Volume 7 No. 9
1 October 1996
- A look at events which made news in September
- Provincial Briefs
- Land claims flood in
- New housing project launched in Gauteng
- Prisons also need to fight crime
- Problems that lie behind taxi violence
- Take the gloves off, says security summit
- Court sends constitution back to the CA
- New constitution by ’97?
- Cosatu welcomes lock-out ruling
- A counsellor serving many constituencies
- Build organisation now
- What the proposed abortion law says
- Poet, premier and political activist
- The priest who wouldn’t go away
The death penalty
There was a survey which was conducted recently by a Johannesburg newspaper which asked its readers to share their thoughts on the death penalty.
A vast number of those that responded said they favoured the return of the death penalty. Sentiments like these, coupled with concerns about high levels of crime, have been used to urge the government to hold a referendum on the issue. After all, they say, isn’t that what democracy is all about.
Yet, would one find the same people urging a referendum on whether, for example, white South Africans should be denied the right to vote? The answer is simply, no.
These people would argue that the right to elect one’s representative in government is a fundamental human right regardless of one’s skin colour. A referendum to decide whether or not to deny some section of the population these rights would be wholly unpalatable to most South Africans.
The very reason that South Africa has a Bill of Rights, is to ensure protection of rights which are so basic and fundamental that they can’t be taken away simply by the wishes of a majority.
The right to life is one such right. As constitutional court president Arthur Chaskalson noted when the court rule that the death penalty was unconstitutional: “Everyone, even the most abominable of human beings, has the right to life.”
It is a right which even a majority of South Africans should not be allowed to take away.
The growing demand for the re-introduction of the death penalty is based on the perception that somehow it would curb crime in this country.
It is a demand, however, which is rooted in despair, not in reason.
And desperation is a poor motivation for any major constitutional decision, least of all one which denies people their basic human rights.
Reason tells us that it is not the lack of a death penalty which fuels crime. It is the social and economic conditions in which people find themselves, and it is the failure of the criminal justice system to operate effectively.
In fact, there is no evidence to suggest that the death penalty has any positive effect on crime levels at all. In their judgement last year, the eleven constitutional court judges were unanimous in their view that there was no proof whatsoever that the death penalty was an effective deterrent.
There was nothing to show that a decision to carry out the death sentence would have any impact on the behaviour of criminals, they said.
There are clearly certain interests that have much to gain by fuelling the clamour for the re-introduction of the death penalty. Parties like the National Party and Inkatha Freedom Party want to arouse people’s emotions to gain support – and to portray the ANC as out of touch with the views of the people. They want to offer ‘quick-fix’ solutions to people who are at the end of the tether, knowing full well that it will take several years to address crime effectively.
The ANC, together with all South Africans who respect human rights, should not buckle under to this pressure. They should continue to assert the correctness of their stance, and seek to win support for this principle.
That should not, however, preclude the ANC from re-assessing its position on the death penalty. Not in order to be swayed by emotions, but to test its position in a considered manner against the need to combat crime, while protecting human rights.
A look at events which made news in September
Guilty De Kock spills the beans
Former Vlakplaas commander Eugene de Kock was found guilty in the Pretoria Supreme Court on 89 counts, including fraud, conspiracy to murder and murder. Testifying in mitigation of sentence, De Kock pointed fingers at former senior police officials and several National Party politicians.
The charges against De Kock relate to the period during which he was commander of the notorious police unit based at Vlakplaas outside Pretoria. De Kock was found guilty in the killings of five men who were ambushed by police outside Nelspruit in 1992 and for conspiracy to murder Vlakplaas askari Brian Ngqulunga.
In his testimony, De Kock admitted to numerous operations by himself and his unit against the ANC and democratic activists. He named several former police generals, cabinet ministers and former presidents PW Botha and FW de Klerk as either having ordered or known about such operations.
Mandela new SADC chair
President Nelson Mandela formally took over the chairpersonship of the 12 nations Southern Africa Development Community (SADC) from Botswana head of state Quett Ketumile Masire, during a brief working meeting in Gaborone.
Also at the meeting was Mozambican president Joachim Chissano, who assumes the position of vice-chairperson following a SADC summit of heads of states in Lesotho in August, which elected Mandela for a three-year period. King Mswati III of Swaziland had been vice-chairperson for the past three years.
MPs reveal interests
Members of parliament were last month issued with Parliamentarians’ Code of Ethics forms. All members had until 16 October to fill them in. The public part of the register was to be published on 16 November.
The code was drawn up by a special parliamentary committee headed by water affairs minister Kader Asmal and approved by the National Assembly and Senate in August.
By this code, parliamentarians are compelled to disclose their financial interests which could have a bearing on their duties as public representatives.
South Africans detained in Angola
Eighteen South Africans were arrested in Angola on charges of working in diamond areas without official work permits and illegally importing mining equipment into Angola. Three members of the group allegedly also contravened Angolan aviation regulations.
The men, however, said that their papers were in order and that the Angolans were “after” their equipment.
The South Africans fell victim to a recent decision by Angola to crack down on aliens working in the country illegally. Several citizens from other foreign countries are also being held.
Awards for young offenders
Young offenders in South African prisons were being targeted to improve their skills in the President’s Award youth empowerment programme.
About 700 participants in nine prisons had enrolled for the award programme so far this year. This compared to 164 prison participants in 1995.
Many more were expected to enrol following the opening of Ekuseni, a village for young offenders near Newcastle in KwaZulu/Natal.
The award, with President Nelson Mandela as chief patron, is the largest nationally-based youth empowerment initiative. Its focus is on community service or service to help others, the building of self-reliance, attainment of skills and sporting activities.
SABC sell-off begins
The sale of a number of SABC radio stations began last month with the Independent Broadcasting Authority accepting bids for Highveld Stereo, Radio Jacaranda, K-FM and Radio Algoa.
The largest sale was Highveld Stereo, which was sold to Africa on Air for R320 million. Africa on Air is a consortium of Radio 702 owners, Primedia, the Women’s Investment Portfolio, the Mineworkers’ Investment Company and Sactwu Investment Group.
