tag:theconversation.com,2011:/ca-fr/topics/social-justice-1227/articlesSocial justice – La Conversation2024-03-21T14:40:20Ztag:theconversation.com,2011:article/2261352024-03-21T14:40:20Z2024-03-21T14:40:20ZThis is how President Ramaphosa got to the 25% figure of progress in land reform in South Africa<p>Nearly three decades into democracy, land reform remains central to South Africa’s transformation policies and agricultural policy. </p>
<p>We have over the years pointed out that the <a href="https://academic.oup.com/edited-volume/37171/chapter/323739043?login=true">progress on land reform has been incorrectly reported</a>. It’s been consistently understated.</p>
<p>We have argued that, if the statistics are treated carefully, the progress has been much better than politicians and activists often claim.</p>
<p>We were encouraged earlier this year when South African president Cyril Ramaphosa <a href="https://www.youtube.com/watch?v=q5d28EqZ-t8">acknowledged</a> in his <a href="https://www.parliament.gov.za/state-nation-address-president-cyril-ramaphosa-8-february-2024">State of the Nation address</a> that there had been better progress in land reform. The commonly cited argument is that land reform has been a failure and that only 8%-10% of farmland has been returned to black South Africans since apartheid ended in 1994.</p>
<p>Ramaphosa stated that:</p>
<blockquote>
<p>Through redistribution, around 25% of farmland in our country is now owned by black South Africans, bringing us closer to achieving our target of 30% by 2030.</p>
</blockquote>
<p>This figure is based on an update of <a href="https://theconversation.com/land-reform-in-south-africa-5-myths-about-farming-debunked-195045">our work</a> at the Bureau of Economics Research and the Department of Agricultural Economics at Stellenbosch University.</p>
<p>Below we provide a detailed explanation of how we arrived at this figure. We also highlight policies the government can use to fast track the land reform programme to ensure that black farmers become central to a growing, and inclusive agricultural sector.</p>
<h2>Land reform data</h2>
<p>In reviewing the progress with land reform we should be mindful that the land reform programme consist of three elements (refer to <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">Section 25 of the constitution</a>: redistribution, restitution and tenure reform.</p>
<p>Substantive progress has only been made in the land redistribution space and through the process of land restitution managed by the <a href="https://nationalgovernment.co.za/units/view/62/commission-on-restitution-of-land-rights">Land Claims Commission</a>.</p>
<p>The progress of land reform can only be tracked where we have surveyed land, and land with title deeds registered. Even then it is tricky as the title deeds do not record the “race” of the registered owner.</p>
<p>To understand the progress with land reform it is important to start from the correct base. How much farm land is in question here? </p>
<p>In 1994, total farm land with title deeds (thus outside what the apartheid government set aside for black people) covered <a href="https://theconversation.com/how-a-land-reform-agency-could-break-south-africas-land-redistribution-deadlock-165450">77.58 million hectares of the total surface area of South Africa of 122 million hectares</a>. It is assumed, merely by the fact that black ownership of farm land in South Africa was not possible before 1991, that all <a href="https://academic.oup.com/edited-volume/37171/chapter/323739043">77.58 million hectares were owned by white farmers when land reform was initiated in 1994</a>.</p>
<p>Let us now unpack the progress with land reform based on the various data sources.</p>
<h2>Land restitution</h2>
<p>The land restitution process involves the restoration of land rights to black communities who lost their (registered and legally owned) farm land as a result of various forms of dispossession introduced by the apartheid-era governments after 1913.</p>
<p>Through the process of land claims, the Land Claims Commission has transferred 4 million hectares back to communities who previously were dispossessed (Source: various annual reports of the Land Claims Commission). </p>
<p>What’s missing from this calculation is the fact that communities have also been able to elect to receive financial compensation instead of obtaining the formal rights to the land.</p>
<p>Over the years a total of R22 billion (about US$1.1 billion) was paid out in financial compensation (Source: various annual reports of the Land Claims Commission). The commission never reported the number of hectares for which financial compensation was paid out for. It took some work by us to get the number of hectares of farmland involved in financial compensation from the commission, and it has now been confirmed that a total of 2.68 million hectares have been restored in this way.</p>
<p>That means that, in total, the restitution programme managed to restore the land rights of black communities equivalent to 6.68 million hectares.</p>
<h2>Land redistribution</h2>
<p>For the first 10 years of the land reform programme the government applied a market assisted programme of land redistribution based on the <a href="https://repository.up.ac.za/bitstream/handle/2263/2537/Kirsten_Approaches(1999).pdf?sequence=1">willing-buyer-willing-seller principle</a>. Government grants assisted the purchase of the land by groups or individual beneficiaries. </p>
<p>These initiatives resulted in the transfer of 7.55 million hectares of farm land to black South Africans (Source: Various annual reports by Department of Agriculture, Land Reform and Rural Development to parliament). This is probably where the stubbornness of the 10% figure came from. People have focused only on the one dimension of the land reform programme.</p>
<p>One element of redistributive land reform that is usually ignored is the private acquisition of farmland by Black South Africans outside the formal government assisted processes. Here individuals have used their own resources or financial arrangements with commercial banks or the <a href="https://landbank.co.za/Pages/Home.aspx">Land Bank</a> through which they fund the purchase farm land. </p>
<p>The only way you can find the exact number of these deals is to comb through every land transaction and, based on the surnames of the seller and buyer, confirm that the land was transferred from White to Black.</p>
<p>The Bureau of Economic Research at Stellenbosch University estimated that since 1994 a total of 1.9 million hectares of farm land were acquired by black South Africans without the assistance of the state. This might even be an undercount because some surnames such as Van Wyk, Van Rooyen, and even Schoeman do not necessary belong to white South Africans, and then there are many transactions to proprietary limited companies that are majority black owned but with typical names that would resemble an Afrikaans name such as Sandrift Boerdery. These are not picked-up in these searches.</p>
<h2>Government acquisition</h2>
<p>Our final source of the data is the farmland acquired by the state. The first is via the Proactive Land Acquisition Strategy (<a href="https://theconversation.com/south-africas-government-has-been-buying-land-and-leasing-it-to-black-farmers-why-its-gone-wrong-and-how-to-fix-it-211938#:%7E:text=By%20June%202023%2C%20the%20state,to%20the%20leasing%20of%20land.">PLAS</a>) that was introduced in 2006 after dissatisfaction with the earlier land reform efforts.</p>
<p>By August 2023, the state had acquired 2.54 million hectares of productive farmland through the programme and lease it out to beneficiaries. The <a href="https://www.gtac.gov.za/pepa/wp-content/uploads/2022/04/ALHA-Spending-Review-Report.pdf">State Land Holding Account Entity</a> is the custodian of this land.</p>
<p>Most of the roughly 2500 beneficiaries have a 30-year lease agreement with the state.</p>
<p>In addition, state owned enterprises and provincial governments have also acquired farmland which is now used for non-agricultural purposes. A total of 630 000 hectares have been acquired over the last 30 years.</p>
<h2>Getting to 25%</h2>
<p>If we now add all the numbers together:</p>
<ul>
<li><p>Restitution: 6.68 million ha</p></li>
<li><p>Government Land redistribution: 7.55 million ha</p></li>
<li><p>Private transactions: 1.9 million ha</p></li>
<li><p>Proactive Land Acquisition Strategy programme: 2.54 million ha</p></li>
<li><p>Government acquisition for non-agricultural use: 0.63 million ha</p></li>
</ul>
<p>This gives a total of 19.3 million ha or 24.9% of the total of all freehold farmland in South Africa. The correct way to word the statement on the progress of with land reform since 1994 is therefore as follows:</p>
<blockquote>
<p>Almost 25% of all farm land previously owned by white land owners have been restored, redistributed to black South Africans or moved away to state ownership.</p>
</blockquote>
<p>This does not say anything about the financial and commercial viability of the land that was transferred and doesn’t speak to the fast tracking of the land reform programme to bring about a just, equitable and inclusive commercial agricultural sector. Here we need more specific policy interventions.</p>
<h2>Policy considerations</h2>
<p>There are vast tracts of land within the government books that could be transferred to black South Africans for the benefit of agricultural progress and land reform success. The government should consider the following steps:</p>
<ul>
<li><p>Establishing a <a href="https://theconversation.com/how-a-land-reform-agency-could-break-south-africas-land-redistribution-deadlock-165450">Land Reform and Agricultural Development Agency</a>. It would primarily be responsible for land registration and transfer under the redistribution programme. It could operate under the <a href="https://landbank.co.za/About-Us/Key%20Policies/1.%20Land%20Bank%20Act.pdf">Land Bank Act</a>, effectively execute the government policy, and deal with beneficiary selection.</p></li>
<li><p>The government’s <a href="https://www.greenagri.org.za/blog/blended-finance-scheme/">Blended Finance programme</a>, in collaboration with the <a href="https://www.gcis.gov.za/sites/default/files/docs/resourcecentre/newsletters/issues.pdf">development finance institutions</a> and other financial institutions, should provide financial support to the selected beneficiaries.</p></li>
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<p class="fine-print"><em><span>Wandile Sihlobo is the Chief Economist of the Agricultural Business Chamber of South Africa (Agbiz) and a member of the Presidential Economic Advisory Council (PEAC).</span></em></p><p class="fine-print"><em><span>Johann Kirsten 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>Almost 25% of all farmland previously owned by white landowners has been restored, redistributed to black South Africans, or moved away to state ownership.Johann Kirsten, Director of the Bureau for Economic Research, Stellenbosch UniversityWandile Sihlobo, Senior Fellow, Department of Agricultural Economics, Stellenbosch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2253742024-03-08T13:24:16Z2024-03-08T13:24:16ZEdward Webster: South African intellectual, teacher, activist, a man of great energy and integrity, and the life and soul of any party<p>Eddie Webster (82), sociologist and emeritus professor at the Southern Centre for Inequality Studies at the University of the Witwatersrand in South Africa, who <a href="https://www.wits.ac.za/news/latest-news/general-news/2024/2024-03/wits-mourns-the-loss-of-professor-eddie-webster.html">died on 5 March 2024</a>, lived a huge life, applying himself to many different arenas with great energy and insight. </p>
<p>His achievements are quite extraordinary. He was an intellectual, a teacher, a leader, an activist for social change, a builder of institutions, a rugby player and jogger, a man of great energy and integrity, and the life and soul of any party. </p>
<p>As an intellectual and activist he was always independent and critical, and always engaged, whether <a href="https://saftu.org.za/archives/7862">working with trade unions</a> or with South Africa’s new democratic government. It was important to get your hands dirty working for change, he always said, but as important to retain your autonomy and intellectual integrity. This held for the university itself, an institution to which he was wholly committed but at the same time found deeply disappointing when it came to social justice. His life was shaped by these kinds of tensions. </p>
<p>Eddie was one of that <a href="https://www.wits.ac.za/news/latest-news/graduations/2017/a-life-servicing-many-generations-.html">pioneering</a> generation of scholar-activists at the university, white academics who identified with and supported the black resistance movement, and who saw the world in new ways and pioneered the production of new knowledge: his close colleague, feminist and environmental sociologist <a href="https://theconversation.com/profiles/jacklyn-cock-201078">Jacklyn Cock</a>, anthropologist and democratic activist <a href="https://www.sahistory.org.za/people/david-joseph-webster#:%7E:text=On%201%20May%201989%2C%20South,Mandela%20was%20released%20from%20prison.">David Webster</a> (assassinated in 1989), and distinguished historian Phil Bonner. </p>
<p>Eddie inspired generations of us with his vision and practice of critically engaged scholarship – not only in South Africa, but <a href="https://bristoluniversitypress.co.uk/critical-engagement-with-public-sociology">across the world</a>.</p>
<h2>Independent streak</h2>
<p>In 1986, believing that the University of the Witwatersrand (Wits) was out of touch with the majority of South Africans, he drove an investigation called the <a href="https://www.wits.ac.za/news/latest-news/research-news/2022/2022-10/wits-at-a-time-of-national-crisis-then-and-now.html">Perspectives on Wits</a> with his colleagues. They explored the views of trade unionists and community activists about the university. The university had agreed to fund this investigation. But it was unhappy with the results. These revealed that the institution’s own narrative about its liberal opposition to apartheid was not shared by black South Africans, who saw it as serving white and corporate interests.</p>
<p>A few years earlier, at a time of great repression of unions, he and <a href="https://www.wits.ac.za/news/sources/alumni-news/2017/distinguished-historian-passes-away.html">Phil Bonner</a> had attempted to set up a worker education programme on campus. But the university refused to let it happen. The university’s main funders, such as <a href="https://www.angloamerican.com/">Anglo American</a>, would have been greatly displeased by such a programme – a nice illustration of the point made in the Perspectives document. </p>
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Read more:
<a href="https://theconversation.com/trade-unions-and-the-new-economy-3-african-case-studies-show-how-workers-are-recasting-their-power-in-the-digital-age-214509">Trade unions and the new economy: 3 African case studies show how workers are recasting their power in the digital age</a>
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<p>A decade later the indomitable Eddie was able to establish a branch of the Global Labour University at Wits, and bring trade unionists into the heart of the institution. He was not someone to give up easily.</p>
<h2>Insatiable curiosity</h2>
<p>Eddie worked closely with South Africa’s emerging trade union movement in the mid-1970s. At the time black workers were a tightly controlled source of cheap labour for South Africa’s booming industrial economy, and the unions were not recognised legally and suffered severe repression by employers and the state together. Eddie believed that a strong trade union movement democratically controlled by workers would be a powerful force for change.</p>
<p>He contributed to educational programmes for trade unionists, advocating for the recognition of the unions whenever he could. He co-founded the <a href="https://www.southafricanlabourbulletin.org.za/">South African Labour Bulletin</a>, which served as a forum for the interaction between academics and trade unionists, and the Industrial Education Institute with his comrade <a href="https://www.sahistory.org.za/people/rick-turner">Rick Turner</a> and others. Turner was assassinated by the apartheid government in 1978. </p>
<p>Eddie went on to support the unions, and <a href="https://mediadon.co.za/2024/03/06/cosatu-mourns-the-passing-of-revolutionary-professor-eddie-webster/">conduct research</a> with and for them, his entire life. Generations of union shop stewards and organisers knew him through his support, teaching and research, and he was widely loved and revered as “comrade Prof”.</p>
<p>As an intellectual Eddie was insatiably curious about the world and how it worked and about new possibilities emerging for progressive change. While the sociology classics were a foundation for his thinking, he kept up to date with new literature and ideas. </p>
<p>He founded Industrial Sociology at Wits and established the Sociology of Work Unit (now the Society, Work and Politics Institute <a href="https://www.swop.org.za/">SWOP</a>) as a research unit in the early 1980s as a way of stimulating labour research and deepening his work with unions. The unit organised and financed research, held seminars and workshops, provided a home for students, and increasingly collaborated with colleagues at other universities and overseas. </p>
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Read more:
<a href="https://theconversation.com/worker-organisations-can-survive-the-digital-age-heres-how-194379">Worker organisations can survive the digital age. Here's how</a>
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<p>Eddie loved working with others, whether students or colleagues or trade unionists. He knew that ideas arose from wide reading, discussions and interactions, and frequently said “there is no such thing as an original idea”. For its students, staff, colleagues and associates SWOP stood out as a place of vibrant intellectual exchange and curiosity about each other’s work: it was an intellectual home and a place of comradeship and critique that felt unique in the university.</p>
<h2>Academic and teaching legacy</h2>
<p>Eddie was also a great teacher, bringing all of his passion for ideas and his vivid sense of history and change and struggle into the classroom, exciting students about the life of the intellect and the life of struggle. At SWOP he established the first internship programme for black postgraduate students to support and encourage them in what they often experienced as a hostile environment.</p>
<p>Eddie regularly undertook large-scale research projects and recruited numbers of students to participate in field research. This was another learning opportunity, where students immersed themselves in the collective quest for knowledge and began to see themselves as researchers.</p>
<p>In the midst of a multitude of projects, Eddie remained committed to his academic work, publishing a great volume and range of articles and books, and achieving honours and recognition globally.</p>
<p>His first book, <a href="https://books.google.co.za/books/about/Cast_in_a_Racial_Mould.html?id=ewPUAAAAMAAJ&redir_esc=y">Cast in a Racial Mould</a>, based on his PhD, provided the intellectual foundation for the new discipline of industrial sociology in South Africa, developing an analysis of changing workplace technology and its impact on trade unionism – specifically the workings of race and class. This provided a material basis for understanding the emergence of the new black mass unionism. </p>
<p>His co-authored book <a href="https://onlinelibrary.wiley.com/doi/book/10.1002/9781444303018">Grounding Globalisation</a> provided a new account of globalisation and trade unions through a comparison of South Africa, Korea and Australia. Global scholars were inspired by it and it <a href="https://onlinelibrary.wiley.com/doi/book/10.1002/9781444303018">won a major prize</a> from the American Sociological Association. </p>
<p>His most recent book, <a href="https://witspress.co.za/page/detail/Recasting-Workers%EF%BF%BD-Power/?k=9781776148820">Recasting Workers’ Power</a>, written with Lynford Dor, returns full cycle to the themes of his first book, exploring the impact of technological change on the nature of work in the gig economy, and drawing lessons from forms of worker organisation and collective action that have been emerging across Africa.</p>
<p>Each of these books extends the boundaries of our knowledge by exploring the cutting edge of social change – in a sense helping us see the future and, indeed, helping to make it.</p>
<h2>A great love for life</h2>
<p>It is impossible to think about Eddie without thinking about <a href="https://theconversation.com/profiles/luli-callinicos-416446">Luli Callinicos</a>, historian and biographer, and the great love of his life. Indeed, she was the rock on which he built his achievements. I remember with great fondness the Greek Easter feasts shared at their home, and the many other gatherings with family, friends and colleagues.</p>
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Read more:
<a href="https://theconversation.com/how-racially-divided-south-africans-can-find-their-common-humanity-57136">How racially divided South Africans can find their common humanity</a>
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<p><a href="https://sociology.berkeley.edu/alumni-manager/michael-burawoy">Michael Burawoy</a>, the great American sociologist and lifelong friend of Eddie, once told me that he had never laughed as much as he did when he was with Eddie and his colleagues from SWOP. Eddie enjoyed people and was deeply generous; he was a great raconteur, he loved being alive. Three weeks ago he was celebrated for his <a href="https://www.facebook.com/bezparkrun/">200th Park Run</a> in one of Johannesburg’s large parks. Whatever he did he did fully, heart and soul. He was not bigger than life, he was big with life.</p>
<p>In later years he introduced himself as “a living ancestor”. Now he is simply our ancestor, one who has given us a huge legacy, a living legacy. It is time for us to reflect on his inspiration, burn <a href="http://phytoalchemy.co.za/2018/06/30/imphepho-is-not-a-smudge/">imphepho</a>, slaughter a cow and pour out the wine.</p><img src="https://counter.theconversation.com/content/225374/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Karl von Holdt 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>Eddie Webster inspired generations of scholars with his vision and practice of critically engaged scholarship, in South Africa and worldwide.Karl von Holdt, Senior Researcher, Society Work and Politics Institute, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2243012024-02-29T17:37:26Z2024-02-29T17:37:26ZBurning ‘no ball game signs’ won’t fix the obesity epidemic – there are way bigger obstacles<p>Growing up in the 80s as a child with lots of siblings, I played in the street until dark or until we were called for dinner. We had an amazing community of neighbours. However, one elderly neighbour hated us. Every time the football went into her garden, she would confiscate it – and then pop the ball. When she collected over 20 deflated footballs, she would take them down to the police station and complain. To her, at least, free and active children were a pest and a disgrace. </p>
<p>Our neighbour’s one-woman campaign didn’t deter us, though. Only one thing stopped us playing: the shattering of a window and the scream of a parent coming outside to tell us off. (Much harder to do nowadays with most windows being double-glazed.) </p>
<p>On reflection, I was probably part of the last generation of children to play outside regularly. Now in London, the estate I live in is covered with historic signs saying: “No ball games”. </p>
<p>The signs function as a play ban for children. Even during the summer, there are only a couple of rebels who dare to play football on the street. They get my nod and a kick of the ball back when it comes in my direction. </p>
<p>The problem is, many people don’t know that these signs are not enforceable by law: they are simply a request from local housing associations. </p>
<p>Of course, if people are kicking the ball <a href="https://www.askthe.police.uk/view-category/?id=c39ede1e-6ad2-eb11-bacb-000d3ad61986">against someone’s house</a> or out on the streets making noise late at night, it would be considered criminal damage and <a href="https://crimestoppers-uk.org/keeping-safe/community-family/antisocial-behaviour">antisocial behaviour</a> – and quite right. But most of the time the signs are just <a href="https://playingout.net/play-streets/info-for-councils/housing-and-playing-out/">preventing children from playing</a>. </p>
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<p>The <a href="https://www.bbc.co.uk/news/uk-england-london-68365486">London Sport charity</a> has recommended that these signs are removed. I agree - let’s burn them all. But I do think it is simplistic to imagine banning the signs will combat a <a href="https://www.theguardian.com/uk-news/2023/dec/25/england-obesity-report-analysis">national obesity epidemic</a>. </p>
<h2>An unequal playing field</h2>
<p>The <a href="https://www.sportengland.org/news/childrens-activity-levels-recover-pre-pandemic-levels">Active Lives Survey</a> shows that just 47% of children in England are getting the recommended 60 minutes or more of sport and physical activity a day. Removing “No ball games” signs doesn’t mean that the other 53% of children will feel motivated to venture outside and play. </p>
<p>The Active Lives Survey also suggests that boys are more likely to be active than girls. Perhaps boys are still given more activity opportunities. The Lionesses win at the Euros football tournament highlighted the <a href="https://inews.co.uk/sport/football/heard-nothing-girls-access-sport-stalls-government-empty-words-2477343">lack of opportunities</a> for <a href="https://www.footballbeyondborders.org/news/inspiring-a-generation#:%7E:text=The%20report%20found%20that%3A,football%20players%20on%20social%20media">girls in football</a> and <a href="https://www.gov.uk/government/publications/extra-curricular-activities-soft-skills-and-social-mobility/an-unequal-playing-field-extra-curricular-activities-soft-skills-and-social-mobility">inequitable sports curriculums in schools</a>. </p>
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Read more:
<a href="https://theconversation.com/girls-should-get-the-chance-to-play-football-at-school-but-pe-needs-a-major-rehaul-for-all-students-188113">Girls should get the chance to play football at school – but PE needs a major rehaul for all students</a>
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<p>Children and young people of black, Asian and other minority ethnicities are <a href="https://www.sportengland.org/news-and-inspiration/childrens-activity-levels-hold-firm-significant-challenges-remain">least likely to be active</a>. Perhaps because <a href="https://www.sportengland.org/funds-and-campaigns/equality-and-diversity?section=race_in_sport_review#a-summary-of-the-findings-14195">racism in sport is alive</a> and kicking? </p>
<p>Attitudes to high-profile athletes reflect systemic inequalities like racism and misogyny. <a href="https://www.lboro.ac.uk/news-events/news/2024/january/online-abuse-aimed-at-athletes-on-the-rise/">Elite sports people continually face</a> racist, homophobic and sexist abuse on and off the pitch. It isn’t surprising that sport isn’t an appealing – <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8934877/">or safe</a> – option for many minority ethnic children. </p>
<h2>Access to sport and physical activity is a social justice issue</h2>
<p>Family affluence <a href="https://www.streetgames.org/2023/01/06/activity-levels-and-affluence-why-it-matters/">is another major factor</a> in children’s activity levels. Those who are less affluent are <a href="https://www.sportengland.org/news-and-inspiration/childrens-activity-levels-hold-firm-significant-challenges-remain#:%7E:text=Family%20affluence,from%20the%20most%20affluent%20families.">less likely to be active</a>. </p>
<p>Access to sport and physical activity is a social justice issue that <a href="https://www.sportengland.org/research-and-data/research/lower-socio-economic-groups">depends on location and financial circumstances</a>. For a child from an economically disadvantaged background, who lives in a high-rise flat with little green space around, the costs and practicalities of participating in sport are prohibitive. For example, a weekend tennis court costs anywhere between £10 and £27, without travel or equipment.</p>
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<p>So, while we can burn all the “No ball games” signs in the country, the real barrier to combating low activity levels in children is social inequality. What really needs to happen to get our children moving?</p>
<h2>Reimagining accessibility to sports facilities for children</h2>
<p>First, we need to <a href="https://lgiu.org/play-in-everyday-life-how-can-we-reimagine-the-places-we-live-to-be-more-playful/">reimagine the spaces in which we live</a>, and <a href="https://thecpsu.org.uk/news/2023-10-breaking-down-barriers-to-make-sport-accessible-blog/">understand the barriers</a> children face. We could start by <a href="https://www.sportengland.org/about-us/uniting-movement/what-well-do/positive-experiences-children-and-young-people">providing positive physical education experiences</a> to young people in school then promote <a href="https://sphr.nihr.ac.uk/research/the-health-inequalities-impact-of-reducing-the-cost-of-local-authority-leisure-facilities/">concessionary rates for community sport</a> and physical activity spaces.</p>
<p>Councils could get on board with under-16s free swimming initiatives at a national level and increase the number of <a href="https://www.mentalhealth.org.uk/explore-mental-health/publications/how-look-after-your-mental-health-using-exercise">women-only swimming sessions</a>. Safe bike routes are essential because, although <a href="https://www.sportengland.org/research-and-data/research/active-travel">active travel is an increasing trend</a>, cyclists need to feel confident to use bikes as a dominant method of travel. </p>
<p>The issue is complex, but at least we’ve got double glazing to protect against footballs – it’s a start.</p><img src="https://counter.theconversation.com/content/224301/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shrehan Lynch does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It’ll take more than the removal of ‘no ball games’ signs to get children moving. The real barriers to children’s participation in sport are structural: racism, misogyny and classism.Shrehan Lynch, Senior Lecturer in Sport, University of East LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2243862024-02-28T07:29:57Z2024-02-28T07:29:57ZIt took 16 years but South Africa has impeached a senior judge – who is John Hlophe and what went wrong?<p><em>Former Western Cape judge president John Mandlakayise Hlophe has become one of the first two members of South Africa’s judiciary to be impeached since the country became a constitutional democracy in 1994. A <a href="https://www.parliament.gov.za/press-releases/media-release-national-assembly-adopts-reports-recommending-removal-judges-hlophe-and-motata">vote in parliament</a> in late February 2024 stripped him of his title and barred him from accessing his retirement package. Judges can earn as much as R2 million (over US$100,000) a year in retirement. Narnia Bohler-Muller, a constitutional law expert, answers some questions about the impeachment.</em></p>
<h2>What were the high and low moments of his career?</h2>
<p>Hlophe was the first black judge appointed to the bench <a href="https://www.gov.za/sites/default/files/gcis_documents/BIOGRAPHY%20-%20Judge%20President%20Hlophe-1.pdf">in 1995</a> and also the first who came from an academic background. A mere five years later, in 2000, he became the judge president of the Western Cape High Court. </p>
<p>Hlophe has been both brilliant and controversial – on and off the bench.</p>
<p>The low points included these:</p>
<ul>
<li><p>On his appointment as judge president he was also appointed as <a href="https://www.judgesmatter.co.za/conduct/hlophe-tribunal-2008-2019/">a non-executive director of Oasis’s Crescent Retirement Fund</a>, receiving about R500,000 (US$26,000) in consultancy fees, which he did not initially declare to the South African Revenue Service or the justice minister.</p></li>
<li><p><a href="https://www.saflii.org/za/cases/ZASCA/2004/122.html">In 2004</a>, the Supreme Court of Appeal overturned his judgment in favour of the then minister of health after finding that Hlophe had denied pharmaceutical companies the right to a fair hearing by <a href="https://groundup.org.za/article/judge-hlophe-fails-explain-why-judgments-are-extremely-late/">unreasonably delaying</a> his decision on their appeal application. </p></li>
<li><p>In February 2005 Hlophe handed the then justice minister a report <a href="https://www.gcbsa.co.za/law-journals/2005/april/2005-april-vol018-no1-pp24-25.pdf">on alleged racism</a> in the Cape Provincial Division. This document set out a range of allegations against colleagues. He also <a href="https://legalbrief.co.za/story/langa-serving-political-forces-hlophe/">accused</a> the late former chief justice Pius Langa of following a political agenda, and former chief justice Mogoeng Mogoeng of being an <a href="https://www.dailymaverick.co.za/article/2020-07-07-in-unprecedented-counterattack-hlophe-blames-mogoengs-decision-to-send-him-to-misconduct-tribunal-on-anti-muslim-bias/">Islamophobe</a> and a liar. </p></li>
<li><p>In 2007 Hlophe asked government to buy him <a href="https://www.iol.co.za/news/south-africa/from-merc-to-porsche-hlophe-wants-a-new-car-379203">a Porsche</a> in keeping with his status. Judges in South Africa drive Mercedes-Benz cars. A Porsche would have been more expensive and extravagant. </p></li>
<li><p>In <a href="https://www.saflii.org/za/cases/ZAGPHC/2008/289.html">2008</a> the judges of the Constitutional Court filed a complaint of judicial misconduct against Hlophe on the grounds that he had sought to influence the outcome of a matter relating to then deputy president Jacob Zuma’s corruption charges. This was to prove to be the final straw that ended Hlophe’s career.</p></li>
<li><p>In <a href="https://www.judgesmatter.co.za/conduct/hlophe-tribunal-2008-2019/">April 2021</a> the Judicial Conduct Tribunal found Hlophe guilty of gross misconduct. The decision was confirmed by the Judicial Service Commission, which recommended that parliament impeach and ultimately remove him from the bench as per section 177 of the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a>. </p></li>
</ul>
<p>The process was protracted because Hlophe used what is known as <a href="https://theconversation.com/south-africas-court-system-has-been-abused-by-powerful-people-five-ways-to-stop-it-213586">Stalingrad tactics</a> – wearing down the plaintiff by challenging every aspect of the process and appealing every judgment made.</p>
<p>He used this approach again after the tribunal decision. He challenged both the decision and the process, taking matters to court repeatedly. The case was <a href="https://www.saflii.org/za/cases/ZASCA/2009/36.html">dismissed</a>. The tribunal took 13 years to come to a conclusion – only then did he appeal the decision. Hlophe then lodged an application with the Supreme Court of Appeal but that <a href="https://www.saflii.org/za/cases/ZASCA/2009/36.html">failed</a>.</p>
