He must be tired, poor chap, delivering several speeches a day to drum up investment and support for SA.
But why, oh why, did he say there are no farm killings? He cannot have meant it, but the damage is done. Social media is frantic over the matter. Our President has screwed up.
In the 1:23 minute-long clip, Mr Ramaphosa tells the journalist that ‘there are no killings of farmers or white farmers in South Africa’ and ‘there are no land grabs in South Africa’.
Both of Mr Ramaphosa’s statements are untrue.
Data produced by the South African Police Service shows that 62 farmers and farm workers were murdered in the country in the 2017/18 financial year. The same police data shows that 353 such murders occurred since 2012/13.
An analysis published by Dr James Myburgh, editor of Politicsweb.co.za, showed that the murder rate for commercial farmers and their families in South Africa was far higher than the national average. According to that analysis South Africa’s average murder rate was 34 per 100 000 in 2016/17, while that of commercial farming households was 52.8 per 100 000, and 108 for farmers.
IRR analysts have also demonstrated that a simple media scan will offer up examples of violent land and farm invasions across a number of South Africa’s provinces, including the Free State, Western Cape, and KwaZulu-Natal.
Mr Ramaphosa’s denial of farm killings and land invasions comes as his government is under growing pressure to abandon threats to seize private property without compensation. Those threats have done much damage both to foreign and domestic investor sentiment and contributed to tipping the South African economy into recession.
The IRR has long advocated for property rights to be extended to all South Africans and has lobbied the South African government to support emerging black commercial producers by providing them with title, cheap financing, and proper extension services.
IRR CEO Dr Frans Cronje said: “Mr Ramaphosa’s comments are offensive to the victims of farm murders – black and white – and to the millions of South Africans who live with insecure title to the properties they occupy.
“Retreating into the realm of fiction will not help to break the political and economic impasse that has been triggered by the government’s attempts to dilute property rights.
“What is necessary is to face the hard facts that the policy of expropriation without compensation has been a political and economic disaster, and to abandon that policy and replace it with new and effective models of land reform that secure and expand the property rights of all South Africans in order to stabilise the economy while at the same time ensuring that proper restitution takes place”.
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The stimulus package announced by the government today does not address the deeper reasons for South Africa’s economic malaise and will fail in positioning the country as a competitive emerging market.
The IRR has shown that emerging markets are set to achieve rates of economic growth of just under 5% this year and over 5% next year. By comparison, South Africa will grow at a tenth of those rates this year, while the government is forecasting GDP growth rates of under 2% of GDP next year.
The success or otherwise of any policy framework or stimulus package must be the extent to which it will allow South Africa to compete in time with rates of growth similar to those of comparable emerging markets – any lesser standard sells South Africa short.
What was announced today is vacuous in the sense that it fails to address the deeper policy underpinnings of South Africa’s sluggish economic growth. There was nothing fundamental on labour market reform, nothing sound on empowerment policy reform, no moves of any significance on education policy, and far from adequate assurances on property rights.
The broader policy environment central to the present crisis remains essentially unchanged.
The package announced today is more PR than actual stimulus and you cannot have a stimulus package without accompanying policy reforms.
This means that many of the internal contradictions in government policy remain unresolved.
The contradictions are numerous and absolute. The government wants to crowd domestic capital in but continues to threaten the security of that investment. There are demands for jobs maintenance and growth but also higher wage demands without any prospect of a more highly skilled workforce.
The deepening debt and deficit crises are matched with assurances that there will be no significant austerity measures in the civil service and parastatals. Spending promises on infrastructure in turn contradict the fiscal position.
Assurances that the private sector may plug the gap is contradicted by the fact that the policies that frighten investment away have been left essentially unchanged. Mining policy changes continue to place unnecessarily onerous conditions on mining investors. Skills deficits are set to be addressed but without removing demographic representivity edicts.
It just does not hold together and the stimulus package will therefore fail, as much as anything else, under the weight of its internal contradictions.
The stimulus proposals are also in the main out of touch with what polling shows South Africans to want.
Priority issues identified by recent IRR polling include jobs, better education, and higher levels of security. These demands could best be met by:
· securing property rights; · deregulating the labour market to price the poor into jobs; · repealing current empowerment rules and edicts and replacing them with a new empowerment policy framework that focuses on socio-economic disadvantage and rewards investor contributions to job creation and fixed investment; and · allowing communities to take back control of schools and police stations from politicians and bureaucrats.
Frans Cronje is CEO of the SAIRR
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They kept journalists outside for a while as they were preparing for President Cyril Ramaphosa’s announcement of his new stimulus package. Was it so they could install the smoke and mirrors?
While it may be fun to go for kinky stimulation with both hands handcuffed behind your back, it is more difficult to kick-start an ailing economy without much cash to help you.
We were told there will be R50bn, taken from underperforming programms and focused on agriculture, the township economy and rural areas.
The IDC is being told to boost its spending by 20%. There was talk of helping the ailing clothing and textiles sector.
The other big spending mechanism will be a R400bn Infrastructure Fund, with cash coming from several sources, including pension funds and bonds.
Said the President: “The private sector will be invited to enter into meaningful partnerships with government in this fund.
