Accountability
Accountability can make a difference
What do a multi-billion rand bill to pay for "police misconduct", unpaid social security grants, overcrowded prisons, the crumbling schools system and the slow delivery of state sponsored housing for the millions of shack dwellers in the metropolitan areas have in common? Why is state health care in a mess? How does it happen that, all too often, funds voted by parliament to departments of state, provinces and municipalities go unspent and have to be refunded to the Treasury?Ensuring free and fair elections.
Anyone who went anywhere near a polling station last weekend would have seen the banner advertising the presence of the Independent Electoral Commission (IEC). It reads: "Ensuring free and fair elections." This is what section 190 of the Constitution requires the IEC to do in addition to managing elections and declaring the results of those elections. These constitutional obligations are fleshed out in the Electoral Act and the regulations promulgated under it. The banner reflects a positive obligation which has to be fulfilled if the promise of universal suffrage, for which so many fought so long and sacrificed so courageously is to be realized in our new democratic order.Carl Niehaus, Gwede Mantashe and Cronyism
It is ineffably sad that a person as apparently earnest and committed as Carl Niehaus has been to those causes he has espoused over the years should find himself in the mess on which his detractors are now feeding. Yes, he may well have a less than comfortable relationship with money, have done criminal and stupid things in the past, and be less than suitable for the work he does because he "over-promises and under-delivers", as his former colleagues are quoted as saying. None of that explains the current pickle in which he finds himself as a scarred and self-immolatory survivor of the struggles of his life.Responsibility for reporting Niehaus forgery could extend beyond Mashatile
Jack Bloom, Democratic Alliance leader in the Gauteng Legislature, has suggested that those implicated for not reporting the Carl Niehaus forgery could extend beyond Gauteng Premier Paul Mashatile to include all executive members of the legislature who had any knowledge of wrongdoing and said nothing.How to Exact Accountability
At a recent Full Circle whisky tasting evening, at which I was responsible for providing the supporting programme, a thoughtful member of my captive audience asked: "What can ordinary people do to improve the service delivery situation?" This sparked a request from the editor that I burst into print on what is really a most important question.Accountability in the Western Cape Department of Health
An Ethical Framework for Decision-making
The value placed on accountability recognizes that as an institution, we are "responsible for the commitments we make" and "accountable to our communities for human and fiscal resources entrusted to us."An important part of being publicly accountable is having ethical and effective decision-making processes. The Western Cape has adopted an ethical framework called 'accountability for reasonableness (A4R)' to help decision-makers throughout the organization set priorities and make decisions that are legitimate and fair.
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Layers of Accountability
The state of governance in Africa came under penetrating scrutiny at a SAIIA (SA Institute of International Affairs) conference held at Boksburg during November 2008. Delegates from across the continent and beyond unpacked the African Peer Review Mechanism and considered the current state of constitutionalism on the basis of their experience and research. Most delegates were from the NGO sector with a good sprinkling of international academics and researchers present to balance the dialogue which took place in good spirit. It was during the discussion of accountability on the final day of the conference that the benefit of the input of the experts became most apparent.Democracy and Accountability: Balancing Majority Rule and Minority Rights
The paper identifies accountability as the essential ingredient required to make the ideals of constitutionalism a reality. A definition is offered in which three tests for constitutionalism are set out. These are, firstly, limitations on the exercise of power; secondly, legitimacy in the eyes of the people; and, thirdly, respect for human and people's rights. These three components of constitutionalism are examined against the political backdrop of post-liberation societies in which people's struggle for freedom becomes subsumed by the infighting that occurs within governing elites or liberation movements. This is to the detriment of the realisation of the values of dignity, equality and freedom that underpin the accepted constitutional dispensations, which are given lip service by politicians, but are not implemented in a manner responsive to the needs of the people.- download >
The Dalai Lama and South Africa's attitude to human rights
How ironic that news of the refusal to give the Dalai Lama a visa to participate in the peace conference organized by the "soccer family" of South Africa around the Mandela Soccer Challenge should come as the country celebrates Human Rights Day. The circumstances of the refusal, and cabinet's exact role in it, are not entirely clear. Conflicting reasons are given for the decision to exclude the Dalai Lama from the peace conference to which he was invited last November by the three living Nobel Peace Prize winners in South Africa, Archbishop Emeritus Tutu and former Presidents Mandela and De Klerk. Their invitation followed upon an earlier invitation signed by all of them and the current President, Kgalema Motlanthe, inviting the persons on the Norwegian Nobel Peace Committee to join in the event. Rather unhelpfully, the Minister of Foreign Affairs, Nkosasana Zuma, suggests that politics and sport should be kept apart. How retrograde, and how inconsistent with the invitation signed by the President, this echoes Piet Koornhof and John Vorster before him.Why development aid has not eased poverty
Development aid has an inadequate impact because development ideology is based on four fundamentally flawed assumptions:- the well-rehearsed doctrine that developing countries' problems are entirely internal
- that developed countries are an example to be globally emulated
- that the role of developed countries in promoting development is defined by altruism
- that the poor do not have the potential to improve their own lives significantly
First published on the web by Cape Times on April 29, 2009
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Countering Ken Owen on the state of the nation
This is an attempt to ameliorate or at least balance the views expressed by Ken Owen, former editor of the Sunday Times, in the May 2009 edition of Noseweek. One does so with a sense of trepidation as it is difficult to disagree with so acute and experienced a political commentator.