<p>In July 2022, the Judicial Service Commission recommended that parliament suspend Hlophe. The president did so five months later, <a href="https://www.gov.za/news/media-statements/president-ramaphosa-cyril-suspends-judge-president-hlophe-western-cape#:%7E:text=President%20Cyril%20Ramaphosa%20has%20on,section%20177%20of%20the%20Constitution.">suspending Hlophe</a> from his duties with immediate effect, pending a decision of the National Assembly on his impeachment. Parliament then proceeded with the impeachment vote.</p>
<h2>Why was he impeached and what are the consequences?</h2>
<p>It’s a significant moment after 16 years of waiting.</p>
<p>As far back as 2008 Hlophe proved himself unfit for office. Judges must be beyond reproach and what Hlophe did was unconscionable for a judge president. The oath of office of judges in chapter 17 of the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a> requires them to</p>
<blockquote>
<p>administer justice to all persons alike without fear, favour or prejudice, in accordance with the constitution and the law of the republic.</p>
</blockquote>
<p>Hlophe clearly broke his oath of office, going as far as trying to unduly influence fellow members of the judiciary to act unethically. What he did was dishonest. Such conduct can lead to public mistrust in the justice system, and weakens the capacity of judicial systems to guarantee the protection of human rights. </p>
<p>Research done by the Human Sciences Research Council on <a href="https://theconversation.com/suspension-of-two-south-african-judges-has-opened-up-debates-about-bad-working-conditions-and-poor-delivery-of-justice-212021">South African social attitudes</a> shows decreasing trust in the courts from 1998 to 2022. Trust has dropped from a high of 58% in 2004 to 31% in 2022, the lowest it has been. This poses a further risk to South Africans’ hard-earned democratic gains, as trust in the other two spheres of government – legislative and executive – is even lower. </p>
<h2>Never again?</h2>
<p>The Judicial Service Commission recently adopted criteria for assessing and nominating candidates for appointments to the bench. However, it has been <a href="https://www.freedomunderlaw.org/2023/12/07/freedom-under-law-v-jsc-and-others/">challenged</a> for not applying those criteria in a recent round of interviews. </p>
<p>An applicant’s recommended appointment by the commission should send a message to South Africans that they are safe in the hands of the judiciary. </p>
<p>One can only hope that the criteria and guidelines keep unfit candidates off the bench and ensure that the appointment process is not hijacked for political purposes. </p>
<p>In addition, if the commission provides clear reasons for its decisions, that would help to strengthen its authority, and might prevent frivolous, unfounded and protracted legal challenges.</p>
<p>Hlophe broke trust with the judiciary and the public. His impeachment sets an example to other members of the judiciary who may feel tempted to abuse their power.</p><img src="https://counter.theconversation.com/content/224386/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Narnia Bohler-Muller receives funding from numerous governmental and no-governmental funders for HSRC research projects.</span></em></p>John Hlophe’s impeachment sets an example to other members of the judiciary who may feel tempted to abuse their power.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/2221682024-02-12T14:14:27Z2024-02-12T14:14:27ZKenya’s sex workers have solutions to their problems, but international NGOs aren’t hearing them<p>In Kenya, rights organisations run by sex workers have gone into numerous partnerships with international organisations over the past decade. In <a href="https://research.vu.nl/en/publications/making-noise-sex-worker-led-organising-and-knowledge-politics-in-">recent research</a>, I set out to understand whether these relationships worked in favour of the sex workers and their organisations. My research focused on an organisation in Kenya’s capital, Nairobi, that supports male sex workers. </p>
<p>Kenya’s laws punish activities related to <a href="https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/CallEndingImmigrationDetentionChildren/CSOs/RefugeeConsortium_of_Kenya_Annex2.pdf#page=57">sex work</a> and <a href="https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/CallEndingImmigrationDetentionChildren/CSOs/RefugeeConsortium_of_Kenya_Annex2.pdf#page=59">same-sex relationships</a>. These laws, along with societal prejudice, force the men in my study to <a href="https://www.northumbriajournals.co.uk/index.php/IJGSL/article/view/1264">operate in the shadows</a>. </p>
<p>This exposes them to various types of violence. In response to their everyday experiences, more than 70 Kenyan organisations led by sex workers are doing what they can to achieve social justice. </p>
<p>Following interviews and conversations with 99 sex workers between 2018 and 2022, I found that in most cases, sex workers’ knowledge – based on their daily experiences – was sidelined. Donor organisations, despite having good intentions, sometimes fell short of their objectives because they didn’t draw on the knowledge held by marginalised communities. </p>
<p>By ignoring sex workers’ knowledge, development partnerships keep power imbalances unchanged. This leaves many issues that sex workers face – including insecurity, poverty and mental health – unresolved.</p>
<p>My findings illustrate that policies, services and support should include sex workers’ experiential knowledge and needs. </p>
<h2>The research</h2>
<p>Between 2018 and 2022, I conducted a 10-month study as part of my PhD project. I investigated how international NGOs worked with a community-based organisation led by Kenyan sex workers. Their collaborations were aimed at improving health and human rights outcomes. </p>
<p>My focus was how more powerful organisations, such as international NGOs, include sex workers’ knowledge and expertise in these partnerships.</p>
<p>I identified two primary issues affecting the relationship. </p>
<p>Firstly, international development agencies prioritised their own expertise over that of the communities they set out to help. This was despite NGO employees believing they had taken the perspectives of sex workers into account. They didn’t realise they weren’t listening to what sex workers were telling them. </p>
<p>Secondly, because it relied on statistics and frameworks, the development aid system made it difficult to incorporate other kinds of knowledge into intervention programmes. </p>
<h2>The gaps</h2>
<p>Development partnerships tend to <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/dech.12758">sideline the perspectives of sex workers</a>. </p>
<p>For example, NGOs asked the sex workers in my study to provide input on outreach strategies for HIV prevention. But they had already decided what they thought would work best – peer educators and a drop-in centre.</p>
<p>As one respondent in my research put it:</p>
<blockquote>
<p>(We ask them), ‘How do you plan to do outreach work; how do you plan to make the DICE (drop-in centre) more attractive to peer educators?’. And then we work around that. So, they get the idea, and then we fine-tune it with the team.</p>
</blockquote>
<p>This approach limits sex workers to providing local contacts rather than shaping the agenda based on their priorities. </p>
<p>This tokenistic approach leaves sex workers frustrated. They recognise their crucial role in the success of programmes but <a href="https://www.tandfonline.com/doi/full/10.1080/13691058.2020.1842499?role=tab&tab=permissions&scroll=top">are excluded</a> from the decision-making. </p>
<p>This has led to a strong programmatic focus on sex workers’ sexual health and HIV. But they’d like to address other issues too, like insecurity and mental health. </p>
<blockquote>
<p>Can the community get more services on mental health … condoms and lubes we can buy; you have empowered us enough. Now get to know our story, our sad moments, the violence we have faced and how it has affected us. How trying to make a living, get a job, a house has been the struggle and how we cope. That’s what we need.</p>
</blockquote>
<p>The focus on scientific evidence, professional knowledge and statistical data makes it difficult to discover and share what sex workers know. This knowledge comes from the experience of what it means to do sex work and <a href="https://theconversation.com/queerphobia-in-kenya-a-supreme-court-ruling-on-gay-rights-triggers-a-new-wave-of-anger-against-the-lgbtiq-community-204575">live as queer in Kenya</a>. </p>
<p>One respondent said:</p>
<blockquote>
<p>Now, most (of what) they are doing is health services, but you see the sex worker has been beaten, has been raped, so still the HIV prevalence wouldn’t really go down … They are talking about how to reach targets but this sex worker is still being violated, still being raped, still being beaten.</p>
</blockquote>
<p>It’s difficult to integrate such perspectives into the evidence-based policies typical of the international development aid system. Interviews with NGO employees illustrate that requirements for accountability add to the challenge.</p>
<blockquote>
<p>They (headquarters) have set out goals and strategies towards epidemic control and everything we do is guided in that context. We work within the context … and then we try … to take into account the more structural issues.</p>
</blockquote>
<h2>What can be done</h2>
<p>The sex workers in my study wanted their knowledge to be included in development partnerships. They identified three things they’d want development organisations to consider.</p>
<ol>
<li><p>Take sex workers’ experiential knowledge more seriously. Acknowledge that their insights are as important as academic and professional knowledge. </p></li>
<li><p>Acknowledge the leadership, creativity and expertise of marginalised communities. Allow these groups to design programmes based on their unique desires and needs. <a href="https://library.oapen.org/bitstream/handle/20.500.12657/60520/9781000843309.pdf?sequence=1#page=58">Community-led research methods</a> can help make this a reality. Support communities to address what they – instead of others – consider important and liberating.</p></li>
<li><p>Recognise and disrupt the power dynamics in the international aid system. Dominant actors need to unlearn the power differences in their relationships with communities, which are often uncritically perceived as natural. Critically examine assumptions and practices. Question the legitimacy of the expertise of donors in community collaborations, and see whether there are gaps created by sidelining sex work-related knowledge.</p></li>
</ol><img src="https://counter.theconversation.com/content/222168/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lise Woensdregt 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>Sex workers have a deep understanding of their needs but development partnerships tend to prioritise scientific knowledge.Lise Woensdregt, Assistant Professor in Sociology, Vrije Universiteit AmsterdamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2227652024-02-06T12:29:17Z2024-02-06T12:29:17ZZuleikha Mayat: South African author and activist who led a life of courage, compassion and integrity<p>Few Indian South African women have achieved wider public recognition than author, human rights and cultural activist <a href="https://salaamedia.com/2021/05/08/championpeople-meet-zuleikha-mayat-social-activist-and-renowned-author-of-indian-delights-cookbook/">Zuleikha Mayat</a>, who passed away on 2 February 2024. An honorary doctorate from the University of KwaZulu-Natal was just one of many awards bestowed on her during a life that spanned almost 98 years. </p>
<p>Mayat was a remarkable pioneer, evocative writer, public speaker, civic worker, human rights champion and philanthropist. She was a staunch supporter of <a href="https://www.sahistory.org.za/archive/whither-palestine-ronnie-kasrils-19-may-2015-london">Palestinian freedom</a> and an end to Israeli apartheid and genocide. </p>
<p>I am a scholar of social justice issues in South Africa and have known Mayat for 49 years, through my friendship with her children. I assisted her with her last book, and <a href="https://www.sahistory.org.za/archive/dr-zuleikha-mayat-appreciation-saleem-badat">recently penned an e-book about her incredible life</a>. </p>
<p>She embodied principled, faith-based, socially committed, inspired leadership based on special talents and indomitable resilience, and upheld the dignity of all with whom she associated. In <a href="https://alqalam.co.za/zuleikha-mayat-93-a-true-indian-delight/">an interview in 2019</a> she said that she hoped to be remembered as “someone who interacted with everyone, no matter who they were, without prejudice”.</p>
<h2>Early life</h2>
<p>She was born on 3 August 1926 in Potchefstroom in South Africa’s North West province, the third-generation child of Indian-South African shopkeepers of Gujarati origins. In a country marked by racial divides even before the advent of apartheid in 1948, she learnt from her grandfather – <a href="https://iucat.iu.edu/iub/893561">as she later wrote</a> – that intermingling across social divides and boundaries was important, as was “learning the languages and folkways” of other social groups.</p>
<p>Her father was generous to poor people and drummed into her, <a href="https://iucat.iu.edu/iub/893561">she later reflected</a>, that “others have a share in our incomes”. For her “the Bounty of God is not just for a select few but must be shared” so that all “can benefit”. </p>
<p>The young Mayat read voraciously but racialism stifled her formal education. After grade 6 at the Potchefstroom Indian Government School there was no secondary school for Indians. Segregation (<a href="https://www.sahistory.org.za/article/control-1910-1948">1910-1948</a>), the precursor to apartheid, which legally entrenched racial classification and enforced segregation in all walks of life, meant separate schools for different “races” and the schools for whites would not enrol her. </p>
<p>Patriarchy also played a role. She was one of seven siblings; boys, like her three brothers, continued secondary education in other towns or cities “<a href="https://iucat.iu.edu/iub/893561">but sending daughters away was almost unheard of</a>”. And, so, her ambition to become a doctor was thwarted. </p>
<p>At age 14, as described in her 1996 book <a href="https://iucat.iu.edu/iub/893561">A Treasure Trove of Memories</a>: A Reflection on the Experiences of the Peoples of Potchefstroom, she discovered that she “had a gift as a writer, an intellectual orientation, and a capacity for expressing strong views”. A correspondence course boosted the “English in which (she) would come to write” prolifically. Later, she achieved a certificate in journalism.</p>
<h2>A letter to the editor</h2>
<p>1944 was a turning point. An 18-year-old Mayat posted a letter signed “Miss Zuleikha Bismillah of Potchefstroom” to the newspaper <a href="https://disa.ukzn.ac.za/keywords/indian-views">Indian Views</a>, which was published in Gujarati and English. The editor was M.I. Meer, father of human rights activist and scholar <a href="https://www.sahistory.org.za/people/professor-fatima-meer">Fatima Meer</a>. He published the letter, in which <a href="https://iucat.iu.edu/iub/893561">she</a> “argued for higher levels of education for girls” in a “style that revealed not only a principled passion concerning this matter but also her sharp wit”.</p>
<p>In 1954, aged 28, she invited friends to her small apartment in the coastal South African city of Durban. After supper, the <a href="https://www.sahistory.org.za/archive/gender-modernity-indian-delights-womens-cultural-group-durban-1954-2010-goolam-vahed-and">Women’s Cultural Group</a> was founded. It sought to mobilise women for social change.</p>
<p>Fatima and her husband <a href="https://www.sahistory.org.za/people/ismail-chota-meer">Ismail Meer</a> roped Mayat and her husband Mohammed into their revolutionary activities. While hiding from the apartheid authorities, activist and future president Nelson Mandela slept at the Mayat home a few times.</p>
<p>In 1961, she edited the famous <a href="https://www.spiceemporium.co.za/product/indian-delights-orange/">Indian Delights</a>, a recipe book, which flew off the bookshelves “<a href="https://www.iol.co.za/news/south-africa/kwazulu-natal/zuleikha-mayats-indian-delights-still-cooking-9845007">like hot samosas at a buffet</a>”. Several new editions have been published and it remains one of the best selling books in South Africa today.</p>
<p>Between 1956 and 1963 Mayat contributed a weekly column to Indian Views. Her column, <a href="https://www.researchgate.net/publication/290929021_Fahmida%27s_worlds_Gender_home_and_the_Gujarati_Muslim_Diaspora_in_mid-20th_century_South_Africa">Fahmida’s World</a>, brought what academics Goolam Vahed and Thembisa Waetjen <a href="https://www.hsrcpress.ac.za/books/gender-modernity-indian-delights">have described</a> as her “signature liveliness and humour, as well as a sharp moral eye, to bear on various topics”. </p>
<p><a href="https://www.hsrcpress.ac.za/books/gender-modernity-indian-delights">In her columns</a>, she criticised social hierarchies, “ethnic and class prejudices” and racist and inhuman conduct, and commented on “the ethical triumphs and breaches of daily life”. </p>
<p>Mayat was involved in numerous institutions and organisations. These included the McCord Zulu Hospital, Shifa hospital, Black Women’s Convention, South African Institute of Race Relations, the Natal Indian Blind Society, and schools, old age homes and mosques.</p>
<p>And, throughout her life, she wrote.</p>
<h2>A life of writing</h2>
<p>In 1966 she compiled Quranic Lights, a book of prayers. <a href="https://www.dailymaverick.co.za/article/2021-08-09-textiles-carry-a-living-history-in-nanimas-chest/">Nanima’s Chest</a> appeared in 1981 to promote the appreciation of traditional Indian textiles and clothing.</p>
<p><a href="https://iucat.iu.edu/iub/893561">A Treasure Trove of Memories</a>: A Reflection on the Experiences of the Peoples of Potchefstroom (1996) recounts growing up and life in her home town. South African scholar Betty Govinden <a href="https://www.semanticscholar.org/author/Devarakshanam-Betty-Govinden/1751866409">called the book</a> “an important contribution to autobiographical fiction in this country”.</p>
<p>History: Muslims of Gujarat was published in 2008, the result of “inner urges” that compelled her to probe into her family’s distant past.</p>
<p>A year later came <a href="https://humanities.uct.ac.za/sites/default/files/content_migration/humanities_uct_ac_za/1009/files/Devarakshanam_Govinden.pdf">Dear Ahmedbhai, Dear Zuleikhabehn: The Letters of Zuleikha Mayat and Ahmed Kathrada 1979-1989</a>, based on 75 letters exchanged between herself and anti-apartheid giant <a href="https://theconversation.com/ahmed-kathrada-a-simple-life-full-of-love-after-26-years-of-incarceration-75361">Ahmed Kathrada</a> that covered culture, politics and religion.</p>
<p>Then in 2015 she published <a href="https://www.pressreader.com/south-africa/post-south-africa/20150520/281526519639492">Journeys of Binte Batuti</a>, a travel memoir. And at age 95 Mayat published <a href="https://muslimviews.co.za/2021/07/30/a-new-book-by-the-evergreen-zuleikha-mayat/">The Odyssey of Crossing Oceans</a>, an enthralling and expansive narrative by a consummate storyteller, which embodied some of her philosophy of life. </p>
<h2>Justice and peace for all</h2>
<p>Post-1994, when democratic elections were held for the first time in South Africa, Mayat continued her fight for equity and social justice. She <a href="https://alqalam.co.za/zuleikha-mayat-sadly-india-has-departed-from-indian-nation-to-hindutva-nation/">spoke out</a> and marched against local and global injustices. </p>
<p>She was acutely aware that for many the world was an inhospitable place. She sought, <a href="https://www.sanews.gov.za/south-africa/read-nelson-mandelas-inauguration-speech-president-sa">like Nelson Mandela</a>, “justice for all”, “peace for all” and “work, bread, water and salt for all” – for people to be “freed to fulfil themselves”.</p><img src="https://counter.theconversation.com/content/222765/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Saleem Badat receives funding from the National Institute for Humanities and Social Sciences. </span></em></p>Mayat embodied principled, faith-based, socially committed, inspired leadership.Saleem Badat, Research Professor, UFS History Department, University of the Free StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2176952024-01-31T15:25:55Z2024-01-31T15:25:55ZSouth African marriage ruling is a win for divorcees and surviving spouses: it guides the sharing of their assets<p>South Africa’s Constitutional Court has fundamentally changed the country’s marriage law, making it fairer to people who are married “out of community of property” when their marriages end. In these marriages, the estates of spouses are kept separate. They do not combine what they own into a joint estate. </p>
<p>The change applies to people who got married after 1 November 1984 when their marriages end in divorce; or who got married before or after 1 November 1984 and whose marriages end in death. </p>
<p>The apex court’s judgment of 10 October 2023, in the case of <a href="https://www.saflii.org/za/cases/ZACC/2023/32.html">EB v ER</a>, will benefit spouses, mainly wives, who find themselves in financially vulnerable positions when their marriages out of community of property without accrual end in divorce or death. This includes stay-at-home mothers, who take care of the family home or raise the children full time. Their non-financial contributions to the marriage, including unpaid labour in the home, are now valued as much as any financial contributions to the marriage.</p>
<p>Before 1 November 1984, there were only two legally recognised matrimonial property regimes applicable to marriages in South Africa. They were marriages in community of property and out of community of property. </p>
<p><a href="https://www.justice.gov.za/legislation/acts/1984-088.pdf">Marriages in community of property</a> are those in which the estates of both spouses are combined. When the marriage ends through divorce or death, the parties each have a 50% claim against the joint estate.</p>
<p>In the case of the <a href="https://www.justice.gov.za/legislation/acts/1984-088.pdf">out of community of property regime</a>, the estates of the spouses are at all times kept separate. Neither spouse has a claim against the other spouse’s estate even if they contribute to the maintenance or growth of the other’s estate.</p>
<h2>The change</h2>
<p>On 1 November 1984, the <a href="https://www.justice.gov.za/legislation/acts/1984-088.pdf">Matrimonial Property Act 88 of 1984</a> entered into force. It introduced a third matrimonial property regime: the accrual system. </p>
<p>The accrual system allows spouses who are married out of community of property to share in the growth of each other’s estates while still maintaining their separate estates.</p>
<p>Both spouses retain separate estates when they enter the marriage and during the marriage. At the end of the marriage through divorce or death, the spouse with the smaller accrual or no accrual has a claim against the spouse with the bigger accrual. The claim is for an amount equal to half of the difference between the accrual of the respective estates of the spouses. </p>
<p>For example, a wife and husband each enter the marriage with R1,000. At the time that they are married, both spouses are working. During the marriage, they decide that the wife should stay at home and take care of the house and children while the husband will continue working and be the breadwinner of the family. </p>
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Read more:
<a href="https://theconversation.com/south-africas-new-marriage-bill-raises-many-thorny-issues-a-balancing-act-is-needed-210343">South Africa's new Marriage Bill raises many thorny issues - a balancing act is needed</a>
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<p>Suppose that at the end of the marriage, the wife’s estate is valued as R3,000 and the husband’s estate is valued as R10,000. The accrual in the wife’s estate is R2,000. The accrual in the husband’s estate is R9,000. Half the difference between the accrual of the spouses’ estates is R3,500 (R9,000 minus R2,000 equals R7,000, divided by two equals R3,500.) Since the wife’s accrual is smaller than her husband’s accrual, she has a claim of R3,500 against her husband’s estate.</p>
<p>The above crude example illustrates that even though it may not have been intended, the out of community of property with accrual regime recognises that even though parties retain separate estates during the marriage, they may contribute indirectly to the maintenance or growth of each other’s estates, like the wife did through her unpaid labour in the home.</p>
<h2>The judgment</h2>
<p>When the accrual regime was created, section 7(3) of the 1979 <a href="https://www.justice.gov.za/legislation/acts/1979-070.pdf">Divorce Act</a> was amended to allow spouses who were married out of community of property before 1 November 1984 (who therefore did not have the option of accrual), and who were undergoing a divorce, to apply to a divorce court for a redistribution order. </p>
<p>Through a redistribution order, a court can transfer the assets of one spouse to the other spouse if it is just and equitable to do so. This applies in instances where one spouse contributes directly or indirectly to the maintenance or growth of the other spouse’s estate including through the rendering of services. </p>
<p>In its judgment of 10 October 2023, the Constitutional Court found section 7(3) of the <a href="https://www.justice.gov.za/legislation/acts/1979-070.pdf">Divorce Act</a>, among others, to be unconstitutional and invalid to the extent that it did not include a) spouses who were married out of community of property without accrual after 1 November 1984 if the marriages were dissolved through divorce, and b) spouses who were married out of community of property without accrual before or after 1 November 1984 whose marriages ended through death. </p>
<p>These parties could not claim a redistribution order if they contributed to the maintenance or growth of their spouse’s estate.</p>
<h2>Significance of the judgment</h2>
<p>The court’s judgment will provide much needed financial relief to spouses whose marriages out of community of property without accrual end regardless of when the parties were married or how the marriage ended. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/south-africas-courts-and-lawmakers-have-failed-the-ideal-of-cultural-diversity-91508">South Africa's courts and lawmakers have failed the ideal of cultural diversity</a>
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<p>The judgment will also benefit spouses in Muslim marriages. These were legally recognised when the Constitutional Court, in a <a href="https://www.saflii.org/za/cases/ZACC/2022/23.html">2022 case</a>, Women’s Legal Centre Trust v President of the Republic of South Africa, declared that the common law definition of marriage and section 7(3) of the Divorce Act, among others, were unconstitutional to the extent that they did not include Muslim marriages. Now, spouses in Muslim marriages that are out of community of property without accrual, which dissolve through divorce or death, may apply to court for a redistribution order to transfer the assets from one spouse’s estate to the other.</p>
<h2>Next steps</h2>
<p>The advisory committee of the South African Law Reform Commission Project 100E on the Review of Aspects of <a href="https://www.justice.gov.za/salrc/dpapers/dp160-prj100E-ReviewMatrimonialPropertyLaw.pdf">Matrimonial Property Law</a> is reviewing existing laws that deal with matrimonial property regimes.</p>
<p>In light of the Constitutional Court judgments in the Muslim marriages’ and accrual cases, the advisory committee could most likely recommend amendments to, among others, section 7(3) of the Divorce Act to enable all spouses married out of community of property without accrual to apply to court for a redistribution order when their marriages end in divorce or death. </p>
<p>In its <a href="https://www.justice.gov.za/salrc/dpapers/dp160-prj100E-ReviewMatrimonialPropertyLaw.pdf">discussion paper 160</a>, the commission recommends that a court should retain discretion to ensure a just and equitable result when granting a redistribution order.</p><img src="https://counter.theconversation.com/content/217695/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Waheeda Amien is a Professor of Law at the University of Cape Town. She specialises in Legal Pluralism, Religious Family Laws, Freedom of Religion, and Gender Equality. Prof. Amien is also a member of the Advisory Committee of the South African Law Reform Commission Project 100E on the Review of Aspects of Matrimonial Property Law. She writes in her personal capacity. The views expressed in this article are not necessarily those of the University of Cape Town or the South African Law Reform Commission.</span></em></p>The judgment will also benefit spouses in Muslim marriages, which were legally recognised in a 2022 Constitutional Court judgment.Waheeda Amien, Professor of Legal Pluralism, Religious Family Laws, and Human Rights, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2160032024-01-28T19:03:34Z2024-01-28T19:03:34ZImages shape cities, but who decides which ones survive? It’s a matter of visual justice<figure><img src="https://images.theconversation.com/files/569971/original/file-20240118-22-5ebhv1.jpg?ixlib=rb-1.1.0&rect=20%2C138%2C4633%2C3104&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Sabina Andron</span></span></figcaption></figure><p>In the early hours, poster installers head out with buckets of wheat paste and gig advertisements, refreshing the thousands of square metres of street poster sites in Melbourne. Graffiti writers and artists also take to the walls with their pieces. Municipal surface cleaners soon follow with chemicals and pressure washers. </p>
<p>Our city buildings are covered with posters, signs, art and graffiti. Their creators’ tools are images: profitable, seductive, confronting, removed. </p>
<p>Yet we rarely think about their collective role in articulating social values. While their creators’ values might differ, their ambition is the same: a higher stake in shaping the image and values of the city. </p>
<p>Our research draws together municipal agendas with a critical history of how public images are produced and regulated in cities. The aim is to develop ways to deal with images in more responsive and creative ways. How can we better manage them to support social justice, diversity and belonging in cities? </p>
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Read more:
<a href="https://theconversation.com/covid-19-murals-express-hope-and-help-envision-urban-futures-138706">COVID-19 murals express hope and help envision urban futures</a>
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<figure class="align-center ">
<img alt="An Aboriginal flag draped the length of a building frontage" src="https://images.theconversation.com/files/569976/original/file-20240118-27-ri412u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/569976/original/file-20240118-27-ri412u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=449&fit=crop&dpr=1 600w, https://images.theconversation.com/files/569976/original/file-20240118-27-ri412u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=449&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/569976/original/file-20240118-27-ri412u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=449&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/569976/original/file-20240118-27-ri412u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=564&fit=crop&dpr=1 754w, https://images.theconversation.com/files/569976/original/file-20240118-27-ri412u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=564&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/569976/original/file-20240118-27-ri412u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=564&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The creators of urban images, such as this Aboriginal flag running the length of a building, have a say in shaping the city’s image and values.</span>
<span class="attribution"><span class="source">Sabina Andron</span></span>
</figcaption>
</figure>
<h2>Images are instruments of urban governance</h2>
<p>Managing urban images is a priority for municipal governments across the world. Melbourne, the source of the images in this article, is no exception. </p>
<p>Urban branding, <a href="https://www.melbourne.vic.gov.au/arts-and-culture/art-outdoors/Pages/street-art.aspx">graffiti removal</a>, <a href="https://flash-fwd.com/">mural art</a> and <a href="https://urban-graphic-object.lboro.ac.uk/">graphic heritage</a> are just some of the ways in which the city is governed through images. They contribute to how we read urban environments and can create a strong sense of place, identity and character.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/vietnams-disappearing-vintage-signs-are-pop-culture-remnants-of-a-bygone-era-75809">Vietnam's disappearing vintage signs are pop culture remnants of a bygone era</a>
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<figure class="align-center ">
<img alt="A collection of official place name and street signs and headwear of people doing official roles" src="https://images.theconversation.com/files/556486/original/file-20231030-15-w23k9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/556486/original/file-20231030-15-w23k9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=449&fit=crop&dpr=1 600w, https://images.theconversation.com/files/556486/original/file-20231030-15-w23k9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=449&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/556486/original/file-20231030-15-w23k9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=449&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/556486/original/file-20231030-15-w23k9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=564&fit=crop&dpr=1 754w, https://images.theconversation.com/files/556486/original/file-20231030-15-w23k9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=564&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/556486/original/file-20231030-15-w23k9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=564&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A display of name plaques and street signage from the City of Melbourne Art and Heritage Collection. Graphic objects such as these continue to shape the city’s identity.</span>
<span class="attribution"><span class="source">Sabina Andron</span></span>
</figcaption>
</figure>
<p>At the same time, individual actions in creating images form a collective visual discourse. Displaying political placards in street-facing windows, writing graffiti on public walls or painting over unwanted tagging are all visual contributions to the city’s image and character.</p>
<p>While we may not agree on which of these approaches should take precedence, images play a significant role in how we all encounter, navigate and experience urban spaces. They form an <a href="https://www.bloomsbury.com/au/new-urban-aesthetic-9781350070837/">urban aesthetic</a> that is continuously calibrated by state and private actors. </p>