“The contribution from the fiscus towards the Infrastructure Fund over the medium-term expenditure framework period would be in excess of R400 billion, which we will use to leverage additional resources from developmental finance institutions, multilateral development banks, and private lenders and investors.”
There will also be efforts to improve the efficiency of municipalities, to relax visa red tape, to open up the spectrum so data becomes cheaper. The new Mining Charter was also described as a stimulating measure, although this might not be the view of all in the mining industry.
The President said the success of his new stimulus package can be measured in higher growth and more jobs.
We shall see.
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The Metals and Engineering Indaba in Johannesburg (Thursday) saw an unusually forceful attack against the government for failing to engage with business, accompanied in turn by attacks on business for failing to do more to speak out against corruption.
Kaizer Nyatsumba, the CEO of the SA Steel and Engineering Industries Federation (SIEFSA), led the charge, with a fiery blast against the President, his Deputy, and Trade and Industry Minister Rob Davies – saying he had “struggled” to get them to come along to the event.
“We are deeply concerned we have not seen a higher level of commitment from dti and the Presidency itself. They waited until the 11th hour to inform us they will not be joining us,” he complained.
“We are deeply concerned when elected officials do not take this sector seriously. In the past, some at the dti have wanted to lean on us to exclude members of the opposition from the programme.
“I have been deeply alarmed at such conduct. Some people in this ministry (the dti) tend to see themselves as deployed party apparatchiks. Not once in 4 years have we had the dti minister or the Director-General.”
He said that because of low backing from the ANC, DA leader Mmusi Maimane would instead be closing the conference.
He noted that there has never been an annual Mining Indaba without the presence of the Minister of Minerals and Resources.
“We need a serious change in attitude from the dti – and the provincial government to the metals and engineering sector,” he warned.
Ann Bernstein from the Centre for Development and Enterprise said “SA needs a new attitude to the role of business in national development; there is a pervasive anti-business sentiment in Government. This narrative has to change.”
But she also warned that business leaders have a vital role to play.
“At the moment they seem to be missing in action. I commend Kaizer Nyatsumba for being honest about the complete disdain politicians show to business.
“Organised business has said almost nothing in public about the budget and budget-busting wage settlements. Or the ANC’s efforts to amend the constitution. Where is the voice of business? We are concerned about business silence?
“The President is mainly subject to pressure from the bad guys. Business has failed to make a compelling, public case for higher prioritisation of economic growth – for key reforms to accelerate growth.
“Organised business has to be the voice of growth. Failure to do so in recent months is a wasted opportunity.
“Business leaders must play a strategic and public role to ensure we do not implement policies that will undermine investment, growth and jobs.”
Massmart and Aspen chairman Kuseni Dlamini said: “Business leaders should lead the charge and invest in our economy. We also need to embrace productivity in the marketplace.”
The call for business to be more outspoken was echoed by OUTA CEO Wayne Duvenage.
“We believe business is missing in action. They need to stand up more often. We see the Carbon Tax being pushed through. There is so much silence,” he warned.
“We need to be firm in standing up to the government. The government has a bullying approach to civil society. OUTA turned to the public and we receive funding of R4m a month. It is sad we have to say: where is business? Why are they leaving this work to civil society?”
Public Enterprises Minister Pravin Gordhan had been invited to participate with Duvenage in a discussion on corruption but did not attend.
Duvenage called on organised business to step out of the shadows.
“Industry associations are not doing enough. Government leans on them and they keep quiet. They should go and light some fires,” he said.
“Business says to us: we love the work you do, but we don’t want to cross swords with government.”
Meanwhile, Duvenage also called for auditing firms to be tougher with their clients in rooting our corruption.
“We would like to see auditing companies putting their foot down with business. To say: we want to look at corruption within your business. How much business do you do with governments? Show us the contracts: what are the facilitation fees? The auditing firms should find that stuff,” he said.
“If the auditing industry says there is a new normal, we will see more courage, and more boards asking for help to root out corruption.”
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A commission of inquiry into corruption in South Africa is underway. How it goes about its work, and delivers on its mandate, will have profound constitutional and political consequences. This is more so because it is clear that deposed former President Jacob Zuma, who is at the core of the allegations, has launched a fightback campaign that can undermine President Cyril Ramaphosa’s efforts to clean up government.
The remit of the commission, which is headed by Constitutional Court Deputy Chief Justice Raymond Zondo, is to establish the extent of what’s become known as “state capture” by rogue elements in government. Its findings will reveal how the country’s democracy was so imperilled within two decades of its founding election in 1994. It’ll also help ensure that the necessary remedial action is taken to prevent a repeat.
South Africa needs to find out how Zuma and his cronies, the Gupta family, were able to exploit weaknesses in the country’s governance system.
To perform its role effectively, a judicial commission must act as an inquisitorial inquiry whose job is to find out what happened and why. This requires it to refrain from acting like a normal (adversarial) court of law. The commission isn’t a substitute for criminal prosecution or, for that matter, civil litigation.
The commission’s job isn’t to track the flow of funds or any money-laundering machines. That will be the job of the criminal courts, as and when they get the chance.
Instead, Zondo should grapple with the politics of state capture. He needs to get under the skin of the politics of state capture; to get on record why and what happened; and to make clear findings of political accountability. Speed is of the essence. He needs to move fast enough that the commission maintains momentum and does not allow Zuma and other implicated parties to get out ahead of it, or to seek to tilt public opinion in their favour.