It is beyond doubt that it is indeed necessary to cherish and uphold the Constitution in these troubled times. The battles of the twenty first century will be waged in our democratic multi-party democracy, our elected Parliament, in the Courts and in the boardrooms of business and civil society in the nation. This is what constitutionalism is all about.
Accountability and Mobility
In the corporate and official policy making contexts accountability means that those who take decisions and actions should be able to justify the former and explain the latter. Policy makers have to ensure that their conduct is consistent with the Constitution.
Mobility on the other hand is all about access. Access to a place of work, a family abode, an educational facility, a place of worship or of play, access to services such as health care, food distribution and retail outlets are all encompassed by using one's mobility to "get there" and back safely.
In June 2001 a young engineering student from Fish Hoek, Juan van Minnen, was fatally wounded in a knife attack on him while traveling on a commuter train as it pulled into Wynberg station. The death of Juan and the communities outrage at the lack of accountability and indifference of the rail and police authorities sparked the formation of the Rail Commuters' Action Group (RCAG).
Of Baboons and Men; passing the buck is offside
A Simon's Town resident recently asked for an urgent meeting on the issues surrounding the clash between marauding baboons and human inhabitants/visitors to the Southern Peninsula. The problem is in essence one of competition for scarce resources.
The City of Cape Town, the Table Mountain National Park (TMNP) personnel and Cape Nature have all applied their minds to the problems presented without actually coming up with a solution that is acceptable to all.
The baboon troops that have colonized surburbia are increasingly bold and fearless in their interaction with humans in the neighbourhoods in which humans have attempted to deal with the invasion in a humane and non-confrontational manner. There is a reasonable apprehension that it is only a matter of time before a child is seriously injured or killed by a marauding baboon.
Isn't it time to name and shame?
In 2004, our National Treasury established a register to name tender defaulters. The purpose of the Register is in effect to alert the public sector to the identities of persons or enterprises convicted of corrupt activities in relation to contracts or tendering and in certain circumstances to prevent or deter these persons or entities from supplying their goods or services to government for a period of time. The information on the Register is also available to the public at large and thus serves as a warning to private business as well.
The legislation is well thought through and makes provision for a much needed procurement control tool for both government and the private sector - why then is the register after nearly 5 years still standing empty and whose responsibility is this?
Accountability and the rule of law
All too often angry and frustrated protesters feel compelled by official inertia or lethargy to take the law into their own hands when expressing their dissatisfaction with the state of affairs in local governance
Very frequently there are genuine and well founded grounds for the protest action taken. The problem is that those seeking to exact accountability resort to extra-legal means to do so and thereby exacerbate rather than improve the situation that raises their ire in the first place.
A working definition of exacting accountability is to require of those in authority that they reasonably explain their performance and properly justify their decisions. If those in authority are unable to satisfactorily do so, then remedial action is usually indicated.
Service delivery protesters and rates boycotters need to understand that unless they employ legally justifiable means to make their points, they become part of the problem and not part of the solution.
Retrenchment - does it mean NO alternative to job cuts?
While it is lamentable that a million jobs in South Africa were lost this year, it is nevertheless commendable that trade union and big business leaders are applying their minds constructively to the manifest problems posed by the ongoing phenomenon of job losses.
The frequent use of the word 'retrenchment' is unfortunate - as it is not to be found anywhere in our labour law - because, when used, it immediately directs decision-makers down the narrow path of job cuts. Right now in South Africa the focus needs to be on saving jobs, not regulating their destruction.
Politicians must be made to feel heat over climate responsibility
The outcome of the climate change conference that took place in Copenhagen last month has been officially described by Environmental Affairs Minister Buyelwa Sonjica as "disappointing".
The failure of the representatives of 192 countries to clinch the "real deal" for which Archbishop Desmond Tutu so eloquently pleaded is more than just disappointing - it could be calamitous for the human species.
