://www.dailymaverick.co.za/opinionista/2017-07-18-estina-dairy-farm-a-corruption-crime-scene-in-vrede/#.WmCWaaiWbIU">Sun City wedding affair</a>, while whistle-blowers <a href="https://businesstech.co.za/news/government/117104/guptas-did-offer-me-the-job-of-finance-minister-jonas/">Mcebisi Jonas</a> and <a href="https://www.enca.com/south-africa/guptas-offered-me-ministerial-role-vytjie-mentor">Vytjie Mentor</a> implicate Zuma as a participant in the Guptas offering them (for undue reward) the positions of ministerial positions.</p>
<p>Zuma’s son, Duduzane, is also heavily implicated in <a href="https://www.timeslive.co.za/politics/2017-08-29-since-you-asked-heres-the-case-against-duduzane-zuma/">corrupt activities</a> related to the state power utility Eskom, as well as the finance minister debacle.</p>
<p>The NPA will struggle to prove its case against the Guptas, at least the full extent of it, without implicating those that drove or condoned their misdemeanours. It seems clear therefore that the ANC cannot restore its reputation while letting its leaders who looted the country’s resources drift off into the wilderness. </p>
<p>This presents Ramaphosa with an acute political dilemma given that he’s pledged to <a href="https://www.dailymaverick.co.za/article/2018-01-09-ancs-106th-ramaphosas-push-for-unity-continues/#.WmG_Dq6WbIU">rebuild unity</a> in the ANC.</p>
<p>Hence, we are likely to see a very high level and multifaceted blame game. But any attempt to restore its credibility will probably prove counter productive unless the party accepts that some of its biggest fish must be prosecuted too.</p>
<p>And it goes without saying that private sector players such as <a href="https://www.moneyweb.co.za/news/south-africa/mckinsey-warned-eskom-of-risks-at-gupta-linked-trillian-capital/">Trillian</a> and <a href="https://www.ft.com/content/71c6f115-0c5c-33ed-bc00-812263f39d2f">KPMG</a> who were willing enablers of the abuse of state procurement processes must also be held to account. If necessary they must pay the ultimate price of corporate collapse as <a href="https://www.fin24.com/Companies/Advertising/breaking-bell-pottinger-expelled-from-pr-body-for-gupta-work-20170904">Bell Pottinger</a> did.</p>
<h2>Just the beginning</h2>
<p>The NPA’s announcement represents no more than a good start after years of prosecutorial negligence and incompetence – or dishonesty – and costly inaction. </p>
<p>In terms of accountability it’s indeed time to catch up and restore the legitimacy of important institutions. But the stakes are very high – for the implicated politicians and their business cronies, for Ramaphosa and the ANC’s electoral future, and for the credibility of South Africa as a trustworthy destination for much needed investment.</p><img src="https://counter.theconversation.com/content/90395/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Calland is a Founding Partner of the Paternoster Group: African Political Insight, a Member of the Advisory Council of the Council for the Advancement of the South African Constitution (CASAC) and a member of the Board of the Open Democracy Advice Centre. </span></em></p><p class="fine-print"><em><span>Mike Law receives funding from UCT is affiliated with UCT and CASAC </span></em></p>After doing nothing for a long time to bring the Gupta family to book in South Africa, the country’s prosecuting authority has finally started to act.Richard Calland, Associate Professor in Public Law, University of Cape TownMike Law, Senior legal researcher in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/826682017-08-22T15:06:28Z2017-08-22T15:06:28ZCentral bank case exposes incompetence of South Africa’s public protector<figure><img src="https://images.theconversation.com/files/182800/original/file-20170821-27163-1krbidt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa has been rocked by a legal battle between the country's Public Protector and Reserve Bank. </span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p><em>The South African Reserve Bank has won a critical <a href="https://www.timeslive.co.za/politics/2017-08-15-public-protector-should-reflect-on-her-conduct-court-says/">court battle</a>. The Pretoria High Court has set aside a
ruling by the country’s Public Protector that the central bank’s constitutional mandate should be changed. The Conversation Africa’s Sibonelo Radebe asked Jannie Rossouw to consider the implications of the court’s decision, and the events that led up to it.</em></p>
<p><strong>What do you read from this development?</strong></p>
<p>The judgment clearly shows the Public Protector, Busisiwe Mkhwebane, overstepped the mark in commenting on the constitutional mandate of another <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-09.pdf">Article 9 institution</a>. South Africa has six independent Article 9 institutions which are designed to shore up constitutional democracy. These include institutions like the SA Reserve Bank, the South African Human Rights Commission, the Auditor-General, the Independent Electoral Commission – and the Public Protector itself.</p>
<p>It makes little sense for one of these institutions to want to influence the constitutional mandate of another. Left unchallenged, the Public Protector’s ruling would have led to an untenable situation. It would have implied that the Public Protector could usurp the role of the Constitutional Court. </p>
<p>This raises questions about the ability of the Public Protector to discharge her responsibilities competently and without fear or favour. The Public Protector’s office is meant to act in the best interests of all South Africans, not particular groups.</p>
<p><strong>Where does this case leave the public protector?</strong></p>
<p>The Public Protector should do the honourable thing and simply resign. She is clearly not fit to hold office and is now a national embarrassment. She is also doing damage to the stature of the office she holds.</p>
<p>Her incompetence raises questions about her ruling over two critical issues.</p>
<p>The first was that the constitutional mandate of the Reserve Bank should be amended, implying that the focus of the central bank should not be on inflation. Not only is this finding outside of the scope of her mandate, but it also shows a complete lack of understanding of the functions and policy limitations of a central bank. These could have been explained to her by any undergraduate economics student. She should have had the insight to understand that this mandate is prescribed by the Constitution.</p>
<p>It’s mind boggling that a person in her position could make such a bad mistake. </p>
<p>She also ruled that the Reserve Bank behaved irregularly in not reclaiming a bailout extended to <a href="https://theconversation.com/pursuing-a-30-year-old-bailout-is-sending-south-africa-on-a-wild-goose-chase-79792">Bankorp</a> in the 1980’s. She ordered Absa which acquired Bankorp to pay back the bailout money. Absa has filed an <a href="https://www.timeslive.co.za/sunday-times/business/2017-06-21-in-full-absa-goes-to-court-over-public-protector-report/">application</a> for this ruling to be set aside. </p>
<p>I’m of the view that she also erred in her Bankorp/Absa findings on a number of grounds. The most important are the time lapse since the assistance, which implies prescription and lapse of any claim in this matter. Moreover the Reserve Bank has assisted numerous banks in South Africa on various occasions without the imposition of the same sanction. It would be questionable justice to impose sanction over the Bankorp matter and not in any other instance where the Reserve Bank came to the rescue of banks.</p>
<p><strong>What are the political implications if any?</strong></p>
<p>The court’s judgement has saved South Africa from a <a href="https://theconversation.com/why-south-africas-public-protector-has-overstepped-her-mandate-80026">potential constitutional crisis</a> which would have caused further damage to investor confidence. </p>
<p>A number of key institutions like the Auditor General and the Independent Electoral Commission could be rendered vulnerable if the Public Protector were given free reign. These institutions are supposed to protect public interest but have come under attack in this era of <a href="https://theconversation.com/why-patronage-and-state-capture-spell-trouble-for-south-africa-64704">state capture</a>.</p>
<p>A number of public institutions, government departments and State owned enterprises, have been captured by forces acting in the narrow interest of politicians and their friends. This has placed the country in jeopardy. </p>
<p>Recent developments around the country’s treasury is a perfect example of how far the agents of state capture are prepared to go. South Africans watched with horror how the state capture agents bulldozed their way into the National Treasury. When the previous finance minister Pravin Gordhan stood against attempts to raid the public purse, he had to be <a href="https://theconversation.com/firing-of-south-africas-finance-minister-puts-the-public-purse-in-zumas-hands-75525">fired</a> and the conduct of his successor in the face of state capture is still subject to scrutiny.</p>
<p><strong>What are the economic implications if any?</strong></p>
<p>The South African Reserve Bank is one of few public institutions in South Africa <a href="https://theconversation.com/its-hard-to-get-rid-of-the-governor-of-a-central-bank-heres-why-64836">not tainted</a> by the Gupta-leaks. It therefore symbolises stability and confidence in the South African economy.</p>
<p>It means that the Bank will continue to discharge its constitutional responsibility and its independence is still safeguarded. Its independence serves to protect it from the whims of politicians.</p>
<p>It therefore implies that the bank will continue to focus on containing inflation as a consequence of its unchanged constitutional <a href="https://theconversation.com/why-south-africas-public-protector-has-overstepped-her-mandate-80026">mandate</a> which is to protect the value of the currency in the interest of balanced and sustainable economic growth.</p>
<p>This ruling will help to maintain some confidence in the South African economy, and will go some way towards restoring the slipping sovereign credit rating.</p>
<p>However, much more needs to be done before South Africa will once again have investment grade credit ratings from all major ratings agencies. For one thing, there must be greater policy certainty.</p><img src="https://counter.theconversation.com/content/82668/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jannie Rossouw previously worked for the SA Reserve Bank and holds shares in the SA Reserve Bank. He receives funding from the NRF as a C-rated researcher.</span></em></p>South Africa’s Public Protector, has been exposed as incompetent after trying to meddle with the constitutional mandate of the country’s central bank.Jannie Rossouw, Head of School of Economic & Business Sciences, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/811122017-07-27T03:03:36Z2017-07-27T03:03:36ZPolitical irrationality is ruining South Africa, but can still be stopped<figure><img src="https://images.theconversation.com/files/179020/original/file-20170720-23992-83iazg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Jacob Zuma was slammed as being irrational for the recent cabinet reshuffle.</span> <span class="attribution"><span class="source">GCIS</span></span></figcaption></figure><p>In popular conceptions of what it means to be human is the universal notion that our species - <em>homo sapiens</em> - is essentially rational. It’s commonly believed that as rational beings, our thoughts and actions are informed by reason and logic that precludes the influence of emotions. On the other hand, irrationality is associated with defective reasoning, perverse thinking, being excessively emotional, or at worst, crazy.</p>
<p>Democracy, and by extension good governance, presupposes the capacity of political leadership to engage in reasoned debate, informed decision making and measured judgements. In the South African context, it’s assumed that this will all happen within the framework of the <a href="http://www.gov.za/documents/constitution-republic-south-africa-1996">Constitution</a>.</p>
<p>In this way democratic governance is premised on rationality. It appears to be unthinkable without it. But is this true?</p>
<p>No. And certainly not in South Africa now. Irrationality is the term frequently used to describe the country’s political landscape. This is clear from the coverage of the embattled government of President Jacob Zuma, and its leadership. </p>
<p>The growing anxiety and uncertainty in the country is aptly articulated by the <a href="https://www.dailymaverick.co.za/opinionista/2017-04-02-power-and-principle-has-zuma-checked-reason-and-rationality-at-the-door/">news headline</a>:</p>
<blockquote>
<p>Has Zuma checked reason and rationality at the door? </p>
</blockquote>
<p>In the unfolding drama of the far-reaching political scandal that threatens South Africa’s nascent democracy, known as “<a href="http://www.enca.com/south-africa/anc-calls-on-government-to-probe-gupta-email-allegations">Guptagate</a>”, political leadership has been repeatedly called out for its irrational behaviour. In response to Zuma’s most <a href="https://theconversation.com/stakes-for-south-africas-democracy-are-high-as-zuma-plunges-the-knife-75550">recent cabinet reshuffle</a> where he replaced finance minister Pravin Gordhan, Bonang Mohale, deputy chairperson of Business Leadership South Africa, <a href="http://www.capetalk.co.za/articles/251139/zuma-responsible-for-turmoil-recklessness-and-irrationality-blsa">said</a>: </p>
<blockquote>
<p>We have the President [Zuma] to thank for all this turmoil, irrationality and absolute recklessness… </p>
</blockquote>
<p>For its part, the opposition Democratic Alliance went to court to have the president’s decision set aside on the grounds that it was <a href="http://ewn.co.za/2017/06/02/zuma-granted-leave-to-appeal-ruling-to-hand-over-cabinet-reshuffle-records">irrational and unconstitutional</a>. </p>
<p>More recently the South African Reserve Bank, known for its conservative stance, openly accused the Public Protector of being reckless and irrational in her attempts to <a href="https://www.timeslive.co.za/news/south-africa/2017-06-27-reserve-bank-challenges-public-protector-report-in-court/">amend the Constitution</a>. Her recommendations in a <a href="https://www.dailymaverick.co.za/article/2017-07-06-hands-off-sarb-public-protector-meddling-a-great-threat-to-an-economy-crippled-by-serious-problems/">report</a> on a bank bailout, has been widely viewed as beyond the mandate of her office and a threat to the stability of the economy.</p>
<p>The use of the word “irrational” in South Africa’s political debates begs interrogation. Increasing accounts of political irrationality naturally raise concerns about the effectiveness of democratic governance – and its legitimacy.</p>