The urgency is underscored by reports that Zuma is plotting with others against Ramaphosa.
Process and powers
To evaluate the commission’s progress, it is important to keep in mind its terms of reference and its powers. What can Zondo investigate and what can the commission do about whatever it uncovers?
Firstly, its terms of reference are deep, but narrow. Seven of the nine elements of the terms of reference refer directly to the Guptas’ or Zuma’s interference with government decision-making and procurement. The remaining two invite a broader inquiry into state procurement.
So the terms of reference are essentially confined to the Gupta family and its relationship with the democratic state – from the presidency and the cabinet, down through state agencies and state-owned enterprises, and down deep into the executive arm of government.
In digging for the truth, those responsible for what happened will – or should – be identified by the commission so that they can be held to account.
But what powers does the commission have to take remedial action to address any wrongdoings it uncovers?
Very little. Certainly, far less than people seem to think. The commission’s task is to investigate and report back to Ramaphosa, which may include recommendations.
These recommendations are not, per se, binding. The commission is essentially a fact-finding mission and does not have the power to make orders.
So the report could say, for example, that criminal activity has been committed, and the commission may refer the matter for prosecution or further investigation.
But, the prosecutorial authorities don’t have to wait for the conclusion of the commission process. Indeed, they should be following the proceedings closely and initiating action wherever it suggests that criminality may have occurred.
Uncertainty about this point has led to some procedural confusion during the opening fortnight, particularly around whether those implicated would have an opportunity to cross-examine.
Unfortunately, Zondo let the matter fester unnecessarily before finally ruling on September 11. He had little difficulty dismissing the application of the Gupta brothers on the basis that they are, in essence, fugitives from justice who are unwilling to come back to South Africa to give evidence to the commission. In the case of Zuma’s son, Duduzane Zuma, he granted the application to cross-examine.
This may be justified. But it may also be a red herring. The best commissions of inquiry are those with strong “counsel for the inquiry” who don’t just lead evidence of one side of a story, but who test the evidence as they go along, adding to its weight and credibility, in pursuit of a robust version of the truth.
High stakes
There are anxieties about Zondo’s pace. It is worth remembering that this commission derives from the report on state capture by former public protector Thuli Madonsela. Because she had had neither sufficient time nor resources to complete her work, appointing a judicial commission of inquiry was the remedial action that had to be taken.
Madonsela wanted the commission to complete its work in six months. It was a rather optimistic target. But it wasn’t entirely unreasonable provided that the commission focused on the narrow scope set by the terms of reference, and organised its procedure in a lean and equally focused manner.
Zondo has asked for an additional two years. It very far from clear why he needs so long and has led the lobby group, the Council for the South African Constitution, to join the court proceedings to object to any extension.
Regardless, the commission needs to act as swiftly as it can. South Africans are being reminded daily that Zuma may have left office, but that he still is capable of muddying the waters. If it focuses efficiently on its core task, and evidence of the political conspiracy that underpinned the state capture project is adduced and tested, the proceedings of the commission may serve to keep a lid on Zuma’s fightback campaign.
The stakes are very high for all concerned – for Ramaphosa’s political future, and for the country he leads.
The dangers of plastics, and more specifically microplastics, is increasingly grabbing the world’s attention. A growing body of research shows that plastics and microplastics in the marine environment are having a devastating effect on life in the sea. The impact has been tracked particularly closely in laboratory setups where conditions can be managed and effects monitored.
Microplastics are generally understood to be pieces, particles, or fibres less than 5 mm long. They have three major sources. The first is when large bits of plastic break down into tiny pieces not clear to the eye. The second is when fibres are shed from fabrics during use and washing. And the third is microbeads. These are also tiny and are manufactured to be used in products ranging from tooth paste to facial scrubs, and sandblasting.
The use of plastics has become ubiquitous over the past 50 years. Most consist of stable polymers that have lots of useful properties. They are light in weight, strong, pliable and can be made into many different forms. And by combining plastics with a range of additives, products can be dramatically changed. This extends from colour to hardness and pliability.
This means that they can be used in a host of innovative ways including affordable food protection and packaging, piping, ropes and netting, construction materials and windows. But, in most cases, products made out of plastic have a long durability and often outlasting their utility. They eventually become waste and enter the environment.
A great deal of research has been done on the effect of microplastics on marine life as well as fresh water in developed countries. But the knowledge gaps in developing countries such as South Africa are huge.
At the request of South Africa’s Water Research Commission – South Africa’s premier water knowledge hub – we recently undertook a scoping study of microplastics in freshwaters in the country’s economic powerhouse Gauteng and an area to the south of the region.
We found that surface water from the Vaal River – the largest tributary of the South Africa’s longest river, the Orange River – was highly polluted with fragments. This is most likely due to water draining into the river from industries in the area. We also found that fibres were more abundant in rural rivers, possibly due to untreated laundry water entering these rivers.
The problem
Because plastics are relatively new in the environment, many organisms can’t discriminate between food and non-food and ingest plastics as part of their diet.
Humans and animals are adapted to handle natural particles in water, air, and food. But the way the new addition of synthetic polymer particles in our environment is dealt with is less well known.