Submission to the Ad Hoc Committee on the Organisation and Management of Professionally Qualified and other Persons within the Public Service
An overview responding to the high levels of dissatisfaction shown by professionally qualified individuals in the public administration in South Africa arising from the translation of their existing conditions to the new Occupation Specific Dispensation framework.- download >
Dignity, Equality and Freedom
The Bill of Rights is the cornerstone of the new democratic order in South Africa. What it calls the "democratic values of human dignity, equality and freedom" are affirmed by its provisions. The state is enjoined to "respect, protect, promote and fulfil the rights in the Bill of Rights."The Constitutional Court has placed particular emphasis on the right to human dignity. The notion that everyone has inherent dignity and the right to have that dignity respected and protected, marks a complete break with the unfairly discriminatory core of the apartheid past. There is no dignity in grinding poverty, in exclusion and in being discriminated against in any way.
The ten commandments of good tender practice
These commandments are all violated routinely in the essentially corrupt tender processes South Africa is exposed to by its current public administration.Section 195(1) of the Constitution either expressly or by implication prescribes all of these principles. Its peremptory provisions are largely ignored in the new South Africa, to the detriment of the poor and the taxpaying public.
A moral code is premature, a legal code could help
Some thought, or hoped, that we had found a foundational legal code that legitimately regulated our behaviour and interactions, after we finalized a state of the art progressive Constitution that was endorsed by the representatives of the overwhelming majority of our people and enjoyed the input of over 2 million citizens.Unfortunately, it now appears that our Constitution is the product of a political compromise. Observe the talk-show callers around 2/2/2010, lamenting that their representatives in the transition to democracy were sell outs, whether they were referring to FW or Mandela. Observe too the lip service paid to the Constitution by our current crop of politicians and by the public administration.
Even more unfortunate is the policy decision of the governing alliance to cling to the tenets of its "national democratic revolution". These tenets are completely inconsistent with the supreme law of the land.
Cadre Deployment
There seems to be much muddled thinking on the topic of cadre deployment in current political discourse. Cosatu and the ANC seem to favour it, Blade Nzimande of the SACP is out to thwart tenderpreneurs and the opposition parties are united in their condemnation of cadre deployment.What then is a "cadre", how are they "deployed" and why all the fuss? In the context of the debate, a cadre is best defined as a loyal member of the ANC or at least of the governing alliance which includes Cosatu and the SACP.
Hitachi Blues
The South African public tolerates the shenanigans of Eskom at great risk; not only is the sustainability of our environment imperilled by the pollution that persistent coal burning from the two boilers tendered for by Hitachi, worth R 38.5 billion, but the fabric of our value system is challenged by the collusion, corruption and conflicts of interest involved in the sorry saga being played out by these two parties.South African Choices
The proponents of the so-called "national democratic revolution" are inclined to refer to "the white nation" when they try to identify the antagonists of their revolution. There are also, of course, many ANC supporters who do not subscribe to the tenets of the national democratic revolution and, instead, regard the constitution as a sacred compact, whose values of non-racialism and non sexism in a multi-party democracy under the rule of law, they promote and uphold.For the main differences between the constitutional way and the revolutionary way.
Good Citizenship Pledge for South Africans
Fifa's red report card
Fifa's President, Sepp Blatter, is somewhat effusive in giving South Africa a score of nine out of ten for its efforts in relation to the staging of the 2010 World Cup football tournament. He justifies holding back on that elusive perfect score because, as he puts it, "nobody's perfect".Apart from improved infrastructure hastened into existence to accommodate the fans who thronged to the eight venues around the country at which the 64 games were staged, the lasting legacy for South Africans is the sense of national togetherness which the tournament's "gees" (spirit) engendered and with it the enhancement of our self-belief and self-esteem as a people.
The general euphoria and feelings of thankfulness have seemingly precluded anyone from now assessing the role of Fifa in the finals of the World Cup. Gratitude for cracking the nod from Fifa should not however blind the South African public to the less attractive features of the tournament, those for which Fifa is actually responsible.
The Time of Reckoning
Vladimiro Ariel Dorfman, an Argentine-Chilean-American novelist, playwright, essayist, academic, and human rights activist is in South Africa to present the Eighth Nelson Mandela Annual Lecture. He has not been invited to do so by accident and what he has to say will be worth listening to carefully. He is an "international treasure" and an inspired choice to deliver the lecture because of his learning and his personal life experiences of the horrors of revolutionary change he has witnessed at first hand in Chile.Has Enver Daniels met Jeff Radebe lately?