<figure class="align-center ">
<img alt="Tagging on the concrete wall of a bridge over a creek is painted over" src="https://images.theconversation.com/files/556478/original/file-20231030-29-9wvlbl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/556478/original/file-20231030-29-9wvlbl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=449&fit=crop&dpr=1 600w, https://images.theconversation.com/files/556478/original/file-20231030-29-9wvlbl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=449&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/556478/original/file-20231030-29-9wvlbl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=449&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/556478/original/file-20231030-29-9wvlbl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=564&fit=crop&dpr=1 754w, https://images.theconversation.com/files/556478/original/file-20231030-29-9wvlbl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=564&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/556478/original/file-20231030-29-9wvlbl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=564&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">People who paint over tagging are making their own visual contribution.</span>
<span class="attribution"><span class="source">Sabina Andron</span></span>
</figcaption>
</figure>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/transgress-to-impress-why-do-people-tag-buildings-and-are-there-any-solutions-205492">Transgress to impress: why do people tag buildings – and are there any solutions?</a>
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<hr>
<h2>We value some images above others</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/569980/original/file-20240118-17-wz0bip.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/569980/original/file-20240118-17-wz0bip.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/569980/original/file-20240118-17-wz0bip.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=802&fit=crop&dpr=1 600w, https://images.theconversation.com/files/569980/original/file-20240118-17-wz0bip.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=802&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/569980/original/file-20240118-17-wz0bip.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=802&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/569980/original/file-20240118-17-wz0bip.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1008&fit=crop&dpr=1 754w, https://images.theconversation.com/files/569980/original/file-20240118-17-wz0bip.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1008&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/569980/original/file-20240118-17-wz0bip.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1008&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">On a small sticker on a street pole, the globally recognised ACAB signifies resistance against structural violence and police brutality, enhanced by a feminist message of body positivity.</span>
<span class="attribution"><span class="source">Sabina Andron</span></span>
</figcaption>
</figure>
<p>The more successful instances of urban visual infrastructure are often innocuous. As the saying goes, great design is invisible. But it can also be informal, unregulated or even illegal.</p>
<p>A visit to the recently opened <a href="https://citycollection.melbourne.vic.gov.au/">City of Melbourne Art and Heritage Collection</a> reveals how unplanned images such as stickers, stencils or protest signs deserve attention alongside their standardised counterparts such as traffic signs, wayfinding signs, and memorial plaques. Yet our understanding of their cultural value remains partial and biased.</p>
<p>For example, more than 100 public murals are listed in the Victorian Heritage Register. Also listed are a handful of building signs that many Melbournians will know: the Skipping Girl, Pelaco and Nylex signs in Richmond, and the Whelan the Wrecker sign in Brunswick.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-dc-mayor-bowser-used-graffiti-to-protect-public-space-140580">How DC Mayor Bowser used graffiti to protect public space</a>
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</em>
</p>
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<figure class="align-center ">
<img alt="A mural of many human body outlines on a wall" src="https://images.theconversation.com/files/569972/original/file-20240118-29-aehxwa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/569972/original/file-20240118-29-aehxwa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=449&fit=crop&dpr=1 600w, https://images.theconversation.com/files/569972/original/file-20240118-29-aehxwa.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=449&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/569972/original/file-20240118-29-aehxwa.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=449&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/569972/original/file-20240118-29-aehxwa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=564&fit=crop&dpr=1 754w, https://images.theconversation.com/files/569972/original/file-20240118-29-aehxwa.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=564&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/569972/original/file-20240118-29-aehxwa.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=564&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">This 1984 mural by New York artist Keith Haring is on the Victorian Heritage Register. A sign has been erected (below) to explain its significance.</span>
<span class="attribution"><span class="source">Sabina Andron</span></span>
</figcaption>
</figure>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/569978/original/file-20240118-21-wdsuv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/569978/original/file-20240118-21-wdsuv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/569978/original/file-20240118-21-wdsuv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=802&fit=crop&dpr=1 600w, https://images.theconversation.com/files/569978/original/file-20240118-21-wdsuv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=802&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/569978/original/file-20240118-21-wdsuv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=802&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/569978/original/file-20240118-21-wdsuv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1008&fit=crop&dpr=1 754w, https://images.theconversation.com/files/569978/original/file-20240118-21-wdsuv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1008&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/569978/original/file-20240118-21-wdsuv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1008&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">Sabina Andron</span></span>
</figcaption>
</figure>
<p>However, graffiti is nowhere to be found in the upper echelons of our value scales for urban images. Neither are street posters, stickers or other mundane images that shape and enliven our public spaces. </p>
<p><a href="https://www.tandfonline.com/doi/full/10.1080/02723638.2022.2139950">Recent research</a> on the governance of graffiti and street art, alongside our interviews with local authorities and graffiti removal companies, indicate the following:</p>
<ul>
<li><p>public image policies often value visual order above aesthetic and expressive diversity</p></li>
<li><p>the protection of private property is prioritised over the imaginative use of public surfaces as a shared, common resource</p></li>
<li><p>we enforce these values by privileging certain voices over others in the expression of public life and urban experience.</p></li>
</ul>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/569979/original/file-20240118-17-ri412u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/569979/original/file-20240118-17-ri412u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=449&fit=crop&dpr=1 600w, https://images.theconversation.com/files/569979/original/file-20240118-17-ri412u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=449&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/569979/original/file-20240118-17-ri412u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=449&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/569979/original/file-20240118-17-ri412u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=564&fit=crop&dpr=1 754w, https://images.theconversation.com/files/569979/original/file-20240118-17-ri412u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=564&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/569979/original/file-20240118-17-ri412u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=564&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Young people collectively painted this wall in the City of Yarra. Visibility in cities can be empowering and increase a sense of belonging.</span>
<span class="attribution"><span class="source">Sabina Andron</span></span>
</figcaption>
</figure>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/getting-to-the-street-art-of-a-year-like-no-other-149923">Getting to the (street) art of a year like no other</a>
</strong>
</em>
</p>
<hr>
<h2>All public images are culturally significant</h2>
<p>Could we apply <a href="https://australia.icomos.org/publications/burra-charter-practice-notes/">heritage principles of cultural significance</a> to the names and messages scribbled next to our local tram stop in the same way as we do to <a href="https://melbourneharingmural.com.au/">murals</a> or <a href="https://www.theguardian.com/artanddesign/2023/jan/19/mapping-melbournes-ghost-signs-its-become-an-obsession-i-know-it-sounds-unhealthy">ghost signs</a>? And could we develop more nuanced value protocols for public images in the face of increased social division?</p>
<p>Images in public space reflect and represent divergent social values. As a result, they force us to confront our individual and societal biases. </p>
<figure class="align-center ">
<img alt="A poster pasted on a wall is covered in handwritten comments" src="https://images.theconversation.com/files/569977/original/file-20240118-17-u3alzk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/569977/original/file-20240118-17-u3alzk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=449&fit=crop&dpr=1 600w, https://images.theconversation.com/files/569977/original/file-20240118-17-u3alzk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=449&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/569977/original/file-20240118-17-u3alzk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=449&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/569977/original/file-20240118-17-u3alzk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=564&fit=crop&dpr=1 754w, https://images.theconversation.com/files/569977/original/file-20240118-17-u3alzk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=564&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/569977/original/file-20240118-17-u3alzk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=564&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Urban walls are public forums. This poster depicts four women of different skin colours, with the Torres Strait Islander and Aboriginal flags and the message ‘Decolonise sex work’. The transgender flag is a later addition, along with the hand-written comments.</span>
<span class="attribution"><span class="source">Sabina Andron</span></span>
</figcaption>
</figure>
<p>Cities are never unanimous, harmonious congregations, and neither are their public images. They are also bastions of resistance, radical politics and competing claims to urban rights. Protest signs, graffiti tags and political posters and stickers are social infrastructure. </p>
<p>As urban dwellers, our <a href="https://www.taylorfrancis.com/books/mono/10.4324/9781003456070/urban-surfaces-graffiti-right-city-sabina-andron">right to the city</a> includes the ability to edit our urban environments and contribute directly to urban visual culture. Healthy urban environments grow at the intersection of all these image types, in their places of tension and disagreement – what we refer to as <em>urban visual justice</em>. </p>
<figure class="align-center ">
<img alt="A commercial Lipton Tea sign painted on a wall above 2 official signs about restrictions, with stickers put over them, flanked by large advertising posters" src="https://images.theconversation.com/files/569981/original/file-20240118-27-lwyivj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/569981/original/file-20240118-27-lwyivj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=449&fit=crop&dpr=1 600w, https://images.theconversation.com/files/569981/original/file-20240118-27-lwyivj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=449&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/569981/original/file-20240118-27-lwyivj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=449&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/569981/original/file-20240118-27-lwyivj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=564&fit=crop&dpr=1 754w, https://images.theconversation.com/files/569981/original/file-20240118-27-lwyivj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=564&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/569981/original/file-20240118-27-lwyivj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=564&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A faded mural advertisement (ghost sign), municipal signs covered in stickers, framed street posters and faded graffiti tags occupy shared surfaces, demonstrating visual justice through the presence of multiple voices.</span>
<span class="attribution"><span class="source">Sabina Andron</span></span>
</figcaption>
</figure>
<p>On your next journey through the city, stop to appreciate the variety of images it shows you. Which values do they capture and promote? What is visible and what is not? And where do you fit in? </p>
<p>A research and policy framework for urban visual justice can lead to greater belonging, representation and justice in urban experience. It improves visibility and voice for communities in public space. If we pay enough attention, images can teach us everything we need to know about cities.</p><img src="https://counter.theconversation.com/content/216003/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Our city streets are covered with posters, signage, art and graffiti. How can these public images support diversity and justice in cities?Sabina Andron, Postdoctoral Research Fellow in Cities and Urbanism, The University of MelbourneLutfun Nahar Lata, Lecturer in Sociology and Social Policy, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2217432024-01-24T19:06:04Z2024-01-24T19:06:04ZWhat’s behind Woolworths, Aldi and Kmart distancing themselves from Australia Day?<figure><img src="https://images.theconversation.com/files/571029/original/file-20240124-19-hrfn7d.jpg?ixlib=rb-1.1.0&rect=6%2C613%2C4345%2C2448&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/aussie-thongs-beach-254045218">Kairosing/Shutterstock</a></span></figcaption></figure><p>Earlier this month, <a href="https://www.abc.net.au/news/2024-01-11/woolworths-big-w-shops-australia-day-merch-sales-decision/103309612">Woolworths</a> announced it would no longer stock merchandise promoting Australia Day on January 26, a date surrounded by controversy.</p>
<p>While observed as a national public holiday for more than 90 years, a 2021 <a href="https://www.theguardian.com/australia-news/2024/jan/17/conservative-politicians-stoking-australia-day-debate-online-with-paid-ads-analysis-finds">ABC social survey</a> found 55% of Australians supported changing the date.</p>
<p><a href="https://insiderguides.com.au/why-is-australia-day-so-controversial/">January 26</a> marks the beginning of the colonisation of Australia, bringing violence, theft and oppression to the First Nations peoples who had lived on the land for more than 50,000 years. It is also called Invasion Day, Survival Day or Day of Mourning.</p>
<p>Many <a href="https://www.news.com.au/finance/business/other-industries/more-aussie-businesses-adopt-woke-australia-day-stance/news-story/f31514b039e81173118174bf01215435">workplaces</a> including ANZ, Telstra and Woodside have encouraged the shift away from celebrating the date as Australia Day by offering employees an alternative day off.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-we-should-celebrate-australia-day-on-march-3-the-day-we-became-a-fully-independent-country-221015">Why we should celebrate Australia Day on March 3 – the day we became a fully independent country</a>
</strong>
</em>
</p>
<hr>
<p>Woolworths is <a href="https://www.bandt.com.au/the-date-is-not-the-issue-kmart-jumps-on-board-australia-day-boycott/">not the only retailer</a> to distance itself from the date this year with Aldi announcing it will not stock Australia-themed products under its Special Buys promotion. Kmart has not sold items specific to January 26 since last year.</p>
<h2>The message the retailers are trying to send the community</h2>
<p>When corporations wade into sociopolitical activism, they commonly overplay social motivations and underplay expected gains to the bottom line. What is unusual about Woolworths’ position is that the company has defended this as a business decision first and foremost. </p>
<p>This raises questions about big retailers shying away from Australia Day merchandise for business rather than social reasons.</p>
<p>Why pursue a business-first, activism-second strategy? Does this appease shareholders? How does the public interpret “activism without activism” and is it authentic? Is this just a move to deflect away from exorbitant prices?</p>
<h2>A business case for activism</h2>
<p>Opposition leader Peter Dutton quickly labelled this as “<a href="https://www.theguardian.com/australia-news/2024/jan/11/woolworths-big-w-australia-day-merchandise-dropped-sale-peter-dutton-boycott-calls">peddling woke agendas</a>”. But a Woolworths Group spokesperson cited a “<a href="https://www.abc.net.au/news/2024-01-11/woolworths-big-w-shops-australia-day-merch-sales-decision/103309612">gradual decline</a>” in demand for Australia Day-themed products. They also acknowledged the broader discussion of January 26th’s significance to different communities.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/571030/original/file-20240124-27-vlojmg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Large group of men and women protesting against Australia Day" src="https://images.theconversation.com/files/571030/original/file-20240124-27-vlojmg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571030/original/file-20240124-27-vlojmg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571030/original/file-20240124-27-vlojmg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571030/original/file-20240124-27-vlojmg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571030/original/file-20240124-27-vlojmg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571030/original/file-20240124-27-vlojmg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571030/original/file-20240124-27-vlojmg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A 2021 survey found 55% of Australians supported changing the date.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/search/australia-day-protest?image_type=photo">Shutterstock/Dave Hewison Photography</a></span>
</figcaption>
</figure>
<p>A key reason to make a business case for corporate activism lies with <a href="https://www.smartcompany.com.au/business-advice/politics/shareholders-companies-yes-campaign-funding/">shareholders</a>. They typically oppose companies taking a stand on social justice issues believing businesses should “stay in their lane”.</p>
<p>Indeed, when Woolworths supported the Indigenous Voice to Parliament referendum, it resulted in a <a href="https://www.ft.com/content/8e057289-2aa9-49b1-a1cf-e1de85c769a8">backlash</a>.</p>
<p><a href="https://journals.sagepub.com/doi/full/10.1177/0022242920937000">Academic research</a> indicates a brand’s activist position can harm shareholder returns. Investors view this as a misallocation of resources that threatens profit maximisation. Perceived <a href="https://journals.sagepub.com/doi/10.1177/0022243720947682">risk of corporate activism</a> is heightened for businesses with large market share, like Woolworths. They have more customers to lose and fewer to gain. </p>
<p>In this instance, Woolworths took a business-first, activism-second approach. This likely appeases shareholders because making merchandising decisions is well within Woolworths’ remit. Also, by the retailer cloaking its activism as profit maximisation, shareholders are less likely to be concerned. </p>
<p>As for customers, they increasingly understand the <a href="https://www.sciencedirect.com/science/article/pii/S0363811111001561">duality of a brand’s motives</a>. If there are perceptions of sufficient social impact, self-serving motives are also deemed acceptable. Woolworths illuminated the profit-making motive while subtly bringing to light the problematic history of Australia Day. </p>
<h2>Activism without activism?</h2>
<p>While Woolworths led with business reasons rather than support of First Nations peoples, it was interpreted by the public as a <a href="https://www.theguardian.com/business/2024/jan/15/peter-dutton-woolworths-australia-day-boycott-blamed-teneriffe-store-vandalism-metro-teneriffe">political act</a>, eliciting debate and grandstanding. </p>
<p>A company of this stature with significant marketing intelligence could have correctly predicted this reaction and made a calculated decision to take a stand on an issue at the front of the public’s mind. Yet this looks like activism without activism. Woolworths brought a sociopolitical issue to the fore but operated behind the curtain of dollars and cents. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/change-the-date-debates-about-january-26-distract-from-the-truth-telling-australia-needs-to-do-197046">'Change the date' debates about January 26 distract from the truth telling Australia needs to do</a>
</strong>
</em>
</p>
<hr>
<p>Consumers are discerning about corporate activism, requiring companies to move beyond marketing rhetoric and demonstrate meaningful actions. Usually activism attracts criticism when brands are perceived to be <a href="https://theconversation.com/post-gillette-other-brands-are-better-at-matching-practice-with-talk-but-dont-get-the-publicity-110595">woke washing</a> - that is, misleading consumers about prosocial corporate practices. Brand activism is therefore sometimes viewed as a “<a href="https://www.sciencedirect.com/science/article/abs/pii/S0016328722001793">fake marketing trick</a>” because brands are not backing up their stance on social justice issues.</p>
<p>Woolworths by contrast has taken concrete action - not capitalising on the “Australia Day” term and imagery in its marketing and merchandise on January 26.
This move falls short of <a href="https://journals.sagepub.com/doi/10.1177/0743915620947359">authentic brand activism</a>.</p>
<h2>A deflection tactic?</h2>
<p>Australia’s fraught socioeconomic climate has put retailers in the spotlight. Currently, brands like Woolworths are facing media and political scrutiny for price gouging. In Queensland, there is a <a href="https://www.abc.net.au/news/2024-01-19/qld-grocery-prices-parliamentary-inquiry-woolworths-coles/103367088">parliamentary inquiry</a> into the discrepancy between prices paid to suppliers and those paid at the checkout. The Australian Competition and Consumer Commission and Senate are also holding inquiries.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/571058/original/file-20240124-25-b1td3b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Signs promoting Aldi and Woolworths" src="https://images.theconversation.com/files/571058/original/file-20240124-25-b1td3b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/571058/original/file-20240124-25-b1td3b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571058/original/file-20240124-25-b1td3b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571058/original/file-20240124-25-b1td3b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571058/original/file-20240124-25-b1td3b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571058/original/file-20240124-25-b1td3b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571058/original/file-20240124-25-b1td3b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Is the stance against Australia Day a move to distract from the pricing inquiries?</span>
<span class="attribution"><span class="source">Rob1037/Shutterstock</span></span>
</figcaption>
</figure>
<p>Aside from making room for more profitable merchandise or advancing the reconciliation agenda, is Woolworths deflecting attention from its role in these problems? Changing the conversation to something time-bound (that is, likely to die down January 27th) may be beneficial. </p>
<p>Research speaks to such a <a href="https://www.sciencedirect.com/science/article/pii/0363811194900558?ref=pdf_download&fr=RR-2&rr=849d29c54d921f66">values-based strategy</a>. Brands call on social initiatives to deflect from negative issues and improve future discourse about their business. In this case, directing discussion to their social responsiveness, even if secondary, enables Woolworths to <a href="https://www.tandfonline.com/doi/full/10.1080/13563467.2021.1926954">divert attention away</a> from potentially exploitative practices. </p>
<h2>Corporate activism: an expanding and evolving strategy</h2>
<p>Woolworths’ approach to activism warrants examination. While the company took action that ostensibly opposes the celebration of Australia Day on January 26, they communicated a profit motive fitting for the largest grocery chain in Australia by market share. They skirted full-blown corporate sociopolitical activism, an approach that was possibly more digestible for shareholders and customers (politicians less so).</p>
<p>However, this approach is also less authentic. Woolworths states its <a href="https://mumbrella.com.au/what-brands-can-learn-from-the-woolworths-australia-day-debacle-812136">commitment to reconciliation</a> through the support of the Indigenous Voice to Parliament and the Uluru Statement from the Heart. So where in this most recent decision was the marketing rhetoric that embraces and respects Indigenous Australians? This represents a lost opportunity to elevate the brand and promote the <a href="http://changethedate.org/">Change the Date </a>movement.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/welcome-to-may-9-the-true-australia-day-204555">Welcome to May 9 – the true Australia Day</a>
</strong>
</em>
</p>
<hr>
<img src="https://counter.theconversation.com/content/221743/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Profits, not social justice, appear to be why the big grocers are dropping support for Australia Day. But creating a distraction when they’re being criticised for high prices is also possible.Amanda Spry, Senior Lecturer of Marketing, RMIT UniversityDaniel Rayne, Marketing lecturer, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2211252024-01-16T14:13:41Z2024-01-16T14:13:41ZSouth Africa’s ANC marks its 112th year with an eye on national elections, but its record is patchy and future uncertain<p>The speech President Cyril Ramaphosa delivered at the <a href="https://www.anc1912.org.za/wp-content/uploads/2024/01/ANC-January-8th-Statement-2024.pdf">112th birthday celebration</a> of South Africa’s governing party, the African National Congress (ANC), on 13 January can be seen as the party’s opening election gambit: a stadium packed to capacity, the display of a united leadership, and an invocation of three decades of success, delivered by a leader firmly in control of his party.</p>
<p>The <a href="https://www.anc1912.org.za/anc-january-8th-statement/">annual January 8</a> statement, unsurprisingly, was a 30 year self-assessment and is self-congratulatory. It was silent on the many failings under ANC rule: <a href="https://www.resbank.co.za/content/dam/sarb/publications/statements/monetary-policy-statements/2023/november-/Statement%20of%20the%20Monetary%20Policy%20Committee%20November%202023.pdf">sluggish economic growth</a>; <a href="https://theconversation.com/south-africas-police-are-losing-the-war-on-crime-heres-how-they-need-to-rethink-their-approach-218048">crime and lack of security</a>; <a href="https://theconversation.com/local-government-in-south-africa-is-broken-but-giving-the-job-to-residents-carries-risks-155970">failure to deliver essential services</a> and <a href="https://mg.co.za/thought-leader/opinion/2023-01-31-south-africa-must-maintain-and-build-new-infrastructure/">maintain public infrastructure</a>. </p>
<p>Ramaphosa said the anniversary <a href="https://www.anc1912.org.za/anc-january-8th-statement/">occasion</a> was an opportunity to focus members of the party on the tasks ahead of the <a href="https://www.eisa.org/election-calendar/">2024 general elections</a> – expected between May and August. He pointed out that the ANC had, over its 30 years in power, put in place the building blocks of a social democratic state. These include:</p>
<ul>
<li><p>a <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a> that guarantees human rights to all South Africans and is much admired around the world</p></li>
<li><p>protecting workers’ rights, promoting investment and economic development and providing a legal framework for black economic empowerment </p></li>
<li><p>an active role for South Africa on the international stage, and solidarity with people struggling for their rights and striving for a just world order.</p></li>
</ul>
<p>Assuming the moral high ground by <a href="https://www.politicsweb.co.za/politics/anc-in-full-support-of-sas-case-against-israel-in-">supporting the cause of Palestine</a> was a reminder of the ANC that once won the hearts of many South Africans and international supporters: principled and standing up for justice, as it had done in the struggle against apartheid.</p>
<p>Ramaphosa highlighted the oft-repeated statistics reflecting “delivery” by the ANC-led government since 1994: </p>
<ul>
<li><p><a href="https://www.dhs.gov.za/content/media-statements/human-settlements-delivers-47-million-houses-1994">4.7 million houses</a> have been built and provided “mahala” (for free) to South Africans, including houses allocated to nearly 2 million women </p></li>
<li><p>89% of households now have access to water and 85% have <a href="https://www.statssa.gov.za/?p=12211">access to electricity</a></p></li>
<li><p><a href="https://www.timeslive.co.za/politics/2024-01-15-listen-28-million-people-rely-on-social-grants-ramaphosa-boasts-about-ancs-efforts-to-prevent-poverty/">more than 28 million people</a> are beneficiaries of social grants aimed at alleviating poverty.</p></li>
</ul>
<p>Along the way, mistakes had been made, Ramaphosa said. But the ANC stood resolute in addressing the stubborn legacy of colonialism, apartheid and patriarchy.</p>
<hr>
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<em>
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Read more:
<a href="https://theconversation.com/factionalism-and-corruption-could-kill-the-anc-unless-it-kills-both-first-116924">Factionalism and corruption could kill the ANC -- unless it kills both first</a>
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<p>Not much was said about these mistakes. The ANC is nursing its fragile unity ahead of a general election later this year. Tactically, it might have been wiser for the party to own up to some of its shortcomings, as this could have denied its opponents and critics the chance to <a href="https://dailyinvestor.com/south-africa/41313/cyril-ramaphosa-celebrates-28-million-grant-recipients-four-times-the-number-of-taxpayers/">ridicule some of its claims</a>. </p>
<p>As a political scientist, I am interested in the ingredients of <a href="https://www.researchgate.net/profile/Sandy-Africa">durable democracies in post-conflict societies</a>, including South Africa, Mauritania and Libya. Thirty years after its first democratic elections, the stakes are high for the ANC as the party that took the lead in ushering in a new era.</p>
<h2>Despair and frustration</h2>
<p>It is an open secret that the party has been <a href="https://theconversation.com/factionalism-and-corruption-could-kill-the-anc-unless-it-kills-both-first-116924">riven by factions</a>. And the state it runs has been <a href="https://www.statecapture.org.za/">racked by corruption</a> for which few have been held accountable.</p>
<p>The perception that South Africa has been unsuccessful in the fight against corruption has dented the country’s image, and lessened its international leverage and stature. </p>
<p>This, in spite of the ANC government having <a href="https://www.gov.za/sites/default/files/gcis_document/202105/national-anti-corruption-strategy-2020-2030.pdf">an anti-corruption strategy</a>. And, to the chagrin of some members, the party has insisted that those facing allegations of corruption must <a href="https://www.dailymaverick.co.za/article/2023-01-06-anc-resolves-to-keep-step-aside-rule-with-case-reviews-every-six-months/">relinquish state and party positions</a>.</p>
<p>There is disappointment that the reversal of the perception of a party mired in corruption has been <a href="https://www.news24.com/news24/opinions/columnists/sipho-masondo/sipho-masondo-instead-of-our-greatest-moment-ramaphosa-has-been-our-greatest-disappointment-20230502">slow in the making</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/book-predicts-ancs-last-decade-of-political-dominance-in-south-africa-166592">Book predicts ANC’s last decade of political dominance in South Africa</a>
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<p>There is a mood of despair over <a href="https://www.gov.za/news/speeches/minister-bheki-cele-second-quarter-crime-statistics-20232024-17-nov-2023">high levels of crime and violence</a>. There is also widespread frustration over <a href="https://wandilesihlobo.com/2023/01/14/crumbling-basic-infrastructure-limits-south-africas-agriculture-and-tourism-growth-potential/">crumbling infrastructure</a> and <a href="https://theconversation.com/south-africans-are-revolting-against-inept-local-government-why-it-matters-155483">poor service delivery</a>.</p>
<p>Lashing out at detractors, a confident Ramaphosa said that South Africa was markedly different to that of 30 years ago – and that this was an achievement of the ANC.</p>
<p>He urged members and supporters to campaign for a decisive victory and avoid a coalition with other political parties. Coalitions, he argued, did not benefit the people but the deal-makers who came from the smaller parties. This argument is not without merit – the coalitions have <a href="https://www.nelsonmandela.org/news/entry/coalitions-the-new-normal-in-south-africa">rendered some municipalities dysfunctional</a>.</p>
<p>Yet, in spite of the public pronouncements, the ANC may be bracing itself for a coalition government. Several surveys say the party will garner <a href="https://www.politicsweb.co.za/documents/anc-polling-under-50-for-2024--brenthurst-foundati">less than 50% of the vote</a> needed to form a government. </p>
<p>The largest opposition party, the Democratic Alliance, has struck a deal with like-minded parties in the hope of <a href="https://mg.co.za/politics/2023-08-17-opposition-parties-agree-on-moonshot-coalition-vision-principles-and-priorities/">unseating the ANC</a>.</p>
<h2>Wooing young voters</h2>