Microbeads found in the water. Author supplied
The indications are that some organisms don’t handle microplastics well, while others seem to be able to discriminate better between food and non-food items.
Very small particles are now also known to be able to cross the plasma membranes of animals, entering cells. What the effects of these may be on molecular, cellular, organ, and organismic levels are not well understood. But they may be significant.
The research
Our study focused on surface water from various rivers draining into the Crocodile, Olifants and Vaal River drainage basins. For scoping purposes, municipal water samples from Tshwane and Johannesburg were taken as well as ground water samples from the Potchefstroom area in the North West province.
We found that there were indeed high levels of microplastics in the water. But our findings are only the beginning of what should be a much more intense research endeavour.
For example, we still don’t understand a wide range of factors that affect the release, transformation and transportation of microplastics. We also don’t know enough about their composition. And there’s also a great deal to learn about the leaching of chemicals from plastics under South African conditions, including high temperatures, dry periods, and ultra violet.
In addition, we need to establish whether or not airborne microplastics contribute to the microplastic load in South African water systems. Recent international studies also show atmospheric fallout as a source of microplastic contamination.
What now?
Experience in other countries shows that one of the most effective actions that can be taken is the immediate ban on microbeads, and products containing microbeads.
We also suggest a review of laws and regulations elsewhere to provide a guide on how South Africa can strengthen its responses to plastic pollution. In particular, the country needs to develop laws around plastic packaging which seems to be the most obvious and visible component of inland plastics pollution.
The plastics issue in South Africa – and the world – can only be addressed with a concerted effort by producers, retailers, designers, consumers, scientists, conservationists, government, and society. Although laudable, recycling isn’t the complete solution. More is needed.
Given market forces and few regulations, meaningful voluntary reduction of the plastic components of packaging, or promoting the use of recyclable or re-usable plastic products (which are more expensive), seems remote. But even remote opportunities should be pursued and opportunities investigated.
South Africa could take a leaf out of the European Union’s book. It recently released a strategy that aims to transform the design of plastics, how it is produced, used, and recycled for a more resilient plastics industry. A similar approach could be followed in South Africa, although the country’s circumstances, such as the high number of jobs provided by the plastics industry, must be given serious consideration.
Carina Verster, a post-graduate student, was the co-author on this article.
US President Bill Clinton, Israeli Prime Minister Yitzhak Rabin and Palestinian leader Yasser Arafat sign the historic Oslo accord at the White House in September 1993. Wikicommons/Vince Musi
Looking back on events 25 years ago, when the Oslo Accords were struck on the White House lawn, it is hard to avoid a painful memory.
I was watching from a sickbed in Jerusalem when Bill Clinton stood between Israel’s Prime Minister Yitzhak Rabin and Palestinian leader Yasser Arafat for that famous handshake on the White House lawn.
At that moment, I was recovering from plastic surgery carried out by a skilled Israeli surgeon and necessitated by a bullet wound inflicted by the Israeli Defence Forces. (I had been caught in crossfire while covering a demonstration in the West Bank by stone-throwing Palestinian youths.)
That scar – like a tattoo – is a reminder of a time when it seemed just possible Arabs and Jews, Israelis and Palestinians could bring themselves to reach an historic compromise.
All these years later, prospects of real progress towards peace, or as American president Donald Trump puts it, the “deal of the century”, seems further away than ever.
As a correspondent in the Middle East for a decade (1984-1993) and as co-author of a biography of Arafat, I had an understandable interest in the outcome of the Oslo process.
In hours of conversations with members of the Palestine Liberation Organisation’s historical leadership, I had tracked the PLO’s faltering progression from outright rejection of Israel’s right to exist to acceptance implicit in the Oslo Accords.
Throughout that process of interviewing and cross-referencing with Israeli sources, I had hoped an honourable divorce could be achieved between decades-long adversaries. Like many, I was disappointed.
In 1993, the so-called Oslo Accords, negotiated in secret outside the Norwegian capital, resulted in mutual recognition of Israel and the PLO. This enabled the beginning of face-to-face peace negotiations.
A devastating event
Two years after the historic events at the White House, and by then correspondent in Beijing, I witnessed another episode of lasting and, as it turned out, tragic consequences for the Middle East.
That devastating moment brought to power for the first time the current Israeli Prime Minister Benjamin Netanyahu. He has distinguished himself by his unwillingness to engage meaningfully with the Palestinians through four US administrations: those of Bill Clinton, George W Bush, Barack Obama, and now Trump.
Some argue the Palestinians and their enfeebled leadership bear significant responsibility for peace process paralysis. That viewpoint is valid, up to a point. But it is also the case that Netanyahu’s replacement of Rabin stifled momentum.
Under Trump, Netanyahu finds himself under no pressure to concede ground in negotiations, or even negotiate at all. Indeed, the administration seems intent on further marginalising a Palestinian national movement, even as settlement construction in the occupied areas continues apace.
US President Donald Trump, here with Israeli Prime Minister Benjamin Netanyahu, has promised the ‘deal of the century’ in the Middle East, but the details have not yet been made clear. AAP/ Olivier Douliery/pool
On the eve of the accords, there were 110,000 Jewish settlers in the West Bank and Gaza Strip. That number has grown to 430,000 today. In 2017, those numbers grew by 20% more than the average for previous years.