It is hard to believe that the Minister of Justice, Jeff Radebe, and the Chief State Law Advisor, Enver Daniels, are part of the same administration working together toward the realization of the founding values of the country.Blade Knifes the Messenger
At a time when South Africa is rated as the most unequal society in the world, with infant and maternal mortality rates rising (instead of falling as they do in most successfully developing countries), with a worrisome unemployment rate, inadequate housing, rampant crime and a dysfunctional public education system in which only 1 in 29 black children entering the system emerge as functionally literate matriculants and far too many drop out of university, the Minister of Higher Education, Blade Nzimande, has fingered the media as the greatest threat to our democracy.The National Interest
"The national interest", freedom of expression and the Protection of Information Bill.Press freedom is under siege
Letter to The Saturday Independent by Prof GE Devonish:I refer to the letter by Barrie Lovell "ANC government worse than the apartheid regime" in The Saturday Independent dated 7 August 2001.
Freedom of information
There are very important reasons why there should be freedom of information in South Africa and why the present Bill on the Protection of Information before parliament is a threat to our fledgling democracy.Media tribunal
The proposal for a media tribunal is disturbing as far as freedom of the press is concerned since it is proposed that this tribunal should on its own account have the power to imprison, fine and dismiss journalists.Democracy is not mob rule
The strike by public servants has become increasingly violent as the week unfolded. This is unlawful, undemocratic and unconstitutional.Lack of morality
The manner in which the strikers have behaved in the crisis our country in facing at this time indicates a complete lack of morality.The Role of Menzi Simelane and the Parameters of Constitutionalism
What happens when the NDPP and the Minister of Justice are not on the same page as regards prosecution policy?Travelgate and Whistle Blowing
The curtain has finally rung down on the long-running Travelgate saga, one that will live in infamy in the annals of the parliamentary history of South Africa. While the last of those few unlucky enough to be criminally charged sinks back into the plush green leather of the parliamentary benches with a sigh of relief that proper punishment and curtailment of parliamentary careers did not feature, spare a thought for the man who started it all, Harry Charlton. He blew the whistle, lost his job and is still fighting for redress in the Courts.Harry Charlton, a faithful servant of the people of South Africa, saw in the course of his duties as an employee of parliament, that some clever travel agents contracted to do parliamentary travel arrangements, found an imaginative way of diddling the parliamentary travel allowances, so as to line the pockets of parliamentarians. He did what was required of him: he blew the whistle and called in the police to investigate massive fraud.
The police, for all the usual reasons: lack of will, skill and capacity, did not make any progress with the investigation. The Minister was personally implicated as a wrong-doer; it was always unlikely that the police would have any appetite for investigating the skulduggery of one who feeds them, determines their policy and oversees their promotion.
Whither the Protection of Information Bill?
On Friday 22 October 2010 Dr SC Cwele, the Minister of State Security, did something very unusual. He returned to the ad hoc committee of parliament to make a second submission to it regarding the Protection of Information Bill.The good news is that the Minister has now unambiguously confirmed that his recommendation to the committee is a "total removal from the Bill of 'national interest' and 'commercial information' to ensure clarity, precision and sticking to legitimate aims". Although this is but a small step away from the grosser aspects of the unconstitutionality of the Bill, it is at least a step in the right direction.
Chancellor House: unconstitutional, illegal and criminal considerations
It is important that there is a proper understanding of what Chancellor House is doing to the fabric of South African society.There have been comments in the media which suggest that the modus operandi of Chancellor House is unethical, improper and immoral. This criticism is based upon the willingness of Chancellor House to do business with the state and para-statals in order to amass profits for the benefit, directly or indirectly, of the ANC election machine. Certainly, the ANC is able to conduct election campaigns in a style and on a scale that is not remotely matched by any other party contesting for the popular vote.
The Constitution itself guarantees "free and fair elections" to all citizens and naturally requires compliance with the rule of law. No election in which only one protagonist has access to the type of resources that flow from the dealings of Chancellor House can ever be free and fair. None of the other political parties have investment arms that are in any way comparable to Chancellor House.
Human Capital and the New Deal
Obstacles standing in the way of Economic Development Minister Ebrahim Patel's new economic growth path, aimed at enhancing growth, employment creation and equity.Cadre deployment in 2011
One of the more ominous aspects of the 8 January 2011 statement by President Zuma, speaking as leader of the ANC, concerns the perfidious perpetuation of the practice of cadre deployment by the ANC in positions in the State and the private sector.Despite the call late last year by Professor Kader Asmal for the "National Democratic Revolution" to be scrapped, the President continued to make the occasional reference to the "National Democratic Revolution" during his speech.
Fomenting revolutionary activities is not really the business of government in any constitutional democracy under the rule of law, and certainly not one in which multi-party politics, accountability, transparency and responsiveness to the needs of ordinary people are foundational values.