<h2>Dispelling the ‘myth’ of rationality</h2>
<p>Irrationality as a ubiquitous descriptor of political machinations is not peculiar to South Africa. It is well documented across climes and cultures. US President Donald Trump immediately comes to mind. As a world leader he has elicited both censure and derision as grossly irresponsible and fundamentally <a href="http://www.chicagotribune.com/news/opinion/commentary/ct-donald-trump-hate-media-immigrants-20170501-story.html">irrational</a>.</p>
<p>The fact is humans are not rational by default. The <a href="http://danariely.com/2009/04/20/irrationality-is-the-real-invisible-hand/">“invisible hand”</a> that drives human behaviour is in fact, irrationality. Nobel laureate, psychologist <a href="http://bigthink.com/videos/daniel-kahneman-on-controling-irrational-tendencies">Daniel Kahneman</a> together with Amos Tversky and others have pioneered research in this field. </p>
<p>Wired by evolution, cognitive limits restrict how we select, compute, store and adapt to information. Research shows that we employ a range of heuristics (mental shortcuts) that lead to cognitive biases and distorted perceptions. Most of these we’re not even aware of. As behavioural economist <a href="https://www.amazon.de/Predictably-Irrational-Hidden-Forces-Decisions-ebook/dp/B002RI9QJE">Dan Ariely</a>, author of “Predictably Irrational: The Hidden Forces That Shape Our Decisions” asserts:</p>
<blockquote>
<p>Our irrational behaviours are neither random nor senseless – they are systematic.</p>
</blockquote>
<p>For example, humans have the tendency to select information (selection bias) that confirms preexisting beliefs (confirmation bias) while avoiding contradictory information that disturbs their preferred worldview. This <a href="https://theconversation.com/confirmation-bias-a-psychological-phenomenon-that-helps-explain-why-pundits-got-it-wrong-68781">well-researched bias</a> is at work when politicians choose to present skewed, biased evidence that makes them look credible with the public to achieve desired outcomes.</p>
<p>There’s also a self-interested bias where people are prone to distorted thinking because it benefits them in some way. <a href="http://rintintin.colorado.edu/%7Evancecd/phil3600/Huemer1.pdf">Rational irrationality</a> explains how:</p>
<blockquote>
<p>(people) choose - rationally - to adopt irrational beliefs because the costs of rational beliefs exceed their benefit. </p>
</blockquote>
<p>This goes some way in explaining the reckless actions of politicians like Zuma and Trump who devise irresponsible strategies in the interests of their “rational” endgame.</p>
<p><a href="http://www.cep.ucsb.edu/McDermott/papers/rationality2004.pdf">Neuroscience</a> shows that when it comes to decision making, humans are wired to favour emotions over intellect. This means emotions have an impact on our decisions in various ways. For example, in the face of deep uncertainty – a persistent feature of our age – unconscious emotions and perceptions render us prone to cognitive biases and errors.</p>
<p>This refutes the ideal of the stoic “rational man”, a description that persistently devalues women and castes them as the “weaker” sex. This stereotype – of women as emotionally volatile and incapable of rational thought – has served to exclude them from the corridors of power. </p>
<h2>Political irrationality has dire consequences</h2>
<p>Because irrationality is inherently human, it’s been a persistent part of politics throughout history. There’s substantial evidence that entrenched and unchecked irrationality has devastating consequences. This has happened when political leaders eschew reason and logic. In South Africa’s case this is clear from the country’s <a href="https://www.theguardian.com/world/2017/apr/04/south-africa-credit-rating-junk-status-sends-rand-tumbling">crippled economy</a> and rising <a href="https://www.dailymaverick.co.za/article/2017-05-23-op-ed-the-descent-of-jacob-zuma-in-31-steps-and-counting/">discontent</a>. </p>
<p>But this doesn’t mean that irrationality has to prevail. South African civil society and democratic institutions have come to the party. They are increasingly challenging the irrational, unconstitutional actions of the ANC-led government and its leadership. What’s patently evident is that a free, independent press, the rule of law as enshrined in the Constitution and an independent judiciary are the bulwarks of a democracy under assault.</p><img src="https://counter.theconversation.com/content/81112/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lyn Snodgrass 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>Democracy and good governance require politicians to engage in reasoned debate, informed decision making and measured judgements. This presupposes rationality. Is this always true?Lyn Snodgrass, Associate Professor and Head of Department of Political and Conflict Studies, Nelson Mandela UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/805522017-07-11T18:47:59Z2017-07-11T18:47:59ZSouth Africa needs a sensible debate about its Reserve Bank. Here’s a start<figure><img src="https://images.theconversation.com/files/177172/original/file-20170706-25361-d8yj1z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Stable food prices are a central issue for South Africa's Reserve Bank. But should it be doing more to protect the poor?</span> <span class="attribution"><span class="source">Reuters/Siphiwe Sibeko</span></span></figcaption></figure><p>Debates on monetary policy in South Africa over the last couple of decades seem to have come from a madhouse. First, in the 1990s the country had old discredited <a href="http://rledi.ukzn.ac.za/docs/readings-for-the-seminar/freedom-to-neolib.pdf?sfvrsn=2">Washington Consensus policies</a> rammed down its throat. This was done with little regard for alternative progressive ideas and little or no democratic debate or public participation. </p>
<p>And then recently the country’s Public Protector, Busisiwe Mkhwebane released <a href="https://theconversation.com/why-south-africas-public-protector-has-overstepped-her-mandate-80026">a report</a> that made sweeping populist recommendations about the South Africa Reserve Bank. The report favoured revising the country’s constitution and a binding recommendation for a monetary policy regime that excludes any reference to price stability. A mandate like this simply doesn’t exist in any comparable country with a well-developed private banking system. </p>
<p>To put the report in context we want to focus on basic monetary policy principles that have been debated for centuries by serious thinkers and scholars. We also explore how South Africa can move the debate forward constructively and responsibly.</p>
<p>Broadly, thinkers on monetary policy can be considered on a scale with <a href="https://mises.org/library/lenin-and-marx-sound-money-advocates">“sound money”</a> advocates on the one side, and those concerned that money and banking must serve the productive economy – let’s call them <a href="http://www.imf.org/external/pubs/ft/fandd/2014/09/nobels.htm">“serve-society”</a> advocates – on the other.</p>
<p>We locate ourselves unambiguously on the “serve-society” side of the debate. We agree with <a href="https://addi.ehu.es/bitstream/handle/10810/6481/il2007-29.pdf?sequence=1">William Lowndes</a> who served in the British Treasury in 1695, who said that money supply must serve society. <a href="http://eprints.lse.ac.uk/64068/1/Currency%20School%20versus%20Banking%20School.pdf">Thomas Attwood</a> in the 19th Century, <a href="https://www.fas.harvard.edu/%7Ehistecon/docs/Keynes-Skidelsky.pdf">John Maynard Keynes</a>, the trade union leader <a href="https://www.princeton.edu/%7Eies/IES_Studies/S48.pdf">Ernest Bevin</a> and <a href="http://www.levyinstitute.org/pubs/wp74.pdf">Hyman P Minsky</a> in 20th Century, concurred. </p>
<p>Unlike Mkhwebane’s report, these economists, particularly Keynes and Minsky, understood that currency and money markets under capitalism have a nasty tendency to be unstable. That’s why the regulatory and lender of last resort function of the Reserve Bank is so vital. (When the operations of the inter-banking lending market cease to operate, the lender of last resort is the entity – usually a Central Bank – that has sufficient liquidity to lend to banks short of funds.)</p>
<p><a href="https://www.resbank.co.za/Pages/default.aspx">The South African Reserve Bank</a> has performed these roles moderately well for almost a century. The country hasn’t had a systemic banking crises since the formation of the Reserve Bank in 1921. Experts in the field <a href="http://press.princeton.edu/titles/10177.html">Calomiris and Haber, 2004</a>, find that South Africa is among the most stable top 13 banking systems in the world. The Reserve Bank should take credit for much of that. </p>
<p>That doesn’t mean that it’s beyond criticism which is why a serious debate is needed. The debate doesn’t need to rely on the ideas of fringe adventurers and crackpots. The country has a wealth of intellectual talent on monetary and central banking policy inside and outside its universities that straddle the ideological spectrum. The country’s public intellectuals in the unions and in civil society organisations have excellent ideas on central banking and monetary policy. Ordinary citizens should be drawn in too.</p>
<p>One thing is clear: things cannot remain as they are because so much is changing in the world of central banking and in economic life.</p>
<h2>The two camps</h2>
<p><a href="https://www.atlasnetwork.org/book/roads-to-sound-money">Sound money thinkers</a> tend to view banking as just another business, best left to the free market. Historically sound money economists have preferred deregulation of the banking system. But since the spectacular collapse of thousands of banks in many parts of the world in the <a href="https://www.federalreservehistory.org/essays/banking_panics_1930_31">1930s</a>, and the banking and financial crises after 2008 , very few now propose abolishing the lender of last resort function of central banks. </p>
<p>Sound money economists now want central bankers bound by rules, rather than allowing for discretion. But they still focus on the virtues of trade and private finance. </p>
<p>For their part, “serve-society” advocates worry about production, employment and growth. </p>
<p>Keynes – by no measure a crank or a crackpot – was very much in favour of adjusting monetary and fiscal policy where necessary. He was a passionate advocate of sound banking and financial regulation because he understood the inherent instability of capitalism. He warned that getting it wrong could massively increase poverty and unemployment. </p>
<p>In 1933 he <a href="https://link.springer.com/chapter/10.1007/978-1-4615-4961-1_4">proposed</a> three safeguards when shifting economic policy priorities: Firstly, don’t be doctrinaire. Secondly, he maintained that “the economic transition of a society is a thing to be accomplished slowly”. And thirdly, don’t allow “intolerance and the stifling of instructed criticism”. For those not in public office he offered this final piece of advice:</p>
<blockquote>
<p>Words ought to be a little wild – for they are the assault of thought on the unthinking. </p>
</blockquote>
<h2>A changing world</h2>
<p>Conventional notions of what central banks are, and of what they should do, face a number of <a href="https://theconversation.com/reserve-bank-independence-sobering-lessons-from-india-and-south-africa-65259">challenges</a>. For example, the processes of technological innovation, including the growth of <a href="https://theconversation.com/alternative-currencies-are-the-future-why-it-matters-for-development-80036">crypto currencies like Bitcoin</a>, are rapidly reshaping some of the core functions of central banks. </p>
<p>And over the last three decades a number of economic factors have forced central banks to <a href="https://theconversation.com/south-africas-reserve-bank-is-in-the-eye-of-a-storm-academics-quiz-the-governor-76535">review their roles</a>. They’ve had to do so to align their functions with other states in the wake of greater economic regionalisation, the creation of <a href="https://www.ecb.europa.eu/home/html/index.en.html">monetary unions</a> and the establishment of regional central banks.</p>
<p>The <a href="https://www.economist.com/news/schoolsbrief/21584534-effects-financial-crisis-are-still-being-felt-five-years-article">events of 2008</a> also shook confidence in the ability of central banks to use their reputedly vast capacity and skills to predict and head off the crisis. This has been particularly true as far as their regulatory responsibilities to promote financial stability are concerned. </p>
<p>As pointed out by Princeton Professor and former deputy-Governor of the Banque du France, <a href="http://www.jeanpierrelandau.com/">Jean Pierre Landau</a>, a return to the status quo ante in respect of central bank policy is neither desirable nor indeed feasible. </p>
<p>Despite this warning the status quo ante is being defended all over the world as if nothing has changed, and as if all is well in our economies. </p>
<h2>Let the debate begin</h2>
<p>After the release of the Public Protector’s report the Governor of the South African Reserve Bank, Lesetja Kganyago, offered the potential space to begin a serious <a href="https://www.moneyweb.co.za/moneyweb-opinion/monetary-policy-discussion-must-be-based-on-facts-kganyago/">debate</a> about South African monetary policy aimed at creating a more inclusive and prosperous society and economy.</p>
<p>But, he warned, such a discussion would have to be based on “evidence and sound analysis”. </p>
<p>In our view ideas must come from across the ideological spectrum. And they must be debated in legitimate and properly structured forums. One place to begin the discussion would be Parliament’s Portfolio Committee on Finance. </p>
<p>Other structures – such as the Reserve Bank’s Monetary Policy Forums (as proposed by the governor) and forums led by business, labour and civil society organisations as well as universities – need to keep up the momentum.</p>
<p>There must be no place for defensive postures, arrogance or condescension. The debate must be guided by one overriding objective: to improve the quality of life of the many South Africans for whom the end of apartheid has brought no real material change? It must consider the impact of change on employment, investment and growth.</p><img src="https://counter.theconversation.com/content/80552/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Vishnu Padayachee receives no external funding for my current research program. My Chair in Development Economics at Wits University is funded by the Derek Schrier and Cecily Cameron Foundation (New York). In the past I have received funding from a number of global and national foundations and research organisations including the Ford Foundation, the National Research Foundation, and the Canon Collins Educational Trust (UK).