Radio Jacaranda was sold to Newshelf 71, a consortium controlled by New Africa Investment Ltd, for R70 million.
‘De Klerk, Gqozo to blame for Bisho killings’
Responsibility for the 1992 Bisho massacre rested squarely with the former Gqozo regime in Ciskei and the former government of FW de Klerk, ANC secretary general Cyril Ramaphosa told the Truth and Reconciliation Commission last month.
Presenting the ANC’s submission to a special truth commission event hearing, Ramaphosa said De Klerk’s government was the real power behind former bantustan leader Oupa Gqozo.
Ramaphosa said the evidence showed that there was a plan to trap the marchers.
“Subsequent investigations showed most of the dead and injured were running away from the unbridled attack on them rather than endangering the life or property of anyone in the Ciskei,” he said.
At least 28 people were killed and 250 injured when Ciskei Defence Force soldiers opened fire on ANC marchers outside Bisho on 7 September 1992. The march had been organised to demand free political activity and an end to state violence and repression in Ciskei.
The marchers had intended marching to an open piece of ground in Bisho, but found the road into the city blocked by razor wire. It was decided by the march organisers that a group of marchers should proceed through a gap in the Bisho stadium fence into the city.
Shortly after the group, led by Ronnie Kasrils and Chris Hani, had moved through the gap in the fence, Ciskei Defence Force soldiers began shooting on the marchers without any warning.
The shooting consisted of two sessions of automatic rifle fire. The first volley lasted for between one and two minutes and was followed by a second volley shortly afterwards, which lasted about a minute.
“There was no warning prior to the shooting. The unarmed crowd posed no threat to life or property and there was no excuse for the prolonged, violent and murderous attack by the Ciskei Defence Force upon them,” the ANC said in its submission.
The conduct of the Ciskei Defence Force on the day of the massacre was criminal, it said.
In the Northern Cape preparations for the provincial conference have begun in earnest. All of the province’s six regions have held their regional conferences.
The provincial conference takes place once every two years as stipulated by the constitution. Approximately 400 delegates are expected to attend. Representation will be proportional to the membership in each region.
The conference aims to ensure the efficient and democratic functioning of the organisation as it will be reflecting on the achievements of the past two years. The election of a new Provincial Executive Committee (PEC) will ensure the better carrying out of ANC activities.
The ANC in the Eastern Cape is focusing on preparations for the provincial conference to be held from 22-24 November at Fort Hare University in Alice.
All the 13 regions in the province will be holding regional councils in preparation for conference. It is expected that branches’ nominations for the PEC will be finalised at the general councils. It is expected that between 700 and 800 delegates will attend the conference.
The province is also preparing for the re-launch of the Masakhane Campaign in October.
A successful meeting between president Nelson Mandela, justice minister Dullah Omar, safety and security minister Sydney Mufamadi and religious leaders took place in Cape Town last month. Religious leaders agreed to form the core of the newly-launched United Front Against Crime.
One the objectives of the front is to revive the people’s trust in the criminal justice system and to allow them to become active within this process. This will allow ordinary people to act within the law in their fight against crime.
The Free State political education department held a series of workshops around the province last month.
The main aim of these workshops is to equip and sharpen the political know-how of grassroots membership. They are aimed at engaging comrades around key strategic debates taking place within the organisation and the country at large.
The media liaison unit in KwaZulu/Natal has successfully managed to make inputs into the running of both SABC radio and television to an extent that the SABC now calls monthly meeting with political parties in the province to discuss programmes and iron out differences.
The unit managed to persuade SABC to create a forum to discuss how elections were to be run and covered by the public broadcast. This led to the drafting of a Media Code of Conduct in June which was signed by the SABC, non-governmental organisations, church groups and political parties which were campaigning in the province.
The objective of the code of conduct was merely to ensure that reporters were reporting fairly and professionally without being intimidated and harassed by certain political parties.
Three regions in Mpumalanga – Badplaas, Ermelo and Nkomazi – submitted reports to the provincial office to be tabled at the provincial conference.
The Badplaas region said there was a need to develop second layer of leadership in the organisation. Therefore they resolved that a political workshop was needed. Ermelo suggested that programmes be immediately identified and implemented in rural areas which would make use of existing resources in the rural areas, for example diverting water from existing dams and tapping electricity from existing grids.
The Nkomazi region said they wanted branches to understand and define the government’s macroeconomic strategy.
Land claims flood in
Restitution of land to dispossessed communities is starting to pick up speed, as the claims mount, Mziwakhe Hlangani writes.
South Africa’s long-awaited land restitution process – just one part of the government’s land reform strategy – has taken a quantum leap forward, with about 9 000 land claims lodged this year mostly by black communities dispossessed of their land.
Department of Land Affairs’ land restitution directorate chief Glen Thomas expects the land restitution programme to be completed in ten years time. The deadline for land claims submissions is 1998.
Set up in May 1995, the Land Restitution office still experiencing capacity problems. It has started processing 30 land claims, 17 of which involve urban claims.
With the enactment of the Restitution of Land Rights Act in 1994 the restitution programme has become a constitutional requirement.
A commission whose primary role is to investigate land claims has been appointed. Its recommendations are referred to a land claims court.
The land claims court has a final say in any restitution claim, with the Department of Land Affairs acting as a respondent, since all these claims are brought against the state.
The commission, after satisfying itself on the validity of a claim, has to ensure it is gazetted and the stakeholders are notified to make their representations.
The land restitution programme is presently dealing with state land claims and privately owned land. On private land the departmental role differs in that its participation is limited to a third party ensuring a just and equitable compensation principle is followed.
“Our negotiating strategy is determined by the history of acquisition of that land and the claimants rights at the time of dispossession” Thomas says.
In terms of the constitution, the land claims court will look at whether the compensation is just and equitable, where there is no agreement between the state and current land owner on the price. In determining just and equitable compensation, the interim constitution ensures that no one is making a profit.