The Trump administration’s decision to move the American embassy to Jerusalem without making a distinction between Jewish West or Arab East Jerusalem could hardly have been more antagonistic.
By taking this action, and not making it clear that East Jerusalem as a future capital of a putative Palestinian state would not be compromised, the administration has thumbed its nose at legitimate Palestinian aspirations.
UNWRA is responsible for the livelihoods of thousands of Palestinian refugees in camps in the West Bank, Gaza, Jordan, Lebanon and Syria. These are the ongoing casualties of Israel’s 1948 War of Independence against the Arabs.
Against this background and years of conflict between Israel and the Palestinians, including two major wars – the Six-Day War of 1967 and Yom Kippur War of 1973 – the two sides had in 1993 reached what was then described as an historic compromise.
Hopes dashed
What needs to be understood about Oslo is that its two documents, signed by Rabin and Arafat, did not go further than mutual recognition of Israel and the PLO in the first, and, in the second, a declaration of principles laying down an agenda for the negotiation of Palestinian self-government in the occupied territories.
What Oslo did not do was provide a detailed road-map for final status negotiations, which were to be completed within five years. This would deal with the vexed issues of refugees, Jerusalem, demilitarisation of the Palestinian areas in the event of a two-state settlement, and anything but an implied acknowledgement of territorial compromise, including land swaps, that would be needed to bring about a lasting agreement.
Writing in the Journal of Palestine Studies in 1994, Oxford professor Avi Shlaim described the White House handshake as:
one of the most momentous events in the 20th-century history of the Middle East. In one stunning move, the two leaders redrew the geopolitical map of the entire region.
Now emeritus professor, Shlaim’s own hopes, along with those of many others, that genuine compromise was possible, have been dashed.
Referring to the recent passage through the Knesset of a “basic law” that declares Israel to be “the nation-state of the Jewish people”, Shlaim recently observed:
This law stands in complete contradiction to the 1948 declaration of independence, which recognizes the full equality of all the state’s citizens ‘without distinction of religion, race or sex’… Netanyahu has radically reconfigured Israel as the nation-state of the Jewish people, rather than a Jewish and a democratic state. As long as the government that introduced this law stays in power, any voluntary agreement between Israel and the Palestinians will remain largely a pipe dream.
As Clinton’s National Security Council adviser on the Middle East, Indyk was responsible for the 1993 arrangements on the White House South Lawn. He writes:
The handshake was meant to signify the moment when Israeli and Palestinian leaders decided to begin the process of ending their bloody conflict and resolving their differences at the negotiating table.
Two decades later, in 2014, the funeral rites were pronounced on the Oslo Process after then Secretary of State John Kerry had done all he could to revive it against Netanyahu’s obduracy. Oslo had, in any case, been on life support since Rabin’s assassination.
“Then,” in Indyk’s words, “along came Trump with “the Deal of the Century”. Indyk writes:
His plan has yet to be revealed but its purpose appears clear – to legitimize the status quo and call it peace. Trump has already attempted to arbitrate every one of the final status issues in Israel’s favor: no capital in East Jerusalem for the Palestinians; no ‘right of return’ for Palestinian refugees; no evacuation of outlying settlements; no ’67 lines; no end of occupation; and no Palestinian state…
Over 25 years, in shifting roles from witness to midwife, to arbiter, the United States has sadly failed to help Israelis and Palestinians make peace, leaving them for the time being in what has essentially been a frozen conflict.
However, as history shows, “frozen conflicts” don’t remain frozen forever. They tend to erupt when least expected.
Twenty-five years ago, I shared a bloody hospital casualty station – not unlike a scene from M.A.S.H. – with more than a dozen wounded Palestinians. Some of them would not recover from terrible wounds inflicted by live ammunition.
I asked myself then, as I do now: what’s the point of it all?
On Tuesday the Constitutional Court decriminalised the possession and cultivation of cannabis in private by adults for personal private consumption. The court relied on the right to privacy to reach this result. Although the order was suspended until Parliament can fix the defect in the law, the court provided interim relief that will make it unlawful for the Police to arrest adults who privately cultivate, possess or use relatively small amounts of cannabis.
Several years ago, Gareth Prince (one of my former students) approached the Constitutional Court, arguing that legislation prohibiting Rastafarians from possessing and using cannabis (widely known as “dagga” in South Africa) unjustifiably limited the right of Rastafarians to religious freedom as guaranteed by section 15 of the Bill of Rights. In that case (decided in 2002), the Constitutional Court voted 5 votes to 4 to dismiss Mr Prince’s application, but as we say in Afrikaans “aanhouer wen” (he who perseveres, triumphs), and this week the Constitutional Court in a unanimous judgment came to a different conclusion.
As Deputy Chief Justice Raymond Zondo pointed out in his judgment in Minister of Justice and Constitutional Development and Others v Prince, the situation has changed since the Constitutional Court ruled against Mr Prince in 2002. There are now 33 jurisdictions across the world in which the use and possession of cannabis have been decriminalised or legalised.