Political Party Funding
The murky waters of endemic corruption in which a large part of the body politic of South Africa swims are seldom as revealing as they briefly became when a call for donations to the ANC, addressed to contractors to his municipality by the Mayor of Hessequa, was made public on 31 January 2011.Manuel vs Manyi
The unanswered question that hangs over the bout between Manuel and Manyi is whether the Africanist sentiments expressed by Manyi can be said to "respect and enhance the freedom" of the so called coloured people who, in his view, so inconveniently overpopulate the Western Cape.Protecting and advancing persons disadvantaged by the unfair discrimination of the past, does not involve making people move from their homes and away from the cultural and language roots which they have established. This is inherently unfair and also a violation of the rights to culture and language protected by the Bill of Rights.
Racism belongs in the old order and has no place in the non-racial constitutional arrangements now in place. This is not a policy choice, it is the law of the land.
Elections are fairly free, but hardly fair
The abundance of electioneering activity in South Africa in the run up to the municipal elections scheduled for 18 May, 2011 brings the constitutional requirements for elections into sharp focus.According to Andrew Feinstein, who was then an ANC member of parliament, its election campaign was paid for out of the proceeds of bribes paid by European arms dealers who successfully tendered to supply armaments to the country. As it is estimated that bribes of about R 2,1 billion were paid, the opposition parties were ill-equipped to match the vote gathering activities of the alliance.
Since then things have become considerably more sophisticated and remunerative. The ANC has an investment arm, called Chancellor House, which sees nothing wrong in participating in public procurement contracts.
At a recent workshop on the Constitution, Valli Moosa, a former ANC cabinet minister and former chair of Eskom, was asked how, in the light of all this, it can ever be possible to hold any fair elections in the country.
Hitachi and Chancellor House: unconstitutional, illegal and criminal considerations
The South African 2011 municipal elections are over. Unfortunately it is still the case that more voters did not vote than voted for the ANC. It is of vital significance to any analysis of these voting trends that there is a proper understanding of what Chancellor House, the ANC's "investment arm", is doing to the fabric of South African society and its nascent democracy.As investment arm of the governing ANC, Chancellor House has been instrumental in raising funds for the ANC's election war-chest out of all proportion to the puny amounts that the opposition parties in South Africa's "dominant party state" are able to amass through their own secretive fund raising efforts. IDASA, a "good governance" NGO, became so concerned about the abuses inherently possible in the unregulated political party funding environment a few years ago that it litigated the issue in the High Court.
There is alarming opacity regarding the sources of funding for political parties. The absence of a regulatory system does not, however, mean that it is open season for Chancellor House to do as it pleases.
Apart from the acquisition of mining rights, the most egregious example of the known methods adopted by Chancellor House is that of its role in the Hitachi Power Africa deal with Eskom.
According to William Gumede of the Graduate School of Public and Development Management at Wits University: "Hitachi has been awarded a contract by Eskom to supply and install boilers for power stations. The ANC's stake in the deal through Chancellor House was estimated in 2008 to be R5.8 billion. For the sake of transparency, accountability and clean governance there has to be a firewall between the ruling political party and its leaders on the one hand, and state and private companies, on the other."
No election in which only one of the protagonists has access to the type of resources that flow from the dealings of Chancellor House can ever be fair.
Identity politics and our national values
The eye-opening discussion between Helen Zille and Gwede Mantashe chaired by Justice Malala on his "Justice Factor" TV programme appears to have inspired thoughtful contributions to the debate it sparked.It has long been the case that South Africans vote their fears and prejudices. This is what kept the all white National Party in power for many years with the "rooi-en-swart gevaar" tactics that have now transmogrified into the ANC "witgevaar" slogans. Mainly used by the demagogues still accommodated in the "broad church" alliance, the new chants and slogans seek to marginalise and demonise minority groups such as those "Boere" who must be shot or killed, symbolically of course. These are the politics of the lowest common denominator in our society. These strategies are designed to keep voters in racial camps that lamentably remain, to put it mildly, suspicious of what "they" will do next.
In these circumstances it seems unlikely that the politics of values will take root any time soon. While Malema is given free rein to sing the lyrics he chooses, make the threats he makes, both in song and in speech, and generally behave as an ANC approved demagogue, there is little prospect of the nation rising above its troubled past to embrace the values of its current Constitution - those espoused by Nelson Mandela and the founders of the new order.
The Government vs CASAC - More Promises or Real Change?