<p>Ramaphosa’s speech reflected the party’s comfort zone, one in which it does not have to appease multiple factions. But this may be a short-lived luxury.</p>
<p>In addition to having to contend with a record number of <a href="https://www.bbc.com/news/world-africa-67741527">splinter formations</a> in the <a href="https://www.eisa.org/election-calendar/">upcoming general elections</a>, the ANC is also facing a generational change. </p>
<p>The <a href="https://www.eisa.org/election-calendar/">2024 general election</a> may become the battle for the soul of the young voter. If that is the case, then the ANC needs a fresh image, one less reliant on its history as a liberation movement. It must reflect the interests and aspirations of potential supporters more: <a href="https://www.gov.za/news/media-statements/statistics-south-africa-quarterly-labour-force-survey-quarter-three-2023-14">unemployed youth</a>, women under constant threat of <a href="https://www.afrobarometer.org/publication/ad738-south-africans-see-gender-based-violence-as-most-important-womens-rights-issue-to-address/">gender-based violence</a>; the <a href="https://debtline.co.za/south-africas-middle-class-is-r10k-poorer-than-in-2016/#:%7E:text=The%20financial%20landscape%20for%20South,compared%20to%20their%202016%20earnings.">financially squeezed middle class</a>, and those living in crowded, <a href="https://link.springer.com/article/10.1007/s10708-022-10808-z">uninhabitable circumstances</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/africas-oldest-surviving-party-the-anc-has-an-achilles-heel-its-broken-branch-structure-150210">Africa's oldest surviving party – the ANC – has an Achilles heel: its broken branch structure</a>
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<p>Ramaphosa called on supporters to stand up against gender-based violence, and to resist the exclusion of marginalised people, such as the LGBTQI community and disabled persons. He acknowledged the positive role of the youth in society, and commended the ANC Youth League <a href="https://www.enca.com/top-stories/anc-youth-league-wants-more-young-people-parliament">for their inputs</a> in shaping the statement. He promised that the party would attend to their concerns and recommendations: </p>
<ul>
<li><p>beneficiation of raw materials </p></li>
<li><p>reindustrialisation of the economy </p></li>
<li><p>the energy crisis</p></li>
<li><p>the climate crisis</p></li>
<li><p>the quality of public services. </p></li>
</ul>
<p>These items are already on the ANC’s policy programme being implemented in government. So if the party had been more astute, the January 8 statement could have indicated, especially to its younger constituency, what would be done differently this time round. As it is, these items also feature high on the list of priorities of other political parties, including those formed in recent months.</p>
<h2>Bravado amid disillusionment</h2>
<p>The ANC, through its January 8 statement, put on a show of bravado. However, it would be foolhardy of it to ignore the fact that the political terrain has shifted.</p>
<p>Even long-serving members within its ranks have become disillusioned with the party, as evidenced by the recent <a href="https://www.politicsweb.co.za/documents/why-i-am-resigning-from-the-anc--mavuso-msimang">resignation of ANC veteran Mavuso Msimang</a>, who later retracted his decision. Not all of these can be labelled rogue ex-members. In any case it is just posturing for the ANC to claim that it is and has been the <a href="https://theconversation.com/the-anc-insists-its-still-a-political-vanguard-this-is-what-ails-democracy-in-south-africa-141938">only vehicle</a> through which citizens can express their political agency. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-anc-insists-its-still-a-political-vanguard-this-is-what-ails-democracy-in-south-africa-141938">The ANC insists it's still a political vanguard: this is what ails democracy in South Africa</a>
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<p>The ANC leans heavily on its liberation movement brand. But this will not necessarily be a determining factor in who will sway voters later this year. Many see the ANC as having brought the country <a href="https://www.dailymaverick.co.za/opinionista/2023-03-01-the-anc-has-mastered-the-art-of-demolition-not-building/">to the brink of failure</a>. Others see its policies as centrist and <a href="https://theconversation.com/the-anc-isnt-ready-to-radically-transform-the-south-african-economy-75004">not radical enough</a>.</p>
<p>The governing party has only a few months in which to persuade voters to give it yet another chance to govern South Africa. It won’t be easy.</p><img src="https://counter.theconversation.com/content/221125/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sandy Africa does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The ANC leans heavily on its liberation movement brand. But this will not necessarily be a determining factor in who will sway voters later this year.Sandy Africa, Associate Professor, Political Sciences, and Deputy Dean Teaching and Learning (Humanities), University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2210192024-01-12T17:14:10Z2024-01-12T17:14:10ZSouth Africa’s legal team in the genocide case against Israel has won praise. Who are they?<p><em>South African justice minister <a href="https://www.parliament.gov.za/person-details/123">Ronald Lamola</a> <a href="https://www.youtube.com/watch?v=4f552ESZjR0">led</a> a top legal team to argue the country’s <a href="https://www.icj-cij.org/case/192">genocide case against Israel</a> at the <a href="https://www.icj-cij.org/home">International Court of Justice</a> (ICJ) on 11 January.</em> </p>
<p><em>South Africa argues that Israel’s indiscriminate retaliatory bombing and siege of Gaza contravenes the Genocide Convention. <a href="https://www.aljazeera.com/features/2024/1/10/devastated-heartbroken-against-the-odds-gaza-aid-providers-keep-going">More than</a> 23,000 Palestinians, including at least 10,000 children, have been killed. Narnia Bohler-Muller, an international law and human rights law expert, says the South African legal team argued <a href="https://www.aa.com.tr/en/analysis/explainer-south-africa-vs-israel-who-are-the-main-players-in-icj-showdown/3105068">soundly</a> that Israel’s actions in Gaza are <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf">genocidal</a>, and tells us who is who in the team.</em></p>
<h2>John Dugard</h2>
<p>Professor John Dugard is an internationally renowned <a href="https://www.up.ac.za/news/post_1645376-prof-john-dugard-awarded-the-2010-gruber-foundation-international-justice-prize">expert in international law</a> and has been cited by academics, practitioners and courts alike nationally and internationally. </p>
<p>His experience of sitting on the bench of the ICJ as an acting judge and as a member of a Rapporteur of the commission established to determine the human rights and living <a href="https://reliefweb.int/report/israel/report-special-rapporteur-commission-human-rights-situation-palestinian-territories">conditions of people living in Palestine</a> is particularly pertinent. </p>
<p>Dugard has been a member of the <a href="https://ccps21.org/boards/senior-academic-advisory-board/professor-john-dugard/">Board of Trustees of Law for Palestine</a> since 2020. He was <a href="https://www.chr.up.ac.za/news-archive/2012/1723-centre-congratulates-prof-john-dugard-on-presidential-recognition-of-his-contributions-to-law-and-human-rights-in-south-africa">recognised</a> for his contributions to the law by receiving the <a href="https://www.thepresidency.gov.za/node/5272">Order of the Baobab in 2013</a>. This is South Africa’s highest award for community service. He has received several honorary doctorates from South African universities for his work in <a href="https://law4palestine.org/prof-dr-christopher-john-robert-dugard/">human rights and international law</a>.</p>
<p>The late Constitutional Court judge <a href="https://web.archive.org/web/20081121091134/http://www.concourt.gov.za/text/judges/former/justiceismailmahomed/1.html">Justice Ismail Mahomed</a> paid <a href="https://www.mandela.ac.za/Leadership-and-Governance/Honorary-Doctorates/John-Dugard-2003#:%7E:text=On%20the%20drafting%20of%20the,of%20John%20Dugard%20was%20fulsome.%20%E2%80%A6">tribute</a> to Dugard for his role in South Africa’s democratic constitution making project in 2003.</p>
<blockquote>
<p>… the voice and the influence of John Dugard was fulsome … The entrenchment of fundamental human rights in the South African constitution which followed vindicated a lifetime of struggle … for the ideals which had absorbed so much of his energies and his passion.</p>
</blockquote>
<p>A professor of international law at the University of Leiden, Dugard has also served on the <a href="https://legal.un.org/ilc/">International Law Commission</a>, the United Nations body tasked with the development of international law, since 1997. </p>
<p>Notably, after the outbreak of the <a href="https://academic.oup.com/ejil/article/24/3/867/481600">second uprising by Palestinians against Israeli occupation</a> in 2000, the UN Commission on Human Rights appointed him to chair a commission of inquiry into the state of human rights in the Palestinian territories. </p>
<p>He is a member of various international law associations, including the prestigious <a href="https://www.idi-iil.org/en/">Institut de Droit International</a>, of which he is the first and only South African member.</p>
<h2>Max du Plessis</h2>
<p>Advocate Max du Plessis has been an advocate for 23 years, practising and teaching mostly in the South African city of Durban. He is associated with the <a href="https://www.doughtystreet.co.uk/">Doughty Street Chambers</a> in London and is an associate fellow at <a href="https://www.chathamhouse.org/">Chatham House</a>, London.</p>
<p>Du Plessis is without any doubt one of the top minds in international law. He combines practice and academic work. He is an adjunct professor at the University of Cape Town and <a href="https://www.ubunyechambers.co.za/members/maxduplessissc">Nelson Mandela University</a>.</p>
<p>As an international lawyer, he advises governments, international organisations and NGOs. He has appeared in or advised on cases before, among others, the International Criminal Court, the African Commission on Human and Peoples Rights, the Southern African Development Community Tribunal, and the <a href="https://law.ukzn.ac.za/professor-max-du-plessis/">East African Court of Justice</a>.</p>
<p>Du Plessis has submitted friend of the court briefs before the US Supreme Court, the US Court of Appeals and the Israeli Supreme Court. He is the lead or co-author of textbooks prescribed by most law schools in South Africa. The most recent is <a href="https://juta.co.za/catalogue/dugards-international-law-a-south-african-perspective_25461">International Law: A South African Perspective (2018 – 5th edition)</a> . </p>
<p>In 2015, he <a href="https://issafrica.org/iss-today/the-real-problem-behind-south-africas-refusal-to-arrest-al-bashir">acted</a> for the Southern African Litigation Centre, to counter the South African government’s argument that then Sudanese president Omar al-Bashir, who <a href="https://theconversation.com/al-bashir-south-africas-moment-of-glory-and-shame-43283">was visiting South Africa</a>, had immunity from prosecution for war crimes under customary international law as a head of state. </p>
<p>The Supreme Court of Appeal agreed and <a href="https://www.saflii.org/za/cases/ZASCA/2016/17.html">found</a> that South Africa was obligated by law as a signatory of the <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">Genocide Convention</a> to cooperate with the International Criminal Court and to arrest al-Bashir. This ruling would have compelled South Africa to <a href="https://www.aljazeera.com/news/2023/7/19/south-africa-putin-to-miss-brics-summit-by-mutual-agreement">arrest Russian president Vladimir Putin</a>, against whom the ICC has issued a warrant for war crimes, should he have attended the <a href="http://www.brics.utoronto.ca/docs/230823-declaration.html">Brics summit</a> in Johannesburg last August. </p>
<h2>Adila Hassim</h2>
<p>Advocate Adila Hassim was admitted to the Johannesburg Society of Advocates in 2003. She is the co-founder of the anti-corruption organisation <a href="https://www.corruptionwatch.org.za/?gclid=CjwKCAiA44OtBhAOEiwAj4gpOUGPTOCjkChVCWMKps_EJjl81zDpKPq-u_cLelt-AujlRBLODK_BYxoCElYQAvD_BwE">Corruption Watch</a> and serves on its board. She started her legal career working as a clerk for late <a href="https://www.sahistory.org.za/people/pius-nkonzo-langa">Chief Justice Pius Langa</a>, and is a highly regarded human rights advocate.</p>
<p>Hassim is a passionate defender of vulnerable and marginalised communities. She was involved in the groundbreaking 1997 <a href="https://www.saflii.org/za/cases/ZACC/1997/17.html">Constitutional Court case</a> which clarified, for the first time, that the state was obliged to fulfil its socio-economic rights obligations <a href="https://www.gov.za/documents/constitution/constitution-republic-south-africa-04-feb-1997">in terms of the constitution</a>. This case dealt with the right to health and created a legal precedent. </p>
<p>She took a lead in the <a href="https://theconversation.com/retired-judge-orders-compensation-rebukes-south-african-health-officials-93658">Life Esidimeni arbitration</a> over the deaths of at least 144 mental health patients. In winning this arbitration, Hassim and her team brought some comfort to the families of these victims. During the <a href="https://www.lifeesidimeni.org.za/what-now/life-esidimeni-inquest">inquest into the deaths</a>, she represented the civil rights NGO <a href="https://section27.org.za/">Section 27</a> and families of the deceased. She is the co-founder and director of litigation at Section 27. </p>
<p>She was also involved in the 2015 silicosis and tuberculosis class action against the gold mining industry which was <a href="https://www.iol.co.za/news/south-africa/gauteng/ruling-on-miners-landmark-case-1905253">settled out of court</a>. </p>
<p>Hassim’s preferred areas of practice include constitutional, administrative, health and competition law and she has been an <a href="https://www.thulamela.com/thulamela-members/adila-hassim">acting judge</a>. She has left an indelible mark on health law and the right to access healthcare in South Africa.</p>
<p>Hassim has been outspoken in her defence of LGBTQ rights. She opposed the appointment of former Chief Justice Mogoeng Moegoeng on this basis at the <a href="https://www.politicsweb.co.za/politics/why-judge-mogoeng-is-not-suitable-to-be-chief-just">Judicial Service Commission</a>.</p>
<h2>Tembeka Ngcukaitobi</h2>
<p>Tembeka Ngcukaitobi is an experienced international conflict resolution advocate at the <a href="https://chambers.com/lawyer/tembeka-ngcukaitobi-sc-global-2:270136">Pan African Bar Association of South Africa</a>. He specialises in competition law, labour law, constitutional law and commercial law. He was appointed by President Cyril Ramaphosa to the <a href="https://www.judiciary.org.za/index.php/judicial-service-commission/about-the-jsc">Judicial Service Commission</a> in 2022 and <a href="https://www.comptrib.co.za/info-library/case-press-releases/tribunal-announces-member-appointments">joined</a> the <a href="https://www.comptrib.co.za/">Competition Tribunal</a> in 2023. </p>
<p>Ngcukaitobi is an excellent senior counsel, despite one misplaced legal argument in a <a href="https://www.saflii.org/za/cases/ZAECGHC/2021/91.html">rape case</a>, which benefited the accused and caused much controversy.</p>
<p>He is trusted by government and opposition parties to take on cases of public interest.</p>
<p>Ngcukaitobi gained public prominence during the tenure of former president Jacob Zuma. He grew in popularity after forming part of the legal team of the Economic Freedom Fighters, South Africa’s second largest opposition, that successfully argued in the Pretoria High Court for former public protector Thuli Madonsela’s <a href="https://www.sahistory.org.za/archive/state-capture-report-public-protector-14-october-2016">“state of capture report”</a> to be <a href="https://www.saflii.org/za/cases/ZACC/2016/11.html">made public</a>. This allowed unprecedented transparency around a very controversial document and eventually led to the establishment of the <a href="https://www.statecapture.org.za/">judicial commission into state capture</a>.</p>
<p>Ngcukaitobi also represented the <a href="https://www.statecapture.org.za/">State Capture Commission </a> in its successful application to have Zuma jailed for contempt of the Constitutional Court. </p>
<p>He has served as counsel in a successful bid to overturn former public protector Busisiwe Mkhwebane’s report on alleged misconduct during Ramaphosa’s campaign to <a href="https://www.news24.com/news24/breaking-high-court-sets-aside-mkhwebanes-report-into-cr17-donation-in-scathing-judgment-20200310">lead the governing African National Congress</a>. This added to the evidence which led to Mkhwebane’s parliamentary impeachment <a href="https://specialprojects.news24.com/impeached-seven-years-of-busisiwe-mkhwebane/index.html">in 2023</a>.</p>
<p>In 2023 he represented 19 political parties in an application at the Pretoria High Court to declare the country’s scheduled power cuts <a href="https://www.actionsa.org.za/victory-for-actionsa-as-court-rules-loadshedding-unconstitutional-exempts-hospitals-schools-and-police-stations/">unconstitutional</a>. </p>
<p>Other members of the South African team are junior counsel: <a href="https://www.linkedin.com/in/tshidiso-ramogale-59788132/?originalSubdomain=za">Tshidiso Ramogale</a>, <a href="https://www.ubunyechambers.co.za/members/sarahpudifinjones">Sarah Pudifin-Jones</a> and <a href="https://lva.org.za/lerato-zikalala/">Lerato Zikalala</a>.</p>
<p>External counsel <a href="https://www.polity.org.za/topic/africa">supporting South Africa</a> in its ICJ application are:</p>
<ul>
<li><p><a href="https://essexcourt.com/barrister/professor-vaughan-lowe-kc/">Vaughan Lowe</a> King’s Counsel. He teaches public international law at Oxford University and has acted as a judge or arbitrator in multiple international legal disputes. </p></li>
<li><p><a href="https://www.matrixlaw.co.uk/member/blinne-ni-ghralaigh/">Blinne Ni Ghrálaigh, KC</a>. She has acted in genocide litigation before, appearing on behalf of Croatia in the ICJ.</p></li>
</ul>
<p>.</p><img src="https://counter.theconversation.com/content/221019/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Narnia Bohler-Muller receives funding from numerous organisations for HSRC project work. </span></em></p>South Africa’s legal team includes lawyers who previously acted against the government.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/2206922024-01-09T12:59:46Z2024-01-09T12:59:46ZSouth Africa’s genocide case against Israel: expert sets out what to expect from the International Court of Justice<p><em>The International Court of Justice (ICJ) will be <a href="https://www.icj-cij.org/node/203397#:%7E:text=On%20Thursday%2011%20and%20Friday%2012%20January%202024%2C%20the%20International,Israel%20on%2029%20December%202023.">holding public hearings</a> on 11-12 January at the Peace Palace in The Hague, the seat of the court, in a case brought by South Africa against Israel. South Africa has accused Israel of violating the <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">1948 Genocide Convention</a> in its <a href="https://theconversation.com/after-3-months-of-devastation-in-the-israel-hamas-war-is-anyone-winning-220644">military bombardment and siege of Gaza</a>, which started after the deadly 7 October Hamas attack on Israel. Both Israel and South Africa have ratified the genocide convention. We asked human rights and international law expert Magnus Killander for his insights.</em></p>
<h2>What is the International Court of Justice?</h2>
<p>The International Court of Justice (<a href="https://www.icj-cij.org/home">ICJ</a>) is one of many international courts. It is the most prominent and widely regarded as the most authoritative as it is the only judicial body set out in the <a href="https://www.un.org/en/academic-impact/un-charter#:%7E:text=The%20UN%20Charter%20is%20the,procedures%20of%20the%20United%20Nations.">Charter of the United Nations</a>. It has general jurisdiction rather than being limited to specific areas of law such as the <a href="https://wcl.american.libguides.com/c.php?g=563260&p=3877828#:%7E:text=International%20Tribunal%20for%20the%20Law%20of%20the%20Sea%20(ITLOS)*&text=The%20International%20Tribunal%20for%20the%20Law%20of%20the%20Sea%20is,and%20application%20of%20the%20Convention.">International Tribunal for the Law of the Sea</a> or regional human rights courts such as the <a href="https://www.african-court.org/wpafc/">African Court on Human and Peoples’ Rights</a>. </p>
<p><a href="https://www.icj-cij.org/home">The ICJ</a> should be distinguished from the <a href="https://www.icc-cpi.int/">International Criminal Court</a> (ICC), which also has its seat in The Hague, in the Netherlands. The ICC can convict and sentence individual perpetrators for violations such as genocide, crimes against humanity and war crimes. In contrast the ICJ deals only with the responsibility of states for violations of international law, not with accountability of individuals. </p>
<p>Parallel to the process at the ICJ, the prosecutor of the <a href="https://www.icc-cpi.int/palestine">ICC has been investigating “the situation”</a> in Palestine for some time, and may prosecute those allegedly responsible for atrocities committed by all parties to the conflict.</p>
<h2>What is the International Court of Justice’s jurisdiction?</h2>
<p>It can hear cases brought by states (“contentious cases”) and requests by United Nations bodies, such as the <a href="https://www.un.org/en/ga/">General Assembly</a>, for advisory opinions. The ICJ has delivered judgments in close to <a href="https://www.icj-cij.org/index.php/contentious-cases">150 “contentious cases”</a> since its first judgment in 1949, and 27 advisory opinions since its first advisory opinion in 1948. </p>
<p>The first time a case was brought to the ICJ alleging violation of the Genocide Convention was in 1993 by <a href="https://www.icj-cij.org/case/91">Bosnia against Yugoslavia</a>. The second case was in 2019 <a href="https://www.icj-cij.org/sites/default/files/case-related/178/178-20220722-jud-01-00-en.pdf">by The Gambia against Myanmar</a>. The third case was by <a href="https://www.icj-cij.org/case/182">Ukraine against Russia</a> following the Russian invasion of Ukraine in February 2022. </p>
<p>Of these cases the ICJ has so far only handed down a final judgment in the <a href="https://www.icj-cij.org/sites/default/files/case-related/91/091-20070226-JUD-01-00-EN.pdf">2007 Bosnian judgment</a>, 14 years after the case was initiated. </p>
<p>However, the ICJ has issued provisional measures in all the Genocide Convention cases, within a few months after the cases were brought to the court. Provisional measures are orders of the court to prevent irreparable harm. They bind the respondent state to refrain from certain actions until the court has delivered final judgment. The <a href="https://www.icj-cij.org/sites/default/files/case-related/178/178-20200123-SUM-01-00-EN.pdf">provisional measures in the Myanmar case</a> adopted by the court in January 2020 prohibited the state from, among other things, taking action against the minority Rohingya group by</p>
<blockquote>
<p>(a) killing members of the group; (b) causing serious bodily or mental harm to the members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group.</p>
</blockquote>
<p>While there have been fewer killings of Rohingya since the provisional measures, their <a href="https://www.hrw.org/news/2023/08/20/future-bleak-rohingya-bangladesh-myanmar">situation remains precarious</a> both in Myanmar and in Bangladesh, where many of them have taken refuge.</p>
<p>In the provisional measures order in <a href="https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-ord-01-00-en.pdf">Ukraine v Russia</a> in 2022 the ICJ ordered Russia to immediately cease its military operations in Ukraine and ensure that any military units or irregular armed units conduct military operations. However, Russia’s war on Ukraine continues.</p>
<h2>What are the conditions for having a case heard by the ICJ?</h2>
<p>1) There must be a substantive jurisdictional basis for bringing the case. This can be, for example, by agreement by the parties or, as in the case under discussion, that both states are parties to a multilateral treaty that provides for disputes between state parties to be heard by the ICJ. <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">Article IX of the Genocide Convention</a> is a case in point.</p>
<p>Israel ratified the Genocide Convention <a href="https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4">in 1950</a> and South Africa <a href="https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4">in 1998</a>. Palestine has been a <a href="https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4">party to the Genocide Convention since 2014</a> and <a href="https://www.icj-cij.org/states-entitled-to-appear">may bring cases before the ICJ</a>, but hasn’t done so. </p>
<p>2) The state bringing the case must normally have an interest in the case. However, this does not apply to certain types of violations where all states in the world are considered to have an interest. Examples include alleged violations of the Genocide Convention and the <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruel-inhuman-or-degrading">Convention against Torture</a>. In its judgment in the 2022 case <a href="https://www.icj-cij.org/sites/default/files/case-related/178/178-20220722-jud-01-00-en.pdf">against Myanmar on preliminary objections</a>, the ICJ stated that any state can bring a case to it in relation to a suspected violation by another state that is party to the Genocide Convention. </p>
<h2>The process</h2>
<p>The first step in the case is the <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20240103-pre-01-00-en.pdf">public hearing on provisional measures</a>. South Africa and Israel are allocated two hours each to present their arguments on provisional measures. A decision on provisional measures is usually taken within one or two months after the public hearing. </p>
<p>The ICJ only makes a provisional assessment of the case to issue provisional measures. Thus even if the ICJ issues provisional measures against Israel, it does not necessarily follow that the court will – in its final judgment – find that Israel has violated the Genocide Convention. </p>
<p>After a provisional measures decision, the ICJ will proceed to determine any preliminary objections raised by Israel, such as whether the court has jurisdiction to hear the case on the merits, and whether South Africa has standing to bring the case. </p>
<p>If the preliminary objections are unsuccessful, the ICJ will make a judgment on the merits of the case in which it determines whether Israel has violated the Genocide Convention. The process until a <a href="https://www.icj-cij.org/index.php/contentious-cases">final judgment takes several years</a>. In many cases final judgment has taken a decade or more. </p>
<p>Other states may intervene in a case, as many have done, for example, in the <a href="https://www.icj-cij.org/sites/default/files/case-related/182/182-20230927-pre-01-00-en.pdf">Ukraine v Russia case</a>. </p>
<h2>What action can the court take?</h2>
<p>The ICJ provides declaratory orders. In its 2007 final judgment in the <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf">Bosnia v Serbia and Montenegro case</a>, the ICJ found that Serbia had violated the Genocide Convention by not taking action to prevent the genocide in Srebrenica, and by having failed to transfer <a href="https://www.britannica.com/biography/Ratko-Mladic">Ratko Mladic</a>, who commanded the Bosnian Serb army that massacred Bosnian civilians, to the <a href="https://www.icty.org/">International Criminal Tribunal for the Former Yugoslavia</a>. </p>
<p>Other claims of genocide were dismissed by a majority of the court. The court held that the declaration of a violation was a sufficient remedy, and that the court should not provide any other remedies in the case such as compensation.</p>
<p>The orders of the ICJ are binding on states. Nevertheless, they are often ignored. This is in line with the general difficulty of enforcing international law, in particular <a href="https://www.ohchr.org/en/instruments-and-mechanisms/international-human-rights-law">international human rights law</a> and <a href="https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf">international humanitarian law</a>.</p>
<p>The <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf">provisional measures requested by South Africa</a> include that Israel should suspend military activities in Gaza, stop killing Palestinians and prevent forced displacement and deprivation of access to adequate food, water, fuel, shelter and sanitation. </p>
<p>The ICJ can grant provisional measures <a href="https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-ord-01-00-en.pdf">different from those requested</a>. While it is clear that the prevention of humanitarian assistance leading to <a href="https://www.hrw.org/news/2023/12/18/israel-starvation-used-weapon-war-gaza">starvation</a>, forced displacement and <a href="https://www.lawfaremedia.org/article/legal-questions-answered-and-unanswered-in-israel-s-air-war-in-gaza">indiscriminate bombings</a>, taken together with statements by Israeli officials (see paragraphs 101-107 of <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf">South Africa’s submission to the ICJ</a>), could constitute violations of the Genocide Convention, it is less clear that this means no military action whatsoever may be taken by Israel against Hamas. </p>
<p>Following its own precedent in earlier cases under the Genocide Convention, it seems clear that the ICJ should issue provisional measures. What such measures the court will order remains to be seen.</p><img src="https://counter.theconversation.com/content/220692/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Magnus Killander 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>There is precedent showing the ICJ may grant provisional measures within a month or two of the hearing, preventing Israel from causing further harm in Gaza.Magnus Killander, Professor, Centre for Human Rights in the Faculty of Law, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2193422023-12-07T14:13:10Z2023-12-07T14:13:10ZApartheid in Namibia: why human rights and women are celebrated on the same day<p>10 December is worldwide commemorated as <a href="https://www.un.org/en/observances/human-rights-day">Human Rights Day</a>. It marks the anniversary of the <a href="https://www.un.org/en/about-us/universal-declaration-of-human-rights">UN Universal Declaration of Human Rights</a> adopted on that day in 1948. Many countries and organisations acknowledge this as a significant marker.</p>
<p>It created a lasting, normative framework defining fundamental human rights. UN Member States, while in constant violation, have all ratified the principles. They remain a moral and ethical compass demanding recognition and respect. </p>
<p>In Namibia, the day is marked as both International Human Rights Day <a href="https://namibia.unfpa.org/en/news/commemoration-international-human-rights-day-namibian-womens-day">as well as Namibian Women’s Day</a>. The reason for this is that it marks an event that stands out in Namibian history as a reminder of human rights abuses in the past, as well as the significant role played by women in the struggle for the restoration of these rights. </p>
<p>An indiscriminate shooting by police took place on this date in <a href="https://www.namibiadigitalrepository.com/files/original/f1626d4c5966b3ae6527015e129afa71.pdf">1959</a>. Thirteen unarmed demonstrators were killed, among them one woman. More than 40 were wounded as they resisted their forced removal from an area known as the Old Location. </p>
<p>The events became a reference point for the national liberation movement, the <a href="https://www.britannica.com/topic/SWAPO-Party-of-Namibia">South West African Peoples Organisation</a>, which was formed in 1960 in response to the event. The actions of the demonstrators acted as a midwife to the organised anti-colonial liberation struggle that went on to gain new momentum, culminating in <a href="https://www.sahistory.org.za/article/namibian-struggle-independence-1966-1990-historical-background">independence in 1990</a>.</p>
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Read more:
<a href="https://theconversation.com/namibia-pulls-down-german-colonial-statue-after-protests-who-was-curt-von-francois-195334">Namibia pulls down German colonial statue after protests – who was Curt von François?</a>
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<p>As diagnosed by the late South African historian <a href="https://www.baslerafrika.ch/projects/emmett-tony/">Tony Emmett</a> in his pioneering work on the formation of national resistance in Namibia:</p>
<blockquote>
<p>The authorities’ attempts to move residents of the old location to a new township and the resistance they met represent a significant point in the political history of Namibia. … it transcended parochial issues and united a broad cross-section of groups and classes in a confrontation with the colonial state.</p>
</blockquote>
<h1>The Old Location</h1>
<p>My research has included life in the <a href="https://www.baslerafrika.ch/wp-content/uploads/2017/04/2016_3_Melber.pdf">Old Location</a>, its <a href="https://journals.ufs.ac.za/index.php/jch/article/view/5037/4005">history</a> and the <a href="https://upjournals.up.ac.za/index.php/historia/article/view/3827/3915">forced removal</a>. </p>
<p>Since the early 20th century, the Location was the biggest Black urban settlement in Namibia. A former German colony since 1884, the territory then called South West Africa was in 1918 transferred as a <a href="https://www.britannica.com/topic/mandate-League-of-Nations">League of Nation mandate</a> to South Africa. Administered like a fifth province, <a href="https://www.britannica.com/topic/apartheid">apartheid policies</a> institutionalised as “separate development” since the late 1940s, was also transferred to the adjacent country.</p>
<p>The Location was in walking distance to Windhoek’s town centre. Only a riverbed separated it from the suburb set aside for white people. Residents in the Location paid a fee for the area they occupied even though the constructions built for accommodation were their private ownership.</p>
<p>In line with apartheid policy, a decision was taken to move the people from the Location. Residents there were from a variety of indigenous communities in the country. Despite different cultural and linguistic backgrounds, they lived in peaceful cohabitation. </p>
<p>To remove them from the direct vicinity to the “White” city, a new township <a href="https://www.amazon.com/Katutura-place-where-not-stay/dp/B0006W2U1Y">Katutura</a> was created. It was separated by a buffer zone several kilometres apart from the city. It also divided the residents through ethnically (“tribally”) classified, strictly policed separate living quarters. </p>
<p>The houses there remained property of the administration, for which higher rents had to be paid. People of mixed descent, classified as so-called <a href="https://library.oapen.org/bitstream/id/c0a95c41-a983-49fc-ac1f-7720d607340d/628130.pdf">“Coloureds”</a> were until then living in the Location. They were now forced to relocate to another separate suburb <a href="https://memim.com/khomasdal.html">Khomasdal</a>. </p>