This case also differs from the original 2002 case in that it was not based on the right to freedom of religion and did not require the legislature to provide for a special exemption for Rastafarians only. Instead, the argument before the court was that the criminal prohibition of the private cultivation and possession of cannabis for private consumption unjustifiably limited the right to privacy guaranteed by section 14 of the Bill of Rights.
The right to privacy can be understood as a right to live one’s own life with a minimum of interference by the state and by other private institutions or persons. The right can be imagined as a multi-layered onion, with protection being more intense at its core, and less intense as one peels away the layers and reaches to the outer layers of the onion. As the Court explained
A very high level of protection is given to the individual’s intimate personal sphere of life and the maintenance of its basic preconditions and there is a final untouchable sphere of human freedom that is beyond interference from any public authority. So much so that, in regard to this most intimate core of privacy, no justifiable limitation thereof can take place… This inviolable core is left behind once an individual enters into relationships with persons outside this closest intimate sphere; the individual’s activities then acquire a social dimension and the right of privacy in this context becomes subject to limitation.
Given this definition of the right to privacy, the Court had no difficulty in finding that the prohibition of the mere possession, use or cultivation of cannabis by an adult in private for his or her personal consumption in private is inconsistent with the right to privacy provided for in section 14 of the Constitution. The only question in the case was therefore whether such a drastic infringement on the right to privacy was justifiable in terms of the limitation clause contained in section 36 of the Constitution.
The court raised several compelling arguments to justify its conclusion that this limitation of the right to privacy was not justifiable in terms of the limitation clause.
First, it quoted with approval from the High Court judgment which noted that much of the history of cannabis use in this country “is replete with racism”, and noted that there is a long history of the use of cannabis by indigenous South Africans.
The Court did not note that the use and possession of cannabis was outlawed by the colonial authorities in South Africa partly to prevent interracial socialisation and sexual activity which some legislators at the time thought would be encouraged by the widespread use of dagga. Neither did it comment on the argument that the criminal law often imposes more severe penalties on those convicted of the possession of drugs mostly used by poor people and by black people than on the possession of drugs mostly used by rich people and white people.
However, the Court did make the following comment about the long history of cannabis use by black South Africans:
[W]e do not, of course, intend to minimise the fact that the use of dagga is a great social evil in South Africa. Nevertheless, the long-standing indulgence in the use of the substance by a group of which an accused person belongs may well constitute a circumstance to be taken into account in mitigation at any rate where he has been convicted of the use or possession of a small quantity.
Second, while the infringement on the right to privacy by the criminal law was severe, the purpose of the prohibition (protecting individuals from drug addiction and the harms associated with drugs) was not as pressing as previously thought because the harm of cannabis use was not as severe as previously argued by government “experts”. The court relied on findings by the World Health Organisation and others about the relative harm of cannabis compared to other widely available substances like alcohol and tabacco.
Relying on these findings, the court pointed out that the adverse health and social consequences of cannabis use reported by cannabis users who seek treatment for dependence appear to be less severe than those reported by persons dependent on alcohol or opioid. The court also noted that the harmful effects caused by cannabis are incomparable to those caused by tobacco. Although the court did not spell this out, the logical consequence of this is that it makes little sense to criminalise the use and possession of cannabis but to allow the use and possession of alcohol and tobacco.
Lastly, as noted above, attitudes in other open and democratic societies towards cannabis use have changed drastically over the past ten years, providing another reason why the severe limitation on the right to privacy could not be justified.
The court thus declared invalid the relevant sections of the Drugs and Drug Trafficking Act and read words into these sections to ensure that the judgment would have immediate effect – although it also ruled that Parliament could pass its own amendments within the next 24 months to manage the regulation of the private possession, cultivation and use of cannabis – as long as such legislation did not infringe on the right to privacy of individuals.
The effect of the reading-in is that an adult person may use or be in possession of cannabis in private for his or her personal consumption in private. One would be able to use cannabis in private even when this private place is not ones home or dwelling. Moreover, the cultivation of cannabis by an adult in a private place for his or her personal consumption in private is no longer a criminal offence. As the court explained:
An example of cultivation of cannabis in a private place is the garden of one’s residence. It may or may not be that it can also be grown inside an enclosure or a room under certain circumstances. It may also be that one may cultivate it in a place other than in one’s garden if that place can be said to be a private place.
This ruling does not extend to the use, including smoking, of cannabis in public or in the presence of children or in the presence of non-consenting adult persons. Furthermore, the use or possession of cannabis in private other than by an adult for his or her personal consumption is not permitted.
The ruling also does not extend to the cultivation or possession of cannabis with the intention of selling it. This means that it is still a criminal offence to grow dagga commercially or to deal in dagga.
Dealing in cannabis is a serious problem in this country and the prohibition of dealing in cannabis is a justifiable limitation of the right to privacy.
The judgment is somewhat vague about how a court will decide when you cultivate or possess cannabis for private use and when you intend to sell that cannabis to others. The court did not impose specific limits on the quantities that you are allowed to possess before it will be assumed that you are dealing in dagga and are no longer merely possessing it for private use. However, judge Zondo provided the following guidelines:
In determining whether or not a person is in possession of cannabis for a purpose other than for personal consumption, an important factor to be taken into account will be the amount of cannabis found in his or her possession. The greater the amount of cannabis of which a person is in possession, the greater the possibility is that it is possessed for a purpose other than for personal consumption. Where a person is charged with possession of cannabis, the State will bear the onus to prove beyond a reasonable doubt that the purpose of the possession was not personal consumption.