I was a non-executive director of the South African Reserve Bank from April 1996 to September 2007. None of the views expressed here can or should be linked to my former role in SARB. Nor do the views expressed here reflect any of the positions held by the SARB either now or in the past.. </span></em></p><p class="fine-print"><em><span>Bradley Bordiss is affiliated with Bordiss Properties CC, a property management Company. He is also a Director of the NGO Streetsmart, and other property companies. </span></em></p>There’s a raging debate in South Africa about the role of its central bank. This is inevitable given that so much is changing in the world of central banking and in economic life.Vishnu Padayachee, Distinguished Professor and Derek Schrier and Cecily Cameron Chair in Development Economics, School of Economics and Business Sciences, University of the WitwatersrandBradley Bordiss, PhD candidate Development Economics, School of Economics and Business Sciences, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/800262017-06-26T15:12:52Z2017-06-26T15:12:52ZWhy South Africa’s public protector has overstepped her mandate<figure><img src="https://images.theconversation.com/files/175647/original/file-20170626-7749-175qpwb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Shutterstock</span> </figcaption></figure><p><em>South Africa’s Public Protector, Busisiwe Mkhwebane, sent shock waves across the country by <a href="http://www.pprotect.org/library/investigation_report/2016-17/Report%208%20of%202017&2018%20Public%20Protector%20South%20Africa.pdf">calling for an amendment</a> to the South African Reserve Bank’s constitutional mandate. The Conversation Africa’s Sibonelo Radebe asked Jannie Rossouw to share his views.</em></p>
<p><strong>What do you make of the Public Protector’s recommendation?</strong> </p>
<p>It seems to me that the Public Protector acted outside her bounds when she made the recommendation to change the mandate of the South African Reserve Bank. The Public Protector’s findings and recommendations are binding, except if put aside by a court of law. This is why the central bank had no other alternative but to call for a <a href="https://www.resbank.co.za/Lists/News%20and%20Publications/Attachments/7852/PRESS%20RELEASE%20FOR%20SARB%20.pdf">legal review</a>.</p>
<p>The Public Protector created a situation in which one <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-09.pdf">Article 9 institution</a> – the one she now heads up – has deliberately undermined the constitutional independence of another Article 9 institution, the Reserve Bank. Article 9 institutions are all guaranteed independence under the constitution.</p>
<p>It is unclear whose agenda the Public Protector is serving in pronouncing in matters outside her mandate. </p>
<p><strong>What does it say about prevailing political environment?</strong></p>
<p>It comes as the country’s political order is in regression, undermined by a growing list of <a href="https://theconversation.com/why-patronage-and-state-capture-spell-trouble-for-south-africa-64704?sr=11">scandals</a>. When South Africa buried the apartheid order and became a democracy in 1994 it promised to observe a number of key principles that support a democratic order. The creation and maintenance of independent institutions was one of them. Like the judiciary and <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-09.pdf">Chapter 9 institutions</a>, the South African Reserve Bank works well as an independent institution. </p>
<p>In the case of the Reserve Bank, the independence serves to protect it from the whims of politicians. This is ensured in <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf">section 225</a> which states that:</p>
<blockquote>
<p>The South African Reserve Bank, in pursuit of its primary object, must perform its functions independently and without fear, favour or prejudice, but there must be regular consultation between the Bank and the Cabinet member responsible for national financial matters.</p>
</blockquote>
<p>Economic disasters can strike if the independence is compromised. </p>
<p>Central bank independence was under threat in the 1980s in South Africa. This was when the Reserve Bank was made to follow <a href="http://repository.up.ac.za/bitstream/handle/2263/27224/05chapter5.pdf?sequence=6">political orders</a> about what level interest rates should be. It had to ask for political permission to adjust rates. This can only lead to bad monetary policy. The <a href="http://www.tandfonline.com/doi/pdf/10.1080/20780389.1994.10417229?needAccess=true">result</a> was that inflation sky-rocketed. There were other negative effects too, such as investment uncertainly owing to swings in interest rates, low economic growth and financial instability. </p>
<p>From 1981 to 1989 the rate of inflation in South Africa averaged 14.7%. This caused considerable hardship for South Africans, mainly poor people, as they had difficulty coping with fast-paced price increases.</p>
<p><strong>What are the likely consequences of the Public Protector’s action?</strong></p>
<p>I am of the opinion that the Public Protector has overstepped the mandate entrusted to her office in challenging the constitutional mandate of the central bank. Clearly the mandate of the Public Protector cannot be to pronounce on the constitutional mandates of other bodies established in terms of South Africa’s Constitution. </p>
<p>The constitutionality of matters is a role entrusted to the Constitutional Court. By interpreting her mandate in the way she has, she raises uncertainty about what the demarcation of responsibilities is between the Constitutional Court and the Public Protector.</p>
<p>By defending its independence the Reserve Bank is protecting all bodies established in terms of the constitution against an errant Public Protector. </p>
<p>I hope that the Reserve Bank is successful in defending its case. The alternative – the court upholding the findings and recommendations of the Public Protector – could cause a constitutional crisis in South Africa. All constitutional bodies, such as the Auditor General, could then find themselves discharging their mandates subject to approval of the Public Protector. </p>
<p>Surely this could not have been the intention of those who drafted the South African Constitution.</p>
<p><strong>What is your view about the current mandate of the Reserve Bank?</strong></p>
<p>I think the current mandate of the Reserve Bank is sound.</p>
<p>Section 224 of the Constitution, which was highlighted by the Public Protector, says the primary object of the Reserve Bank is to:</p>
<blockquote>
<p>protect the value of the currency in the interest of balanced and sustainable economic growth…</p>
</blockquote>
<p>The main instrument it uses to achieve this goal is making sure that inflation is kept under control. When inflation is low, it implies that money does not lose value, as prices remain stable. On the other hand, if inflation is high, money loses value very rapidly, with a declining exchange rate and rapid price increases. Protecting the value of the currency through containing inflation is a sensible thing to do. I regard inflation as public enemy number one, as it makes people poorer as they have to cope with higher prices. </p>
<p>The argument is often made that the Reserve Bank is only serving the rich. This is untrue. By containing inflation, the central bank serves all South Africans, irrespective of whether they’re rich or poor. Both suffer when inflation is high, as they have to cope with higher prices.</p><img src="https://counter.theconversation.com/content/80026/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jannie Rossouw is a C3-rated researcher of the National Research Foundation (NRF) receives funding from the NRF</span></em></p>The prevailing mandate of the South African Reserve Bank is informed by sound economics and the need to protect the institution from the whims of politicians.Jannie Rossouw, Head of School of Economic & Business Sciences, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/799312017-06-22T13:19:48Z2017-06-22T13:19:48ZA public protector’s job is to make sure people stick to the law - not to change it<figure><img src="https://images.theconversation.com/files/175162/original/file-20170622-12027-uyy26c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Busisiwe Mkhwebane, the public protector of South Africa.</span> <span class="attribution"><span class="source">EPA/Nic Bothma</span></span></figcaption></figure><p>South Africa’s Public Protector Busisiwe Mkhwebane has directed a parliamentary portfolio committee to initiate proceedings to amend a clause in the country’s <a href="http://www.gov.za/DOCUMENTS/CONSTITUTION/constitution-republic-south-africa-1996-1">Constitution</a> that sets out the primary aim of the country’s Reserve Bank.</p>
<p>As many commentators have <a href="http://constitutionallyspeaking.co.za/absa-is-poster-child-for-apartheid-corruption-but-this-does-not-mean-the-public-protector-can-order-the-amendment-of-the-constitution/#more-9810">pointed out</a>, the Public Protector cannot order that the Constitution be amended. It is not part of her job and it’s outside her powers.</p>
<p>The Constitution gives the Public Protector the <a href="http://www.constitutionalcourt.org.za/site/constitution/english-web/ch9.html">task of investigating</a></p>
<blockquote>
<p>any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice. </p>
</blockquote>
<p>The focus of her investigation is thus conduct. This is underscored and fleshed out by the <a href="http://www.gov.za/sites/www.gov.za/files/Act23of1994.pdf">Public Protector Act</a>. The Act empowers her to investigate, among other things: maladministration, abuse of power, dishonest acts or omissions, improper enrichment, and acts or admissions which result in unlawful or improper prejudice to any other person.</p>
<p>In this case, the Public Protector claimed to approach her investigation by asking two questions: what happened? And, what should have happened? </p>
<p>The first is a question of fact. But to answer the second question she notes that the focus moves to</p>
<blockquote>
<p>the law or rules that regulate the standard that should have been met by the government or organ of state to prevent maladministration and prejudice. </p>
</blockquote>
<p>In other words, it is the law that provides the points of reference which tell her whether the banks and government’s acts or omissions constitute misconduct.</p>
<p>But what the Public Protector wants to do is to change the law itself. She is not satisfied with determining whether the Reserve Bank and government obeyed the relevant, current rules: she wants to write new ones. </p>
<p>Indeed, her recommendation goes well beyond changing individual rules to overturning their very foundation, anchored in the Constitution. She has ordered that a major decision of the <a href="http://www.sahistory.org.za/article/drafting-and-acceptance-constitution">Constitutional Assembly</a>, which drew up the Constitution following the first democratic elections in 1994, on a complex matter of economic policy, be thrown out.</p>
<p>This can’t be right.</p>
<h2>No precedent</h2>
<p>We must not be persuaded that there is any precedent for this. In her <a href="http://www.da.org.za/wp-content/uploads/2016/11/State-of-Capture-14-October-2016.pdf">“State of Capture”</a> report, the previous Public Protector, <a href="https://theconversation.com/how-south-africas-public-protector-has-set-a-high-bar-for-her-successor-63891?sr=1">Thuli Madonsela</a>, found that members of Cabinet had violated their obligations under the Constitution and the <a href="http://www.saflii.org/za/legis/num_act/emea1998252.pdf">Executive Members Ethics Act</a> by failing to prevent the misuse of state funds to upgrade the president’s private residence. </p>
<p>Part of her remedial action was to recommend that the secretary of Cabinet update the policy to provide ministers with more detailed guidance, and to recommend that the minister of police review the Apartheid-era <a href="http://www.gov.za/sites/www.gov.za/files/39147_gen874.pdf">National Key Points Act</a>. This review was required to clarify the Act’s application and to bring it in line with the Constitution. </p>
<p>There are two major differences between these recommendations and an instruction that a constitutional provision be reworded in a specific manner.</p>
<p>Mkhwebane prescribed the exact wording of the new provision. She said that the clause which currently reads:</p>
<blockquote>
<p>The primary object of the South African Reserve Bank is to protect the value of the currency in the interest of balance and sustainable economic growth in the Republic.</p>
</blockquote>
<p>Should instead <a href="http://www.pprotect.org/library/investigation_report/2016-17/Report%208%20of%202017&2018%20Public%20Protector%20South%20Africa.pdf">read</a>: </p>
<blockquote>
<p>The primary object of the South African Reserve Bank is to promote balanced and sustainable economic growth in the Republic, whilst ensuring that the socio-economic well-being of the citizens is protected.</p>
</blockquote>
<p>This is quite a different matter. Neither of Madonsela’s recommendation sets out the wording of the new provisions, merely the goal they should achieve. And each is aimed at bringing the relevant provisions into compliance with higher laws to which they are subject – either the Executive Ethics Act or the Constitution itself. And this is because it is the job of the Public Protector to remedy specific misconduct, and the job of Parliament to make laws.</p>
<p>In its <a href="http://www.news24.com/SouthAfrica/News/full-text-constitutional-court-rules-on-nkandla-public-protector-20160331">judgment on the Nkandla case</a>, the Constitutional Court held that the Public Protector is subject “only to the Constitution and the law”. But she <em>is</em> subject to them. And the Constitution sets out a specific, thorough process for the passing of any law, and particularly a constitutional amendment. </p>
<p>The elected representatives of the people are meant to debate all laws and fashion them into the form they believe is best for the country. If the wording of any law is determined in advance of this process, then the process itself is rendered meaningless. The Constitution’s law-making requirements are discarded.</p>
<p>The Public Protector cannot throw out the Constitution. Her remedial action is therefore invalid.</p>
<h2>Effects of the recommendation</h2>
<p>If taken seriously, her recommendation has the potential to influence current political debates on economic development in South Africa, supporting the line advanced by groups such as <a href="http://blackopinion.co.za/2017/02/18/black-first-land-first-marches-reserve-bank-demand-absamustpay/">Black First Land First</a>, and reducing the independence of one of the few public bodies which has not yet been tainted by evidence of state capture.</p>
<p>But if this was the intention, it could backfire, because the Public Protector can bring this influence only if she enjoys legitimacy in her own right. She does not, in part due to her <a href="http://www.sowetanlive.co.za/news/2016/10/20/busisiwe-mkhwebane.-bares-claws-towards-thuli-madonsela">hostile treatment of her predecessor</a> and a perceived unwillingness to take steps against <a href="http://ewn.co.za/2017/06/16/listen-mkhwebane-denies-being-selective-in-state-capture-probe">President Zuma and his allies</a>. </p>
<p>She laid a criminal charge against her predecessor on receiving a complaint from the president, and then attempted to <a href="http://www.sabc.co.za/news/a/4c9659804f2266a094cdd570ce873b7f/Public-Protector-says-she-did-not-lay-charges-against-Madonsela">deny the legal import of her action</a>. Staff closely associated with the former Public Protector or the State Capture report appear to have been <a href="http://www.huffingtonpost.co.za/2017/02/05/thuli-madonsela-staff-who-worked-on-the-state-capture-are-being_a_21707478/">forced out of their jobs</a>.</p>
<p>Mkhwebane could have found better ways of proving that she does not have a hidden political agenda than by <a href="http://www.pprotect.org/library/investigation_report/2016-17/Report%208%20of%202017&2018%20Public%20Protector%20South%20Africa.pdf">producing a report</a> which throws her legal acumen into serious doubt. </p>
<p>Her foray into economics is also deeply embarrassing, as she justifies a drastic change in economic policy with eight lines of text, citing no authorities in economics and no evidence that her preferred approach does in fact, uplift the poor. </p>
<p>Her report is likely only to reduce the standing of her own office.</p><img src="https://counter.theconversation.com/content/79931/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cathleen Powell 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 public protector’s proposal to change the mandate of South Africa’s Reserve Bank goes well beyond changing individual rules to overturning their very foundation, anchored in the Constitution.Cathleen Powell, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/798842017-06-22T13:19:36Z2017-06-22T13:19:36ZSouth Africa’s central bank row points to dangerous levels of intolerance<figure><img src="https://images.theconversation.com/files/175156/original/file-20170622-11967-azarbt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Reserve Bank Governor Lesetja Kganyago. The role of South Africa's central bank is at the centre of a heated debate.</span> <span class="attribution"><span class="source">Reuters/Siphiwe Sibeko</span></span></figcaption></figure><p>What kind of financial system is sure to collapse if the central bank cares about people’s well-being?</p>