Explaining the complexities of land restitution, Thomas quotes a case involving the Northern Cape’s Majeng community, where white farmers bought land from the previous government below market value after the land owners were forcefully removed.
“Applying the just and equitable compensation principle provided in the constitution for the first time was challenged by the farmers. When the state paid the farmer for the land various factors were taken into consideration, like the history of acquisition, at what prices, what state loans, or soft loans and subsidies in particular, they received from the government,” he says.
Having taken all those considerations, improvements made on the farms were considered. But money gained because of the ‘soft loans’ were deducted in determining the market value at the time of the purchase.
Although the constitutional requirement of equitable compensation also ensures that farmers are not in a worse off situation, in this case there was no agreement reached on determination of the market value at the time of purchase. The case is to be finalised in the land claims court.
With regard to racist and repressive mass evictions of thousands of labour tenants, the government has already ensured that tenants have a right to the farming lands where they have stayed and worked. It is one important way of redress to the poor labour tenants who were rendered homeless by white farmers.
Thomas is optimistic that progress is being made, taking into consideration the complexities of the restitution process. Next year will see, it is expected, the implementation of restitution orders from the land claims court.
The land restitution directorate is now grappling with the problem of ensuring an effective communication strategy to reach out to the masses and empower them with information on restitution claims.
The main feature of the land restitution programme is to meet the objectives of reconstruction and development, he says. Looking back at the history of dispossession, restitution is one of the highlights of land reform. It is definitely geared towards the improvement of the livelihoods of those deprived communities. Land is a critical resource and an asset for provision of wealth, so getting their land back is also addressing questions of development and how to make land valuable to recipients.
A serious shortcoming in implementing land reform is caused by lack of commitment and willingness from other departments to make significant contributions, Thomas says. The department, however, has started working closely with other departments which provide basic infrastructure, like the department of agriculture.
To meet the ten-year deadline, Thomas cautions, land reform programme has to radically improve its pace in terms of acquiring skills and expanding its staff.
New housing project launched in Gauteng
The Gauteng government has launched a housing project which brings the state, business and communities together to build 20 000 new houses. Khensani Makhubela reports.
Housing in Gauteng is set to receive a massive boost which will see
20 000 houses being built in the province over the next three years.
The Gauteng government has worked together with a number of private sector partners to set up structures which will ensure the delivery of a substantial number of houses over the next few years, Gauteng housing MEC Dan Mofokeng said.
Mofokeng said the new housing in the province will take the form of well located housing with a variety of innovative financing mechanisms attached to their construction.
The developments will be known as the Gauteng Housing Projects and each development will consist of about 5 000 housing units, utilising 5 000 government housing subsidies each. The projects may be spread over different geographic locations in Gauteng.
The housing products will be financed by government subsidies, either on their own or backed by additional finance. The housing products that are built will match the affordability levels of the entire spectrum of beneficiaries who will utilise the government subsidy scheme.
“The project aims at facilitating the socio-economic integration of the province, and will seek to be well located from the perspective of employment opportunities and existing residential locations. They will contribute to correcting historical spatial imbalances, and will not be located in environmentally sensitive areas. Where possible the projects will be undertaken with a view to densifying housing in Gauteng,” Mofokeng said.
Agreements will be entered into between various stakeholders and the Gauteng MEC to ensure the existence of available land; the availability and approval of appropriate subsidies; the utilisation of sufficient building expertise and the existence of sufficient building capacity to cater for the scale of the envisaged development.
One of the two partnerships,which will be involved in the development of the three projects consists of RMP Properties Services, The New Housing Company, First National Bank and Grinaker.
First National Bank has established a new company called First National Community Housing Corporation, which has a target market of people with an income of less than R1 500 a month. Through this initiative loans of up to R10 000 will be available to any one person who would qualify under this programme.
“This innovative funding package has been designed to provide much needed loan funding to individuals who would not normally qualify for finance. In repaying this loan individuals are also given the opportunity to build up a much needed credit reference. The programme is aimed at providing finance to people in addition to the South Africa housing subsidy scheme,” Mofokeng said.
The enormity of the crisis in housing in South Africa requires bold and visionary action by both the state and private sectors, Alec Grants said on behalf of the private sector.
A stable public environment where the sanctity of contract was respected and obligations met by all parties was required for viable and sustainable development, he said.
He said he hoped this approach would go some way towards helping fulfil the government’s RDP objects.
Mofokeng said the success of the programme would be in the involvement of its partners. It is envisaged that apart from the housing developers; local authorities and communities will be central to the success of the programme.
Communities and local authorities will participate in deciding on the end product supplied by the housing developers, who will build show houses to facilitate the process. In addition local authorities throughout the province are compiling housing waiting lists to determine the extent of homelessness in the province.
Prisons also need to fight crime
South African prisons need to end criminal careers, not nurture them, writes Mziwakhe Hlangani.
South Africa’s prisons are struggling to effectively rehabilitate the thousands of offenders serving sentences in this country.
The chances that released prisoners relapse into criminal activities were high, South African Prisons Organisation for Human Rights (Sapohr) secretary general Miles Bhudu said. Offenders imprisoned for petty crimes often turned into hardened criminals, he said.
ANC correctional services study group chair Carl Niehaus said there were no reliable statistics available about the number of released prisoners who lapsed into criminal activity, but said the rate was high.
Out of 118 000 prisoners nationwide, approximately 27 000 are awaiting trial. At least 40 000 are probationers. Of the sentenced prisoners, 60 percent are serving sentences of six months or less. Fifteen percent are in prison for longer than six months, but shorter than two years.
“One can probably argue that the 60 percent of the prisoners who were serving sentences of six months or less have committed less serious crimes,” Niehaus said.
Bhudu made a strong appeal for cooperation between the government, business community, and political and human rights organisations in rehabilitating criminal offenders and developing them to become contributors to society.
It was unfortunate and extremely distressing that very few organisations were prepared to invest resources into the betterment and development of offenders, he said.