<p>Hardly anyone living in the Main Location volunteered to move. Instead, as of late 1959, women initiated a boycott of services.</p>
<p>Following weeks of campaigns, a meeting with White officials took place in the Location on 10 December. Stones were thrown, and the police opened fire. The sheer brute force executed to break resistance marked the end of the Location.</p>
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<strong>
Read more:
<a href="https://theconversation.com/namibia-and-south-africas-ruling-parties-share-a-heroic-history-but-their-2024-electoral-prospects-look-weak-204818">Namibia and South Africa's ruling parties share a heroic history - but their 2024 electoral prospects look weak</a>
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<p>As from 1960, people were moved to Katutura and Khomasdal. Their homes in the Location were bulldozed to the ground. It was officially closed in 1968, with no traces of its existence left.</p>
<p>Extensions to Katutura since then turned it into the biggest settlement in Namibia. The area of the former Location has been turned into <a href="https://www.tandfonline.com/doi/full/10.1080/02589001.2022.2081671">middle class suburbia</a>.</p>
<h1>Remembering</h1>
<p>Anna “Kakurukaze” Mungunda became <a href="https://www.facebook.com/nbcContenthub/videos/in-this-short-history-video-you-will-learn-about-anna-mungunda-also-known-as-kak/2019517574914081/">the most widely acknowledged face of the resistance</a>. </p>
<p>Narratives differ as regards her role. She was not a prominent resident before and had no involvement in the organised resistance. But police killed her when she was supposedly setting the car of one of the White officials on fire.</p>
<p>As the only woman killed, Mungunda is paid recognition and respect by a <a href="https://www.findagrave.com/memorial/150256637/anna-mungunda">tombstone</a> erected at the Windhoek Heroes Acre, inaugurated in 2002.</p>
<p>There is also an ongoing fight in Germany to get a street in Berlin named after her. The idea is to rename some of the colonial street names in the <a href="https://www.lrb.co.uk/blog/2019/october/in-the-afrikanisches-viertel">“African Quarter” (Afrikanisches Viertel)</a>. In particular, efforts are under way to change the Petersallee into <a href="https://taz.de/Dekolonisierung-von-Strassennamen/!5899594/">Anna-Mungunda-Allee</a>. <a href="https://www.jstor.org/stable/454592">Peters</a> was a notorious colonial perpetrator in imperial Germany.</p>
<p>Implementation is on hold due to a legal intervention by some of the residents.</p>
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Read more:
<a href="https://theconversation.com/namibia-and-angolas-remote-ovahimba-mountains-reveal-a-haven-for-unique-plants-new-survey-213884">Namibia and Angola’s remote Ovahimba mountains reveal a haven for unique plants – new survey</a>
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<p>In Windhoek, parts of the neglected and dilapidated Location cemetery have been <a href="https://pickingupthetabb.wordpress.com/2019/12/01/windhoek-remembering-the-old-location-massacre/">restored and upgraded</a> to a memorial site and turned into an Old Location Cemetery Museum. It is a venue for commemoration and on the <a href="https://www.windhoekcc.org.na/tour_attractions.php">list of local tourist attractions</a>.</p>
<p><a href="https://www.sant.ox.ac.uk/he-dr-zedekia-j-ngavirue-dphil-politics-1967">Zedekia Ngavirue</a> was employed as social worker in the Location in 1959/60. Politically active in the <a href="https://www.britannica.com/topic/South-West-Africa-National-Union">South West Africa National Union</a> he founded and co-edited the first African newspaper “South West News”. Its nine issues have been reproduced <a href="https://www.baslerafrika.ch/a-glance-at-our-africa/">in a compilation</a> and are a treasure trove documenting discussion of the time.</p>
<p>In his introduction to the collection, “Dr Zed” (as he was later fondly called) might have captured the spirit of these days best:</p>
<blockquote>
<p>It was, indeed, when we owned little that we were prepared to make the greatest sacrifices.</p>
</blockquote><img src="https://counter.theconversation.com/content/219342/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Henning Melber is a member of Swapo since 1974. </span></em></p>Anna “Kakurukaze” Mungunda became the most widely acknowledged face of the resistance to the apartheid policy of forced removal.Henning Melber, Extraordinary Professor, Department of Political Sciences, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2178282023-11-28T13:24:34Z2023-11-28T13:24:34ZSharpeville: new research on 1960 South African massacre shows the number of dead and injured was massively undercounted<p>On 21 March 1960 at 1.40 in the afternoon, apartheid South Africa’s police opened fire on a peaceful crowd of about 4,000 residents of Sharpeville, who were protesting against carrying <a href="https://www.sahistory.org.za/article/pass-laws-south-africa-1800-1994">identity documents</a> that restricted black people’s movement. The police minimised the number of victims by at least one third, and justified the shooting by claiming that the crowd was violent. This shocking story has been thus misrepresented for over 60 years.</p>
<p>Our <a href="https://doi.org/10.4324/9781003257806">new research</a> retells the story of Sharpeville, about 70km south of Johannesburg, from the viewpoint of the victims themselves. As experienced <a href="https://www.lsu.edu/hss/history/people/faculty/clark.php">historians</a> who have undertaken archival research in South Africa <a href="https://history.ucla.edu/faculty/william-worger">since the 1970s</a> we based our <a href="https://doi.org/10.4324/9781003257806">research</a> on interviews with survivors and investigation into government records in both the <a href="https://archive.nelsonmandela.org/index.php/south-african-police-museum-and-archives">police archives</a> and the <a href="https://www.gov.za/about-government/contact-directory/soe/soe/national-archives-south-africa-nasa">national archives</a> in Pretoria. Our work reveals the true number of victims and the exact role of the police in the massacre.</p>
<p>The <a href="https://www.sahistory.org.za/article/sharpeville-massacre-21-march-1960">Sharpeville Massacre</a> ignited international outrage and the birth of the <a href="https://www.sahistory.org.za/article/british-anti-apartheid-movement">Anti-Apartheid Movement</a> worldwide. It also led to renewed political protests inside South Africa. These were met with the total suppression of political movements that lasted for 30 years. Despite its historic importance, Sharpeville as a place and a community has remained unknown to the wider public and its residents anonymous. Yet they have a story to tell.</p>
<p>Even though the <a href="https://www.justice.gov.za/trc/">Truth and Reconciliation Commission</a> chose the 1960 Sharpeville massacre as the formal beginning of its investigation of apartheid crimes, its examination of the massacre itself was perfunctory. Only three witnesses from the community were invited to testify during just part of one day (out of 2,000 witnesses during five years of hearings). </p>
<p>People in Sharpeville believe that the lack of attention to their plight since democracy in 1994 is because the original protest was organised by the rival <a href="https://www.sahistory.org.za/article/pan-africanist-congress-pac">Pan-Africanist Congress of Azania</a>, not the governing African National Congress (ANC).</p>
<h2>Changing the narrative</h2>
<p>Based on our research, the new book <a href="https://doi.org/10.4324/9781003257806">Voices of Sharpeville</a> traces the long residence of Africans in the greater Sharpeville area, as far as the <a href="https://www.maropeng.co.za/content/page/introduction-to-your-visit-to-the-cradle-of-humankind-world-heritage-site">Cradle of Humankind World Heritage Site</a> 100km north. It also emphasises the crucial industrial importance of the greater <a href="https://www.sahistory.org.za/dated-event/vaal-triangle-erupts-violence">Vaal Triangle</a> in which Sharpeville is located, from the 1930s onward.</p>
<p>Our work details the rich culture developed by urban Sharpeville residents in defiance of the attempts of <a href="https://www.sahistory.org.za/people/hendrik-frensch-verwoerd">Prime Minister HF Verwoerd’s</a> attempts to control African life. </p>
<p>Using the words of witnesses as recorded from their hospital beds within days of the shooting, and for weeks and months later, the events of 21 March 1960 are recounted in detail, increasing the number of victims to at least 91 dead, and 281 injured. The official police figures first published in 1960 and repeated endlessly ever since were 69 and 180 respectively. </p>
<p>The witness testimony places the responsibility for the shooting squarely with the police. </p>
<h2>New evidence</h2>
<p>The oral and documentary source material we used was previously off limits to researchers, insufficiently examined, or largely ignored. Access to many records held by the previous apartheid government was absolutely restricted prior to 1994, and since then many of the records have not been properly registered. This makes it challenging for researchers to find important documents.</p>
<p>But with the help of archivists and librarians, we were able to locate rare and even hidden records of Sharpeville and its history, and record the voices of many of the town’s residents.</p>
<h2>History of Sharpeville</h2>
<p>The first settlement in the Sharpeville area – <a href="https://www.sahistory.org.za/place/sharpeville-gauteng">Top Location</a> – was razed in the 1950s to make space for white people’s businesses and homes. Official records and aerial photographs reveal the previous existence of a large community on the now empty land. There is also an unmarked cemetery where about 3,500 residents were buried between around 1900 and 1938. </p>
<p>By the mid-20th century, apartheid officials began to plan a bigger settlement in the vicinity. Sharpeville and other places like it were designed in the 1950s to segregate Africans away from the cities, which were reserved for white people only. </p>
<p>Sharpeville’s housing construction became a “model” for the ubiquitous <a href="https://www.researchgate.net/figure/House-types-NE-51-6-and-51-9_fig4_272164901">four-roomed NE 51/9 houses</a> in <a href="https://www.jstor.org/stable/43622104">black townships</a> throughout the country, none of which they could own outright but rent only.</p>
<p>In almost 300 witness statements taken by the police immediately following the shooting, many of the everyday details of life in Sharpeville were revealed. These statements were recorded immediately after arrest and under oath by the police to determine guilt or innocence against the charges of “public violence and incitement” brought against them. They were also provided voluntarily in 1961 and 1962, also under oath, by survivors and family members to establish a basis for the compensation the victims unsuccessfully requested.</p>
<p>Details of family life – numbers of children, occupations, wages, and health – were recorded, providing a wealth of information about Sharpeville’s residents. </p>
<p><strong>The massacre</strong>: Testimony, both from the official 1960 <a href="https://idep.library.ucla.edu/sharpeville-massacre#:%7E:text=A%20Commission%20of%20Enquiry%20was,officials%2C%20and%20residents%20of%20Sharpeville">commission of enquiry</a> into the massacre, and the criminal court trial of over 70 Sharpeville residents in 1960-1961, detailed the actions of both the crowd and the police.</p>
<p>The testimony by civilians and police alike, together with the claimants’ statements, provides a minute-by-minute narrative of the day. The testimonies of the residents, including all the Africans who worked for the municipality and as police officers in Sharpeville, unanimously attested to the fact that the crowd gathered peacefully to <a href="https://www.sahistory.org.za/article/pass-laws-south-africa">protest the pass law</a>. According to these witnesses, by the time of the shooting, almost 300 policemen had been moved into the township, including at least 13 white policemen armed with Sten machine guns. There were five Saracen armoured vehicles. </p>
<p>Police testimony makes it clear that the officer in charge gave the order to shoot, with the machine gunners firing directly into the crowd from a distance of no more than 3-5 metres. As one white official noted: </p>
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<p>It made me think of a wheat field, where a whirlwind had shaken it.</p>
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<p>The crowd was taken utterly by surprise by the police fusillade. Over three quarters of them, dead and injured alike, were shot in the back as they fled.</p>
<p><strong>The victims</strong>: Crucial to gaining an accurate understanding of the numbers of victims – their names, families, and injuries – were the autopsy and medical records detailing the exact causes of death and injury for the over 300 victims. These forms and narrative statements, filled out by the hospital physicians who treated the injured and performed autopsies on the dead, prove conclusively that the government under-counted the victims by at least one third. </p>
<p>This new information remained embargoed in police records throughout the apartheid years to 1994. Some of it was finally transferred to the national archives in the late 1990s and early 2000s. It details the injuries.</p>
<h2>Remembrance</h2>
<p>The people of Sharpeville wonder why the world has not listened to their stories even as they have told them from the day of the shooting to the present.</p>
<p>In 2023, residents were able to use the information uncovered in our research to update the Wall of <a href="https://www.freedompark.co.za/">Names Memorial</a> (which lists the name of every person who gave their life fighting for freedom in South Africa) at <a href="https://idep.library.ucla.edu/africa/about-freedom-park">Freedom Park</a> in Pretoria to reflect accurately the number of victims killed on 21 March 1960. But still they have received no compensation for their injuries.</p><img src="https://counter.theconversation.com/content/217828/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>William H Worger receives funding from the University of California Office of the President.</span></em></p><p class="fine-print"><em><span>Nancy L Clark 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>Despite its historic importance, Sharpeville itself has remained unknown and its residents anonymous, yet they have a story to tell.Nancy L Clark, Dean and Professor Emeritus, Louisiana State University William H. Worger, Professor Emeritus of History, University of California, Los AngelesLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2177232023-11-22T14:36:11Z2023-11-22T14:36:11ZSouth African politicians vs judges: new book defends the constitution<p>In 1994, South Africa became a democracy founded on a supreme constitution. The constitution’s <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">preamble</a> affirms the nation’s quest to</p>
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<p>establish a society based on democratic values, social justice and fundamental human rights. </p>
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<p>The constitution clearly envisioned political accountability and judicial review of executive and legislative actions. But, almost three decades on, this vision is increasingly under virulent criticism by populist politicians.</p>
<p>Dan Mafora’s new <a href="https://www.nb.co.za/en/view-book/?id=9780624093916">book</a>, Capture in the Court – In Defence of Judges and the Constitution, likens the rising rebellion against judges and the constitution to “judicial capture”. He labels this rebellion “anti-constitutionalism” and explains the key factors behind “the less-than-happy relations between the courts and politicians”. </p>
<p>Mafora writes from an insider-outsider perspective. He is a senior researcher at the non-profit <a href="https://za.linkedin.com/company/council-for-the-advancementof-the-south-african-constitution">Council for the Advancement of the South African Constitution</a>, an ex-corporate lawyer, and a former clerk in the <a href="https://collections.concourt.org.za/">Constitutional Court of South Africa</a>.</p>
<p>As someone who has taught the South African bill of rights and <a href="https://www.elgaronline.com/edcollchap/edcoll/9781788113199/9781788113199.00012.xml">written</a> about <a href="https://www.pulp.up.ac.za/component/edocman/constitutionalism-and-democratic-governance-in-africa-contemporary-perspectives-from-sub-saharan-africa">constitutionalism in Africa</a>, I understand the significance of this book. </p>
<p>Although its title seems sensationalist, it is justified by its depressing evidence. As Mafora states:</p>
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<p>It is now not an uncommon occurrence for a former president to claim that we are under a judicial dictatorship, or for a senior leader of the official opposition to claim that the Constitutional Court leaked a judgment to the ANC …</p>
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<p>The ANC (African National Congress) has governed the country since 1994. </p>
<p>In the first decade after the 1994 democratic elections, South Africa was hailed as a beacon of <a href="https://www.britannica.com/topic/constitutionalism">constitutionalism</a>. This is the idea that governmental authority is determined by a supreme constitution enforced by judges. So how did the country <a href="https://ideas.repec.org/a/sae/anname/v681y2019i1p194-208.html">fall</a> from this heady height?</p>
<h2>Rise of anti-constitutionalism</h2>
<p>Mafora attributes the fall to four interwoven elements: </p>
<ul>
<li><p><a href="https://www.collinsdictionary.com/dictionary/english/lawfare">lawfare</a> or the “steady judicialisation of politics”</p></li>
<li><p>misinformation campaigns</p></li>
<li><p>increased public visibility of lawyers and judges</p></li>
<li><p>the sluggish pace of socio-economic transformation. </p></li>
</ul>
<p>Populist politicians claim that <a href="https://theconversation.com/rule-of-law-in-south-africa-protects-even-those-who-scorn-it-175533">judges constrain socio-economic change</a> by protecting neoliberal economic policies, notably <a href="https://theconversation.com/land-reform-in-south-africa-what-the-real-debate-should-be-about-182277">land laws</a>. </p>
<p>Since <a href="https://projects.iq.harvard.edu/johncomaroff/john-comaroff-explains-lawfare">lawfare</a> and misinformation underlie the book’s theme of “judicial capture”, they deserve a closer look.</p>
<p><strong>Lawfare</strong> is commonly understood as the strategic use of legal proceedings to intimidate or restrict the agency of an opponent. In the post-apartheid era, it <a href="https://www.researchgate.net/publication/333571635_%27Lawfare%27_in_South_Africa_and_Its_Effects_on_the_Judiciary">refers to</a></p>
<blockquote>
<p>the use of litigation to resolve contentious political disputes in spite of the existence of many non-curial [non-judicial] constitutional safeguards.</p>
</blockquote>
<p>Mafora traces lawfare to the ANC’s failure on two counts. One was the failure to choose between constitutionalism and “people’s power” during the 1990s <a href="https://theconversation.com/south-africas-1994-miracle-whats-left-159495">negotiations that ended apartheid</a>. The other was its failure to fully promote constitutionalism afterwards. It ideologically linked <a href="https://www.sahistory.org.za/article/peoples-power-1986">“people’s power”</a> to its <a href="https://omalley.nelsonmandela.org/index.php/site/q/03lv02424/04lv02730/05lv03005/06lv03132/07lv03140/08lv03145.htm">National Democratic Revolution</a>. This Soviet-inspired concept aimed at realising a social system between capitalism and communism. </p>
<p>The ANC was happy with constitutionalism as long as its outcomes coincided with the goals of the National Democratic Revolution. Failing this, it tried unsuccessfully to manipulate the judiciary to realise these goals. In Mafora’s words, </p>
<blockquote>
<p>Today’s ANC, frankly put, does not truly believe in the idea of a supreme Constitution to which it is bound and under which it ought to function. </p>
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<p>Using many examples, he argues that the ANC’s indifference to constitutionalism has left the constitution vulnerable to opportunistic attacks by politicians. Misinformation plays a huge role in these attacks.</p>
<p><strong>Misinformation:</strong> Information wars occur through chat bots and fake social media handles that spin the narratives of their creators. Misinformation creates doubt over conflicting narratives. It breeds mistrust in the judiciary, especially when judges’ decisions appear to contradict the public’s commonsense understanding of issues. </p>
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Read more:
<a href="https://theconversation.com/are-judges-in-south-africa-under-threat-or-do-they-complain-too-much-45459">Are judges in South Africa under threat or do they complain too much?</a>
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<p>The unfortunate result is a perception that the courts rarely act in the interest of the masses. This encourages anti-constitutionalism and loud noises for a return to (apartheid era) parliamentary supremacy.</p>
<p>So, what is the panacea?</p>
<h2>In defence of constitutionalism</h2>
<p>Mafora rightly regards constitutionalism as integral to democratic governance. It underpins </p>
<ul>
<li><p>multi-party democracy </p></li>
<li><p>supremacy of the <a href="https://www.justice.gov.za/constitution/SAConstitution-web-eng-02.pdf">bill of rights</a> </p></li>
<li><p>primacy of the rule of law</p></li>
<li><p>judges’ power to review legislative and executive conduct with due respect for separation of powers and cooperative governance.</p></li>
</ul>
<p>He takes pains to explain these legal concepts, hoping that doing so will improve </p>
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<p>the low level of constitutional literacy among South Africans, [which] renders them vulnerable to both misinformation and disinformation.</p>
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<p>Interestingly, Mafora attempts to debunk accusations that the constitution is colonial. He analyses two schools of thought. </p>
<p>The first holds that the common law is colonial because it was “received” into South Africa through colonial conquest. </p>
<p>The second says the common law is colonial also because it is rooted in European legal tradition. </p>
<p>Mafora thinks that for law to still qualify as colonial, it must reproduce the inequitable relations that defined “colonial law, administration and experience”. He argues that <a href="https://unimelb.libguides.com/c.php?g=929734&p=6718215#:%7E:text=The%20Roman%2DDutch%20law%20common,traced%20to%20this%20civilian%20heritage.">Roman-Dutch law</a>, which was almost entirely private law, lost its colonial baggage in South Africa. </p>
<p>He is right to condemn how public officials use decolonisation for political gains. But in my view, he seems to misunderstand the nature of South Africa’s constitution.</p>
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<p>
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Read more:
<a href="https://theconversation.com/rule-of-law-in-south-africa-protects-even-those-who-scorn-it-175533">Rule of law in South Africa protects even those who scorn it</a>
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<p>As I have <a href="https://repository.uwc.ac.za/bitstream/handle/10566/7355/Diala_law_2021.pdf?sequence=1&isAllowed=y">argued</a> elsewhere, colonial patterns of power persist. These make Africans cultural and intellectual clones of Europeans. In this context, is the constitution not part of the Roman-Dutch law, which emerged from European culture? </p>
<h2>A Eurocentric constitution</h2>
<p>Mafora fails to point out how the bill of rights, the cornerstone of South Africa’s constitution, was inspired by the 1948 <a href="https://www.un.org/en/about-us/universal-declaration-of-human-rights">Universal Declaration of Human Rights</a>. Crudely put, the declaration symbolised western nations’ reaction to the <a href="https://www.britannica.com/summary/World-War-II">second world war</a> and centuries of violent conflicts. With zero indigenous African input, it represented western legal culture. </p>
<p>Significantly, South Africa’s constitution <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">claims</a> authority over African customary laws and the colonially imposed European laws regarded as the common law. But given its intellectual roots in European laws, the constitution’s authority over the common law is like regulating itself. So, in my view, the constitution is part of Roman-Dutch law, and therefore part of the colonial heritage.</p>
<p>Mafora’s book is nevertheless important for understanding and managing the relationship between judges, politicians and the constitution. It is timely because South Africa is facing an existential crisis of service delivery, which belies the post-apartheid optimism of good governance.</p><img src="https://counter.theconversation.com/content/217723/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony Diala receives funding from the National Research Foundation of South Africa (Grant Number 136532). However, the opinions, findings and recommendations here are his alone.</span></em></p>The governing ANC’s indifference to constitutionalism has left the constitution vulnerable to opportunistic attack by politicians.Anthony Diala, Director, Centre for Legal Integration in Africa, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2152692023-10-24T13:16:03Z2023-10-24T13:16:03ZThe thorny issue of ‘race’ in South African politics: why it endures almost 30 years after apartheid ended<p><a href="https://www.britannica.com/topic/race-human">“Race”</a> continues to have much political salience in South Africa, a country where, in the past, perceived differences of skin colour were used to construct a <a href="https://www.sahistory.org.za/article/history-apartheid-south-africa">hierarchy of “races”</a>, with whites at the top, to justify their political economic domination. </p>
<p>The move to constitutional democracy in 1994 committed the country to <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf#page=7">non-racialism</a>. However, almost three decades after the end of apartheid, politicians of different stripes continue to use “race” <a href="https://www.usip.org/sites/default/files/files/case-study-competition/20130322-The-Emergence-of-Racial-Politics-in-South-Africa.pdf">as a wedge issue</a> to mobilise support.</p>
<p>The question is why. Two answers stand out.</p>
<p>The first is that racial oppression has been entrenched by the country’s brutal history. The second is that the 1994 political settlement has failed to significantly improve the conditions of the mass of South Africans. </p>
<p>As a <a href="https://www.researchgate.net/profile/Roger-Southall">sociologist</a> and long-term observer of South African affairs, I suggest that these arguments are not easily dismissed, despite counter suggestions that life for most South Africans <a href="https://irr.org.za/reports/occasional-reports/files/life-in-south-africa-reasons-for-hope.pdf">has improved since 1994</a>. Both arguments suggest that, after nearly three decades, the <a href="https://www.britannica.com/question/How-did-apartheid-end">democracy of 1994</a> has become a form of neo-apartheid. Only a small black elite and middle class has been admitted to the old order of white economic prosperity and privilege while the majority of the population remains poor and black.</p>
<p>As long as this is the case, “race” will continue to have salience in the country’s politics, contrary to the non-racial consensus to which the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a> aspires.</p>
<h2>A fault of history</h2>
<p>The first argument says that “race”, as an explanatory feature of the continuing inequalities in South Africa, is hard-wired into the country’s politics by the long history of racial oppression. <a href="https://www.ufs.ac.za/docs/default-source/all-documents/biography-mr-moletsi-mbeki.pdf?sfvrsn=38b96d20_0">Moeletsi Mbeki</a>, a provocative commentator, <a href="https://www.businesslive.co.za/bd/opinion/2020-09-21-moeletsi-mbeki-how-a-history-of-conflict-made-sa-the-most-unequal-country-in-the-world/">writes that</a> the country’s <a href="https://www.sahistory.org.za/article/south-africa-1900s-1900-1917#:%7E:text=Increased%20European%20encroachment%20ultimately%20led,South%20Africa%20by%20the%20Dutch.&text=The%20Cape%20Colony%20remained%20under,to%20British%20occupation%20in%201806.">conquest</a> by the Dutch and the British, and the reaction of its native peoples to their conquest, is the only context in which the issues of “race” and “race relations” are understandable.</p>
<p>Having decimated a prosperous African peasantry to produce a massive supply of cheap labour to the mines, the British enlisted a class of Afrikaner collaborators who managed the country between 1910 and 1994.</p>
<p>The implication is that even if South Africa’s politics officially subscribe to <a href="https://www.jstor.org/stable/42705231?typeAccessWorkflow=login">non-racialism</a>, the <a href="https://mg.co.za/article/2020-02-27-the-business-of-unfinished-busines/">physical and psychological violence</a> inflicted upon the African majority cannot be wished away. It is easily exploited as a resource by unscrupulous politicians. </p>
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Read more:
<a href="https://theconversation.com/how-south-africas-white-liberals-dodge-honest-debates-about-race-127846">How South Africa's white liberals dodge honest debates about race</a>
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<p>Some see elections as a <a href="https://www.jstor.org/stable/10.1111/j.1468-2508.2006.00471.x?typeAccessWorkflow=login">“racial census”</a>, spurred on by a shift away from non-racialism within the ruling African National Congress (ANC), to prioritising black African interests. The ANC characterises its principal rival, the Democratic Alliance, as the <a href="https://ewn.co.za/2019/05/04/magashule-da-is-a-white-party-despite-black-faces-leading-it">political vehicle of white people</a>.</p>
<h2>Failure of the 1994 settlement</h2>
<p>The second argument about “race” is that the foundation of the <a href="https://theconversation.com/why-its-wrong-to-blame-south-africas-woes-on-mandelas-compromises-96062">1994 settlement </a> was built on the premise of a non-racial South Africa. But this has failed to significantly improve the conditions of the mass of South Africans.</p>
<p>In its most conspiratorial form, this presents <a href="https://theconversation.com/white-monopoly-capital-good-politics-bad-sociology-worse-economics-77338">“white monopoly capital”</a> as having concocted a deal with an incoming black political elite. This helps white people to <a href="https://www.iol.co.za/news/the-unfettered-power-of-white-monopoly-capital-8680007">maintain their economic dominance</a> over the black African majority.</p>
<p>More convincing are suggestions that the social democracy constructed in 1994 produced only a few winners. From this perspective, South Africa’s democracy was built on the simple proposition that the rising black elite and middle class could bargain and compromise with whomsoever it liked so long as each generation of black South Africans did better than the last.</p>
<p>For the first 15 years or so, this held. Although inequality remained vast, the bottom quarter of the population was enabled to rise through the <a href="https://www.gcis.gov.za/sites/default/files/docs/gcis/16.%20Social%20Development.pdf">expansion of a welfare state</a>. However, following the <a href="https://theconversation.com/inequality-troubling-trends-and-why-economic-growth-in-africa-is-key-to-reducing-global-disparities-215266">global crisis of 2008</a>, the <a href="http://www.saccps.org/pdf/5-1/5-1_DRMartin_DrSolomon_2.pdf">state capture era</a> under former president Jacob Zuma and <a href="https://theconversation.com/pandemic-underscores-gross-inequalities-in-south-africa-and-the-need-to-fix-them-135070">COVID</a>, this “foundational covenant” has been broken. </p>
<p>The lives of the younger generations are likely to become worse than those that preceded them. The <a href="https://theconversation.com/south-africa-cant-crack-the-inequality-curse-why-and-what-can-be-done-213132">levels of inequality</a> are not only intolerably high, but racially skewed. As a result, South Africa has, according to academic and commentator <a href="https://theconversation.com/profiles/jonny-steinberg-1438581">Jonny Steinberg</a>, become </p>
<blockquote>
<p><a href="https://www.businesslive.co.za/bd/opinion/2019-06-14-jonny-steinberg-the-centre-held-in-may-poll-thanks-to-fear-not-hope/">a perfect cocktail for populist mobilisation</a>.</p>
</blockquote>
<p>The liberal <a href="https://irr.org.za/reports/occasional-reports/reasons-for-hope-2019-unite-the-middle">Institute of Race Relations</a> has argued that South Africans are far more concerned about material improvement (more houses, more jobs, improved schools, and better services) than they are about “race” and that public perception is that <a href="https://irr.org.za/reports/occasional-reports/files/reasons-for-hope-report-final.pdf">“race relations” have improved since 1994</a>. </p>
<p>They may well be right, yet this rather misses the point that social change could well have been faster than it has been. As many black (and other) commentators <a href="https://theconversation.com/why-south-africa-should-undo-mandelas-economic-deals-52767">point out</a>, there is as much continuity with apartheid as there has been change. </p>
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<em>
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Read more:
<a href="https://theconversation.com/racism-in-south-africa-why-the-anc-has-failed-to-dismantle-patterns-of-white-privilege-187660">Racism in South Africa: why the ANC has failed to dismantle patterns of white privilege</a>
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<p>Not least the fact that <a href="https://theconversation.com/racism-in-south-africa-why-the-anc-has-failed-to-dismantle-patterns-of-white-privilege-187660">whites continue</a> to be disproportionately advantaged in terms of income, wealth, housing, and opportunity relative to other South Africans. Yet, there is an unwillingness among white people to recognise that to be white in South Africa continues to be a primary marker of socio-economic advantage.</p>
<p>A <a href="https://www.amazon.com/StayWoke-Africa-survive-Americas-culture/dp/B093RZJGSX">counter view</a> to this is that continuing inequalities are falsely ascribed to white racial privilege rather than to the broader political and economic dynamics of post-1994 South Africa. Central to such claims is that the non-racialism to which the 1994 settlement aspires has been perverted by the ANC’s policies of <a href="https://www.tandfonline.com/doi/full/10.1080/03056240701340365?casa_token=vcnLCrNvWCAAAAAA%3Aof20qYMBRBvHgmsttlZe12dgLK6HodItdYkRai6ZsnYDJaO-V-58gttAXFXsxQP12ldMa9P0QLg5a28">black economic empowerment</a> and <a href="https://www.labour.gov.za/DocumentCenter/Publications/Employment%20Equity/What%20employers%20and%20workers%20need%20to%20know%20about%20Employment%20Equity/EE%20pamphlet%20opt%20red.pdf">employment equity</a>.</p>