<p>The <a href="http://www.pprotect.org/library/investigation_report/2016-17/Report%208%20of%202017&2018%20Public%20Protector%20South%20Africa.pdf">recommendation</a> by South Africa’s Public Protector that the Reserve Bank’s mandate change, says much about Busisiwe Mkhwebane, none of it flattering. It says just as much about mainstream economic debate - and none of that is flattering either.</p>
<p>Mkhwebane recommended that the central bank’s constitutional mandate, which makes protecting the currency its primary goal, be changed to one which requires it to “promote balanced and sustainable economic growth while ensuring that the socio-economic well-being of the citizens are protected”. She also said the constitution should require the bank “to achieve meaningful socio-economic transformation”. </p>
<p>This triggered a wave of protests, as well as an announcement from the <a href="https://www.resbank.co.za/Lists/News%20and%20Publications/Attachments/7852/PRESS%20RELEASE%20FOR%20SARB%20.pdf">South African Reserve Bank</a> that it would take the matter to court. The <a href="https://probonomatters.co.za/south-african-reserve-bank-says-public-protector-is-overreaching/">Reserve Bank</a> had no option. The constitutional court has ruled that the Public Protector’s findings are binding unless they are challenged in court. Her recommendation wildly exceeded what she is allowed to do by the constitution – or democratic good sense - and the Reserve Bank could not allow it to stand. </p>
<p>Democratic constitutions are changed by large majorities of the people or their elected representatives – not by individuals. By making a binding recommendation that the constitution be changed, Mkhwebane signalled that she either doesn’t understand – or does not care – for democracy. </p>
<p>Her report is also very useful to a faction of the governing party which wants to <a href="https://theconversation.com/pursuing-a-30-year-old-bailout-is-sending-south-africa-on-a-wild-goose-chase-79792">deflect charges of state capture</a> by claiming that white monopoly capital already controls the state. There are real questions about the fitness for office of a Public Protector whose report seems more interested in protecting connected politicians and business people than with taking the people’s will seriously.</p>
<p>But the reaction did not stop at insisting that Mkhwebane has no business telling the people what the constitution should say. Much of it objected not only to her saying what the Reserve Bank’s mandate should be, but to anyone at all doing that. </p>
<h2>An important debate</h2>
<p>The prize for the wildest reaction went to the commentator who declared that Mkhwebane’s ideas on the Bank’s mandate were <a href="https://mg.co.za/article/2017-06-21-the-holocaust-denier-the-public-protector-and-the-reserve-bank">inspired</a> by someone who denied that the Nazi genocide happened. Others stopped short of tarring constitutional change with the same brush as mass murder but were united in claiming that to suggest that the Reserve Bank’s mandate be broadened is “<a href="https://www.timeslive.co.za/ideas/2017-06-21-public-protectors-bizarre-instruction-harms-our-wellbeing/">economically illiterate</a>” and deeply damaging. </p>
<p>Absa, who was the subject of a separate finding by the public protector on the issue of a <a href="https://probonomatters.co.za/the-public-protector-in-her-own-words-on-the-bankorpabsa-matter/">controversial bailout</a>, asked a court to rule that her proposed change posed a “<a href="https://www.timeslive.co.za/sunday-times/business/2017-06-21-in-full-absa-goes-to-court-over-public-protector-report/">serious risk to the financial system</a>”. For its part the rating agency Standard & Poor’s, happy as ever to police the boundaries of economic correctness, warned that any interference with the Reserve Bank’s independence could trigger new downgrades.</p>
<p>To insist that anyone who proposes changing the Reserve Bank’s mandate is economically damaging and stupid is as contemptuous of democracy and dangerous to the economy as Mkhwebane’s excess. It is undemocratic because it seeks to close down policy debate by declaring that only one view of the Reserve Bank’s mandate can ensure a healthy economy. It is dangerous because it blocks the search for economic remedies by seeking to bully even those who propose only mild changes to what the country now has.</p>
<p>The idea that the Reserve Bank should have a broader mandate is neither radical nor dangerous. The most famous central bank, the <a href="https://www.federalreserve.gov/aboutthefed/structure-federal-reserve-system.htm">US Federal Reserve</a>, has a broader mandate. Its dual mandate requires it to seek maximum employment as well as price stability. </p>
<p>The <a href="http://www.rba.gov.au/monetary-policy/">Australian</a> equivalent’s mandate includes “maintenance of full employment and economic prosperity and welfare of the people”. <a href="https://www.ecb.europa.eu/ecb/html/index.en.html">The European Central Bank</a>, famed for its love of austerity, has a mandate to seek “sustainable growth”. </p>
<p>And the <a href="http://www.bankofengland.co.uk/Pages/home.aspx">the Bank of England’s</a> website says that, subject to its goal of price stability, it aims to support the government’s economic objectives.</p>
<p>In South Africa, not only has the view that the central bank’s mandate is too restrictive been repeated periodically but it may well have been implemented for a while. In 2010, then finance minister Pravin Gordhan <a href="https://www.moneyweb.co.za/archive/pravins-letter-to-gill-marcus/">wrote</a> to then Reserve Bank governor, Gill Marcus, proposing a mandate which included growth and employment. Marcus <a href="http://m.fin24.com/fin24/Economy/Inflation-debate-not-over-20100219">reacted positively</a>, which suggests that the bank acted on Gordhan’s letter. The financial system survived.</p>
<p>The US, European and Australian financial systems have also not collapsed. Their mandates have not triggered a downgrade and no one has accused these societies of economic illiteracy. </p>
<p>So either double standards are being applied or we are being told that restrictive central bank mandates are essential only if countries are in particular parts of the world (such as Africa) and governed by particular types of people (Africans).</p>
<p>And why does a change in the Bank’s mandate undermine its independence? A central bank loses its independence if politicians (or anyone else) can tell it what to do, not if its mandate changes. </p>
<p>For all its flaws, the Public Protector’s proposal would retain the Reserve Bank’s independence, leaving it to the bank to decide what promotes the “well-being” of the people or “transformation”. </p>
<h2>Closing down debate is common</h2>
<p>None of this means that the Reserve Bank’s mandate must change. Or that central bank independence must go. But it does mean that no one should be discouraged from debating the issue, as people routinely do in other democracies and market economies. What, besides that prejudice which we prettify by the term <a href="http://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/afropessimism">Afropessimism</a>, explains the insistence that we may not debate what is freely discussed in most other places?</p>
<p>Closing down debate in this way is common in South Africa. It also lies behind complaints of policy uncertainty which does not mean, as it does elsewhere, that government keeps changing its mind and sending mixed messages – the macro-economic framework has been stable for more than two decades. It means, rather, that some people – who some others may take seriously – raise policy ideas the economic mainstream does not like.</p>
<p>This demand that people can say anything they like about economic policy as long as the mainstream likes it too offers a misleading view of the economy. It says that there is nothing wrong with it except political interference and that it will flourish if politicians simply leave alone what is done now. </p>
<p>The <a href="https://theconversation.com/business-needs-to-change-and-stop-blaming-others-for-south-africas-ills-64942">contrary evidence</a> is offered by mainstream organisations such as the International Monetary Fund and the South African Reserve Bank itself which have shown that the current economic rut is a product of problems in the private economy as well as what government does. </p>
<p>This means that the economy must change. This, in turn, requires new ideas. They will not emerge unless everything is up for debate and ideas are not silenced because they trigger the fears and prejudices of a few.</p><img src="https://counter.theconversation.com/content/79884/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steven Friedman 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 financial system that is sure to collapse if the central bank cares about people’s well-being goes against democratic principle.Steven Friedman, Professor of Political Studies, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/797922017-06-20T20:33:52Z2017-06-20T20:33:52ZPursuing a 30-year old bailout is sending South Africa on a wild goose chase<figure><img src="https://images.theconversation.com/files/174768/original/file-20170620-32355-7nhgnn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Public Protector Busisiwe Mkhwebane has lit a grass fire in South Africa's financial circles.</span> <span class="attribution"><span class="source">Reuters/Mike Hutchings</span></span></figcaption></figure><p>South Africa’s Public Protector, Busisiwe Mkhwebane, has ignited a flaring grass fire with recommendations around a <a href="http://www.iol.co.za/news/politics/mkhwebane-absa-must-pay-back-the-money-9865770">R1.2bn bailout</a> paid to a local bank between 1986 and 1995. Known as the “Bankorp/Absa lifeboat”, the payment has been a bone of deep contention, with investigations and reports stretching back to the first presidents of South Africa’s democracy, Nelson Mandela and Thabo Mbeki.</p>
<p>The public protector’s recommendations on the bailout – set out in a <a href="https://www.ujuh.co.za/the-public-protector-in-her-own-words-on-the-bankorpabsa-matter/">report</a> released this week – are provocative. The first is that there should be a new investigation by the country’s elite investigative team into the obligations of one of South Africa’s largest banks, Absa, to pay back the considerable sum. Absa was formed in 1991 following the <a href="http://cib.absa.co.za/AboutUs/Pages/History.aspx">amalgamation</a> of eight banks, including Bankorp. Absa was later acquired by Barclays and currently trades as Barclays Africa. Essentially, this means calling on Barclays Africa to pay for the sins of one of its distant ancestors.</p>
<p>Even more provocatively, the Public Protector called for changes to the South African Reserve Bank’s remit. Her report says that Parliament should make changes to the country’s constitution to make this possible. </p>
<p>There are two quite complex issues here. Does Absa still owe the state (or the people) funds deriving from the “lifeboat” issued to Bankorp in the late apartheid era? And is the constitutional framework for the central bank appropriate?</p>
<p>The context for the report is an economy punch drunk from endless political infighting, where levels of trust between business and government are abysmal, and ratings are plummeting. Amid all the turmoil is the country’s Reserve Bank which remains one of the few core economic institutions still intact and uncaptured. </p>
<p>In these circumstances one cannot help ask the questions: why is the Public Protector reopening a case which has been thoroughly investigated, and why is it presuming the right to rewrite the constitutional mandate of the South African Reserve Bank?</p>
<h2>The lifeboat saga</h2>
<p>The issue has bounced in and out of the headlines over the past 30 years. </p>
<p>Two respected judges, Willem Heath and Dennis Davis found in two separate investigations – and for different reasons – that it was not practical or feasible to recover the funds. Heath delivered his report in <a href="http://www.huffingtonpost.co.za/2017/01/17/the-heath-report-absa-sanlam-liable-but-pursuing-them-expens_a_21656652/">1999</a>, Davis in <a href="http://www.gov.za/sites/www.gov.za/files/gov_panelexperts_bankorp_0.pdf">2000</a>.</p>
<p>Both judges found the transaction illicit because it protected shareholders rather than depositors and because of its long duration. But they both came to the conclusion that there was no appropriate way for the lifeboat to be repaid. </p>
<p>Heath felt it was risky while Davis found that the beneficiaries, policy holders in one of South Africa’s biggest insurance companies Sanlam, could not effectively be tapped for the funds. Sanlam owned Bankorp at the time it got into trouble.</p>
<p>The bailout saved Bankorp from collapse. Absa then entered the fray and bought Bankorp presumably at fair value from Sanlam. This meant that, in the end, Sanlam policyholders were the beneficiaries of the lifeboat. </p>
<p>The complication is that Sanlam is today a very different kind of company, owned by shareholders and no longer by its policyholders.</p>
<p>The Public Protector found otherwise.</p>
<h2>The Reserve Bank</h2>
<p>How this matter relates to the proposed constitutional amendment is something the public protector would have to explain very slowly and carefully. The link isn’t obvious.</p>
<p>It is also not at all obvious that it is appropriate for the Public Protector to instruct Parliament to change the Constitution. It seems extremely peculiar and beyond the mandate of the office, although constitutional experts rather than economists would be better placed to comment definitively.</p>
<p>Nevertheless, the constitutional proposal of the Public Protector raises, or resurrects an interesting question: is the constitutional mandate of the South African Reserve Bank appropriate? </p>
<p>The most contentious change Mkhwebane proposes is that clause 224 (1) of the constitution be amended. This clause currently reads: </p>
<blockquote>
<p>The primary object of the South African Reserve Bank is to protect the value of the currency in the interests of sustained and balanced growth.</p>
</blockquote>
<p>The Public Protector says it should be replaced with: </p>
<blockquote>
<p>The primary object of the South African Reserve Bank is to promote balanced and sustainable economic growth in the Republic, while ensuring that the socioeconomic well-being of the citizens are protected. </p>
</blockquote>
<p>This change is inappropriate, not because it introduces the socioeconomic well-being of the citizens into the mandate, but because it removes any reference to the responsibility of the central bank in regard to the value of the currency.</p>
<p>In my 2005 book <a href="http://www.gsdpp.uct.ac.za/sites/default/files/image_tool/images/78/Files/Pubs/61-season-of-hope-economic-reform-under-mandela-and-mbeki.pdf">“Season of Hope”</a> I also raised concerns about the absence in the constitutional mandate of the bank of a reference to the welfare of the people. After all, even the mandate of the US’s Federal Reserve Bank places the value of the currency and maximum employment as its twin <a href="https://www.federalreserve.gov/aboutthefed/structure-federal-reserve-system.htm">responsibilities</a>.</p>
<p>It could be argued that even without this clause, the South African Reserve Bank has occasionally acted as if it has a social mandate. This was particularly evident in the <a href="http://www.news24.com/Archives/City-Press/Who-will-replace-Gill-Marcus-20150429">Gill Marcus era</a> when as governor she kept interest rates lower than ostensibly justified by the inflation rate because of the dire state of the economy in the post-financial crisis period.</p>
<p>A welfare or employment element in its mandate could, at least in the abstract, bring a suitable balance to the responsibilities of the bank. But the Public Protector’s proposal to drop any reference to monetary stability would be extreme, utterly unconventional, and hopelessly foolish.</p>
<h2>Now what?</h2>
<p>As a bundle of proposals, the Public Protector’s findings have created a great stir. </p>
<p>It is very doubtful that Absa (now Barclays Africa) could be made to pay for Sanlam’s benefit and beyond even the realms of the post-truth era that monetary stability would be entirely removed from the constitution. It is hard to imagine that the Public Protector actually saw these proposals as viable.</p>
<p>The cynical among us might speculate that the ignition of such a grass fire is a wonderful way to deflect attention from pertinent state capture issues, and to implicitly support the radical economic transformation version of the <a href="https://theconversation.com/white-monopoly-capital-an-excuse-to-avoid-south-africas-real-problems-75143">“white monopoly capital”</a> thesis that so much that is wrong with South Africa can be blamed on a few immoral capitalists.</p><img src="https://counter.theconversation.com/content/79792/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alan Hirsch 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>South Africa’s Public Protector, Busisiwe Mkhwebane has touched on two highly contentious issues: the unresolved bailout for a local bank three decades ago. And the role of the country’s Reserve Bank.Alan Hirsch, Professor and Director of the Graduate School of Development Policy, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/790632017-06-12T14:49:44Z2017-06-12T14:49:44ZSouth Africa will need a government of national healing after Zuma leaves<figure><img src="https://images.theconversation.com/files/173378/original/file-20170612-10242-185ycjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A government of national unity has served South Africa well before. It should consider forming another after President Jacob Zuma leaves office.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>South Africa’s march into a democracy was greatly helped by a multiparty <a href="http://www.sahistory.org.za/article/south-african-government-national-unity-gnu-1994-1999">government of national unity</a> established after the 1994 elections. </p>