The conclusion of a study done by the Council for the Advancement of the Constitution (CASAC) that South Africa is in danger of becoming a dysfunctional state, because of the inadequacy of the government's response to endemic corruption has been rejected by Minister in the Presidency, Collins Chabane.Defusing a looming constitutional crisis
The announcement that the President has decided to extend the term of office of the Chief Justice, by a period of five years, has sparked a controversy that could snowball into a constitutional crisis.Arms, Oil and Boilers
Only in South Africa is the connection between arms, oil and boilers obvious to the well-informed citizen. The common thread joining these disparate commodities is attributable to the voraciously insatiable appetite of the ANC for raising funds in questionable ways.Andrew Feinstein, in his book, "After the Party" reveals that the 1999 election campaign of the ANC was funded with the crooked proceeds of the arms deals. Proof positive was found of a trail of about R1 billion in bribes to middlemen leading via the British Virgin Islands to the coffers of BAE/SAAB - the consortium which supplied the aircraft to South Africa. This after the military rejected their products as unsuitable for local conditions and too expensive.
Altogether, about R70 billion was, or will have to be, spent to honour the dodgy obligations of SA in the arms deals, if they are allowed to stand.
According to Professor William Gumede, it was estimated in 2008 that the dividend flow to the ANC via Chancellor House from the Hitachi Power Africa deal will be R 5,8 billion.
The deal in which Hitachi Power Africa landed the tender to supply the boilers to Eskom, was hatched collusively and in circumstances in which the clear conflict of interests present justifies an order of court declaring the deal void.
Zuma has a bad attack of foot in mouth syndrome
Those in the ANC who value the rule of law and are prepared to uphold the Constitution, should seriously consider whether the President is capable of serving the supremacy of either of these fundamentals.Not so, Jovial
It is incumbent upon the press to exercise responsible judgment when deciding whether or not to publish on the basis of uncorroborated leaks of "confidential" notes that may well be mischievously concocted so as to use the press as the unwitting tool of those with nefarious agendas.A responsible decision has to be made when an anonymous, albeit corroborated, leak of a purported police note is made as happened in the wake of the headlines chosen by Independent Newspapers in their coverage of the "imminent arrest" of the Public Protector.
To be or not to be "showerheaded"
Nothing stirs up the divisions in South African society, which is supposed to be united in its diversity, quite like the Zapiro cartoons which depict the President with a showerhead.Many who argue for the disappearance of the showerhead rely on what they call the necessary respect for the President and the office he holds. While dignity is guaranteed to all equally, the notion that a president automatically qualifies for respect merely because of the office he holds is a dubious one. Respect is guaranteed to no one. It has to be earned.
Nationalization: Myths and Possibilities
Wouldn't it be nice if South Africa, like its sparsely populated neighbour, Namibia, could strike oil in vast quantities off its western coast and forever change the dynamics of its fiscal dispensation? If the Namibians follow the example of the Norwegians, who have used steady oil revenues from known off-shore finds to make the people of Norway into an egalitarian well-to-do occupants, then the achievement of equality in one state in Southern African could be assured.Unfortunately the Youth League of the ANC (ANCYL) are focusing on nationalization as a new means of advancing the achievement of equality in South Africa.
A revolution will be needed to effect the kind of nationalization for which the ANCYL argues. This is because the idea is to recover so-called "stolen property" without compensating those expropriated in the process. This is contrary to the way in which the Constitution has been negotiated and formulated.
Fraud unravels everything
"Fraud unravels everything" may be applicable to the situation which has arisen as a consequence of the investigation of the South African Police Services (SAPS) headquarters leases in Pretoria and Durban by the Office of the Public Protector.The "elephant in the room" in the SAPS HQ case is the astronomical rentals agreed in the putative leases. The willingness of the state to pay more than three times the going rate in rental for the two buildings in question has not been explained by any of the parties involved. The Public Protector herself, rather charitably, speculates that this could be due to incompetence, negligence, or even recklessness. It could also be due to fraud and corruption.
Vaulting ambition o'erleaps itself
The decision of Chief Justice Sandile Ngcobo to withdraw his acceptance of the presidential invitation to extend his term of office by five years beyond his normal retirement date was the right thing to do.It is of overriding importance that the supremacy of the Constitution and the rule of law have been affirmed by the manner in which the whole question of the succession to the office of chief justice has panned out.
The insistence of the ANC Chief Whip in Parliament that the president did nothing wrong in inviting the chief justice to stay on another five years will fuel the arguments of the cynics.
Funding the Public Protector
According to press reports, the Office of the Public Protector (OPP) is inadequately funded for the staff engaged to be able to effectively and efficiently deal with the high volume of complaints that are being received.The OPP's funding is treated as a line item in the budget of the Department of Justice and Constitutional Development and is a less than satisfactory way of giving effect to the independence of the OPP. For independence to be meaningful it needs to be of an institutional, financial and personal nature.