<p>Although those policies are officially pitched as levelling the playing fields to render society “demographically representative”, critics decry how they have become instruments for the dishing out of state contracts to those with connections to the ANC. </p>
<p>The debate continues with a remorseless circularity. </p>
<h2>White versus black fragility</h2>
<p>“Race” remains central to politics in South Africa and cannot simply be wished away, even if whites have conceded political power and <a href="https://www.jstor.org/stable/j.ctv24tr7sh?typeAccessWorkflow=login">offer no major threat to democracy</a>. This does not suggest that white privilege has evaporated. Nor does it mean that there has been no significant change in racial dynamics since 1994. </p>
<p>We also need to understand the dynamics of class as much as those of “race” to understand why “race” remains so central to contemporary political debate.</p>
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Read more:
<a href="https://theconversation.com/white-people-in-south-africa-still-hold-the-lions-share-of-all-forms-of-capital-75510">White people in South Africa still hold the lion's share of all forms of capital</a>
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<p>To state the obvious, whites have lost control of the state, enabling ANC policies such as <a href="https://www.gov.za/documents/broad-based-black-economic-empowerment-act">black economic empowerment</a> and the widening of access to higher education to promote upward mobility and the growth of the black middle class. Indeed, South Africa’s middle class is today <a href="https://jacana.co.za/product/the-new-black-middle-class-in-south-africa/">as much black as it is white</a>. This, even though the black middle class is on aggregate less well-off than the white middle class.</p>
<p>The critics of the political settlement of 1994 largely hail from the black middle class, even though it is the black middle class that has been one of the principal beneficiaries of South Africa’s social democracy. Despite their gains, it is they who are most likely to encounter what they perceive as “white privilege”, most notably in the workplace, as the primary obstacle to material advancement and upward social mobility.</p><img src="https://counter.theconversation.com/content/215269/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Roger Southall does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Critics of the 1994 political settlement largely hail from the black middle class, even though it has been one the principal beneficiaries of South Africa’s social democracy.Roger Southall, Professor of Sociology, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2147362023-10-15T04:45:46Z2023-10-15T04:45:46ZBetween state and mosque: new book explores the turbulent history of Islamic politics in Mozambique<p><em><a href="https://www.imf.org/external/pubs/ft/dp/2014/afr1404.pdf">Mozambique</a> is a multi-religious southern African nation with excellent relations between faiths. Relations between Muslims and the state have been good too. But the situation became more complicated <a href="https://theconversation.com/mozambiques-own-version-of-boko-haram-is-tightening-its-deadly-grip-98087">in 2017</a> when a bloody jihadist insurgency broke out in the north. Eric Morier-Genoud has published extensively on politics and religion in Mozambique. His latest book, <a href="https://www.hurstpublishers.com/book/towards-jihad/">Towards Jihad? Muslims and Politics in Postcolonial Mozambique</a>, looks at the historical relationship between Islam and politics in the country. He fielded some questions from The Conversation Africa.</em></p>
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<h2>When was Islam introduced to Mozambique?</h2>
<p>Islam has a very old presence in Mozambique. It is estimated to have arrived within the first century of the start of the faith, with Arab, Ottoman and Persian traders. It settled at once during and after the 8th century among new Swahili networks, cultures and societies that developed on the east African coast between Somalia and what is today Mozambique. </p>
<p>Expansion of the Islamic faith inland was slow and only made significant progress in the 19th and 20th centuries. This was the time when European colonial powers occupied Africa, building new infrastructure such as roads and railways that helped the spread of different faiths. </p>
<p>At <a href="https://www.britannica.com/place/Mozambique/Mozambique-under-the-New-State-regime">independence in 1975</a>, Muslims represented 15% of the population of Mozambique. The latest census indicates it stood at 19% <a href="https://www.britannica.com/place/Mozambique/Religion">in 2017</a>. Today Muslims live mostly on the coast and in the north of the country. A majority of the population of Niassa and Cabo Delgado provinces are Muslim, as are 40% of the population of Nampula province.</p>
<h2>What’s been the political experience of Muslims since independence?</h2>
<p>A majority of Muslims, like all other religious people in the country, were in favour of independence. But when Frelimo, the liberation movement, came to power at independence in 1975, its policy was socialist-oriented and the government turned against religion. Frelimo saw faith as a superstition and an impediment to its programme. It closed churches near state and educational institutions, restricted religious practice, and even ran atheist campaigns between 1978 and 1980. </p>
<p>In the 1980s, the Frelimo party-state shifted towards tolerance, meaning a policy of minor religious restrictions and a strict separation between state and church/mosque. Frelimo party members were prohibited from being members of a religious institution. Faith institutions were ordered to focus on religion only. </p>
<p>In the 1990s, after the end of the <a href="https://www.britannica.com/question/How-did-the-Cold-War-end">Cold War</a> and the official abandonment of socialism, the Frelimo government moved towards a freer religious regime. </p>
<p>Nevertheless, the post-socialist <a href="https://www.portaldogoverno.gov.mz/por/Governo/Legislacao/Constituicao-da-Republica-de-Mocambique">1990 constitution</a> did not allow political parties based on regionalism, ethnicity or religion. So there’s a limit to what Muslims can do politically for their faith.</p>
<p>A law to recognise Muslim religious holidays in the 1990s was blocked by the Supreme Court in the name of secularism. Muslims argued this was unfair since Christmas is an official holiday, although called <a href="https://www.timeanddate.com/calendar/?country=126">“family day”</a>. </p>
<p>Similarly in the 2000s Muslim politicians (organised in a formal cross-party lobby in parliament) struggled to influence a new law to define the family, inheritance rights and women’s rights. </p>
<p>Consequently, many Islamic organisations and politicians have moved away from politics in the last two decades, to focus on education, social works and proselytism.</p>
<h2>What led to the current insurgency?</h2>
<p>There is much debate about the causes of the jihadi insurgency in northern Mozambique. <a href="https://www.iese.ac.mz/wp-content/uploads/2019/09/cadernos_17.pdf">Researchers</a> have identified poverty, youth marginalisation, ethnicity and religion as push factors. </p>
<p>The pull factor is a jihadi project of more justice and equality through sharia law and a caliphate. It offers an alternative plan for state and society, and a path to it through violence. The insurgency developed regionally (in connection with Tanzanian jihadis) and the insurgents connected formally to the Islamic State, the <a href="https://www.economist.com/middle-east-and-africa/2022/08/11/how-al-qaeda-and-islamic-state-are-digging-into-africa">international terrorist group</a>, in early 2018. </p>
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Read more:
<a href="https://theconversation.com/mozambican-terror-group-is-strikingly-similar-to-nigerias-deadly-boko-haram-201039">Mozambican terror group is strikingly similar to Nigeria's deadly Boko Haram</a>
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<p>My book shows that the overwhelming majority of Muslims in Mozambique do not want full sharia law and a caliphate. Nor do they accept the violence used to achieve these objectives. </p>
<p>The insurgents have nevertheless settled militarily in the extreme north, where they have established bases in deep forests and rely on Islamic State for some technical support and public relations.</p>
<h2>What support, if any, do the insurgents enjoy in Mozambique?</h2>
<p>Insurgents enjoy hardly any support nationally. Locally, they draw some support from networks they established, from long-held local grievances, and from mistakes the state, the army and the police have made since the start of the conflict. </p>
<p>Other dynamics have come into play, including displacement, violence, uncertainty and fear. Today, the “Al-Shabaab” insurgents (as they are known in Mozambique) operate in a territory of about 30,000 square kilometres which represents less than half of the province of Cabo Delgado (one of the 11 provinces of Mozambique). </p>
<p>This is a very limited territory, but one where crucial economic projects are located. Among others, private investment is unfolding for the production of onshore and offshore LNG gas, and companies have developed graphite projects that have turned Mozambique into the second largest world producer of this mineral. </p>
<p>The insurgents have hardly expanded since they began their armed insurrection in October 2017. In 2021 they carried out attacks in Niassa and Nampula, but they withdrew rapidly. It is not clear whether they chose not to expand, or whether the government and its <a href="https://www.usip.org/publications/2022/06/regional-security-support-vital-first-step-peace-mozambique">international allies</a> have been effective in containing them. Still, the armed conflict continues today, six years on.</p>
<h2>How can the peace be restored?</h2>
<p>This is a topic of debate. The government has been active mostly militarily, with an international intervention since 2021. It wants to root out those it calls international “terrorists”. </p>
<p>Many commentators and partners of Mozambique believe that to resolve the conflict, one also needs to address the root causes: poverty, youth marginalisation and ethnicity. Donors and the Mozambican government have started social and economic programmes focusing on youth and on economic development in the north of Mozambique. Even private companies such as TotalEnergie want to engage in such programmes.</p>
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Read more:
<a href="https://theconversation.com/catalogue-of-failures-behind-growing-humanitarian-crisis-in-northern-mozambique-149343">Catalogue of failures behind growing humanitarian crisis in northern Mozambique</a>
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<p>An element which has not been touched upon yet relates to the pull factors. There are several possibilities. One would be for the state and civil society to develop a reflection and consultation about the future of the country and about inclusion and representation. It could look at social, economic, political, historical, cultural, and religious elements, aiming to establish a medium-term “agenda for the nation”.</p><img src="https://counter.theconversation.com/content/214736/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eric Morier-Genoud 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 overwhelming majority of Muslims in Mozambique reject the violence of the insurgents and their quest for a caliphate.Eric Morier-Genoud, Reader in African history, Queen's University BelfastLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2152702023-10-12T13:31:06Z2023-10-12T13:31:06ZMauritius is the latest nation to decriminalise same-sex relations in a divided continent<p>The Mauritius Supreme Court has <a href="https://www.humandignitytrust.org/wp-content/uploads/2023/10/Judgment-AH-SEEK-.pdf">declared</a> unconstitutional a law that criminalises consensual same-sex acts between adult men. The decision boosts the trend in the Southern African Development Community (SADC) region towards decriminalisation. Now, a slight majority – nine out of 16 member states – do not prohibit gay and lesbian sexual relations. </p>
<p>I have researched and taught human rights law in Africa, including the rights of sexual minorities, for over three decades, and closely follow the work of the <a href="https://achpr.au.int/">African Commission on Human and Peoples’ Rights</a>. </p>
<p>The African Commission, as the continent’s human rights custodian, should lend its unequivocal support to the decriminalisation trend. This is particularly significant as attempts are made to further criminalise and stigmatise sexual minorities in parts of Africa.</p>
<p>The commission has not yet expressed its view on the decision. Its <a href="https://achpr.au.int/en/events/2023-10-20/77os-public">77th ordinary session</a>, starting on 20 October 2023 in Arusha, Tanzania, is an opportunity to do so. It should build on its 2014 <a href="https://achpr.au.int/en/adopted-resolutions/275-resolution-protection-against-violence-and-other-human-rights-violations">guidance</a> to African states on eradicating violence based on sexual orientation and gender identity. </p>
<h2>Mauritius court ruling</h2>
<p>The Mauritian Supreme Court <a href="https://www.humandignitytrust.org/wp-content/uploads/2023/10/Judgment-AH-SEEK-.pdf">found</a> that section 250 of the <a href="https://sherloc.unodc.org/cld/uploads/res/document/mus/criminal-code_html/Mauritius_Criminal_Code.pdf">1838 Mauritius Criminal Code</a>, which criminalises anal sex between two consenting adult men, violates the <a href="https://cdn.accf-francophonie.org/2019/03/maurice-constitution2016.pdf">1968 Mauritius constitution</a>. </p>
<p>The litigant, Ah Seek, a gay Mauritian man and board member of the Mauritian NGO <a href="https://www.actogether.mu/fr/trouver-une-ong/collectif-arc-en-ciel">Collectif-Arc-en-Ciel</a>, invoked a number of constitutional grounds. However, the court based its decision on the most directly relevant ground: the right not to be discriminated against.</p>
<p>In addressing two issues that could militate against a finding in Ah Seek’s favour, the court relied on the approach of other courts in the SADC region. The 2021 <a href="https://www.humandignitytrust.org/wp-content/uploads/resources/2021.11.29-AG-Botswana-v-Motshidiemang.pdf">judgment</a> by Botswana’s Court of Appeal was particularly relevant. This judgment held that the constitutionally protected ground of “sex” in the Botswana constitution encompassed “sexual orientation”. </p>
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<a href="https://theconversation.com/botswana-court-ruling-is-a-ray-of-hope-for-lgbt-people-across-africa-118713">Botswana court ruling is a ray of hope for LGBT people across Africa</a>
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<p>The first issue was the contention that Mauritius’ constitution does not explicitly prohibit discrimination based on “sexual orientation”. The relevant provision (<a href="https://www.constituteproject.org/constitution/Mauritius_2016">section 16</a>) forbids discrimination on the basis of seven specified grounds, including sex. </p>
<p>The Mauritian court concluded that the word “sex” in section 16 of the constitution includes “sexual orientation”. </p>
<p>The court also emphasised the country’s international human rights commitments. It said that, as a state party to the <a href="https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter=4&clang=_en">International Covenant on Civil and Political Rights</a>, Mauritius was expected to interpret its constitution in line with this <a href="https://juris.ohchr.org/casedetails/702/en-US">treaty</a>. </p>
<p>The second issue was whether the rarity of prosecutions removed the need for the court to decide. Referring to a <a href="https://www.saflii.org/za/cases/ZACC/1998/15.html">judgment</a> by the South African Constitutional Court, the Mauritius court held that the mere threat of arrest, prosecution and conviction</p>
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<p>hangs like the sword of Damocles over the heads of homosexual men.</p>
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<p>The court therefore concluded that the constitution protected everyone from discrimination based on their sexual orientation, whatever it might be. </p>
<p>When it was given an opportunity to show any legitimate purpose for this form of discrimination, the state merely made reference to same-sex relations as a “highly sensitive issue” due to the “delicate socio-cultural and religious fabric of Mauritian society”. Rejecting these as justifications for discrimination, the court underlined that Mauritius was a secular state. </p>
<h2>Regional trend</h2>
<p>Greater societal acceptance of homosexuality can be both a catalyst for and a consequence of decriminalisation of same-sex relationships. </p>
<p>In a recent survey by the independent African surveys network <a href="https://www.afrobarometer.org/wp-content/uploads/2023/05/AD639-Uganda-a-continental-extreme-in-rejection-of-people-in-same-sex-relationships-Afrobarometer-9may23-.pdf">Afrobarometer</a>, Mauritius featured prominently as a country in which tolerance (towards an LGBT person as neighbour) had increased from 2014 to 2022. </p>
<p>Nine of the 11 African countries with an above-average tolerance percentage towards LGBT persons were from the SADC. All of these 11 states, except Eswatini, have decriminalised “sodomy laws”. </p>
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Read more:
<a href="https://theconversation.com/lgbtiq-migrants-and-asylum-seekers-in-south-africa-major-new-study-identifies-a-diverse-wide-spread-community-199227">LGBTIQ+ migrants and asylum seekers in South Africa: major new study identifies a diverse, wide-spread community</a>
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<p>The conditions for decriminalisation seem to be converging in Eswatini. Its population displays a relatively high level of acceptance (of 42%) in the survey. Also, its Supreme Court has <a href="https://eswatinilii.org/akn/sz/judgment/szsc/2023/23/eng@2023-06-16/source.pdf">signalled</a> some openness to uphold LGBT persons’ rights. </p>
<p>Besides Eswatini, other SADC member states that still retain “sodomy” laws are Comoros, Malawi, Namibia, Tanzania, Zambia and Zimbabwe. With the exception of the Comoros, the laws of these states are relics from British colonial times, when “sodomy” laws were imposed as part of a colonial “civilising” mission. The Mauritius Supreme Court <a href="https://www.humandignitytrust.org/wp-content/uploads/2023/10/Judgment-AH-SEEK-.pdf">noted</a> that, as a colonial import, section 250 did not reflect Mauritian values and was not the “expression of domestic democratic will”. </p>
<p>Today, just over half of the SADC states do not criminalise same-sex relationships between consenting adults. The Democratic Republic of Congo never legislated on this matter. In <a href="https://media.lesotholii.org/files/legislation/akn-ls-act-2012-6-eng-2012-03-09.pdf">Lesotho</a> (2012), the <a href="http://www.seychellesnewsagency.com/articles/5198/Seychelles+parliament+passes+bill+to+decriminalize+sodomy">Seychelles</a> (2016), <a href="https://mg.co.za/article/2015-06-29-mozambique-scraps-colonial-era-homosexuality-and-abortion-bans/">Mozambique</a> (2015) and <a href="https://africlaw.com/2021/03/05/decriminalisation-of-consensual-same-sex-acts-in-angola-and-the-progress-of-lgbti-human-rights-in-lusophone-africa/">Angola</a> (2019), the legislature in the last decade or so adopted a new version of the penal code. These offences, stemming from the <a href="https://www.hrw.org/report/2008/12/17/alien-legacy/origins-sodomy-laws-british-colonialism">English common law</a> or the <a href="https://www.ahry.up.ac.za/garrido-r#pgfId-1119589">1886 Portuguese Penal Code</a>, were omitted. In Madagascar, the <a href="http://www.vertic.org/media/National%20Legislation/Madagascar/MG_Code_Penal.pdf">penal code</a> criminalises consensual same-sex acts only with a person under 21 years old. </p>
<p>Still, the situation remains in flux. In <a href="https://www.theguardian.com/global-development/2023/jul/14/religious-groups-march-in-malawi-before-court-case-on-lgbtq-rights">Malawi</a> and <a href="https://www.washingtonblade.com/2023/03/13/namibian-supreme-court-hears-three-lgbtq-rights-cases/">Namibia</a>, litigation on related penal code provisions is pending. In Malawi, then President Joyce Banda in 2012 <a href="https://www.theguardian.com/world/2012/may/18/malawi-president-vows-legalise-homosexuality">committed to repealing these laws</a>. There was also a moratorium on arrests and prosecutions between 2012 and 2016, and a <a href="https://www.hrw.org/report/2018/10/26/let-posterity-judge/violence-and-discrimination-against-lgbt-people-malawi">court-ordered review</a> of the constitutionality of “sodomy laws”. </p>
<p>In Namibia, the Supreme Court <a href="https://namiblii.org/akn/na/judgment/nasc/2023/14/eng@2023-05-16">decided in 2023</a> that Namibia must recognise same-sex marriages validly concluded outside the country.</p>
<h2>Diverging trend</h2>
<p>In the rest of Africa, the position of sexual minorities is much more precarious. Thirty-one (almost 58%) of countries still <a href="https://76crimes.com/76-countries-where-homosexuality-is-illegal/">criminalise consensual same-sex acts between adults</a>. The trend is towards more restrictive laws and harsher punishment.</p>
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<li><p>In Uganda, President Yoweri Museveni has <a href="https://www.parliament.go.ug/news/6737/president-assents-anti-homosexuality-act">signed into law</a> the <a href="https://www.parliament.go.ug/sites/default/files/The%20Anti-Homosexuality%20Act%2C%202023.pdf">Anti-Homosexuality Act</a>.</p></li>
<li><p>In Ghana, the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill is <a href="https://www.parliament.gh/epanel/docs/bills/Promotion%20of%20Proper%20Human%20Sexual%20Rights%20and%20Ghanaian%20Family%20Values%20Bill,%202021.pdf#viewer.action=download">being considered</a>. </p></li>
<li><p>In Kenya, the anti-gay <a href="https://www.africanews.com/2023/09/20/kenyas-anti-gay-bill-proposes-50-year-jail-term//">Family Protection Bill</a> carries a 50-year jail term. But the Supreme Court decided in February 2023 to allow the NGO National Gay and Lesbian Rights Commission <a href="https://www.humandignitytrust.org/wp-content/uploads/2023/09/SC-Application-No.-E011-of-2023-George-Kaluma-v.-NGO-Others.pdf?pdf=George-Kaluma">to be registered</a>. </p></li>
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Read more:
<a href="https://theconversation.com/being-queer-in-africa-the-state-of-lgbtiq-rights-across-the-continent-205306">Being queer in Africa: the state of LGBTIQ+ rights across the continent</a>
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<p>These laws were initiated as private members bills. They are driven by individuals rather than any political party’s agenda, and bolstered by an anti-LGBT solidarity <a href="https://glaad.org/rachel-maddow-traces-anti-lgbtq-legislation-uganda-activists-arizona/">conference</a> of African parliamentarians. </p>
<h2>African Commission’s role</h2>
<p>Against this background of opposing forces and divergent trends, the role of the African Commission is all the more important. The commission itself has sent mixed signals. It <a href="https://achpr.au.int/en/adopted-resolutions/resolution-promotion-and-protection-rights-intersex-persons">affirmed</a> the right to dignity and bodily integrity of sexual and gender minorities. But it also <a href="https://theconversation.com/lgbtq-rights-african-union-watchdog-goes-back-on-its-own-word-197555">refused</a> to grant observer status to NGOs working to promote these rights.</p><img src="https://counter.theconversation.com/content/215270/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Frans Viljoen 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 trend towards decriminalising same sex relations in the SADC region contrasts with moves towards harsher punishment in other parts of Africa.Frans Viljoen, Director and Professor of International Human Rights Law, Centre for Human Rights, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2153492023-10-10T16:03:32Z2023-10-10T16:03:32ZIsrael-Palestine conflict divides South African politicians – what their responses reveal about historical alliances<p>Hamas’ <a href="https://www.cnn.com/middleeast/live-news/israel-hamas-war-gaza-10-10-23/index.html">brazen and deadly</a> attack on Israel on October 7 elicited varied responses within the South African political scene. These diverse reactions reflect the long history, <a href="https://theconversation.com/south-africa-and-israel-new-memorial-park-in-the-jewish-state-highlights-complex-history-199997">since before democracy in 1994</a>, of South African engagement with the Israel-Palestinian conflict. The conflict holds symbolic significance for many in the country. </p>
<p>As with the war in Ukraine, taking sides on the issue also allows the different parties to highlight their position on the struggle for or against global western dominance</p>
<p>The South African government, led by the African National Congress (ANC), <a href="https://www.dirco.gov.za/south-africa-calls-for-the-immediate-cessation-of-violence-restraint-and-peace-between-israel-and-palestine/">characterised</a> the recent events as a “devastating escalation”. However, it primarily attributed the situation to Israeli policies, including “the continued illegal occupation of Palestine land, continued settlement expansion, desecration of the Al Aqsa Mosque and Christian holy sites, and ongoing oppression of the Palestinian people”.</p>
<p>It called for</p>
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<p>the immediate cessation of violence, restraint, and peace between Israel and Palestine.</p>
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<p>It also urged Israel to embrace the <a href="https://www.britannica.com/topic/two-state-solution">two-state solution</a> as a means of resolving the conflict. The two-state solution suggests the creation of an independent Palestinian state alongside Israel. </p>
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Read more:
<a href="https://theconversation.com/why-the-push-led-by-south-africa-to-revoke-israels-au-observer-status-is-misguided-168013">Why the push led by South Africa to revoke Israel’s AU observer status is misguided</a>
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<p>For its part, the ANC put out its own statement in the name of the party. This gave even bolder support for Hamas. The party’s national spokesperson, Mahlengi Bhengu-Motsiri, defended Hamas’ actions, invoking the enduring solidarity between the ANC and the Palestinian cause. </p>
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<p>It can no longer be disputed that South Africa’s apartheid history is occupied Palestine’s reality… the decision by Palestinians to respond to the brutality of the settler Israeli apartheid regime is unsurprising.</p>
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<p>The Economic Freedom Fighters (EFF), a far-left pan-Africanist party which was formed after a split from the ANC, and is now the third largest party in parliament, <a href="https://www.sowetanlive.co.za/news/south-africa/2023-10-09-sa-calls-for-end-to-violence-and-peace-in-the-middle-east/">endorsed</a> Hamas’ use of violence. Drawing parallels with the anti-apartheid struggle, the party’s spokesperson squarely placed the blame on Israel.</p>
<p>Conversely, several movements offered their solidarity with Israel. The liberal Democratic Alliance, the main opposition party, vehemently <a href="https://www.da.org.za/2023/10/da-condemns-hamas-unprovoked-attack-urges-immediate-end-to-violence">condemned</a> the “unprovoked attack” by Hamas. It decried the </p>
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<p>senseless violence and all acts of terror against innocent civilians, women and children. </p>
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<p>Some centrist or traditionalist parties, such as the <a href="https://votepa.org.za/">Patriotic Alliance</a> and the <a href="https://www.ifp.org.za/newsroom/ifp-calls-for-immediate-cessation-of-hostilities-and-resumption-of-dialogue-in-israel-palestine-conflict/">Inkatha Freedom Party</a>, also <a href="https://www.news24.com/news24/politics/israel-hamas-war-sa-political-parties-divided-on-who-is-to-blame-for-deadly-violence-20231010">voiced their criticism</a> of the attacks. South Africa’s principal Jewish organisations also <a href="https://www.sajbd.org/index.php?p=media/south-african-jewish-community-stands-with-israel">extended their support for Israel</a>. </p>
<h2>Historical roots</h2>
<p>Unwavering support for Palestinian nationhood has remained a steadfast element of South African foreign policy since the ANC came into power in 1994. This stance has seen the country become one of the most prominent voices critical of Israel globally. </p>
<p>The ANC has thrown its <a href="https://bdsmovement.net/news/anc-international-conference-backs-boycott">support</a> behind the <a href="https://www.bdssouthafrica.com/about-bds/">Boycott, Divestment, and Sanctions</a>, a movement aiming to replicate the iconic anti-apartheid boycott campaign. South African officials have consistently accused Israel of <a href="https://www.aljazeera.com/news/2022/7/26/south-africa-calls-for-israels-proscription-as-apartheid-state">practising apartheid</a>. The country’s parliament recently <a href="https://www.al-monitor.com/originals/2023/03/south-africas-parliament-votes-downgrade-diplomatic-ties-israel">voted</a> to formally downgrade the country’s relations with Israel from embassy to a liaison office.</p>
<p>I have been researching the history of the relationship between South Africa and Israel for nearly a decade. My <a href="https://search.proquest.com/openview/34de28522e0359b9d2ca887862f1e942/1?pq-origsite=gscholar&cbl=18750&diss=y&casa_token=mfc7qIH5at8AAAAA:441hYgFkv6raDND0C7Zk68iygkPWyCeaZe8HaVA4coMR5JsmaBJu6ROeWkZ1C4pAcCDizWn_">research</a> has found that both the ANC and some pan-Africanist formations once held more complex perspectives on Israel and Zionism. </p>
<p>They generally expressed support for Jewish statehood from the 1940s to the 1960s. For instance, in the early 1960s, both the ANC and its primary rival in the anti-apartheid struggle, the Pan-Africanist Congress (PAC), considered Israel as a potential ally in their battle against apartheid. The PAC also received substantial financial assistance from Israel until 1970.</p>
<p>However, the ANC’s resentment towards Israel for its <a href="https://www.theguardian.com/world/2010/may/23/israel-south-africa-nuclear-weapons">collaboration with white minority rule</a> during the 1970s and 1980s, coupled with the perception of Palestinians suffering an apartheid-like oppression, has come to shape the party’s perspective on the Israeli-Palestinian conflict.</p>
<p>Since the late 1960s, the ANC has cultivated strong ties with the Palestinian Liberation Organisation (PLO). By the 1980s, these ties had evolved into a strategic and operational alliance between the two movements. In recent years, with the weakening of the PLO, the ANC has <a href="https://www.sajr.co.za/humus-with-hamas-what-is-the-anc-thinking/">shifted</a> its support towards the PLO’s erstwhile rival, Hamas. The Muslim constituency in South Africa, <a href="https://alqalam.co.za/survey-shows-anc-losing-muslim-support/">many of whom are ANC supporters</a> and activists, further contributes to the party’s pro-Palestinian stance.</p>
<p>The DA’s support of Israel also has historical roots. Historically, liberal or so-called “moderate” parties and individuals in South Africa have been the most consistent pro-Israeli political voice in the country. </p>
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<p>Unlike the post-1970s ANC, many liberals have <a href="https://hsf.org.za/publications/focus/issue-40-fourth-quarter-2005/israel-is-a-democracy-in-which-arabs-vote">regarded</a> Israel as a democracy with a decent record in treating minorities. In the Western Cape, which is the only province governed by the DA, there has been a greater willingness to explore <a href="https://www.sajr.co.za/growing-agricultural-partnership-between-western-cape-and-israel/">collaboration</a> with Israel. </p>
<p>In addition, in recent decades, various Christian and traditionalist forces have also strongly tended towards pro-Israeli views.</p>
<p>South Africa last asked people for their religious affiliation in a household survey in 2013. The figures <a href="http://www.scielo.org.za/pdf/hts/v73n2/01.pdf">at the time showed there were</a> just over 1 million Muslims and just over 101,500 people of the Jewish faith. More recent data indicates that the Jewish population in the country was <a href="https://www.jpost.com/jerusalem-report/what-is-the-future-of-the-jews-of-south-africa-677031">dropped</a> to about 50,000 people. The latest census puts the entire population at <a href="https://www.statssa.gov.za/?p=16711">62 million</a>.</p>
<h2>Long legacy of international alliances</h2>
<p>The diverse perspectives of South Africa’s political parties on Israel/Palestine also mirror their distinct international allegiances. Having <a href="https://theconversation.com/history-may-explain-south-africas-refusal-to-condemn-russias-invasion-of-ukraine-178657">valued the assistance of the Soviet Union</a> and China in their struggle against apartheid, and nurturing deep-seated grievances against the western role in <a href="https://www.jstor.org/stable/4187823">supporting apartheid</a>, the ANC and more radical movements have tended to stand beside actors that challenge the US on the global stage.</p>
<p>This policy has been particularly evident in South Africa’s <a href="https://theconversation.com/south-africas-pact-with-russia-and-its-actions-cast-doubt-on-its-claims-of-non-alignment-206020">sympathetic stance towards Russia</a>, even amid Moscow’s invasion of Ukraine. Conversely, the opposition DA has aligned itself with pro-western stances.</p>
<p>However, it’s uncertain whether most South Africans support the ANC’s approach to contemporary foreign relations issues. A <a href="https://www.thebrenthurstfoundation.org/news/brenthurst-survey-shows-vast-majority-of-south-africans-condemn-russia/">poll</a> from November 2022 found that 74.3% of citizens condemned Russia’s aggression against Ukraine. </p>
<p>It is likely that the Palestinian cause enjoys higher levels of popular support. But, there are indications that views on Israel/Palestine are far from clear-cut. A <a href="https://humanities.uct.ac.za/sites/default/files/content_migration/humanities_uct_ac_za/715/files/FINAL_%2520NarrativeReport_FINAL_March2017.pdf">study</a> from 2017, for instance, found that there was similar support in South Africa for both Israelis’ and Palestinians’ “rights to a homeland” (54% and 53%, respectively). But the study also concluded that actual knowledge of the Israeli-Palestinian conflict was limited, with only 29% having “heard of” the conflict.</p>