<p>The government of national unity, which governed from 1994 - 1999, has been largely credited with fostering unity of purpose and relative confidence between previously warring parties to build trust in a joint future. It laid the foundation for healing wounds as well as remarkable socioeconomic development. During the period it governed the country enjoyed an economic growth rate of close to <a href="https://www.idc.co.za/reports/IDC%20R&I%20publication%20-%20Overview%20of%20key%20trends%20in%20SA%20economy%20since%201994.pdf">3% per annum</a>.</p>
<p>Given the damage that’s being caused by President Jacob Zuma’s administration since he assumed power in <a href="https://mg.co.za/article/2009-05-09-zuma-takes-the-oath">2009</a>, the country will need elements of a government of national unity when he goes. </p>
<p>The fact that South Africa is in <a href="https://theconversation.com/south-africas-in-a-recession-heres-what-that-means-78953">recession</a> is only the latest in a growing list of Zuma-induced catastrophes. Others include credit rating agencies <a href="https://theconversation.com/what-a-downgrade-means-for-south-africa-and-what-it-can-do-about-it-75704">downgrading</a> South Africa. Their decision was linked to a cabinet reshuffle widely seen as an attempt to <a href="http://www.timeslive.co.za/politics/2017/03/31/Zuma-reshuffle-an-act-of-%E2%80%98complete-state-capture%E2%80%99-%E2%80%93-opposition">capture key state institutions</a>.</p>
<p>The state capture allegations have been corroborated by a number of credible parties including the former <a href="https://mg.co.za/article/2016-11-02-breaking-read-the-full-state-capture-report/">Public Protector</a>, the <a href="http://ewn.co.za/2017/05/18/sacc-disconcerted-by-state-capture-revelations">South African Council of Churches</a> as well as a group of academics who produced a report titled<a href="http://pari.org.za/betrayal-promise-report/"> Betrayal of the promise: How South Africa is stolen</a>. </p>
<p>These reports make it clear that high levels of corruption are at the root of the economic crisis gripping the country. Corruption has driven away investment, and as a result economic growth has suffered. It has also led to an erosion of trust in the government. </p>
<p>It’s therefore necessary to start debating what happens when Zuma goes. South Africa will need a government of national healing, administered by a government of national unity. This is the only way in which its citizens will be able to learn to trust one another again, as they did after 1994. </p>
<h2>Healing will be needed</h2>
<p>Governments of national unity have served some countries, including South Africa, well. Israel had several <a href="http://www.washingtoninstitute.org/policy-analysis/view/israels-national-unity-governments-a-retrospective">governments of national unity</a>, while Kenya had one from <a href="http://www.responsibilitytoprotect.org/index.php/crises/crisis-in-kenya">2008 to 2013</a>. Greece had a government of national unity in <a href="https://www.theguardian.com/world/2011/nov/04/greek-business-community-government-unity">2011</a> to help the country deal with <a href="https://www.theguardian.com/world/2011/nov/06/papandreou-greek-leaders-unity-deal">the aftermath</a> of the international financial crisis.</p>
<p>A South African government of national unity should include representatives of all major political parties in parliament. Its role should be to:</p>
<ul>
<li><p>focus on restoring confidence in government institutions and in the government itself, </p></li>
<li><p>restoring trust among people, and </p></li>
<li><p>eradicating any form of corruption which, in turn, will restore trust in the government.</p></li>
</ul>
<p>National healing requires sacrifices from all citizens to ensure a better future. A government that represented all key players in society, run by leaders appointed for their technical expertise rather than their political party loyalty, would be much better placed to ask people to make these sacrifices.</p>
<p>The question of a wealth tax is a good example. Already on the <a href="http://www.taxcom.org.za/docs/20170425%20Call%20for%20submissions%20on%20wealth%20taxes.pdf">table for debate </a>, a wealth tax could work well if it was presented as a contribution to the interests of the country has a whole. </p>
<p>But people would need an assurance that the money would be put to good use and not wasted. Only a freshly minted government could provide this.</p>
<p>A wealth tax could play an important role in national healing if it was implemented with the necessary circumspection. Given the fragility of the country’s economy, a number of key considerations would need to be taken on board. These would include whether there should be a once-off restitution tax for wealth redistribution, or an annual wealth tax.</p>
<h2>Successes since 1994</h2>
<p>The new government could draw on the considerable successes the South African government has achieved since 1994. This includes the fact that millions more people have <a href="http://www.gov.za/speeches/community-survey-2016-results-1-jul-2016-0000">basic services</a> such as electricity and running water. The percentage of households with electricity has <a href="http://www.enca.com/south-africa/stats-show-that-nearly-90-percent-of-sa-households-have-electricity-says-eskom">increased</a> from 58% to 90% while those with access to running water has more than doubled from 7,2 million in 1995 to <a href="https://www.dailymaverick.co.za/article/2016-07-04-how-do-we-live-annual-survey-reveals-the-improvements-and-hardships-ordinary-south-africans-face/#.WT5kpmiGPIU">15,2 million</a>.</p>
<p>Institutions have been built to safeguard the country’s democracy. South Africa boasts an <a href="http://constitutionallyspeaking.co.za/statement-by-chief-justice-and-heads-of-court-on-rule-of-law/">independent judiciary</a>, despite attempts by the Zuma administration to undermine it. And the country’s <a href="https://www.resbank.co.za/AboutUs/Mandate/Pages/Mandate-Home.aspx">central bank</a> remains independent.</p>
<p>On top of this, there’s the goodwill of millions of South Africans with dreams for a better future for their children.</p>
<h2>Dreams of a post-Zuma era</h2>
<p>The government of national healing would have to create conditions for sustained economic growth, particularly a reduction in the country’s <a href="http://www.timeslive.co.za/local/2017/06/01/SA%E2%80%99s-unemployment-rate-hits-a-13-year-high">high unemployment rate</a>. Strong but caring leadership will be needed to deal with a number of sticky issues that are limiting investment and job creation.</p>
<p>For example, the country needs to make it easy and attractive for entrepreneurs to do business. This will require a relaxation of labour laws, particularly for small business that suffer under the burden of cumbersome regulation. At the same time the removal of red tape for small and medium enterprises would help greatly.</p>
<p>Bold decisions, including privatisation, would also need to be made to deal with the country’s decaying state owned enterprises. Most, such as <a href="http://www.timeslive.co.za/local/2017/05/15/SAA-projects-net-loss-of-R853-million">South African Airways</a> and the national power utility <a href="http://amabhungane.co.za/article/2017-06-09-guptaleaks-how-eskom-was-captured">Eskom</a>, have become an unnecessarily heavy burden on the state.</p>
<p>Addressing the crisis in primary and secondary education would also have to be a priority. And devolving powers to the provinces from the central government would be another. </p>
<p>South Africa has exciting prospects and can look forward to rapid economic growth after the Zuma administration. South Africans need to start dreaming, planning and working towards a government of national healing.</p><img src="https://counter.theconversation.com/content/79063/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jannie Rossouw is an NRF-rated researcher and receives funding from the NRF. </span></em></p>South Africa needs to start thinking about life after President Jacob Zuma. Given the damage that he’s done, serious thought should be given to forming a government of national unity.Jannie Rossouw, Head of School of Economic & Business Sciences, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/778042017-05-17T09:29:20Z2017-05-17T09:29:20ZThe CEO of South Africa’s power utility is back. Why the move can’t be justified<figure><img src="https://images.theconversation.com/files/169758/original/file-20170517-24341-jsgsbl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Eskom CEO Brian Molefe addressing the media.</span> <span class="attribution"><span class="source">Alon Skuy/The Times</span></span></figcaption></figure><p>The <a href="http://citizen.co.za/news/news-national/1515927/anc-wants-govt-deal-brian-molefes-return-eskom/">return of Brian Molefe</a> as CEO of South Africa’s largest state owned enterprise, the power utility Eskom, has caused <a href="http://www.timeslive.co.za/politics/2017/05/17/ANC-demands-that-Molefe-be-axed-from-Eskom1">outrage</a> due to the circumstances under which he resigned in December last year.</p>
<p>Molefe left the power utility after a Public Protector’s inquiry alleged that he may have been involved in nefarious activities. The <a href="http://www.ujuh.co.za/state-of-capture-public-protectors-report/">State of Capture</a> report by the then Public Protector, Thuli Madonsela, showed extensive and irregular communication between Molefe and the <a href="http://www.bbc.com/news/world-africa-22513410">Guptas</a>, a family with close ties to President Jacob Zuma. </p>
<p>At the time Molefe’s backers – including board chairperson Ben Ngubane – <a href="http://www.fin24.com/Economy/Eskom/eskom-regrets-molefes-exit-says-its-a-great-loss-20161111">glorified</a> him. They attributed a turnaround in Eskom’s fortunes as a function of the CEO’s 18-month tenure. His supporters branded him as a <a href="http://www.fin24.com/Economy/Eskom/eskom-regrets-molefes-exit-says-its-a-great-loss-20161111">messiah</a> whose departure would have negative consequences for the power utility. </p>
<p>Similar sentiments were expressed more recently by <a href="http://ewn.co.za/2017/05/16/ngubane-s-comes-to-molefe-s-defence">Ngubane</a> and Public Enterprises Minister <a href="http://www.news24.com/SouthAfrica/News/molefe-innocent-until-proven-guilty-lynne-brown-20170512">Lynne Brown</a>. She told a press conference that she supported his return as CEO as he was responsible for the fact that load shedding (organised power cuts) had stopped and the power utility was on sound financial footing. </p>
<p>But was Molefe’s performance as great as his supporters say it was? I suggest not. </p>
<p>It’s true that under Molefe’s reign power cuts across the country were brought to an end. In addition, Eskom reported better financial results last year. </p>
<p>But neither of these two developments had much to do with Molefe’s capabilities as a CEO. The power cuts <a href="http://www.fin24.com/Economy/zuma-we-will-never-have-load-shedding-again-20160506">ended</a> primarily due to a decline in electricity demand – partly the consequence of a weakening economy – and new generation capacity that had been in the pipeline for years. And the improvement in a number of Eskom’s financial ratios was due in large part to massive <a href="http://www.ujuh.co.za/nene-2015-medium-term-budget-policy-statement/">financial support</a> provided by the government in 2015.</p>
<h2>Did Molefe end the power cuts?</h2>
<p>Prior to Molefe’s arrival as CEO in March 2015 the power utility’s finances had been worsening and it was struggling to meet electricity demand. These challenges were largely due to a delay in investment by the government as well as slow increases in tariffs.</p>
<p>The delay in investment was due to government’s <a href="https://mybroadband.co.za/news/energy/122710-here-is-how-government-was-warned-in-1998-about-sas-electricity-crisis.html">indecisiveness</a> over a protracted period of time. And the slow increase in tariffs was the result of a desire to shield consumers from sharp increases and a mistrust of Eskom’s claimed needs. </p>
<p>South Africans lived through a period of extensive <a href="http://www.fin24.com/Economy/EXCLUSIVE-6-reasons-why-Eskom-is-load-shedding-20141124">power cuts</a> in 2007. Electricity generation capacity was unable to keep up with demand. The situation was largely saved by slowing economic growth combined with greater energy efficiency. These factors meant that electricity demand was already well below forecasts prior to Molefe’s appointment and continued this trajectory during his tenure as CEO. </p>
<p>Falling demand created a virtuous cycle in operations: lower demand put an end to the need to impose power cuts. It also opened up the opportunity to do maintenance on infrastructure, leading to greater availability of capacity and an even lower probability of power cuts.</p>
<p>To be sure, Molefe still had to ensure that Eskom continued to get the basics right. There’s little evidence that he did more than that. Instead, it seems that his predecessor, Tshediso Matona, was excessively negative in his outlook. This set up Molefe to appear as though he had pulled-off a dramatic success.</p>
<h2>Molefe’s bailouts</h2>
<p>What of the improvements in Eskom’s financial situation?</p>
<p>The view that Molefe was behind Eskom’s short-term financial turnaround was used to award him a R2.5 million performance bonus for the year ended 31 March 2016. (Molefe appears to have secured a <a href="http://www.news24.com/SouthAfrica/News/molefe-innocent-until-proven-guilty-lynne-brown-20170512">R30 million</a> retirement package when he tendered his resignation. Under the terms of his return to the job this will now no longer be paid.)</p>
<p>But a closer look suggests that Eskom’s financial improvement can’t be attributed to Molefe. In many respects it was the result of extraordinary support afforded to the power utility by the government in 2015. </p>
<p>This support, facilitated by two special appropriation bills passed by Parliament, had two main components. The first was an <a href="http://www.engineeringnews.co.za/article/government-sells-vodacom-stake-to-pic-to-fund-eskom-bail-out-2015-07-01">equity injection</a> through which the National Treasury under which Eskom received R23 billion in exchange for shares. Since government is the sole Eskom shareholder, this translated into a straight cash gift.</p>
<p>The second component was even more significant. This involved government writing-off a <a href="http://www.timeslive.co.za/sundaytimes/stnews/2015/06/21/Eskom-bailout-dressed-up-as-a-loan-turned-into-a-gift1">R60 billion</a> loan which had been approved in 2008 and disbursed in multiple tranches between 2008 and 2010. </p>
<p>If we treat Eskom as a genuinely independent entity, the full cost to national government and therefore the taxpayer of writing off the loan had two parts:</p>
<ul>
<li><p>the remaining principal amount (around R30 billion), and </p></li>
<li><p>an additional R86 billion, the estimated cost of the state foregoing interest payments on the loan. According to the loan conditions, Eskom would have been required to pay this interest in the event that its financial situation improved. </p></li>
</ul>
<p>Whether this financial support was desirable depends on your view of Eskom’s recent history. Many analysts agree that additional government support was overdue. But in relation to Molefe it raises a simpler question: if many of the improvements in Eskom’s financial ratios were due to massive transfers of cash and assets from taxpayers, did it make sense to pay its CEO a bonus that effectively also came from taxpayers?</p>
<p>Either way, closer analysis of Molefe’s supposed successes reveal that they are not what they have been made out to be. Combined with the <a href="http://www.ujuh.co.za/state-of-capture-public-protectors-report/">failures</a> of corporate governance with which he has been associated, the case for reappointing him as Eskom CEO appears to be paper thin.</p><img src="https://counter.theconversation.com/content/77804/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Seán Mfundza Muller previously worked for the Parliamentary Budget Office where, at the time of his resignation in 2016, he was leading a project analysing Eskom's finances for parliament's appropriations committees.</span></em></p>A closer look at the supposed successes of Brian Molefe at South Africa’s power utility, Eskom, shows that they are not what they have been made out to be. They are paper thin.Seán Mfundza Muller, Senior Lecturer in Economics, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/706622017-01-04T13:27:47Z2017-01-04T13:27:47ZSouth Africa’s ANC can only be salvaged by leadership of epic ethical proportions<figure><img src="https://images.theconversation.com/files/151006/original/image-20161220-26715-12w9c9t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's President Jacob Zuma (left), who is also the president of the governing ANC, and his deputy Cyril Ramaphosa.