“The majority of the people in prison today were not arrested for violent offences. Their crimes were related to poverty and despair situations. It is this ineffective prison system that converted petty offenders into hardened criminals,” he said.
The correctional service system was not started to reform criminal offenders, he said.
Prison authorities still had problems with “any progressive and democratic structures that sought to change adverse prison conditions”, Bhudu charged. These conditions includes sexual abuse, labour exploitation, poor medical attention, racism, malnutrition, torture and abuse, he said.
“Until such time [as] support comes from the society, business and the government a to turn prison institutions into places of education, they will remain potential sources of perpetration of more crime, violence and more destruction,” he said.
Niehaus said there were already a number of halfway houses in operation in South Africa, coupled with rehabilitation and reintegration programmes for released prisoners and those on parole. “It is true that there are not nearly enough, and that much more work will have to be done,” he said.
A concern was raised that most released prisoners had nothing to motivate them after serving their sentence. Bhudu said that former prisoners were often not welcome in their community, and ended up in the streets without any accomodation.
In such depressing situations they would feel better off in prison, where meals and clothing were assured, than homeless, he said.
“Until such time we rectify the release and parole policy we will have the situation where the prison population will keep on growing and the government will keep on recommending the building of more prisons which will exarcebate the problems,” he said.
Niehaus acknowledged that the parole system had serious flaws, but said problems with overcrowding were not the only reason. He said the general lack of resources and bottlenecks in the courts often lead to a high awaiting trial prison population.
He said the system was under review and there were plans to ensure the system was fair and easier to implement. “One cannot simply insist that all prisoners should be released after serving half of their sentences. Placement of a prisoner on parole must depend on the nature of the crime that has been committed, together with behaviour in prison and whether one is deemed to have been rehabilitated. Under the new parole policy, it will be extremely difficult for people who have committed serious crimes such as murder to get early release,” Niehaus said.
Problems that lie behind taxi violence
Taxi violence is a symptom of broader problems in a troubled industry, Mziwakhe Hlangani writes.
Recent taxi-related violence, including the killing of two police officers in Soshanguve, has focussed public attention on the problems of this conflict-ridden industry.
Transport department chief director Dipak Patel said this violence needed to be addressed through the adoption of a holistic and integrated approach in resolving economic and service issues in the industry.
Conditions in the taxi industry had culminated in sporadic attacks, which were difficult to link to any particular groups. He said finding sustainable solutions to these forms of violence required that stakeholders in the industry acknowledged that it provided a daily essential service for more than 50 percent of the economically active population.
“Instead of a high-handed and irresponsible approach to resolving the impasse, it should conform with the need for sustainable transport, of higher quality, higher service standards, and a more reliable and safer [service] for our people,” he said.
Planned assassinations and hit squad activities should be dealt with in the context of safety and security measures. State organs involved should help the police to clamp down on this savagery, he said.
Patel said most problems related to the government’s difficulty in dealing with taxi violence were associated to broad problems of the transformation of the police and justice system.
In the national crime prevention strategy, taxi violence is a key priority.
A well-devised, three-prong strategy, including a new regulation and control framework, is in place. Restructuring and formalising training in the industry were also being considered.
Though the taxi industry is an important economic service sector, it has been historically neglected. Falling in the category of the disadvantaged business sector has complicated matters worse. Understanding those economic and political factors is critical to find sustainable solutions.
“The previous apartheid government had tried to smash, then tried to over-regulate it so that it would not grow and develop into a black economic sector. When all of that had failed, the same government turned a blind eye and allowed it to become a mess. It is an industry that has been used as a political toy in the past,” he said.
One reality that should be used as a starting point is that up to 50 percent of the industry is made up of illegal pirate taxis. Addressing that question should not mean the doors would be thrown open for entry in an industry which is already overtraded, he said.
A short-term solution is to acknowledge the existence of illegal operators, and locate them within a sound regulatory framework. For that reason, the regulation and control programme involves the legalisation of existing taxi operations.
The department’s basic conditions for legalising a taxi operator required a declaration by the association that one was a member, operating in a particular route for a certain period prior to October 1994.
One remaining challenge is with the existing piecemeal legislation, which has evolved over many years of different government policies. A new standard legislation is critical to ensure taxi operation was located within a broader policy framework for public passenger transport. The process will be finalised within a year.
On restructuring and transforming taxi associations into formal business structures, Patel pointed out that registration of taxi associations was urgent.
Numerous different taxi association and their break-away structures, were operating in terms of their own rules, with different constitutions.
Now that the government has reached consensus with the bulk of operators, the industry should be regulated with standard rules.
Patel said before conditional registration was granted, associations needed to register their constitutions. Taxi associations, in turn, were expected to agree to adhere to a basic standard constitution and certain basic grievance and disciplinary procedures.
The transport department has identified high profile projects with the aim of providing economic assistance to the taxi industry. These were intended to bring associations together along certain routes, both short and long distance.
Overcrowding in taxi ranks and overtrading was being addressed in the context of planning passenger services. The legitimate local government structures were developing either passenger plans or “status quo reports”on every single route around the metropolitan areas.
Patel also stressed that ownership of taxis and involvement of outside people and police was under consideration. Police commissioner George Fivaz has ordered the compilation of the complete list of people in police service who own taxis, he said.
Take the gloves off, says security summit
An ANC summit has said government needs to take the ‘velvet gloves’ off in the fight against crime, a correspondent reports.
A top-level ANC summit on peace and security last month recommended a number of measures to tackle crime in South Africa.
The summit, which was attended by ANC ministers, MECs, parliamentarians and members of provincial legislatures, was organised by the ANC national executive committee’s peace and stability sub-committee.
- Among the recommendations of the summit were:
- strong action against perpetrators of violent crime;
- public campaigns against the carrying of weapons in public gatherings;
- stronger arms control legislation;
- the appointment of a national investigation into corruption in the department of correctional services;
- the identification, exposure and disbandment of remaining ‘third force’ networks;
- the establishment of a task team to examine the regulation of private security companies;
- a special fund to fight crime;
- the creation of a special category of serious offences for which bail would not be granted.