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Read more:
<a href="https://theconversation.com/in-search-of-advantages-israels-observer-status-in-the-african-union-165773">In search of advantages: Israel’s observer status in the African Union</a>
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<p>South Africa’s official stance on Israel-Palestine is one of the most critical in Africa, particularly compared to other states south of the Sahara. Over the past decade, Israel has seen <a href="https://theconversation.com/in-search-of-advantages-israels-observer-status-in-the-african-union-165773">increasing bilateral relations</a> with various African states. Several opinion <a href="https://globescan.com/2017/07/04/sharp-drop-in-world-views-of-us-uk-global-poll/">polls</a> indicate that public perception of Israel in sub-Saharan Africa is among the most favourable worldwide.</p>
<h2>Lingering divide</h2>
<p>South African politicians have framed the recent escalation between Hamas and Israel within the broader context of their perspectives on global dynamics. As with the war in Ukraine, the governing ANC and more radical elements unequivocally support the Palestinians – their longstanding allies. They view Hamas as representing the Palestinian cause, and perceive Israel as an apartheid state.</p>
<p>The liberal DA’s support for Israel is also shaped by historical and contemporary factors. It mirrors the enduring liberal backing of Israel in South Africa. It also allows the party to align itself with western governments that have recently expressed support for Israel.</p><img src="https://counter.theconversation.com/content/215349/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Asher Lubotzky 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>Support for the Palestinian cause has remained a steadfast element of South African foreign policy since the ANC came into power in 1994.Asher Lubotzky, Scholar in Residence, University of HoustonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2145082023-10-08T08:11:53Z2023-10-08T08:11:53ZSouth Africa’s surveillance law is changing but citizens’ privacy is still at risk<p>In a ringing judgment for the right to privacy, the South African Constitutional Court <a href="https://www.concourt.org.za/index.php/judgement/383-amabhungane-centre-for-investigative-journalism-npc-and-another-v-minister-of-justice-and-correctional-services-and-others-minister-of-police-v-amabhungane-centre-for-investigative-journalism-npc-and-others-cct278-19-cct279-19#:%7E:text=The%20Court%20declared%20RICA%20unconstitutional,independent%20judicial%20authorisation%20of%20interception.">declared</a> sections of the country’s main communication surveillance law unconstitutional in February 2021. </p>
<p>The court gave parliament three years to pass a new law remedying the areas of unconstitutionality. The February 2024 deadline for these amendments is looming fast.</p>
<p>The Regulation of Interception of Communication and Provision of Communication Related Information Act (<a href="https://www.gov.za/documents/regulation-interception-communications-and-provision-communication-related-information--13">Rica</a>) was intended in part to protect privacy, combat crime and promote national security. It requires all cellphone sim cards in the country to be registered, and prohibits interception of people’s communications without their consent, except under certain conditions. </p>
<p>But Rica had some weaknesses which have been abused by rogue elements in intelligence. The court case was brought by the <a href="https://amabhungane.org/">amaBhungane Centre for Investigative Journalism</a>, after the state misused Rica to spy on the centre’s managing partner, <a href="https://amabhungane.org/team/sam-sole/">Sam Sole</a>, in an attempt to reveal his sources of information. </p>
<p>The <a href="https://www.gov.za/about-government/contact-directory/ministers/ministers/justice-and-correctional-services-ministry#:%7E:text=Minister%3A%20Ronald%20Lamola%2C%20Mr,Private%20Bag%20X276%2C%20PRETORIA%2C%200001">justice ministry</a> has produced an <a href="https://www.gov.za/sites/default/files/gcis_document/202308/b28-2023rica.pdf">amendment bill</a> to meet the court’s deadline. </p>
<p>Having researched issues relating to communication surveillance and its oversight for years, my view is that the amendment bill is flawed. It doesn’t provide enough safeguards against the violation of privacy.</p>
<h2>The problem with Rica</h2>
<p>In terms of <a href="https://www.gov.za/documents/regulation-interception-communications-and-provision-communication-related-information--13">Rica</a>, intelligence and law enforcement agencies must apply to a special, retired judge for interception directions (or warrants) to conduct surveillance to solve serious crimes and protect national security. The judge is appointed by the justice minister.</p>
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Read more:
<a href="https://theconversation.com/south-africas-intelligence-agency-needs-speedy-reform-or-it-must-be-shut-down-200386">South Africa's intelligence agency needs speedy reform - or it must be shut down</a>
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<p>The court <a href="https://www.concourt.org.za/index.php/judgement/383-amabhungane-centre-for-investigative-journalism-npc-and-another-v-minister-of-justice-and-correctional-services-and-others-minister-of-police-v-amabhungane-centre-for-investigative-journalism-npc-and-others-cct278-19-cct279-19#:%7E:text=The%20Court%20declared%20RICA%20unconstitutional,independent%20judicial%20authorisation%20of%20interception.">found</a> Rica to be unconstitutional on the following five grounds:</p>
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<li><p>People don’t have to be told that they have been under surveillance. </p></li>
<li><p>The appointment and renewal processes for the Rica judge lack independence.</p></li>
<li><p>The judge only has to hear from one side: those applying for interception warrants.</p></li>
<li><p>Rica does not ensure that intercepted data is safely managed.</p></li>
<li><p>Rica fails to recognise that lawyers and journalists have a professional duty to keep their sources and communications confidential.</p></li>
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<p>The court <a href="https://www.concourt.org.za/index.php/judgement/383-amabhungane-centre-for-investigative-journalism-npc-and-another-v-minister-of-justice-and-correctional-services-and-others-minister-of-police-v-amabhungane-centre-for-investigative-journalism-npc-and-others-cct278-19-cct279-19#:%7E:text=The%20Court%20declared%20RICA%20unconstitutional,independent%20judicial%20authorisation%20of%20interception.">prescribed</a> two interim measures while the law was being redrafted. The first was that within 90 days of an interception direction (warrant) having lapsed, those state agencies applying for surveillance need to inform the surveillance subject that they have been spied on. The second is that applicants must also tell the judge if the surveillance subject is a lawyer or journalist.</p>
<h2>Post-surveillance notification</h2>
<p>With the proposed amendments, the justice ministry has <a href="https://www.gov.za/sites/default/files/gcis_document/202308/b28-2023rica.pdf">responded</a> largely by reproducing the court’s first interim measure. However, it has added another clause stating that if notifying someone that they have been surveilled could potentially have a negative impact on national security, then the judge may withhold notification and for such period as may be determined by the judge. </p>
<p>This clause is too broad and does not provide an ultimate deadline for notification. It introduces speculation into the decision-making. That’s because the impact needs merely to be possible. There is no requirement to show a national security threat, merely a possible negative impact.</p>
<h2>Independence of the Rica judge</h2>
<p>The justice ministry has <a href="https://www.gov.za/sites/default/files/gcis_document/202308/b28-2023rica.pdf">inserted</a> a requirement for the Rica judge to be appointed by the justice minister, in consultation with the Chief Justice. This is adequate to the extent that it means that decision does not rest with the executive only. </p>
<p>The ministry has also <a href="https://www.gov.za/sites/default/files/gcis_document/202308/b28-2023rica.pdf">introduced</a> an entirely new position of a review judge, to automatically review the decisions of the Rica judge. It would have been better to build automatic review into the process once surveillance subjects have been notified. That might make the review process more robust as the subject may provide details that shed new light on the Rica judge’s decisions. If the judge’s decision to grant the warrant was misplaced, this could lead to the original decision being overturned or intercepted material being destroyed.</p>
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Read more:
<a href="https://theconversation.com/south-africas-intelligence-watchdog-is-failing-civil-society-how-to-restore-its-credibility-195121">South Africa's intelligence watchdog is failing civil society. How to restore its credibility</a>
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<p>However, given the load of several hundred cases a year, one judge may not be enough, either at the decision stage or the review stage. Consideration should be given to establishing a panel of judges.</p>
<h2>Hearing both sides</h2>
<p>It is possible that the review judge was introduced to respond to the problem of hearing only from the applicant (the “<a href="https://www.law.cornell.edu/wex/ex_parte">ex parte</a>” problem). If that is the case, then it is not an adequate response. Both judges will still be making decisions based on the same one-sided secret evidence.</p>
<p>Rather, as <a href="https://amabhungane.org/">amaBhungane</a> argued in the Constitutional Court case, the bill could include a new position of a <a href="https://www.anchoredinlaw.net/wp-content/uploads/2019/09/Founding-Affidavit-Sam-Sole.pdf">public advocate</a>, to defend the interests of the surveillance subjects.</p>
<p>The public advocate could be granted <a href="https://www.bloomsburycollections.com/monograph-detail?docid=b-9781849468466&pdfid=9781849468466.ch-008.pdf&tocid=b-9781849468466-chapter8">security</a> clearance, in line with <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/jols.12186">well-recognised</a> processes involving “cleared counsel”.</p>
<p>Such lawyers have clearance to access the secret evidence the state is relying on. They are on the same footing as the agency applying for surveillance. They will be able to interrogate the case beyond what is provided for in the application.</p>
<p>As has been <a href="https://intelwatch.org.za/2023/05/30/reforming-communication-surveillance-in-south-africa-in-the-wake-of-amabhungane/">argued recently</a>, the public advocate could represent the interests of surveillance subjects who decide to take decisions on review following post-surveillance notification.</p>
<h2>Confidentiality for lawyers and journalists</h2>
<p>Regarding the need for the applicant to inform the judge that a subject is a journalist or lawyer, the ministry has <a href="https://www.gov.za/sites/default/files/gcis_document/202308/b28-2023rica.pdf">left out</a> an important safeguard from the interim measure provided by Constitutional Court’s judgment. It required the judge to grant the warrant only if necessary, which means that the warrant must be an investigative method of last resort. </p>
<p>On the management of surveillance data, the court <a href="https://www.concourt.org.za/index.php/judgement/383-amabhungane-centre-for-investigative-journalism-npc-and-another-v-minister-of-justice-and-correctional-services-and-others-minister-of-police-v-amabhungane-centre-for-investigative-journalism-npc-and-others-cct278-19-cct279-19#:%7E:text=The%20Court%20declared%20RICA%20unconstitutional,independent%20judicial%20authorisation%20of%20interception.">required</a> more details in the law on how and where surveillance data must be accessed, stored and destroyed. The justice ministry has failed to provide such detail.</p>
<h2>Metadata surveillance</h2>
<p>The amendment bill is silent on possibly the most serious surveillance <a href="https://www.mediaanddemocracy.com/uploads/1/6/5/7/16577624/cops_and_call_records_web_masterset_26_march.pdf">issue</a>, relating to the state’s <a href="https://intelwatch.org.za/2023/05/30/rica-reform-205-loophole/">massive and underregulated</a> surveillance of <a href="https://www.mediaanddemocracy.com/uploads/1/6/5/7/16577624/cops_and_call_records_web_masterset_26_march.pdf">data about a person’s communication</a>, or metadata. Rica <a href="https://www.gov.za/documents/regulation-interception-communications-and-provision-communication-related-information--13">allows</a> the state to use procedures other than those provided for in the act to access metadata.</p>
<p>For example, the state has preferred to use <a href="https://www.gov.za/sites/default/files/gcis_document/201502/act-5-1991.pdf">section 205 of the Criminal Procedure Act</a> as it contains much lower privacy standards than Rica. It is thus open to abuse.</p>
<p>One solution is to make Rica the only law governing access to metadata, but retain the procedure whereby the ordinary courts can grant warrants, rather than restricting decision-making to the Rica judge only, to ensure speedy decision-making. </p>
<h2>Missed opportunity</h2>
<p>The justice ministry had more than enough time for the <a href="https://www.dailymaverick.co.za/article/2017-05-10-op-ed-big-brother-is-watching-your-phone-call-records/">review of Rica</a>, section 205 and the entire surveillance setup to assess whether they were still fit for purpose. </p>
<p>The failure is an indictment on the ministry’s leadership of the review process. It missed the opportunity to address the <a href="https://www.gov.za/sites/default/files/gcis_document/201903/high-level-review-panel-state-security-agency.pdf">growing</a> <a href="http://www.saflii.org/images/state-capture-commission-report-part-5-vol1.pdf">concerns</a> about unaccountable state spying.</p><img src="https://counter.theconversation.com/content/214508/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jane Duncan receives funding from Luminate and the British Academy. She is a director of Intelwatch. </span></em></p>The justice ministry had more than enough time to make the law constitutional. Failure to do so is an indictment on its leadership in the process.Jane Duncan, Professor of Digital Society, University of GlasgowLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2131002023-09-26T13:42:16Z2023-09-26T13:42:16ZThe family home in South African townships is contested – why occupation, inheritance and history are clashing with laws<p>During apartheid, black South Africans could not own land – and therefore their homes – in what were classified as “white” cities. In racially segregated townships, living in “family houses” and passing them on depended officially on a <a href="https://journals.co.za/doi/pdf/10.10520/AJA02586568_844#page=5">range of permits</a>. These were usually to rent from state authorities, but in some cases confusingly to build or buy a house without owning the plot underneath it, which was owned by the state.</p>
<p>A crucial measure in undoing apartheid was transferring ownership of township houses to their long-term residents. <a href="https://journals.co.za/doi/pdf/10.10520/AJA02586568_844#page=8">In 1986</a>, a few years before apartheid’s end, the law changed to enable outright ownership for black people in urban areas. Subsequently, processes for transfer on a large scale were established.</p>
<p>This massive redistribution of public housing stock, alongside legal change, involved hundreds of thousands of homes. Township houses were now assets. The promise was improved security, rights, and inclusion in the property market.</p>
<p>But change did not necessarily give families greater security. Some family members benefited while others were left vulnerable. That is because the transfers – and the legal definitions of property and inheritance – do not account for how many people understand their homes: collective and cross-generational, available to an extended lineage.</p>
<p>This has led to confusion and heartache for hundreds of thousands of people. That confusion, I showed <a href="https://academic.oup.com/afraf/article/120/479/219/6132108">in a paper in 2021</a>, extended to encounters with state administration, which can become the stage on which family disputes are played out.</p>
<p>As I argued in another <a href="https://www.tandfonline.com/doi/full/10.1080/02587203.2019.1632737">paper</a>, with Tshenolo Masha, these understandings of home and kinship warrant legal recognition – indeed, constitutional recognition – as urban custom. Various state officials have taken seriously the collective ownership of family houses, as a matter of customary norms and practice, through administration and court judgments. But they face the rigid limits of existing law.</p>
<p>The family house is central but effectively legally invisible, leaving many people uncertain about what it even means to own or inherit.</p>
<h2>Collective home but individual property</h2>
<p>For many residents, family houses belong collectively to multi-generational lineages. Often, a group of siblings is at the core – the children of an earlier, typically male, household head. Family members might build extra structures on the site to live in. Or they might come and go, but the home is a place to return to. The family house is defended as customary, drawing parallels with the rural homestead.</p>
<p>By the end of apartheid <a href="https://www.britannica.com/question/How-did-apartheid-end">in 1994</a>, regulation was patchy at best, but the occupancy permits were understood to affirm group entitlement because they listed family members, not just the householder.</p>
<p>In statutory law, at stake is an asset with one or more named owners – an indivisible plot or <a href="https://www.saflii.org/za/legis/consol_act/dra1937172/">“erf” of land</a> that includes its built structures. Owners can sell, or they can evict; other occupants have no legal right to stop them. When family houses were transferred, one person was generally registered as owner.</p>
<p>In some cases, the allocation to the registered householder was automatic. In others, there were hearings, but even here residents found their ideas of home and ownership marginalised. A family member would come forward as family “representative” and “custodian” of the collective home. But that representative would typically become the sole titleholder.</p>
<p>In many cases, relatives were unaware that this had happened, or even that an application for title had been made.</p>
<h2>Inheritance: an added layer of complexity</h2>
<p>Inheritance has added another layer to the problem.</p>
<p>Under apartheid there were separate inheritance rules for black people without wills. These were finally struck down by the Constitutional Court in <a href="https://www.saflii.org/za/cases/ZACC/2000/27.html">2000</a> and <a href="http://www.saflii.org/za/cases/ZACC/2004/17.html">2004</a>. Magistrates’ courts were replaced by the dedicated inheritance office, the <a href="https://www.justice.gov.za/master/">Master of the High Court</a>. Inheritance by the eldest son was replaced by rules for all South Africans, prioritising spouses and children in nuclear families.</p>
<p>Once again, essential redress had the effect of narrowing which relationships would be recognised. When a custodian died, wider family members first discovered that they were not collective owners; then they realised they would not even inherit.</p>
<p>The family house is not a static idea in fights over the home. Warring parties may draw on both customary and legal concepts, sometimes at the same time. Among families that approach the state – and many do not – some subsequently drop out of official process. </p>
<p>There is <a href="https://academic.oup.com/afraf/article/120/479/219/6132108">no simple consensus</a> about who gets what or about how this should be decided.</p>
<h2>Efforts to resolve the issue</h2>
<p>The family house is contested, yet it is key to arguments about what is fair – based not just on who owns, but on the nature of ownership.</p>
<p>State officials have repeatedly tried to make the system more responsive. In Gauteng province, where Johannesburg is located, housing tribunals were set up in the late 1990s to decide ownership and to broker family house rights agreements. They were intended to prevent custodians from selling houses or evicting relatives. But it turned out that they held no legal water: from the point of view of deeds registration, custodians’ <a href="https://academic.oup.com/afraf/article/120/479/219/6132108">ownership was unrestricted</a>. </p>
<p>In the Master’s Office, where inheritance is administered, kin complain that their family home somehow became the property of one relative. In Johannesburg, officials <a href="https://academic.oup.com/afraf/article/120/479/219/6132108">try to explain the law</a>, while where appropriate querying how title came to be acquired.</p>
<p>What they cannot do, though, is change the rules.</p>
<p>The courts, too, have highlighted problems with rigid law and procedure. In a 2004 Constitutional Court <a href="http://www.saflii.org/za/cases/ZACC/2004/17.html">decision on inheritance</a>, a dissenting judge warned that customary understandings of home and custodianship risked being sidelined by standardisation.</p>
<p>More recently in 2018, automatically upgrading householders to owners was <a href="http://www.saflii.org/za/cases/ZACC/2018/42.html">declared unconstitutional</a>.
Men were usually documented as householders under apartheid, and gender discrimination was extended by giving them exclusive property rights. </p>
<p>Other judgments recognise the spirit of collective belonging and access, and they stop individuals from taking the house out of the families’ hands by inheritance or sale. But they cannot make legislation, so they send the question of who owns the house back to a tribunal.</p>
<p>Once again, solutions are restricted to workarounds.</p>
<h2>Towards legal recognition</h2>
<p>In 2022, the <a href="http://www.saflii.org/za/cases/ZAGPPHC/2022/441.html#_ftnref78">Shomang judgment</a> in the North Gauteng High Court called for legally recognising the family house. </p>
<p>A sufficiently flexible notion of family title would be challenging to work out, and doubtless the basis for countless disputes. Surviving spouses need as much protection as the siblings in a lineage. But it would enable administrators and judges to mediate disputes in terms recognisable to the families involved. And to offer more than ad hoc workarounds.</p><img src="https://counter.theconversation.com/content/213100/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Maxim Bolt's research was funded by the Economic and Social Research Council of the UK. </span></em></p>The transfer of township rental houses to inhabitants did not necessarily give families greater security. “Family houses” were frequently acquired by individuals.Maxim Bolt, Associate Professor of Development Studies, University of OxfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2113652023-09-21T13:27:43Z2023-09-21T13:27:43ZZulu land dispute: Ingonyama Trust furore highlights the problem of insecure land tenure for millions of South Africans in rural areas<p>The recent <a href="https://www.dailymaverick.co.za/article/2023-06-04-the-battle-between-the-zulu-king-and-his-prime-minister-over-the-ingonyama-trust-is-likely-to-divide-kzn-voters-in-2024/">fallout</a> between the Zulu king, Misuzulu, and his now late traditional prime minister, Mangosuthu Buthelezi, over the running of the Ingonyama Trust highlights a pervasive problem in South Africa: insecure land tenure in rural areas. </p>
<p>The Ingonyama Trust administers about a third of the land in KwaZulu-Natal province. Buthelezi insinuated that the king – or those around him – wanted to corruptly sell the land for profit. He also questioned the competence of the board chairperson appointed by the king. The king denied the charge, saying the board would <a href="https://www.dailymaverick.co.za/article/2023-06-04-the-battle-between-the-zulu-king-and-his-prime-minister-over-the-ingonyama-trust-is-likely-to-divide-kzn-voters-in-2024/">“never allow the sale of the land”</a>.</p>
<p>But the legally questionable practices of the Ingonyama Trust, such as charging people rent on land they own communally, and its unilateral decision-making about communally owned land, reflect the <a href="https://theconversation.com/why-south-african-communitys-win-against-mining-company-matters-107746">insecurity of land tenure</a> for millions of rural South Africans. </p>
<p>Land disputes arise when the principles at the core of <a href="https://ci.uct.ac.za/sites/default/files/content_migration/health_uct_ac_za/533/files/living%2520customary%2520law%2520and%2520families%2520in%2520South%2520Africa.pdf">customary law</a> are breached. The breach can be by the state or by the representatives appointed by the communities to manage or administer the land on their behalf and for their collective benefit.</p>
<p>Constitutional <a href="https://scholar.ufs.ac.za/xmlui/handle/11660/12130">land reform measures</a> are intended to provide security of land tenure to all land holders equally. All laws, including customary law, are subject to the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a>. Any law, rule or conduct found to be inconsistent with constitutional principles of human dignity, equality and freedom is invalid. </p>
<p>In areas run by traditional leaders, land is owned collectively, in line with <a href="https://ci.uct.ac.za/sites/default/files/content_migration/health_uct_ac_za/533/files/living%2520customary%2520law%2520and%2520families%2520in%2520South%2520Africa.pdf">customary law</a>. South African law <a href="http://www.saflii.org/za/cases/ZACC/2010/10.html">recognises</a> the application of living customary law, in accordance with the constitution.</p>
<p>Customary communal land tenure comes with inherent rights for land holders. They include collective ownership rights, equal benefit from the land and natural resources, and decision-making authority. </p>
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Read more:
<a href="https://theconversation.com/customary-land-governance-holds-in-ghana-but-times-are-changing-and-not-for-the-better-205497">Customary land governance holds in Ghana. But times are changing and not for the better</a>
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<p>My <a href="https://scholar.ufs.ac.za/xmlui/handle/11660/12130">research</a> areas include issues of rural land tenure, custodianship and property law. </p>
<p>In my view, the Ingonyama Trust has misconstrued <a href="http://www.saflii.org/za/journals/CCR/2011/4.pdf">customary communal land tenure</a>. Its dual application of both trust law and traditional customary law causes confusion. It’s not clear what the property rights of communal land holders are. Applying both sets of laws also blurs the limitations on the powers of the trust and traditional representatives. </p>
<p>Such misconstructions of customary law are often intertwined with corrupt practices and power mongering. These misconstructions preserve certain individuals’ powers and interests at the expense of the greater community. This occurs when understandings of individual private property ownership are applied to customary communal land tenure in a way that diminishes the need for communal consent and consultation.</p>
<p><a href="https://www.jstor.org/stable/24566755">Living customary law</a> – which is developed over time by the community, is specific to that community, and occurs through collective practice and decision-making in accordance with shared values and rules – is then supplanted by misapplications. These misconstructions can originate from various sources, such as statutory regulations, distorted common law beliefs, and patriarchal traditional leadership practices that masquerade as customary law. </p>
<p>The result is insecure tenure for rural land occupants. The Ingonyama Trust epitomises these problems.</p>
<h2>How customary communal land tenure works</h2>
<p>Customary <a href="https://www.academia.edu/37320502/Land_reform_political_instability_and_commercial%20_agriculture_in_South_Africa_An_assessment">communal land tenure</a> is found in communities that have a genealogical or ancestral connection to that land. Some are beneficiaries of the government’s <a href="http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000200004">land restitution programme</a>. They collectively hold all property rights to their land. </p>
<p>Living customary law gives them, collectively, the power to hold individual community members and leaders or representatives accountable for breaches of their fiduciary duties to the community.</p>
<p>Often a statutory entity is created, such as a trust or association, that regulates the way the land is managed. For example, some communities in the <a href="https://www.gov.za/issues/land-reform#:%7E:text=The%20Act%20makes%20provision%20for%20the%20restitution%20of%20rights%20in,and%20a%20Land%20Claims%20Court.">land restitution programme</a> are members of an association in terms of the <a href="https://www.gov.za/documents/communal-property-associations-act">Communal Property Associations Act</a>. </p>
<p>Such communities elect representatives who manage the administration of the association and have fiduciary responsibilities in terms of the act. Associations are governed by their constitution and the Communal Property Associations Act. Similarly, the Ingonyama Trust is governed by traditional customary law and the statutory trust framework. </p>
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Read more:
<a href="https://theconversation.com/customary-and-religious-laws-are-impeding-progress-towards-womens-health-in-nigeria-154221">Customary and religious laws are impeding progress towards women's health in Nigeria</a>
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<p>Both forms of communal land holding are distinguishable from private property ownership, which confers registered ownership rights on individuals. Private ownership is primarily governed by the common law. It gives the land owner autonomous decision-making powers with few limitations. The owner has extensive unilateral decision-making authority in respect of their privately owned land. They can, for example, transfer ownership, dispose of, or encumber their property (without consultation).</p>
<h2>The Ingonyama Trust and its tenure challenges</h2>
<p>The Ingonyama Trust was <a href="http://www.ingonyamatrust.org.za/">established in 1994</a> by the then KwaZulu Government to administer all land it held. It is a corporate entity and administers 2.8 million hectares of the land in KwaZulu-Natal. The territory was once administered by the erstwhile KwaZulu homeland. This followed <a href="https://www.tandfonline.com/doi/full/10.1080/02582473.2021.1909116">a deal hammered out earlier</a> to entice Buthelezi and his Inkatha Freedom Party to take part in the elections that ended apartheid. The province is a stronghold of the party.</p>
<p>The Zulu monarch is the sole trustee, even though the land is <a href="http://www.ingonyamatrust.org.za/wp-content/uploads/2015/10/Ingonyama-Trust-Act-as-amended.pdf">owned by the Zulu people</a>. The king represents the people and the land must be managed for their benefit and welfare. </p>
<p>The trust is plagued with disputes for not involving the community in its business transactions. There has been little evidence of collective benefit for the community. </p>
<p>The disputes expose unequal profit from trust assets, privileging a select few, instead of all the communal land holders equally. To sum up crisply: the trust has treated communal land like privately owned land.</p>
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Read more:
<a href="https://theconversation.com/why-south-african-communitys-win-against-mining-company-matters-107746">Why South African community's win against mining company matters</a>
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<p>In 2022, the Supreme Court of Appeal <a href="https://lrc.org.za/24-august-2022-supreme-court-of-appeal-dismisses-ingonyama-trust-board-application-for-leave-to-appeal/">directed</a> the Ingonyama Trust to cease letting trust land to the land beneficiaries to whom the land belonged. It was ordered to repay the rent.</p>
<p>In 2017, <a href="https://www.parliament.gov.za/storage/app/media/Pages/2017/october/High_Level_Panel/HLP_Report/HLP_report.pdf">a panel appointed by parliament to review post-apartheid legislation</a> recommended that the trust be amended or repealed. </p>
<p>However, such criticism is perceived by some as a slight against the king and is met with social and political resistance. The <a href="https://omalley.nelsonmandela.org/index.php/site/q/03lv02424/04lv02730/05lv02898.htm">Congress of Traditional Leaders of South Africa</a> contends that the Ingonyama Trust cannot be repealed, amended or dissolved without the king’s approval – in accordance with customary law. </p>
<h2>Traditional rule versus democracy</h2>
<p>The misapplication of tenure under the Ingonyama Trust exemplifies structural conflict between trust tenure and customary traditional rule. </p>
<p>The trust applies a form of traditional despotic rule that can be at odds with democratic principles enshrined in the constitution. Under traditional despotic rule or authoritarian rule, customary law is interpreted in a way that naturally limits the need for community consultation, consent and participation in all decision-making related to the land from the “subjects”. </p>
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Read more:
<a href="https://theconversation.com/south-africas-courts-and-lawmakers-have-failed-the-ideal-of-cultural-diversity-91508">South Africa's courts and lawmakers have failed the ideal of cultural diversity</a>
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<p>This despotic rule is also at odds with trust tenure and the communal landholding rights of rural communities. The extent to which the community is able to equally use and enjoy their land, and the economic benefits accruing from it for collective social and economic progress, should be the yardstick against which communal land tenure is measured, and land rights clarified and protected.</p><img src="https://counter.theconversation.com/content/211365/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthea-lee September-Van Huffel does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Land disputes arise when the fundamental principles of customary law are breached. The breach can be at the hands of the state or its representatives.Anthea-lee September-Van Huffel, Lecturer, University of the Free StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/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/2117552023-09-08T14:22:22Z2023-09-08T14:22:22ZZimbabwe elections 2023: a textbook case of how the ruling party has clung to power for 43 years<figure><img src="https://images.theconversation.com/files/543488/original/file-20230818-29-34nlfh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Opposition supporters calling for free and fair elections outside the offices of the Zimbabwe Electoral Commission in Harare in 2018.