</span> <span class="attribution"><span class="source">Reuters/Siphiwe Sibeko</span></span></figcaption></figure><p>What a year 2016 was for South Africa. </p>
<p>The <a href="https://theconversation.com/sharp-tongued-south-african-voters-give-ruling-anc-a-stiff-rebuke-63606">August 3 municipal polls</a> consigned the governing African National Congress (ANC) to the opposition benches in some municipalities, including the major urban areas. This makes 2016 a defining year in the history of the country’s electoral politics.</p>
<p>Beyond being political rituals with prescribed rites overseen by the Electoral Commission (IEC), <a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1467-954X.1987.tb00556.x/abstract">“elections decide politics”</a>. There is more to them than just casting of a vote. </p>
<p>After two decades of political dominance, the ANC’s electoral performance <a href="http://www.elections.org.za/content/Elections/Municipal-elections-results/">came down to its lowest</a> since it became the governing party. But is the party unravelling? This is the question it takes into the New Year. </p>
<p>To many, an answer is writ large. But, is it, really?</p>
<p>I ask this question because despite its weakened position the ANC still managed to garner more than 50% support, with the main opposition <a href="https://www.da.org.za/">Democratic Alliance (DA)</a> trailing at 26,9% while the <a href="http://effighters.org.za/">Economic Freedom Fighters (EFF)</a> could only <a href="http:www.elections.org.za/content/Elections/Municipal-elections-results">get 8.19%</a>. Statistically, 27% margin of variation between the ANC and DA is too wide to disentangle the dominant party equilibrium.</p>
<h2>Electoral dominance vs hegemony</h2>
<p>The ANC is still ahead of many other political parties. Because of this some argue that a dominant party system is still intact, implying that the party’s political hegemony is not unravelling. </p>
<p>That the ANC is statistically ahead electorally is true, especially on the basis of its aggregate electoral performance. But electoral dominance does not equal political hegemony. This is because where there are a “small number of large parties” and patron-based <a href="http://vc.bridgew.edu/polisci_fac/25/">“large number of small parties”</a> electoral statistics often mask the truth. </p>
<p>As the Italian neo-Marxist theorist <a href="https://www.coursehero.com/file/p7tn6mo/Geertz-C-19641973-The-interpretation-of-cultures-New-York-Basic-Books-Gerring-J/">Antonio Gramsci explains</a>: </p>
<blockquote>
<p>Hegemony belongs to those who enjoy the greatest ideological resonance in society.</p>
</blockquote>
<p>Hegemony is therefore a function of the ability to galvanise a following based on political acumen to map social reality and create <a href="https://books.google.co.uk/books/about/The_Interpretation_of_Cultures.html?id=BZ1BmKEHti0C">“collective conscience”</a>. Does the ANC’s 53.91% aggregate voter support in the 2016 municipal polls imply this?</p>
<p>This percentage obfuscates a woefully dismal showing in the metropolitan areas. These areas are <a href="http://www.africaresearchinstitute.org/newsite/publications/briefing-notes/south-africas-watershed-elections-awry-the-beloved-country/">“home to some 40% of the population”</a> as well as majority of young black middle-class professionals.</p>
<p>But most people in this constituency have dual domicile, straddling urban and rural areas. Their following of a political party is not necessarily based on historical affinities, but the logic of ideas that are in sync with their epoch.</p>
<p>This urban-based strata of voters influences the countryside voters, who depend on the former for their subsistence. In this relationship there is the power to influence. </p>
<h2>Misconceptions about the urban/rural divide</h2>
<p>The black urbanites with rural connections – largely educated and perhaps with the streaks of sophistication – wittingly or unwittingly impart their political choices in their interactions with the countryside. These influence voter behaviour. The countryside vote is therefore not entirely a reliable pillar for political longevity.</p>
<p>The ANC’s support in the urban areas is declining. That its performance is propped up largely by the rural vote may be a harbinger for its atrophy. In the illusion of the ANC’s invincibility based on the rural support, its president appears to want it to be a rural party, mocking the black middle class as <a href="http://www.news24.com/Archives/City-Press/Zuma-scolds-clever-blacks-20150429">“clever blacks”</a>.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/151009/original/image-20161220-26715-13fglp2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/151009/original/image-20161220-26715-13fglp2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=433&fit=crop&dpr=1 600w, https://images.theconversation.com/files/151009/original/image-20161220-26715-13fglp2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=433&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/151009/original/image-20161220-26715-13fglp2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=433&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/151009/original/image-20161220-26715-13fglp2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=545&fit=crop&dpr=1 754w, https://images.theconversation.com/files/151009/original/image-20161220-26715-13fglp2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=545&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/151009/original/image-20161220-26715-13fglp2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=545&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">ANC supporters at the launch of its local government election manifesto.</span>
<span class="attribution"><span class="source">Reuters/Mike Hutchings</span></span>
</figcaption>
</figure>
<p>This has pernicious implications. It is at odds with the historical foundation of the ANC as an urban-based party. Compounding matters is that the ANC’s rural support is <a href="https:www.businesslive.co.za/politics/2016-10-29-the-truth-about-the-ancs-descent-down-the-ladder-of-power">actually declining</a>. Overtime, its sanctuary in the rural vote is going to vanish. </p>
<p>Doesn’t this make the black middle class a strategic bet to reclaim political hegemony and longevity?</p>
<h2>Elections and the middle-class</h2>
<p>Elections are important in many ways. As the American political scientist <a href="http://www.press.uillinois.edu/books/catalog/72shy2en9780252012020.html">Murray Edelman explains</a>: </p>
<blockquote>
<p>(They) give people a chance to express discontents and enthusiasm, to enjoy a sense of involvement [in the democratic process], [to] draw attention to common social ties and to the importance and apparent reasonableness of accepting public policies that are adopted.</p>
</blockquote>
<p>All these are necessary to consolidate democracy. The urban voters are particularly important to this end. Largely, they are not voting fodder. Their participation in the elections is not ritualistic. It is a means to optimise accountability, to change the behaviour of those charged with the responsibility of managing public affairs.</p>
<p>A political party with strategic foresight consolidates urban support to incubate its ideological posture for electoral virility. Ideological resonance is measured by the extent to which the enlightened subscribe to a party’s system of ideas. This is important to ensure that, in <a href="https://books.google.fr/books/about/The_German_Ideology.html?id=DujYWG8TPMMC&hl=fr">Marx and Engels words</a>:</p>
<blockquote>
<p>The ruling material force in society is at the same its intellectual force. </p>
</blockquote>
<p>Political hegemony is created and maintained this way. With the abstention of the black middle class, especially in the urban areas, does the ANC still command political hegemony? Or has it become a ruling class without hegemony?</p>
<h2>Silver line in the ANC’s defeat</h2>
<p>In the cities such as Johannesburg, Tshwane and Nelson Mandela Bay, coalition arrangements had to be structured because there were no outright winners. This spawned minority governments. There is at least a silver line in this. </p>
<p>The ANC’s loss does not necessarily mean that the opposition parties performed better. Much as they appear to have made inroads into the support base of the ANC, in the main voter abstention accounted for its diminishing electoral prospects. </p>
<p>The voters did not necessarily abandon it. They just withheld their vote. Their gripe is about corruption, factionalism and slate politics.</p>
<p>If former public protector Thuli Madonsela’s <a href="https://www.scribd.com/document/329757135/State-Capture-Report-2016#from_embed">State of Capture report</a> is anything to go by, state resources are being siphoned through state contracts, where the preoccupation is to profit from the state. </p>
<p>Venality creates the opportunity for state resources to be used to quench the insatiable lust for vanity, especially of the political elites, while those largely in the lower strata are kept perpetually hoping for a better life.</p>
<p>State resources are misappropriated for the personal aggrandisement of the political elites. Consequently, their personalities overshadow the party. Members become “members of members” rather of the party. Loyalties are due to the personalities.</p>
<p>These developments have estranged the black middle class. Hence their abstention in the recent municipal polls. But that they mostly decided not vote rather than switch allegiances, is an indication of their understanding of the distinction between the personal behaviour of individuals in leadership positions of the party and the noble principles at the historical foundation of the ANC.</p>
<p>This is an opportunity for organisational self-correction. But it is not going to be easy. The rot goes deep. Leadership of epic ethical proportions, absolutely unblemished, is required to salvage the ANC. </p>
<p>The jury is still out on whether the ANC veterans’ sigh of wisdom in calling for Zuma <a href="http://www.news24.com/SouthAfrica/News/zuma-brings-shame-to-sa-anc-veterans-20161103">to resign</a>, and the recent gesticulation by <a href="http://www.huffingtonpost.co.za/2016/12/19/mk-veterans-members-want-a-review-of-the-ancs-constitution/">veterans of its armed wing</a>, will salvage this desperate epoch of its history.</p><img src="https://counter.theconversation.com/content/70662/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mashupye Herbert Maserumule received funding from the National Research Foundation(NRF) for his post-graduate studies. He is affiliated with the South African Association of Public Administration and Management(SAAPAM) and is the Chief Editor of its scholarly publication, Journal of Public Administration.</span></em></p>After two decades of political dominance, the electoral performance of the ANC is at its lowest since it became the governing party of South Africa in 1994. But is the party really unraveling?Mashupye Herbert Maserumule, Professor of Public Affairs, Tshwane University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/703002016-12-30T08:30:34Z2016-12-30T08:30:34ZLesser-known stories of how ordinary South Africans felt the effect of an active public protector<figure><img src="https://images.theconversation.com/files/149926/original/image-20161213-1625-1506q3t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Suppoters of outgoing South African public protector, Thuli Madonsela, outside her offices ahead of her last media briefing.