The summit said the building of a peaceful and stable democracy in South Africa was hampered by the excessive prevalence of guns, both licensed and unlicensed, in the hands of citizens.
“The general message from the summit was that the ANC, as the majority party, has a particular responsibility to ensure the effective implementation of the National Crime Prevention Strategy (NCPS),” the ANC said in a statement after the summit.
The involvement and cooperation of all communities was emphasised as essential for the successful, practical implementation of the strategy. Communities were called on to mobilise to fight crime, but to do so with government and within the parameters of the law.
“Delegates emphasised that the time had come to act harshly against criminals, and that the velvet glove must be removed. It was however also emphasised that this must be done with due respect to our human rights culture and the various provisions of the constitution,” the statement said.
Court sends constitution back to the CA
The Constitutional Court’s decision not to certify the new constitutional text, means a bit more work for negotiators. A correspondent reports.
The Constitutional Court last month referred the new constitutional text back to the Constitutional Assembly, saying it was unable to certify the text the assembly had approved in May.
According to the interim constitution, the new constitution cannot come into effect until the Constitutional Court has certified that the new text complies with the 34 constitutional principles agreed to during multi-party negotiations in 1993 and attached to the interim constitution.
The court identified nine areas in the constitutional text which did not comply with the constitutional principles. It said the text failed to:
- recognise and protect the right of individual employers to engage in collective bargaining;
- assert the supremacy of the constitution over ordinary statutes, specifically the Labour Relations Act and the Truth and Reconciliation Commission act;
- specify “special procedures” for constitutional amendments;
- adequately safeguard the independence and impartiality of the Public Protector and Auditor-General;
- adequately safeguard the independence and impartiality of the Public Service Commission;
- differentiate between different types of local government, or specify appropriate fiscal powers and functions for each.
It further said that provisions of the constitutional text allowed a substantial reduction in the powers and functions of provinces, which was not permitted by the constitutional principles.
The court also rejected numerous objections to the constitutional text, upholding most of its provisions.
In his presentation of the judgement, Constitutional Court president Arthur Chaskalson said the constitutional text represented a major achievement.
“The basic structure of the proposed constitution is sound and the overwhelming majority of the requirement of the constitutional principles have been satisfied. The instances of non-compliance that have been identified should present no significant obstacle to the CA in formulating a text which complies fully with those requirements,” he said.
President Nelson Mandela said the court judgement helped to clarify issues that were vaguely formulated in the constitutional principles. “It will ensure that the final draft strictly adheres to both the letter and the spirit of those principles,” he said.
Addressing a media briefing after the judgement, ANC deputy secretary general Cheryl Carolus said the judgement, which acknowledged that more than 2 000 sub-clauses were within the requirements of the constitutional principles, was a tremendous tribute to all the political parties in the CA.
“It is our view that it would be counter-productive and retrogressive to begin to open for debate those provisions of the constitution that have passed the test of the court,” she said.
The ANC extended its compliments to the court for its intense scrutiny of the constitutional text, saying it reinforced the transparent and participatory culture that had characterised the constitution-making process.
The referral of the constitution to the CA also afforded parties the opportunity to correct a number of inadvertent errors that had crept into the draft, Carolus said.
New constitution by ’97?
The new constitution could be certified by the end of the year, if the Constitutional Assembly’s re-drafting programme goes according to schedule.
The Constitutional Assembly (CA) has to re-work those sections of the constitutional text adopted in May which the Constitutional Court found did not comply with the 34 constitutional principles contained in the interim constitution.
The CA said it wanted to finish the re-drafting by 11 October and submit it again to the Constitutional Court. This would allow enough time for the court to still certify the constitution this year, so that its implementation could start on 1 January next year.
The CA’s management committee agreed two CA sub-committees should convene on 24 September to start looking at the nine sections referred back by the court. The committee gave political parties until then to prepare their submissions.
Cosatu welcomes lock-out ruling
The Congress of South African Trade Unions (Cosatu) has welcomed the Constitutional Court ruling that an employer’s right to lock-out does not enjoy the status of a universally accepted fundamental human right.
“This finding vindicates COSATU’s position, which we have held since the earliest days of the constitution-making process, that there is no place for a lock-out in the Constitution of a democratic South Africa. The finding also decisively refutes the position adopted by business and the minority political parties that a lock- out is equal to the right to strike and that it should be included in our new Bill of Rights,” Cosatu said in a statement after the ruling.
The Constitutional Court’s finding that there was no need to entrench the right to lock-out in the constitution was a great and historic victory for South Africa’s working people, it said.
The court found that the section in the new constitutional text which gave the current Labour Relations Act special protection was not in accordance with the principles outlined in the interim constitution.
This section was included as a compromise to pacify business and their representatives in parliament. Business argued that the exclusion of the lock-out ‘right’ in the constitutional text would make the lock-out provisions in the Labour Relations Act unconstitutional. In order to a accommodate this concern, the LRA was protected from constitutional attack.
“In our view the removal of [this section] will not impact negatively on the interests of workers as the clause simply serves to protect that which is already protected under the LRA and other legislation,” Cosatu said.
Cosatu said it never campaigned for the inclusion of the section on the LRA: “We believed that the LRA is in compliance with the rights guaranteed in the Constitution, and therefore considered its protection from constitutional challenge by s241 to be unnecessary.”
Cosatu was concerned, however, by the implications of the court’s ruling that individual employers should have collective bargaining rights.
The constitutional text only provides for collective bargaining through employer organisations, but does not protect the rights of individual employers to collective bargaining. This was motivated by a desire to guarantee collective bargaining but not to undermine centralised bargaining.
“The Constitutional Court has held that this text does not comply fully with the constitutional principle that an employer’s right to bargain collectively must be protected and guaranteed in the Constitution. In giving effect to the Constitutional Court’s ruling the Constitutional Assembly must formulate the text in a way that does not undermine centralised bargaining. The Constitutional Court’s ruling must not be understood to remove parliament’s right to determine the levels of collective bargaining,” the statement said.