</span> <span class="attribution"><span class="source">Jeksai Njikizana/AFP via Getty Images.</span></span></figcaption></figure><p>Few were surprised as, near midnight on 26 August, the <a href="https://www.zec.org.zw/download-category/2023-presidential-elections-results/">Zimbabwe Electoral Commission</a> announced incumbent president Emmerson Mnangagwa’s reelection in yet another of Zimbabwe’s tendentious contests. His <a href="https://www.news24.com/news24/africa/news/snubbed-by-most-regional-leaders-emmerson-mnangagwa-parties-on-with-ex-adversaries-instead-20230904">inauguration</a> on 4 September sanctified his return to power.</p>
<p>Fewer still were shocked when South Africa’s president, Cyril Ramaphosa, attended Mnangagwa’s <a href="https://www.iol.co.za/news/africa/ramaphosa-warned-not-to-undermine-sadc-ahead-of-mnangagwas-inauguration-4fd42c99-fdf2-4070-be0c-69b5117b8962">inauguration</a> regardless of the Southern African Development Community (SADC) election observation team’s <a href="https://www.justsecurity.org/87928/zimbabwes-troubled-election-might-southern-african-leaders-follow-the-example-of-their-observers/">critical report</a> and the absence of most of <a href="https://www.news24.com/news24/africa/news/mnangagwa-inauguration-ramaphosa-expected-to-attend-along-with-a-few-regional-leaders-20230903">his peers</a> from the SADC and the African Union.</p>
<p>Mnangagwa gained 52.6% of the 4,561,221 votes cast. Nelson Chamisa, head of the main opposition Citizens Coalition for Change (CCC), garnered 1,967,343 or 44%. Zanu-PF’s 136 of parliament’s 210 seats is just under the two-thirds needed to change the constitution. </p>
<p>I’ve observed and written about all <a href="https://journals.sagepub.com/doi/full/10.1177/000203971404900106">Zimbabwe’s elections</a> since 2000, when Zanu-PF first faced strong opposition from the Movement for Democratic Change (MDC) under <a href="https://theconversation.com/zimbabwes-morgan-tsvangirai-heroic-herald-of-an-epoch-foretold-91845">Morgan Tsvangirai</a>. My <a href="https://www.hurstpublishers.com/book/mugabes-legacy/">book</a> Mugabe’s Legacy: Coups, Conspiracies, and the Conceits of Power in Zimbabwe covers nearly 50 years of Zanu-PF’s propensity to gain power by any means - even <a href="https://theconversation.com/zimbabwes-president-was-security-minister-when-genocidal-rape-was-state-policy-in-1983-4-now-he-seeks-another-term-211633">genocide</a>.</p>
<p>This election displayed many of these patterns. However, each election has registered variations as Zimbabwe hovers between open democracy and fully shut authoritarianism. Zanu-PF’s score, with contemporary variants, ranges from pre- and post-election intimidation to electoral “management” and playing off its regional neighbours. The CCC and civil society choirs also shift their tone in response: from outright rejection and court challenges to pleas for reruns and transitional governments.</p>
<h2>Long-term, immediate and post-election intimidation</h2>
<p>The <a href="https://muse.jhu.edu/pub/99/article/703839">post-2017 coup period</a> foreshadowed many of Zanu-PF’s contemporary strategies. First was the soldiers killing at least six demonstrators (and bystanders) just after the <a href="https://theconversation.com/a-false-new-dawn-for-zimbabwe-what-i-got-right-and-wrong-about-the-mood-100971">mid-2018 elections</a>. In January 2019, a “stayaway” kicked in just after Mnangagwa announced a 150% increase in fuel prices. Planned chaos ensued as riots, looting and protests were encouraged by a multitude of unidentified forces. More than 17 people were killed. As many women were raped. Nearly 1,800 other bodily violations ensued amid <a href="https://www.jstor.org/stable/j.ctv2s0jd56">mass trials and convictions</a>. </p>
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Read more:
<a href="https://theconversation.com/zimbabwes-president-was-security-minister-when-genocidal-rape-was-state-policy-in-1983-4-now-he-seeks-another-term-211633">Zimbabwe’s president was security minister when genocidal rape was state policy in 1983-4. Now he seeks another term</a>
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<p>Since then, Zanu-PF has reminded many people not to engage in opposition. </p>
<p>By mid-2020 the targets moved towards <a href="https://africanarguments.org/2020/12/the-gendering-of-violence-in-zimbabwean-politics/">women in the MDC</a>. The case of CCC activist <a href="https://www.youtube.com/watch?v=HXsUkP00M9k">Moreblessing Ali’s</a> murder in May 2022 indicates a new variant on “silent murder”. Ali’s brother, Washington, a long-time MDC-CCC activist in the UK, gained the help of CCC MP and lawyer Job Sikhala to publicise his sister’s murder. Sikhala has been imprisoned since his campaign on <a href="https://www.amnesty.org/en/latest/news/2023/05/zimbabwe-conviction-and-sentencing-of-opposition-leader/">behalf of Ali</a>. </p>
<p>I examine this horrific assassination in the next issue of the journal <a href="https://muse.jhu.edu/journal/198">Transformation</a>. It illustrates how the move towards <a href="https://amp.theguardian.com/world/2023/aug/18/sweets-for-the-people-zimbabwe-elections-housing-voters-lured-promises-land-barons-zanu-pf">land-baron-led gangsterism</a> in Harare connects with Zanu-PF hierarchies of power.</p>
<p>The August 2023 pre-election murder by stoning of <a href="https://www.voazimbabwe.com/a/7210805.html">CCC activist Tinashe Chitsunge</a> indicated this sort of politics running wild. </p>
<p>After the election, demonstrators and soldiers did not encounter each other <em>en masse</em>: no shootings. However, residents visiting pubs in “high density suburbs” encountered rough treatment from unidentified people with guns and brand-new uniforms. Later, Glen Norah councillor Womberaishe Nhende and fellow activist Sonele Mukuhlani were left naked after their abduction, whipping and injection with poison on 3 September. Their lawyers, Douglas Coltart and Tapiwa Muchineripi, were arrested when visiting them <a href="https://allafrica.com/stories/202309060001.html">in hospital</a>.</p>
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<p>The well-funded “Forever Associates of Zimbabwe” (FAZ) earned its keep by intimidating folks during the pre-election phases. FAZ is a <a href="https://www.aspistrategist.org.au/if-it-still-breaks-dont-fix-it-time-for-another-election-in-zimbabwe/">Zanu-PF</a> mix of semi-intellectuals and aspirant entrepreneurs. They are Mnangagwa enthusiasts needing connections to the Zanu-PF state. </p>
<p>They ran illegal <a href="https://www.news24.com/news24/africa/news/zimbabwes-vote-is-well-short-of-free-and-fair-standards-say-foreign-observers-20230825">“exit polls” at the stations</a>. FAZ’s members, purportedly <a href="https://nehandaradio.com/2023/03/11/wife-of-cio-boss-accused-of-terrorising-zanu-pf-and-cio-members/">paid by the Central Intelligence Organisation</a>, kept their promise to “dominate and saturate the environment while <a href="https://faztrust.com/">denying the same to opponents</a>” – including those within Zanu-PF during its primary <a href="https://www.theafricareport.com/311011/zimbabwe-how-intelligence-and-military-are-running-the-upcoming-general-polls/">nomination contests</a>. </p>
<h2>Judicial and electoral ‘management’</h2>
<p>The clouds over liberal horizons darkened further in the legal spheres of repression. The “<a href="https://theconversation.com/zimbabwes-patriotic-act-erodes-freedoms-and-may-be-a-tool-for-repression-209984">Patriotic Act</a>”, passed ahead of the elections, makes too much opposition-talk with foreigners treasonous. The still unsigned amendment to the Private Voluntary Organisations Bill promises to end all hints of civil society support for <a href="https://www.dailymaverick.co.za/article/2023-01-23-zimbabwean-government-passes-law-designed-to-throttle-independent-civil-society/">opposition parties</a>. </p>
<p>The <a href="https://www.veritaszim.net/node/6099">gerrymandered delimitation exercise</a> remapped mostly urban constituencies so they stretch to peri-urban and nearly rural areas. Zanu-PF hoped the majority would thus support it, as in the countryside. This tactic linked well to election day’s improprieties. Up to 75 urban polling stations experienced unexpected and unprecedented <a href="https://www.zawya.com/en/world/africa/polling-delays-and-extension-of-time-for-voting-zimbabwe-e39rl0b4">shortages of ballot papers</a>. This caused long and uncertain waits. Some stations extended voting to the next day. </p>
<p>In Glenview, a Harare suburb, hundreds of poor voters walked kilometres to vote by 7am. They waited – peacefully, fortunately – eight hours for the ballot papers. </p>
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Read more:
<a href="https://theconversation.com/zimbabwes-patriotic-act-erodes-freedoms-and-may-be-a-tool-for-repression-209984">Zimbabwe’s ‘Patriotic Act’ erodes freedoms and may be a tool for repression</a>
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<p>At other stations, night-time voting added to voters’ roll problems due to the hasty delimitation exercise that left <a href="https://www.news24.com/news24/africa/news/mnangagwas-son-turned-away-from-polling-station-as-logistical-troubles-and-fear-mar-zim-voting-20230823">many in the wrong constituency</a>. They were advised to find the correct one. </p>
<p>Where voting continued to 24 August, how many returned? </p>
<h2>The V11 forms</h2>
<p>Widespread concerns about the <a href="https://www.veritaszim.net/node/6544">V11 forms</a> came on top of worries about the thousands of people giving up on the lost ballot papers. These sheets are posted on the outside walls of the 12,000 polling stations. They show all the votes. They are meant to enable anyone to keep score at the first polling stage. Then the official counting moves on to ward, constituency, and provincial counting centres, and finally to the national “command centre” where the presidential vote is tallied and announced. Suspicion runs rampant about what happens at the links in this chain.</p>
<p>Election NGOs and other organisations were collecting and tabulating images of the V11 forms for digital release. Too late: Zanu-PF conducted on-the-night <a href="https://paradigmhq.org/press-release-the-netrights-coalition-condemns-raids-of-digital-technologies-of-civil-society-actors-in-zimbabwe-during-the-2023-elections/">raids</a> as they were at work. </p>
<p>As the Institute for Security Studies’ southern Africa programme head Piers Pigou noted in conversation with me, if the Zimbabwe Electoral Commission was worried about the election’s legitimacy, the V11 forms would have been on its website immediately. But they are not there – or anywhere. </p>
<h2>Regional responses, CCC plans and democracy’s future</h2>
<p>As noted, the election observers’ reports do not paint a pretty picture of the election. The Citizens Coalition for Change hoped to exploit the split between the SADC observers and their <a href="https://www.news24.com/news24/opinions/analysis/in-depth-zimbabwe-elections-analysts-on-why-sas-response-legitimises-an-authoritarian-regime-20230830">SADC masters</a>. But the SADC’s council of elders seems unable to help the CCC’s plans to arrange a rerun guided by <a href="https://www.youtube.com/watch?v=YQQi1Xu_dts">an international committee</a>. South Africa’s enthusiasm for its neighbour gives little solace <a href="https://www.dailymaverick.co.za/article/2023-09-05-ancs-fikile-mbalula-dismisses-talk-of-fresh-poll-in-zimbabwe/">to northern democrats</a>. Given Zimbabwe’s courts’ past biases on the legality of elections, the CCC did not bother taking <a href="https://zimfact.org/fact-check-has-chamisa-filed-an-election-court-challenge/">the judicial route</a>. </p>
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<a href="https://theconversation.com/animal-farm-has-been-translated-into-shona-why-a-group-of-zimbabwean-writers-undertook-the-task-206966">Animal Farm has been translated into Shona – why a group of Zimbabwean writers undertook the task</a>
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<p>Mnangagwa’s inauguration has put all those plans to rest. No reruns. No new versions of government of “<a href="https://africanarguments.org/2013/07/review-the-hard-road-to-reform-the-politics-of-zimbabwes-global-political-agreement-reviewed-by-timothy-scarnecchia/">national unity</a>”, modelled after the disputed, violence-marred 2008 contest, or <a href="https://gga.org/please-sign-petition-for-a-transitional-government-in-zimbabwe/">transitional councils</a>. At most, the election observers’ reports portend further critique. The Zimbabwean democratic forces have to think again, and harder, about ways to a better future. </p>
<p>In sum, if Zimbabwe’s 2023 election foreshadows future battles between authoritarianism and liberal democracy, the former has gained the upper hand. Zanu-PF’S iron fist remains, with a velvet coating, albeit fraying. As a woman overheard discussing this election observed, the only hope may be Zanu-PF destroying itself as it almost did in 2017.</p><img src="https://counter.theconversation.com/content/211755/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David B. Moore watched Zimbabwe's 2023 election as a non-accredited observer.</span></em></p>Zimbabwe’s 2023 elections look like their predecessors: stolen. But this one is a bit different. Opposition strategies and regional responses have changed too. What does this mean for the future?David B. Moore, Research Associate, Dept of Anthropology & Development Studies and Fellow, Clare Hall, University of Cambridge, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2130952023-09-08T12:49:39Z2023-09-08T12:49:39ZJohannesburg fire: there was a plan to fix derelict buildings and provide good accommodation - how to move forward<p>Thousands of Johannesburg inner-city residents occupy buildings in conditions like those that led to the <a href="https://theconversation.com/johannesburg-fire-disaster-why-eradicating-hijacked-buildings-is-not-the-answer-212732">fire at 80 Albert Street</a> that killed at least 77 people. They are living in derelict multi-storey buildings, former office blocks, sectional title buildings, tenements, warehouses and factories.</p>
<p>The residents are mostly informal, unsalaried or poorly paid workers. Some are unemployed or on welfare grants. They <a href="https://www.jstor.org/stable/10.18772/22019103849.16">can’t afford even the lowest priced formal rental</a> or social housing in the inner city. Even if they could, they would be excluded by high demand and low supply.</p>
<p><a href="https://www.jstor.org/stable/10.18772/22019103849.20">The accommodation they can access</a> frequently lacks running water and sanitation, security, ventilation, lighting and formal electricity.</p>
<p>Rooms are <a href="https://www.jstor.org/stable/10.18772/22019103849.21">subdivided</a> with wood or cardboard. Electricity cabling, candles, paraffin lamps and generators contribute to the ever-present pollution and risk of fire. Homes and families’ lives are carved in the shadows of failing or non-existent infrastructure.</p>
<p>We are academics in the fields of urban planning, architecture and housing. We’ve applied our expertise to questions of urbanisation, poverty, housing design and management, housing rights and the inner city over many years.</p>
<p>Various complex factors have led to the occupation of abandoned inner city buildings under precarious conditions. The city’s approach to this reality evolved into a sophisticated and nuanced <a href="https://www.wits.ac.za/media/wits-university/faculties-and-schools/-engineering-and-the-built-environment/architecture-and-planning/documents/jhb-innercity-housing-strategy2014-2021.pdf">housing plan adopted in 2017</a>. It was only partially implemented. While the city needs to refocus on this plan, immediate safety interventions are needed in occupied buildings. Many of them lend themselves to retrofitting or conversion. Existing management structures that involve residents offer lessons. </p>
<h2>Johannesburg’s intervention plans</h2>
<p>Constitutional jurisprudence protects what it calls “unlawful occupiers” from evictions that would lead to homelessness and requires the state to provide alternative accommodation. </p>
<p>Key to this jurisprudence, the 2011 <a href="https://journals.co.za/doi/epdf/10.2989/CCR.2013.0011">Blue Moonlight case</a> put an end to the city’s policy of handing precariously occupied buildings to the private sector for profitable development.</p>
<p>The city has recognised that expansion of low-income housing is a critical part of the solution. In 2014 Mayor Parks Tau’s ANC administration <a href="https://www.gpma.co.za/news/ichip-presentation-2017/">commissioned a strategy and housing plan</a> which was approved by Herman Mashaba’s (DA-led) mayoral committee in 2017. The plan is concerned with the needs of the poor, though addressing all income groups. It takes an inclusive, contextual, practical approach that promotes choice.</p>
<p>The plan includes providing emergency services to critical buildings, and temporary emergency accommodation. It sets out strategies to increase supply of temporary and permanent housing by private providers, city entities and social housing institutions. This includes mechanisms for very low-income accommodation, including subsidised rental rooms.</p>
<p>The plan was well received but never adequately funded or <a href="https://www.dailymaverick.co.za/article/2023-09-05-inner-city-housing-joburg-has-a-plan-it-just-hasnt-implemented-it/">carried out</a>. The projected budget for temporary emergency accommodation and alternative rental units for those evicted for 2017/2018 to 2021/22 was R561 million (US$29 million). Only just over one third was allocated.</p>
<p>In 2021, the city developed a <a href="https://joburg.org.za/departments_/Documents/Housing/TEAP%20Policy%20February%202021%20Approved.pdf">draft policy</a> for temporary emergency accommodation. It also reviewed the availability of such accommodation. Its housing department estimated it would need to provide 10,000 additional rooms or rental units to evicted communities. At the time under 2,000 units were already built, but mostly occupied or allocated. The city had projects to develop under 5,000 more units. Even if all current and future projects were fully funded and complete, which could take several years, they would cover less than half the existing need.</p>
<p>The approved plan acknowledged that criminals exploited residents by collecting rent in some buildings such as 80 Albert Street. The municipal-owned Johannesburg Property Company, which manages the city’s vast property portfolio, seemingly owner of several occupied buildings, has not released its inventory of properties.</p>
<p>Much of the housing plan’s analysis, approach and proposals remain relevant today. It has not been publicly available on the internet. We <a href="https://www.wits.ac.za/media/wits-university/faculties-and-schools/-engineering-and-the-built-environment/architecture-and-planning/documents/jhb-innercity-housing-strategy2014-2021.pdf">placed it</a> on the <a href="https://www.wits.ac.za/cubes/publications/media-articles-podcast-and-popular-press/">Centre for Urbanism & Built Environment Studies website</a> to inform ongoing responses to the inner-city housing emergency.</p>
<h2>A way forward</h2>
<p>As government departments seek to make funds available, solutions must build on existing knowledge and plans, local insight, expertise, experience and ongoing dialogue. We recommend a multi-pronged and coordinated strategy.</p>
<p>Supply of emergency and temporary accommodation alone cannot solve the crisis. Similarly, militarised police solutions are unconstitutional and incapable of addressing housing and safety in the inner city.</p>
<p>The COVID-19 pandemic triggered <a href="https://www.newframe.com/lockdown-forces-ministry-to-address-shack-settlements/">innovative ideas for retrofitting interventions</a> in informal settings, including safe access to water. The roll-out of water tank to areas with insuffucient water supply showed a capacity to respond to crises. With this hindsight, relevant government departments should focus their budgets on providing basic safety for occupied buildings in the immediate term.</p>
<p>Immediate responses should not involve removing occupants but enhancing safety through fire hydrants and extinguishers, emergency exits and clearing blocked access routes. Climate funds should be used to retrofit occupied buildings with solar panels, rainwater harvesting and other “green” measures.</p>
<p>Temporary containers can be placed alongside buildings for secure storage of items. In time, alternative partitioning materials must be introduced. Where one-way fire doors and fire wells exist, emergency LED lighting and mechanical door closers can be fitted.</p>
<p>Several buildings and communities are ready for these incremental improvements. Occupying communities are organised. The <a href="https://www.facebook.com/p/Inner-city-federation-100069194417981/?paipv=0&eav=AfYM_UEIAaLdQqHtcbsI7GU7vCU8UVEhljOCeSUaUqwuOtFfXlAyGTH3eLsljeF6iv8&_rdr">Inner City Federation</a> already represents committees of over 70 buildings. They are mobilising to improve basic living conditions and to get rid of criminal syndicates. The <a href="https://icrc.org.za/">Inner-City Resource Centre</a> also has experience in community-based projects and engaging residents and the state. Collective tenure solutions such as <a href="https://www.jstor.org/stable/10.18772/22019103849.18">community land trusts</a> can be considered.</p>
<p>Any accommodation with shared facilities requires high levels of management. Successful models include co-management with residents. These are already in place in several buildings. Where temporary shelters have become <em>de facto</em> permanent, urban management must adjust and not be abandoned, as at 80 Albert Street.</p>
<p>Opportunities for social housing and emergency shelter lie in the building register of the Johannesburg Property Company and other public entities. As <a href="https://www.theguardian.com/cities/2017/may/25/spatial-apartheid-housing-activists-occupy-cape-town-gentrification">activists</a> and <a href="https://housingfinanceafrica.org/documents/urban-land-reform-in-south-africa-the-potential-of-public-property-and-impact-of-public-investments/">researchers</a> have pointed out, underused or vacant publicly owned land and buildings offer potential.</p>
<p>Private sector and social housing companies already respond in various ways with <a href="https://afhco.co.za/to-let/residential/">well managed low-income rental models</a>. However, qualification criteria and rents may just be <a href="https://developingeconomics.org/2021/11/10/inner-city-pressure-and-living-somewhere-in-between/">out of reach</a> for those in need. Faith-based organisations and non-profits have much to offer.</p>
<p>The challenges are global and responses in other contexts offer useful insights. Metropoles such as São Paulo have <a href="https://www.academia.edu/45033377/Ocupa%C3%A7%C3%B5es_de_moradia_no_centro_de_S%C3%A3o_Paulo_trajet%C3%B3rias_formas_de_apropria%C3%A7%C3%A3o_e_produ%C3%A7%C3%A3o_populares_do_espa%C3%A7o_e_sua_criminaliza%C3%A7%C3%A3o">extensive high-rise housing stock</a>, partly unused and informally occupied. In 2018, a building in São Paulo occupied by 171 families collapsed after a fire, killing seven people. In response, a multi-sector task force produced <a href="https://polis.org.br/wp-content/uploads/2021/06/Situacao-das-ocupacoes-na-cidade-de-Sao-Paulo.pdf">a report</a> calling for measures to increase safety in occupied buildings. In some buildings, housing movements trained residents in disaster readiness – <a href="http://www.labcidade.fau.usp.br/brigada-de-incendio-do-prestes-maia-e-organizacao-das-familias-evita-tragedia/">preventing another potentially catastrophic fire</a>.</p>
<p>After <a href="https://www.bbc.com/news/uk-40301289">London’s Grenfell Tower fire in 2017</a>, which killed 72 people, rules were amended governing surveys and plans, material flammability, fire safety equipment, signage and lights.</p>
<p>Architects have proposed <a href="https://normanfosterfoundation.org/?project=essential-homes-research-project">innovative</a> and just <a href="https://masteremergencyarchitecture.uic.es/blog/">solutions to crises</a> in other large metropoles. In Johannesburg, the current downturn in the building industry means new graduates are a potential workforce requiring practical experience. With state support, architects experienced in <a href="https://www.domusweb.it/en/architecture/2013/05/20/marlboro_south.html">documentation</a>, <a href="https://docomomojournal.com/index.php/journal/article/view/167">renovation</a>, reuse of <a href="https://localstudio.co.za/architecture/multi-family-housing/">commercial</a> and <a href="https://savagedodd.co.za/Portfolio/slava-village-boksburg-johannesburg/">retail</a> space, and <a href="https://changebydesignjoburg.wordpress.com/change-by-design-2023-joburg/">participation</a> could mentor them.</p>
<p>We call for regular and institutionalised discussion forums in which academics, community leaders, NGOs and the private sector exchange insights with politicians and officials.</p>
<p><em><a href="https://affordablehousingactivation.org/experts/heather-dodd/">Heather Dodd</a>, a partner in Dodd + Savage Architects, contributed to this article.</em></p><img src="https://counter.theconversation.com/content/213095/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marie Huchzermeyer is a board member of the NGO Planact and a member of SACPLAN (the South African Council of Planners). She received funding from the NRF up until 2019. From 2016-2025 she receives funding from DAAD (German Academic Exchange Service). </span></em></p><p class="fine-print"><em><span>Amira Osman receives funding from Amira Osman receives funding from The National Research Foundation (NRF) and the Tshwane University of Technology. </span></em></p><p class="fine-print"><em><span>Hannah le Roux receives funding from The National Research Foundation (NRF)</span></em></p><p class="fine-print"><em><span>Margot Rubin receives funding from the NRF through Off-Grid Cities project. I am also a visiting lecturer at the Wits School of Architecture and Planning and a visiting researcher at the GCRO.</span></em></p><p class="fine-print"><em><span>Matthew Wilhelm-Solomon received funding from the Volkswagen Foundation "Knowledge for Tomorrow - Cooperative Research Projects in Sub-Saharan Africa" postdoctoral grant between 2013-2016</span></em></p><p class="fine-print"><em><span>mfaniseni Fana Sihlongonyane receives funding from Gauteng City Region Observatory Board, Wits university. He is affiliated with South African Council of Planners and the Centre for Urbanism and Built Environment Studies (CUBES).
</span></em></p><p class="fine-print"><em><span>Neil Klug is a member of South African Council of Planners (SACPLAN) and the Centre for Urbanism and the Built Environment Studies (CUBES). He has worked for consultancies involved in low-income housing policy formulation, and contributed to the City of Johannesburg's Temporary Emergency Housing Provision (TEAP) policy as part of a consultancy led by Lawyers for Human Rights. </span></em></p><p class="fine-print"><em><span>Philip Harrison receives funding from the National Research Foundation.</span></em></p><p class="fine-print"><em><span>Priscila Izar receives funding from the University of Witwatersrand Research Office and from the Urban Studies Foundation in Scotland. </span></em></p><p class="fine-print"><em><span>Sarah Charlton has worked for consultancies involved in low-income housing strategy and policy, and contributed to the Inner City Housing Implementation Plan led by RebelGroup. She has received funding for research from the NRF, Volvo Research and Educational Foundations, British Academy and ESRC.</span></em></p><p class="fine-print"><em><span>Sarita Pillay previously received funding from the National Research Foundation (NRF), IJURR Foundation and the Canon Collins Foundation for her PhD research. </span></em></p><p class="fine-print"><em><span>Tanya Zack consults in the field of low-income housing and informality strategy and policy development, and contributed to the Inner City Housing Implementation Plan led by RebelGroup.</span></em></p>Armed police interventions are unconstitutional and incapable of addressing housing and safety in the inner city.Marie Huchzermeyer, Professor, School of Architecture and Planning, University of the WitwatersrandAmira Osman, Professor of Architecture and SARChI: DST/NRF/SACN Research Chair in Spatial Transformation (Positive Change in the Built Environment), Tshwane University of TechnologyHannah le Roux, Associate professor of Architecture, University of the WitwatersrandMargot Rubin, Lecturer in Spatial Planning, Cardiff UniversityMatthew Wilhelm-Solomon, Writing fellow at the African Centre for Migration Studies, University of the WitwatersrandMfaniseni Fana Sihlongonyane, Professor of Development Planning and Urban Studies, University of the WitwatersrandNeil Klug, Senior Lecturer, University of the WitwatersrandPhilip Harrison, Professor School of Architecture and Planning, University of the WitwatersrandPriscila Izar, Centennial Postdoctoral Fellow, School of Architecture and Planning, Centre for Urbanism and Built Environment Studies, University of the WitwatersrandSarah Charlton, Associate Professor, University of the WitwatersrandSarita Pillay Gonzalez, Lecturer in the School of Geography, Archaeology and Environmental Studies, University of the WitwatersrandTanya Zack, Visiting senior lecturer, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.