</span> <span class="attribution"><span class="source">Reuters/Siphiwe Sibeko</span></span></figcaption></figure><p><a href="http://www.pprotect.org/about_us/profile_public_protector.asp">Thuli Madonsela’s</a> tenure at the helm of the office of the public protector of South Africa has significantly <a href="https://theconversation.com/how-south-africas-public-protector-has-set-a-high-bar-for-her-successor-63891">raised the profile</a> of the institution. This was mainly due to several high profile and controversial cases being referred to the office for investigation and adjudication. </p>
<p>The cases that received extensive media coverage included investigations into irregular spending and expenditure in government departments. There was also extensive coverage of an investigation into the Passenger Rail Agency of South Africa <a href="http://mg.co.za/article/2015-08-25-maladministration-is-off-the-rails-at-prasa">(Prasa)</a>, as well as the probe into <a href="http://mg.co.za/article/2016-11-02-breaking-read-the-full-state-capture-report">“state capture”</a>. </p>
<p>But, far from the limelight, the <a href="http://www.constitutionalcourt.org.za/site/constitution/english-web/ch9.html">public protector</a> has also been instrumental in assisting individuals who grapple with unfair treatment from government departments and other public institutions. The office does lesser-known, yet equally important work.</p>
<p>The annual report of 2015-16 indicates the office received 17,374 cases, finalised 12,735, and carried over 4,251 to the next year. The remainder were either referred to other institutions or dismissed. In the previous year the office finalised 20,231 cases out of a total caseload of 26,070, while 2,740 complaints were referred to other competent bodies such as the <a href="http://www.psc.gov.za/">Public Service Commission</a>. </p>
<h2>Defending people’s rights</h2>
<p>The key function of the public protector is to promote good governance and access to justice for the poorest people. The office acts as a defender of people’s rights against the abuses of public office, corruption, mismanagement and negligence.</p>
<p>The office is one of the bodies established to strengthen South Africa’s constitutional democracy, known as <a href="http://www.constitutionalcourt.org.za/site/constitution/english-web/ch9.html">Chapter 9 institutions</a>.</p>
<p>In executing this mandate, the public protector handled a variety of concerns. In 2015-16, these included:</p>
<ul>
<li><p>intervening in the <a href="http://www.iol.co.za/dailynews/news/city-failed-glebelands-hostel-2080957">deadly conflict at Glebelands Hostel</a> in Umlazi, Kwa-Zulu Natal. Although the investigations are ongoing, the pffice of the public protector identified the source of the conflict. It notified the premier of Kwa-Zulu Natal, averting the further loss of lives;</p></li>
<li><p>remedying the improper awarding of a construction tender and addressing allegations of irregular payments in a government <a href="https://www.nelsonmandela.org/omalley/index.php/site/q/03lv02039/04lv02103/05lv02120/06lv02126.htm">housing project</a> in Uitenhage, Port Elizabeth. The public protector’s investigation found that the tender had been irregularly awarded. The municipality was instructed to pay the outstanding amount, with interest, within 30 days and apologise in writing to the complainant;</p></li>
<li><p>resolving a complaint lodged by a student against the University of Pretoria for maladministration and the reporting of inconsistent examination marks for a special examination written by the complainant. The complaint was subsequently resolved following intervention by the public protector. The complainant’s scripts were remarked and a letter of apology was issued by the university; and</p></li>
<li><p>a complaint was lodged against a local municipality for undue delay. The municipality was negligent in processing the documentation relating to the payment of the deceased employee’s benefits. The public protector directed the municipality to compensate the deceased’s family for the financial losses incurred.</p></li>
</ul>
<h2>Weaknesses in the system</h2>
<p>The public protector has an obligation to be accessible to people who have limited access to justice and cannot afford lengthy and expensive court cases. </p>
<p>However, there are some gaps in how its work is reported. For example, it would be useful to have data relating to the socioeconomic profile of the complainants. This would help tackle barriers to accessing the office through properly targeted public outreach programs. </p>
<p>Also, it is not clear from the report what structures are in place to address accessibility because of language limitations and disability. The report itself raises concerns about gender disparities. Only one-third of complainants were women. </p>
<p>There were some challenges noted, with regard to the operating of the office. The report highlighted the issue of inadequate funding, which has so far resulted in the closure of five regional offices in <a href="https://www.enca.com/south-africa/public-protector-forced-close-offices-due-lack-cash">Siyabuswa, New Castle, Vryburg, Vryheid and Port Elizabeth</a>. Another problem is insufficient personnel. Only 89% of positions are filled. </p>
<p>Human resources constraints should not be tolerated, particularly in light of the increased demands being placed on the institution. </p>
<p>To supplement funds, the previous public protector secured $US500,000 from the US Agency for International Development. The funding was allocated for the creation of a case management system in collaboration with the Deutsche Gesellschaft fur Zusammenarbeit. To ensure transparency, the funds were dispensed through the Department of Justice and Constitutional Development, which exercises oversight of the <a href="https://www.usaid.gov/sites/default/files/documents/1860/USAID%20support%20to%20PPSA.pdf">public protector’s budget</a>. </p>
<p>This funding has been heavily criticised by some parliamentarians, arguing that it could potentially compromise the independence of the institution and the <a href="http://www.sowetanlive.co.za/news/2016/10/20/busisiwe-mkhwebane-to-stop-donor-funding--i-am-no-thuli">sovereignty of the country</a>. The new public protector, <a href="http://city-press.news24.com/News/busisiwe-mkhwebane-the-closest-thing-we-have-to-thuli-madonsela-20160824">Busisiwe Mkhwebane</a>, has said the office would <a href="http://www.sowetanlive.co.za/news/2016/10/20/busisiwe-mkhwebane-to-stop-donor-funding--i-am-no-thuli">not use donor funding</a> in the future. </p>
<p>But donor funding should not necessarily be rejected. The institution can receive donor funding that bolsters its ability to carry out its mandate within the parameters prescribed by the constitution. To tackle fears of undue influence, safeguards could be built in including a requirement that funding is dispensed through the National Treasury. </p>
<p>The office of the public protector plays a vital role in safeguarding the values of a constitutional democracy. Despite its shortcomings, it has executed its mandate well under Madonsela. It has cemented itself as one of the most independent and effective public institutions in South Africa. Its continued success will depend on the political will of those charged with ensuring it is adequately funded.</p><img src="https://counter.theconversation.com/content/70300/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mafaro Kasipo receives funding from National Research Foundation (NRF). </span></em></p><p class="fine-print"><em><span>Olwethu Majola-Kinyunyu receives funding from the National Research Foundation (NRF). </span></em></p>Far from the limelight, South Africa’s public protector has been instrumental in assisting individuals who grapple with unfair treatment from government departments and other public institutions.Mafaro Kasipo, PhD Candidate, University of Cape TownOlwethu Majola, PhD Candidate, Centre of Criminology, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/696512016-12-02T11:33:06Z2016-12-02T11:33:06ZZuma’s refusal to quit puts South Africa’s economy on an even weaker footing<figure><img src="https://images.theconversation.com/files/148134/original/image-20161130-17065-3dyygp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South African President Jacob Zuma. He has survived a bid to have him removed and might strike back.</span> <span class="attribution"><span class="source">Philimon Bulawayo/Reuters</span></span></figcaption></figure><p>South Africa’s president Jacob Zuma is in deep water. Most recently calls for him <a href="https://theconversation.com/zuma-lives-to-fight-another-day-but-fallout-from-latest-revolt-will-live-on-69587">to go</a> were debated at the National Executive Committee of his governing party, the African National Congress (ANC). This is the body that runs the party between its five-yearly elective conferences. </p>
<p>This came after the country’s former public protector’s report on <a href="https://www.scribd.com/document/329757135/State-Capture-Report-2016#from_embed">state capture</a> carried allegations that Zuma may have known about the alleged abuse of his name by the Gupta family and may have actively sought to help the wealthy businessmen benefit from state procurement. He also faces <a href="http://www.iol.co.za/news/politics/reinstate-charges-to-help-clear-zuma-2016365">allegations</a> of corruption – some stretching back more than a decade. And the Constitutional Court earlier this year <a href="http://cdn.24.co.za/files/Cms/General/d/3834/24efe59744c642a1a02360235f4d026b.pdf">found</a> that his conduct was “inconsistent” with certain sections of <a href="http://www.gov.za/documents/constitution-republic-south-africa-1996-chapter-9-state-institutions-supporting#181">the constitution</a>.</p>
<p>The fact that a bid to remove Zuma was <a href="http://citizen.co.za/news/news-national/1358339/zuma-faces-shock-motion-no-confidence-top-anc-leaders/">staged</a> in the NEC confirmed that there are differences of opinion within the ANC about the fate of the president. While the decision was blocked, the faction that wanted Zuma to go have made a powerful point. Things will never be the same again.</p>
<p>The ANC’s failure to remove the president or outline a plan to bring him to book suggests that the party is not serious about fostering accountability and fighting corruption even though these feature prominently in its official documents and <a href="http://www.anc.org.za/documents/Manifestos/any-author/any-year">manifestos</a>. This does not bode well for confidence in the South African political system and economy. </p>
<h2>Political economic implications</h2>
<p>The economy is the weakest link in the present situation. I believe the key focus post the NEC debate is going to be the battle over the control of the National Treasury, and secondly control over the <a href="http://www.sanews.gov.za/south-africa/newly-constituted-ministerial-clusters-announced">economic cluster</a>. This is a group of ministries that most acutely affect economic policies. They include the ministry of finance, trade and industry, economic development, tourism, small business development, public enterprises, public works, labour, energy and mineral resources, <a href="http://www.gov.za/faq/guide-government/what-are-government-clusters-and-which-are-they">among others</a>. </p>
<p>The first real danger is that Zuma chooses to purge ministers who were behind this week’s <a href="https://theconversation.com/zuma-lives-to-fight-another-day-but-fallout-from-latest-revolt-will-live-on-69587">bid at the NEC</a> to ask him to step down. These reportedly include Finance Minister Pravin Gordhan, his deputy Mcebisi Jonas, tourism minister Derek Hanekom and public works minister Thulas Nxesi.</p>
<p>If Zuma <a href="http://www.fin24.com/Economy/eff-this-is-what-will-happen-if-a-gupta-puppet-controls-treasury-20161129">wrests control</a> of the National Treasury, and other ministries key to the economy, fiscal policy recklessness is expected to become the order of the day. </p>
<h2>The dangers of a purge</h2>
<p>While the secretary general of the ANC Gwede Mantashe has said that the ministers who spoke against Zuma would <a href="http://mg.co.za/article/2016-11-29-mantashe-nec-affirmed-zuma-is-president-of-south-africa">not be purged</a>, succession politics and attempts to control resources may result in unilateral presidential decisions to fire ministers without consultation. In South Africa, executive authority to chop and change the cabinet is <a href="http://www.gov.za/documents/constitution-republic-south-africa-1996-chapter-5-president-and-national-executive">vested in the president</a>. As such, the president may act unilaterally without consulting his party, although the convention has been that the president first discusses cabinet positions with the ANC’s top leaders. </p>
<p>Zuma has acted unilaterally before. His decision a year ago to <a href="https://theconversation.com/the-removal-of-south-africas-finance-minister-is-bad-news-for-the-country-52170">fire</a> Nhlanlha Nene as finance minister and replace him with someone who was virtually unknown shocked everyone including colleagues in the ANC. The decision, dubbed Nenegate, sent markets into a <a href="http://www.fin24.com/Economy/nenegate-shook-sa-investor-confidence-imf-20160708">tailspin</a> and Zuma was forced to backtrack.</p>
<p>The National Treasury is particularly vulnerable because so much rides on fiscal policy decisions. All cabinet positions are closely linked with control over resources. But control over the national fiscus – including budgeting and spending – is the most important because changes, or drift in fiscal policy invariably affect markets. The country should expect volatility. At best traders and investors might simply choose to remain on the sidelines. At worst the country could experience capital flight. There may also be risky speculation on the currency.</p>
<p>The question is: can anything be done? I believe so.</p>
<h2>Call to action</h2>
<p>It’s time to engage. Politicians have proved again and again that the future and stability of the country cannot be left entirely to them. The ANC has said that it does not want to “hand over its comrades to ‘<a href="http://www.enca.com/media/video/the-anc-briefs-media-on-the-outcomes-of-nec">the enemy</a>’”. This is close to defining the rest of society as its enemy. It is not clear how a governing party elected by the people on the basis of fighting corruption can trivialise as mere “negative narratives” serious allegations of misconduct and possibly corruption on the part of a president it has elected to the position on behalf of the nation. Is that not blatant abdication of responsibility?</p>
<p>South Africans need to safeguard the continuity of democratic principles. At the centre is impartiality and distribution of economic benefits on the basis of merit as well as the fundamental values of accountability and equality before the law as enshrined in the country’s constitution. </p>
<p>South Africans should not legitimise a system of “neopatrimonialism” where economic gains are linked to kinship or close relationships with rulers. It’s time for society wide renewal.</p>
<p>The real danger is that Zuma feels compelled to weaken the relative strength of the forces opposing his appointed successor in 2017. </p>
<p>As the saying goes in isiXhosa, <em>ikhwelo lityala</em> (“hearing the battle cry and remaining unresponsive is tantamount to treason”)!</p><img src="https://counter.theconversation.com/content/69651/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ongama Mtimka chairs the board of Isidima Development Council, a non-profit company directly involved in economic transformation. </span></em></p>All eyes are on the next move from President Jacob Zuma after he survived a bid from senior ANC colleagues to remove him. The fallout is expected to be focused on the economic cluster of government.Ongama Mtimka, Lecturer and PhD Candidate, Department of Political & Conflict Studies, Nelson Mandela UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/693612016-11-24T11:27:14Z2016-11-24T11:27:14ZWhy credit ratings matter and why they can’t be ignored<figure><img src="https://images.theconversation.com/files/147339/original/image-20161124-15330-cbwrbg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa faces a possible downgrade by credit rating agencies.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p><em>This article was first published in 2016 as South Africa faced a possible downgrade by rating agencies. The Conversation Africa’s Charles Leonard asked Mampho Modise to explain the significance of a rating agency downgrade.</em></p>
<p><strong>What do the agencies look at in the process of reviewing a country?</strong></p>
<p>In their rating <a href="http://faculty.nps.edu/relooney/3040_2.pdf">methodologies</a>, rating agencies have developed rating criteria for assessing the performance of key macroeconomic and socioeconomic indicators. By assessing the indicators, the rating agencies are able to determine the borrower’s ability and willingness to honour debt obligations. </p>