A counsellor serving many constituencies
Mavivi Myakayaka-Manzini now has the job of parliamentary counsellor to add to her tasks as MP. Khensani Makhubela spoke to her about the challenges.
“Women should be in key positions to play an important role in the decision making of this country, not as statues or part of affirmative action,” says Mavivi Myakayaka-Manzini, deputy president Thabo Mbeki’s newly-appointed parliamentary counsellor.
Manzini was part of the committee that set up the Commission for Gender Equality. The commission is intended to promote gender equality, and advise parliament or any legislature about laws which affect the status of women.
She is now chairing the parliamentary committee which is looking at nominations from members of the public for the commissioners of the commission.
Myakayaka-Manzini has worked with women as early as 1977. She was a member of the ANC’s Women’s Section and became its regional secretary in 1979. After completing a degree in political studies, she worked full time for the women’s secretariat on Voice of Women on Radio Freedom in Zambia.
When Myakayaka-Manzini came back from exile in 1990, she worked at the Centre for Applied Legal Studies at Wits on gender research. “This research was aimed at issues affecting customary law, and through the findings we were able to set up the Women’s Coalition, that established a basis for broad unity on which women could build,” she says.
The gender issue is broad, she says. The ANC was struggling on the issue of liberation and women’s emancipation. But it was able to come up with the policy that said, ‘you can not be liberated while women are not emancipated’.
Myakayaka-Manzini was a member of sub-council on the status of women in the Transitional Executive Council and during the negotiating process she spent sometime promoting gender issues at the World Trade Centre.
“The fourth world conference on women in Beijing was a landmark for women. It is moving away from the platform which it began with, and it is now concentrating on the poorest of the poorest women. These are rural women who have never been given a voice to talk for themselves,” she says.
Myakayaka-Manzini says that our constitution is very sensitive towards gender issues. And our government has been aware of issues affecting women in South Africa. Most ministries are implementing the platform of the Beijing Conference.
The obstacles surrounding women issues are to reach out to all women
in the country. Myakayaka-Manzini says it is up to women to work out a strategy on how to reach out to women and how to tackle the problems of women “because we have a government that is supportive and concerned about women issues”.
Myakayaka-Manzini was this year appointed parliamentary counsellor in the deputy president’s office. Her work involves attending parliament and committees on behalf of the deputy president, as he is not always available to attend these important meetings. She liaises with the deputy president on what he has to account to parliament on.
“It is challenging that I have to take part in everything that the deputy president does and at the same time I am still attending parliament on the issues affecting women,” she says.
She says her two years in parliament were also challenging because everybody was faced with the challenge of transforming parliament. And as women they had to make sure that they were not left out.
“It was also a period of many policies laid down by government, and we had to make sure that all of them will take care of women,” she says.
Myakayaka-Manzini does not forget her constituency. She links up with her constituency on the activities taking place in parliament. She says she keeps in touch with her constituency because it is the voices from outside that keep the parliamentarians going. If they did not know what is happening outside then they would not come up with meaningful decisions in parliament. She does not deal with her sectional constituency but with all the constituencies that find her useful.
Although Manzini feels that women are fairly represented in government, she feels that a 50 percent representation will be more satisfactory.
Build organisation now
The ANC’s political education department has begun a training programme to strengthen branches throughout the country, a correspondent writes.
Our democratic transition has thrown up many challenges and possibilities. The challenges are both political and organisational. At a political level, the challenge is to provide overall political leadership to ANC members, the democratic movement and society. The organisational problems we are experiencing need political intervention. The recently-formed political education department sees its role as that of facilitating political debate and discussion within the movement.
The deployment of capable cadreship to national, provincial and local governments has left an organisational void. The challenge is to strike a balance between governance and building the ANC as an organisation that can sustain itself as a political vehicle for change. The department of political education has embarked on the programme to reintroduce the tradition of political engagement.
The last few months have seen an upsurge of political discussions at all levels in the movement.
The department has embarked on a broad programme of political education and cadre development. The programme has many elements to it, ranging from provincial seminars, provincial executive committee bosberaads and the training of members of branch executives. The key political debates are around the state of our national democratic revolution and the recently released macro-economic framework. These documents have sparked off vigorous discussions among branches and the leadership.
Branch Executive Training Programme
The branch executive committee (BEC) training programme has been the most in-depth training thus far. The targets of the BEC training are branch chairs and secretaries. The aim of the training programme is to enable branches to develop a clear programme of action for 1996/7.
By November, the political education department would have completed running more than 40 workshops in different regions that would have been attended by about 5 000 grassroots ANC leaders.
By August, about 2 000 leaders had attended workshops. Comrades that have attended these workshops were very enthusiastic about the training. The workshops addressed organisational problems faced on the ground and helped to clarify the way forward. The workshops pointed to the branch as the primary organ of the ANC. The future of the ANC lies in the strength of the branch as a democratic organ of the ANC. This process ensures that ANC members participate in decision-making and policy formulation processes. The workshops addressed ways of making the ANC a force for change and development.
The training combined political discussions on the state of the national democratic revolution and challenges facing the ANC at a grassroots level. Planning of campaigns, programmes of action and skills training were part of the branch training programme. Branches also focused on their role in development and delivery and how the needs of their communities could be met.
The programme of action and workshop content was developed through a number of events hosted by the department, starting with a National Working Committee workshop and a National Cadre Development Workshop where the key papers were presented and discussed. In July all regional organisers attended a national workshop to further discuss the programme of action and its implementation. In each province a PEC bosberaad was also held to discuss the provincial challenges and programme.
The political education secretary together with the provincial secretary are responsible for the smooth running of the workshops. These workshops focus on four key tasks for branches:
- running the Masakhane, anti-crime and other local campaigns;
- meeting local development needs and setting up local development forums;
- building efficient and accountable local government;
- strengthening branches.