This means that if a police officer finds a person in possession of cannabis, he or she may only arrest the person if, having regard to all the relevant circumstances, including the quantity of cannabis found in that person’s possession, it can be said that there is a reasonable suspicion that a person has committed an offence in terms of the Act.
This leaves some discretion to the Police to arrest individuals who are found in possession of cannabis. However, the judgment minimises the possibility that this power will be abused by an overzealous Police officer by making clear that when in doubt, the Police officer should not arrest an individual found in possession of cannabis. Zondo explains the practical effect of this as follows:
It is true that there will be cases where it will be clear from all the circumstances that the possession of cannabis by a person is for personal use or consumption. There will also be cases where it will be clear from all the circumstances that the possession of cannabis by a person is not or cannot be for personal consumption or use. Then, there will be cases where it will be difficult to tell whether the possession is for personal consumption or not. In the latter scenario a police officer should not arrest the person because in such a case it would be difficult to show beyond reasonable doubt later in court that that person’s possession of cannabis was not for personal consumption I will, therefore, not confirm that part of the order of the High Court because we have no intention of decriminalising dealing in cannabis.
Parliament may of course pass legislation to provide different guidelines to Police officers, but Parliament it is now constitutionally prohibited from passing legislation that would criminalise the private cultivation, possession, and consumption of cannabis. While Parliament can tweak the laws to ensure the effective enforcement of laws to criminalise the commercial manufacture and dealing in cannabis, any such law would have to respect the rights of an adult to cultivate, possess and consume cannabis in private.
This is from Constitutionally Speaking by Prof Pierre de Vos
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Naspers has announced its intention to list its video entertainment business separately on the JSE and simultaneously to unbundle its shares in this business to its shareholders.
The new company will be named Multichoice Group and will include Multichoice South Africa, Multichoice Africa, Showmax Africa and Irdeto.
Multichoice is unquestionably the leading operator in its field on the African continent, but in recent times there have been signs that it is taking increasing pressure from internet services such as Netflix, which provides stiff competition to Multichoice’s products at very competitive prices.
The conclusion to be drawn from this action is that Naspers is exiting what is rapidly becoming a far less attractive proposition.
When Multichoice’s predecessor (MNET) began life in the late 1980s, the only competition was the state broadcaster, the SABC/SAUK, which was the propaganda arm of the apartheid government. In those days, it was illegal for private individuals to access satellite television – and those who tried, with massive dishes that managed to get a small amount of “spillage” from international broadcasters like CNN, very soon had their equipment rendered inoperative by the authorities.
By the mid-1990s, Multichoice’s DStv began offering satellite TV to individuals, and this was like a breath of fresh air. All of a sudden it was possible to access international broadcasters like CNN, CNBC, BBC and Sky TV, as well as Discovery Channel and many others.
At the time, it was transformative. Multichoice/DStv was very clever insofar as it managed to offer top quality content – and frankly, the few competitors that tried to compete failed dismally, as they were unable to access that world-class content.
But their monopolistic behaviour began sowing the seeds of a longer-term malaise.
Until very recently, South Africans had only limited access to reasonably fast broadband, and that access was very very expensive. But all that changed with the arrival of Fibre Broadband to The Home (FTTH), spearheaded by operators like Vumatel.
In a remarkably short space of time, hundreds and then thousands of suburbs all over the country were able to access fast, reliable broadband without having to use Telkom, and at significantly lower prices.
FTTH offered South Africans the ability to access global entertainment at a fraction of the cost that DStv was charging.
It took a little while before many people cottoned-on to the fact that they could access hitherto undreamt of entertainment, sport and cinema online – but when they did, the effect was shattering.
Netflix offered a South African version of their global offering at R100/month.
To put this in perspective, to access the full bouquet of DStv products, it is necessary to have their Explora PVR decoder and pay an access fee for using the decoder’s facilities for around R900 per month.
First, you need to buy the decoder itself, which with installation and a new dish can cost just under R2 000.
Netflix is a streaming product and doesn’t require any extra hardware.
The effect of Netflix and other streaming products on DStv has been noticeable.
In the year to March 2018, Multichoice lost over 40 000 subscribers, due mainly to those subscribers switching from DStv to Netflix and other internet services.
At this point, it is worth doing a few calculations to illustrate just how expensive DStv/Multichoice is, both in local and international terms.
Take Britain’s Sky TV as a base of comparison. The basic Sky setup costs GBP20/month and then it is left up to the individual to decide which extras he or she wants.
For this 20 pounds, you get the basic Sky entertainment features such as Sky Atlantic, Sky One, National Geographic and many others. Sky Cinema – the equivalent of a Netflix – will cost another ten pounds. The complete Sky Sports package costs another 20 pounds. So in total, a relatively full Sky subscription will cost approximately the same as a Premium DStv subscription – but the difference is in the much higher degree of versatility offered.
For example, Sky Cinema offers up-to
-date movies that in a DStv context one would each have to pay R35 for, via their Box Office option.