It is now time for Parliament to address the less than satisfactory situation in relation to the financial independence of the Chapter Nine institutions, including the OPP.
Mac Maharaj and the South African Police Services HQ leases
No one in SAPS, the Department of Public Works or the government in general has been able to give an innocent explanation for the conclusion of purported SAPS HQ leases in which the going rate of R40 per square meter for the office space let is ignored and the taxpayer is burdened with a rate more than three times in excess of the going rate.The counter-majoritarian debate: the executive can not do as it pleases
The counter-majoritarianism debate has been rekindled by remarks made by President Zuma when he opened the Access to Justice Conference recently.A Jacob's Ladder of Dilemmas
There is much public criticism of the omnipresent indecisiveness of South Africa's President Jacob Zuma.The issue for the ANC is whether it can afford to keep the faith with so ineffectual and vulnerable a leader. For the country, the question is whether it will survive his listless leadership.
The experience of the anointed one
The presidency ought to have conducted a “Jutastat search” on short-listed candidates names before picking any candidate, and ought also to have picked its candidate only after consulting with the JSC and political party leaders, not before, as has been done yet again by opting for Mogoeng Mogoeng who served interminably in a quiet backwater like Mafikeng which is not adequate preparation for the exacting duties that will befall anyone who is Chief Justice of South Africa (SA) during the next ten years.Justice Edwin Cameron in a tour de force
Justice Edwin Cameron of the Constitutional Court spent an hour or so delivering a memorable lecture to the law students involved or interested in their social justice movement at UCT recently.The subject of the talk was the work of the Constitutional Court in two of its more controversial decisions, handed down in March and the other in April this year.
The JSC falters again
The majority of the JSC has, in its wisdom, decided that one candidate for appointment to the powerful position of head of the judiciary will do. This is patently an untenable and unconstitutional attitude to adopt.The "one horse" approach drains all meaning from the notion that the appointment is made "after consulting" with the body and persons concerned while ensuring that the process laid down is carried out in an accountable fashion that is responsive to the need of ordinary folk, by finding the best chief justice available.
It is plainly anti-democratic to disallow the nomination of other candidates, and the JSC's refusal to do so, undermines the whole consultation process envisaged in the Constitution.
Sensible compromise or "fatal concessions"?
Ngoako Ramatlhodi, the Deputy Minister of Correctional Services, is a loyal cadre of the national democratic revolution (NDR). He recently complained that the ANC made what he calls "fatal concessions" in the process that led to the abolition of apartheid and parliamentary sovereignty and the establishment of our multi party constitutional democracy under the rule of law in the early 1990s.These "concessions", so he says, tilt the Constitution in favour of "forces against change", "while immigrating substantial power away from the legislature and the executive and vesting it in the judiciary, Chapter 9 institutions and civil society movements." Without once mentioning the main goal of the NDR, which is the control of all levers of power in a hegemonic fashion in a one party state.
Passing poisoned chalices
The Minister of Public Works has at long last done the right thing by taking the putative leases in respect of the Police headquarters in Pretoria and Durban to court to have them declared invalid.Her explanations for the delay are underwhelming, if not disingenuous. Her attempts to shift the blame for the falling around that has gone on, as well as her failure to accept the advice of two senior counsel, is inexcusable.
The Minister should reflect on her own role in this fiasco. The provisions of the Constitution, which she is sworn to uphold as part of her oath of office are clear and unambiguous.
The cosy arrangements made with the prospective landlord do not measure up to any of the criteria of the Constitution. Conduct which is inconsistent with the Constitution is invalid.
The Minister should resign instead of attempting to play the role of the victim of what she calls "a poisoned chalice".
ANC Accountability Matrix
The SA public is being diverted from holding the ruling party accountable.See the Accountability Matrix, so that voters can remember what and why they voted in 2009 and 2011.
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Speed Kills, don't drink and drive
The adverse findings of Judge Nathan Erasmus in the test case concerning the Dräger Alcotest 7110 MK 111 device may turn out to be the tipping point in the policy making endeavours of transport authorities in South Africa. The Dräger is not a reliable tool for the prosecution of drunken drivers.There is only one constitutionally compliant and effective way to successfully prosecute drivers who use alcohol: their blood has to be tested swiftly for use in court as proof of intoxication.
All seriously intoxicated drivers who are Dräger tested must be sent for blood testing and the means of obtaining blood test results rapidly, must be put in place.
To this end the Institute for Accountability in Southern Africa has challenged the Premier of the Western Cape to champion the creation of a private forensic laboratory.