<p>Rating criteria focus on the following components and indicators: </p>
<ul>
<li><p><strong>Economic structure and performance:</strong> Real GDP, per capita income, headline inflation rate, gross investment as a percentage of GDP and gross domestic savings as a percentage of GDP.</p></li>
<li><p><strong>Government finances:</strong> Government revenue to GDP, government expenditure to GDP, government debt to GDP, debt interest payment to revenue and the budget balance as a percentage of GDP.</p></li>
<li><p><strong>External payments and debt:</strong> Current account balance as a percentage of GDP, the ratio of external debt to GDP and level of official reserves.</p></li>
<li><p><strong>Susceptibility to event:</strong> Political risk, socioeconomic risk, external vulnerability risk and institutional independence. </p></li>
</ul>
<p>When reviewing the sovereign ratings, rating agencies hold discussions with various stakeholders in government, labour, civil society and the private sector. The reason the private sector is included is for the rating agencies to get an independent view on government policies and strategies.</p>
<p><strong>What do they do with their results?</strong></p>
<p>Once their reviews are concluded, the agencies will announce credit rating opinions which will reflect the borrower’s credit worthiness. That is the likelihood that the borrower will pay back a loan within the confines of the loan agreement, without defaulting. </p>
<p>A high credit rating indicates a high possibility of paying back the loan in its entirety without any issues. A poor credit rating suggests that the borrower has had trouble paying back loans in the past, and might follow the same pattern in the future.</p>
<p>The credit rating opinions are used by various stakeholders and for different reasons.</p>
<p>Firstly, investors use credit ratings as a guide to their investment decisions. Credit ratings provide an independent and objective assessment of the credit worthiness of countries and corporations. This assists investors to decide how risky it is to invest money in a certain country or corporation. </p>
<p>Secondly, for corporations and governments who want to raise money in the capital market, a favourable rating means a country will be able to obtain funds at a lower cost.</p>
<p>Lastly, governments could also use credit ratings as a measure for gauging their performance relative to peers to effect improvements. </p>
<p><strong>Which political developments in South Africa are likely to have an impact on the reviews?</strong></p>
<p>A few areas of concern have been cited.</p>
<p>The outcome of the <a href="http://ewn.co.za/2016/08/25/ANC-Divided-Confused-No-plan--Except-in-Gauteng">2016 local government elections</a> is one. The rating agencies are concerned that a drop in the voter percentage could result in fiscal loosening to draw votes back to the ruling party.</p>
<p>Another concern is the <a href="http://ewn.co.za/2016/10/11/Finance-Minister-Pravin-Gordhan-issued-with-summons-for-fraud">charges</a> instituted against the Minister of Finance Pravin Gordhan and later <a href="http://www.bbc.com/news/world-africa-37822600">withdrawn</a>. This threatened the institutional stability and integrity of the National Treasury.</p>
<p>And the political disagreements on the findings of the <a href="http://www.news24.com/SouthAfrica/News/statecapturereport-live-the-public-protector-has-been-ordered-to-publish-the-state-capture-report-20161102">state capture report</a> threatened the institutional independence of the office of the Public Protector and the courts.</p>
<p>Finally, the upcoming <a href="http://www.news24.com/SouthAfrica/News/early-anc-elective-conference-a-non-starter-20160908">elective conference</a> for the governing African National Congress (ANC) in 2017 is raising a concern on policy continuity and predictability. </p>
<p><strong>Do the agencies operate in every country around the world?</strong></p>
<p>Not necessarily. Rating agencies can operate unsolicited. But major rating agencies such as <a href="https://www.moodys.com/Pages/atc.aspx">Moody’s Investors Service</a> (Moody’s), <a href="https://www.spglobal.com/">S&P Global Ratings</a>(S&P) and <a href="https://www.fitchratings.com/site/home">Fitch Ratings</a> (Fitch) are solicited by countries to provide credit ratings. </p>
<p>Moody’s operates in 36 countries, S&P in 28, and Fitch in more than 30 countries.</p>
<p><strong>What happens to a country downgraded to junk status?</strong></p>
<p><a href="http://www.fin24.com/Economy/sa-junk-rating-seems-inevitable-economists-20161118">Junk status</a> is associated with high risk. Therefore, high borrowing costs. This is the main reason why a sovereign has to avoid being downgraded into a junk, or sub-investment grade. </p>
<p>For fund managers (who are representing the investors) a downgrade to junk status means they will have to sell the assets (bonds) they hold. Their mandates require that they only invest in investment grade assets.</p>
<p>For an ordinary person it means paying more interest, leaving little money for savings and expenditure on rent, school fees and food.</p>
<p>For governments it means allocating more to debt servicing costs (interest payment). Less money will be available for social grants, investment priorities, creating jobs and ultimately reducing the GDP growth potential of the country. More interest payment also crowds out other critical spending. Social services is an example.</p>
<p><strong>Is it possible for a government to simply ignore their ratings?</strong></p>
<p>Not really. Solicited credit ratings ensure easy access to international capital markets. Favourable credit ratings imply low borrowing costs. The South African government has solicited credit ratings from the top agencies to ensure that it can easily and cheaply access foreign funding needed to accomplish its economic development agenda. </p>
<p>South Africa therefore can’t ignore the credit ratings assigned to it, especially given that foreign investors hold more than <a href="http://www.treasury.gov.za/documents/national%20budget/2016/review/chapter%207.pdf">30% of government debt</a>.</p>
<p><strong>Which agency is taken most seriously?</strong></p>
<p>Sovereign credit rating is the most concentrated industry. There are approximately <a href="https://theconversation.com/qanda-why-credit-rating-agencies-matter-for-developing-countries-51964">70 rating agencies</a> globally. But most investors base their investment decisions on the credit ratings published by Moody’s, S&P and Fitch. These three control approximately 95% of the rating business.</p><img src="https://counter.theconversation.com/content/69361/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mampho Modise is affiliated with National Treasury</span></em></p>Credit ratings have an impact on government, as well as ordinary people. This article was first published last year as South Africa faced a possible downgrade.Mampho Modise, Post graduate researcher, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/686272016-11-13T08:10:23Z2016-11-13T08:10:23ZThabo Mbeki undermined South Africa’s constitution by putting his party first<figure><img src="https://images.theconversation.com/files/145552/original/image-20161111-15724-d53kqa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former South African president Thabo Mbeki at May Day celebrations in 2003. He failed to challenge a decision by the ANC to recall him in 2008.</span> <span class="attribution"><span class="source">EPA</span></span></figcaption></figure><p>In a recent <a href="http://www.ujuh.co.za/mbeki-our-country-is-immersed-in-a-general-crisis-but/">speech</a>, former South African President Thabo Mbeki decried the failure of parliament to act against President Jacob Zuma after the Constitutional Court had declared him in breach of the constitution. This is after Zuma failed to honour the recommendations of the Public Protector’s report on the scandalous expenditure on his homestead in <a href="http://www.sowetanlive.co.za/news/2016/04/01/zuma-blames-public-works-department-for-nkandla-scandal">Nkandla</a>. </p>
<p>This is most welcome. But Mbeki’s intervention in favour of constitutional propriety is actually eight years too late. </p>
<p>The consequences of <a href="https://www.theguardian.com/world/2008/sep/20/southafrica1">the decisions he took on being ousted by his party</a>, the African National Congress (ANC), as State President in 2008 set a precedent and are still being felt today. By choosing not to fight the ANC over his recall, he missed a major opportunity to assert the primacy of South Africa’s constitution. And the chickens are coming home to roost.</p>
<p>It is worth recalling the events of 12 September 2008. On that day, Judge Chris Nicholson <a href="http://www.dailymail.co.uk/news/article-1055324/South-African-judge-throws-Zuma-corruption-case--clearing-way-president.html">ruled</a> in the High Court that there had been executive interference in the independence of the National Prosecuting Authority (NPA) when it reinstated charges against Jacob Zuma in a case involving alleged corruption 10 years earlier. The NPA’s decision was taken after Zuma ousted Mbeki in a bitter contest for the leadership of the ANC at a party conference in <a href="http://mg.co.za/article/2007-12-18-zuma-is-new-anc-president">Polokwane</a> almost a year earlier. Nicholson’s ruling echoed the view of Zuma’s supporters that the reinstatement of the charges was <a href="http://www.sacp.org.za/main.php?ID=2822">politically motivated</a>, and had been done at Mbeki’s behest.</p>
<p>The consequences of Nicholson’s ruling were felt immediately.</p>
<p>With the Zuma faction in firm control of the ANC’s machinery, the ruling party instructed Mbeki to <a href="http://www.news24.com/SouthAfrica/Politics/Mbeki-recalled-by-ANC-20080920">stand down</a> as the country’s president just eight days after Nicholson’s judgement. Like a lamb to the slaughter, he meekly did what he was told. Yes, he went with dignity, for which he needs to be commended. Yet in so doing, as a “loyal and disciplined member of the ANC”, he undermined the legitimacy of the constitution. He placed the authority of the party before that of parliament, which under the country’s constitution, is the only body that can remove a South African president from office.</p>
<h2>What the constitution says</h2>
<p>In terms of the country’s constitution, the president of the country is elected by the National Assembly from among its members. In practice, this has meant that since 1994 the ANC, as the majority party, has had its leader elected as president following each general election. The exception was when Kgalema Motlanthe <a href="https://www.independent.co.uk/news/world/africa/south-africa-appoints-motlanthe-to-succeed-mbeki-942188.html">succeeded</a> Mbeki for a short period after his resignation in 2008, Zuma having opted to wait to fill the post until after the 2009 election. This procedure is as it should be – the majority party chooses, but has to ratify its decision by referring the appointment to the National Assembly.</p>
<p>When it comes to the removal of a president, <a href="http://www.africa.upenn.edu/Govern_Political/SouthAf_Const_6.html">the constitution lays down</a> that such an action requires the National Assembly to pass a resolution to that effect by a two thirds majority. It may only do this on one or more of three grounds: a serious violation of the <a href="http://www.gov.za/documents/constitution/constitution-republic-south-Africa-1996-1">constitution</a> or the law; serious misconduct; and/or inability to perform the functions of office. It also lays down that anyone removed from the office of president on any of these grounds may not receive any benefits of that office (by which is meant, presumably, the denial to that person of his or her presidential pension).</p>
<p>So are we to assume that it was his concern about rands and cents which simply moved Mbeki to resign as president rather than insisting that the party take the matter to parliament? That seems highly unlikely. Love him or loathe him, Mbeki seems never to have been particularly concerned about material issues.</p>
<p>But – as indicated by <a href="http://panmacmillan.co.za/catalogue/eight-days-in-september/">the detailed account</a> of the matter by Frank Chikane, director-general in the presidency under <a href="http://www.dailymaverick.co.za/article/2012-03-21-eight-days-thabo-mbeki-in-the-eyes-of-his-loyal-disciple/">Mbeki</a> – it seems that the former president chose not to contest the authority of the party because he could not bear to bring upon himself the charge of disloyalty to the party, however harsh he considered its decision. Yet in so doing he did the country a severe disservice.</p>
<h2>The alternatives</h2>
<p>There were alternatives. He could have insisted that as it was the National Assembly that had appointed him, he should go back to the National Assembly to resign. Or he could have contested the decision by one of two means.</p>
<p>First, Mbeki could have insisted that he would not resign until he had had the opportunity to appeal the Nicholson judgement to the Supreme Court, indicating that were he to have been successful in that, the ANC’s justification for removing him would be overturned. </p>
<p>Ironically, Mbeki lodged an <a href="http://www.news24.com/SouthAfrica/News/Nicholson-failed-in-his-duties-20090112">appeal</a> after his resignation, and the Supreme Court did overturn the Nicholson judgement the following January (2009), exposing the Zuma ANC’s cynical ploy for what it was.</p>
<p>Second, more dramatically, he could have involved himself in a bruising battle between his own following and the Zuma faction amongst the ANC’s MPs. Such an action would undoubtedly have been labelled by his opponents as deeply divisive not least as he might have found himself being backed by the opposition Democratic Alliance. This might eventually have led to his expulsion from the party, something which he was clearly keen to avoid.</p>
<p>Pursuit of any one of these paths would have asserted the supremacy of the constitution over that of the party. Naysayers may say that party leaders regularly resign as presidents or prime ministers without such rigmarole when they stand down for party or personal reasons. But South Africa is a newly established democracy and establishing precedents and practices is important. </p>
<p>Zuma himself, and the ANC he has perverted, clearly has little regard for the constitution. Former public protector Thuli Madonsela’s <a href="http://citizen.co.za/wp-content/uploads/sites/18/2014/03/Nkandla-Statement-by-Public-Protector-19-March-2014.pdf">findings</a> about the Nkandla matter, let alone her departing torpedo in the form of the <a href="http://www.ujuh.co.za/state-of-capture-public-protectors-report/">State Capture report</a>, indicate very clearly that he has been guilty, at the very least, of misconduct. Yet Zuma and his acolytes have chosen to ignore this, and are now willing to put their own interests before the long term interests of their own party. As some believe, this may lead on to the ANC’s defeat in the next general election in 2019.</p>
<p>It is this what makes Mbeki’s latest intervention so interesting.</p>
<p>The former president has now brought his critique of his successor as having endangered the future of the ANC, our democracy and economy into the open. He has now clearly aligned himself with the party <a href="http://city-press.news24.com/News/shameful-disgraceful-elders-lay-into-zuma-anc-leadership-20161103">elders</a> who are dismayed by the ANC’s betrayal of its historically emancipatory role as a liberation movement. </p>
<p>It is good, too, that he has placed the responsibility for censuring Zuma, and perhaps dismissing him, into parliament where it belongs. True, any impeachment proceedings of Zuma by the National Assembly would almost certainly be blocked by the ANC’s pliant majority of MPs. Against that, however, a parliamentary process would open much more political space for the growing minority of dissidents with the higher ranks of the party to state their case. This would help bring the growing political crisis which is gripping the country to the climax it so desperately needs.</p>
<p>Granted, the dominant Zuma faction has no regard for constitutional niceties and would be likely to trample over precedent, even if Mbeki had set one. But this does not negate the fact that the former president missed a major opportunity to assert the primacy of South Africa’s constitution. </p>
<p>Thanks, but no thanks, Mr Mbeki.</p><img src="https://counter.theconversation.com/content/68627/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Roger Southall receives funding from the National Research Foundation. </span></em></p>Former South Africa’s President, Thab Mbeki, has made a remarkable intervention that condemns parliament’s failure to act against President Jacob Zuma. But he is eight years too late.Roger Southall, Professor of Sociology, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.