Nature of training
During the national and local government elections, we used rolling mass training to train our structures for election purposes. The focus of these workshops is very much political. The significance of the workshops lies in the fact that they dealt with the work and problems of the branch. the problems they face. The training of the branches is taking place within the context of the general ANC programme of action. The BEC training is therefore an important part of cadre development at local level.
The close involvement of the Organising Department and the provincial leadership will ensure that the follow-up and support that branches will need will be provided for by organisers and in political forums like the general councils. A 24-page manual called “Let’s get organised” is used in the training and is given to branch leadership as a resource for their BECs.
Trainers and leaders who have attended the workshops have also been very impressed with the level of activity and the depth of politics at branch level. Although many branches have struggled to find a clear direction after the elections, the fact that we are now in power in local governments all over the country has added a new dimension to our political work. At national and provincial level the ANC has to take these new challenges very seriously. It is imperative that BECs are given the support and advice they need from the staff and leaders in the ANC.
What the proposed abortion law says
New abortion laws are currently before parliament. Khensani Makhubela explains the measures they propose.
The new legislation to introduce legal abortions was approved by the cabinet in July this year, and is currently before parliament.
The Termination of Pregnancy Bill is motivated by moral, ethical and medical considerations which argue that abortions should be taken out of the backstreets and backyards and into hygienic and properly-run clinics.
Even before the bill was approved thousands of women each year underwent illegal abortions, and many died because of unsafe procedures, sometimes performed by people with little medical knowledge.
The bill’s primary object is to provide for the termination of pregnancy on demand up to the twelfth week of pregnancy and thereafter in certain circumstances. It is proposed that a medical practitioner or a registered midwife who has undergone the prescribed training be permitted to terminate a pregnancy during this period.
After the first 12 weeks of pregnancy it is proposed that only a medical practitioner be permitted to terminate a pregnancy because of the complicated procedures involved.
The bill provides for the following circumstances in which a pregnancy may be terminated after the first 12 weeks of pregnancy up to 20 weeks of pregnancy:
if a medical practitioner is of the opinion that the mother or the child could be at risk for physical or mental injury or that the child would suffer from physical or mental abnormality;
if another medical practitioner or registered midwife who has undergone the prescribed training is of the opinion that there would be risk of injury to the woman’s health;
if a social worker is of the opinion that the economic or social conditions of the woman would be adversely affected or that the pregnancy resulted from rape, an incestuous relationship or sexual abuse.
The bill also says a pregnancy may be terminated after the twentieth week, if a medical practitioner is of the opinion that the woman’s life would be in danger or that there would be malformation of the foetus.
The surgical termination of a pregnancy may take place only at a facility designated by the health minister. The procedure for the termination of pregnancy shall be on the same scale of benefits as other surgical procedures.
Counselling before or after termination of a pregnancy may be provided or facilitated by the state.
The consent of a woman’s partner or husband will not be required before a pregnancy is terminated. A minor will be advised to consult with her parents, family members or friends, provided that a termination of pregnancy will not be denied if the minor chooses not to consult.
No person will be under any legal duty to participate in the termination of a pregnancy to which he or she has a conscientious objection.
Any person who terminates a pregnancy in contravention of the act, prevents the termination of a pregnancy or obstructs access to a facility for the termination of a pregnancy, or fails to notify a medical practitioner or registered midwife will be guilty of an offence and face a fine or imprisonment, or both.
Poet, premier and political activist
Northern Province premier Ngoako Ramathlodi struggles to find time to write poetry. Khensani Makhubela found out why.
It is on Monday morning when I enter Ngoako Ramathlodi’s office. Our appointment is due for 8.30, but his private secretary tells me that he will see me a little bit late because he is in the meeting with Mpumalanga premier Mathews Phosa and the meeting has taken longer than expected.
When he finally attends to me his face is beaming. He can’t help thinking of the meeting he had with Phosa. It was a successful meeting about the Maputo Corridor. The Maputo Corridor aims at stimulating the South African and Mozambican economies. The meeting has confirmed that the project is almost off the ground and Ramathlodi is happy that his province is taking part in the project.
The Northern Province government has spent the better part of the last two years unravelling the administrative and structural mess created by the apartheid system.
The province had to deal with fragmented and crumbling administration. With no fewer than four former homeland administrations to absorb, the Northern Province was not guaranteed an easy task. It had to bring together the former administrations of Gazankulu, Venda, Lebowa and parts of Transvaal Provincial Administration.
“Government in the province had semi-collapsed when we took over in 1994. And the mismatch between the size of the population and available resources in the province is one of its many developmental challenges,” Ramathlodi says.
Despite these challenges the province has several notable achievements. “There is impressive economic growth raising at 5,8 percent a year since 1994. We have begun to pursue the objectives of Reconstruction and Development Programme by addressing the question of water, electricity, health and education,” he says.
The province has plenty of potential for development. “Tourism is a money spinner of the province. The province has a well developed tourist infra-structure and capacity with world-renowned game parks, hunting opportunities and a favourable sight-seeing climate,” he says.
“We want the province to be self-sustainable. It can become the gateway to Africa with an international airport in Pietersburg. We have opened discussions with Zimbabwe, Botswana and Mozambique on a project of bringing our resources together. This is an intelligent way of boosting the economy of the province as well as the neighbouring countries.”
There is wealth of minerals in the Northern province that include diamonds, phosphate, copper, platinum, antimony, iron ore and chromium. It also has fertile agricultural areas with plentiful water supply to grow a wide range of sub-tropical fruits, nuts, sisal, tea and coffee.
Because of the low crime rate in the province, it has started attracting foreign investors. There is a provincial marketing body, Great North Marketing, a joint venture between provincial government, local governments, private sector and communities, focusing on agriculture, mining, eco-tourism and international marketing.
The Northern Province has a high rate of illiteracy. Ramathlodi says the province has started investing in education to fight illiteracy. The province has shown a great improvement in health service. Over 80 percent of children under five years have been immunised. Mobile health services which had almost collapsed in the past are now functioning. An audit of all 43 hospitals and 23 health centres in the province had been completed and new equipment had been recently acquired for most hospitals, Ramathlodi says.