The people have spoken, Mr President
Despite negative reactions to his speech at the recent Access to Justice Conference, the President was at it again in Parliament last week, when he bid outgoing Chief Justice Sandile Ngcobo farewell, and welcomed his successor. The President should heed the voice of the people reflected in the Constitution and accept that he and his government can not do as they please because they are constrained by the values, principles, tenets and standards of the Constitution.Mac Maharaj should step down until his name is cleared
The President seeks to sweep the Mac Maharaj allegations of wrongdoing under the nearest carpet by referring the allegations to the Seriti Commission of inquiry, newly appointed to look into allegations of wrongdoing in the arms deals of 1999. The allegations against Maharaj have nothing to do with the arms deals.If Mac Maharaj is indeed an innocent man who gave truthful answers, why does he find it necessary to duck and dive in so unseemly a fashion?
The inescapable inference appears to be that the laying of charges is simply a further manifestation of the "attack is the best means of defence" philosophy adopted by Maharaj to bully and bluster his way out of the tight spot in which he finds himself.
It is quite intolerable that a person who acts as the spokesman of the President should find himself embroiled in the controversy in which Maharaj finds himself at present.
The Secrecy Bill - "How would you like your secrecy steak done?"
The Protection of State Information Bill may find objectors putting it to the test of its compliance with the Constitution which has a set of values and relevant guaranteed rights for all. The values of openness, accountability and responsiveness to the needs of ordinary people will all be invoked should the bill come before the courts.Corruption must be tackled; but how?
The Constitutional Court has spoken: its order is plain and clear. The Hawks, as anti-corruption fighters, lack the necessary operational and structural attributes to be called sufficiently independent to qualify as a body that is constitutionally compliant and capable of discharging the international obligations assumed in treaties that bind the country.The ruling means that unless the anti-corruption machinery of the state is of an independent nature, it is ineffective in the fight against political and high-level corruption.
The things that went wrong with the Scorpions should be treated as a learning experience, and steps should be taken to prevent any repetition of the excesses indulged in when elements within the Scorpions became feral.
Long suffering South Africans deserve nothing less than the best possible anti-corruption entity. Without it a failed state, corroded by the scourge of corruption, is our bleak future.
2012 the year for making accountability matter
Looking back at the year as it draws to a close is a tried and tested means of reflecting on progress made, set backs suffered and the things left over for the "to do" list of the year ahead.Proper self-regulation of the Press
There is a sharp difference of opinion between Wim Trengove SC, who has suggested judicial regulation of the press, and Raymond Louw, doyen of the South African press, who feels that self regulation is the correct and preferred path to follow.
Back in September 2010, IFAISA made representations to a task team reviewing the role of the press ombudsman, with a view to beefing up the way in which the press regulates itself. An edited version of the submissions made, follows.
They paved paradise and put up a parking lot
When the Noordhoek Farm Village was built, a neat and well loved vegetable patch was sacrificed on the altar of "progress". Subsequently, the Noordhoek Environmental Action Group (NEAG) took the owners of the Noordhoek Farm Village to court.
The case was heard in the High Court and Judge Dennis Davis issued an order on 19 February 2008 requiring the farm village to demolish and remove all permanent structures that it had put in place including all tar, asphalt surfacing, curbside construction and construction of the sign post in the corner.
As any visitor to the farm village can plainly see, the court order, to date, has not been complied with in any shape or form.
Skateboarding - what every parent should know
Every parent needs to know a few important facts about skateboarding. The City of Cape Town, like most big cities, has banned skateboarding on its streets. Prohibiting skateboarding has consequences. It is a criminal offence punishable by a fine or imprisonment or both.
Parents, who do have respect for the rule of law, should not wait for a tragedy to occur before getting organised and pressing for the accommodation of an activity which is preferable to substance abuse and dicing.
The cure for a wounded nation
Justice Malala deserves positive recognition, even accolades, for inviting Mamphela Ramphele onto his "Justice Factor" television show for the purpose of consulting the good doctor for a diagnosis of the ailments of the nation.
Ramphele expressed the view that the malaise which is holding South Africa back is the "woundedness" of its people. Her "woundedness of the nation" analysis is provocative. Helpfully, it posits that we are all wounded in different ways and will carry these wounds forward with us unless there is a concerted national effort to treat the injuries that have given rise to the wounds.
Limpopo and the Rule of Law
The ongoing spat between the Zuma cabinet and the Provincial Executive Council of the ANC in Limpopo has factional political dimensions which have hogged the news headlines. The crisis in governance in the province, is a matter for legal, rather than political analysis.
The founding values of the Constitution and, more specifically, the values and principles spelt out especially in section 195 of the Constitution are all but a dead letter in Limpopo and indeed elsewhere in South Africa. This makes complete and unfortunate nonsense of the last words of section 2 which says:
"This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled".