And on the Sky Sports front, one can opt not to buy a monthly package at 20 pounds but instead just go for a daily or weekly pass at a significantly reduced rate and without having to be on any form of contract, via Sky’s subsidiary, the internet-based Now TV.
And of course, all of the free-to-air channels like BBC, ITV, Channel 5 etc are available for no cost.
So, DStv is expensive compared to Sky TV, especially when one considers the choice and versatility offered by Sky.
South African viewers can access the UK’s free-to-air channels by utilizing what is known as a Virtual Private Network (VPN).
These free-to-air channels are only available in the UK but by using a VPN, South African viewers effectively change their location to the extent that these channels think that they are being viewed in the UK.
A typical VPN subscription costs about 8 pounds per month. South African viewers can access Now TV and enjoy Sky Cinema, Sky Entertainment and Sky Sports via a VPN, once they paid for their subscriptions.
The bottom line is that the competition to Multichoice is likely only to intensify in future.
As FTTH becomes more widely available and more and more people understand what is available, they will carry on deserting DStv in favour of more versatile offerings such as Amazon Prime, Netflix and their own VPNs.
It is not clear how Multichoice intends countering this threat, other than by attempting to get the South African regulatory authorities onboard and forcing Netflix to pay tax in SA.
By being more innovative – by offering more versatile and appealing packages – oh, yes, and by drastically reducing their prices – they could easily counter this threat.
But somehow I don’t think they will.
It will be interesting to see how successful or otherwise this new listing will be.
I, for one, will not be buying shares in this new company.
Chris Gilmour is an investment analyst, writer and commentator
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For the past two years political party coalitions have become the “new normal” in South African politics. They became a key feature in 2016 after the main opposition party, the Democratic Alliance (DA), wrested power from the governing African National Congress (ANC) by forming coalitions in three key metropolitan – Nelson Mandela Bay, Tshwane and Johannesburg.
After a series of crises, the coalition which had been cobbled together between the DA and three smaller parties finally collapsed in August. Another motion of no confidence – the fifth in two years – was tabled against the DA’s executive mayor Athol Trollip. A slim majority of councillors voted in favour and he was ousted. Trollip has challenged the decision in court. For now the city has a mayor from the United Democratic Movement which has 2% of the vote in the council.
The coalition in South Africa’s second largest city Tshwane is also on shaky ground. The executive mayor Solly Msimanga, also from the DA, faced a motion of no confidence a mere three days after Trollip was ousted. But Msimanga survived to fight another day due to a technical glitch in the voting procedures.
But the troubles in Nelson Mandela Bay and Tshwane are raising real concerns that the political chess games are affecting accountability, governance stability and service delivery in the cities.
This is a serious state of affairs. If political parties can’t work together, passing resolutions and agreeing on developmental priorities becomes difficult. Once governance stagnates, a municipality cannot function effectively. This in turn affects its ability to provide services. When councils become political theatres, ordinary citizens suffer. This much has been evident in Nelson Mandela Bay.
Political expediency
Coalitions are usually formed on the basis of political expediency. The political marriages of convenience come about when political parties can’t get an outright majority. To secure power, parties scramble to find partners, at times without considering ideological, policy, or historical differences. As African political and governance scholar W. O. Oyugi cited by African human rights expert Dr Japheth Biegnon has noted:
coalitions are a necessary evil – an evil in the sense that normally no party ever coalesces except in circumstances in which not to do so would deprive it of a chance to exercise power
This certainly holds true for the coalitions formed in South Africa since 2016. The cooperation forged among opposition parties was designed solely to get the ANC out of power.
What emerged were uncomfortable coalition governments led by the DA. It promised to root out corruption and improve the delivery of basic services, such as water and electricity, to communities. But it lacked the required majority to govern on its own so turned to building coalitions.
It partnered with a number of smaller parties. One of them, the Economic Freedom Fighters (EFF), helped the DA take over governments in Nelson Mandela Bay, Tshwane and Johannesburg.
The EFF, acutely aware of the power it wields in all these arrangements, has used the fragile political situation at local government level for its own political agenda. This has included promoting its radical stance on land expropriation and nationalisation with an eye on improving its performance in next year’s elections.
Both the DA and the ANC realise that, potentially, they might need to work with the EFF in future. It is therefore not surprising that following the Tshwane motion of no confidence, Msimanga announced he would “reach out” to the EFF.
Lessons for the future
There are two key lessons that political parties should take away from the current political turmoil if they want to bring about a semblance of bureaucratic stability.
Firstly, using local coalition politics to advance political agendas can severely hamper service delivery. Secondly, this undermines public trust in local government, creating fertile ground for political unrest.
Political parties will need to heed these lessons to ensure effective governance and political stability in the country. This is particularly important in view of the 2019 national and provincial elections, which are expected to result in even more coalition governments.
If they don’t, ordinary citizens will suffer while politicians engage in a game of chess to secure power. As it is, South Africans are increasingly dissatisfied with democracy. This is due to a number of factors, including poor service delivery and a lack of societal trust in government.
Ultimately, coalitions need to work for the citizenry, and not politicians.
Joleen Steyn Kotze, Senior Research Specialist in Democracy, Governance and Service Delivery at the Human Science Research Council and a Research Fellow Centre for African Studies, University of the Free State
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