As ANC provincial chairperson Ramathlodi maintains a well defined organisational status inside and outside government.
The Provincial Executive Committee meets regularly to make sure that the organisation implements its own policy strategies and is well positioned to determine the agenda of the provincial government.
“There is a lot of consultation between the PEC and members of the legislature. Communication is very important and that’s what moves us forward in our province,” Ramathlodi says. He says this does not only apply to the people within the organisation, but it applies to everyone who is concerned.
The province has appointed a committee to review the deployment activists. The committee has reviewed the role of each ANC leader in the government, provincial, regional and branch level of the organisation.
Some activists who were posted in parliament or provincial legislatures are now being assigned responsibilities in the organisation. Ramathlodi tries to ensure that the ANC and government engage in regular discussions that will help develop the province.
Ramathlodi has a very hectic schedule. He is supposed to be off on Mondays but he attends to emergency meetings, interviews and to people who want to discuss any concern they have.
With his hectic schedule Ramathlodi still finds time to write poetry. At school, fellow students worshipped him for his poetry. He found that without realising it he had become a political figure and not just a poet.
The priest who wouldn’t go away
Father Michael Lapsley, it is said, is either deeply disliked or deeply loved. Steyn Speed reviews a book about his life.
Michael Worsnip’s biography of Father Michael Lapsley is as much a story about the activist priest’s life as it is about the debates and difficulties which Christians involved in the struggle have had to grapple with.
The book devotes much time to exploring the theological debates in which Lapsley engaged, and the motivation for his membership of the African National Congress.
The book describes Lapsley’s disfigurement from a letter bomb attack and subsequent recovery as a symbol for the suffering and healing of the South African people.
Michael Lapsley was born, in 1949, the year after the National Party came to power. Unlike most of his comrades in the liberation struggle, however, Lapsley was born far away from South Africa – in Hastings in New Zealand.
His first contact with South Africa was through the writing of another Anglican priest and anti-apartheid campaigner, Trevor Huddlestone. Lapsley arrived in South Africa in 1973 to study at the University of Natal.
The book doesn’t say what motivated him to come to South Africa, but it does describe the experiences that compelled him to stay. It also describes how the South African situation forced Lapsley to reconsider his pacifist stance. Lapsley became increasingly critical and vocal of the apartheid government and its use of repressive violence.
In a speech in 1976, Lapsley said: “The irony is that if I suggest to black people that they shouldn’t use violent methods to try to achieve change, I am acting as a loyal and responsible South African. When I suggest to white people that they shouldn’t use violence to prevent change, I commit an act of terrorism.”
In the same year, Lapsley was deported from South Africa and prevented from taking up South African citizenship. He went to Lesotho, where he worked at the Lelapa la Jesu Seminary. Lapsley’s work and relatively high profile among the ANC exile community made many of his superiors in the Anglican Church in Lesotho uneasy. The SA Defence Force raid on ANC houses in Maseru in December 1982 prompted them to dismiss Lapsley from his post – supposedly because his presence constituted a danger to the seminary.
Lapsley then went to work at the Mbare parish in Harare, Zimbabwe, where his political views seemingly earned him the wrath of the Bishop of Harare. After a drawn out and acrimonious war of words – which included a legal battle – Lapsley went to work with the Lutheran World Federation, still in Zimbabwe.
On the evening of 18 April 1990, Lapsley was preparing to leave for a new parish in Bulawayo when a parcel he had received from South Africa exploded in his hands.
Lapsley lost both his hands and an eye. The bomb took out the ceiling of three rooms of the house and made a huge hole in the floor. It splattered bits of his flesh on the walls and the doors. The bombing occurred two days before the meeting between the ANC and the NP government which produced the Groote Schuur minute.
After a period of recovery, much of it spent in Australia, Lapsley returned to South Africa. Again he had to negotiate with the church hierarchy, this time over his ANC membership. A compromise was reached whereby Lapsley would commit himself not to publicly associate with the ANC, while he would not have to “foreswear” his ANC membership.
Lapsley was then offered a position at the Trauma Centre for Victims of Violence and Torture in Cape Town, where he still works.
The book is written by a person who knows Lapsley well, and contains several personal anecdotes and experiences. The writer, Michael Worsnip, therefore treats his subject with an understanding and compassion which one would not always find in other biographies.
He describes Lapsley as a stubborn, passionate and very principled person, who has a keen sense of humour. Worsnip recalls the first time after the bombing that he had a meal with Lapsley. As nonchalantly as he could, Worsnip writes, he leaned over and cut Lapsley’s food into ‘bite size’ pieces.
“After a while, Michael looked down and said ‘Why are you doing that to my lunch?'”
The book tends to dwell a bit too much on the detail of Lapsley’s wranglings with his superiors in the church, dedicating several pages to the sequence of correspondence between Lapsley and various church figures.
This can get quite tedious if the reader is not particularly interested in church procedure and protocol.
There is also extensive use of footnotes in the book, referring to different documents and interviews. While this might be useful to someone using the book as basis for academic research, it is quite disruptive for someone who is just looking for an illuminating read.
On the whole, however, the book is a compelling and insightful account of the trials, tribulations and ultimate triumph of an intriguing figure in South Africa’s recent history.
Michael Lapsley’s strength, Worsnip suggests, is that he would not go away. He insisted on reminding those who seemed comfortable with the status quo, that poverty and oppression did exist and had to be noticed.
“Michael’s life and present disfigurement throws into sharp relief for everyone, the things they would rather avoid. It would be easier if we who are fully limbed never had to deal with other without. Life would be considerably more agreeable if poverty did not exist, or starvation never threatened or squatters never squatted… He is a symbol, whether he likes it or not, and whether others like it or not, of the suffering of the people of South Africa…”
But symbols, as the book so vividly demonstrates, are also people too.
Title: Michael Lapsley: Priest and Partisan
Author: Michael Worsnip
Publisher: Ocean Press
Distributed by: Phambili Agencies